<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 11, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
HARVARDNET INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------------------
<TABLE>
<S> <C> <C>
DELAWARE 4813 04-3194739
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
--------------------------
500 RUTHERFORD AVENUE
BOSTON, MA 02129
(617) 242-1700
(Address Including Zip Code, and Telephone Number Including Area Code,
of Registrant's Principal Executive Offices)
--------------------------
MARK M. WASHBURN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HARVARDNET INC.
500 RUTHERFORD AVENUE
BOSTON, MA 02129
(617) 242-1700
(Name, Address Including Zip Code and Telephone
Number Including Area Code, of Agent for Service)
--------------------------
Copies to:
<TABLE>
<S> <C>
THOMAS S. WARD, ESQ. ANDREW R. SCHLEIDER, ESQ.
HALE AND DORR LLP SHEARMAN & STERLING
60 State Street 599 Lexington Avenue
Boston, Massachusetts 02109 New York, NY 10022
Telephone: (617) 526-6000 Telephone: (212) 848-4000
Telecopy: (617) 526-5000 Telecopy: (212) 848-7179
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date hereof. If any of the securities being
registered on this Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. / /
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE
SECURITIES TO BE REGISTERED OFFERING PRICE (2) AMOUNT OF REGISTRATION FEE
<S> <C> <C>
Common Stock, $.01 par value per share (1) $125,000,000 $34,750
</TABLE>
(1) In accordance with Rule 457(o) under the Securities Act of 1933, as amended,
the number of shares being registered and the proposed maximum offering
price per share are not included in this table.
(2) Estimated solely for purposes of calculating the registration fee.
------------------------
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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This registration statement contains two forms of prospectus: one to be used
in connection with an offering in the United States and Canada and one to be
used in a concurrent offering outside the United States and Canada. The
prospectuses are identical in all material respects except for the front cover
page. The U.S. prospectus is included herein and is followed by the alternate
front cover page to be used in the international prospectus. The alternate page
for the international prospectus included herein is labeled "Alternate Page for
International Prospectus." Final forms of each prospectus will be filed with the
Securities and Exchange Commission under Rule 424(b).
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS (SUBJECT TO COMPLETION)
ISSUED JUNE 11, 1999
SHARES
[LOGO]
HARVARDNET INC.
COMMON STOCK
---------------------
HARVARDNET INC. IS OFFERING SHARES OF ITS COMMON STOCK. OF THE SHARES OF
COMMON STOCK WE ARE OFFERING, SHARES ARE BEING OFFERED INITIALLY IN THE
UNITED STATES AND CANADA BY THE U.S. UNDERWRITERS, AND SHARES ARE BEING
OFFERED INITIALLY OUTSIDE THE UNITED STATES AND CANADA BY THE INTERNATIONAL
UNDERWRITERS. THIS IS OUR INITIAL PUBLIC OFFERING AND NO PUBLIC MARKET CURRENTLY
EXISTS FOR OUR SHARES. WE ANTICIPATE THAT THE INITIAL PUBLIC OFFERING PRICE WILL
BE BETWEEN $ AND $ PER SHARE.
-------------------
APPLICATION HAS BEEN MADE FOR QUOTATION OF THE COMMON STOCK ON THE NASDAQ
NATIONAL MARKET UNDER THE SYMBOL "HNET."
-------------------
INVESTING IN THE COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON
PAGE 5.
-----------------
PRICE $ A SHARE
-----------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC COMMISSIONS HARVARDNET
------------------ ------------------ ------------------
<S> <C> <C> <C>
PER SHARE.......................................... $ $ $
TOTAL.............................................. $ $ $
</TABLE>
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE
NOT APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
HARVARDNET INC. HAS GRANTED THE UNDERWRITERS THE RIGHT TO PURCHASE UP TO AN
ADDITIONAL SHARES TO COVER OVER-ALLOTMENTS. MORGAN STANLEY & CO.
INCORPORATED EXPECTS TO DELIVER THE SHARES TO PURCHASERS ON , 1999.
------------------------
MORGAN STANLEY DEAN WITTER
MERRILL LYNCH & CO.
SALOMON SMITH BARNEY
, 1999
<PAGE>
[Graphic setting forth the following text:
Internet@BusinessSPEED
Our Service Offerings Include:
BusinessSPEED Internet Access
- Digital Subscriber Line
- Leased Line
- Frame Relay
RemoteCONNECT Virtual Private Network (VPN)
- Telecommuter
- Branch Office
- Corporate Headquarters
Web Hosting Value-Added Services
- - Shared - Managed E-mail
- - Dedicated - Remote backup (trials)
- - Collocated - PBX Extension (trials)
HarvardNET LOGO]
<PAGE>
THE MAP
[Graphical description of HarvardNET'S backbone network. In the upper left
corner, the page contains a rectangular box labeled "HarvardNET," with the
following sentence underneath, "Our Northeast backbone network connects
markets from Maine to Virginia and provides HarvardNET customers with a fiber
optic connection to major exchange points and the world wide web." In the
upper right hand corner is the sentence, "We have approximately 500 DSL and
leased lines in service and more than 1,100 Web hosting customers in the
Northeast." In the bottom right hand corner is a box that contains subheadings
"HarvardNET Point of Presence," "Peering Point," and "Target DSL Coverage
Areas."
The center graphic is a map of New England and the Mid-Atlantic states
stretching from Maine to Virginia with lines on the map connecting major
metropolitan areas among those states. The map identifies HarvardNET's points
of presence, peering points and target DSL coverage areas. In the bottom
right hand corner is a diagram of the HarvardNET Network described more fully
below.]
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Prospectus Summary............................. 1
Risk Factors................................... 5
Use of Proceeds................................ 17
Dividend Policy................................ 17
Capitalization................................. 18
Dilution....................................... 19
Selected Financial Data........................ 20
Management's Discussion and Analysis of
Financial Condition and Results of
Operations................................... 22
Business....................................... 30
Management..................................... 48
<CAPTION>
PAGE
-----
<S> <C>
Transactions with Affiliates................... 54
Principal Stockholders......................... 55
Description of Capital Stock................... 57
Shares Eligible for Future Sale................ 60
United States Federal Tax Consequences to
Non-U.S. Holders of Common Stock............. 62
Underwriters................................... 65
Legal Matters.................................. 69
Experts........................................ 69
Where You May Find Additional Information...... 70
Index to Financial Statements.................. F-1
</TABLE>
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information that is different
from that contained in this prospectus. We are offering to sell, and seeking
offers to buy, shares of common stock only in jurisdictions where offers and
sales are permitted. The information contained in this prospectus is accurate
only as of the date of this prospectus, regardless of the time of delivery of
this prospectus or of any sale of the common stock. In this prospectus,
"HarvardNET," "we," "us" and "our" refer to HarvardNET Inc. and our subsidiary.
WE HAVE NOT TAKEN ANY ACTION TO PERMIT A PUBLIC OFFERING OF THE SHARES OF
COMMON STOCK OUTSIDE THE UNITED STATES OR TO PERMIT THE POSSESSION OR
DISTRIBUTION OF THIS PROSPECTUS OUTSIDE THE UNITED STATES. PERSONS OUTSIDE THE
UNITED STATES WHO COME INTO POSSESSION OF THIS PROSPECTUS MUST INFORM THEMSELVES
ABOUT AND OBSERVE ANY RESTRICTIONS RELATING TO THE OFFERING OF THE SHARES OF
COMMON STOCK AND THE DISTRIBUTION OF THIS PROSPECTUS OUTSIDE OF THE UNITED
STATES.
Until , 1999, all dealers that buy, sell or trade common stock,
whether or not participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealers' obligation to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
Our logo and some titles and logos of our products mentioned in this
prospectus are either our trademarks or trademarks that have been licensed to
us. Each trademark, trade name or service mark of any other company appearing in
this prospectus belongs to its holder.
<PAGE>
PROSPECTUS SUMMARY
YOU SHOULD READ THE FOLLOWING SUMMARY TOGETHER WITH THE MORE DETAILED
INFORMATION REGARDING US AND OUR COMMON STOCK AND OUR FINANCIAL STATEMENTS
APPEARING ELSEWHERE IN THIS PROSPECTUS. ALL INFORMATION IN THIS PROSPECTUS
RELATING TO THE NUMBER OF SHARES OF OUR COMMON STOCK, OPTIONS OR WARRANTS IS
BASED UPON INFORMATION AS OF MAY 31, 1999, ASSUMING A -FOR- COMMON STOCK
SPLIT BEFORE THE OFFERING, AND THE CONVERSION OF ALL SHARES OF CONVERTIBLE
PREFERRED STOCK AND CLASS B STOCK OUTSTANDING AS OF MAY 31, 1999 INTO AN
AGGREGATE OF SHARES OF COMMON STOCK ON COMPLETION OF THIS OFFERING. UNLESS
OTHERWISE SPECIFICALLY STATED, THE INFORMATION THROUGHOUT THIS PROSPECTUS DOES
NOT TAKE INTO ACCOUNT THE POSSIBLE ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK
TO THE U.S. UNDERWRITERS PURSUANT TO THEIR RIGHTS TO PURCHASE ADDITIONAL SHARES
TO COVER OVER-ALLOTMENTS.
We provide high-speed data networking solutions and Web hosting services to
businesses located in the Northeast and Mid-Atlantic regions of the United
States. We market our products and services through our direct sales force and
deliver our services using our East Coast Internet protocol-based backbone
network that connects markets from Maine to Virginia. Our service offerings
include:
- high-speed digital subscriber line, or DSL, Internet access for small- and
medium-sized businesses, including offerings with data transfer speeds
ranging from 144 kilobytes per second (Kbps) to 7 megabytes per second
(Mbps);
- virtual private network services for large enterprises that require
high-speed, secure remote access for telecommuting, work-at-home and
mobile professionals;
- shared server, dedicated server and collocated Web hosting solutions,
which provide a secure location, controlled environment, active monitoring
and high-speed connections to the Internet via our backbone network;
- leased line Internet connectivity for Internet-dependent businesses,
including T-1 lines, T-3 lines and frame relay services; and
- e-commerce solutions and other enhanced network enabled services,
including outsourced e-mail administration and Web-based credit card
transaction processing.
We have executed interconnection agreements with Bell Atlantic covering our
targeted Northeast and Mid-Atlantic markets of Massachusetts, Maine, New
Hampshire, Rhode Island, New York, New Jersey, Pennsylvania, Maryland,
Washington, D.C. and Virginia. As of May 31, 1999, we provided service at 24
central office locations and were installing equipment in 23 additional central
office locations in eastern Massachusetts, southern Maine and southern New
Hampshire. We expect to collocate in approximately 150 Bell Atlantic central
office locations in the Northeast region by the end of 1999 and in an aggregate
of more than 600 central offices in the Northeast and Mid-Atlantic regions by
the middle of 2001. As of May 31, 1999, we had approximately 500 DSL and leased
lines in service and more than 1,100 Web hosting business customers. Our
customers include the Atlantic Monthly, the Boston Museum of Fine Arts, Fidelity
Capital, KPMG Peat Marwick, Nantucket Nectars, Sage Networks and Staples.
THE MARKET OPPORTUNITY
Data communications is the fastest growing segment of the telecommunications
market. Today, many enterprises find existing data networking solutions too
expensive, too slow or both. With no cost-effective alternative to the
relatively slow transmission speeds of dial-up modems or integrated services
digital network, or ISDN, lines to connect to the Internet, workers at a
significant number of small- and medium-sized businesses have been forced to
endure delays and productivity limitations. A significant number of large
enterprises are similarly demanding increased speed as their Internet usage
increases. Over the past ten years, high-speed local area networks have become
increasingly important to enterprises, permitting employees to share
information, send e-mail, search databases and conduct business. Businesses are
being
1
<PAGE>
driven by competitive, technological and societal forces to equip many of their
employees with the ability to work at home and in other remote locations, such
as branch offices, to improve employee productivity and reduce operating costs.
As a result, the demand for high-speed digital communications services for
remote local area network access is also growing rapidly. In addition, many
small- and medium-sized businesses increasingly are starting to realize the
potential of the Internet by establishing an Internet presence. Many of these
businesses want to create a Web site on which they can sell, market and brand
their products and services, execute electronic transactions and provide
information to their customers, suppliers, business partners and employees.
THE HARVARDNET SOLUTION
We offer our products and services through our direct sales force to small-
and medium-sized business customers and to large enterprises with telecommuters.
We provide a full range of services to allow businesses to effectively outsource
their data networking and Web hosting needs. We also bundle a number of our
service offerings to encourage customers to purchase multiple services. We
believe that the suite of services marketed by our direct sales force is
especially attractive to small- and medium-sized businesses that typically do
not have the information technology personnel or infrastructure necessary to
manage their data networking and Internet-related needs.
Our BusinessSPEED DSL service is capable of delivering data at speeds that
are up to 125 times faster than 56 Kbps dial-up modems. Our DSL service, which
includes Internet access, costs significantly less per month than high-speed
leased lines, such as T-1 or frame relay, typically resulting in cost savings of
50-75% over traditional leased line and frame relay Internet access services.
For those customers unable to use DSL or that need greater bandwidth, we offer
leased line services at a discount to the rates charged by the incumbent
carrier. Our RemoteCONNECT service combines our DSL services with virtual
private networking equipment to provide high speed and secure connections to
corporate local area networks and the Internet. We also offer shared, dedicated
and collocated Web hosting services to allow businesses to establish an Internet
presence. We have designed our network and service offerings to enable customers
to purchase the level of service and transmission speed that meets their
existing requirements and to easily upgrade as their needs change.
We plan to offer DSL and leased line services in the Northeast and
Mid-Atlantic regions and intend to activate a substantial number of collocated
central offices throughout our target markets to enable us to provide
comprehensive coverage to end users. We deliver our services over our own
advanced Internet protocol-based backbone network that connects markets from
Maine to Virginia. This network is designed for reliable, secure, high
performance transport and delivery of Internet protocol-based data. The network
primarily operates at the OC-3 capacity level (155 Mbps) and includes fiber
optic connections to major Internet exchange points. In addition, we have
peering relationships with over 90 Internet service providers to facilitate the
efficient and cost-effective exchange of customer traffic.
In November 1995, we entered the Internet business focusing on providing
high performance Web hosting services, as well as leased-line Internet access to
business customers in the Boston market. In 1996, we were among the first
companies in the country to commercially deploy DSL technology. In September
1998, we received equity investments from M/C Venture Partners and Fidelity
Ventures. Since September 1998, we have recruited and built a senior management
team with extensive experience in the data networking industry, including our
President and Chief Executive Officer, Mark Washburn, who previously served in
senior sales and general management positions at Level 3 Communications, XCOM
Technologies, Inc., and MFS Communications.
Our principal executive offices are located at 500 Rutherford Avenue,
Boston, Massachusetts 02129, and our telephone number is (617) 242-1700. Our
World Wide Web site address is www.harvard.net. The information on our Web site
is not incorporated by reference into this prospectus.
2
<PAGE>
THE OFFERING
We are offering shares of common stock initially in the United States and
Canada and shares of common stock initially outside the United States and
Canada. The closing of each of these offerings is conditioned on the closing of
the other.
<TABLE>
<S> <C>
Common stock offered:
U.S. offering.................................... shares
International offering........................... shares
Total.......................................... shares
Common stock to be outstanding after this offering... shares(1)
Over-allotment option................................ shares
Use of proceeds...................................... We will receive net proceeds from
this offering of approximately
$ million, assuming a per
share price of $ .
Approximately $ million of
the proceeds will be used to repay
amounts owed under our credit
facility. We intend to use the
remaining net proceeds for capital
expenditures relating to our planned
geographic expansion, potential
acquisitions, working capital and
and other general corporate
purposes.
Dividend policy...................................... We do not intend to pay dividends on
our common stock. We plan to retain
any earnings for use in the
operation of our business and to
fund future growth.
Proposed Nasdaq National Market symbol............... HNET
</TABLE>
- ------------------------
(1) Based on 3,896,291 shares of common stock outstanding as of May 31, 1999,
plus shares of common stock issuable upon conversion of outstanding
convertible preferred stock and Class B stock as of that date. Excludes
1,053,250 shares issuable upon the exercise of outstanding stock options as
of May 31, 1999 at a weighted average exercise price of $1.34 per share and
634,163 shares of common stock issuable upon the exercise of outstanding
warrants at a weighted average exercise price of $4.52 per share.
3
<PAGE>
SUMMARY FINANCIAL DATA
The financial data set forth below should be read together with "Selected
Financial Data," "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and our financial statements included elsewhere in
this prospectus.
The following statement of operations data for the years ended December 31,
1996, 1997 and 1998 are derived from our audited financial statements included
elsewhere in this prospectus. The statement of operations data for the three
month periods ended March 31, 1998 and 1999 and the balance sheet data as of
March 31, 1999 are derived from our unaudited financial statements and reflect
all adjustments (consisting only of normal recurring adjustments) necessary for
a fair presentation of our results of operations and financial position. Results
for the three months ended March 31, 1999 are not necessarily indicative of
results that may be expected for the year.
EBITDA consists of net loss excluding interest, taxes, depreciation and
amortization. We have provided EBITDA because it is a measure of financial
performance commonly used in the telecommunications industry, but other
companies may calculate it differently from us. We have presented EBITDA to
enhance your understanding of our operating results. You should not construe it
as an alternative to operating income as an indicator of our operating
performance or as an alternative to cash flows from operating activities as a
measure of liquidity.
Pro forma as adjusted balance sheet data reflects our receipt of the
estimated net proceeds from the sale of shares of common stock offered by
us in this offering at an assumed initial public offering price of $ per
share, after deducting estimated underwriting discounts and commissions and
estimated offering expenses payable by us and the conversion of all outstanding
shares of convertible preferred stock and Class B stock into an aggregate of
shares of common stock.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------------- --------------------
<S> <C> <C> <C> <C> <C>
1996 1997 1998 1998 1999
--------- --------- --------- --------- ---------
<CAPTION>
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues......................................................... $ 720 $ 1,381 $ 4,282 $ 954 $ 1,600
Operating income (loss).......................................... 37 (181) (1,750) (183) (1,404)
Net income (loss)................................................ 27 (139) (1,260) (136) (1,300)
OTHER DATA:
EBITDA........................................................... $ 43 $ 6 $ (411) $ 135 $ (904)
Capital expenditures............................................. -- 19 1,010 36 627
Net cash provided by (used in) operating activities.............. 96 (44) (93) 428 (1,417)
Net cash used in investing activities............................ -- (19) (1,010) (36) (3,450)
Net cash provided by (used in) financing activities.............. (6) 340 5,916 (10) 8,603
</TABLE>
<TABLE>
<CAPTION>
AS OF MARCH 31, 1999
------------------------
PRO FORMA
ACTUAL AS ADJUSTED
--------- -------------
<S> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................................................. $ 8,975
Working capital........................................................................... 9,141
Property and equipment, net............................................................... 1,704
Total assets.............................................................................. 16,049
Long-term debt, net of current portion.................................................... 50
Redeemable convertible preferred stock.................................................... 18,011
Total stockholders' equity (deficit)...................................................... (3,245)
</TABLE>
4
<PAGE>
RISK FACTORS
AN INVESTMENT IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
CONSIDER CAREFULLY THE RISKS DESCRIBED BELOW, TOGETHER WITH ALL OTHER
INFORMATION INCLUDED IN THIS PROSPECTUS, BEFORE YOU DECIDE TO BUY OUR COMMON
STOCK. IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR, OUR BUSINESS, FINANCIAL
CONDITION OR RESULTS OF OPERATIONS WOULD LIKELY SUFFER. IN SUCH CASE, THE
TRADING PRICE OF OUR COMMON STOCK COULD FALL, AND YOU MAY LOSE ALL OR PART OF
THE MONEY YOU PAID TO BUY OUR COMMON STOCK.
THIS PROSPECTUS ALSO CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS
AND UNCERTAINTIES. OUR ACTUAL RESULTS COULD DIFFER SIGNIFICANTLY FROM THOSE
ANTICIPATED IN THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF THE RISKS
DESCRIBED BELOW AND ELSEWHERE IN THIS PROSPECTUS.
WE HAVE A LIMITED OPERATING HISTORY, WHICH MAKES IT DIFFICULT TO EVALUATE OUR
BUSINESS
Since September 1998, we have recruited a new senior management team and
changed the focus of our business from providing largely dial-up and leased-line
Internet access to providing a suite of high-speed data networking solutions. In
particular, we have focused on establishing collocated central offices for the
provision of digital subscriber lines, and building our East Coast Internet
protocol-based backbone network. Because of our limited operating history in
providing this wide range of services, you have limited operating and financial
data about our business upon which to base an evaluation of our performance and
an investment in our common stock.
You should consider the risks, expenses and difficulties we may encounter,
including those frequently encountered by early stage companies in new and
rapidly evolving markets. Our success will depend on our ability to:
- deploy an effective network infrastructure;
- establish collocation arrangements with Bell Atlantic;
- develop our billing and operational support systems;
- raise additional capital;
- rapidly expand digital subscriber line, or DSL, service within the
Northeast and Mid-Atlantic regions of the United States;
- attract and retain customers; and
- attract and retain qualified personnel.
If we fail to manage these activities successfully, it would materially
adversely affect our business, financial condition and results of operations.
BECAUSE THE DSL MARKET IS NEW AND EVOLVING, WE CANNOT PREDICT THE SIZE OF THE
MARKET
The market for high-speed data networking services using copper telephone
lines is in the early stages of development. We cannot accurately predict the
rate at which this market will grow, if at all, or whether new or increased
competition will result in market saturation. The security, reliability, ease,
cost of access and quality of service relating to the use of DSL technology for
Internet and local area network access are unresolved and may impact the growth
of these services. To be successful, we must develop and market services that
are widely accepted by businesses at profitable prices. If the market for our
DSL services fails to develop, grows more slowly than anticipated or becomes
saturated with competitors, these events could materially adversely affect our
business, financial condition and results of operations.
5
<PAGE>
DSL TECHNOLOGY MAY NOT OPERATE AS EXPECTED ON INCUMBENT LOCAL CARRIER NETWORKS
AND MAY INTERFERE WITH OR BE AFFECTED BY OTHER TRANSPORT TECHNOLOGIES
We significantly depend on the quality of the copper telephone lines we
obtain from Bell Atlantic and Bell Atlantic's maintenance of these lines to
provide DSL services. We cannot assure you that we will be able to obtain the
copper telephone lines and the services we require from Bell Atlantic on a
timely basis or at quality levels, prices, terms and conditions satisfactory to
us or that Bell Atlantic will maintain the lines in a satisfactory manner. We
generally are not able to assess the condition of these lines until we connect
the customer to our network. In the event that the condition is not acceptable,
we may incur expenses which we cannot recover or suffer damage to our
reputation. If we decide to expand our operations into geographic areas outside
of the Northeast and Mid-Atlantic regions of the United States, we will be
similarly dependent on the quality, physical condition, availability and
maintenance of telephone lines within the control of the incumbent local
exchange carriers in such areas.
All transport technologies using copper telephone lines have the potential
to interfere with, or to be interfered with by, other traffic on adjacent copper
telephone lines. Such interference could degrade the performance of our services
or make us unable to provide service on selected lines. In addition, incumbent
carriers may claim that the potential for interference by DSL technology permits
them to restrict or delay our deployment of DSL services. The telecommunications
industry and regulatory agencies are still developing procedures to resolve
interference issues between competitive carriers and incumbent carriers, and
these procedures may not be effective. We may be unable to successfully
negotiate interference resolution procedures with incumbent carriers.
Interference, or claims of interference, if widespread, would adversely affect
our speed of deployment, reputation, brand image, service quality and customer
retention and satisfaction.
THE DATA NETWORKING INDUSTRY IS UNDERGOING RAPID TECHNOLOGICAL CHANGES, AND NEW
TECHNOLOGIES MAY BE SUPERIOR TO THE TECHNOLOGY WE USE
The data networking industry is subject to rapid and significant
technological change, including continuing developments in DSL technology, which
does not presently have widely accepted standards, and alternative technologies
for providing high speed data networking. As a consequence:
- our potential customers have a number of choices for meeting their data
networking needs, including wireless data systems, cable modems and
integrated services digital network, or ISDN, technologies;
- our success will depend on our ability to anticipate or adapt to new
technology on a timely basis; and
- new products and technologies may emerge that may be superior to, or may
not be compatible with, our products and technologies.
If we fail to adapt successfully to technological changes or obsolescence,
fail to adopt technology that becomes an industry standard or fail to obtain
access to important technologies, our business, financial condition and results
of operations could be materially adversely affected.
WE EXPECT TO CONTINUE TO INCUR SUBSTANTIAL LOSSES AND NEGATIVE OPERATING CASH
FLOW
We intend to rapidly and substantially increase our capital expenditures and
operating expenses in an effort to expand our operations, including the
expansion of our network in the Northeast and Mid-Atlantic regions of the United
States, the establishment of collocation facilities throughout the major
metropolitan areas of these regions, the expansion of our DSL operations and the
establishment of additional Web hosting collocation facilities. We expect to
incur substantial operating and net losses, as well as negative operating cash
flow, for the foreseeable future as we expand our operations. We will need to
obtain
6
<PAGE>
additional financing to complete our expansion into the Northeast and
Mid-Atlantic regions. We cannot give you any assurance about whether or when we
will have sufficient revenues to satisfy our financing requirements or that we
will ever achieve operating income and positive operating cash flow or, if
achieved, that we can become profitable. The amount and timing of our capital
requirements will vary depending upon the timing and extent of our rollout,
regulatory, technological and competitive developments and the demand for our
services.
WE WILL NEED ADDITIONAL FINANCING WHICH COULD BE DIFFICULT TO OBTAIN
We intend to grow our business rapidly and expect to incur significant
operating losses and negative cash flow for the foreseeable future. Therefore,
we will require additional external financing in the future. Obtaining
additional financing will be subject to a number of factors, including:
- market conditions;
- our operating performance; and
- investor sentiment, particularly for DSL and Internet-related companies.
These factors may make the timing, amount, terms and conditions of
additional financing unattractive for us. If we are unable to raise capital to
fund our growth on a timely basis and on acceptable terms, our business,
financial condition and results of operations would be materially and adversely
affected.
OUR FAILURE TO ACHIEVE OR SUSTAIN MARKET ACCEPTANCE AT DESIRED PRICING LEVELS
COULD IMPAIR OUR ABILITY TO ACHIEVE PROFITABILITY OR POSITIVE CASH FLOW
Prices for data networking services have fallen historically; a trend we
expect will continue. Accordingly, we cannot predict to what extent we may need
to reduce our prices to remain competitive or whether we will be able to sustain
future pricing levels as our competitors introduce competing services or similar
services at lower prices. Our failure to achieve or sustain market acceptance at
desired pricing levels could impair our ability to achieve profitability or
positive cash flow, which would have a material adverse effect on our business,
financial condition and results of operations.
WE ARE DEPENDENT ON BELL ATLANTIC FOR COPPER TELEPHONE LINES, COLLOCATION SPACE
AND TRANSMISSION FACILITIES, AND BELL ATLANTIC'S RELUCTANCE TO COOPERATE WITH
US OR INABILITY TO PROVIDE THE SERVICES OR FACILITIES WE NEED COULD ADVERSELY
AFFECT OUR BUSINESS
Bell Atlantic is currently our sole supplier of copper telephone lines and
collocation space and is often the vendor of choice for transmission between our
collocated central offices and our regional operations centers. Bell Atlantic is
also a competitor in providing DSL and other services. Because our services
compete both with Bell Atlantic's DSL services and with other Bell Atlantic data
services, Bell Atlantic may be reluctant to make capital expenditures to
purchase and install additional equipment or cooperate with us in meeting our
supply needs. The Federal Communications Commission currently requires incumbent
local exchange carriers to take affirmative steps to condition their telephone
lines, or loops, as needed to enable competitive local exchange carriers to
offer DSL service using these loops. The FCC's rules give Bell Atlantic
flexibility regarding the timing, technical standards and charges for such
conditioning, which Bell Atlantic may use to delay performance of loop
conditioning that we may need to provide service.
In addition, we currently plan to collocate in approximately 600 Bell
Atlantic central offices in the Northeast and Mid-Atlantic regions of the United
States. Collocation space may be exhausted in a particular central office, and
we may face competition from other competitive telecommunication companies to
obtain available space. Bell Atlantic may reject some of our collocation
applications, and we may experience delays between the time we apply for
collocation space and the time that Bell Atlantic actually
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permits us to place our equipment in this space. The 1996 Telecommunications Act
requires Bell Atlantic to cooperate with us in establishing our collocation
facilities in order to qualify for authority to sell long distance services.
Bell Atlantic may be less cooperative with us after such authority is granted.
Bell Atlantic is not subject to similar legal requirements in providing
transmission facilities to our regional operating centers. If Bell Atlantic does
not provide us with transmission facilities on a timely basis and we are unable
to obtain transmission facilities from other providers, the rollout of our
network may be delayed, which could have a material adverse effect on our
business, financial condition and results of operations. In the event that we
decide to expand our operations into geographic areas outside of the Northeast
and Mid-Atlantic regions of the United States, we will face similar risks from
the incumbent local carriers in such areas.
WE ARE UNABLE TO CONTROL THE TERMS AND CONDITIONS UNDER WHICH WE GAIN ACCESS TO
BELL ATLANTIC'S COLLOCATION AND TRANSMISSION FACILITIES
We cannot unilaterally control the terms under which we collocate our
equipment, connect to copper telephone lines or gain the use of Bell Atlantic's
transmission facilities. State and federal tariffs, state public utility
commissions, the FCC and interconnection agreements with Bell Atlantic determine
the price, terms and conditions under which collocation space is made available,
as well as the terms and conditions of access to copper telephone lines and
other components of Bell Atlantic's network. In addition, disputes may arise
between us and Bell Atlantic, which we may be unable to resolve in our favor. If
we decide to expand our operations into geographic areas outside of the
Northeast and Mid-Atlantic regions of the United States, we will face similar
difficulties with the incumbent local carriers in such areas. Under current
practice, Bell Atlantic unilaterally sets the spectrum compatibility and
spectrum management policies that determine whether our service can be provided
over a particular copper telephone line without creating interference with other
services and the measures we would be required to take in order to solve any
interference problems. The FCC has adopted rules that facilitate a competitively
neutral process for resolving some interference issues and has proposed
additional requirements but has not yet made a ruling on these issues.
WE ARE UNABLE TO CONTROL THE TERMS OR TIMING OF EXTENDING OUR INTERCONNECTION
AGREEMENTS
Our access to Bell Atlantic's collocation and transmission facilities and
copper telephone lines depends on our ability to maintain interconnection
agreements with Bell Atlantic. Our Bell Atlantic interconnection agreements have
initial terms that expire from August 1999 to March 2001. Many of our
interconnection agreements provide that, if the term expires before we have a
replacement interconnection agreement, we are entitled to continue under the
rates, terms and conditions of the original interconnection agreement on a
month-to-month basis, but we may not be able to take advantage of any lower
prices that Bell Atlantic may subsequently offer. Some of our other
interconnection agreements provide that, if the term expires before we have a
replacement interconnection agreement, the rates, terms and conditions of the
original interconnection agreement may be superseded by more generic and,
potentially less favorable, rates, terms and conditions, in which case our
business, financial condition and results of operations could be materially
adversely affected. In addition, we may not be able to negotiate new agreements
on terms favorable to us. Any delay in renewing interconnection agreements could
materially adversely affect our business, financial condition and results of
operations.
OUR ARRANGEMENTS WITH BELL ATLANTIC ARE SUBJECT TO REVIEW AND REVISION BY
VARIOUS REGULATORY ENTITIES
State regulatory commissions, the FCC and the courts oversee, in varying
degrees, our interconnection agreements, as well as the terms and conditions
under which we gain access to incumbent local carrier copper telephone lines and
transmission facilities. These government entities may modify the terms or
prices applicable to our interconnection agreements and the terms governing our
access to Bell Atlantic's copper telephone lines and transmission facilities in
ways that would be adverse to our business. The FCC
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has broad authority over other aspects of our interconnection agreements with
Bell Atlantic, including the specification of network elements that we are
entitled to obtain from Bell Atlantic. State regulatory commissions have
authority to establish the rates for DSL-capable copper telephone lines, as well
as other rates, terms and conditions of our dealings with Bell Atlantic in
ongoing public proceedings. In some states, these prices have yet to be set by
the regulatory body. Participation in federal or state proceedings could involve
significant management time and expense, and the outcomes of these proceedings
could have a material adverse effect on our business, financial condition and
results of operations.
WE MAY NOT BE SUCCESSFUL IN COMPLETING THE UPGRADE OF OUR NETWORK OR ACHIEVING
COMPETITIVE TRANSMISSION SPEEDS
We are in the process of upgrading our Internet protocol-based backbone
network that connects markets from Maine to Virginia. This upgrade includes the
installation of high speed switching equipment and the leasing of additional
transport bandwidth. We may be unable to upgrade our network to service
substantially increased numbers of end users at high performance levels. In
addition, any upgrade of our network may be delayed or otherwise adversely
affected if we are unable to lease or obtain sufficient additional capacity. In
the event that we are unable to successfully upgrade our network in a timely
fashion or are unable to maintain the network as planned, we may be required to
purchase bandwidth from third party providers, which would result in a
significant increase in our operating expenses and could materially adversely
affect our business, financial condition and results of operations.
Due to the limited deployment of our high speed data network services, we
cannot assure you that our network will be able to connect and manage a
substantial number of end users at high transmission speeds. Further, our
network may be unable to achieve and maintain competitive digital transmission
speeds. Actual transmission speeds on our network will depend on a variety of
factors and many of these factors are beyond our control, including the type of
DSL technology deployed, the distance an end user is located from a central
office, the quality of the telephone lines, the presence of interfering
transmissions on nearby lines and other factors. As a result, we may not be able
to achieve and maintain digital transmission speeds that are attractive in the
market.
WE DEPEND ON PEERING RELATIONSHIPS THAT MAY BE ADVERSELY MODIFIED IN THE FUTURE
We rely on a number of public and private network interconnections, commonly
referred to as peering relationships, to connect our network with other networks
for the exchange of data traffic. Currently, all of our peering relationships
provide for interconnections at nominal cost to either party. Many of our
peering relationships are informal and may be discontinued on short, or in some
cases no, notice. If our peering partners were to discontinue their support for
the peering relationships or commence charging for these interconnections, our
ability to exchange traffic at current price levels would be significantly
constrained. Furthermore, our business will be adversely affected if these
peering partners do not add more bandwidth to accommodate increased traffic.
Many of the companies with which we maintain private peering interconnections
are our competitors. There is nothing to prevent any peering partner, many of
which are significantly larger than us, from charging high usage fees,
establishing new and more restrictive criteria for use or denying access. In the
future, private peering partners could refuse to continue to interconnect
directly with us, might impose significant costs on us or limit our customers'
access to their networks. If we were unable to access alternative networks to
exchange our customers' traffic on a cost-effective basis, or if we were unable
to pass through to our customers any additional costs of utilizing these or our
existing networks, our business, financial condition and results of operations
could be materially adversely affected.
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A FAILURE TO MANAGE FUTURE GROWTH COULD STRAIN OUR RESOURCES AND COULD IMPAIR
THE EXPANSION OF OUR BUSINESS
We plan to significantly expand our operations, including:
- expanding our network in the Northeast and Mid-Atlantic regions of the
United States;
- establishing collocation facilities with Bell Atlantic in the Boston, New
York, Philadelphia and Washington, D.C. metropolitan areas;
- expanding our direct sales force;
- establishing DSL operations in new markets; and
- expanding our Web hosting facilities.
This rapid growth will place a significant strain on our management,
financial controls, operations systems, personnel and other resources. If we
fail to manage this growth effectively, the expansion of our business could be
impaired. We may be unable to meet our customers' need for services and
technical support or provide our customers the service they expect. To manage
our growth effectively, we must:
- improve existing and implement new operational, financial and management
information controls, reporting systems and procedures;
- hire, train and manage sufficient additional qualified personnel;
- expand and upgrade our technologies; and
- manage multiple relationships with our customers, vendors and other third
parties.
If we fail to manage our growth effectively, it could adversely affect the
expansion of our customer base and service offerings and would have a material
adverse effect on our business, financial condition and results of operations.
WE MAY ENCOUNTER DIFFICULTY IN UPGRADING OUR BILLING AND OPERATIONAL SUPPORT
SYSTEMS
We plan to upgrade our billing and operational support systems to
accommodate our planned expansion and to achieve operating efficiencies.
Although we have selected vendors with established software packages for these
upgrades, the installation and implementation of the new billing and operational
support systems involve a significant commitment of resources and are subject to
a number of risks, including the potential incurrence of substantial third-party
consulting costs, delays in implementation, undetected software errors,
protracted implementation times, conflicts with our other hardware or software
systems and difficulties arising from continuing business operations during
implementation. The failure to successfully install and implement new billing
and operational support systems in a timely fashion could materially adversely
affect our business, financial condition and results of operations.
WE RELY ON A DIRECT SALES METHOD WHICH MAY NOT BE COST-EFFECTIVE
We market and sell our products through our own dedicated marketing staff
and sales force. The DSL market is new, and our direct marketing efforts may not
be an effective means of selling DSL services to businesses. Many of our
competitors are selling their services indirectly through Internet service
providers, carriers, resellers and integrators. Our direct method may prove to
be a more costly approach. Although we believe that our success depends in
significant part on maintaining a dedicated marketing staff and sales force, we
may not achieve a level of sales sufficient to justify maintaining our own
marketing staff and sales force.
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THE MARKETS IN WHICH WE OPERATE ARE HIGHLY COMPETITIVE, AND WE MAY NOT BE ABLE
TO COMPETE EFFECTIVELY AGAINST ESTABLISHED INDUSTRY COMPETITORS WITH
SIGNIFICANTLY GREATER FINANCIAL RESOURCES
The market for data networking solutions and Web hosting services is rapidly
evolving and intensely competitive. Many of our competitors are offering, or may
soon offer, technologies and services that will directly compete with some or
all of our service offerings. Our competitors use technologies for local access
connections that include DSL, wireless data systems, cable modems and ISDN
technologies. Some of these technologies may provide performance advantages in
some respects over DSL and other technologies using existing copper telephone
wires.
We expect to face competition for our DSL and leased line services from Bell
Atlantic, alternative DSL providers, competitive local exchange carriers,
Internet service providers, wireless and cable companies. In the Boston, New
York, Philadelphia and Washington, D.C. metropolitan areas, we expect to compete
directly against other DSL providers such as Covad Communications Group, Inc.,
Network Access Solutions Corporation, NorthPoint Communications Group Inc. and
Rhythms NetConnections, Inc. We also expect to compete with cable companies in
the New England area for telecommuting and work at home applications.
Bell Atlantic, as the incumbent local carrier operating in the Northeast and
Mid-Atlantic regions of the United States, our initial target market, is both an
essential supplier of facilities and services for DSL and other Internet
connectivity services and a significant competitor. Incumbent local carriers,
like Bell Atlantic, pose a significant risk to the success of our business. Bell
Atlantic has existing networks in local areas and across the major metropolitan
areas in our target market, currently provides basic telephony service to
substantially all of the customers that we hope to serve and has its own
Internet service provider businesses. Absent oversight by federal and state
regulators, Bell Atlantic has the ability to benefit its own DSL operations by
providing them with essential service inputs, such as copper telephone lines,
transmission facilities and collocation on more favorable terms than those
provided to us. Bell Atlantic is deploying DSL services in selected markets and
could deploy DSL services on a widespread basis which could have a material
adverse effect on our business, financial condition and results of operations.
We compete in the Web hosting and collocation segment of our business with a
variety of companies, including AboveNet Communications Inc., Concentric Network
Corporation, Digex Incorporated, Exodus Communications, Inc., GTE
Internetworking, Level 3 Communications, Inc. and NaviSite, Inc.
Many of our current competitors, as well as a number of our potential new
competitors, have longer operating histories, greater name recognition and
substantially greater financial, technical and marketing resources. Some of our
competitors or potential competitors may have the financial resources to
withstand substantial price competition. Moreover, our competitors may be able
to negotiate contracts with suppliers of telecommunications products and
services which are more favorable than contracts negotiated by us.
A SYSTEM FAILURE OR BREACH OF SECURITY COULD CAUSE DELAYS OR INTERRUPTIONS OF
SERVICE TO OUR CUSTOMERS
We must protect our network infrastructure and customers' equipment located
in our Web hosting collocation facilities against damage from human error,
physical or electronic security breaches, power loss and other facility
failures, fire, earthquake, flood, telecommunications failure, sabotage,
vandalism and similar events. Despite precautions we have taken (and plan to
take with future Web hosting collocation facilities), a natural disaster or
other unanticipated problems at one or more of our Web hosting collocation
facilities could result in interruptions in our services or significant damage
to customer equipment. In addition, the failure of Bell Atlantic to provide
consistent data communications capacity could result in interruptions in our
services. Any damage to or failure of our systems or network, or the systems or
network of our service providers, could result in reductions in, or terminations
of, services supplied to our customers, which could have a material adverse
effect on our business, financial condition and results of operations.
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Our network may be vulnerable to unauthorized access, computer viruses and
other disruptive problems. Unauthorized access could also potentially jeopardize
the security of confidential information stored in the computer systems of our
customers, which might cause us to be liable to our customers, and might deter
potential customers. Eliminating computer viruses and alleviating other security
problems may require interruptions, delays or cessation of service to our
customers and our customers' end users. Any of these factors relating to network
security could have a material adverse effect on our business, financial
condition and results of operations.
OUR OPERATING RESULTS ARE LIKELY TO FLUCTUATE SIGNIFICANTLY, CAUSING OUR STOCK
PRICE TO BE VOLATILE OR TO DECLINE
Our operating results may vary significantly from quarter to quarter due to
a number of factors, not all of which are in our control. Future revenue is
difficult to forecast and for the foreseeable future will be influenced by:
- the timing and amount of sales to new customers;
- our planned upgrade to our network infrastructure;
- the establishment of collocated central offices with Bell Atlantic
throughout our target markets;
- our access to copper telephone lines and transmission facilities
controlled by Bell Atlantic;
- the establishment of our regional operating centers;
- our ability to increase awareness of DSL; and
- the success of DSL in general.
Many of our expenses, particularly personnel costs, collocation fees and
rent, are relatively fixed and are incurred in part based on expectations of
future revenue. We may be unable to adjust spending quickly enough to offset any
unexpected revenue shortfall. Accordingly, any shortfall in revenue may cause
significant variation in operating results in any quarter. Because of these
factors, you should not rely on quarter-to-quarter comparisons of our results of
operations as an indication of our future performance. It is possible that, in
future periods, our results of operations may be below the expectations of
public market analysts and investors. This could cause the trading price of our
common stock to decline.
IF SALES FORECASTED FOR A PARTICULAR PERIOD ARE NOT REALIZED IN THAT PERIOD DUE
TO THE LENGTHY SALES CYCLE OF OUR VIRTUAL PRIVATE NETWORK SERVICES, OUR
OPERATING RESULTS FOR THAT PERIOD WILL BE HARMED
We offer our virtual private network services to large enterprises, and the
sales cycle can be very lengthy. The sales cycle for such large enterprises
typically involves:
- a significant technical evaluation;
- an initial trial rollout to a relatively small number of end users;
- a commitment of capital and other resources by the customer;
- delays associated with the customer's internal procedures to approve
expenditures;
- time required to engineer the deployment of our services;
- coordination of the activation of copper telephone lines with incumbent
carriers; and
- testing and acceptance of our services.
For these and other reasons, the sales cycle for our virtual private network
services may last six months or more. During this lengthy sales cycle, we may
incur significant expenses in advance of the receipt of revenues. If sales that
we forecast for a particular period do not occur because of our lengthy sales
cycle, it could materially and adversely affect our business, financial
condition and results of operations.
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WE DEPEND ON THIRD PARTIES TO PROVIDE EQUIPMENT WHICH IS CRITICAL TO PROVIDING
OUR DSL AND WEB HOSTING SERVICES
We purchase a majority of our equipment from vendors, including Paradyne
Corporation and Cisco Systems, Inc. Because we depend on third parties, we do
not have guaranteed capacity or control over delivery schedules, quality
assurance, production yields and costs. If any of our vendors reduces or
interrupts its supply, this reduction or interruption would force us to seek
alternative vendors and providers which would disrupt our business. Our
suppliers may be unable to manufacture and deliver the amount or quality of
equipment we order, or the available supply may be insufficient to meet our
demand. Currently, the DSL modem and other equipment used for a single
connection over a copper telephone line must come from the same vendor because
there are no existing interoperability standards for the equipment used in our
services. If one of our suppliers stopped providing equipment to us for any
reason, we would need to make significant capital expenditures to replace this
equipment. Any of these events may materially and adversely affect the
availability and pricing of the equipment we purchase and the cost of doing
business, which could have a material adverse effect on our business, financial
condition and results of operations.
OUR SERVICES ARE SUBJECT TO UNCERTAIN GOVERNMENT REGULATION AND CHANGES IN LAWS
OR REGULATIONS COULD RESTRICT THE WAY WE OPERATE OUR BUSINESS
Because many of the facilities and services we need in order to provide DSL
are subject to regulation at the federal, state and local levels, changes in
applicable laws or regulations could have an adverse impact on our business. For
example, the FCC and state telecommunications regulators help determine the
terms under which collocation space is provided to us. They also oversee the
terms under which we gain access to an incumbent local carrier's copper
telephone lines and transport facilities that we need in order to provide DSL
services. Future federal or state regulations and legislation may be less
favorable to us than current regulations and legislation and could have a
material adverse effect on our business, financial condition or results of
operations. In addition, we may choose to expend significant resources to
participate in regulatory proceedings at the federal or state level without
achieving favorable results. We expect incumbent local carriers like Bell
Atlantic to pursue litigation in courts, institute administrative proceedings
with the FCC and state telecommunications regulators and lobby the U.S. Congress
in an effort to affect the applicable laws and regulations in a manner that
would be more favorable to them and may be against our interests. Any changes in
our regulatory environment could create greater competitive advantages for all
or some of our competitors or could make it easier for additional parties to
provide DSL services.
CHALLENGES TO GOVERNMENTAL REGULATION COULD LEAD TO GREATER OPERATING COSTS FOR
OUR BUSINESS
We are subject to FCC and state regulation for our interconnection
arrangements with the incumbent local carriers in our markets, but the scope of
this regulation is uncertain because it is the subject of ongoing court and
administrative proceedings. Several parties have brought court challenges to the
FCC's interconnection rules, including the rules that establish the terms under
which a competitive telecommunications company may use portions of an incumbent
local carrier's network and that define the particular network elements to which
we are entitled. Although the Supreme Court recently held that the FCC has the
authority to adopt interconnection rules and specifically upheld several of
these rules, the Supreme Court also reversed and remanded the FCC's
specification of the network elements we are entitled to obtain from Bell
Atlantic and other incumbent local carriers. The FCC is conducting a proceeding
to re-specify those elements and may not require the continued availability of
elements we need. Other rules are still being considered by the courts and the
FCC. If a rule that is beneficial to our business is struck down by the courts,
it could harm our ability to compete. In particular, the courts have not yet
resolved the lawfulness of the methodology that the FCC established to determine
the price that competitive telecommunications companies would have to pay
incumbent local carriers for use of the incumbent local carriers'
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networks. The courts may determine that the FCC's pricing rules are unlawful,
which would require the FCC to establish a new pricing methodology. If this
occurs, the new pricing methodology that the FCC adopts may result in our having
to pay a higher price to incumbent local carriers to use a portion of their
networks in providing our services, and this could have a material adverse
effect on our business, financial condition and results of operations.
Recently, the FCC issued a decision that an incumbent local carrier's data
services are subject to unbundling and resale requirements. The FCC is still
considering alternative corporate structures for the incumbent local carriers
that would allow them to compete more directly with DSL providers like us on an
unregulated basis. This issue is still pending before the FCC. An FCC decision
in favor of the incumbent local carriers could have a material adverse effect on
our business, financial condition and results of operations. Although the FCC
recently adopted new rules designed to provide greater access to central office
space at less cost, these new rules potentially could benefit our competitors to
a greater extent than they benefit us, which could harm our competitiveness.
A RECENT U.S. SUPREME COURT DECISION HAS RAISED QUESTIONS ABOUT OUR ABILITY TO
OBTAIN ESSENTIAL FACILITIES FROM BELL ATLANTIC, WHICH MAY HURT OUR BUSINESS
A January 1999 decision by the U.S. Supreme Court has raised questions about
whether we will be able to obtain the network elements from Bell Atlantic
necessary to provide DSL in the future. In that decision, the Supreme Court
invalidated an FCC rule which defines the particular elements of an incumbent
local carrier's network that must be provided to competitors like us, and it
sent the matter back to the FCC with instructions to consider further the
question of which elements of an incumbent local carrier's network must be
provided to competitors. The FCC recently initiated a proceeding to establish
which network elements are required to be provided by incumbent carriers to
competitors. The FCC has stated that it plans to issue a new decision on this
matter in the summer of 1999. We would be adversely affected if the FCC were to
specify a set of elements that does not include the elements that we need to
provide our services.
GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES MAY ADVERSELY AFFECT OUR WEB
HOSTING BUSINESS
Laws and regulations directly applicable to communications and commerce over
the Internet are becoming more prevalent. The U.S. Congress has recently
considered Internet laws regarding children's privacy, copyrights, taxation and
the transmission of sexually explicit material. The European Union also recently
enacted its own privacy regulations. The law of the Internet, however, remains
largely unsettled, even in areas where there has been some legislative action.
It may take years to determine whether and how existing laws, such as those
governing intellectual property, privacy, libel and taxation, apply to the
Internet. In addition, the growth and development of the market for online
commerce may prompt calls for more stringent consumer protection laws, both in
the United States and abroad, that may impose additional burdens on companies
conducting business online. The adoption or modification of laws or regulations
relating to the Internet could adversely affect our business. We provide
Internet access and Web hosting services to customers located throughout the
United States and in several foreign countries. As a result, we may be required
to qualify to do business, or be subject to tax or other laws and regulations,
in these jurisdictions even if we do not have a physical presence or employees
or property in these jurisdictions. The application of these multiple sets of
laws and regulations is uncertain, but we could find we are subject to
regulation, taxation, enforcement or other liability in unexpected ways, which
could materially adversely affect our business, financial condition and results
of operations.
IF WE ARE UNABLE TO RETAIN OUR KEY PERSONNEL, OUR BUSINESS WILL SUFFER
Given our stage of development, we depend on our ability to retain and
motivate high quality personnel, especially our management. Our success depends
on Mark Washburn, our President and Chief Executive Officer, and our other
executive officers and key employees. Mr. Washburn joined HarvardNET
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in September 1998, and our senior management team has worked together for only a
short period of time. There is therefore only a limited period of time on which
you can judge their ability to operate as a group. Our future success depends on
our continuing ability to identify, hire, train and retain highly qualified
technical, sales, marketing and customer service personnel. The industry in
which we compete has a high level of employee mobility and aggressive recruiting
of skilled personnel. In particular, we face intense competition for qualified
personnel, particularly in software development, network engineering and product
management. We may be unable to continue to employ our key personnel or to
attract and retain qualified personnel in the future.
WE MAY BE SUBJECT TO INFRINGEMENT CLAIMS WHICH COULD MATERIALLY ADVERSELY AFFECT
OUR BUSINESS
Third parties, including our competitors, may assert infringement claims
against us and, in the event of an unfavorable ruling on any claim, we may be
unable to obtain a license or similar agreement to use technology we need to
conduct our business. Our management personnel were previously employees of
other telecommunications companies. In many cases, these individuals are
conducting activities for us in areas similar to those in which they were
involved prior to joining us. As a result, we or our employees could be subject
to allegations of violation of trade secrets and other similar claims. If such
claims materialize, it could materially adversely affect our business, financial
condition and results of operations.
OUR PRINCIPAL STOCKHOLDERS AND MANAGEMENT OWN A SIGNIFICANT PERCENTAGE OF
HARVARDNET AND WILL BE ABLE TO EXERCISE SIGNIFICANT INFLUENCE OVER HARVARDNET
WHICH COULD HAVE A MATERIAL AND ADVERSE EFFECT ON THE MARKET PRICE OF OUR
COMMON STOCK
Our executive officers, directors and principal stockholders together will
beneficially own % of our common stock after this offering, or % if
the underwriters exercise their over-allotment option in full. These
stockholders will be able to determine the composition of our board of
directors, will retain the voting power to approve all matters requiring
stockholder approval, including any merger, and will continue to have
significant influence over our affairs. This concentration of ownership could
have the effect of delaying or preventing a change in our control or otherwise
discouraging a potential acquiror from attempting to obtain control of us, which
in turn could have a material and adverse effect on the market price of our
common stock or prevent you from realizing a premium over the market price for
your shares of common stock.
In addition, our principal stockholders have, or may have, investments in
other competitive local exchange carriers, Internet or information service
providers and other telecommunications businesses independent of their
investments in us. These principal stockholders are not prohibited from
competing with us or making investments in any of these competing businesses and
have no obligation to bring any corporate opportunities to our attention.
OUR FAILURE AND THE FAILURE OF THIRD PARTIES TO BE YEAR 2000 COMPLIANT COULD
NEGATIVELY IMPACT OUR BUSINESS
Many computer programs have been written using two digits rather than four
to define the applicable year. This poses a problem at the end of the century
because these computer programs may recognize a date using "00" as the year 1900
rather than the year 2000. This, in turn, could result in major system failures
or miscalculations, and is generally referred to as the Year 2000 issue. The
Year 2000 issue could result in system failures or miscalculations, causing
disruptions in our operations.
We have to date been unable to confirm compliance by external service
providers, including Bell Atlantic. To the extent that Bell Atlantic or other
third parties experience Year 2000 problems, our network and services could be
adversely affected. The purchasing patterns of our customers may be affected by
Year 2000 issues as they expend significant resources to correct their current
systems for Year 2000 compliance or if such issues have an adverse effect on
their business operations. These expenditures may
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result in reduced funds available to purchase our services. Any of these
developments could have a material and adverse effect on our business, financial
condition and results of operations.
THE FAILURE OF AN ACTIVE TRADING MARKET TO DEVELOP FOR OUR COMMON STOCK COULD
MATERIALLY ADVERSELY AFFECT YOUR INVESTMENT IN OUR COMMON STOCK
Our common stock has not been traded in the public market before this
offering. We have applied to the Nasdaq National Market for quotation of our
common stock, but we do not know whether active trading in our common stock will
develop or continue after this offering. We will determine the price you will
pay for our common stock through negotiations with the underwriters. You may not
be able to resell your shares at or above the price you will pay for our common
stock. Among the factors to be considered in determining the initial public
offering price will be our future prospects and our industry in general, our
sales, earnings and other financial and operating information in recent periods,
and the price-earnings ratios, price-sales ratios, market prices of securities
and financial and operating information of companies engaged in activities
similar to ours. The estimated initial public offering price range set forth on
the cover page of this preliminary prospectus is subject to change as a result
of market conditions and other factors.
YOU WILL INCUR IMMEDIATE AND SUBSTANTIAL DILUTION OF THE BOOK VALUE OF YOUR
INVESTMENT
The initial public offering price is substantially higher than the net
tangible book value of our outstanding common stock immediately after this
offering. Accordingly, if you purchase common stock in this offering, you will
incur immediate and substantial dilution of $ in the net tangible book
value per share of the common stock you purchase in this offering.
FUTURE SALES OF OUR COMMON STOCK IN THE PUBLIC MARKET COULD DEPRESS OUR STOCK
PRICE
Sales of substantial amounts of common stock in the public market following
this offering, or the appearance that a large number of shares is available for
sale, could adversely affect the market price for our common stock. The number
of shares of common stock available for sale in the public market will be
limited by lock-up agreements under which our executive officers, directors and
principal stockholders, who will collectively hold % of our common stock
after this offering, or % if the underwriters exercise their over-allotment
option in full, have agreed not to sell or otherwise dispose of any of their
shares for a period of 180 days after the date of this prospectus without the
prior written consent of Morgan Stanley & Co. Incorporated. In addition to the
adverse effect a price decline could have on holders of common stock, that
decline would likely impede our ability to raise capital through the issuance of
additional shares of common stock or other equity securities.
After this offering, the holders of shares of common stock will
have the right to require us to register the sale of their shares, subject to
limitations and to the lock-up agreements with the underwriters. The holders of
shares and one of our directors also have the right to require us to include
their shares in any future public offerings of our equity securities. Within
approximately 180 days after this offering, we intend to file a registration
statement under the Securities Act to register shares of common
stock subject to outstanding stock options or reserved for issuance under our
stock incentive plans and our stock purchase plan. The sale of these additional
shares into the public market may further adversely affect the market price of
our common stock.
OUR CERTIFICATE OF INCORPORATION AND BYLAWS CONTAIN PROVISIONS THAT COULD DELAY
OR PREVENT A CHANGE IN CONTROL AND THEREFORE COULD HURT OUR STOCKHOLDERS
Provisions of our certificate of incorporation and bylaws could make it more
difficult for a third party to acquire control of HarvardNET, even if a change
in control would be beneficial to stockholders. Our certificate of incorporation
will provide for a classified Board of Directors and will allow our Board of
Directors to issue, without stockholder approval, preferred stock with terms set
by the Board of Directors. The preferred stock could be issued quickly with
terms that delay or prevent the change in control of HarvardNET or make removal
of management more difficult. Also, the issuance of preferred stock may cause
the market price of our common stock to decrease.
16
<PAGE>
USE OF PROCEEDS
We estimate that our net proceeds from the sale of the shares of common
stock will be approximately $ ($ if the underwriters exercise their
over-allotment option in full) assuming an initial public offering price of
$ per share and after deducting estimated underwriting discounts and
commissions and estimated offering expenses of $ payable by us.
We will use a portion of the net proceeds to repay any outstanding amounts
under our credit facility. Indebtedness under this credit facility as of May 31,
1999 was $0. This facility has a maturity date in May 2004 and bears interest at
an annual rate equal to the London inter bank offer rate plus 4.5%. We expect to
use the remainder of the net proceeds for capital expenditures relating to our
planned geographic expansion, potential acquisitions and working capital and
other general corporate purposes. Although we may use a portion of the net
proceeds to acquire businesses, products or technologies that are complementary
to our business, we have no specific acquisitions planned. Pending such uses, we
plan to invest the net proceeds in investment grade, interest-bearing
securities.
DIVIDEND POLICY
We have never paid or declared any cash dividends on common stock or other
securities and do not anticipate paying cash dividends in the foreseeable
future. We currently intend to retain all future earnings, if any, for use in
the operation of our business.
17
<PAGE>
CAPITALIZATION
The following table sets forth our capitalization as of March 31, 1999:
- on an actual basis after giving effect to the -for- common stock
split;
- on a pro forma basis to reflect the conversion of all shares of Class B
stock and convertible preferred stock outstanding as of March 31, 1999
into common stock; and
- on a pro forma as adjusted basis to reflect the conversion of all shares
of Class B stock and convertible preferred stock outstanding as of March
31, 1999 into common stock, and the sale of common stock in this offering,
assuming an initial public offering price of $ per share, after
deducting the underwriting discounts and commissions and estimated
offering expenses payable by HarvardNET.
The outstanding share information excludes 68,740 shares of common stock
issuable upon exercise of warrants outstanding as of March 31, 1999 at an
exercise price of $1.35 per share, 858,550 shares of common stock issuable upon
exercise of options outstanding as of March 31, 1999 with a weighted average
exercise price of $1.17 per share.
<TABLE>
<CAPTION>
AS OF MARCH 31, 1999
-----------------------------------
<S> <C> <C> <C>
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
--------- ----------- -----------
<CAPTION>
(IN THOUSANDS, EXCEPT SHARE
AND PER SHARE DATA)
<S> <C> <C> <C>
Long term debt, less current portion......................................... $ 50 $ $
Redeemable convertible Series A preferred stock; $0.01 par value; 13,749,440
shares authorized, 13,749,440 issued and outstanding; none issued and
outstanding pro forma and pro forma as adjusted basis...................... 18,011 -- --
Stockholders' equity (deficit):
Preferred stock, $.01 par value; shares authorized and unissued, pro
forma as adjusted.......................................................... -- -- --
Common stock, $0.01 par value; 22,764,310 shares authorized, 6,389,631 shares
issued and 3,896,291 outstanding; 22,764,310 shares authorized and
shares issued and outstanding, pro forma; shares authorized and
shares issued and outstanding, pro forma as adjusted............... 64
Class B stock, $.01 par value; 4,486,250 shares authorized, 2,935,280 issued
and outstanding; none issued and outstanding, pro forma and pro forma as
adjusted basis............................................................. 18 -- --
Additional paid-in capital................................................... 2,125
Accumulated dividends on preferred stock..................................... 613 -- --
Accumulated deficit.......................................................... (2,709)
Treasury stock, at cost...................................................... (3,356)
--------- ----------- -----------
Total stockholders' equity (deficit)......................................... (3,245)
--------- ----------- -----------
Total capitalization......................................................... $ 14,816 $ $
--------- ----------- -----------
--------- ----------- -----------
</TABLE>
18
<PAGE>
DILUTION
Our pro forma net tangible book value as of March 31, 1999 was approximately
$ or approximately $ per share of common stock, after giving effect to
the conversion of all shares of Class B stock and convertible preferred stock
outstanding as of March 31, 1999. "Pro forma net tangible book value" per share
represents the amount of our total tangible assets less total liabilities,
divided by shares of common stock outstanding after giving effect to the
transactions described in the preceding sentence. After giving effect to the
issuance and sale of the common stock offered in this offering at an assumed
initial public offering price of $ per share and after deducting the
estimated underwriting discounts and commissions and offering expenses payable
by us, our pro forma net tangible book value as of would have been $ ,
or $ per share of common stock. This represents an immediate increase in pro
forma net tangible book value of $ per share to existing stockholders and an
immediate dilution of $ per share to new investors. The following table
illustrates the per share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share.............................. $
Pro forma net tangible book value per share before this offering........... $
Increase in pro forma net tangible book value per share attributable to new
investors................................................................
---------
Pro forma net tangible book value per share after this offering..............
---------
Dilution per share to new investors.......................................... $
---------
---------
</TABLE>
The following table summarizes on a pro forma basis as of March 31, 1999,
the difference between the number of shares of common stock purchased from
HarvardNET, the total consideration paid to HarvardNET and the average price per
share paid by existing stockholders and by new investors at an assumed initial
public offering price of $ per share, before deduction of estimated
underwriting discounts and commissions and offering expenses payable by
HarvardNET:
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
------------------------- ------------------------- PRICE PER
NUMBER PERCENT AMOUNT PERCENT SHARE
------------ ----------- ------------ ----------- -----------
<S> <C> <C> <C> <C> <C>
Existing stockholders................................... % % $
New investors........................................... $
------------ ----- ------------ -----
Total................................................. 100.0% 100.0%
------------ ----- ------------ -----
------------ ----- ------------ -----
</TABLE>
- ------------------------
The table above assumes no exercise of warrants and stock options outstanding at
March 31, 1999. As of March 31, 1999, there were warrants outstanding to
purchase 68,740 shares of common stock at an exercise price of $1.35 per share
and options outstanding to purchase 858,550 shares of common stock at a weighted
average exercise price of $1.17 per share. To the extent any of these options or
warrants are exercised, there will be further dilution to new investors.
19
<PAGE>
SELECTED FINANCIAL DATA
The financial data set forth below should be read together with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and our financial statements and related notes included elsewhere in
this prospectus.
The following statement of operations data for the fiscal years ended
December 31, 1996, 1997 and 1998 and the balance sheet data as of December 31,
1997 and 1998 are derived from our financial statements audited by
PricewaterhouseCoopers LLP, independent accountants. December 31, 1996 is
derived from unaudited financial statements of HarvardNET not included in this
prospectus. The unaudited financial statements include all adjustments
(comprised only of normal recurring entries) which we consider necessary for a
fair presentation. The statement of operations data for the three month periods
ended March 31, 1998 and 1999 and the balance sheet data as of March 31, 1999
are derived from our unaudited financial statements and reflect all adjustments
(consisting only of normal recurring adjustments) necessary for a fair
presentation of our results of operations and financial position. Results for
the three months ended March 31, 1999 are not necessarily indicative of results
that may be expected for the year.
In November 1995, HarvardNET entered the Internet service provider business.
Prior to that time HarvardNET developed software products and network solutions
for various government agencies. Revenue approximated $207,000 and net income
approximated $7,000 for fiscal 1994. Revenue approximated $259,000 and net
income approximated $2,000 for fiscal 1995. Net assets at December 31, 1994
approximated $2,000 and net liabilities at December 31, 1995 approximated
$8,000. The preceding financial data was derived from HarvardNET's unaudited
financial statements for fiscal 1994 and 1995. HarvardNET believes that the
selected data for 1994 and 1995 do not highlight significant trends in its
financial condition or results of operations related to its current business.
Therefore HarvardNET has presented selected financial data for fiscal years
1996, 1997 and 1998 and the interim periods ended March 31, 1998 and March 31,
1999.
EBITDA consists of net loss excluding interest, taxes, depreciation and
amortization. We have provided EBITDA because it is a measure of financial
performance commonly used in the telecommunications industry, but other
companies may calculate it differently from us. We have presented EBITDA to
enhance your understanding of our operating results. You should not construe it
as an alternative to operating income as an indicator of our operating
performance or as an alternative to cash flows from operating activities as a
measure of liquidity.
20
<PAGE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------------- --------------------
1996 1997 1998 1998 1999
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
(UNAUDITED)
<CAPTION>
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues.......................................................... $ 720 $ 1,381 $ 4,282 $ 954 $ 1,600
Costs of revenues................................................. 325 704 1,878 420 811
Selling, general and administrative............................... 352 671 2,815 399 1,693
Depreciation and amortization..................................... 6 187 1,339 318 500
--------- --------- --------- --------- ---------
Operating income (loss)........................................... 37 (181) (1,750) (183) (1,404)
Interest income (expense) net..................................... (1) (2) 32 (3) 19
Income (loss) before taxes........................................ 36 (183) (1,718) (185) (1,385)
Benefit (provision) for income taxes.............................. (9) 44 458 49 85
--------- --------- --------- --------- ---------
Net income (loss)................................................. $ 27 $ (139) $ (1,260) $ (136) $ (1,300)
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Dividends and accretion of discount on preferred stock............ -- -- (336) -- (333)
Net income available (loss attributable) to common stockholders... $ 27 $ (139) $ (1,596) $ (136) $ (1,633)
Net income (loss) per share--basic and diluted(1):
Historical...................................................... $ 0.01 $ (0.04) $ (0.29) $ (0.02) $ (0.42)
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Pro forma(2).................................................... $ $
--------- ---------
--------- ---------
Weighted average shares outstanding(1):
Basic and diluted............................................... 3,000 3,573 5,562 6,389 3,896
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
OTHER DATA:
EBITDA............................................................ $ 43 $ 6 $ (411) $ 135 $ (904)
Capital expenditure............................................... -- 19 1,010 36 627
Net cash provided by (used in) operating activities............... 96 (44) (93) 428 (1,417)
Net cash used in investing activities............................. -- (19) (1,010) (36) (3,450)
Net cash provided by (used in) financing activities............... (6) 340 5,916 (10) 8,603
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31, AS OF MARCH 31, 1999
------------------------------- ------------------------
1996 1997 1998 (ACTUAL) PRO FORMA(2)
--------- --------- --------- --------- -------------
<S> <C> <C> <C> <C> <C>
(UNAUDITED)
<CAPTION>
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents.................................. $ 148 $ 426 $ 5,239 $ 8,975 $
Working capital............................................ 8 234 4,636 9,141
Total assets............................................... 204 3,958 8,853 16,049
Long-term debt, net of current portion..................... -- 97 67 50
Redeemable convertible preferred stock..................... -- -- 9,365 18,011
Accumulated deficit........................................ (37) (149) (1,409) (2,709)
Total stockholders' equity (deficit)....................... (7) 2,708 (1,917) (3,245)
</TABLE>
- --------------------------
(1) For an explanation of the determination of the number of shares used in
computing earnings per share, see note 3 in our financial statements.
(2) Reflects the conversion of shares of redeemable convertible preferred stock
and Class B stock into an aggregate of shares of common stock.
21
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
We began operations in May 1993 as a software and consulting company. In
November 1995, we entered the Internet business focusing on providing high
performance Web hosting services as well as leased line Internet access to
business customers in the Boston market. In mid-1996, we began to commercially
deploy digital subscriber line, or DSL, technology, focusing on business
customers in the Northeast. On November 12, 1997, we expanded our operations
into Maine and New Hampshire by acquiring all of the common stock of Internet
Northeast, an Internet service provider based in Maine, with approximately 4,000
local dial-up Internet access subscribers.
In September 1998, we received an $18.5 million equity commitment from M/C
Venture Partners, Fidelity Ventures and several other individual investors.
Since that time we have shifted the focus of our efforts from dial-up Internet
access to our DSL leased line and frame relay services, Web hosting and other
services. As of May 31, 1999, DSL services comprised 19% of our monthly
recurring service revenues, leased line/frame relay services comprised 36% of
our monthly recurring service revenues, Web hosting comprised 15% of our monthly
recurring service revenues and dial-up Internet access comprised 30% of our
monthly recurring service revenues. We expect the percentage of our monthly
recurring revenues from our dial-up services to decline over time.
In order to implement our strategy, we have increased our overall operating
expenses and capital expenditures to facilitate the development and deployment
of our DSL, virtual private network and Web hosting services and expand the
geographic area in which we provide our services. As a result, since our
September 1998 equity funding, our primary activities have consisted of:
- executing additional interconnection agreements with Bell Atlantic;
- obtaining additional governmental authorizations;
- identifying additional collocation space in existing and new markets;
- acquiring and deploying additional equipment and facilities;
- hiring additional management, sales and other personnel;
- upgrading our operations and support systems;
- acquiring substantially all of the assets of the Network Services Division
of Comstor Corporation; and
- raising additional capital.
Currently, we provide DSL service to customers in eastern Massachusetts,
southern Maine and southern New Hampshire. As of May 31, 1999, we provided
service at 24 central office locations and were installing equipment at 23
additional locations. By the middle of 2001, we intend to expand our DSL
coverage to more than 600 central offices throughout the Northeast and
Mid-Atlantic regions, including markets in Rhode Island, New York, New Jersey,
Pennsylvania, Maryland, Washington, D.C. and Virginia. As of May 31, 1999, we
operated regional operations centers in Boston, Massachusetts, Portland, Maine,
Manchester, New Hampshire and McLean, Virginia, at which we aggregate and route
data traffic for each market. We plan to increase the number of these centers in
conjunction with our roll-out of DSL services.
On January 11, 1999, we acquired substantially all of the assets of the
Network Services Division of Comstor Corporation for approximately $2.8 million
in cash, which consisted principally of its East Coast network for the transport
of Internet protocol-based traffic, as well as various peering arrangements. We
plan to upgrade this network as necessary to support the traffic requirements
and needs of our customers. We are in the process of opening a new,
approximately 20,000 square foot, Web operations center in
22
<PAGE>
Boston, which will supplement our existing facilities. We intend to establish
additional Web operations centers in New York, Philadelphia and Washington, D.C.
in conjunction with our roll-out of DSL services in these metropolitan areas.
We expect to incur operations, sales and market development expenses as we
enter new markets and further penetrate existing ones. Once we have deployed our
network in a market, the majority of our additional capital expenditures will be
to connect new customers. In addition, we will be required to fund each market's
cash flow deficit as we build our customer base. We expect that our financial
performance will vary from market to market, depending on factors such as:
- the size of the addressable market;
- the level of sale and marketing expenses;
- the number and timing of central offices built out;
- the timing of market entry;
- the length of the sales cycle; and
- the acceptance of our services.
We have received the entire $18.5 million in equity financing under a
funding agreement executed in September 1998. On May 28, 1999 we entered into a
$30.0 million senior secured credit facility to fund our continued expansion. We
expect to incur operating losses, net losses and negative cash flow for the next
several years.
REVENUES
We derive the majority of our revenues from customers who purchase Internet
access, Web hosting and other data networking services. We typically bill our
customers for monthly recurring charges based on the type and level of service
provided, including the data transfer speed and bandwidth selected by the
customer. In addition to the monthly service fees, we bill users for
nonrecurring service, activation and installation charges related to Internet
access, Web hosting and other data networking services. These nonrecurring
revenues are recorded when performed.
Recurring revenues consist of monthly service fees for the following
services:
- BusinessSPEED DSL, leased line and frame relay services;
- RemoteCONNECT virtual private network services;
- Web hosting, including shared server, dedicated server and collocated
services;
- E-commerce and other enhanced services, including outsourced e-mail
administration; and
- Dial-up Internet access.
Service revenues related to Internet access, Web hosting and enhanced
services are recognized as the services are provided. Advance collections
relating to future services are recorded as deferred revenue and recognized as
revenue when earned.
During the past several years, market prices for many telecommunications and
Web hosting services have been declining, which is a trend we believe will
continue. As prices decline for any given speed, bandwidth or level of service,
we expect that the total number of end users and the proportion of end users
purchasing higher-level, higher-priced services will increase. The cost of these
upgrades are generally minimal.
23
<PAGE>
COSTS OF REVENUES
Our costs of revenues represent network expenses related to providing
service to our customers, including the transport between the end user and
central office, between central office and regional operations center, and
between the regional operations center and the Internet. As our customer and end
user base grows, we expect these costs to increase, depending upon the amount of
end users added and their bandwidth and level of service requirements. Costs of
revenues are generally comprised of the following:
- Intra-region costs consist of monthly service fees to Bell Atlantic to
collocate our equipment, connect to copper telephone lines and use its
transmission facilities, as well as for leased transport from the
incumbent and other carriers. In addition, we pay nonrecurring
installation charges for these lines and other related services.
- Inter-region costs consist of leased transport and other operating costs
associated with our East Coast Internet protocol-based backbone network.
SELLING, GENERAL AND ADMINISTRATIVE
- Sales and marketing costs consist mainly of salaries and benefits for our
direct sales force and marketing personnel and include advertising and new
market launch expenses.
- General and administrative costs consist mainly of salaries and benefits
for our administrative, regulatory, provisioning, technical support,
network engineering, customer care and management personnel, as well as
fees paid for professional services.
DEPRECIATION AND AMORTIZATION
- Depreciation includes depreciation of furniture and fixtures, computer
and, network infrastructure equipment. Depreciation is computed on a
straight-line basis over estimated useful lives of three to ten years.
- Amortization includes the amortization of capital leased equipment as well
as the amortization of intangible assets associated with our acquisitions
of Internet Northeast and the Network Services Division of Comstor
Corporation. Amortization is computed on a straight-line basis over three
to five years.
INTEREST INCOME (EXPENSE)
- Interest income consists of interest income from our cash and short-term
investments.
- Interest expense consists of interest associated with capital leased
equipment and a term loan.
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1999 COMPARED TO THREE MONTHS ENDED MARCH 31, 1998
REVENUES
Total revenues were $1.6 million for the three months ended March 31, 1999,
as compared to $954,000 for the three months ended March 31, 1998, an increase
of $646,000 or 68%. This increase was attributable to the revenue base of the
Network Services Division of Comstor Corporation which was acquired on January
11, 1999, as well as the addition of new customers and with a higher average
monthly revenue per customer.
24
<PAGE>
COSTS OF REVENUES
Costs of revenues were $811,000 for the three months ended March 31, 1999,
as compared to $420,000 for the three months ended March 31, 1998, an increase
of $391,000 or 93%. The increase was primarily attributable to the network costs
associated with the acquisition of substantially all of the assets of the
Network Services Division of Comstor Corporation in 1999, as well as an increase
in network costs associated with higher customer counts. Costs of revenues as a
percentage of revenues was 51% for the three months ended March 31, 1999,
compared to 44% for the three months ended March 31, 1998.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative expenses were $1.7 million for the three
months ended March 31, 1999, compared to $399,000 for the three months ended
March 31, 1998, an increase of $1.3 million or 324%. This increase consisted
primarily of increased salary expenses associated with increases in management,
sales and other personnel and increased fees paid for professional services. The
total number of employees at March 31, 1999 was 98 as compared to 37 at March
31, 1998.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization expense was $500,000 for the three months
ended March 31, 1999, as compared to $318,000 for the three months ended March
31, 1998, an increase of $182,000. The increase was attributed to the
depreciation associated with the expansion of our network and the amortization
of the intangible asset associated with the acquisition of Comstor.
INTEREST INCOME (EXPENSE)
Interest income for the three months ended March 31, 1999 was $23,000
compared to $0 for the three months ended March 31, 1998. The increase was
primarily due to the interest earned on the proceeds from the redeemable
convertible Series A preferred stock issuance.
Interest expense for the three months ended March 31, 1999 was $4,000
compared to $3,000 for the three months ended March 31, 1998. This increase was
primarily due to the interest payable on leased capital equipment.
YEAR ENDED DECEMBER 31, 1998 COMPARED TO YEAR ENDED DECEMBER 31, 1997
REVENUES
Total revenues were $4.3 million for the year ended December 31, 1998, as
compared to $1.4 million for the year ended December 31, 1997, an increase of
$2.9 million or 210%. This increase was attributable to a full year of dial-up
service revenue associated with the 1997 acquisition of Internet Northeast.
COSTS OF REVENUES
Costs of revenues were $1.9 million for the year ended December 31, 1998, as
compared to $704,000 for the year ended December 31, 1997, an increase of $1.2
million or 167%. The increase in cost of service revenues was primarily
attributable to the inclusion of a full year of dial-up network costs. Cost of
revenues as a percentage of revenues was 44% for the year ended December 31,
1998, compared to 51% for the year ended December 31, 1997.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative expenses were $2.8 million for the year
ended December 31, 1998 compared to $671,000 for the year ended December 31,
1997, an increase of $2.1 million or 319%. Sales and marketing expenses
increased approximately $435,000. General and administrative expenses increased
25
<PAGE>
$1.7 million. The increases were due to the inclusion of a full year of
operations of Internet Northeast and the establishment of the Boston corporate
office. The total number of employees at December 31, 1998 was 56 as compared to
31 at December 31, 1997.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization expense was $1.3 million for the year ended
December 31, 1998 as compared to $187,000 for the year ended December 31, 1997,
an increase of $1.1 million. The increase was attributable to the depreciation
on our expanded network and the amortization of the intangible assets and
goodwill associated with the acquisition of Internet Northeast.
INTEREST INCOME (EXPENSE)
Interest income for the year ended December 31, 1998 was $57,000 compared to
$0 for the year ended December 31, 1997. The increase was primarily due to the
interest earned on the proceeds of the Series A preferred stock issuance in
September 1998.
Interest expense for the year ended December 31, 1998 was $25,000 compared
to $2,000 for the year ended December 31, 1997. This increase was primarily due
to the interest on leased capital equipment.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
REVENUES
Total revenues were $1.4 million for the year ended December 31, 1997, as
compared to $720,000 for the year ended December 31, 1996, an increase of
$661,000 or 92%. The increase was attributable to the addition of the dial-up
business in November 1997 from the Internet Northeast acquisition and an overall
increase in customers.
COSTS OF REVENUES
Costs of revenues were $704,000 for the year ended December 31, 1997, as
compared to $325,000 for the year ended December 31, 1996, an increase of
$379,000 or 116%. This increase was due in part to the addition of Internet
Northeast in November 1997. Costs of revenues as a percentage of revenues was
51% for the year ended December 31, 1997 compared to 45% for the year ended
December 31, 1996.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative expenses were $671,000 for the year
ended December 31, 1997 compared to $352,000 for the year ended December 31,
1996, an increase of $319,000 or 91%. Sales and marketing expenses increased
$28,000. General and administrative expenses increased $291,000. The increases
were due in part to the increase in headcount as a result of the 1997
acquisition of Internet Northeast.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization expense was $187,000 for the year ended
December 31, 1997, as compared to $6,000 for the year ended December 31, 1996,
an increase of $181,000. This increase was attributable to the amortization of
the intangible assets and goodwill associated with the 1997 acquisition of
Internet Northeast.
INTEREST INCOME (EXPENSE)
Interest income and expense were nominal in both years.
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QUARTERLY RESULTS
The following table sets forth unaudited financial data of HarvardNET for
each of the quarters in 1998 and for the first quarter of 1999. This information
has been derived from our unaudited financial statements that, in our opinion,
reflect all adjustments, consisting only of normal recurring adjustments,
necessary for a fair presentation of this quarterly information. The operating
results for any quarter are not necessarily indicative of results to be expected
for any future period.
<TABLE>
<CAPTION>
QUARTER ENDED
-------------------------------------------------------------
MARCH 31, JUNE 30, SEPT. 30, DEC. 31, MARCH 31,
1998 1998 1998 1998 1999
----------- ----------- --------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Revenues........................................................... $ 954 $ 1,041 $ 1,159 $ 1,128 $ 1,600
Costs of revenues.................................................. 420 468 461 529 811
Selling, general and administrative................................ 399 605 725 1,086 1,693
Depreciation and amortization...................................... 318 324 332 366 500
----- ----------- --------- ----------- -----------
Operating income (loss)............................................ (183) (356) (359) (853) (1,404)
Interest income (expense), net..................................... (2) -- 2 33 19
Net income (loss) before taxes..................................... (185) (356 ) (357) (820 ) (1,385 )
----- ----------- --------- ----------- -----------
Benefit (provision) for income taxes............................... 49 95 95 218 85
Net income (loss).................................................. $ (136 ) $ (261 ) $ (262) $ (602 ) $ (1,300 )
----- ----------- --------- ----------- -----------
----- ----------- --------- ----------- -----------
</TABLE>
We could experience quarterly variations in revenue and operating income as
a result of many factors, including:
- the introduction of new services by us;
- actions taken by competitors;
- the timing of the acquisition or loss of customers;
- the timing of additional selling, general and administrative expenses
incurred to acquire and support new or additional business; and
- changes in our revenue mix among our various service offerings.
Many of the factors that could cause such variations are outside of our control.
We plan our operating expenditures based on revenue forecasts, and a revenue
shortfall below such forecasts in any quarter could adversely affect our
operating results for that quarter.
LIQUIDITY AND CAPITAL RESOURCES
The development and expansion of our business requires significant capital
expenditures. The principal capital expenditures which we expect to incur, are:
- the procurement, design and construction of, and the deployment of
equipment in, over 600 Bell Atlantic central offices;
- the design and development of, and the purchase of equipment for, our
intra-region and inter-region networks;
- the buildout of our Web hosting facilities; and
- the upgrade of our billing and operational support systems.
Our capital expenditures were $1.0 million for 1998 and $627,000 for the
three months ended March 31, 1999. As of May 31, 1999, we had material purchase
commitments of approximately $2.3 million for 1999 for the procurement of
central offices, for the purchase of network equipment and for the
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purchase of software and services. We expect our capital expenditures to be
approximately $30 million to $40 million in 1999 and approximately $50 million
to $60 million in 2000.
We have financed operations primarily through revenues and the private
placement of preferred stock totaling $18.5 million in September 1998. On May
28, 1999, we obtained a $30.0 million senior credit facility. The facility is a
five-year term facility with interest only payable for the first two years. The
facility bears interest at an annual rate equal to the London inter bank offer
rate plus 4.5%. The facility is subject to availability and covenant
restrictions and is principally limited to use in our Northeast markets. It is
prepayable without penalty and requires mandatory payment from the proceeds of
an equity offering. We believe that the term facility in conjunction with
existing cash and cash equivalents and cash flow from operations is sufficient
to fund our current operations through at least the middle of 2000.
During 1998, net cash used in our operating activities was $93,000. Cash was
used for a variety of operating purposes, including salaries, consulting and
legal expenses, network operations and overhead expenses. Net cash provided by
financing activities for 1998 was $5.9 million and was primarily the result of
the receipt of $9.3 million from draw-downs of our private equity placement
offset by the redemption of common stock in the amount of $3.4 million.
For the three months ended March 31, 1999, net cash used in our operating
activities was $1.4 million. This cash was used for a variety of operating
purposes, including salaries, regulatory, network operations and overhead
expenses. Net cash provided by financing activities for the three months ended
March 31, 1999 was $8.6 million and represented the final draw-down on our $18.5
million private equity placement on March 23, 1999. Net cash used in investing
activities for the three months ended March 31, 1999 was $3.5 million of which
$2.8 million represents the purchase of substantially all of the assets of the
Network Services Division of Comstor Corporation while the remainder represents
capital expenditures of $627,000.
We intend to rapidly and substantially increase our capital expenditures and
operating expenses in an effort to expand our operations, including the
expansion of our network in the Northeast and Mid-Atlantic regions of the United
States. As a result of these factors, we expect to incur operating and net
losses and negative operating cash flow which will require us to obtain
additional financing to fully fund this expansion. We believe that the proceeds
of this offering, our existing cash and cash equivalents and future revenue
generated from operations will be sufficient to fund planned expansion and
operating deficits through at least the next 12 months. We will attempt to
finance our expansion beyond this time period through a combination of
commercial borrowings, leasing, vendor financing, the private or public sale of
debt or equity securities or by other available means. However, additional
financing may not be available to us on favorable terms or at all. We may decide
to seek additional capital earlier than the middle of 2000.
Our capital requirements may vary based upon the timing and success of our
rollout, as a result of regulatory, technological and competitive developments
or if demand for our services or cash flow from operations is more or less than
expected, our development plans or projections change or prove to be inaccurate,
or we accelerate deployment of our network services.
As of May 31, 1999 we had not entered into any financial instruments that
expose us to material market risk.
IMPACT OF THE YEAR 2000
Many computer programs have been written using two digits rather than four
digits to define the applicable year. This poses a problem at the end of the
century because these computer programs would not properly recognize a year that
begins with "20" instead of "19." This, in turn, could result in major system
failures or miscalculations, and is generally referred to as the "Year 2000
issue." We have formulated and are effecting a Year 2000 plan to identify and
address any Year 2000 issues. Our Year 2000
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plan addresses the areas of external suppliers of equipment and/or software,
internal business systems, and external suppliers or services.
We have substantially completed a compliance check of the equipment and
related software that comprise our network and customer premise equipment. We
have selected vendors whose products are Year 2000 certified to supply software
to support our major internal business processes such as ordering, billing and
provisioning. The implementation is on target for completion prior to the end of
1999 at which point our major internal business systems will be Year 2000
compliant. This fact coupled with the fact that our existing internal systems
have been developed within the last few years leads us to believe that our Year
2000 issues are minimal. We are, however, conducting tests on all internal
systems to determine their compliance. Any Year 2000 issues that are identified
with these systems may require the system to be replaced or upgraded.
While we have substantially completed a compliance check of the equipment
and related software that comprise our network and customer premise equipment
and have selected billing and provisioning system vendors who have certified
that their products are Year 2000 compliant, we have to date been unable to
check compliance by external service providers, including electric and utility
companies and Bell Atlantic. Because our systems will be interconnected with
those of Bell Atlantic and other service providers, any disruption of operations
in the computer programs of these service providers would likely have an impact
on our systems. We cannot be assured that this impact will not have an adverse
affect on our operations as well.
We plan to develop contingency procedures that would go into effect if any
failures occur. These would include manual back-up processes (fax, phone,
e-mail, etc.) for all critical interconnections and business functions. To date,
we have expended immaterial resources to address the Year 2000 issue and we
expect future expenditures to be immaterial to our operations and financial
position.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board, or FASB, issued
Statement of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which establishes accounting and reporting
standards for derivative instruments and hedging activities. It requires that an
entity recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value. To
date, we have not engaged in derivative and hedging activities and accordingly
do not believe that the adoption of SFAS No. 133 will have a material impact on
our financial reporting and related disclosures. We will adopt SFAS No. 133 as
required for our first quarterly filing of fiscal year 2001.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, "Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use." SOP 98-1 requires computer software
costs associated with internal use software to be charged to operations as
incurred until certain capitalization criteria are met. SOP 98-1 became
effective beginning January 1, 1999. To date, we have not capitalized any
internally developed software.
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BUSINESS
HarvardNET provides high-speed data networking solutions and Web hosting
services to businesses located in the Northeast and Mid-Atlantic regions of the
United States. HarvardNET markets its products and services through its direct
sales force and delivers its services using its East Coast Internet protocol-
based backbone network that connects markets from Maine to Virginia.
HarvardNET's service offerings include:
- high-speed digital subscriber line, or DSL, Internet access for small- and
medium-sized businesses, including offerings with data transfer speeds
ranging from 144 kilobytes per second (Kbps) to 7 megabytes per second
(Mbps);
- virtual private network services for large enterprises that require
high-speed, secure remote access for telecommuting, work-at-home and
mobile professionals;
- shared server, dedicated server and collocated Web hosting solutions,
which provide a secure location, controlled environment, active monitoring
and high-speed connections to the Internet via HarvardNET's backbone
network;
- leased line Internet connectivity for Internet-dependent businesses,
including T-1 lines, T-3 lines and frame relay services; and
- e-commerce solutions and other enhanced network enabled services,
including outsourced e-mail administration and Web-based credit card
transaction processing.
In November 1995, HarvardNET entered the Internet business focusing on
providing high performance Web hosting services, as well as leased line Internet
access to business customers in the Boston market. In 1996, HarvardNET was among
the first companies in the country to commercially deploy DSL technology,
allowing it to provide customers with a low-cost, high-speed Internet access
solution. In September 1998, M/C Venture Partners and Fidelity Ventures made
equity investments in HarvardNET. Since September 1998, HarvardNET has recruited
and built a senior management team with extensive experience in the data
networking industry. HarvardNET's President and Chief Executive Officer, Mark
Washburn, joined HarvardNET in September 1998 after having served in senior
sales and general management positions for Level 3 Communications, XCOM
Technologies, Inc., and MFS Communications. Other members of HarvardNET's
executive management team have served in senior management positions with Allnet
Communications, Atlantic Cellular Company, Bell Atlantic, MFS Communications,
Inc., The Yankee Group and Worldcom.
HarvardNET delivers its services over its own advanced backbone network that
connects markets from Maine to Virginia. This East Coast network is designed for
reliable, secure, high performance transport and delivery of Internet
protocol-based traffic. The network primarily operates at the OC-3 capacity
level (155 Mbps) and contains fiber optic connections to major Internet exchange
points. In addition, HarvardNET has peering relationships with over 90 Internet
service providers to facilitate the efficient and cost-effective exchange of
customer traffic.
HarvardNET has executed interconnection agreements with Bell Atlantic
covering its targeted Northeast markets of Massachusetts, Maine, New Hampshire
and Rhode Island and its targeted Mid-Atlantic markets of New York, New Jersey,
Pennsylvania, Maryland, Washington, D.C. and Virginia. As of May 31, 1999,
HarvardNET provided service at 24 central office locations and was installing
equipment in 23 additional central office locations in eastern Massachusetts,
southern Maine and southern New Hampshire. HarvardNET expects to collocate in
approximately 150 central office locations in the Northeast region by the end of
1999 and in an aggregate of more than 600 central offices in the Northeast and
Mid-Atlantic regions by the middle of 2001.
HarvardNET markets its high-speed data networking and Web site management
solutions directly to end-users. As of May 31, 1999, HarvardNET had
approximately 500 DSL and leased lines in service and
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more than 1,100 Web hosting business customers. Our customers include the
Atlantic Monthly, the Boston Museum of Fine Arts, Fidelity Capital, KPMG Peat
Marwick, Nantucket Nectars, Sage Networks and Staples.
MARKET OPPORTUNITY
GROWING MARKET DEMAND FOR HIGH-SPEED DIGITAL COMMUNICATIONS BANDWIDTH
Data communications is the fastest growing segment of the telecommunications
market. The Gartner Group has estimated that data traffic is growing five times
faster than voice traffic. In addition, International Data Corporation, or IDC,
has estimated that Internet users worldwide will increase from approximately 97
million at the end of 1998 to approximately 320 million by 2002. IDC also has
estimated that the value of goods and services sold worldwide through the
Internet will increase from approximately $32 billion in 1998 to over $400
billion in 2002. Accordingly, to remain competitive, small- and medium-sized
businesses increasingly will need high-speed Internet connections to maintain
complex Web sites, access critical business information, execute electronic
business transactions and communicate more efficiently with employees, customers
and business partners. High-speed digital connections will also become
increasingly important to businesses as Internet usage increases and complex and
multimedia content and applications become more available on the Internet.
The demand for high-speed digital communications services for remote local
area network access is also growing rapidly. Over the past ten years, high-speed
local area networks, or LANs, have become increasingly important to enterprises,
permitting employees to share information, send e-mail, search databases and
conduct business. Businesses are now seeking to extend this same high-speed
connectivity to employees accessing their LANs from home to improve employee
productivity and reduce operating costs. Forrester Research, Inc. has estimated
that the total market for data networking services and Internet access will grow
from $6.2 billion in 1997 to approximately $49.7 billion by 2002, with
approximately $27.9 billion to come from services to businesses.
EMERGENCE OF DIGITAL SUBSCRIBER LINE TECHNOLOGY
DSL technology has emerged as a cost-effective means of providing high-speed
digital communication capabilities. DSL equipment, when deployed at each end of
standard copper telephone lines, dramatically increases the data carrying
capacity of these lines from analog modem speeds of 56.6 Kbps and integrated
services digital network, or ISDN, speeds of 128 Kbps to DSL speeds of up to 7
Mbps or more depending on the length and condition of the copper telephone line.
Recent advances in semiconductor technology and digital signal processing
algorithms have made the deployment of DSL technology on a widespread basis more
economical, with equipment prices falling substantially over the last two years.
In addition, because DSL technology uses existing copper telephone lines, it is
significantly less expensive to deploy on a broad scale than some existing
alternative high-speed digital communication technologies, such as cable modems
and wireless data systems. Moreover, the ability of DSL technology to use
existing copper telephone lines enables DSL service providers to provide more
secure networks for sensitive corporate data than those available to providers
employing technologies which require users to share bandwidth, such as cable
modems.
The 1996 Telecommunications Act permits competitive carriers to collocate
equipment in the central offices of the incumbent local carriers. These
collocations allow competitive carriers to access users through the existing
copper telephone lines. The implementation of the 1996 Telecommunications Act
varies among different incumbent local carriers. In many regions, competitive
carriers seeking to offer DSL service must install their equipment in central
offices using a cage that is a minimum of 100 square feet. As part of its
implementation of the collocation requirements of the 1996 Telecommunications
Act, Bell Atlantic has given competitive carriers the option of installing their
equipment at Bell Atlantic central offices using an arrangement known as secure
open physical environment, or SCOPE, collocation. SCOPE
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collocation permits a competitive carrier to install equipment in a locked
cabinet that is much smaller than a standard cage. In addition, an initial SCOPE
collocation can be installed for approximately 75% less capital expense than a
standard cage configuration. By reducing the cost of installing DSL equipment in
central offices, the SCOPE collocation arrangement has facilitated the delivery
of DSL service to customers in a wider geographical footprint. In addition, the
decreased space requirements of a SCOPE collocation may permit a DSL service
provider to collocate in an otherwise space-constrained central office.
THE NEED OF SMALL- AND MEDIUM-SIZED BUSINESSES FOR COST-EFFECTIVE HIGH-SPEED
DATA NETWORKING SOLUTIONS
The full potential of Internet and LAN applications cannot be realized
without removing the performance bottlenecks of the existing public switched
telephone network. The fastest commercially available dial-up modem connection
is only 56.6 Kbps. The capacity offered by ISDN lines is improved relative to
dial-up modems, but is still only 128 Kbps, and the cost of an ISDN line is
often very expensive for small- and medium-sized businesses due to the metered
usage pricing of this service. In addition, ISDN lines require users to
establish a connection to the telephone network at the beginning of each session
thereby precluding "always on" access to the Internet. Alternative data
transport technologies like leased lines and frame relay services are often
uneconomical for small- and medium-sized businesses. With no cost-effective
alternative to dial-up modems or ISDN lines to connect to the Internet or
remotely access the corporate LAN, workers at a significant number of small- and
medium-sized businesses have been forced to endure delays and productivity
limitations. In addition, some small- and medium-sized businesses perceive that
incumbent local carriers are insufficiently focused on their needs. As a result,
small- and medium-sized businesses are seeking cost-effective high-speed
networking solutions to allow them to take advantage of Internet and LAN
applications to the same extent as large enterprises.
THE NEED OF LARGE ENTERPRISES FOR COST-EFFECTIVE REMOTE ACCESS TO THEIR
CORPORATE NETWORKS
A significant number of large enterprises are similarly demanding increased
speed as their Internet usage increases. Moreover, these businesses are being
driven by competitive, technological and societal forces to equip many of their
employees with the ability to work at home and in other remote locations, such
as branch offices. IDC has estimated that the number of residences with
computers in their home offices in the United States will increase from
approximately 26 million in 1998 to 37.8 million by 2002. Telecommuters and
other remote users need fast, reliable and secure access to the Internet and
corporate LANs. Since T-1 lines are too expensive for these users, corporations
are seeking alternatives that can increase transmission speeds from those
provided by dial-up modems and ISDN lines and improve productivity at a
reasonable cost.
THE GROWING DEMAND FOR OUTSOURCED WEB HOSTING AND ENHANCED NETWORK SERVICES
Small- and medium-sized businesses increasingly are seeking to realize the
potential of the Internet by establishing an Internet presence. In addition to
obtaining Internet access, many of these businesses want to create a Web site on
which they can sell their products and services, market their company and brand,
execute electronic transactions and provide information to their customers,
suppliers, business partners and employees. At the same time, these operations
and applications are becoming more complex and challenging to manage. Ensuring
the quality, reliability and availability of these Internet operations typically
requires substantial investments in developing Internet expertise and operating
infrastructures. However, such a significant investment is often an inefficient
use of the typically limited resources of these businesses. As a result, small-
and medium-sized businesses are increasingly seeking outsourcing arrangements
that can increase performance, provide continuous operation of their Web sites,
reduce Internet operating expenses and eliminate the need for a dedicated
information technology staff. IDC has
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estimated that the demand for Web hosting services in the United States was
approximately $770 million in 1998 and is expected to grow to $12 billion by
2002.
THE CONCENTRATION OF TELECOMMUNICATIONS USERS IN THE NORTHEAST AND
MID-ATLANTIC REGIONS
The Northeast and Mid-Atlantic regions of the United States are among the
most densely populated in the United States and The Yankee Group has estimated
that these regions account for approximately 28% of the total United States
telecommunications market based on the number of telephone access lines. These
regions also have a significant concentration of high technology and
Internet-related businesses. HarvardNET believes that the demographic
characteristics of this region make it among the most attractive markets for
high-speed networking solutions in the country. In particular, the Northeast
region includes more than six million local lines and approximately 300,000
businesses. The Mid-Atlantic region includes more than 23 million local access
lines and approximately one million businesses. Moreover, these regions both
have a high density of central offices. As the availability and speed of DSL
service depends on the distance of the end-user from the nearest central office,
this high central office density permits DSL service providers to offer more
comprehensive coverage and faster transmission speeds than is possible in
geographic regions with a lower density of central offices.
THE HARVARDNET SOLUTION
We provide high-speed data networking solutions and Web hosting services to
businesses in the Northeast and Mid-Atlantic regions of the United States. We
market and sell our solutions directly to customers, allowing us to create a
close relationship with end-users and providing us information and feedback that
we can use in developing and refining our products and services. By organizing
our sales and service organizations around customers and focusing on the needs
of end-users, we believe we can provide a high level of service and improve
customer satisfaction and loyalty.
We offer our services as a bundled package for small- and medium-sized
businesses seeking to outsource their data networking and Web site management
needs to a single provider. We also allow customers to choose from among the
many types of services we offer to select the most appropriate solution for
their specific business. Our suite of offerings include (1) high-speed DSL
Internet access, (2) virtual private network services, (3) dedicated, shared and
collocated Web hosting solutions, (4) leased line Internet connectivity and (5)
e-commerce and other enhanced network enabled services, such as outsourced
e-mail services and Web-based credit card transaction processing. In addition to
these services, we also sell wholesale transit capacity to Internet service
providers and network service providers over our East Coast Internet
protocol-based backbone network.
By providing a range of data networking services and e-commerce solutions,
we can offer a number of benefits to our customers including:
- SINGLE SOURCE SOLUTION. We provide a full range of services to allow
businesses to effectively outsource their Internet access and electronic
business needs. Customers can obtain DSL and leased line Internet access,
Web hosting and other e-commerce services, such as e-mail and credit card
transaction processing, through a single provider. We also bundle a number
of our service offerings to encourage customers to purchase multiple
service offerings. We believe that a full suite of services is especially
attractive to small- and medium-sized businesses which typically do not
have the information technology personnel or infrastructure necessary to
manage their data communications needs.
- HIGH-SPEED ACCESS AT REASONABLE PRICES. Our BusinessSPEED DSL service is
capable of delivering data transfer rates at speeds ranging from 144 Kbps
to 7 Mbps. Our DSL service costs significantly less per month than
high-speed leased lines, such as T-1 or frame relay, and also includes
Internet access, typically resulting in cost savings of 50-75% over
traditional leased line and frame relay
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Internet access services. For those customers unable to use DSL or that
need greater bandwidth, we offer our leased line services at a discount to
the rates charged by the incumbent carrier.
- "ALWAYS ON" SECURE CONNECTIONS. We provide "Web-tone" access to the
Internet; a user does not a need to dial up the public telephone network
to establish an Internet connection. In addition, since our network access
services use dedicated copper telephone lines, our virtual private network
offerings protect data on its path to and from the end-user.
- FLEXIBILITY AND SCALEABILITY. We have designed our network and service
offerings to enable customers to purchase the level of service and
transmission speed that meets their existing requirements and to easily
upgrade as their use of the Internet grows. We can effect upgrades
remotely, without the need to add additional hardware or to deploy a
technician to the customer's premises.
STRATEGY
Our goal is to become the leading provider of high-speed data networking
solutions and Web site management services for businesses in the Northeast and
Mid-Atlantic regions. In order to achieve this goal we intend to:
FOCUS ON THE HIGH-SPEED DATA NETWORKING NEEDS OF BUSINESS CUSTOMERS IN THE
NORTHEAST AND MID-ATLANTIC REGIONS
We focus on the needs of businesses that require high-speed data networking
and Internet-related services in the Northeast and Mid-Atlantic regions. These
regions have a significant number of access lines and a significant
concentration of high technology and Internet-related businesses. We believe
that much of these regions' data traffic is transported within the region, which
enables us to carry this traffic on our network backbone, thereby avoiding the
transit costs associated with inter-regional data transport. Because we are
deploying our DSL services solely within the footprint of Bell Atlantic, we
believe we can install our equipment at collocated central offices more
efficiently, with fewer regulatory hurdles and without as many protracted
negotiations than would be possible with multiple incumbent carriers. We also
believe that the density of central office locations in these regions presents
the opportunity to realize efficiencies in marketing, installation and
deployment. In addition, we believe our regional focus will enable us to better
analyze the market opportunities in these regions and develop products and
services that better meet our customer's needs.
We were among the first companies to commercially deploy DSL service in New
England. As of May 31, 1999, we provided service at 24 central office locations
and were installing equipment in 23 additional central office locations in
eastern Massachusetts, southern Maine and southern New Hampshire. We expect to
collocate in approximately 150 central office locations in the Northeast region
by the end of 1999 and in an aggregate of more than 600 central offices in the
Northeast and Mid-Atlantic regions by the middle of 2001. Installation on this
scale requires significant time and resources, which we believe provides us with
a significant time-to-market advantage over our potential competitors in our
target markets.
OFFER FULL SUITE OF DATA NETWORKING AND INTERNET-RELATED SOLUTIONS
We provide high-speed data networking solutions and Web hosting services for
businesses, including high-speed DSL, leased line and frame relay, Internet
access virtual private network services, Web hosting and enhanced network
services such as e-mail and credit card transaction processing. By offering a
range of DSL and leased line service offerings, we allow each customer to select
the package of speed, services and price that is most appropriate for its
individual business. Large enterprises typically purchase our virtual private
network and collocated Web hosting offerings. Small- and medium-sized business
customers typically purchase our DSL and leased line offerings for their
Internet access needs. In addition, our ability to provide Web hosting and
enhanced services allows small- and medium-sized businesses to outsource their
key data networking and Internet-related needs to a single provider. By
providing a comprehensive suite of services and bundled service offerings, we
seek to more rapidly penetrate our targeted markets, increase the revenue we
derive from each customer, reduce customer turnover and provide more
sophisticated product offerings and better meet the needs of our customers than
those companies that only provide DSL transport services.
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SELL DIRECTLY TO CUSTOMERS
We market our services directly to customers. We believe a direct sales
force enables us to develop close relationships with our customers and manage
the service and sales process more effectively. We have developed a commercial
sales organization focused on small- and medium-sized customers and a corporate
sales organization focused on the needs of large enterprise organizations. Both
sales organizations sell our entire product line and are organized around
customers rather than products. We intend to expand our sales force as we
continue to roll-out our DSL service within our targeted region.
PROVIDE COST-EFFECTIVE, COMPREHENSIVE COVERAGE
We plan to offer DSL and leased line services in targeted markets from Maine
to Virginia and intend to collocate in a substantial number of central offices
throughout these markets. We plan to use SCOPE collocation to lower the level of
capital expenditures that we would otherwise incur upon activating a central
office. In addition, SCOPE collocation may also allow us to enter central
offices that would otherwise be closed to us due to space constraints. For those
customers unable to use DSL services due to distance from the central office or
the condition of the copper telephone line or that need greater bandwidth, we
will offer lease lines, frame relay or dial-up services as necessary in order to
meet their needs. By developing cost-effective, comprehensive coverage, we can
offer large enterprises the ability to provide remote access to substantially
all of their end-users.
PROVIDE SERVICE OVER OUR EAST COAST NETWORK INFRASTRUCTURE
We have established a high capacity, Internet protocol-based fiber optic
network backbone that connects markets between Maine and Virginia. This backbone
network primarily operates at the OC-3 capacity level (155 Mbps) and can be
easily upgraded to higher data speeds based upon our success in adding
customers. We are in the process of installing approximately 20 ATM switches in
our targeted markets in the Northeast and Mid-Atlantic regions. Our objective is
to build a fault-tolerant East Coast network that can be easily upgraded as
needed to support the traffic requirements and needs of our customers as they
grow. By building our network, we have more control over the delivery and
quality of our services. For example, we have end-to-end visibility of the
entire network directly to the customer's equipment, allowing us to actively
monitor performance and connection issues before they can affect the end-user's
experience. We can also control and optimize the routing of traffic on the
network. Our network contains advanced features, including the use of
sophisticated routing protocols such as tag switching, which provide more
efficient traffic management. We believe that the open, non-proprietary
architecture characteristic of an Internet protocol-based backbone affords
greater flexibility for new and emerging applications.
We have peering relationships with over 90 other Internet service providers
which allow for the direct exchange of traffic with other Internet service
providers and facilitate the efficient delivery of our customer's traffic and
reduce our transit costs. We own and operate the Boston metropolitan exchange
point, a key regional public peering point in the Northeast region where
Internet service providers exchange their traffic. We have peering arrangements
with six of the top regional Internet service providers at the Boston
metropolitan exchange point.
PROVIDE SUPERIOR CUSTOMER SERVICE
We believe that many small- and medium-sized businesses perceive that the
incumbent local carrier in our targeted markets does not adequately address
their needs because these businesses generally must deal with multiple contacts,
often including representatives of resellers and other indirect sales channels,
preventing them from developing satisfactory relationships with the incumbent
local carrier and its key personnel. By organizing a direct sales organization
around customers and focusing on end-users' needs, we seek to provide superior
service and customer care to attain a high level of customer satisfaction,
achieve customer loyalty and accelerate the adoption of our services. In
addition, we have established a
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network operations center in Portland, Maine. Our network operations center
performs active network monitoring and management, 24 hours per day, 7 days per
week.
PRODUCTS AND SERVICES
We currently offer the following products and services:
- DSL and leased line services marketed under the BusinessSPEED tradename;
- virtual private network solutions marketed under the RemoteCONNECT
tradename;
- Web hosting services; and
- e-commerce and other enhanced network services.
DSL AND LEASED LINE SERVICES
We offer high-speed data transport and Internet access marketed under the
BusinessSPEED tradename at bandwidth options ranging from DSL (144 Kbps to 7
Mbps) through T-1 (1.54 Mbps) and T-3 (45 Mbps) speeds.
DSL SERVICES. Our BusinessSPEED DSL service offers enhanced performance for
small- and medium-sized businesses currently accessing the Internet with dial-up
or ISDN connections. BusinessSPEED DSL delivers high-speed Internet connections
through existing copper telephone lines. DSL provides greater speed, reliability
and flexibility than a dial-up or ISDN connection and is a more cost-effective
high-speed option than ISDN, leased line or frame relay service which are often
uneconomical for small- and medium-sized businesses. Our BusinessSPEED service
comes in a variety of bandwidth options and provides unlimited access to the
Internet for one flat monthly fee. Our DSL services have been designed to enable
us to upgrade customers to faster speeds without the need to add additional
hardware or deploy a technician to the customer's premises. As part of our
direct sales strategy, our sales representatives assist customers in analyzing
their access, hardware and installation requirements in order to identify the
service that will most effectively meet their needs.
We provide all our DSL services using rate adaptive asymmetric digital
subscriber line, or RADSL, technology. RADSL technology permits the service
provider to adjust the transmission rates both downstream to the end-user and
upstream from the end-user, enabling us to offer symmetrical upstream and down
stream transmission rates up to 768 Kbps. Using RADSL technology, a service
provider can optimize the upstream and downstream transmission rates to account
for the quality of the copper telephone line.
LEASED LINE AND FRAME RELAY SERVICES. Our BusinessSPEED leased line service
provides large and Internet-dependent businesses with high-capacity links to the
Internet and between multiple locations at a discount to the price offered by
the incumbent carrier. We offer T-1 service in several speeds, from fractional
128 Kbps to full-rate 1.54 Mbps. Our T-3 service, providing speeds between 3
Mbps and 45 Mbps, is designed for large corporations that have needs greater
than T-1 service or that want to consolidate several leased lines.
Our frame relay service provides cost-effective branch office connectivity
for large corporations. It also provides a flexible, high-speed connection for
small- and medium-sized businesses that cannot currently receive DSL-based
access due to an end-user's distance from a central office or the quality of the
end-user's telephone line.
We believe that substantially all potential end-users in our target markets
can be served with one of our services. The particular BusinessSPEED DSL service
available to an end-user depends on the user's distance to the nearest central
office and the quality of the end user's telephone line. We estimate that
approximately 75% of our potential end-users are within 18,000 feet of a central
office and can be served by at least our basic DSL service.
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The chart below sets forth information relating to each of our BusinessSPEED
service offerings as of May 31, 1999.
<TABLE>
<CAPTION>
SPEED TO SPEED FROM UPGRADING
SERVICES OFFERED END USER END USER FROM: BEST SUITED FOR COMPANIES OR OFFICES THAT:
<S> <C> <C> <C> <C>
EmergingPOWER DSL 144 Kbps 144 Kbps Dial-up or - Have up to 25 employees
256 Kbps 256 Kbps ISDN - Access the Web occasionally
- E-mail or transfer few large files and documents
GrowthPOWER DSL 384 Kbps 384 Kbps ISDN, - Have up to 75 employees
512 Kbps 512 Kbps Frame Relay or - Have many simultaneous Web users
Fractional T-1 - E-mail or transfer few large files and documents
Mission- 768 Kbps 768 Kbps Fractional T-1 - Have up to 150 employees
CriticalPOWER DSL 1.54 Mbps 1.0 Mbps - Rely on the Internet to conduct business
7.0 Mbps 1.0 Mbps - Have many simultaneous Web users
- E-mail or transfer large files and documents
Frame Relay 56 Kbps 56 Kpbs Dial-up or - Have up to 150 employees
384 Kpbs 384 Kbps ISDN - Need to connect branch offices
1.54 Mbps 1.54 Mbps - Cannot receive DSL service
Fractional T-1 to 128 Kbps 128 Kbps ISDN or - Have up to 250 employees
T-1 to 1.54 to 1.54 Frame Relay - Have many simultaneous Web users
Mbps Mbps - E-mail or transfer large files and documents
- Support remote users (dial-up and DSL)
Fractional T-3 to 3 Mbps to 3 Mbps to T-1 or - Support several branch offices
T-3 45 Mbps 45 Mbps Multiple - Support remote users (dial-up and DSL)
leased lines - Transfer large files (graphics, audio, and video)
- Host multiple Web and file servers
</TABLE>
VIRTUAL PRIVATE NETWORK SERVICES
We market our virtual private network services under the RemoteCONNECT
tradename. Our RemoteCONNECT solutions combine our BusinessSPEED DSL services
with our virtual private networking equipment to provide high-speed and secure
connections to the corporate LAN and the Internet. This flexible and
cost-effective solution supports both telecommuters and site-to-site
connections. Our RemoteCONNECT services provide employees with the simplicity of
an "always on" connection and the increased speed and performance of DSL
technology.
The diagram below illustrates the uses for which our virtual private network
is typically employed:
REMOTE CONNECT VIRTUAL PRIVATE NETWORK
[Graphical description of HarvardNET'S Remote Connect Private Network. At
the center of the page is a cloudlike image labeled "HarvardNet Managed
Backbone" with six lines labeled and leading to the following: one line labeled
"Dial-Up" connecting to an image labeled "Telecommuter," one line labeled
"Dial-Up" connecting to an image labeled "Mobile Employee," one line labeled
"DSL" connecting to an image labeled "Telecommuter," one line labeled "DSL
Frame, T-1" connecting to an image labeled "Branch Office PCs," and one line
labeled "T1/T3" connecting to an image labeled "Corporate PCs."]
WEB HOSTING
We offer shared server, dedicated server and collocated Web hosting
services. Our solutions can be used by a range of businesses, from an emerging
company launching a Web site for the first time to an Internet-dependent
organization running a heavily utilized site. We currently have a Web operations
center in Boston, Massachusetts and an approximately 4,700 square foot facility
in McLean, Virginia. We are in the process of opening a new, approximately
20,000 square foot Web operations center in Boston, and
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intend to establish similar Web operations centers in New York, Philadelphia and
Washington, D.C. in conjunction with our roll-out of DSL services in these
metropolitan areas.
By using our Web hosting services or collocating a Web server in one of our
facilities, a customer has the ability to deploy a high quality, highly reliable
Internet presence without investing capital in data center space, multiple high
speed connections or other capital intensive infrastructure. Our Web operations
centers provide customers with monitoring 24 hours per day, 7 days per week,
redundant AC/DC power, emergency back-up generator power, heating, ventilation
and air conditioning systems, redundant communications feeds, fire suppression
and direct connectivity to HarvardNET's high-speed fiber optic backbone. We
generally offer Web hosting options on a flat fee basis, based on the options
and features chosen by the customer. We are a preferred Microsoft BackOffice
Small Business Server provider in our region.
SHARED SERVER WEB HOSTING SERVICE. We offer a series of shared server Web
hosting solutions that allow companies to establish a sophisticated presence on
the Internet at a reasonable cost, leveraging the expertise and infrastructure
of HarvardNET to deploy an effective Web site. HarvardNET shared hosting
services give companies the flexibility to grow their Internet business with
options such as additional disk space, bandwidth and Web-based credit card
processing.
Our shared server Web hosting service includes the following features:
- Disk storage space on a HarvardNET server;
- Domain name registration;
- Rapid set up and deployment; and
- Flexible design, allowing additional options such as additional disk
space, traffic throughput and e-commerce transaction processing.
We offer our shared server services on both NT and UNIX platforms. To
protect customer files, all shared servers have regular back-up procedures. Our
shared server offering includes support for Microsoft FrontPage extensions,
detailed site analysis reports and a variety of proprietary Web site development
tools. Through a relationship with CyberCash, a leading provider of Web-based
credit card transaction processing, we offer customers credit card transaction
processing services.
DEDICATED SERVER WEB HOSTING SERVICE. We offer dedicated server Web hosting
solutions for larger customers with more complex requirements that prefer not to
host their Web site on a shared server. Our Web hosting service provides
customers with substantially more server and network resources than available
under shared server Web hosting plans. Our Web hosting solutions include an NT
or UNIX-based dedicated server that is owned and maintained by HarvardNET in one
of our Web operations centers. Our dedicated Web hosting solutions allow
customers to run complex applications without the need for the significant
investment of capital and expert personnel that an internally located Web site
would require. We maintain spare equipment and use regular back-up procedures to
protect customer files.
COLLOCATION SERVICE. We provide collocation services to customers that
require the resources of a dedicated server, prefer to retain physical access to
and ownership of their server and have the expertise to maintain the Web site
and the server. Our Web operations centers offer customers a secure location,
controlled environment, monitoring and high-speed connections to the Internet
via our fiber optic backbone.
ENHANCED NETWORK ENABLED SERVICES
We currently offer e-mail administration services and plan to offer PBX
telephone extension and remote backup services. In the future we plan to expand
our portfolio of enhanced network enabled services.
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E-MAIL ADMINISTRATION. We offer outsourced e-mail administration branded
under the service name HarvardNET Post Office. HarvardNET Post Office enables
users to access their messages from a Web browser anywhere in the world, giving
them immediate, local access to important information. The service also
eliminates the need for maintaining an on-site e-mail server or adding
information technology staff, because we maintain customer e-mail accounts on a
HarvardNET managed server.
HarvardNET Post Office allows a small business to establish a unique Web
presence (www.yourcompany.com). Remote management tools are available within a
password-protected postmaster account, so a customer's e-mail administrator has
easy access to user account information. HarvardNET Post Office gives customers
the ability to increase productivity through global user access to e-mail and
reduce expenses by eliminating the need for on-site servers and sophisticated
e-mail software.
PBX TELEPHONE EXTENSION SERVICE. HarvardNET PBX telephone extension service
will extend the functionality of a PBX telephone handset directly into a
telecommuter's home or a company's branch location. This service will support
common PBX functions such as four digit dialing, conference calling, voice mail,
message indicators and speed dialing and will permit users to simultaneously
transmit voice and data communications over the same line. Customers will have
the ability to increase worker productivity, reduce second line expenses for
voice service and aggregate and control long distance charges. We are currently
developing the PBX telephone extension service and selecting a third party
technology provider. We expect to commercially market this service in the second
half of 1999.
REMOTE BACKUP AND DISASTER RECOVERY SERVICE. HarvardNET remote backup and
disaster recovery service will allow end-users to automatically backup data to a
secure remote site. Computer backup can be more cost-effective than substitutes,
such as tape drives and disk cartridge drives. Storing backup data will provide
added protection in the case of a disaster at a customer's main site. We expect
to select a third party to offer the remote backup and disaster service and
expect to commercially market this service in the second half of 1999.
CUSTOMERS
We offer our services directly to small- and medium-sized businesses and
large enterprise organizations. To a lesser extent, we provide wholesale
services to Internet service providers and network service providers. As of May
31, 1999, we had approximately 500 DSL and leased lines in service and more than
1,100 Web hosting business customers. Our customers include the Atlantic
Monthly, the Boston Museum of Fine Arts, Fidelity Capital, KPMG Peat Marwick,
Nantucket Nectars, Sage Networks and Staples.
SALES AND MARKETING
We primarily market our services to customers through our direct sales
force. We believe that establishing a direct relationship with the customer will
provide a competitive advantage by allowing us to develop close relationships
with our customers and manage the sales and service process more effectively.
Unlike large-scale enterprises, small- and medium-sized businesses often do not
have a dedicated communications manager and seek a complete suite of high-speed
data networking solutions and Web site management services from a single
provider. We believe that a direct sales approach to small- and medium-sized
businesses for Internet and data services is a significant shift from the way
these organizations have previously acquired these types of services and better
addresses the needs of these businesses. Although most of our sales force is
focused primarily on selling our bundled services to small- and medium-sized
businesses, our sales force also sells specific solutions, including our virtual
private networking products and high-speed leased line services, to large
enterprises. We also provide wholesale services to Internet service providers
and network service providers. To best meet the needs of our customers, we have
organized our sales organization as follows:
- SMALL- AND MEDIUM-SIZED BUSINESSES--direct commercial account managers;
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- LARGE ENTERPRISES--account teams consisting of corporate account managers
and systems engineers; and
- INTERNET SERVICE PROVIDERS AND NETWORK SERVICE PROVIDERS--wholesale
account managers.
DIRECT SALES CHANNELS
As of May 31, 1999, we had 40 sales and technical personnel and four sales
offices supporting our direct sales efforts. We intend to increase the size of
our sales and technical support force to sell and support businesses and open
additional sales sales offices as we enter new geographic markets. We plan to
expand this direct organization to a total of approximately 200 sales and
technical personnel by the end of 2000.
Our commercial account managers are organized into teams, including a sales
manager and a sales engineer. These teams utilize telemarketing and cold calling
to "qualify" leads and set up initial appointments. Sales territories are
organized around collocated central offices where we have deployed our DSL
service with the goal of calling on every prospective business served by a given
central office. Our commercial organization is highly focused on individual
activity and productivity, and we have developed a sales methodology that is
taught to each new hire through an intensive training program. We believe this
methodology to be a key ingredient in our ability to successfully compete for
the data networking requirements of small- and medium-sized businesses.
Commercial account managers are supported by sales managers and regional sales
directors who provide local sales leadership to the account teams in each
market.
Corporate account managers are assigned to specific accounts and recruitment
focuses on finding managers who have experience with large enterprise accounts.
Our target enterprise account profile is a large, information-intensive business
with multiple locations and large numbers of distributed workers. Our corporate
account managers seek to deal directly with the chief information officer and
the telecommunications manager responsible for data networking and Web hosting
in the target account. Corporate account managers are supported by regional
sales directors who provide local leadership and sales strategy for these large
complex accounts.
INDIRECT SALES CHANNELS
As of May 31, 1999, we had four sales and technical personnel supporting our
indirect sales efforts. We also market our services to end-users through
indirect channels, including Internet service providers, network service
providers, agents and value-added resellers. We offer each service provider the
ability to select those services that it would like to bundle with its own
service offerings to offer a total solution to its customers. For example,
Internet service providers typically combine our high-speed connections with
their Internet access services and resell the combination to their existing and
new customers. We address these markets through wholesale account managers
dedicated to each of these indirect channels. We plan to expand our indirect
sales organization to approximately 20 sales and technical personnel by the end
of 2000.
MARKETING
Our marketing team is focused on developing and implementing our
positioning, branding, product, pricing and promotional strategies. We have
formulated detailed criteria for identifying target customers for each of our
services and have created a bundle of services to be offered to each segment of
our potential customer base. In particular, we are focused on building our brand
identification as we roll out our service offerings. We are rolling out our high
speed data transport and Internet access services under the tradename
BusinessSPEED, our virtual private network services under the tradename
RemoteCONNECT and our outsourced e-mail administration services under the
tradename HarvardNET Post Office. We are promoting our brands through direct
mail to targeted accounts, outdoor advertising, radio advertisements and print
advertisements and public relations.
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CUSTOMER CARE
We offer our business and Internet service provider customers a single point
of contact for implementation, maintenance and billing. We have established a
network operations center in Portland, Maine. Our network operations center
provides both active and customer requested maintenance services 24 hours a day,
7 days a week. We also provide a broad range of customer service and network
operations center services through our Web interface. Our network operations
center provides network surveillance through standard simple network management
protocol, or SNMP, tools for all elements in our network. Because we have
complete end-to-end visibility of our network, we are able to actively detect
and correct the majority of our customer's maintenance problems remotely.
Customer requested maintenance and repair requests are managed and resolved
primarily through the network operations center. We use a trouble ticket
management system to communicate customer maintenance problems from the network
operations center to the field service organization. Because our network
operations center is fully staffed 24 hours a day, 7 days a week, we believe our
ability to provide superior active maintenance is significantly enhanced.
NETWORK ARCHITECTURE AND TECHNOLOGY
HarvardNET delivers its services over its advanced East Coast Internet
protocol-based backbone network that connects markets from Maine to Virginia.
The network includes advanced Internet protocol-based routers which will be
integrated with high-speed ATM switching equipment and can be managed remotely
from HarvardNET's network operations center. HarvardNET has designed the network
to be flexible and to facilitate upgrades as needed to support increased traffic
requirements. The network also includes redundancies designed to make it fault
tolerant.
INTRA-REGION NETWORK ARCHITECTURE
HarvardNET establishes each of its regional markets by installing digital
communications equipment in the incumbent telephone company's central offices.
DSL technology provides for high speed transmission of information over existing
copper telephone lines by encoding the information in a digital format.
HarvardNET's equipment uses this technology to transmit high-speed data over
copper lines between its customer and the central office. HarvardNET installs an
endpoint device at the customer's premise to manage the transmission of data
from the customer's internal information technology system to the central
office. HarvardNET connects its equipment in each central office to its regional
operations center using leased fiber optic transport. The regional operations
center is where data is collected in each market. HarvardNET will install ATM
switches into each of its regional operations centers to more efficiently
aggregate and consolidate data in the region. From the regional operations
center, data is transported on HarvardNET's network to major Internet traffic
exchange points for connection with other network backbones. Leasing existing
transport services from other carriers, including the copper wire to the
customer's premises, wherever possible, allows HarvardNET to focus its capital
outlay on the value-added elements of the network, including digital
communications equipment, ATM switches, routers and Web hosting centers.
The following is a diagram illustrating the architecture of our intra-region
network:
THE HARVARDNET NETWORK
[Graphical description of the HarvardNET Network. Centered at the top of the
graphic is the phrase "The HarvardNET Network." Beneath this phrase across the
page, are the headings "End Users"; "HarvardNET Collocated Central Offices";
"HarvardNET Network Operations Center"; and "Internet." Underneath the heading
"End Users" are three separate images labeled "Small and Medium Sized
Businesses," "Telecommuter" and "Branch Office." Lines labeled "Leased Copper"
link these images to two additional images, each labeled "DSL Transmission
Equipment," which are underneath the subheading "HarvardNET Collocated Central
Offices." Lines labeled "Leased Fiber" link these images to an
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image labeled HarvardNET Regional Operations Center. From this image one line
labeled "HarvardNET Backbone" leads to an image labeled "Internet" and another
line labeled "Leased Fiber" leads to a circle labeled "Wholesale to ISP," which
then leads to a circle labeled "Internet."]
INTER-REGION NETWORK ARCHITECTURE
BACKBONE. HarvardNET has established an advanced East Coast Internet
protocol-based backbone network that connects markets from Maine to Virginia.
HarvardNET's inter-region network uses Cisco core routing equipment and employs
self-healing protection switching to provide high quality reliable Internet
protocol-based data transmission. We have entered into long term leases for
transport facilities in the Portland, Maine to New York City corridor and
operate our network from New York City to Washington, D.C. Our network primarily
operates at the OC-3 capacity level (155 Mbps) and includes fiber optic
connections to major Internet exchange points.
PEERING ARRANGEMENTS. HarvardNET maintains relationships with over 90
national, regional and local Internet service providers by either private
peering with the Internet service providers or by participation in various
public peering locations, known as network access points. Peering arrangements
allow HarvardNET to exchange traffic with other Internet backbones at nominal
transit costs. Recently, a number of service providers that have previously
offered peering have cut back or eliminated peering relations and are
establishing new, more restrictive criteria for peering. HarvardNET believes
that its direct peering relationships with a large number of Internet service
providers, enable HarvardNET to provide better service and higher quality
network performance to its business customers.
WEB OPERATIONS CENTERS
HarvardNET provides its Web hosting services through Web operations centers
located in Boston, Massachusetts and McLean, Virginia. HarvardNET expects to
build additional Web operations centers in New York, Philadelphia and
Washington, D.C. in conjunction with its DSL deployment in these locations.
HarvardNET's Web operations centers include 24 hours per day, 7 days per week
monitoring, redundant AC/DC power, emergency back-up generator power, heating,
ventilation and air conditioning systems, redundant communications feeds, fire
suppression and direct connectivity to HarvardNET's network backbone.
NETWORK OPERATIONS CENTER
HarvardNET's network is managed from a network operations center located in
Portland, Maine, which was staffed with approximately 29 personnel as of May 31,
1999. From this center, HarvardNET provides end-to-end network monitoring and
management using advanced network management tools 24 hours a day, 7 days a
week. This enhances HarvardNET's ability to address performance or connection
issues before they affect the end-user's experience. From the network operations
center, HarvardNET monitors the equipment and circuits in each regional
operations center, individual end-user lines and customer endpoint devices.
HarvardNET also actively assesses developing technologies with a view to
improving network performance. HarvardNET's engineering efforts focus on the
design and development of new technologies and services to increase the speed,
efficiency, reliability and security of its network and to enable network
features and applications.
INFORMATION SYSTEMS
We are currently upgrading our information systems and procedures for
operations support and other back-office systems in order to improve the
processing of large volumes of orders, enhance customer care and reduce costs.
These systems will enter, schedule and track a customer's order from the point
of sale to the installation, provisioning and testing of service and also
include an interface with trouble management, inventory, billing, collection and
customer service systems.
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PROVISIONING MANAGEMENT
Our order management software supports the design and management of the
provisioning process, including circuit design and work-flow management. We are
implementing MetaSolv's Telecom Business Solution package to support our
provisioning requirements. We expect this package will be installed and
operational in the second half of 1999. The system has been designed to permit
programming into the system of a standard schedule of tasks that must be
accomplished in order to initiate service to a customer, as well as the standard
time intervals during which each task must be completed. As a result, once a
standard order is selected in the system, each required task in the service
initiation process can be efficiently managed in its assigned time interval.
BILLING
Customer billing inquiries are currently managed by our customer service
center. We are implementing Saville's Convergent Billing Platform on an
outsourced basis to support our billing requirements. We expect this platform to
be operational in the second half of 1999. We selected our information systems
based in part on the integration that exists between our billing vendor and
provisioning management vendor. Customer information will be electronically
interfaced between these two systems via a gateway, thereby integrating all
repositories of information in one database record.
EXTERNAL INTERFACES
We plan to implement an external interface that supports electronic bonding
between our operational support systems and those of Bell Atlantic's. Electronic
bonding will allow us to access data from Bell Atlantic, submit service requests
electronically and more quickly attend to errors in the local service request
form. We expect that the interface will help us reduce the time required from
the date of order entry to the date of DSL installation from approximately 25
business days to under 10 business days. Electronic bonding should also enable
us to provide better customer care because we will more readily be able to
determine where any problems may have occurred with a customer's order. We
expect that the interface will be operational by the first half of 2000.
COMPETITION
The market for data networking and Web hosting solutions, including DSL,
leased line and frame relay access, and e-commerce solutions is rapidly evolving
and intensely competitive. Many of our current competitors, as well as a number
of our potential new competitors, have longer operating histories, greater name
recognition and substantially greater financial, technical and marketing
resources than we have.
Many of our competitors are offering, or may soon offer technologies or
services that directly compete with our Internet access offerings. These
competitive offerings may include technologies, such as wireless data systems,
cable modems or satellite communication systems, that provide performance
advantages in some respects over DSL and other technologies using existing
copper telephone wires. If a substantial portion of our potential customers
determined that their needs could be better met by services using these
alternative technologies, our business, financial condition and results of
operations would be materially and adversely affected.
We expect to face competition from Bell Atlantic, alternative DSL providers,
competitive local exchange carriers, Internet service providers and cable
companies. We expect that Bell Atlantic will be a key competitor in the delivery
of high speed Internet access to end users in the Northeast and Mid-Atlantic
regions. Bell Atlantic has existing networks in local areas and across major
metropolitan areas in our targeted markets, currently serves substantially all
of the customers we hope to serve and has established its own Internet service
provider business. We expect to compete with Bell Atlantic on the basis of price
and our ability to service small- and medium-sized business customers. See "Risk
Factors--The markets in
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which we operate are highly competitive and we may not be able to compete
effectively against established industry competitors with significantly greater
financial resources."
In the Boston, New York, Philadelphia and Washington, D.C. metropolitan
areas, we expect to compete directly against other DSL providers. We expect to
compete with these DSL providers based on our direct sales approach, the depth
of our coverage in our targeted markets and our ability to provide additional
services such as Web hosting services, leased line transport, value-added
Internet services such as virtual private network solutions, e-commerce and
e-mail solutions, dial-up Internet access and wholesale transport. In addition,
by offering bundled services, we can provide our customers with comprehensive
data networking solutions.
Most cable companies in the New England area are targeting the residential
market with their own brand of high speed Internet access over the cable
network, using cable modem technology. We are focusing on marketing to
businesses in the region, and will only compete against the cable companies for
telecommuting and work-at-home applications. We expect to compete with cable
companies based on the technical advantages of DSL technology compared with
cable modems, service and reliability.
We compete in the Web hosting and collocation segment of our business with a
variety of companies. We seek to compete with these companies for small and
medium businesses by bundling hosting services with DSL and Internet access
solutions. See "Risk Factors--The markets in which we operate are highly
competitive and we may not be able to compete effectively against established
industry competitors with significantly greater financial resources."
INTERCONNECTION AGREEMENTS WITH BELL ATLANTIC
We have executed interconnection agreements with Bell Atlantic in
Massachusetts, Maine, New Hampshire, Rhode Island, New York, New Jersey,
Pennsylvania, Maryland, Washington, D.C. and Virginia. Our interconnection
agreements with Bell Atlantic form a critical part of our business. These
agreements cover a number of aspects including:
- the price we pay to lease access to Bell Atlantic's copper lines;
- the special conditioning Bell Atlantic provides on some of these lines to
enable the transmission of DSL signals;
- the price and terms for many aspects of the collocation of our equipment
in Bell Atlantic's central offices and interconnection of that equipment
with Bell Atlantic's network;
- the price paid by us and access we have to Bell Atlantic's transport
facilities;
- the operating support systems, service quality parameters and interfaces
that we can use to place orders and trouble reports and monitor Bell
Atlantic's response to our requests;
- the dispute resolution process used to resolve disagreements with Bell
Atlantic on the terms of the interconnection contracts; and
- the term of the interconnection agreements, its transferability to
successors, its liability limits and other general aspects of our
relationship with Bell Atlantic.
Our interconnection agreements with Bell Atlantic typically have terms of
approximately three years, requiring us to renegotiate each of these agreements
in the future. We expect to be able to renew our interconnection agreements and
believe the 1996 Telecommunications Act limits Bell Atlantic's ability not to
renew such agreements.
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GOVERNMENT REGULATION
A significant portion of the services that we offer may be subject to
regulation at the federal, state and/or local levels. Future federal or state
regulations and legislation may be less favorable to us than current regulation
and legislation and therefore may have a material and adverse impact on our
business, financial condition and results of operations. In addition, we may
expend significant financial and managerial resources to participate in
proceedings setting rules at either the federal or state level, without
achieving a favorable result.
FEDERAL LEGISLATION AND REGULATION
The 1996 Telecommunications Act establishes local telecommunications
competition as a national policy. This statute directs the Federal
Communications Commission to eliminate barriers to competition that result from
state or federal requirements and to preempt laws restricting competition in the
local exchange market.
The local competition provisions of the 1996 Telecommunications Act empower
the FCC to adopt regulations to implement these statutory provisions. The
outcome of various ongoing FCC rulemaking proceedings and/or judicial appeals of
such proceedings could materially affect our business, financial condition and
results of operations.
One of the FCC's major rules interpreting the local competition provisions
of the 1996 Telecommunications Act was rejected by the United States Supreme
Court in January 1999. Specifically, the Supreme Court found that the FCC's
interpretation of the statutory standard for establishing the network elements,
including copper loops, that incumbent carriers make available to competitive
carriers was not consistent with the 1996 Telecommunications Act. The Supreme
Court ordered the FCC to reexamine which unbundled network elements must be made
available. The future FCC decision on unbundled network elements may adversely
affect our business if the FCC abandons its previous requirement that incumbent
local carriers provide copper loops on an unbundled basis.
In the spring of 1998, four incumbent local carriers petitioned the FCC to
be relieved of various regulatory requirements in connection with their own DSL
services, including obligations to offer as an unbundled network element the end
office electronics used to provide DSL loops, but not the obligation to unbundle
the loops we purchase for our DSL services. In the fall of 1998, the FCC denied
the petitions and ruled that DSL services are telecommunications services
subject to regulation under the 1996 Telecommunications Act. Several bills
recently introduced in the U.S. Congress would relieve incumbent carriers of
their unbundling obligations for DSL service. If the FCC decision is overturned
or any of the pending bills is enacted, incumbent local carriers would be freed
of many of this regulatory constraints in competing with us.
The FCC currently is considering various other issues of consequence to
competitive carriers deploying DSL services, including whether to allow
incumbent local carriers to create separate affiliates for their DSL businesses
that could operate as competitive carriers free of the resale and unbundling
obligations of the 1996 Telecommunications Act. The FCC has not yet issued a
decision on these issues. Any such decision could give Bell Atlantic additional
flexibility to compete more effectively with us.
In March 1999, an FCC ruling expanded the rights of competitive carriers,
like HarvardNET, to collocate their equipment in incumbent local carriers'
central offices. While this ruling was favorable to competitive carriers, it is
currently subject to reconsideration. The outcome of that proceeding could
affect our ability to offer DSL service on competitive terms.
Bell Atlantic has filed a tariff with the FCC establishing term and volume
discounts for Internet service providers who order DSL service from Bell
Atlantic for the loops serving the Internet service provider's subscribers. On
June 4, 1999, the FCC allowed the tariff to take effect, subject to a formal
investigation regarding the 1996 Telecommunications Act's wholesale discount
requirements that may
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apply to the offering. The discounts established by the tariff may enhance Bell
Atlantic's ability to compete with us for Internet service provider business and
the ability of other Internet service providers to offer competitive DSL
services.
STATE REGULATION
While the FCC has broad authority to implement provisions of the 1996
Telecommunications Act, state public utilities commissions also have substantial
authority in this area. For example, although the Supreme Court's decision
validated the FCC's rule prescribing the methodology incumbent carriers must use
in setting the price of local loops and other network elements, that same rule
gives state public utility commissions authority to apply that methodology in
order to establish actual prices. Many states have set only temporary prices for
some network elements that are critical to the provision of DSL services because
they have not yet completed the regulatory proceedings necessary to determine
permanent prices. The results of those proceedings may determine the price we
pay for these network elements and services.
The 1996 Telecommunications Act also gives state public utility commissions
authority to approve or reject interconnection agreements that competitive local
carriers enter into with incumbent local carriers and broad authority to resolve
disputes that arise under these interconnection agreements. Under the 1996
Telecommunications Act, incumbent local carriers have a statutory duty to
negotiate in good faith with us for agreements for interconnection and access to
unbundled network elements. A separate agreement is signed for each of the
states in which we operate. During these negotiations either we or the incumbent
local carrier may submit disputes to the state regulatory commission for
mediation. After the expiration of a statutory period, either party may petition
the state public utility commission for arbitration. The 1996 Telecommunications
Act also allows state public utility commissions to supplement FCC regulations
as long as the state regulations are not inconsistent with the FCC's
requirements. Adverse state resolution of any arbitration proceeding in which we
may be involved could affect our ability to offer services at competitive rates.
In addition, HarvardNET offerings may, as to some future customers, be
classified as intrastate services subject to state regulation. All of the states
where we operate, or will operate, require state regulatory approval to provide
intrastate services. We have obtained state authorizations to provide all types
of intrastate services in Maine, Maryland, Massachusetts, New Hampshire and
Rhode Island and provisional approval in Pennsylvania. Our applications for
certificates to provide service in New Jersey, New York, Virginia and Washington
D.C. have been filed and are being considered for approval by the appropriate
state public utility commissions. In most states, intrastate tariffs also are
required for various intrastate services, although we are not typically subject
to price or rate of return regulation for tariffed intrastate services. Actions
by state public utility commissions could cause us to incur substantial legal
and administrative expenses.
State laws and regulations could be adopted which address matters that
affect our business. We are unable to predict what laws or regulations may be
adopted in the future, to what extent existing laws and regulations may be found
applicable to our business, or the impact such new or existing laws or
regulations may have on our business. In addition, laws or regulations could be
adopted in the future that may decrease the growth and expansion of Internet
use, which may decrease demand for our services.
LOCAL GOVERNMENT REGULATION
We rely primarily on unbundled network elements of incumbent local carriers
and leased transport capacity to provide our services. If we decide instead to
construct and operate our own facilities, we may be required to obtain various
permits and authorizations from municipalities which may involve significant
costs or delays to our operations.
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INTELLECTUAL PROPERTY
We regard our products, services and technology as proprietary and attempt
to protect them with copyrights, trademarks, trade secret laws, restrictions on
disclosure and other methods. We cannot be certain that these methods will be
sufficient protection. We also generally enter into confidentiality or license
agreements with our employees and consultants, and generally control access to
and distribution of our documentation and other proprietary information. Despite
these precautions, it may be possible for a third party to copy or otherwise
obtain and use our products, services or technology without authorization, or to
develop similar technology independently. Currently we have two servicemark
applications pending. In addition, effective intellectual property protection
may be unavailable or limited in some foreign countries. Despite our precautions
we may not be able to prevent misappropriation or infringement of our products,
services, and technology. In addition, in the future we may have to litigate to
enforce our intellectual property rights, to protect our trade secrets or to
determine the validity and scope of the proprietary rights of others. Such
litigation could result in substantial costs and diversion of resources and
could have a material adverse effect on our business, prospects, operating
results and financial condition.
EMPLOYEES
As of May 31, 1999, we had 125 employees (excluding temporary personnel and
consultants), employed in engineering, sales, marketing, customer support and
related activities, and general and administrative functions. None of our
employees is represented by a labor union, and we consider our relations with
our employees to be good. We believe that our future success will depend in part
on our continued ability to attract, hire and retain qualified personnel.
Competition for such personnel is intense, and we may be unable to identify,
attract and retain such personnel in the future.
FACILITIES
We are headquartered in Boston, Massachusetts in facilities consisting of
approximately 22,000 square feet of office space and approximately 20,000 square
feet of space which we are in the process of opening as a Web operations center.
We occupy these facilities under a lease which expires in 2003. We also lease a
4,700 square foot Web operations center in McLean, Virginia under a lease
expiring in 2002. We consider these spaces adequate for our current operations.
We also lease space in a number of Bell Atlantic central offices. While the
terms of these leases are perpetual, the productive use of our collocation
facilities will be subject to the terms of federal and state tariffs, regulatory
decisions and our interconnection agreements with Bell Atlantic. We will
increase our collocation space as we expand our network. We also maintain
offices in Portland, Maine and Portsmouth, New Hampshire.
LEGAL PROCEEDINGS
We are not currently engaged in any material legal proceedings. We are,
however, subject to state commission, FCC and court decisions as they relate to
the interpretation and implementation of the 1996 Telecommunications Act,
various telecommunications statutes and regulations, the interpretation of
interconnection agreements in general and our interconnection agreements in
particular. In some cases, we may be deemed to be bound by the results of
ongoing proceedings of these bodies or the legal outcomes of other contested
interconnection agreements that are similar to our agreements. The results of
any of these proceedings could have a material adverse effect on our business,
prospects, operating results and financial condition.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
Our executive officers and directors, and their ages and positions as of May
31, 1999 are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- --------------------------------------------------- --- ---------------------------------------------------
<S> <C> <C>
Mark M. Washburn................................... 36 President, Chief Executive Officer and Director
Todd C. DeSisto.................................... 41 Chief Financial Officer and Treasurer
Eric D. Peterson................................... 35 Vice President, Sales
James M. Newman.................................... 44 Vice President, Operations
Roger W. Ach III................................... 25 Chief Technical Officer
Melanie Haratunian................................. 39 General Counsel, Director of Regulatory Affairs,
and Secretary
Joseph Bartlett.................................... 34 Director of Marketing
William H. Southworth(1)........................... 53 Chairman of the Board of Directors and Director
Peter H.O. Claudy(2)............................... 37 Director
Leo J. Esposito.................................... 53 Director
Robert C. Ketterson(1)(2).......................... 36 Director
Jeffrey Osborn(2).................................. 40 Director
Matthew J. Rubins(1)............................... 31 Director
</TABLE>
- ------------------------
(1) Member of the audit committee
(2) Member of the compensation committee
MARK M. WASHBURN joined HarvardNET in September 1998 as Chief Operating
Officer and a Director and was promoted to President and Chief Executive Officer
in February 1999. From April 1998 to September 1998, Mr. Washburn served as Vice
President of Sales, Central Region for Level 3 Communications. From June 1997 to
April 1998, Mr. Washburn served as Vice President of Sales and Marketing for
XCOM Technologies, Inc., a competitive local exchange carrier specializing in
data communications. From February 1989 to June 1997, Mr. Washburn held a number
of sales and general management positions with MFS Communications, Inc., a
competitive local exchange carrier, including Vice President of Sales for the
Northeast region. Mr. Washburn previously held positions in sales and marketing
with AT&T/Paradyne and Terminal Networks.
TODD C. DESISTO joined HarvardNET in December 1998 as Chief Financial
Officer and was also elected Treasurer. From October 1993 to December 1998, Mr.
DeSisto served as Vice President and Chief Financial Officer of Atlantic
Cellular Company, a wireless telecommunications provider. Prior to his tenure at
Atlantic Cellular Company, Mr. DeSisto served in various finance and related
positions, including senior management consultant with Deloitte & Touche and
Vice President of Tanner Capital Corporation, an investment banking firm
providing growth capital for early stage businesses.
ERIC D. PETERSON joined HarvardNET in January 1999 as Vice President of
Sales. From May 1996 to January 1999, Mr. Peterson served as Vice President of
Sales and Marketing for FaxNet. From April 1991 to May 1996, he held various
executive sales positions at Allnet Communications, most recently as National
Account Manager--Wholesale. He was previously Director of Sales at First Phone.
JAMES M. NEWMAN joined HarvardNET in January 1999 as Vice President of
Operations. From March 1991 to January 1999, Mr. Newman served as Northeast
Regional Director of Operations for MFS Communications/WorldCom. From April 1988
to March 1991 he was a Network Manager for Raytheon Corp.
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ROGER W. ACH III joined HarvardNET in June 1996 as Chief Technical Officer.
From January 1993 to May 1996, Mr. Ach served as a technical computing assistant
for the University of Chicago.
MELANIE HARATUNIAN joined HarvardNET in December 1998 as General Counsel and
Director of Regulatory Affairs and was also elected Secretary in February 1999.
From December 1993 to November 1998, Ms. Haratunian was a partner in the law
firm of Halprin, Temple, Goodman & Sugrue, specializing in domestic and
international telecommunications law, and was an associate at this firm from
April 1992 to December 1993. Prior to April 1992, Ms. Haratunian served as an
associate with the law firm of Ginsburg, Feldman & Bress and with the Federal
Communications Commission as a legal assistant to the Common Carrier Bureau
Chief and an Attorney-Advisor in the Policy and Program Planning Division.
JOSEPH BARTLETT joined HarvardNET in March 1999 as Director of Marketing.
From February 1997 to March 1999, Mr. Bartlett served as the Director of
Internet Market Strategies practice at The Yankee Group. From November 1994 to
February 1997, he was a management consultant for COBA--Boston, a consulting
company.
WILLIAM H. SOUTHWORTH founded HarvardNET in 1992 and has served as Chairman
of the Board of Directors since inception. Mr. Southworth served as President
and Chief Executive Officer of HarvardNET from November 1992 to February 1999.
Prior to founding HarvardNET, Mr. Southworth held various positions in the
electronics industry, including co-founding Cadmus Computer, serving as Vice
President of International Sales and Vice President of Engineering for Infoton
Inc., and serving in engineering and general management positions with Digital
Equipment Corporation, Data General Corporation, Massachusetts Institute of
Technology and Instrumentation Laboratory.
PETER H.O. CLAUDY has served as a Director of HarvardNET since September
1998. Since December 1997, Mr. Claudy has served as a general partner of
Media/Communications Partners III L.P. and since December 1998, he has served as
a general partner of M/C Venture Partners IV L.P., each of which is a
communications-focused private equity fund. From January 1994 to December 1997,
Mr. Claudy served as a Vice President of Media/Communications Partners, prior to
which he had served as an associate of this investment fund manager since August
1991. Mr. Claudy serves on the Board of Directors of McLeodUSA Inc., a publicly
traded integrated communications provider.
LEO J. ESPOSITO has served as a Director of HarvardNET since May 1999. Mr.
Esposito has served as a Senior Vice President of Fidelity Ventures
Telecommunications and Technology Group since July 1998. From April 1995 to June
1998, Mr. Esposito served as President of Fidelity Telecommunications Company.
From September 1988 to March 1995, Mr. Esposito served as a Vice President of
Goldman Sachs & Company, where he was the senior executive responsible for
global telecommunications network and trading technologies. Mr. Esposito
previously held various positions with IBM Corporation.
ROBERT C. KETTERSON has served as a Director of HarvardNET since September
1998. Mr. Ketterson has served as a Vice President of Fidelity Ventures
Telecommunications and Technology Group since July 1996. From September 1993 to
July 1996, Mr. Ketterson served as a principal of Fidelity Ventures. From
September 1990 to August 1993, Mr. Ketterson served as a manager in the
high-technology practice of The Boston Consulting Group, Inc.
JEFFREY OSBORN has served as a Director of HarvardNET since November 1997.
Mr. Osborn has served as the Principal of Osborn Capital LLC, an investment
company, since January 1999. From February 1997 to December 1998, Mr. Osborn
managed personal investments and participated as a member of the boards of
directors of several of his portfolio companies. From November 1993 to February
1997, Mr. Osborn served in a variety of sales positions with UUNET Technologies,
Inc., an Internet service provider, including Director of Sales and Marketing
and Vice President of Sales.
MATTHEW J. RUBINS has served as a Director of HarvardNET since September
1998. Since December 1998, Mr. Rubins has served as a Principal of M/C Venture
Partners, a communications-focused private equity firm. From July 1997 to
December 1998, Mr. Rubins served as a senior associate with Media/
Communications Partners, an investment firm and predecessor of M/C Venture
Partners. From August
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1996 to June 1997, Mr. Rubins served as an Assistant Vice President in the
telecommunications and data networking areas of the Deutsche Morgan Grenfell
Technology Group. From September 1995 to August 1996, Mr. Rubins served as an
Associate with Donaldson, Lufkin & Jenrette in the communications and high yield
groups from August 1995 to July 1996.
We intend to elect one additional independent director within 60 days after
the date of this prospectus to comply with the listing requirements of the
Nasdaq National Market.
BOARD OF DIRECTORS
The Board of Directors is currently fixed at seven members. Upon the
completion of this offering, we will divide the Board of Directors into three
classes: Class I, whose term will expire at the annual meeting of stockholders
to be held in 2000; Class II, whose term will expire at the annual meeting of
stockholders to be held in 2001; and Class III, whose term will expire at the
annual meeting of stockholders to be held in 2002. The Class I directors will be
Messrs. Esposito and Rubins, the Class II directors will be Messrs. Claudy,
Ketterson and Southworth, and the Class III directors will be Messrs. Washburn
and Osborn. At each annual meeting of stockholders after the initial
classification, the successors to directors whose term is then expiring will be
elected to serve from the time of election and qualification until the third
annual meeting following their election. This classification of the Board of
Directors may have the effect of delaying or preventing changes in control or
management of HarvardNET. Each officer serves at the discretion of the Board of
Directors. There are no family relationships among any of our directors.
COMPENSATION OF DIRECTORS. Directors currently do not receive any cash
compensation from HarvardNET for their services as members of the Board of
Directors, although we reimburse non-employee directors for reasonable
out-of-pocket expenses incurred in attending meetings of the Board of Directors.
We intend to grant stock options and other equity awards on an annual basis to
our non-employee directors from time to time pursuant to our 1999 Director Stock
Option Plan. We have not yet determined the amount and timing of such grants or
awards. No director who is an employee of HarvardNET receives separate
compensation for services rendered as a director.
BOARD COMMITTEES. The Board of Directors has established a compensation
committee and an audit committee. The compensation committee, which consists of
Messrs. Claudy, Ketterson and Osborn, reviews executive salaries, administers
our bonus, incentive compensation and stock options plans, and approves the
salaries and other benefits of our executive officers. In addition, the
compensation committee consults with our management regarding our pension and
other benefit plans and compensation policies and practices. The audit
committee, which consists of Messrs. Ketterson, Southworth and Rubins, reviews
the professional services provided by our independent accountants, the
independence of such accountants from our management, our annual financial
statements and our system of internal accounting controls. The audit committee
also reviews such other matters with respect to our accounting, auditing and
financial reporting practices and procedures as it may find appropriate or may
be brought to its attention.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
None of the members of the compensation committee is currently or has been,
at any time since the formation of HarvardNET, an officer or employee of
HarvardNET. No member of the compensation committee serves as a member of the
Board of Directors or compensation committee of any entity that has one or more
executive officers serving as a member of our Board of Directors or compensation
committee.
EXECUTIVE COMPENSATION
The following table sets forth, for the year ended December 31, 1998, the
cash compensation paid and shares underlying options granted to (1) our current
Chief Executive Officer, (2) our former Chief Executive Officer, (3) our current
Chief Financial Officer and Treasurer and (4) our other most highly
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compensated executive officer during fiscal 1998 who received annual
compensation during such year in excess of $100,000:
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION(1)
LONG-TERM COMPENSATION
------------------------ ------------------------------
NAME AND PRINCIPAL POSITION SALARY BONUS AWARDS
- ----------------------------------------------------------- ----------- ----------- ------------------------------
<S> <C> <C> <C>
RESTRICTED STOCK AWARDS
------------------------------
Mark M. Washburn, President and Chief Executive
Officer(1)............................................... $ 37,293 -- $ 2,422,575
William H. Southworth(2)................................... 123,868 $ 45,230 --
Todd C. DeSisto, Chief Financial Officer and
Treasurer(3)............................................. 10,400 -- 751,445
Brent Paine(4)............................................. 68,600 49,734 --
</TABLE>
- ------------------------
(1) Mark M. Washburn began his employment with us on September 29, 1998 as Chief
Operating Officer. Mr. Washburn became our President and Chief Executive
Officer on February 18, 1999. Mr. Washburn's current annual salary is
$220,000.
(2) William H. Southworth served as Chief Executive Officer during the fiscal
year ended December 31, 1998 and resigned as Chief Executive Officer
effective February 18, 1999. Mr. Southworth serves as Chairman of the Board
of Directors.
(3) Todd C. DeSisto became our Chief Financial Officer and Treasurer in December
1998. Mr. DeSisto's current annual salary is $200,000.
(4) Brent Paine resigned as President of HarvardNET on September 1, 1998.
STOCK OPTIONS AND FISCAL YEAR-END OPTION VALUES
None of the officers listed in the Summary Compensation Table was granted
options to purchase common stock in the year ended December 31, 1998, and none
of these officers has any options to purchase common stock.
EMPLOYMENT AND SEVERANCE AGREEMENTS
We have a severance and non-competition agreement with William H.
Southworth, our Chairman of the Board of Directors, which terminates on the
second anniversary of the date that Mr. Southworth ceases to be employed by us.
Under this agreement, in the event that Mr. Southworth is terminated for any
reason other than the commission or conviction of various crimes, a material
violation of any policy of HavardNET relating to ethical business conduct,
fiduciary duties or conflicts of interest, mental incompetence, any conduct that
would cause the suspension or revocation of any license, permit, authorization
or right material to HarvardNET, gross and habitual neglect of duty, prolonged
absence or material breach of this agreement, we will pay Mr. Southworth a
severance payment in the amount of $120,000. This severance payment is subject
to Mr. Southworth's compliance with the terms of this agreement. Mr. Southworth
has agreed not to compete with us during the term of this agreement.
We have an employment agreement with Mark M. Washburn, our President and
Chief Executive Officer. This agreement establishes a base salary, subject to
increase by the Board of Directors. Mr. Washburn's base salary is $220,000.
Under the agreement, Mr. Washburn is eligible for a bonus of up to $40,000 for
1999. Upon execution of his employment agreement, we issued Mr. Washburn
1,794,500 shares of Class B stock, at an aggregate purchase price of $1,794.50.
Of these shares, 358,890 shares are vested but can be repurchased by HarvardNET
if Mr. Washburn voluntarily terminates his employment prior to September 30,
1999; 478,540 shares vest on September 29, 1999; 478,540 shares vest on
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September 29, 2000 and 478,530 shares vest on September 29, 2001. We have the
right to repurchase the unvested shares if Mr. Washburn ceases to be employed by
us for any reason. Upon the completion of this offering, any unvested shares
will vest in full. Mr. Washburn has agreed not to compete with us during the
term of the agreement and for one year following the termination of his
employment. As long as he is not terminated for a breach of his fiduciary duty
to HarvardNET, commission of dishonest acts relating to HarvardNET, conviction
of various crimes, mental incompetence, failure to perform his duties, prolonged
absence or material breach of his employment agreement, we will pay Mr.
Washburn's salary in effect at the time of termination and his medical benefits
during this one-year non-competition period. However, if Mr. Washburn obtains
subsequent employment with a non-competing business during this period, any
amount we owe Mr. Washburn will be offset by Mr. Washburn's compensation from
his subsequent employment, and we will not be required to provide Mr. Washburn
with medical benefits if he is able to receive substantially similar benefits.
We have an employment agreement with Todd C. DeSisto, our Chief Financial
Officer and Treasurer. This agreement establishes a base salary, subject to
increase by the Board of Directors. Mr. DeSisto's base salary is $200,000. Under
the agreement, Mr. DeSisto is eligible for a bonus of up to $40,000 for 1999.
Upon execution of his employment agreement, we issued Mr. DeSisto 560,780 shares
of Class B stock, at an aggregate purchase price of $5,608. These shares vest in
four equal annual installments, and we have the right to repurchase the unvested
shares if Mr. DeSisto ceases to be employed by us for any reason. Upon the
completion of this offering, any unvested shares will vest in full. Mr. DeSisto
has agreed not to compete with us during the term of the agreement and for one
year following the termination of his employment. As long as he is not
terminated for a breach of his fiduciary duty to HarvardNET, commission of
dishonest acts relating to HarvardNET, conviction of various crimes, mental
incompetence, failure to perform his duties, prolonged absence or material
breach of his employment agreement, we will pay Mr. DeSisto's salary in effect
at the time of termination and his medical benefits during this one-year
non-competition period. However, if Mr. DeSisto obtains subsequent employment
with a non-competing business during this period, any amount we owe Mr. DeSisto
will be offset by Mr. DeSisto's compensation from his subsequent employment, and
we will not be required to provide Mr. DeSisto with medical benefits if he is
able to receive substantially similar benefits.
BENEFIT PLANS
1997 STOCK INCENTIVE PLAN
The 1997 Stock Incentive Plan provides for the grant of restricted stock and
other stock-based awards and stock options. A maximum of 600,000 shares of
common stock are authorized to be issued pursuant to the 1997 Stock Incentive
Plan. As of May 31, 1999, options to purchase an aggregate of 300,000 shares of
common stock at an exercise price of $0.84 were outstanding under the 1997 Stock
Incentive Plan. No additional grants will be made under the 1997 Stock Incentive
Plan.
1999 STOCK INCENTIVE PLAN
The 1999 Stock Incentive Plan provides for the grant of stock options,
restricted stock and other stock-based awards for up to a maximum of 1,550,000
shares of common stock. As of May 31, 1999, options to purchase an aggregate of
753,250 shares of common stock at a weighted average exercise price of $1.54
were outstanding under the 1999 Stock Incentive Plan. Our officers, employees,
directors, consultants and advisors are eligible to receive awards under the
1999 Stock Incentive Plan; however, incentive stock options may be granted only
to employees.
The 1999 Stock Incentive Plan is administered by the Board of Directors. The
Board of Directors has the authority to adopt, amend and repeal the
administrative rules, guidelines and practices relating to the plan and to
interpret its provisions. Under the terms of the 1999 Stock Incentive Plan, the
Board of Directors may delegate authority under the plan to one or more
committees of the Board of Directors and, subject to various limitations, to one
or more of our executive officers. Subject to any applicable limitations
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contained in the plan, the Board of Directors or any committee or executive
officer to whom the Board of Directors delegates authority, as the case may be,
selects the recipients of awards and determines:
- the number of shares of common stock covered by options and the dates upon
which such options become exercisable,
- the exercise price of options,
- the duration of options, and
- the number of shares of common stock subject to any restricted stock or
other stock-based awards and the terms and conditions of such awards,
including the conditions for repurchase, issue price and repurchase price.
In the event of a merger resulting in a change in control of HarvardNET, a
sale of substantially all of HavardNET's assets or the liquidation of
HarvardNET, the Board of Directors is authorized to provide for outstanding
options or other stock-based awards to be assumed or substituted for by the
acquiror. If the acquiror does not assume the options and awards, the Board of
Directors may provide that all unexercised options will become exercisable in
full prior to the completion of such event and that these options will terminate
upon the completion of the event if not previously exercised. In addition,
immediately prior to the consummation of such an event, each outstanding option
will become exercisable for one-half of the shares subject to each such option
with the remaining half vesting in accordance with the original vesting
schedule, and restrictions on one-half of each other outstanding stock-based
award will lapse.
1999 EMPLOYEE STOCK PURCHASE PLAN
The 1999 Employee Stock Purchase Plan is expected to be adopted by our Board
Directors and approved by our stockholders in June 1999, to be effective upon
the closing of this offering. The 1999 Employee Stock Purchase Plan provides for
the issuance of a maximum of shares of common stock. The 1999 Employee
Stock Purchase Plan will be administered by the compensation committee. With
some exceptions, all eligible employees, including directors and officers,
regularly employed by HarvardNET for at least one month on the applicable
offering commencement date are eligible to participate in the plan. We will make
one or more offerings to employees to purchase common stock under the 1999
Employee Stock Purchase Plan. During each offering, the maximum number of shares
which may be purchased by a participating employee is determined on the first
day of this offering period under a formula whereby 85% of the market value of a
share of common stock on the first day of this offering period is divided into
an amount equal to 10% of the employee's annualized compensation, or such lower
percentage as may be established by the compensation committee, for the
immediately preceding six-month period. An employee may elect to have up to 10%
deducted from his or her regular salary, or such lower percentage as may be
established by the compensation committee, for this purpose. The price at which
an employee's option is exercised is the lesser of the last reported sale on the
first or last business day of the offering period.
1999 DIRECTOR STOCK OPTION PLAN
The 1999 Director Stock Option Plan is expected to be adopted by our Board
of Directors and approved by our stockholders in June 1999. The 1999 Director
Stock Option Plan provides for the issuance of a maximum shares of common
stock to non-employee directors of HarvardNET. Under the 1999 Director Stock
Option Plan, HarvardNET will grant an option to purchase shares of common
stock to each non-employee director on the date on which the initial public
offering price of the common stock is determined with an exercise price equal to
the initial public offering price. In addition, HarvardNET will grant each new
non-employee director, upon election to the Board of Directors, an option to
purchase shares of common stock. HarvardNET will grant annual options to
purchase shares of common stock to each non-employee director on of
each year commencing in 2000.
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TRANSACTIONS WITH AFFILIATES
Since January 1, 1996, HarvardNET has engaged in the following transactions
with the following directors, executive officers and stockholders who
beneficially own more than 5% of the outstanding capital stock of HarvardNET,
and affiliates of such directors, officers and 5% stockholders.
On August 15, 1997, HarvardNET issued and sold an aggregate of 450,000
shares of its common stock at a purchase price of $.834 per share to five
individuals. Jeffrey Osborn, a director of HarvardNET, purchased 120,000 of
these shares.
On September 1, 1998, December 7, 1998 and March 23, 1999, HarvardNET issued
and sold an aggregate of 13,749,440 shares of its Series A convertible preferred
stock at a purchase price of $1.34551 per share to ten purchasers. FTT Ventures
Limited purchased an aggregate of 2,972,850 of these shares and Fidelity
Investors II Limited Partnership purchased an aggregate of 2,972,850 of these
shares. In addition, funds affiliated with M/C Partners purchased an aggregate
of 7,432,130 of these shares, and Jeffrey Osborn purchased an aggregate of
74,320 of these shares.
On September 1, 1998, HarvardNET redeemed 1,899,110 shares of common stock
for a purchase price of $1.34551 per share; 750,000 of these shares were jointly
held by William Southworth, Chairman of the Board of Directors of HarvardNET,
who was also then Chief Executive Officer, and his wife; and 1,149,110 of these
shares were held by Brent Paine, who was then President of HarvardNET.
HarvardNET believes that the securities issued in the transactions described
above were sold at their then fair market value and that the terms of the
transactions described above were no less favorable than HarvardNET could have
obtained from unaffiliated third parties.
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PRINCIPAL STOCKHOLDERS
The following table sets forth information regarding beneficial ownership of
our common stock as of May 31, 1999 and as adjusted to reflect the sale of the
shares in this offering and the conversion of all outstanding shares of
convertible preferred stock and Class B stock into shares of common stock held
by (1) each person whom we know to own beneficially more than 5% of the
outstanding shares of common stock, (2) each of our directors, (3) each of our
executive officers named in the Summary Compensation Table under
"Management--Executive Compensation," and (4) all our directors and executive
officers as a group. Unless otherwise indicated, the address for each listed
stockholder is: c/o HarvardNET Inc., 500 Rutherford Avenue, Boston,
Massachusetts 02129. The persons named in the table have sole voting and
investment power with respect to all shares of common stock shown as
beneficially owned by them, subject to community property laws where applicable
and the information contained in this table and the notes that follow.
<TABLE>
<CAPTION>
% OF TOTAL
----------------------------------
<S> <C> <C> <C>
SHARES
BENEFICIALLY BEFORE AFTER OFFERING
NAME OWNED(1) OFFERING (2)
- --------------------------------------------------------------------------- ------------ ----------- ---------------------
Media/Communications Partners (1).......................................... 7,423,130 35.5% %
75 State Street
Boston, MA 02110
Fidelity Investors II Limited Partnership.................................. 2,972,850 14.2%
82 Devonshire Street
Boston, MA 02109
FTT Ventures Limited....................................................... 2,972,850 14.2%
82 Devonshire Street
Boston, MA 02109
William H. Southworth (2).................................................. 1,893,706 9.0%
Mark M. Washburn........................................................... 1,794,500 8.6%
Morgan Stanley Senior Funding, Inc. (3).................................... 1,278,011 5.9%
1585 Broadway
New York, NY 10036
Todd C. DeSisto............................................................ 560,780 2.6%
Brent Paine................................................................ 202,780 *
Peter H.O. Claudy (4)...................................................... 6,806,587 32.5%
Leo J. Esposito............................................................ -- --
Robert C. Ketterson (5).................................................... 2,972,850 14.2%
Jeffrey Osborn............................................................. 194,320 *
Matthew J. Rubins.......................................................... -- --
All executive officers and directors as a group (13 people) (6)............ 13,111,817 61.7%
</TABLE>
- ------------------------
* Less than 1% of the outstanding common stock.
(1) Consists of shares beneficially owned by Media/Communications Partners III
L.P., M/C Venture Partners IV, L.P., M/C Investors LLC and Chestnut Street
Partners, Inc. The address for the M/C entities is 75 State Street, Boston,
MA 02110.
(2) Consists of shares held jointly by Mr. Southworth and Barbara Southworth,
his wife.
(3) Includes 565,423 shares issuable upon the exercise of warrants within 60
days of May 31, 1999.
(4) Consists of shares beneficially owned by Media/Communications Partners III
L.P. and M/C Venture Partners IV, L.P. Mr. Claudy is a Manager of M/C III
L.L.C., which is the General Partner of Media/
55
<PAGE>
Communications Partners III L.P. Mr. Claudy is also a Manager of M/C VP IV
LLC, which is the General Partner of M/C Venture Partners IV L.P. Mr. Claudy
may be considered the beneficial owner of these shares. Mr. Claudy disclaims
beneficial ownership of these shares, except as to his direct pecuniary
interest in such shares.
(5) Consists of shares beneficially owned by FTT Ventures Limited. Mr. Ketterson
is an executive officer and director of FTT Ventures Limited and may be
considered the beneficial owner of these shares. Mr. Ketterson disclaims
beneficial ownership of these shares, except as to his direct pecuniary
interest in such shares.
(6) Includes 300,000 shares issuable upon the exercise of options exercisable
within 60 days of May 31, 1999.
56
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Effective upon the closing of this offering, our authorized capital stock
will consist of shares of common stock, $.01 par value per share, and
shares of preferred stock, $.01 par value per share. We also have issued
the warrants described below.
The following summary describes the material terms of our capital stock as
of the closing this offering. However, you should refer to the actual terms of
the capital stock contained in our restated certificate of incorporation and
other agreements referenced below which are filed as exhibits to the
registration statement of which this prospectus is part. The following summary
gives effect to the conversion of all outstanding shares of convertible
preferred stock and Class B stock into common stock upon the completion of this
offering.
COMMON STOCK
As of May 31, 1999, there were 3,896,291 shares of common stock outstanding
held by 14 stockholders of record. Based upon the number of shares outstanding
as of May 31, 1999, and giving effect to the conversion of shares of Class B
stock and preferred stock outstanding as of that date into an aggregate of
shares of common stock upon the closing of this offering and to the issuance of
the shares of common stock offered by us in this offering, there will be
shares of common stock outstanding upon the closing of this offering. In
addition, as of May 31, 1999, there were outstanding stock options for the
purchase of a total of 1,059,250 shares of common stock at a weighted average
exercise price of $1.34 per share.
Holders of common stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Directors are elected by a plurality of the votes of the shares present
in person or by proxy at the meeting and entitled to vote in such election.
Holders of common stock are entitled to receive ratably such dividends, if any,
as may be declared by the Board of Directors out of funds legally available
therefor, subject to any preferential dividend rights of outstanding preferred
stock. Upon the liquidation, dissolution or winding up of HarvardNET, the
holders of common stock are entitled to receive ratably our net assets available
after the payment of all our debts and other liabilities, subject to the prior
rights of any outstanding preferred stock. Holders of the common stock have no
preemptive, subscription, redemption or conversion rights, nor are they entitled
to the benefit of any sinking fund. The outstanding shares of common stock are,
and the shares offered by us in this offering will be, when issued and paid for,
validly issued, fully paid and nonassessable. The rights, powers, preferences
and privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of preferred
stock which we may designate and issue in the future.
WARRANTS
As of May 31, 1999, a total of 634,163 shares of common stock were issuable
upon the exercise of outstanding warrants at a weighted average exercise price
of $4.52 per share. These warrants will remain outstanding after the closing of
this offering. These warrants contain a cashless exercise feature which could
result in the issuance of shares of common stock with no additional proceeds to
HarvardNET.
PREFERRED STOCK
Following the closing of this offering, our Board of Directors will be
authorized, subject to any limitations prescribed by law, without further
stockholder approval, to issue from time to time up to an aggregate of
shares of preferred stock, in one or more series. Each series of preferred stock
will have the number of shares, designations, preferences, voting powers,
qualifications and special or relative rights or privileges as are determined by
the Board of Directors, which may include, among others,
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<PAGE>
dividend rights, voting rights, redemption provisions, liquidation preferences,
conversion rights and preemptive rights.
Our stockholders have granted our Board of Directors authority to issue the
preferred stock and to determine its rights and preferences in order to
eliminate delays associated with a stockholder vote on specific issuances. The
rights of the holders of common stock will be subject to the rights of holders
of any preferred stock issued in the future. The issuance of preferred stock,
while providing desirable flexibility in connection with possible acquisitions
and other corporate purposes, could adversely affect the voting power or other
rights of the holders of common stock, and could make it more difficult for a
third party to acquire, or discourage a third party from attempting to acquire,
a majority of our outstanding voting stock.
DELAWARE LAW AND CHARTER AND BY-LAW PROVISIONS; ANTI-TAKEOVER EFFECTS
We are subject to the provisions of Section 203 of the General Corporation
Law of Delaware. Section 203 prohibits a publicly-held Delaware corporation from
engaging in a business combination involving an interested stockholder (defined
as any person or entity that is the beneficial owner of at least 15% of a
corporation's voting stock or is an affiliate of the corporation or the owner of
15% or more of the outstanding voting stock of the corporation at any time in
the past three years) or their affiliates for a period of three years after the
date of the transaction in which the person became an interested stockholder.
Effective upon the closing of this offering, our restated certificate of
incorporation and restated by-laws will provide for the division of the Board of
Directors into three classes, as nearly equal in size as possible, with
staggered three-year terms. In addition, our restated certificate of
incorporation and restated by-laws will provide that directors may be removed
only for cause by the affirmative vote of the holders of at least 75% of the
shares of our capital stock entitled to vote. Under our restated certificate of
incorporation and restated by-laws any vacancy on the Board of Directors,
however occurring, including a vacancy resulting from an enlargement of the
Board, will only be filled by vote of a majority of the directors then in
office. The classification of the Board of Directors and the limitations on the
removal of directors and filling of vacancies could have the effect of making it
more difficult for a third party to acquire, or of discouraging a third party
from acquiring, control.
Our restated certificate of incorporation and restated by-laws will also
provide that, after the closing of this offering, any action required or
permitted to be taken by our stockholders at an annual meeting or special
meeting of stockholders may only be taken if it is properly brought before such
meeting and may not be taken by written action in lieu of a meeting. The
restated certificate of incorporation and restated by-laws will further provide
that special meetings of the stockholders may only be called by our Chairman of
the Board of Directors, the President or by the Board of Directors. Under the
restated by-laws, in order for any matter to be considered properly brought
before a meeting, a stockholder will have to comply with various requirements
regarding advance notice to us. The foregoing provisions could have the effect
of delaying until the next stockholders' meeting stockholder actions which are
favored by the holders of a majority of our outstanding voting securities. These
provisions may also discourage another person or entity from making a tender
offer for our common stock, because such person or entity, even if it acquired a
majority of our outstanding voting securities, would be able to take action as a
stockholder (such as electing new directors or approving a merger) only at a
duly called stockholders meeting, and not by written consent.
The General Corporation Law of Delaware provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation or by-laws,
unless a corporation's certificate of incorporation or by-laws, as the case may
be, requires a greater percentage. Effective upon the closing of this offering,
our restated certificate of incorporation will require the affirmative vote of
the holders of at least 75% of the shares of our capital stock issued and
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<PAGE>
outstanding and entitled to vote to amend or repeal any of the foregoing
restated certificate of incorporation provisions. The restated by-laws will also
require a majority vote of the Board of Directors or the holders of a majority
of the shares of our capital stock issued and outstanding and entitled to vote
to amend or repeal any of its provisions, subject to any limitations set forth
in the restated by-laws. The stockholder vote would be in addition to any
separate class vote that might in the future be required pursuant to the terms
of any series preferred stock that might be outstanding at the time any such
amendments are submitted to stockholders.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Our restated certificate of incorporation provides that we will indemnify
our directors and officers to the fullest extent authorized by Delaware law, as
it now exists or may in the future be amended, against all expenses and
liabilities reasonably incurred in connection with the service for us or on our
behalf. The restated certificate of incorporation further provides that our
directors will not be personally liable for monetary damages to HarvardNET for
breaches of their fiduciary duty as directors, unless they violated their duty
of loyalty to us or our stockholders, acted in bad faith, knowingly or
intentionally violated the law, authorized illegal dividends or redemptions or
derived an improper personal benefit from their action as directors. In
addition, HarvardNET plans to enter into indemnification agreements with its
directors containing provisions which may require HarvardNET, among other
things, to indemnify its directors against liabilities that may arise by virtue
of their status or service as directors, and to advance their expenses incurred
as a result of any proceeding against them as to which they could be
indemnified.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is .
59
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, we will have shares of common stock
outstanding ( shares if the U.S. underwriters exercise their over-allotment
option in full), assuming no exercise of outstanding options or warrants. Of
these shares, the shares ( shares if the over-allotment option is
exercised in full) to be sold in this offering will be freely tradable without
restriction or further registration under the Securities Act of 1933, as
amended, except that any shares purchased by our affiliates, as that term is
defined in Rule 144 under the Securities Act, may generally only be sold in
compliance with the limitations of Rule 144 described below.
SALES OF RESTRICTED SHARES
The remaining shares of common stock outstanding upon completion of
this offering are deemed "restricted securities" under Rule 144 or Rule 701
under the Securities Act. Subject to the lock-up agreements described below,
approximately of these restricted shares will be eligible for sale in the
public market under Rule 144(k) on the date of this prospectus. Upon expiration
of lock-up agreements, 180 days after the date of this prospectus, an additional
shares of common stock will be eligible for sale in the public market
under Rule 144 under the Securities Act.
In general, under Rule 144, a person (or persons whose shares are
aggregated), including an affiliate of HarvardNET, who has beneficially owned
restricted shares for at least one year is entitled to sell, within any
three-month period, a number of such shares that does not exceed the greater of,
- one percent of the then outstanding shares of common stock, which will
equal approximately shares immediately after this offering; or
- the average weekly trading volume in the common stock on the Nasdaq
National Market during the four calendar weeks preceding the date on which
notice of such sale is filed.
Sales under Rule 144 are also subject to requirements concerning
availability of public information, manner of sale and notice of sale. In
addition, affiliates of HarvardNET must comply with the restrictions and
requirements of Rule 144, other than the one-year holding period requirement, in
order to sell shares of common stock which are not restricted securities. Under
Rule 144(k), a person who is not an affiliate of HarvardNET and has not been an
affiliate of HarvardNET for at least three months prior to the sale and who has
beneficially owned restricted shares for at least two years may resell such
shares without compliance with the foregoing requirements. In meeting the one-
and two-year holding periods described above, a holder of restricted shares can
include the holding periods of a prior owner who was not an affiliate of
HarvardNET. The one- and two-year holding periods described above do not begin
to run until the full purchase price or other consideration is paid by the
person acquiring the restricted shares from the issuer or an affiliate of
HarvardNET.
Rule 701 provides that currently outstanding shares of common stock acquired
under our employee compensation plans may be resold beginning 90 days after the
date of this prospectus by persons, other than affiliates of HarvardNET, subject
only to the manner of sale provisions of Rule 144, and by affiliates of
HarvardNET under Rule 144 without compliance with its one-year minimum holding
period, subject to limitations.
OPTIONS
Rule 701 also provides that the shares of common stock acquired upon the
exercise of currently outstanding options or pursuant to other rights granted
under our 1997 Stock Incentive Plan or our 1999 Stock Incentive Plan may be
resold beginning 90 days after the date of this prospectus
- by persons, other than affiliates of HarvardNET, subject only to the
manner of sale provisions of Rule 144; and
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<PAGE>
- by affiliates of HarvardNET under Rule 144, without compliance with its
one-year minimum holding period, subject to limitations.
At May 31, 1999, 300,000 shares of common stock were issuable upon exercise
of vested options under our 1997 Stock Incentive Plan. All of these shares are
subject to lock-up agreements with the underwriters. None of the options granted
under the 1999 Stock Incentive Plan had vested as of May 31, 1999.
We intend to file one or more registration statements on Form S-8 under the
Securities Act following the date of this prospectus, to register up to
shares of common stock subject to outstanding stock options or other rights
granted under our 1997 Stock Incentive Plan, 1999 Stock Incentive Plan, 1999
Director Stock Option Plan and 1999 Employee Stock Purchase Plan. These
registration statements are expected to become effective upon filing. Subject to
lock-up agreements with the underwriters, vested options covered by these
registration statements will be eligible for sale in the public market upon the
exercise of underlying options to the extent not previously sold pursuant to
Rule 701.
LOCK-UP AGREEMENTS
HarvardNET and its executive officers, directors and specified
securityholders have agreed that, without the prior written consent of Morgan
Stanley & Co. Incorporated, that they will not during the period ending 180 days
after the date of this prospectus, (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of common stock or
any securities convertible into or exercisable or exchangeable for common stock
(regardless of whether such shares or any such securities are then owned by such
person or are thereafter acquired), or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the common stock, regardless of whether any such
transactions described in clause (1) or (2) of this paragraph are to be settled
by delivery of such common stock or such other securities, in cash or otherwise.
In addition, stockholders that are parties to a registration rights agreement
with HarvardNET have agreed not to engage in any of the transactions described
in clause (1) or (2) of this paragraph for a period of 180 days from the date of
this prospectus. HarvardNET has agreed not to waive these restrictions without
the consent of Morgan Stanley & Co. Incorporated.
REGISTRATION RIGHTS
We and some of our stockholders holding an aggregate of shares are
parties to a registration rights agreement. Under the terms of this agreement,
these stockholders are entitled to demand that HarvardNET register their shares
under the Securities Act after the closing of this offering. We are not required
to effect a registration within six months after the closing of this offering.
We are generally required to bear all of the expenses of all registrations,
other than underwriting discounts and commissions. Registration of any of the
shares of common stock would result in such shares becoming freely tradable
without restriction under the Securities Act upon effectiveness of the
registration statement.
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<PAGE>
UNITED STATES FEDERAL TAX CONSEQUENCES
TO NON-U.S. HOLDERS OF COMMON STOCK
GENERAL
The following is a general discussion of the material United States federal
income and estate tax consequences of the ownership and disposition of our
common stock that may be relevant to you if you are a "non-U.S. holder." For
purposes of this summary, a non-U.S. holder is a beneficial owner of our common
stock that is, for United States federal income tax purposes, (1) a nonresident
alien individual, (2) a foreign corporation, (3) a foreign estate or trust or
(4) a foreign partnership.
This discussion does not address all aspects of United States federal income
and estate taxation that may be relevant to you in light of your particular
circumstances, and does not address any foreign, state or local tax
consequences. Furthermore, this discussion is based on provisions of the
Internal Revenue Code, Treasury regulations and administrative and judicial
interpretations as of the date hereof. All of these are subject to change,
possibly with retroactive effect, or different interpretations. If you are
considering buying our common stock, you should consult your own tax advisor
about current and possible future tax consequences of holding and disposing of
our common stock in your particular situation.
DISTRIBUTIONS
As noted elsewhere in this prospectus, we do not intend to pay dividends. In
the event that we change this policy and declare dividends on our common stock,
any such dividends paid to a non-U.S. holder that are not effectively connected
with a United States trade or business of the non-U.S. holder or, if a tax
treaty applies, are not attributable to a United States permanent establishment
or fixed base of the non-U.S. holder, will, to the extent paid out of earnings
and profits, be subject to United States withholding tax at a 30 percent rate
or, if a tax treaty applies, a lower rate specified by the treaty. To receive a
reduced treaty rate, a non-U.S. holder must furnish to us or our paying agent a
duly completed Form 1001 or Form W-8BEN, or substitute form, certifying to its
qualification for such rate.
Dividends that are effectively connected with the conduct of a trade or
business within the United States of a non-U.S. holder and, if a tax treaty
applies, are attributable to a United States permanent establishment or fixed
base of the non-U.S. holder, are exempt from United States federal withholding
tax, provided that the non-U.S. holder furnishes to us or our paying agent a
duly completed Form 4224 or Form W-8ECI, or substitute form, certifying the
exemption. However, dividends exempt from United States withholding because they
are effectively connected or they are attributable to a United States permanent
establishment or fixed base are subject to United States federal income tax on a
net income basis at the regular graduated United States federal income tax
rates. Any such effectively connected dividends received by a foreign
corporation may, under some circumstances, be subject to an additional "branch
profits tax" at a 30 percent rate or a lower rate specified by an applicable
income tax treaty.
Under current United States Treasury regulations, dividends paid before
January 1, 2001 to an address outside the United States are presumed to be paid
to a resident of the country of address for purposes of the withholding
discussed above and for purposes of determining the applicability of a tax
treaty rate. However, United States Treasury regulations applicable to dividends
paid after December 31, 2000 eliminate this presumption, subject to various
transition rules.
For dividends paid after December 31, 2000, a non-U.S. holder generally will
be subject to United States backup withholding tax at a 31 percent rate under
the backup withholding rules described below, rather than at a 30 percent rate
or a reduced rate under an income tax treaty, as described above, unless the
non-U.S. holder complies with certain Internal Revenue Service certification
procedures or, in the case of payments made outside the United States with
respect to an offshore account, certain IRS documentary evidence procedures.
Further, to claim the benefit of a reduced rate of withholding under a tax
treaty for dividends paid after December 31, 2000, a non-U.S. holder must comply
with certain modified IRS
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certification requirements. Special rules also apply to dividend payments made
after December 31, 2000 to foreign intermediaries, United States or foreign
wholly owned entities that are disregarded for United States federal income tax
purposes and entities that are treated as fiscally transparent in the United
States, the applicable income tax treaty jurisdiction, or both. You should
consult your own tax advisor concerning the effect, if any, of the rules
affecting post-December 31, 2000 dividends on your possible investment in our
common stock.
A non-U.S. holder may obtain a refund of any excess amounts withheld by
filing an appropriate claim for refund along with the required information with
the IRS.
GAIN ON DISPOSITION OF COMMON STOCK
A non-U.S. holder generally will not be subject to United States federal
income tax with respect to gain recognized on a sale or other disposition of our
common stock unless one of the following applies:
- The gain is effectively connected with a trade or business of the non-U.S.
holder in the United States and, if a tax treaty applies, the gain is
attributable to a United States permanent establishment or fixed base
maintained by the non-U.S. holder. In this case, the non-U.S. holder will,
unless an applicable treaty provides otherwise, be taxed on its net gain
derived from the sale at regular graduated United States federal income
tax rates. If the non-U.S. holder is a foreign corporation, it may be
subject to an additional branch profits tax equal to 30 percent of its
effectively connected earnings and profits within the meaning of the
Internal Revenue Code for the taxable year, as adjusted for certain items,
unless it qualifies for a lower rate under an applicable income tax treaty
and duly demonstrates such qualification.
- The non-U.S. holder is an individual, holds our common stock as a capital
asset, is present in the United States for 183 or more days in the taxable
year of the disposition, and certain other conditions are met. In this
case, the non-United States holder will be subject to a flat 30 percent
tax on the gain derived from the sale, which may be offset by certain
United States capital losses.
- We are or have been a "United States real property holding corporation"
for United States federal income tax purposes at any time during the
shorter of the five-year period ending on the date of the disposition or
the period during which the non-U.S. holder held our common stock. We
believe that we never have been and are not currently a United States real
property holding corporation for United States federal income tax
purposes. Although we consider it unlikely based on our current business
plans and operations, we may become a United States real property holding
corporation in the future. Even if we were to become a United States real
property holding corporation, any gain realized by a non-U.S. holder would
not be subject to United States federal income tax as described in this
paragraph if our common stock were considered to be "regularly traded on
an established securities market" and the non-U.S. holder did not own,
actually or constructively, at any time during the shorter of the periods
described above, more than five percent of our common stock.
FEDERAL ESTATE TAX
Common stock owned or treated as owned by an individual non-U.S. holder at
the time of death, or common stock as to which the non-U.S. holder made certain
lifetime transfers, will be included in such holder's gross estate for United
States federal estate tax purposes, unless an applicable estate tax treaty
provides otherwise.
INFORMATION REPORTING AND BACKUP WITHHOLDING TAX
Under United States Treasury regulations, we must report annually to the IRS
and to each non-U.S. holder the amount of dividends paid to such holder and the
tax withheld with respect to such dividends. These information reporting
requirements apply even if withholding was not required because the
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dividends were effectively connected dividends or withholding was reduced by an
applicable income tax treaty. Pursuant to an applicable tax treaty, information
may also be made available to the tax authorities in the country in which the
non-U.S. holder resides.
United States federal backup withholding generally is a withholding tax
imposed at the rate of 31 percent on certain payments to persons that fail to
furnish certain required information. Backup withholding generally will not
apply to dividends paid before January 1, 2001 to non-U.S. holders. See the
discussion under "Distributions" above for rules regarding reporting
requirements to avoid backup withholding on dividends paid after December 31,
2000.
As a general matter, information reporting and backup withholding will not
apply to a payment by or through a foreign office of a foreign broker of the
proceeds of a sale of our common stock effected outside the United States.
However, information reporting requirements, but not backup withholding, will
apply to a payment by or through a foreign office of a broker of the proceeds of
a sale of our common stock effected outside the United States if that broker:
- is a United States person for United States federal income tax purposes,
- is a foreign person that derives 50 percent or more of its gross income
for certain periods from the conduct of a trade or business in the United
States,
- is a "controlled foreign corporation" as defined in the Internal Revenue
Code, or
- is a foreign partnership with certain United States connections (for
payments made after December 31, 2000).
Information reporting requirements will not apply in the above cases if the
broker has documentary evidence in its records that the holder is a non-U.S.
holder and certain conditions are met or the holder otherwise establishes an
exemption.
Payment by or through a United States office of a broker of the proceeds of
a sale of our common stock is subject to both backup withholding and information
reporting unless the holder certifies to the payor as to its status as a
non-U.S. holder on a duly completed Form W-8BEN, or substitute form, under
penalties of perjury or otherwise establishes an exemption.
Amounts withheld under the backup withholding rules do not constitute a
separate United States federal income tax. Rather, any amounts withheld under
the backup withholding rules will be refunded or allowed as a credit against the
holder's United States federal income tax liability, if any, provided the
required information or appropriate claim for refund is filed with the IRS.
THE FOREGOING DISCUSSION IS A SUMMARY OF CERTAIN UNITED STATES FEDERAL
INCOME AND ESTATE TAX CONSEQUENCES OF THE OWNERSHIP, SALE OR OTHER DISPOSITION
OF OUR COMMON STOCK BY NON-U.S. HOLDERS. YOU ARE URGED TO CONSULT YOUR OWN TAX
ADVISOR WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES TO YOU OF OWNERSHIP AND
DISPOSITION OF OUR COMMON STOCK, INCLUDING THE EFFECT OF ANY STATE, LOCAL,
FOREIGN OR OTHER TAX LAWS.
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UNDERWRITERS
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated the date of this prospectus, the U.S. underwriters named below,
for whom Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Salomon Smith Barney Inc. are acting as U.S.
representatives, and the international underwriters named below for whom Morgan
Stanley & Co. International Limited, Merrill Lynch International and Salomon
Brothers International Limited are acting as international representatives, have
severally agreed to purchase, and we have agreed to sell to them, severally, the
respective number of shares of common stock set forth opposite the names of such
underwriters below:
<TABLE>
<CAPTION>
NUMBER
NAME OF SHARES
- ------------------------------------------------------------------------------------------------------- -----------------
<S> <C>
U.S. Underwriters:
Morgan Stanley & Co. Incorporated......................................................................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.................................................................................
Salomon Smith Barney Inc...............................................................................
-
Subtotal...............................................................................................
-
International Underwriters:
Morgan Stanley & Co. International Limited.............................................................
Merrill Lynch International............................................................................
Salomon Brothers International Limited.................................................................
-
Subtotal...............................................................................................
-
Total................................................................................................
-
-
</TABLE>
The U.S. underwriters and the international underwriters are collectively
referred to as the underwriters, and the U.S. representatives and the
international representatives are collectively referred to as the
representatives. The underwriters are offering the shares of common stock
subject to their acceptance of the shares from us and subject to prior sale. The
underwriting agreement provides that the obligations of the several underwriters
to pay for and accept delivery of the shares of common stock offered hereby are
subject to the approval of various legal matters by their counsel and to several
other conditions. The underwriters are obligated to take and pay for all of the
shares of common stock offered hereby, other than those covered by the U.S.
underwriters' over-allotment option described below, if any such shares are
taken.
Under the agreement between U.S. and international underwriters, each U.S.
underwriter has represented and agreed that, with some exceptions:
- it is not purchasing any shares for the account of anyone other than a
United States or Canadian person; and
65
<PAGE>
- it has not offered or sold, and will not offer or sell, directly or
indirectly, any shares or distribute any prospectus relating to the shares
outside the United States or Canada or to anyone other than a United
States or Canadian person.
Under the agreement between U.S. and international underwriters, each
international underwriter has represented and agreed that, with some exceptions:
- it is not purchasing any shares for the account of any United States or
Canadian person; and
- it has not offered or sold, and will not offer or sell, directly or
indirectly, any shares or distribute any prospectus relating to the shares
in the United States or Canada or to any United States or Canadian person.
With respect to any underwriter that is a U.S. underwriter and an
international underwriter, the foregoing representations and agreements made by
it in its capacity as a U.S. underwriter apply only to it in its capacity as a
U.S. underwriter and made by it in its capacity as an international underwriter
apply only to it in its capacity as an international underwriter. The foregoing
limitations do not apply to stabilization transactions or to other transactions
specified in the agreement between U.S. and international underwriters. As used
herein, "United States or Canadian person" means any national or resident of the
United States or Canada, or any corporation, pension, profit-sharing or other
trust or other entity organized under the laws of the United States or Canada or
of any political subdivision thereof, other than a branch located outside the
United States and Canada of any United States or Canadian person, and includes
any United States or Canadian branch of a person who is otherwise not a United
States or Canadian person.
Under the agreement between U.S. and international underwriters, sales may
be made between the U.S. underwriters and international underwriters of any
number of shares as may be mutually agreed. The per share price of any shares
sold shall be the public offering price set forth on the cover page hereof, in
United States dollars, less an amount not greater than the per share amount of
the concession to dealers set forth below.
Under the agreement between U.S. and international underwriters, each U.S.
underwriter has represented that it has not offered or sold, and has agreed not
to offer or sell, any shares, directly or indirectly, in any province or
territory of Canada or to, or for the benefit of, any resident of any province
or territory of Canada in contravention of the securities laws thereof and has
represented that any offer or sale of shares in Canada will be made only
pursuant to an exemption from the requirement to file a prospectus in the
province or territory of Canada in which such offer or sale is made. Each U.S.
underwriter has further agreed to send to any dealer who purchases from it any
of the shares a notice stating in substance that, by purchasing such shares,
such dealer represents and agrees that it has not offered or sold, and will not
offer or sell, directly or indirectly, any of such shares in any province or
territory of Canada or to, or for the benefit of, any resident of any province
or territory of Canada in contravention of the securities laws thereof and that
any offer or sale of shares in Canada will be made only pursuant to an exemption
from the requirement to file a prospectus in the province or territory of Canada
in which such offer or sale is made, and that such dealer will deliver to any
other dealer to whom it sells any of such shares a notice containing
substantially the same statement as is contained in this sentence.
Under the agreement between U.S. and international underwriters, each
international underwriter has represented and agreed that:
- it has not offered or sold and, prior to the date six months after the
closing date for the sale of the shares to the international underwriters,
will not offer or sell, any shares to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments as principal or agent for the
purposes of their businesses or otherwise in
66
<PAGE>
circumstances which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the Public Offers
of Securities Regulations 1995;
- it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in
relation to the shares in, from or otherwise involving the United Kingdom;
and
- it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the offering
of the shares to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996, as amended, or is a person to whom such document may otherwise
lawfully be issued or passed on.
Under the agreement between U.S. and international underwriters, each
international underwriter has further represented that it has not offered or
sold, and has agreed not to offer or sell, directly or indirectly, in Japan or
to or for the account of any resident thereof, any of the shares acquired in
connection with the distribution contemplated hereby, except for offers or sales
to Japanese international underwriters or dealers and except pursuant to any
exemption from the registration requirements of the Securities and Exchange Law
and otherwise in compliance with applicable provisions of Japanese law. Each
international underwriter has further agreed to send to any dealer who purchases
from it any of the shares a notice stating in substance that, by purchasing such
shares, such dealer represents and agrees that it has not offered or sold, and
will not offer or sell, any of such shares, directly or indirectly, in Japan or
to or for the account of any resident thereof except for offers or sales to
Japanese international underwriters or dealers and except pursuant to any
exemption from the registration requirements of the Securities and Exchange Law
and otherwise in compliance with applicable provisions of Japanese law, and that
such dealer will send to any other dealer to whom it sells any of such shares a
notice containing substantially the same statement as is contained in this
sentence.
The underwriters initially propose to offer part of the shares of common
stock directly to the public at the public offering price set forth on the cover
page hereof and part to various dealers at a price that represents a concession
not in excess of $ a share under the public offering price. Any
underwriter may allow, and such dealers may reallow, a concession not in excess
of $ a share to other underwriters or to various dealers. After the
initial offering of the shares of common stock, the offering price and other
selling terms may from time to time be varied by the representatives.
HarvardNET has granted to the U.S. underwriters an option, exercisable for
30 days from the date of this prospectus, to purchase up to an aggregate of
additional shares of common stock at the public offering price set forth on the
cover page hereof, less underwriting discounts and commissions. The U.S.
underwriters may exercise such option solely for the purpose of covering
over-allotments, if any, made in connection with the offering of the shares of
common stock offered hereby. To the extent such option is exercised, each U.S.
underwriter will become obligated, subject to specified conditions, to purchase
approximately the same percentage of such additional shares of common stock as
the number set forth next to such U.S. underwriter's name in the preceding table
bears to the total number of shares of common stock set forth next to the names
of all U.S. underwriters in the preceding table. If the U.S. underwriters'
option is exercised in full, the total price to the public would be $
, the total underwriters' discounts and commissions would be $ and
total proceeds to HarvardNET would be $ .
The underwriters have informed HarvardNET that they do not intend sales to
discretionary accounts to exceed five percent of the total number of shares of
common stock offered by them.
At the request of HarvardNET, the underwriters will reserve up to
shares of common stock to be issued by HarvardNET and offered hereby
for sale, at the initial offering price, to directors, officers, employees and
associates. This directed share program will be administered by Morgan Stanley &
67
<PAGE>
Co. Incorporated. The number of shares of common stock available for sale to the
general public will be reduced to the extent such persons purchase such reserved
shares. Any reserved shares which are not so purchased will be offered by the
underwriters to the general public on the same basis as the other shares offered
hereby.
Affiliates of Morgan Stanley & Co. Incorporated beneficially own more than
10% of the Company's common stock. Under the provisions of Rule 2720 of the
Conduct rules of the National Association of Securities Dealers ("Rule 2720"),
when an NASD member such as Morgan Stanley & Co. Incorporated distributes
securities of a company in which one of its affiliates owns more than 10% of the
Company's common stock, the public offering price of the securities can be no
higher than that recommended by the "qualified independent underwriter," as such
term is defined in Rule 2720. In accordance with such requirements, has
agreed to serve as a "qualified independent underwriter" and has conducted due
diligence and has recommended a maximum price for the common stock.
Application has been made for quotation of the common stock on the Nasdaq
National Market under the symbol "HNET".
Each of HarvardNET and the directors, executive officers and some
stockholders of HarvardNET has agreed that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the underwriters, it will not,
during the period ending 180 days after the date of this prospectus:
- offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase, lend or otherwise transfer or dispose of, directly
or indirectly, any shares of common stock or any securities convertible
into or exercisable or exchangeable for common stock; or
- enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the
common stock,
whether any such transaction described above is to be settled by delivery of
common stock or such other securities, in cash or otherwise.
The restrictions described in the previous paragraph do not apply to:
- the sale of shares to the underwriters;
- the issuance by HarvardNET of shares of common stock upon the exercise of
an option or a warrant or the conversion of a security outstanding on the
date of this prospectus of which the underwriters have been advised in
writing; or
- transactions by any person other than HarvardNET relating to shares of
common stock or other securities acquired in open market transactions
after the completion of the offering.
In order to facilitate the offering, the underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
common stock. Specifically, the underwriters may over-allot in connection with
the offering, creating a short position in the common stock for their own
account. In addition, to cover over-allotments or to stabilize the price of the
common stock, the underwriters may bid for, and purchase, shares of common stock
in the open market. Finally, the underwriting syndicate may reclaim selling
concessions allowed to an underwriter or a dealer for distributing shares of
common stock in the offering, if the syndicate repurchases previously
distributed common stock in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities may stabilize
or maintain the market price of the common stock above independent market
levels. The underwriters are not required to engage in these activities, and may
end any of these activities at any time.
HarvardNET and the underwriters have agreed to indemnify each other against
various liabilities, including liabilities under the Securities Act.
68
<PAGE>
From time to time, Morgan Stanley & Co. Incorporated has provided, and
continues to provide, investment banking services to HarvardNET for which they
have received customary fees and commissions.
Morgan Stanley Senior Funding, Inc., an affiliate of Morgan Stanley & Co.
Incorporated, entered into a credit agreement establishing HarvardNET's $30.0
million credit facility on May 28, 1999. In connection with the credit
agreement, Morgan Stanley Senior Funding, Inc. received warrants to purchase
565,423 shares of common stock at an exercise price of $4.91 per share and is
entitled to an annual administration fee of $35,000, of which HarvardNET paid
the initial installment on May 28, 1999.
In addition, in connection with the credit agreement, on May 28, 1999,
Morgan Stanley Senior Funding, Inc. purchased 356,294 shares of Series A-2
convertible preferred stock from HarvardNET at a purchase price of $4.21 per
share, and 356,294 shares of common stock held jointly by Barbara Southworth and
William H. Southworth, the Chairman of the Board of Directors of HarvardNET, at
a purchase price of $4.21 per share. The shares of convertible preferred stock
will automatically convert into common stock upon the closing of this offering.
PRICING OF THE OFFERING
Prior to this offering, there has been no public market for the common
stock. The initial public offering price will be determined by negotiations
between HarvardNET and the U.S. representatives. Among the factors to be
considered in determining the initial public offering price will be the future
prospects of HarvardNET and its industry in general, sales, earnings and other
financial and operating information of HarvardNET in recent periods, and the
price-earnings ratios, price-sales ratios, market prices of securities and
financial and operating information of companies engaged in activities similar
to those of HarvardNET. The estimated initial public offering price range set
forth on the cover page of this preliminary prospectus is subject to change as a
result of market conditions and other factors.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed
upon for us by Hale and Dorr LLP, Boston, Massachusetts. Various legal matters
in connection with this offering will be passed upon for the underwriters by
Shearman & Sterling, New York, New York.
EXPERTS
The financial statements of HarvardNET Inc. as of December 31, 1997 and 1998
and for each of the three years in the period ended December 31, 1998 included
in the prospectus have been so included in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements of Internet Northeast as of December 31, 1996 and
October 31, 1997 and for the year ended December 31, 1996 and the ten months
ended October 31, 1997 included in this prospectus have been so included in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
The financial statements of the Network Services Division of Comstor
Corporation as of December 31, 1998 and for the year ended December 31, 1998
included in this prospectus have been so included in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
69
<PAGE>
WHERE YOU MAY FIND ADDITIONAL INFORMATION
We have filed with the SEC, a registration statement on Form S-1 under the
Securities Act with respect to the common stock. This prospectus does not
contain all of the information set forth in the registration statement and the
exhibits and schedules to the registration statement. For further information
with respect to HarvardNET and the common stock, we refer you to the
registration statement and the exhibits and schedules filed as a part of the
registration statement. Statements contained in this prospectus concerning the
contents of any contract or any other document are not necessarily complete. If
a contract or document has been filed as an exhibit to the registration
statement, we refer you to the copy of the contract or document that has been
filed. Each statement in this prospectus relating to a contract or document
filed as an exhibit is qualified in all respects by the filed exhibit. The
registration statement, including exhibits and schedules thereto, may be
inspected without charge at the SEC's principal office in Washington, D.C., and
copies of all or any part thereof may be obtained from such office after payment
of fees prescribed by the SEC. The SEC maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the SEC at http://www.sec.gov.
We intend to provide our stockholders with annual reports containing
consolidated financial statements audited by an independent public accounting
firm.
70
<PAGE>
HARVARDNET INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C>
HarvardNET Inc.--Financial Statements:
Report of Independent Accountants F-2
Balance Sheets as of December 31, 1997 and 1998, (audited) and as of March 31, 1999 (unaudited) and
pro forma as of March 31, 1999 (unaudited)....................................................... F-3
Statements of Operations for the Years Ended December 31, 1996, 1997 and 1998 (audited), and for
the three months ended March 31, 1998 and 1999 (unaudited)....................................... F-4
Statements of Stockholders' Equity (Deficit) for the Years Ended December 31, 1996, 1997 and 1998
(audited), and the three months ended March 31, 1999 (unaudited)................................. F-5
Statements of Cash Flows for the Years Ended December 31, 1996, 1997 and 1998 (audited), and the
three months ended March 31, 1998 and 1999 (unaudited)........................................... F-6
Notes to Financial Statements...................................................................... F-7
Pro Forma Condensed Consolidated Financial Statements (Unaudited):
Pro Forma Condensed Consolidated Statements of Operations for the Years Ended December 31, 1996,
1997, and 1998 (unaudited)....................................................................... F-19
Internet Northeast--Financial Statements:
Report of Independent Accountants.................................................................. F-22
Balance Sheets as of December 31, 1996 and October 31, 1997........................................ F-23
Statements of Operations for the Year Ended December 31, 1996 and for the ten months ended October
31, 1997......................................................................................... F-24
Statements of Stockholders' Equity for the Year Ended December 31, 1996 and for the ten months
ended October 31, 1997........................................................................... F-25
Statements of Cash Flows for the Year Ended December 31, 1996 and for the ten months ended October
31, 1997......................................................................................... F-26
Notes to Financial Statements...................................................................... F-27
Network Services Division of Comstor Corporation--Financial Statements:
Report of Independent Accountants.................................................................. F-29
Balance Sheet as of December 31, 1998.............................................................. F-30
Statement of Operations and Parent Company Investment for the Year Ended December 31, 1998......... F-31
Statement of Cash Flows for the Year Ended December 31, 1998....................................... F-32
Notes to Financial Statements...................................................................... F-33
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
HarvardNET Inc.:
In our opinion, the accompanying balance sheets and the related statements
of operations, cash flows and stockholders' equity (deficit) present fairly, in
all material respects, the financial position of HarvardNET Inc. as of December
31, 1997 and 1998, and the results of its operations and its cash flows for each
of the three years in the period ended December 31, 1998, in conformity with
generally accepted accounting principles. 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 of these statements in accordance with generally accepted auditing
standards which 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, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
June 10, 1999
F-2
<PAGE>
HARVARDNET INC.
BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31,
----------------------
<S> <C> <C> <C> <C>
DECEMBER 31, 1999
--------------------- PRO FORMA
1997 1998 1999 (NOTE 2)
--------- ---------- ---------- ----------
<CAPTION>
(UNAUDITED)
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents..................................... $ 425,564 $5,239,100 $8,975,348 $8,975,348
Accounts receivable, net of allowance for doubtful accounts of
$24,717, $50,000 and $83,489................................ 168,331 175,345 546,397 546,397
Prepaid expenses and other current assets..................... 3,500 228,296 605,058 605,058
--------- ---------- ---------- ----------
Total current assets........................................ 597,395 5,642,741 10,126,803 10,126,803
Property and equipment, net..................................... 228,514 1,056,598 1,704,262 1,704,262
Intangible assets, net.......................................... 3,132,202 2,042,740 3,998,433 3,998,433
Other assets.................................................... -- 111,362 219,452 219,452
--------- ---------- ---------- ----------
Total assets................................................ $3,958,111 $8,853,441 $16,048,950 $16,048,950
--------- ---------- ---------- ----------
--------- ---------- ---------- ----------
LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK AND
STOCKHOLDERS' EQUITY (DEFICIT)
CURRENT LIABILITIES:
Accounts payable.............................................. $ 225,714 $ 438,109 $ 328,289 $ 328,289
Deferred revenue.............................................. -- 37,071 53,052 53,052
Accrued expenses.............................................. 60,541 440,157 516,602 516,602
Current portion of note payable............................... 18,474 -- -- --
Current portion of obligations under capital lease............ 35,759 69,840 63,506 63,506
Current portion of note payable to stockholder................ 23,016 21,454 24,007 24,007
--------- ---------- ---------- ----------
Total current liabilities................................... 363,504 1,006,631 985,456 985,456
Obligations under capital leases................................ 35,848 33,228 21,603 21,603
Note payable to stockholder..................................... 61,165 33,366 28,814 28,814
Deferred tax liability.......................................... 789,793 332,293 247,293 247,293
--------- ---------- ---------- ----------
Total liabilities............................................... 1,250,310 1,405,518 1,283,166 1,283,166
Commitments and contingencies
Redeemable convertible Series A preferred stock; $0.01 par
value; 13,749,440 shares authorized, 7,344,299 and 13,749,440
issued and outstanding at December 31, 1998 and March 31,
1999, respectively; none issued and outstanding on a pro forma
basis (liquidation preference $19,119,547 at March 31,
1999)......................................................... -- 9,365,073 18,010,638 --
Stockholders' equity (deficit):
Common stock, $0.01 par value; 22,764,310 shares authorized;
6,388,890 issued and outstanding at December 31, 1997;
6,389,631 issued and 3,896,291 outstanding at December 31,
1998 and March 31, 1999; and issued and
outstanding on a pro forma basis............................ 63,889 63,896 63,896
Class B stock, $0.01 par value; 4,486,250 shares authorized,
2,355,280 and 2,935,280 issued and outstanding at December
31, 1998 and March 31, 1999, respectively; none issued and
outstanding on a pro forma basis............................ -- 17,945 17,945 --
Additional paid-in capital.................................... 2,792,537 2,459,006 2,125,864
Accumulated dividends on preferred stock...................... -- 306,969 612,801 --
Accumulated deficit........................................... (148,625) (1,408,944) (2,709,338) (2,709,338)
Treasury stock, at cost, 2,493,340 shares..................... -- (3,356,022) (3,356,022) (3,356,022)
--------- ---------- ---------- ----------
Total stockholders' equity (deficit)........................ 2,707,801 (1,917,150) (3,244,854) --
--------- ---------- ---------- ----------
Total liabilities, redeemable convertible preferred stock
and stockholders' equity (deficit)........................ $3,958,111 $8,853,441 $16,048,950
--------- ---------- ---------- ----------
--------- ---------- ---------- ----------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-3
<PAGE>
HARVARDNET INC.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED DECEMBER 31, ENDED MARCH 31,
--------------------------------------- ----------------------------
<S> <C> <C> <C> <C> <C>
1996 1997 1998 1998 1999
---------- ------------ ------------- ------------- -------------
<CAPTION>
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenues.................................. $ 720,338 $ 1,381,199 $ 4,282,063 $ 953,698 $ 1,600,103
Operating expenses:
Costs of revenues....................... 325,142 703,838 1,877,827 419,608 810,834
Selling, general and administrative..... 351,893 671,116 2,814,860 399,197 1,693,203
Depreciation and amortization........... 6,211 187,353 1,339,382 317,531 500,363
---------- ------------ ------------- ------------- -------------
Total operating expenses.............. 683,246 1,562,307 6,032,069 1,136,336 3,004,400
---------- ------------ ------------- ------------- -------------
Operating income (loss)................... 37,092 (181,108) (1,750,006) (182,638) (1,404,297)
Interest income (expense):
Interest income......................... 201 20 57,075 -- 23,376
Interest expense........................ (1,535) (2,372) (24,888) (2,557) (4,473)
---------- ------------ ------------- ------------- -------------
Income (loss) before taxes................ 35,758 (183,460) (1,717,819) (185,195) (1,385,394)
Benefit (provision) for income taxes...... (8,709) 44,500 457,500 49,322 85,000
---------- ------------ ------------- ------------- -------------
Net income (loss)......................... 27,049 (138,960) (1,260,319) (135,873) (1,300,394)
Dividends and accretion of issuance costs
on preferred stock...................... -- -- (336,026) -- (333,142)
---------- ------------ ------------- ------------- -------------
Net income available (loss attributable)
to common stockholders.................. $ 27,049 $ (138,960) $ (1,596,345) $ (135,873) $ (1,633,536)
---------- ------------ ------------- ------------- -------------
---------- ------------ ------------- ------------- -------------
Net income (loss) per share:
Basic and diluted....................... $ 0.01 $ (0.04) $ (0.29) $ (0.02) $ (0.42)
---------- ------------ ------------- ------------- -------------
---------- ------------ ------------- ------------- -------------
Weighted average number of
shares outstanding:
Basic and diluted....................... 3,000,000 3,572,725 5,562,331 6,388,890 3,895,550
---------- ------------ ------------- ------------- -------------
---------- ------------ ------------- ------------- -------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-4
<PAGE>
HARVARDNET INC.
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
FOR THE YEARS ENDED DECEMBER 31, 1996, 1997, 1998 AND FOR THE THREE MONTHS ENDED
MARCH 31, 1999 (UNAUDITED)
<TABLE>
<CAPTION>
ACCUMULATED
COMMON STOCK CLASS B STOCK ADDITIONAL DIVIDENDS
---------------------- ---------------------- PAID-IN ON PREFERRED
SHARES AMOUNT SHARES AMOUNT CAPITAL STOCK
--------- ----------- --------- ----------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1996.......................... 3,000,000 $ 30,000
Net income..........................................
--------- -----------
Balance at December 31, 1996........................ 3,000,000 30,000
Issuance of common stock............................ 450,000 4,500 $ 370,800
Issuance of common stock for acquisition of Internet
Northeast......................................... 2,938,890 29,389 2,421,737
Net loss............................................
--------- ----------- -----------
Balance at December 31, 1997........................ 6,388,890 63,889 2,792,537
September 1, 1998, redemption of 2,493,330 shares of
common stock at $1.346 per share..................
Issuance of shares of common stock at $1.346 per
share for consulting services..................... 741 7 993
Warrants............................................ 19,447
Issuance of Class B stock, net of subscription
receivable of $5,608.............................. 2,355,280 $ 17,945 (17,945)
Preferred stock dividend............................ (306,969) $ 306,969
Accretion of preferred stock issuance costs......... (29,057)
Net loss............................................
--------- ----------- --------- ----------- ----------- ------------
Balance at December 31, 1998........................ 6,389,631 63,896 2,355,280 17,945 2,459,006 306,969
Issuance of Class B stock, net of subscription
receivable of $5,800.............................. 580,000 --
Preferred stock dividend............................ (305,832) 305,832
Accretion of preferred stock issuance costs......... (27,310)
Net loss............................................
--------- ----------- --------- ----------- ----------- ------------
Balance at March 31, 1999 (unaudited)............... 6,389,631 $ 63,896 2,935,280 $ 17,945 $2,125,864 $ 612,801
--------- ----------- --------- ----------- ----------- ------------
--------- ----------- --------- ----------- ----------- ------------
<CAPTION>
TREASURY STOCK SHAREHOLDERS'
ACCUMULATED --------------------- EQUITY
DEFICIT SHARES AMOUNT (DEFICIT)
------------ --------- ---------- -------------
<S> <C> <C> <C> <C>
Balance at January 1, 1996.......................... $ (36,714) $ (6,714)
Net income.......................................... 27,049 27,049
------------ -------------
Balance at December 31, 1996........................ (9,665) 20,335
Issuance of common stock............................ 375,300
Issuance of common stock for acquisition of Internet
Northeast......................................... 2,451,126
Net loss............................................ (138,960) (138,960)
------------ -------------
Balance at December 31, 1997........................ (148,625) 2,707,801
September 1, 1998, redemption of 2,493,330 shares of
common stock at $1.346 per share.................. (2,493,340) $(3,356,022) (3,356,022)
Issuance of shares of common stock at $1.346 per
share for consulting services..................... 1,000
Warrants............................................ 19,447
Issuance of Class B stock, net of subscription
receivable of $5,608.............................. --
Preferred stock dividend............................ --
Accretion of preferred stock issuance costs......... (29,057)
Net loss............................................ (1,260,319) (1,260,319)
------------ --------- ---------- -------------
Balance at December 31, 1998........................ (1,408,944) (2,493,340) (3,356,022) (1,917,150)
Issuance of Class B stock, net of subscription
receivable of $5,800.............................. --
Preferred stock dividend............................
Accretion of preferred stock issuance costs......... (27,310)
Net loss............................................ (1,300,394) (1,300,394)
------------ --------- ---------- -------------
Balance at March 31, 1999 (unaudited)............... $(2,709,338) (2,493,340) $(3,356,022) $(3,244,854)
------------ --------- ---------- -------------
------------ --------- ---------- -------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-5
<PAGE>
HARVARDNET INC.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
THREE MONTHS
FOR THE YEARS ENDED DECEMBER 31, ENDED MARCH 31,
-------------------------------------- --------------------------
<S> <C> <C> <C> <C> <C>
1996 1997 1998 1998 1999
---------- ----------- ------------- ----------- -------------
<CAPTION>
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net income (loss).......................... $ 27,049 $ (138,960) $ (1,260,319) $ (135,873) $ (1,300,394)
Adjustments to reconcile net income (loss)
to net cash provided by (used in)
operating activities:
Deferred income taxes.................... -- (66,500) (457,500) (49,322) (85,000)
Depreciation and amortization............ 6,211 187,353 1,339,382 317,531 500,363
Provision for bad debt................... -- 24,717 25,283 -- 33,489
Changes in operating assets and
liabilities, excluding effects of
business combinations:
Accounts receivable.................... (37,143) (140,561) (32,297) (24,905) (181,342)
Prepaid expenses and other current
assets............................... -- (3,500) (224,796) 119 (376,762)
Other assets........................... -- 924 (111,362) -- 9,962
Accounts payable....................... 77,043 60,916 212,395 24,791 (109,820)
Deferred revenue....................... -- -- 37,071 -- 15,981
Accrued expenses....................... 22,456 31,796 379,616 295,161 76,445
---------- ----------- ------------- ----------- -------------
Net cash provided by (used in) operating
activities................................. 95,616 (43,815) (92,527) 427,502 (1,417,078)
---------- ----------- ------------- ----------- -------------
Cash flows from investing activities:
Purchase of the Network Services Division
of Comstor Corporation................... -- -- -- -- (2,822,573)
Purchases of property and equipment........ -- (18,762) (1,009,810) (36,207) (627,398)
---------- ----------- ------------- ----------- -------------
Net cash used in investing activities...... -- (18,762) (1,009,810) (36,207) (3,449,971)
---------- ----------- ------------- ----------- -------------
Cash flows from financing activities:
Payments on capital lease obligations...... (5,789) (28,019) (42,812) -- (17,959)
Payments on note payable................... -- (3,831) (18,474) (4,401) --
Payments on note payable to stockholder.... -- (3,614) (25,076) (5,541) (2,000)
Redemption of common stock for treasury.... -- -- (3,356,022) -- --
Proceeds from issuance of redeemable
convertible Series A preferred stock..... -- -- 9,356,463 -- 8,623,256
Proceeds from issuance of Class B stock.... -- -- 1,794 -- --
Proceeds from issuance of common stock..... -- 375,300 -- -- --
---------- ----------- ------------- ----------- -------------
Net cash provided by (used in) financing
activities................................. (5,789) 339,836 5,915,873 (9,942) 8,603,297
---------- ----------- ------------- ----------- -------------
Net increase in cash and equivalents......... 89,827 277,259 4,813,536 381,353 3,736,248
Cash and cash equivalents, beginning of the
period..................................... 58,478 148,305 425,564 425,564 5,239,100
---------- ----------- ------------- ----------- -------------
Cash and cash equivalents, end of the
period..................................... $ 148,305 $ 425,564 $ 5,239,100 $ 806,917 $ 8,975,348
---------- ----------- ------------- ----------- -------------
---------- ----------- ------------- ----------- -------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-6
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
1. NATURE OF BUSINESS:
HarvardNET Inc. (the "Company") a Delaware corporation, provides high-speed
data networking solutions and Web hosting services to customers located in the
Northeast and Mid-Atlantic regions of the United States.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
CASH EQUIVALENTS
Cash equivalents consist of short-term investments with remaining maturities
of three months or less at the date of purchase.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost and depreciated on a straight-line
basis over estimated useful lives of three and ten years. Leasehold improvements
are depreciated over the shorter of related lease terms or the estimated useful
lives. Property and equipment acquired under capital leases is depreciated over
the useful life of the asset. Upon retirement or sale, the costs of the assets
disposed and the related accumulated depreciation are removed from the accounts
and any resulting gain or loss is included in the determination of income.
Repairs and maintenance costs are charged to expense as incurred.
INTANGIBLE ASSETS
Intangible assets consist of the cost of the acquired customer bases,
network leases, peering arrangements and goodwill resulting from business
combinations. Intangible assets are amortized using the straight-line method
over three to five years. The carrying value of the intangible assets is
reviewed on a quarterly and annual basis for the existence of facts or
circumstances both internally and externally that may suggest impairment. To
date, no such impairment has occurred. The Company determines whether an
impairment has occurred based on gross expected future cash flows and measures
the amount of the impairment based on the related future estimated discounted
cash flows. The cash flow estimates used to determine the impairment, if any,
contain management's best estimates, using appropriate and customary assumptions
and projections at that time.
COSTS OF REVENUES
Costs of revenues principally include costs of data transmission and
Internet access, exclusive of depreciation and amortization.
REVENUE RECOGNITION
Revenues are principally generated from the provision of Internet access,
Web hosting and other related data services. Revenues are recognized at the time
services are provided. Service plans range from one month to one year. Advance
collections relating to future access services are recorded as deferred revenue
and recognized as revenue when earned.
F-7
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: (CONTINUED)
INCOME TAXES
Deferred taxes are determined based on the difference between the financial
statement and tax basis of assets and liabilities using enacted tax rates in
effect in the years in which the differences are expected to reverse. Valuation
allowances are provided if, based upon the weight of available evidence, it is
more likely than not that some or all of the deferred tax assets will not be
realized.
USE OF ESTIMATES
The presentation of financial statements in conformity with generally
accepted accounting principles requires management to make 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 and the reported amount of revenues and expenses during the reporting
period. Actual results could differ from those estimates. Significant estimates
in these financial statements include valuation of acquired assets and
liabilities, deferred tax assets, net realizable values and useful lives of
intangible assets.
CONCENTRATIONS OF CREDIT RISK
Financial instruments which potentially subject the Company to
concentrations of credit risk consist primarily of cash, cash equivalents and
accounts receivable. At December 31, 1998, March 31, 1999 and periodically
throughout the period, the Company had cash balances at certain financial
institutions in excess of federally insured limits. However, the Company does
not believe that it is subject to any unusual credit risk beyond the normal
credit risk associated with commercial banking relationships. The Company
believes that concentration of credit risk with respect to accounts receivable
is limited due to the Company's broad customer base.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the FASB issued Statement of Financial Accounting Standards
("SFAS") No. 133, "Accounting for Derivative Instruments and Hedging
Activities," which establishes accounting and reporting standards for derivative
instruments and hedging activities. It requires that an entity recognize all
derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. The Company, to date, has
not engaged in derivative and hedging activities, and accordingly does not
believe that the adoption of SFAS No. 133 will have a material impact on the
financial reporting and related disclosures of the Company. The Company will
adopt SFAS No. 133 as required for its first quarterly filing of fiscal year
2000.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, "Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use." SOP 98-1 requires computer software
costs associated with internal use software to be charged to operations as
incurred until certain capitalization criteria are met. SOP 98-1 became
effective beginning January 1, 1999. The Company, to date, has not capitalized
any internally developed software.
INTERIM FINANCIAL INFORMATION
The consolidated financial statements of the Company as of March 31, 1999
and for the three months ended March 31, 1998 and 1999 are unaudited. All
adjustments (consisting only of normal recurring
F-8
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: (CONTINUED)
adjustments) have been made, which in the opinion of management, are necessary
for a fair presentation. Results of operations for the three months ended March
31, 1999 are not necessarily indicative of the results that may be expected for
the year ending December 31, 1999 or for any other future period.
PRO FORMA BALANCE SHEET (UNAUDITED)
Upon the closing of the Company's initial public offering, all of the
outstanding shares of redeemable convertible preferred stock and Class B stock
will automatically convert into approximately shares of HarvardNET Inc.
common stock assuming an offering price of $ . The unaudited pro forma
presentation of the balance sheet has been prepared assuming the conversion of
the redeemable convertible preferred stock and Class B stock into common stock
at March 31, 1999.
3. NET INCOME (LOSS) PER SHARE AND PRO FORMA INCOME (LOSS) PER SHARE:
Basic income (loss) per share is computed using the weighted average number
of common shares outstanding during the period. Dilutive income (loss) per share
is computed using the weighted average number of common shares outstanding
during the period, plus the dilutive effect of common stock equivalents. Common
stock equivalent shares consist of preferred stock, stock options and warrants.
During the years ended December 31, 1997 and 1998 and the three-month period
ended March 31, 1999, options to purchase 300,000, 300,000 and 858,550 shares of
common stock, respectively, preferred stock convertible into 0, 7,344,299 and
13,749,440 shares of common stock, respectively, and warrants to purchase 0,
68,740 and 68,740 shares of common stock, respectively, were excluded from the
calculation of earnings per share since their inclusion would be antidilutive.
Pro forma basic and diluted income (loss) per share have been calculated
assuming the conversion of all outstanding shares of preferred stock and Class B
stock into common stock, as if the shares had converted immediately upon their
issuance. Accordingly, net income (loss) has not been adjusted for the accrued
dividends for preferred stock in the calculation of pro forma income (loss) per
share.
The following is a calculation of pro forma net loss per share (unaudited):
<TABLE>
<CAPTION>
FOR THE THREE
YEAR ENDED MONTHS ENDED
DECEMBER 1998 MARCH 31, 1999
-------------- --------------
<S> <C> <C>
Basic and diluted:
Net loss attributable to common stockholders...................................... $ (1,596,345) $ (1,633,536)
Weighted average number of common stock outstanding............................... 5,562,331 3,895,550
Weighted average assumed number of common shares upon conversion of preferred
stock and Class B stock.........................................................
-------------- --------------
Total weighted average number of shares used in computing pro forma net loss per
share...........................................................................
Basic and diluted pro forma net loss per common share............................. $ $
</TABLE>
F-9
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
4. ACQUISITIONS:
On November 12, 1997, the Company acquired all of the common stock of
Internet Northeast in exchange for 2,938,890 shares of common stock of the
Company. The transaction was accounted for using the purchase method. The
purchase price was estimated to be approximately $2,450,000 based on the value
at which the Company's common stock had recently been sold to third party
investors. The fair value of the net tangible assets acquired approximated
$39,000, which consisted primarily of computer, network and communications
equipment. The remaining purchase price was allocated to the acquired customer
base, which is being amortized over three years, the estimated life of the
customer base. No patents, material non-competition agreements, or operating
know-how was acquired. No value was ascribed to the employee base.
On January 11, 1999, the Company acquired certain assets of the Internet
service provider business of Comstor Corporation ("Network Services Division of
Comstor Corporation") for approximately $2,823,000 in cash. This transaction was
accounted for using the purchase method. The fair value of the net tangible
assets acquired, consisting primarily of computer, network and communications
equipment, approximated $498,000. The remaining purchase price was allocated to
the acquired network, peering arrangements and the customer base, which are each
being amortized over five years. No patents, non-competition agreements or other
operating know-how was acquired. No value was ascribed to the employee base.
The results of operations for Internet Northeast are included in the
Company's statements of operations from November 12, 1997, the effective
acquisition dates. The results of operations of the Network Services Division of
Comstor Corporation are included in the Company's statements of operations from
January 11, 1999, the date of acquisition.
The following unaudited pro forma combined historical results present
HarvardNET and Internet Northeast as if the acquisition had occurred at the
beginning of 1997, and HarvardNET and the Network Services Division of Comstor
Corporation as if the acquisition had occurred at the beginning of 1998. The pro
forma results include amortization of intangibles and goodwill resulting from
the acquisitions, and assumed taxes. The unaudited pro forma combined historical
results are not necessarily indicative of the results of operations that would
actually have occurred if the transactions had been consummated as of January 1,
and is not intended to indicate the expected results for any future period.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1997 1998
------------- -------------
<S> <C> <C>
Revenues............................................................................ $ 2,641,026 $ 5,293,292
Net loss............................................................................ (1,142,098) (2,342,432)
Net loss per share-basic and diluted................................................ $ (0.19) $ (0.42)
</TABLE>
F-10
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
5. PROPERTY AND EQUIPMENT:
Property and equipment consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------ MARCH 31, DEPRECIABLE
1997 1998 1999 LIVES
---------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
(UNAUDITED)
Computer and networking equipment...... $ 384,527 $ 1,400,611 $ 1,979,740 3 years
Software............................... 5,003 52,883 96,717 3 years
Furniture and fixtures................. 2,729 16,769 97,655 10 years
Leasehold improvements................. 8,294 8,294 83,309 lease term
---------- ------------ ------------
400,553 1,478,557 2,257,421
Accumulated depreciation and
amortization......................... (172,039) (421,959) (553,159)
---------- ------------ ------------
Property and equipment, net............ $ 228,514 $ 1,056,598 $ 1,704,262
---------- ------------ ------------
---------- ------------ ------------
</TABLE>
Equipment under capital leases included above at:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------- MARCH 31, DEPRECIABLE
1997 1998 1999 LIVES
--------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
(UNAUDITED)
Computer and networking equipment........... $ 99,626 $ 210,832 $ 210,832 3 years
--------- ---------- -----------
Less accumulated amortization............... (28,019) (107,764) (124,599)
--------- ---------- -----------
$ 71,607 $ 103,068 $ 86,233
--------- ---------- -----------
--------- ---------- -----------
</TABLE>
Depreciation and amortization expense for the years ended December 31, 1996,
1997 and 1998 was $6,211, $98,475, $249,920, respectively, and for the three
months ended March 31, 1998 and 1999 was $43,628, and $131,200, respectively.
6. INTANGIBLE ASSETS:
Intangible assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------- MARCH 31,
1997 1998 1999
------------ ------------ ------------
<S> <C> <C> <C>
(UNAUDITED)
Acquired customer base.............................. $ 2,412,092 $ 2,412,092 $ 3,187,044
Peering arrangements................................ -- -- 774,952
Goodwill............................................ 856,293 856,293 1,631,245
Less accumulated amortization....................... (136,183) (1,225,645) (1,594,808)
------------ ------------ ------------
Intangible assets, net.............................. $ 3,132,202 $ 2,042,740 $ 3,998,433
------------ ------------ ------------
------------ ------------ ------------
</TABLE>
F-11
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
7. NOTES PAYABLE:
In 1997, the Company assumed a 1995 term loan agreement between Internet
Northeast and a bank for $50,000 at an interest rate of 10.5% to be repaid over
three years. At December 31, 1997, the balance outstanding on the loan was
$18,474. This loan was repaid during 1998.
In 1997, the Company assumed a term loan between Internet Northeast and a
stockholder of the Company for $100,000 at an interest rate of 10% to be repaid
over four years. The balance outstanding on this loan at December 31, 1997, 1998
and March 31, 1999 was $84,181, $54,820 and $52,821, respectively.
8. COMMITMENTS:
LEASES
The Company leases its facilities and certain equipment under operating and
capital leases. The leases expire at various dates through September 30, 2000
and generally require the payment of real estate taxes, insurance, maintenance,
and operating costs. The minimum aggregate future obligations under
noncancelable leases are as follows:
<TABLE>
<CAPTION>
OPERATING CAPITAL
YEAR ENDING DECEMBER 31, LEASES LEASES
- ------------------------------------------------------------------------ ----------- ---------
<S> <C> <C>
1999.................................................................... $ 46,055 $ 77,349
2000.................................................................... 6,250 34,955
----------- ---------
Total................................................................... $ 52,305 112,304
-----------
-----------
Less interest........................................................... (9,236)
---------
Total principal obligation.............................................. 103,068
Less: current portion................................................... (69,840)
---------
Noncurrent portion of principal obligation.............................. $ 33,228
---------
---------
</TABLE>
9. REDEEMABLE CONVERTIBLE SERIES A PREFERRED STOCK:
During 1998, the Company issued 7,344,299 shares of redeemable convertible
Series A Preferred Stock ("Series A Preferred Stock") to private investors for
$9,356,463, net of issuance costs of $525,366. On March 23, 1999, the Company
issued 6,405,141 shares of Series A Preferred Stock to private investors for
$8,621,320.
The Series A Preferred stockholders are entitled to votes equaling the
number of shares of common stock into which each share may be converted. The
amended Certificate of Incorporation, which includes a redemption agreement,
provides that the Company shall redeem, at the request of any holder or holders
of issued and outstanding Series A Preferred Stock on or after September 1,
2003, all of the outstanding shares of Series A Preferred Stock held by such
requesting holder or holders.
The amended Certificate of Incorporation provides that, at any time, a
Series A Preferred stockholder shall be entitled to voluntarily convert all
shares into a number of shares of Common Stock at a ratio set forth in
agreement. Furthermore, each share of Series A Preferred Stock shall
automatically be converted into common stock immediately upon the conversion of
60% or more of the outstanding Series A Preferred Stock or upon an initial
public offering of the Company's common stock at a minimum offering
F-12
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
9. REDEEMABLE CONVERTIBLE SERIES A PREFERRED STOCK: (CONTINUED)
price of $5.38 per share which results in gross proceeds of at least $20,000,000
at a ratio set forth in the agreement. In the case of the sale of the Company,
the Series A Preferred Stock converts into a number of shares of common stock at
a ratio set forth in the agreement. The conversion ratio was one-to-one at
December 31, 1998 and March 31, 1999.
The Series A Preferred stockholders have preference upon liquidation over
common and Class B stockholders and are entitled to participate ratably in any
dividends paid to holders of common stock based on the conversion rate in effect
at the time.
10. STOCKHOLDERS' EQUITY:
STOCK SPLITS
On November 7, 1997, the Company effected a 100-for-1 stock split through a
stock dividend of common stock. On November 11, 1998, the Company effected a
10-for-1 stock split through a stock dividend of Series A Preferred Stock, Class
B Stock and Common Stock. All references to preferred and common stock share and
per share amounts including options and warrants to purchase common stock have
been retroactively restated to reflect the stock splits.
COMMON STOCK
The common stockholders are entitled to one vote per share. At December 31,
1998 and March 31, 1999, the Company had reserved 10,068,319 and 17,048,510,
shares of common stock, respectively, for future issuance upon conversion of
Series A Preferred Stock and Class B Stock and the exercise of warrants and
stock options.
On December 7, 1998, the Company issued 741 shares of common stock to one
entity in connection with the provision of $1,000 of consulting services to the
Company.
CLASS B STOCK
During 1998, the Company issued 2,355,280 shares of Class B Stock to two
officers of the Company for $7,402, $5,608 of which was received in the form of
a subscription receivable. During January 1999, the Company issued 580,000
shares of Class B stock to two other officers of the Company for a subscription
receivable of $5,800. All subscription receivables were paid by the officers in
May 1999.
The holders of Class B Stock are entitled to one vote for each share held.
Dividends, distributions in liquidation or other distributions are payable to
the extent that payments made to common and preferred stockholders exceed
$24,144,164 plus any accumulated but unpaid Series A Preferred stock dividends.
The Class B Stock is convertible at any time at the discretion of the holder
into one share of common stock for an exercise price of $1.346 per share. The
Class B stock automatically converts into common stock upon the consummation of
an initial public offering of the Company's common stock at a minimum offering
price per share of $5.38 which results in gross proceeds of $20,000,000. Upon
automatic conversion, the Class B Stock converts at a rate calculated by
dividing the difference between the offering price and the Class B Stock
conversion price ($1.346) by the offering price.
F-13
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
10. STOCKHOLDERS' EQUITY: (CONTINUED)
WARRANTS
On September 1, 1998, the Company issued warrants in conjunction with the
preferred stock financing for the purchase of 68,740 shares of its common stock
at a purchase price of $1.346 per share. The warrants were exercisable upon
issuance and expire on September 1, 2003. The Company estimated the value of the
warrants to be $19,447 at the date of issuance.
STOCK OPTIONS
1997 STOCK INCENTIVE PLAN
In November 1997, the Board of Directors adopted the 1997 Stock Incentive
Plan (the "1997 Plan") for the issuance of incentive and nonqualified stock
options. The number of shares of common stock authorized for issuance under the
1997 Plan is 600,000 shares. Options to purchase common stock are granted at the
discretion of the Board of Directors.
Under the terms of the 1997 Plan, the exercise price of incentive stock
options granted must not be less than 100% (110% in certain cases) of the fair
market value of the common stock on the date of grant, as determined by the
Board of Directors. The exercise price of nonqualified stock options may be less
than the fair market value of the common stock on the date of grant, as
determined by the Board of Directors but in no case may the exercise price be
less than the statutory minimum. Vesting of options granted is at the discretion
of the Board of Directors.
1999 STOCK INCENTIVE PLAN
In January 1999, the Board of Directors adopted the 1999 Stock Incentive
Plan (the "1999 Plan") for the issuance of incentive and nonqualified stock
options. Awards maybe made under the 1999 Plan for up to 1,550,000 shares of
common stock. Options to purchase common stock are granted at the discretion of
the Board of Directors. In March 1999, options to purchase an aggregate of
558,550 shares of common stock which vest over a four year period were granted
to employees with an exercise price of $1.35 per share. These options remained
unexercised at March 31, 1999.
At December 31, 1998 and March 31, 1999, 300,000 and 991,450 shares,
respectively, were available for grant under the 1997 and 1999 plans.
F-14
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
10. STOCKHOLDERS' EQUITY: (CONTINUED)
A summary of activity under the Company's 1997 and 1999 plans for the years
ended December 31, 1997 and 1998, and the three months ended March 31, 1999 is
presented below:
<TABLE>
<CAPTION>
WEIGHTED-
AVERAGE
EXERCISE
SHARES PRICE
--------- -----------
<S> <C> <C>
Outstanding at January 1, 1997.......................................... -- --
Granted................................................................. 300,000 $ 0.84
Outstanding at December 31, 1997........................................ 300,000 $ 0.84
No activity............................................................. -- --
---------
Outstanding at December 31, 1998........................................ 300,000 $ 0.84
Granted................................................................. 558,550 $ 1.35
---------
Outstanding at March 31, 1999........................................... 858,550 $ 1.17
---------
---------
Options exercisable at March 31, 1999................................... 300,000 $ 0.84
---------
---------
</TABLE>
The following table summarizes information about stock options outstanding
at March 31, 1999:
<TABLE>
<CAPTION>
WEIGHTED-
AVERAGE
REMAINING
EXERCISE CONTRACTUAL SHARES
PRICE SHARES LIFE (YEARS) EXERCISABLE
- ------------- --------- --------------- -----------
<S> <C> <C> <C>
$0.84 300,000 8.4 300,000
$1.35 558,550 9.8 --
--------- -----------
858,550 9.3 300,000
</TABLE>
Statement of Financial Accounting Standards (SFAS) No. 123, "Accounting for
Stock-Based Compensation" encourages but does not require companies to record
compensation cost for stock-based employee compensation at fair value. The
Company has chosen to account for stock-based compensation granted to employees
using the intrinsic value method prescribed in Accounting Principles Board
Opinion No. 25, "Accounting for Stock Issued to Employees," and related
interpretations. Accordingly, compensation cost for stock options granted to
employees is measured as the excess, if any, of the fair value of the Company's
stock at the date of the grant over the amount that must be paid to acquire the
stock.
The fair value of the options granted in 1997 and the three months ended
March 31, 1999 is estimated to be $0.17 and $0.22 per share, respectively. The
fair value of the option grant was estimated on the date of grant using the
Black-Scholes option pricing model with the following assumptions: risk free
rate of 5.8% and 4.6%; no expected dividend; an expected life of 4 years; and no
volatility. Had the Company accounted for stock options to employees under the
fair value method prescribed under SFAS No. 123, net losses as reported for the
year ended December 31, 1997 and the three months ended March 31, 1999 would
have increased $50,250 to $189,210 and $7,908 to $1,308,302 respectively. Pro
forma net loss per share (basic and diluted) reported for the year ended
December 31, 1997 and the three months ended March 31, 1999 would have increased
$0.01 to $0.05 and remain unchanged at $0.40, respectively.
F-15
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
11. INCOME TAXES:
The provision (benefit) for income taxes consists of the following:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH
1996 1997 1998 1999
--------- ---------- ----------- -------------
<S> <C> <C> <C> <C>
(UNAUDITED)
Current
Federal....................................................... $ 6,000 $ 15,000 -- --
State......................................................... 2,709 7,000 -- --
--------- ---------- ----------- -------------
8,709 22,000 -- --
Deferred
Federal....................................................... -- (62,500) $ (428,500) $ (80,000)
State......................................................... -- (4,000) (29,000) (5,000)
--------- ---------- ----------- -------------
-- (66,500) (457,500) (85,000)
--------- ---------- ----------- -------------
Total provision (benefit)....................................... $ 8,709 $ (44,500) $ (457,500) $ (85,000)
--------- ---------- ----------- -------------
--------- ---------- ----------- -------------
</TABLE>
F-16
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
The Company's effective tax rate varies from the statutory rate as follows:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH
1996 1997 1998 1999
--------- --------- --------- ---------------
<S> <C> <C> <C> <C>
(UNAUDITED)
U.S. Federal income tax rate.................... 34.0% (34.0)% (34.0)% (34.0 )%
Benefit of graduated U.S. Federal income tax
rate.......................................... (19.4)% (10.2)% 1.5% --
State income tax rate........................... 4.7% 1.0% (1.1)% (1.4 )%
Nondeductible acquisition expenses.............. -- 13.0% -- --
Nondeductible intangible amortization........... -- 6.5% 5.6% 1.4%
Valuation allowance............................. -- -- -- 29.3%
Other........................................... 5.1% (0.6)% 1.4% (1.4 )%
--------- --------- --------- -----
24.4% (24.3)% (26.6)% (6.1 )%
--------- --------- --------- -----
--------- --------- --------- -----
</TABLE>
The components of the net deferred tax liability are as follows:
<TABLE>
<CAPTION>
1997 1998
----------- -----------
<S> <C> <C>
Deferred Tax Assets
Net operating loss carryforwards.................................. -- $ 100,000
Accounts receivable reserve....................................... $ 9,000 18,000
Accrued expenses.................................................. 6,000 62,000
Depreciation...................................................... 16,000 23,000
----------- -----------
31,000 203,000
Deferred Tax Liability
Intangible assets................................................. (821,000) (535,000)
----------- -----------
Net deferred tax liability........................................ $ (790,000) $ (332,000)
----------- -----------
----------- -----------
</TABLE>
As of December 31, 1998, the Company had federal net operating loss
carryforwards of approximately $280,000 which begin to expire in 2018.
Ownership changes resulting from the Company's issuance of capital stock may
limit the amount of net operating loss carryforwards that can be utilized
annually to offset future taxable income. The amount of the annual limitation is
determined based upon the Company's value immediately prior to ownership change.
Subsequent significant changes in ownership could further affect the limitation
in the future.
12. EMPLOYEE BENEFIT PLAN:
In May 1998, the Company established a savings plan for its employees which
is designed to be qualified under Section 401(k) of the Internal Revenue Code.
Eligible employees are permitted to contribute to the 401(k) plan through
payroll deductions within statutory and plan limits. The Company has not
contributed to the savings plan to date.
F-17
<PAGE>
HARVARDNET INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(THE INFORMATION PRESENTED RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 AND
1999 IS UNAUDITED)
13. SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
The following is the supplemental cash flow information for all periods
presented:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------
<S> <C> <C> <C>
1996 1997 1998
--------- --------- ----------
Cash paid during the period for interest.................... $ 1,535 $ 2,372 24,888
Cash paid during the period for income taxes................ $ 18,384 -- --
Noncash financing and investing activities:
Issuance of Class B stock in exchange for promissory
notes................................................... -- -- $ 5,608
Acquisition of equipment through capital lease............ $ 75,809 $ 23,817 $ 111,206
</TABLE>
14. SEGMENT REPORTING:
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131
"Disclosures about Segments of an Enterprise and Related Information", which
requires certain information to be reported about operating segments consistent
with management's internal view of the Company.
The Company has a single operating segment, Internet access services. The
Company has no organizational structure dictated by product lines, geography or
customer type.
Sales are derived from one service line, Internet access service, and are
provided to residential and business customers in Maine, New Hampshire and
Massachusetts. The Company evaluates performance based on profit or loss from
operations before interest, income taxes, depreciation and amortization.
15. SUBSEQUENT EVENT
On May 28, 1999, the Company entered into a credit facility with Morgan
Stanley Senior Funding, Inc. ("Morgan Stanley"). Newcourt Commercial Financial
Corporation ("Newcourt") is a co-arranger under the credit facility. The credit
facility provides for maximum borrowings of $30.0 million and has a term of five
years. Morgan Stanley and Newcourt received warrants to purchase an aggregate of
565,423 shares of the Company's stock for $4.91 per share. The warrants are
exercisable immediately and expire on May 28, 2004.
On May 28, 1999, Morgan Stanley purchased 356,294 shares of Series A-2
redeemable convertible preferred stock for $1,500,000 from the Company and
purchased 356,294 shares of common stock of the Company from the Chairman of the
Board of Directors and his spouse for $1,500,000.
On May 28, 1999, the Company amended its Certificate of Incorporation to
increase the number of shares of authorized preferred stock to an aggregate of
14,105,734 shares of Series A Preferred Stock. The Company's Series A Preferred
Stock was further subdivided into 13,749,440 shares of Series A-1 preferred
stock and 356,294 shares of Series A-2 preferred stock. All shares of Series A
Preferred Stock then issued were designated as shares of Series A-1 preferred
stock. Series A-2 preferred stock is identical to Series A-1 preferred stock,
except that the dividend rate, the liquidation preference, the redemption price
and the conversion price is different for the Series A-1 preferred stock and the
Series A-2 preferred stock.
F-18
<PAGE>
HARVARDNET INC.
PROFORMA CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
(UNAUDITED)
On November 12, 1997, the Company acquired all of the common stock of
Internet Northeast in exchange for 2,938,890 shares of common stock of the
Company. The transaction was accounted for using the purchase method. The
purchase price was estimated to be approximately $2,450,000 based on the value
at which the Company's common stock had recently been sold to third party
investors. The fair value of the net tangible assets acquired approximated
$39,000, which consisted primarily of computer, network and communications
equipment. The remaining purchase price was allocated to the acquired customer
base, which is being amortized over three years, the estimated life of the
customer base. No patents, material non-competition agreements, or operating
know-how was acquired. No value was ascribed to the employee base.
On January 11, 1999, the Company acquired certain assets of the Internet
service provider business of Comstor Corporation ("Network Services Division of
Comstor Corporation") for approximately $2,823,000 in cash. This transaction was
accounted for using the purchase method. The fair value of the net tangible
assets acquired, consisting primarily of computer, network and communications
equipment, approximated $498,000. The remaining purchase price was allocated to
the acquired network leases and peering arrangements and customer base which are
each being amortized over five years. No patents, non-competition agreements or
other operating know-how was acquired. No value was ascribed to the employee
base.
The results of operations for Internet Northeast are included in the
Company's statements of operations from November 1, 1997 the effective
acquisition date. The results of operations of the Network Services Division of
Comstor Corporation are included in the Company's statements of operations from
January 11, 1999, the date of acquisition.
The following unaudited pro forma condensed statements of operations for the
years ended December 31, 1996, 1997 and 1998 present HarvardNET and Internet
Northeast assuming that the acquisition had occurred at the beginning of 1996
and 1997, and HarvardNET and the Network Services Division of Comstor
Corporation assuming that the acquisition had occurred at the beginning of 1998.
The unaudited pro forma condensed statements of operations are not necessarily
indicative of the results of operations that would actually have occurred if the
transactions had been consummated as of January 1, and is not intended to
indicate the expected results for any future period. These statements should be
read in conjunction with the historical financial statements and related notes
of the Company and certain acquired businesses, included herewith.
F-19
<PAGE>
HARVARDNET INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS (UNAUDITED)
FOR THE YEARS ENDED DECEMBER 31,
<TABLE>
<CAPTION>
1996
-------------------------------------------------------------
<S> <C> <C> <C> <C>
INTERNET
HARVARDNET INC. NORTHEAST ADJUSTMENTS TOTAL
--------------- -------------- ------------- -------------
Revenue....................................... $ 720,338 $ 737,366 $ 1,457,704
Operating expenses:
Costs of revenues........................... 325,142 215,557 540,699
Selling, general and administrative......... 351,893 358,844 710,737
Depreciation and amortization............... 6,211 52,414 $ 1,089,462(A) 1,148,087
--------------- -------------- ------------- -------------
Total operating expenses.................. 683,246 626,815 1,089,462 2,399,523
--------------- -------------- ------------- -------------
Operating income (loss)....................... 37,092 110,551 (1,089,462) (941,819)
Interest income (expense), net................ (1,334) (5,125) -- (6,459)
Benefit (provision) for income taxes.......... (8,709) -- 44,200(C) 35,491
--------------- -------------- ------------- -------------
Net income (loss)............................. $ 27,049 $ 105,426 $ (1,045,262) $ (912,787)
--------------- -------------- ------------- -------------
--------------- -------------- ------------- -------------
Basic and diluted earnings per share.......... $ (0.15)
-------------
-------------
Weighted average number of shares outstanding:
Basic and diluted............................. 5,938,890
-------------
-------------
<CAPTION>
1997
-------------------------------------------------------------
INTERNET
HARVARDNET INC. NORTHEAST ADJUSTMENTS TOTAL
--------------- -------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenue....................................... $ 1,381,199 $ 1,259,827 $ 2,641,026
Operating expenses:
Costs of revenues........................... 703,838 370,688 1,074,526
Selling, General and administrative......... 671,116 818,835 1,489,951
Depreciation and amortization............... 187,353 105,303 $ 1,089,462(A) 1,382,118
--------------- -------------- ------------- -------------
Total operating expenses.................. 1,562,307 1,294,826 1,089,462 3,946,595
--------------- -------------- ------------- -------------
Operating income (loss)....................... (181,108) (34,999) (1,089,462) (1,305,569)
Interest income (expense)..................... (2,352) (5,836) -- (8,188)
Benefit (provision) for income taxes.......... 44,500 -- 127,159(C) 171,659
--------------- -------------- ------------- -------------
Net income (loss)............................. $ (138,960) $ (40,835) $ (962,303) $ (1,142,098)
--------------- -------------- ------------- -------------
--------------- -------------- ------------- -------------
Basic and diluted earnings per share.......... $ (0.19)
-------------
-------------
Weighted average number of shares outstanding:
Basic and diluted............................. 6,107,640
-------------
-------------
</TABLE>
F-20
<PAGE>
HARVARDNET INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS (UNAUDITED)
FOR THE YEAR ENDED DECEMBER 31,
<TABLE>
<CAPTION>
1998
--------------------------------------------------------------------
<S> <C> <C> <C> <C>
NETWORK SERVICES
DIVISION
HARVARDNET INC. OF COMSTOR CORPORATION ADJUSTMENTS TOTAL
--------------- ----------------------- ----------- -------------
Revenue............................... $ 4,282,063 $ 1,390,229 $(379,000)(B) $ 5,293,292
Operating expenses:
Costs of revenues................... 1,877,827 1,491,229 (367,000)(B) 3,002,056
Selling, general and
administrative...................... 2,814,860 300,482 3,115,342
Depreciation and amortization....... 1,339,382 30,383 465,000(A) 1,834,765
--------------- ----------- ----------- -------------
Total operating expenses.......... 6,032,069 1,822,094 98,000 7,952,163
--------------- ----------- ----------- -------------
Operating income (loss)............... (1,750,006) (431,865) (477,000) (2,658,871)
Interest income (expense), net........ 32,187 (16,612) -- 15,575
Benefit from income taxes............. 457,500 -- 179,390(C) 636,890
--------------- ----------- ----------- -------------
Net income (loss)..................... (1,260,319) (448,477) (297,610) (2,006,406)
Preferred stock dividends............. (336,026) -- -- (336,026)
--------------- ----------- ----------- -------------
Net income (loss) applicable to common
stockholders........................ $ (1,596,345) $ (448,477) $(297,610) $ (2,342,432)
--------------- ----------- ----------- -------------
--------------- ----------- ----------- -------------
Basic and diluted earnings per
share............................... $ (0.42)
-------------
-------------
Weighted average number of shares
outstanding:
Basic and diluted..................... 5,562,331
-------------
-------------
</TABLE>
Notes
A. Acquired customer bases, network leases, peering arrangements and goodwill
were a result of the acquisitions in 1997 and 1999, which are amortized over
a three to five year period. Additional amortization expense of
approximately $1,089,000, $1,089,000 and $463,400 for 1996, 1997 and 1998,
respectively, would have been recorded if these acquisitions had occurred at
the beginning of such periods. Total amounts that would have been recorded
as acquired customer base, leases, peering arrangements and goodwill were
$3,268,000 at January 1, 1996, $3,268,000 at January 1, 1997 and $2,325,000
at January 1, 1998.
B. Intercompany transactions between HarvardNET and the Network Services
Division of Comstor Corporation are eliminated for this pro forma financial
statement.
C. Adjustment for Federal and state income taxes assuming an effective income
tax rate of 40%.
F-21
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and the Stockholders of
HarvardNET Inc.:
In our opinion, the accompanying balance sheets and the related statements
of operations, stockholders' equity and cash flows, present fairly, in all
material respects, the financial position of Internet Northeast at December 31,
1996 and October 31, 1997, and the results of its operations and its cash flows
for the year ended December 31, 1996 and for the ten months ended October 31,
1997, in conformity with generally accepted accounting principles. 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 of these financial statements in accordance
with generally accepted auditing standards which 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, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
June 10, 1999
F-22
<PAGE>
INTERNET NORTHEAST
BALANCE SHEETS
<TABLE>
<CAPTION>
OCTOBER 31,
DECEMBER 31, 1996 1997
----------------- ---------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Accounts receivable........................................................ $ 12,560 $ --
Prepaid expenses -- 13,000
-------- ---------------
Total current assets..................................................... 12,560 13,000
Property and equipment, net.................................................. 188,829 175,161
Other assets................................................................. 2,228 2,745
-------- ---------------
Total assets............................................................. $ 203,617 $ 190,906
-------- ---------------
-------- ---------------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable........................................................... 49,381 --
Accrued expenses........................................................... 686 20,312
Cash overdraft............................................................. 37,572 21,461
Current portion of note payable............................................ 12,808 22,305
Current portion of stockholder note payable................................ -- 26,629
-------- ---------------
Total current liabilities................................................ 100,447 90,707
Commitments and contingencies (Note 3)
Note payable................................................................. 22,305 --
Stockholder note payable..................................................... -- 61,165
-------- ---------------
Total liabilities........................................................ 122,752 151,872
Stockholders' equity:
Common stock, no par; 3,000 shares authorized; 3,000 shares issued and
outstanding................................................................ 16,831 16,831
Retained earnings............................................................ 64,034 22,203
-------- ---------------
Total stockholders' equity............................................... 80,865 39,034
-------- ---------------
Total liabilities and stockholders' equity............................... $ 203,617 $ 190,906
-------- ---------------
-------- ---------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-23
<PAGE>
INTERNET NORTHEAST
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED TEN MONTHS ENDED
DECEMBER 31, 1996 OCTOBER 31, 1997
----------------- -----------------
<S> <C> <C>
Revenues.................................................................... $ 737,366 $ 1,259,827
Operating expenses:
Costs of revenues......................................................... 215,557 370,688
Selling, general and administrative....................................... 358,844 818,835
Depreciation and amortization............................................. 52,414 105,303
-------- -----------------
Total operating expenses.............................................. 626,815 1,294,826
-------- -----------------
Operating income (loss)..................................................... 110,551 (34,999)
Interest expense............................................................ (5,125) (5,836)
-------- -----------------
Net income (loss)........................................................... $ 105,426 $ (40,835)
-------- -----------------
-------- -----------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-24
<PAGE>
INTERNET NORTHEAST
STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
COMMON STOCK
---------------------- RETAINED
SHARES VALUE EARNINGS TOTAL
----------- --------- ---------- ----------
<S> <C> <C> <C> <C>
Balance at January 1, 1996............................................ 3,000 $ 16,831 $ 17,505 $ 34,336
Stockholder distributions........................................... (58,897) (58,897)
Net income.......................................................... 105,426 105,426
----- --------- ---------- ----------
Balance at December 31, 1996.......................................... 3,000 16,831 64,034 80,865
Stockholder distributions........................................... (996) (996)
Net loss............................................................ (40,835) (40,835)
----- --------- ---------- ----------
Balance at October 31, 1997........................................... 3,000 $ 16,831 $ 22,203 $ 39,034
----- --------- ---------- ----------
----- --------- ---------- ----------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-25
<PAGE>
INTERNET NORTHEAST
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED TEN MONTHS ENDED
DECEMBER 31, 1996 OCTOBER 31, 1997
----------------- -----------------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss)......................................................... $ 105,426 $ (40,835)
Adjustments to reconcile net income (loss) to net cash provided by
operating activities:
Depreciation and amortization........................................... 52,414 105,303
Loss on disposal of property and equipment.............................. 17,337 130,963
Changes in assets and liabilities
Prepaid expenses...................................................... -- (13,000)
Accounts receivable................................................... (11,510) 12,560
Accounts payable...................................................... 48,906 (49,381)
Accrued expenses...................................................... 686 19,626
Other assets.......................................................... -- (517)
----------------- -----------------
Net cash provided by operating activities................................... 213,259 164,719
----------------- -----------------
Cash flows from investing activities:
Purchase of property and equipment........................................ (190,184) (222,598)
----------------- -----------------
Cash flows from financing activities:
Proceeds from stockholder note payable.................................... -- 100,000
Payments on note payable.................................................. (30,148) (12,808)
Payments on stockholder note payable...................................... -- (12,206)
Cash overdraft............................................................ 37,572 (16,111)
Stockholder distributions................................................. (58,897) (996)
----------------- -----------------
Net cash provided by (used in) financing activities......................... (51,473) 57,879
----------------- -----------------
Net decrease in cash equivalents............................................ (28,398) --
Cash at beginning of period................................................. 28,398 --
----------------- -----------------
Cash and cash equivalents at end of period.................................. $ -- $ --
----------------- -----------------
----------------- -----------------
Supplemental disclosure of cash flow information:
Interest paid............................................................. $ 4,621 $ 8,102
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-26
<PAGE>
INTERNET NORTHEAST
NOTES TO FINANCIAL STATEMENTS
1. DESCRIPTION OF THE BUSINESS, BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT
ACCOUNTING POLICIES:
Internet Northeast (the "Company"), a Maine corporation, was incorporated on
August 1, 1995 to provide Internet access, Web hosting and other related data
services to customers in Maine and New Hampshire.
On November 12, 1997, the Company merged with HarvardNET Inc. through an
exchange of all shares of the Company's common stock for 2,938,890 shares of
common stock of HarvardNET Inc. The transaction was accounted for using the
purchase method.
REVENUE RECOGNITION
Revenues are recognized when Internet access services are provided.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost and depreciated over their
estimated useful lives using the straight-line method. Leasehold improvements
are depreciated over the lesser of related lease terms or the estimated
productive useful lives. Property and equipment acquired under capital leases is
depreciated over the useful life of the asset.
Betterments and major renewals are capitalized and included in property and
equipment accounts, while expenditures for maintenance and repairs and minor
renewals are charged to expense. When assets are retired or otherwise disposed
of, the assets and related accumulated depreciation and amortization are
eliminated from the accounts and any resulting gain or loss is reflected in
income.
ADVERTISING COSTS
Advertising costs are expensed as incurred. Advertising expense of
approximately $23,068 and $26,738 was charged to operations in 1996 and 1997,
respectively.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the reported
amounts of revenues and expenses during the reporting period. Actual results
could differ from those estimates.
INCOME TAXES
The Company is taxed as an S-Corporation. Accordingly, the stockholders of
the Company are subject to federal income taxes rather than the Company.
F-27
<PAGE>
INTERNET NORTHEAST
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. PROPERTY AND EQUIPMENT:
Cost of property and equipment and depreciable lives are summarized as
follows:
<TABLE>
<CAPTION>
DECEMBER 31, OCTOBER 31, DEPRECIABLE
1996 1997 LIFE YEARS
------------ ----------- ----------------------
<S> <C> <C> <C>
Equipment..................................................... $ 232,622 $ 320,603 3
Furniture and fixtures........................................ 433 2,731 10
Leasehold improvements........................................ 7,802 9,158 3
------------ -----------
240,857 332,492
Less: accumulated depreciation................................ (52,028) (157,331)
------------ -----------
Property and equipment, net................................... $ 188,829 $ 175,161
------------ -----------
------------ -----------
</TABLE>
3. COMMITMENTS:
The Company leases its facilities and vehicles under operating leases. The
leases expire at various dates.
Rent expense under all operating leases of approximately $11,384 and $26,230
was charged to operations in 1996 and 1997, respectively.
4. NOTE PAYABLE:
In 1995, the Company entered a $50,000 term loan agreement with a bank
bearing an interest rate of 10.5% to be repaid over three years. At December 31,
1996 and October 31, 1997, the balance outstanding on the loan was $35,113 and
$22,305, respectively.
5. STOCKHOLDER NOTE PAYABLE:
In 1997, the Company entered into a note payable with a stockholder of the
Company for $100,000 bearing an interest rate of 10% to be repaid over four
years. At October 31, 1997, the balance outstanding on the loan was $87,794.
F-28
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and the Stockholders of
HarvardNET Inc.:
In our opinion, the accompanying balance sheet and the related statements of
operations, parent company investment and cash flows, present fairly, in all
material respects, the financial position of the Network Services Division of
Comstor Corporation at December 31, 1998 and the results of its operations and
its cash flows for the year ended December 31, 1998, in conformity with
generally accepted accounting principles. 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 audit. We conducted our audit
of these statements in accordance with generally accepted auditing standards
which 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, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for the opinion expressed above.
As discussed in Note 1, the accompanying financial statements of the Network
Services Division of Comstor Corporation were derived from the historical books
and records of Comstor Corporation and may not be indicative of the financial
position and results of operations and cash flows had the Network Services
Division of Comstor Corporation operated as a nonaffiliated, autonomous entity.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
May 14, 1999
F-29
<PAGE>
NETWORK SERVICES DIVISION OF COMSTOR CORPORATION
BALANCE SHEET
AS OF DECEMBER 31, 1998
<TABLE>
<S> <C>
ASSETS
Current assets:
Accounts receivable............................................................. $ 351,690
Prepaid expenses................................................................ 12,631
---------
Total current assets.......................................................... 364,321
Property and equipment, net..................................................... 211,981
Deposits........................................................................ 11,600
---------
Total assets.................................................................. $ 587,902
---------
---------
LIABILITIES AND EQUITY
Current liabilities:
Accounts payable................................................................ 68,450
Accrued expenses................................................................ 5,000
---------
Total current liabilities..................................................... 73,450
Parent company investment....................................................... 514,452
---------
$ 587,902
---------
---------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-30
<PAGE>
NETWORK SERVICES DIVISION OF COMSTOR CORPORATION
STATEMENT OF OPERATIONS AND
PARENT COMPANY INVESTMENT
FOR THE YEAR ENDED DECEMBER 31, 1998
<TABLE>
<S> <C>
Revenues:
Internet access service....................................................... $ 833,091
Equipment..................................................................... 557,138
---------
Total revenues............................................................ 1,390,229
Operating expenses:
Costs of Internet access service revenues................................... 961,948
Costs of equipment revenues................................................. 529,281
Selling, general and administrative......................................... 300,482
Depreciation and amortization............................................... 30,383
---------
Total operating expenses.................................................. 1,822,094
---------
Operating loss.................................................................. (431,865)
Interest expense................................................................ (16,612)
---------
Net loss........................................................................ $(448,477)
---------
---------
Parent company investment, as of December 31, 1997.............................. $ 10,969
---------
Net loss........................................................................ (448,477)
Net transfers from parent....................................................... 951,960
---------
Parent company investment, as of December 31, 1998.............................. $ 514,452
---------
---------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-31
<PAGE>
NETWORK SERVICES DIVISION OF COMSTOR CORPORATION
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
<TABLE>
<S> <C>
Cash flow from operating activities:
Net loss....................................................................... $(448,477)
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization................................................ 30,383
Changes in assets and liabilities:
Accounts receivable.......................................................... (234,497)
Prepaid expenses............................................................. (12,631)
Accounts payable and accrued expenses........................................ (58,685)
---------
Net cash used in operating activities...................................... (723,907)
---------
Cash flow from investing activities:
Purchase of property and equipment............................................. (228,053)
---------
Cash flow from financing activities:
Net transfers from parent...................................................... $ 951,960
---------
Net increase (decrease) in cash and cash equivalents............................. --
Cash and cash equivalents, beginning of year..................................... --
---------
Cash and cash equivalents, end of year........................................... --
---------
---------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-32
<PAGE>
NETWORK SERVICES DIVISION OF COMSTOR CORPORATION
NOTES TO FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
ORGANIZATION AND BASIS OF PRESENTATION
The accompanying financial statements present the financial position and
results of operations as of and for the year ended December 31, 1998, of the
Network Services Division of Comstor Corporation, which during that period was a
division of Comstor Corporation. Comstor Corporation, a wholly owned subsidiary
of General Electric Company had acquired the Internet service provider business
from Management Analysis, Inc. in August 1997.
On January 11, 1999, Comstor Corporation entered into a purchase and sale
agreement for the sale of assets to HarvardNET Inc. The Network Services
Division of Comstor Corporation provides full service access to the Internet for
corporate and individual users primarily in the greater Washington, D.C. area.
These financial statements present the Network Services Division of Comstor
Corporation's results of operations and its financial condition as derived from
the historical books and records of Comstor Corporation, including certain
adjustments necessary for a fair presentation of the business. Certain selling,
general and administrative expenditures incurred by Comstor Corporation on
behalf of the Network Services Division of Comstor Corporation were allocated to
the Network Services Division of Comstor Corporation based upon relative office
space utilization and percentage of revenues. Interest expense was allocated to
the Network Services Division of Comstor Corporation based upon average working
capital levels at an approximated market rate. Management believes that the
methods used for these allocations are reasonable. The statements presented may
not be indicative of the result of operations had the Network Services Division
of Comstor Corporation operated as a nonaffiliated, autonomous entity.
For purposes of this presentation, Comstor Corporation is referred to as the
parent company of the Network Services Division of Comstor Corporation.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make 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 and the reported amounts of revenues and expenses during the
reporting period. Significant estimates include the allocation of certain costs
incurred by Comstor Corporation to the Network Services Division of Comstor
Corporation. Actual results could differ from those estimates.
CASH
The Network Services Division of Comstor Corporation maintains no cash
balance. Disbursements are made by Comstor Corporation on behalf of the Network
Services Division of Comstor Corporation. Comstor Corporation is reimbursed
monthly by the Network Services Division of Comstor Corporation for cash
disbursements.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost and depreciated over their
estimated useful lives using the straight-line method. Costs of repairs and
maintenance are charged to expense as incurred.
F-33
<PAGE>
NETWORK SERVICES DIVISION OF COMSTOR CORPORATION
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: (CONTINUED)
REVENUE RECOGNITION
The Network Services Division of Comstor Corporation recognizes revenue when
internet access services are provided or when equipment is shipped. Advance
collections relating to future access services are recorded as deferred revenue
and recognized as revenue when earned. Equipment revenue is comprised of routers
and related equipment resold to the Network Services Division of Comstor
Corporation's Internet access customers.
INCOME TAXES
The Network Services Division of Comstor Corporation is not a taxable
entity. Had the Network Services Division of Comstor Corporation been a taxable
entity, the accompanying financial statements would not have been affected, as
the results of operations reflect a loss for the year ended December 31, 1998,
and a tax benefit, if any, would have been reduced by a full valuation
allowance.
2. PROPERTY AND EQUIPMENT:
Cost of property and equipment and depreciable lives are summarized as
follows:
<TABLE>
<CAPTION>
DEPRECIABLE
1998 LIFE IN YEARS
---------- -----------------
<S> <C> <C>
Computer and networking equipment................................... $ 231,371 3
Leasehold improvements.............................................. 10,993 3
Less accumulated depreciation and amortization...................... (30,383)
----------
Property and equipment, net......................................... $ 211,981
----------
----------
</TABLE>
3. OPERATING LEASES:
The Company leases office space under lease terms of less than one year.
Rent expense under all operating leases of approximately $32,000 was charged
to operations in 1998.
4. RELATED PARTY TRANSACTIONS:
The financial statements include approximately $95,000 of accounts
receivable, $379,000 of revenues, and $367,000 of costs of revenues related to
business transactions with HarvardNET Inc., as well as approximately $41,000 of
revenues and $39,000 of costs of revenues related to business transactions with
General Electric Company.
F-34
<PAGE>
HARVARDNET WEB OPERATIONS CENTER
[Graphical description of HarvardNET's Web Operations Center. The top left
hand corner of the graphic states "Our Web hosting outsourcing services allow
customers to establish a high quality, highly reliable Internet presence." In
the center of the page is a graphic of the operations center with lines
pointing to the following labeled areas: "Private Suites," "Transport Room,"
"Network Operations Center," "Security Access Control," "Rack Collocation
Area," "Air Conditioning (313 tons)," "Staging and Receiving," "Electrical
Vault," "15KV Switches (High Voltage)," "(2) 1500 KW Generators," and "800 KW
Generator (Future)."]
<PAGE>
[LOGO]
<PAGE>
ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS (SUBJECT TO COMPLETION)
ISSUED JUNE 11, 1999
SHARES
[LOGO]
HARVARDNET INC.
COMMON STOCK
---------------------
HARVARDNET INC. IS OFFERING SHARES OF ITS COMMON STOCK. OF THE SHARES OF
COMMON STOCK WE ARE OFFERING, SHARES ARE BEING OFFERED INITIALLY OUTSIDE
THE UNITED STATES AND CANADA BY THE INTERNATIONAL UNDERWRITERS, AND SHARES
ARE BEING OFFERED INITIALLY IN THE UNITED STATES AND CANADA BY THE U.S.
UNDERWRITERS. THIS IS OUR INITIAL PUBLIC OFFERING AND NO PUBLIC MARKET CURRENTLY
EXISTS FOR OUR SHARES. WE ANTICIPATE THAT THE INITIAL PUBLIC OFFERING PRICE WILL
BE BETWEEN $ AND $ PER SHARE.
-------------------
APPLICATION HAS BEEN MADE FOR QUOTATION OF THE COMMON STOCK ON THE NASDAQ
NATIONAL MARKET UNDER THE SYMBOL "HNET."
-------------------
INVESTING IN THE COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON
PAGE 5.
-----------------
PRICE $ A SHARE
-----------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC COMMISSIONS HARVARDNET
------------------ ------------------ ------------------
<S> <C> <C> <C>
PER SHARE.......................................... $ $ $
TOTAL.............................................. $ $ $
</TABLE>
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE
NOT APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
HARVARDNET INC. HAS GRANTED THE UNDERWRITERS THE RIGHT TO PURCHASE UP TO AN
ADDITIONAL SHARES TO COVER OVER-ALLOTMENTS. MORGAN STANLEY & CO.
INCORPORATED EXPECTS TO DELIVER THE SHARES TO PURCHASERS ON , 1999.
------------------------
MORGAN STANLEY DEAN WITTER
MERRILL LYNCH INTERNATIONAL
SALOMON SMITH BARNEY INTERNATIONAL
, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than the
underwriting discount, payable by the Registrant in connection with the sale of
common stock being registered. All amounts are estimates except the SEC
registration fee, the NASD filing fees and the Nasdaq National Market listing
fee.
<TABLE>
<S> <C>
SEC registration fee............................................................... $ 34,750
NASD filing fee.................................................................... 13,000
Nasdaq National Market listing fee................................................. *
Printing and engraving expenses.................................................... *
Legal fees and expenses............................................................ *
Accounting fees and expenses....................................................... *
Blue Sky fees and expenses (including legal fees).................................. *
Transfer agent and registrar fees and expenses..................................... *
Miscellaneous...................................................................... *
---------
Total.......................................................................... *
---------
---------
</TABLE>
* To be filed by amendment.
HarvardNET will bear all expenses shown above.
Item 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Restated Certificate of Incorporation (the "Restated
Certificate") provides that, except to the extent prohibited by the Delaware
General Corporation Law (the "DGCL"), the Registrant's directors shall not be
personally liable to the Registrant or its stockholders for monetary damages for
any breach of fiduciary duty as directors of the Registrant. Under the DGCL, the
directors have a fiduciary duty to the Registrant which is not eliminated by
this provision of the Restated Certificate and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of nonmonetary relief will
remain available. In addition, each director will continue to be subject to
liability under the DGCL for breach of the director's duty of loyalty to the
Registrant, for acts or omissions which are found by a court of competent
jurisdiction to be not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit to
the director, and for payment of dividends or approval of stock repurchases or
redemptions that are prohibited by the DGCL. This provision also does not affect
the directors' responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws. The Registrant has
obtained liability insurance for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors
and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that this provision
shall not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) arising under Section 174 of the DGCL including
for an unlawful payment of dividend or unlawful stock purchase or redemption, or
(iv) for any transaction from which the director derived an improper personal
benefit. The DGCL provides further that the indemnification permitted thereunder
shall not be deemed exclusive of any other rights to which the directors and
officers may be entitled under the corporation's by-laws, any agreement, a vote
of stockholders or otherwise. The Restated Certificate eliminates the personal
liability of directors to the fullest extent permitted by the DGCL and, together
with the Registrant's Amended and Restated By-Laws (the "Restated By-Laws"),
provides that the Registrant shall fully 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 (whether civil, criminal, administrative or
investigative) by reason of the fact that such person is
II-1
<PAGE>
or was a director or officer of the Registrant, or is or was serving at the
request of the Registrant as a director or officer of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding. Reference is made to the Registrant's Form of
Amended and Restated Certificate of Incorporation and Form of Amended and
Restated By-Laws filed as Exhibits 3.3 and 3.4 hereto, respectively.
The Underwriting Agreement provides that the underwriters are obligated,
under specified circumstances, to indemnify directors, officers and controlling
persons of HarvardNET against specified liabilities, including liabilities under
the Securities Act of 1933, as amended (the "Securities Act"). Reference is made
to the form of Underwriting Agreement to be filed as Exhibit 1.1 hereto.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under the Restated Certificate. The Registrant is not
aware of any threatened litigation or proceeding that may result in a claim for
such indemnification.
Item 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this registration statement, we
have issued the following securities that were not registered under the
Securities Act as summarized below. The share information provided below
reflects a 100-for-1 split of the common stock effected on November 12, 1997 and
a 10-for-1 split of the Series A convertible preferred stock, Class B stock and
common stock effected on November 16, 1998:
(a) Issuances of Capital Stock, Notes and Warrants. Since January 1, 1996,
the Registrant has issued the following securities that were not registered
under the Securities Act as summarized below. The share information provided
below reflects a 100-for-1 split of the common stock effected on November 12,
1997 and a 10-for-1 split of the Series A convertible preferred stock, Class B
stock and common stock effected on November 16, 1998:
1. On August 15, 1997, the Registrant issued and sold a total of 450,000
shares of its common stock to five individuals, each of whom was an
accredited investor, for an aggregate purchase price of $375,300. These
issuances were conducted pursuant to Section 4(2) of the Securities Act.
2. On November 12, 1997, the Registrant issued an aggregate of 2,938,890
shares of common stock to six individuals in connection with the merger of
another corporation with and into the Registrant on such date. This issuance
was conducted pursuant to Section 4(2) of the Securities Act.
3. On September 1, 1998, December 7, 1998 and March 23, 1999, the
Registrant issued and sold a total of 13,749,440 shares of its Series A
convertible preferred stock to two individuals and eight entities, each of
whom or which was an accredited investor, for an aggregate purchase price of
$18,500,000. In connection with the sale of these shares of Series A
convertible preferred stock, the Registrant issued a common stock purchase
warrant to one placement agent for 68,740 shares of common stock at an
purchase price of $1.34551 per share. These issuances were conducted
pursuant to Section 4(2) of the Securities Act. The Registrant paid $832,500
in commissions to the placement agent in connection with the sale of these
shares of Series A convertible preferred stock.
4. On September 29, 1998, December 3, 1998, January 4, 1998 and January
18, 1998, the Registrant issued and sold an aggregate of 2,935,280 shares of
Class B stock to four executive officers for an aggregate purchase price of
$13,202. This issuance was conducted pursuant to Section 4(2) of the
Securities Act.
5. On December 7, 1998, the Registrant issued 741 shares of common stock
to one entity in connection with the provision of $1,000 of consulting
services to the Registrant. This issuance was conducted pursuant to Section
4(2) of the Securities Act.
II-2
<PAGE>
6. On May 28, 1999, the Registrant issued and sold a total of 356,294
shares of its Series A convertible preferred stock to one entity, an
accredited investor, for an aggregate purchase price of $1,500,000. In
connection with the sale of these shares, the Registrant also issued common
stock warrants to the purchaser of these shares for 565,423 shares of common
stock at a purchase price of $4.91 per share. These issuances were conducted
pursuant to Section 4(2) of the Securities Act and Regulation D promulgated
thereunder.
(b) Certain Grants and Exercises of Stock Options. The Registrant's 1997
Stock Incentive Plan was adopted by the Board of Directors on August 15, 1997.
The Registrant's 1999 Stock Incentive Plan was approved by the Board of
Directors on January 26, 1999. As of May 31, 1999, options to purchase 300,000
shares of common stock were outstanding under the 1997 Stock Incentive Plan and
options to purchase 753,250 shares of common stock were outstanding under the
1999 Stock Incentive Plan. As of such date, no options had been exercised. The
options issued under the 1997 Stock Incentive Plan and the 1999 Stock Incentive
Plan were offered in reliance upon the exemption from registration under Rule
701 promulgated under the Securities Act.
No underwriters were involved in the foregoing sales of securities.
Item 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<C> <S>
1.1* Form of Underwriting Agreement
3.1 Restated and Amended Certificate of Incorporation of the Registrant dated May 28, 1999
3.2* Form of Amended and Restated Certificate of Incorporation of the Registrant to be filed upon the
closing of this public offering
3.3* Amended and Restated By-Laws of the Registrant
4.1* Specimen Certificate for shares of Common Stock, $.01 par value, of the Registrant
5.1* Opinion of Hale and Dorr LLP with respect to the validity of the securities being offered
10.1 1997 Stock Incentive Plan of the Registrant
10.2 1999 Stock Incentive Plan of the Registrant
10.3* 1999 Employee Stock Purchase Plan of the Registrant
10.4* 1999 Director Stock Option Plan of the Registrant
10.5* Severance and Non Competition Agreement between William and Barbara Southworth and the Registrant
dated as of September 1, 1998
10.6 Employment Agreement between the Registrant and Mark M. Washburn effective as of September 29, 1998
10.7 Employment Agreement between the Registrant and Todd C. DeSisto effective as of December 3, 1998
10.8 Lease dated October 30, 1998 by and between Hood Business Park LLC and the Registrant
10.9 Amendment A to Lease as of March 15, 1998 by and between Hood Business Park LLC and the Registrant
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.10 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of February 24, 1999 by and between New England Telephone and Telegraph Company d/b/a Bell
Atlantic--New Hampshire and the Registrant
10.11 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of February 24, 1999 by and between New England Telephone and Telegraph Company d/b/a Bell
Atlantic--Maine and the Registrant
10.12 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of February 24, 1999 by and between New England Telephone and Telegraph Company d/b/a Bell
Atlantic--Rhode Island and the Registrant
10.13 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of January 19, 1998 by and between New England Telephone and Telegraph Company d/b/a Bell
Atlantic--Massachusetts and the Registrant
10.14 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of May 26, 1999 by and between Bell Atlantic--Virginia, Inc. and the Registrant
10.15 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of May 26, 1999 by and between Bell Atlantic--Maryland, Inc. and the Registrant
10.16 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of May 26, 1999 by and between Bell Atlantic--Washington D.C., Inc. and the Registrant
10.17 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of May 26, 1999 by and between Bell Atlantic--Pennsylvania and the Registrant
10.18 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of May 26, 1999 by and between Bell Atlantic--New Jersey, Inc. and the Registrant
10.19 Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated as
of May 26, 1996 by and between New York Telephone Company d/b/a Bell Atlantic--New York and the
Registrant
10.20 Registration Rights Agreement dated September 1, 1998 between the Registrant and the Purchasers and
Holders identified therein
10.21 First Amendment to Registration Rights Agreement dated May 28, 1999 between the Registrant and the
Purchasers and Holders identified therein
21.1 Subsidiaries of the Registrant
23.1* Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (see page II-6)
27.1 Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment.
II-4
<PAGE>
(b) Financial Statement:
Schedule II--Valuation and Qualifying Accounts
<TABLE>
<CAPTION>
BALANCE ADDITIONS
AT CHARGES TO
BEGINNING COSTS AND BALANCE AT END
DESCRIPTION OF PERIOD EXPENSES OF PERIOD
- -------------------------------------------------------------------------- ----------- ----------- --------------
<S> <C> <C> <C>
Allowance for doubtful accounts:
Three Months Ended March 31, 1999 (unaudited)............................. $ 50,000 $ 33,489 $ 83,489
Year Ended December 31, 1998.............................................. 24,717 25,283 50,000
Year Ended December 31, 1997.............................................. -- 24,717 24,717
Year Ended December 31, 1996.............................................. -- -- --
</TABLE>
All other schedules for which provision is made in the applicable accounting
regulation of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore have been omitted.
II-5
<PAGE>
Item 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the Delaware General Corporation Law, the Restated
Certificate of the registrant, the Underwriting Agreement, 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
Securities 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 hereunder, the registrant will,
unless in the opinion of 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 Act and
will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purpose of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
(2) For purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Boston, Massachusetts, on this 11th
day of June, 1999.
<TABLE>
<S> <C> <C>
HARVARDNET INC.
By: /s/ MARK M. WASHBURN
-----------------------------------------
Mark M. Washburn
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of HarvardNET Inc. hereby
severally constitute and appoint Mark M. Washburn and Todd DeSisto, and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, with full powers of substitution and resubstitution, to sign for us
and in our names in the capacities indicated below, the Registration Statement
on Form S-1 filed herewith and any and all pre-effective and post-effective
amendments to said Registration Statement, and any subsequent Registration
Statement for the same offering which may be filed under Rule 462(b), and
generally to do all such things in our names and on our behalf in our capacities
as officers and directors to enable HarvardNET Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, or their
substitute or substitutes, to said Registration Statement and any and all
amendments thereto or to any subsequent Registration Statement for the same
offering which may be filed under Rule 462(b).
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 and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
<C> <S> <C>
President, Chief Executive
/s/ MARK M. WASHBURN Officer and Director
- ------------------------------ (Principal Executive June 11, 1999
Mark M. Washburn Officer)
Chief Financial Officer and
/s/ TODD DESISTO Treasurer (Principal
- ------------------------------ Financial and Accounting June 11, 1999
Todd DeSisto Officer)
/s/ WILLIAM H. SOUTHWORTH Chairman and Director
- ------------------------------ June 11, 1999
William H. Southworth
/s/ PETER H.O. CLAUDY Director
- ------------------------------ June 11, 1999
Peter H.O. Claudy
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
<C> <S> <C>
/s/ LEO J. ESPOSITO Director
- ------------------------------ June 11, 1999
Leo J. Esposito
/s/ ROBERT C. KETTERSON Director
- ------------------------------ June 11, 1999
Robert C. Ketterson
/s/ JEFFREY OSBORN Director
- ------------------------------ June 11, 1999
Jeffrey Osborn
/s/ MATTHEW J. RUBINS Director
- ------------------------------ June 11, 1999
Matthew J. Rubins
</TABLE>
II-8
<PAGE>
REPORT OF INDEPENDENT ACCOUNTS ON SCHEDULE II
To the Board of Directors and Stockholders of
HarvardNET Inc.:
Our report on the financial statements of HarvardNET Inc. is included in this
Registration Statement. In connection with our audits of such financial
statements, we have also audited the related financial statement schedule listed
in Item 16(b) of this Registration Statement.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements as a whole, presents
fairly, in all material respects, the information required to be included
therein.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
June 10, 1999
II-9
<PAGE>
Exhibit 3.1
RESTATED AND AMENDED
CERTIFICATE OF INCORPORATION
OF
HARVARDNET INC.
HarvardNET Inc., a corporation organized and existing under the laws of the
State of Delaware (the "CORPORATION"), hereby certifies as follows:
1. The name of the Corporation is HarvardNET Inc. The name under which the
corporation was incorporated originally was "Imageware Incorporated." The date
of the filing of the Corporation's original Certificate of Incorporation with
the Secretary of State of the State of Delaware was November 10, 1992.
2. This Restated and Amended Certificate of Incorporation amends, restates
and integrates the provisions of the Corporation's certificate of incorporation
and (i) was duly adopted by the Board of Directors in accordance with the
provisions of Section 245 of the General Corporation Law of the State of
Delaware (the "DGCL"), (ii) was declared by the Board of Directors to be
advisable and in the best interests of the Corporation and was directed by the
Board of Directors to be submitted to and be considered by the stockholders of
the Corporation entitled to vote thereon for approval by the affirmative vote of
such stockholders in accordance with Section 242 of the DGCL and (iii) was duly
adopted by a stockholder consent in lieu of a meeting of the stockholders, with
the holders of a majority of the outstanding shares of the Corporation's Common
Stock consenting to the adoption of this Restated and Amended Certificate of
Incorporation in accordance with the provisions of Sections 228 and 242 of the
DGCL and the terms of the Corporation's certificate of incorporation in effect
prior to the effective time hereof, such holders being a majority of the holders
of the Corporation's capital stock entitled to vote thereon.
3. The text of the Corporation's certificate of incorporation is hereby
amended and restated in its entirety to provide as follows:
ARTICLE I
NAME
The name of the corporation is HarvardNET Inc. (the "CORPORATION").
<PAGE>
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware (the
"DGCL").
ARTICLE IV
CAPITAL SECURITIES
The total number of shares of capital stock that the Corporation shall have
authority to issue is 43,864,422 shares, each of which shall have a par value of
$.01 per share and of which (i) 14,105,734 shares are hereby designated as
Series A Preferred Stock ("SERIES A PREFERRED STOCK"), (ii) 25,272,438 shares
are hereby designated as Common Stock, and (iii) 4,486,250 shares are hereby
designated as Class B Stock ("CLASS B STOCK"). The Series A Preferred Stock is
further divided into 13,749,440 shares of Series A-1 Preferred Stock and 356,294
shares of Series A-2 Preferred Stock. Shares of the two series are identical for
all purposes except for the dollar amounts of their liquidation preference,
redemption price, and conversion price, as hereinafter provided. The foregoing
numbers of shares reflect all stock splits which have occurred prior to the date
of this restatement and amendment. All shares of Series A Preferred Stock
heretofore issued and outstanding are hereby designated as shares of Series A-1
Preferred Stock.
The Corporation is authorized to issue, from time to time, all or any
portion of the capital stock of the Corporation that is authorized but not
issued, to such person or persons and for such lawful consideration as it may
deem appropriate,
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and generally in its absolute discretion to determine the terms and manner of
any disposition of such authorized but unissued capital stock.
Any and all such shares issued for which the full consideration has been
paid or delivered shall be deemed fully paid shares of capital stock, and the
holder of such shares shall not be liable for any further call or assessment or
any other payment thereon.
The voting powers, designations, preferences, privileges and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions of each class of capital stock of the Corporation
shall be as hereafter provided in this Article IV.
A. SERIES A PREFERRED STOCK
1. VOTING.
(a) VOTING GENERALLY. The holder of each share of Series A Preferred
Stock shall be entitled to the number of votes equal to the largest number of
shares of Common Stock into which each share of Series A Preferred Stock may be
converted pursuant to Section A.5 on the record date for the vote or for written
consent of stockholders, as applicable. The holder of each share of Series A
Preferred Stock shall be entitled to notice of any stockholders' meeting in
accordance with the by-laws of the Corporation and shall vote together with
holders of the Common Stock and Class B Stock, voting together as single class,
upon all matters submitted to a vote of stockholders at all meetings of
stockholders (and written actions in lieu of meetings). Fractional votes shall
not, however, be permitted and any fractional voting rights resulting from the
above formula (after aggregating all shares of Common Stock into which shares of
Series A Preferred Stock held by each holder may be converted) shall be rounded
to the nearest whole number (with one-half rounded upward to one).
(b) SPECIAL APPROVAL RIGHTS. Without limitation of the foregoing
provisions of this Section A.1, the affirmative vote of the holders of not less
than 60% of the issued and outstanding Series A Preferred Stock, acting by
written consent or voting separately as a single class in person or by proxy, at
a special or annual meeting of stockholders called for the purpose, shall be
necessary to authorize the Corporation to take any of the following actions:
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(A) authorize or increase, or permit any Subsidiary to authorize or
increase, the authorized number of shares of, or issue any class or series of
the Corporation's or any Subsidiary's capital stock or options, warrants or
other rights to acquire any such capital stock other than Excluded Securities;
(B) amend, repeal or change, directly or indirectly, any of the
provisions of this Restated and Amended Certificate of Incorporation or the
by-laws of the Corporation (provided, that (x) any such amendment, repeal or
change which affects the Series A-1 Preferred Stock or the Series A-2 Preferred
Stock in a different manner from the other such series shall require the
affirmative vote of holders of not less than (1) 60% of the issued and
outstanding Series A-1 Preferred Stock and (2) 60% of the issued and outstanding
Series A-2 Preferred Stock, voting separately and (y) no amendment, repeal or
change that improves the rights or position of the Series A-1 Preferred Stock
may be made without a corresponding amendment, repeal or change being made that
improves the Series A-2 Preferred Stock in a similar fashion;
(C) authorize or effect, or permit any Subsidiary to authorize or
effect, the sale, lease, license, abandonment or other disposition of all or any
substantial portion of the assets of the Corporation or any Subsidiary (except
as otherwise provided in the Stockholder's Agreement);
(D) authorize or effect, or permit any Subsidiary to authorize or
effect, the merger or consolidation of the Corporation or any Subsidiary with
any other Person (except as otherwise provided in the Stockholder's Agreement);
(E) authorize or effect, or permit any Subsidiary to authorize or
effect, the liquidation (whether complete or partial), dissolution or winding up
of the Corporation or any Subsidiary (except as otherwise provided in the
Stockholder's Agreement);
(F) authorize the Corporation, or permit any Subsidiary, to incur,
create, assume, become or be liable, directly, indirectly or contingently, in
any manner with respect to, or permit to exist, any indebtedness or liability
for borrowed money, including, without limitation, indebtedness under capital
leases or the like, if the aggregate of all such indebtedness and liabilities of
the Corporation or any Subsidiary exceeds the principal amount of $250,000; or
to amend or modify in any material respect the terms of any such indebtedness or
liability;
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(G) authorize or effect, or permit any Subsidiary to authorize or
effect, the acquisition in any manner, directly or indirectly, of a business
unit, going concern or all or a substantial portion of the Capital Securities or
assets of any Person by the Corporation or any Subsidiary;
(H) authorize or enter into, or permit any Subsidiary to authorize or
enter into, any transaction, including, without limitation, the purchase, sale
or exchange of property or assets or the rendering or accepting or any service
with or to any Affiliate of the Corporation, or to amend any agreement between
the Corporation and such Affiliates, or waive any substantial right thereof,
except in the ordinary course of business and pursuant to the reasonable
requirements of its business and upon terms not less favorable to the
Corporation than it could obtain in a comparable arm's length transaction with a
third party other than such Affiliate;
(I) authorize or effect the declaration or payment of dividends or
other distributions upon, or the redemption or repurchase of, any equity
securities of the Corporation other than repurchase of Common Stock from
departing employees pursuant to the terms of any stock option or ownership plan
that has been approved by the Board of Directors and as contemplated by the
Redemption Agreements, and other than the redemption of Series A Preferred Stock
as herein provided; and
(J) authorize or effect, or permit any Subsidiary to authorize or
effect any of the following: (i) the organization of any new or indirect
subsidiaries, joint ventures, partnerships or similar arrangements or the
material amendment or modification of any joint venture or partnership agreement
to which the Corporation or any Subsidiary is a party; (ii) the Corporation or
any Subsidiary becoming a general partner of any partnership or a member of any
limited liability company; and (iii) the reorganization or recapitalization of
the Corporation or any Subsidiary.
2. DIVIDENDS. (a) Subject to the provisions of Section A.2(c), the
holders of Series A Preferred Stock shall be entitled, in preference to the
holders of any and all other classes of capital stock of the Corporation, to
receive on each share of Series A Preferred Stock, out of funds legally
available therefor, cumulative cash dividends payable at the rate of 12.5% PER
ANNUM on the sum of $1.34551, in the case of the Series A-1 Preferred Stock, and
on the sum of $4.27, in the case of the Series A-2 Preferred Stock (such
respective amounts, as adjusted from time to time in accordance with Section
A.2(b), are together referred to as the "SERIES A
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PURCHASE PRICE" and such term, when used in connection with shares of either
Series A-1 Preferred Stock or Series A-2 Preferred Stock, shall mean the
respective amount to which such shares are entitled hereunder). Such dividends
will be calculated and compounded annually in arrears on December 31 of each
year in respect of the prior twelve month period (prorated on a daily basis for
partial periods). Such dividends shall commence to accrue on each share of
Series A Preferred Stock from the date of issuance thereof, whether or not
declared by the Board of Directors and whether or not there are profits, surplus
or other funds of the Corporation legally available for the payment of
dividends, and shall continue to accrue until the Series A Liquidation
Preference (as defined in Section A.3(a))is paid in full in cash or until the
conversion of the Series A Preferred Stock in accordance with Section A.5 (such
dividends being referred to as the "SERIES A DIVIDENDS"). Series A Dividends
shall be due and payable with respect to any share of Series A Preferred Stock
as provided in Sections A.3 and A.4. Series A Dividends paid in cash in an
amount less than the total amount of such dividends at the time accumulated and
payable on all outstanding shares of Series A Preferred Stock shall be allocated
PRO RATA on a share-by-share basis, based upon the dollar amount which each such
share is entitled to receive as a Series A-1 share or a Series A-2 share (a "Pro
Rata Basis"), among all such shares at the time outstanding. At any time when
shares of Series A Preferred Stock are outstanding and the Series A Dividends
have not been paid in full in cash, (a) no dividend whatsoever shall be paid or
declared, and no distribution shall be made, on any share of the Corporation's
Capital Securities ranking junior to the Series A Preferred Stock, and (b) the
Corporation shall not, and shall not permit any Subsidiary to, purchase, redeem
or acquire any Capital Securities of the Corporation ranking junior to the
Series A Preferred Stock, any Convertible Securities or any Capital Securities
of any Subsidiary, and no monies shall be paid into or set aside or made
available for a sinking or other analogous fund for the purchase, redemption or
acquisition thereof; PROVIDED, HOWEVER, that the Corporation and its
Subsidiaries may purchase, redeem or acquire shares of Common Stock, Class B
Stock and Convertible Securities issued to employees, officers or directors of,
or consultants or other service providers to, the Corporation or its
Subsidiaries pursuant to equity incentive plans or other arrangements approved
by the Board of Directors and as contemplated by the Redemption Agreements.
(b) All numbers relating to the calculation of dividends pursuant to
this Section A.2 shall be equitably adjusted to reflect any stock split, stock
dividend,
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combination, reorganization, recapitalization, reclassification or
other similar event involving the Series A Preferred Stock occurring after the
date of this restatement and amendment.
(c) Notwithstanding anything in this Section A.2 to the contrary, all
of the accumulated Series A Dividends shall be canceled upon the conversion of
the Series A Preferred Stock into shares of Common Stock in accordance with
Section A.5.
3. LIQUIDATION.
(a) LIQUIDATION PREFERENCE. Upon a Sale of the Corporation or any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary (a Sale of the Corporation or any such liquidation, dissolution or
winding up being referred to as a "LIQUIDATION EVENT"), each holder of
outstanding shares of Series A Preferred Stock shall be entitled to be paid with
respect to each share of Series A Preferred Stock out of the assets of the
Corporation available for distribution to stockholders, whether such assets are
capital, surplus or earnings, and before any amount shall be paid or distributed
to the holders of Common Stock, Class B Stock or of any other Capital Securities
ranking junior to the Series A Preferred Stock, an amount in cash equal to the
sum of (i) the Series A-1 Purchase Price for such shares of Series A-1 Preferred
Stock or Series A-2 Preferred Stock plus (ii) any accumulated but unpaid
dividends to which such holder of outstanding shares of Series A Preferred Stock
is then entitled pursuant to Sections A.2 and A.4(d) hereof, plus (iii) any
interest accrued pursuant to Section A.4(c) (such sum being referred to as the
"SERIES A LIQUIDATION PREFERENCE"); PROVIDED, HOWEVER, that if upon any
Liquidation Event, the amounts payable with respect to the issued and
outstanding Series A Preferred Stock are not paid in full, the amounts available
for distribution shall be distributed on a Pro Rata Basis among the holders of
Series A Preferred Stock. Notwithstanding the foregoing, a Sale of the
Corporation shall not be deemed to be a Liquidation Event for the purposes of
this Section A.3 if the holders of not less than 60% of the issued and
outstanding Series A Preferred Stock waive in writing the provisions of this
Section A.3 with respect to such transaction. Any reorganization of the
Corporation required by any court or administrative body in order to comply with
any provision of law shall be deemed to be a Liquidation Event for all purposes
hereof unless the preferences, qualifications, limitations, restrictions and
special or relative rights granted to or imposed upon the holders of Series A
Preferred Stock are not adversely affected by such reorganization.
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(b) The provisions of this Section A.3 shall not in any way limit the
right of the holders of Series A Preferred Stock to elect to convert their
shares of Series A Preferred Stock into shares of Common Stock pursuant to
Section A.5 below prior to or in connection with any Liquidation Event.
(c) Holders of Series A Preferred Stock shall not be entitled to any
additional distribution on account of their Series A Preferred Stock upon the
occurrence of any Liquidation Event in excess of the Series A Liquidation
Preference.
4. REDEMPTION.
(a) HOLDERS' ELECTION. At the request of any holder or holders of
issued and outstanding Series A Preferred Stock made at any time on or after the
later of September 1, 2003 and the Termination Date, as that term is defined in
the Credit Agreement of even date with this Restated and Amended Certificate of
Incorporation between the Corporation, Morgan Stanley Senior Funding, Inc. and
the Initial Lenders named therein. The Corporation shall redeem all (and not
less than all, other than pursuant to Section A.4(c) below) of the outstanding
shares of Series A Preferred Stock held by such requesting holder or holders on
or before the date set for redemption thereof as provided below at the
redemption price specified in Section A.4(b). The foregoing election shall be
made by such holders delivering to the Corporation and each of the other holders
of Series A Preferred Stock not less than thirty (30) days' prior written
notice, which notice thereof shall set forth the date for such redemption that
will not be less than thirty (30) days nor more than sixty (60) days from the
date of such written notice.
(b) REDEMPTION DATE: REDEMPTION PRICE. Any date upon which a
redemption is to occur as specified in a notice thereof in accordance with
Section A.4(a) is referred to as a "SERIES A REDEMPTION DATE." The redemption
price for each share of Series A Preferred Stock redeemed pursuant to Section
A.4 shall be the Series A Liquidation Preference as of the date such share of
Series A-1 Preferred Stock or Series A-2 Preferred Stock is redeemed in full in
cash. Such redemption price shall be payable in cash in immediately available
funds on the Series A Redemption Date. Until the full redemption price has been
paid in cash for all shares of Series A Preferred Stock for which a redemption
notice has been provided pursuant to Section A.4(a), (A) no dividend whatsoever
shall be paid or declared, and no distribution shall be made, on any share of
the Corporation's Capital Securities ranking junior to the Series A Preferred
Stock and (B) the
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Corporation shall not, and shall not permit any Subsidiary to, purchase, redeem
or acquire any Capital Securities of the Corporation (other than the Series A
Preferred Stock in accordance with this Section A.4), any Convertible Securities
or any Capital Securities of any Subsidiary, and no monies shall be paid into or
set aside or made available for a sinking or other analogous fund for the
purchase, redemption or acquisition thereof; PROVIDED, HOWEVER, that the
Corporation and its Subsidiaries may purchase, redeem or acquire shares of
Common Stock, Class B Stock and Convertible Securities issued to employees,
officers or directors of, or consultants or other service providers to, the
Corporation or its Subsidiaries pursuant to equity incentive plans or other
arrangements approved by the Board of Directors.
(c) REDEMPTION PROHIBITED. If, at a Series A Preferred Redemption
Date, the Corporation is prohibited under the DGCL or other applicable law from
redeeming all shares of Series A Preferred Stock for which redemption is
required hereunder, then it shall redeem such shares on a PRO RATA basis among
the holders of Series A Preferred Stock in proportion to the full respective
redemption amounts to which they are entitled hereunder to the extent the
Corporation is not so legally prohibited from doing so and shall redeem the
remaining shares to be redeemed as soon as the Corporation is not legally
prohibited from redeeming some or all of such shares. Any shares of Series A
Preferred Stock not redeemed shall remain outstanding and entitled to all of the
rights and preferences provided in this Article IV. In the event that the
Corporation fails to redeem shares for which redemption is required pursuant to
Section A.4(a), then during the period from the applicable Series A Redemption
Date through the date on which such shares are redeemed, the applicable
redemption price of such shares plus additional dividends that accumulate in
respect of such shares under Section A.4(d) shall bear interest at the rate of
10% PER ANNUM, compounded annually. Without limitation of the foregoing, the
Corporation shall take such action as shall be necessary or appropriate to
remove promptly any impediments to its ability to redeem Series A Preferred
Stock under the circumstances contemplated by this Section A.4. Any successor to
the Corporation shall agree, as a condition to such succession, to carry out and
observe the obligations of the Corporation hereunder with respect to the Series
A Preferred Stock.
(d) DIVIDEND AFTER CONVERTIBLE PREFERRED REDEMPTION DATE. From and
after a Series A Redemption Date, no shares of Series A Preferred Stock subject
to redemption shall be entitled to dividends as provided in Section A.2;
PROVIDED, HOWEVER, that in the event that shares of Series A Preferred Stock are
not
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for any reason redeemed and continue to be outstanding after the Series A
Redemption Date, such shares shall continue to be entitled to dividends as
provided in Section A.2 and interest as provided in Section A.4(c) until the
date on which such shares are actually redeemed by the Corporation in full cash.
(e) SURRENDER OF CERTIFICATES. Upon receipt of the applicable
redemption price therefor, each holder of shares of Series A Preferred Stock so
redeemed shall surrender the certificate or certificates representing such
shares so redeemed to the Corporation, duly assigned or endorsed for transfer
(or accompanied by duly executed stock powers relating thereto), or shall
deliver an affidavit or agreement satisfactory to the Corporation to indemnify
the Corporation (in the case of holders that are financial institutions, without
the need to post any bond or other security for such obligation) from any loss
incurred by it in connection therewith (such an affidavit or agreement with
respect to any share certificate issued by the Corporation is referred to as an
"AFFIDAVIT OF LOSS") with respect to such certificates at the principal
executive office of the Corporation or the office of the transfer agent for the
Series A Preferred Stock or such office or offices in the continental United
States of an agent for redemption as may from time to time be designated by
notice to the holders of Series A Preferred Stock, and each surrendered
certificate shall be canceled and retired.
5. CONVERSION INTO COMMON STOCK. The holders of the Series A Preferred
Stock shall have the following conversion rights:
(a) VOLUNTARY CONVERSION. (i) At any time, each holder of shares of
Series A Preferred Stock shall be entitled, without the payment of any
additional consideration, to cause each outstanding share of Series A Preferred
Stock held by such holder (but not less than all of such shares) to be converted
into a number of shares of fully paid and nonassessable Common Stock determined
as hereafter provided in this Section A.5(a).
(ii) The number of shares of Common Stock issuable per share of Series
A Preferred Stock held by each holder thereof shall equal (aa) for the Series
A-1 Preferred Stock, the product of (i) the quotient of (x) the difference (but
not less than zero) between (A) the aggregate number of shares of Series A
Preferred Stock that such holder shall have committed to purchase from the
Corporation as specified under the heading "Total Number of Shares of Series A
Preferred Stock Committed to be Purchased" on Schedule 2.1(a) to the Securities
Purchase Agreement minus (B) the number of shares of Common Stock into which
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previously outstanding shares of Series A Preferred Stock held by such holder
have theretofore been converted in accordance with this Section A.5, divided by
(y) the number of issued and outstanding shares of Series A Preferred Stock held
by such holder as of the date of conversion, including, without limitation,
those shares of Series A Preferred Stock being converted by such holder on such
date, multiplied by (ii) the quotient of (x) the Series A Purchase Price for
such shares of Series A-1 Preferred Stock divided by (y) the Conversion Price
(as defined below) per share, both as in effect at the time of conversion and
(bb) for the Series A-2 Preferred Stock, the Series A Purchase Price for such
shares of Series A-2 Preferred Stock divided by the Conversion Price per share
both as in effect at the time of conversion.
(iii) Notwithstanding the provisions of the preceding paragraph (ii)
to the contrary: (A) the number of shares of Common Stock issuable per share of
Series A-1 Preferred Stock held by any holder thereof who has breached its
obligations to the Company in accordance with Section 2.1(c) of the Securities
Purchase Agreement to purchase shares of Series A-1 Preferred Stock shall be
equal to the quotient of (x) the Series A-1 Purchase Price divided by (y) the
Conversion Price per share, both as in effect at the time conversion; and (B) if
a holder of Series A-1 Preferred Stock shall have converted such shares into
Common Stock in accordance with this Section A.5 and thereafter breaches such
holder's obligation to make capital contributions to the Corporation in
accordance with Section 2.1(d) of the Securities Purchase Agreement, then, upon
such breach and until such time as such holder makes such capital contributions
to the Corporation, the number of shares of Common Stock that shall be deemed to
have been issued to such holder for all purposes by reason of any such prior
conversion of Series A-1 Preferred Stock shall equal the product (rounded up to
the nearest whole number of shares) of (x) the quotient of (1) the aggregate
amount of cash theretofore paid by such holder to the Corporation in accordance
with the Securities Purchase Agreement for shares of Series A-1 Preferred Stock
and in satisfaction of such holders obligation to make capital contributions to
the Corporation divided by (2) the Series A-1 Purchase Price as of the date of
such breach, multiplied by (y) the quotient of (1) the Series A-1 Purchase
Price, divided by (2) the Conversion Price per share, both as in effect as of
the date of such breach. Notwithstanding clause (B) of the preceding sentence,
unless the Corporation specifically enforces its rights to receive capital
contributions in accordance with Section
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2.1(d) of the Securities Purchase Agreement, a holder that breaches its
obligation to make a capital contribution in accordance with Section 2.1(d) of
the Securities Purchase Agreement shall not have the right to cure such breach
by making such capital contribution after the 30th day following the date such
capital contribution is due, and thereafter the number of shares of Common Stock
that shall be deemed to have been issued to such holder for all purposes by
reason of the prior conversion of such holders shares of Series A-1 Preferred
Stock shall be equal to the product specified in clause (B) of the preceding
sentence. If at any time by operation of this Section A.5(a)(iii) the number of
shares of Common Stock deemed issued upon a prior conversion of Series A-1
Preferred Stock is reduced, the holder of the stock certificates evidencing the
shares of Common Stock initially issued upon such prior conversion of Series A-1
Preferred Stock shall immediately surrender such certificates to the
Corporation, duly endorsed to the Corporation for transfer, in exchange for new
certificates issued by the Corporation evidencing the reduced number of shares
of Common Stock to which such holder is entitled in accordance with this Section
A.5(a)(iii).
(iv) Upon the filing of this Restated and Amended Certificate of
Incorporation with the Delaware Secretary of State, the initial "CONVERSION
PRICE" for each share of Series A Preferred Stock shall be the Series A Purchase
Price for such share of Series A-1 Preferred Stock or Series A-2 Preferred
Stock, as the case may be.
(v) The number of shares of Common Stock into which shares of Series A
Preferred Stock are convertible and the Conversion Price are subject to
adjustment from time to time as provided in Section A.9 hereof.
(vi) In addition to the voluntary conversions contemplated by
paragraph (i) of this Section, all outstanding shares of Series A Preferred
Stock shall be automatically converted into shares of Common Stock immediately
upon the conversion of 60% or more of the outstanding Series A Preferred Stock
in accordance with this Section A.5(a).
(b) AUTOMATIC CONVERSION UPON QUALIFIED PUBLIC OFFERING OR SALE OF THE
COMPANY. Each share of Series A Preferred Stock shall automatically be
converted, without the payment of any additional consideration, into the number
of shares of Common Stock provided for in Section A.5(a) as of the date of, and
in all cases subject to, the consummation of either of the following: (A) the
Corporation's first underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, that is
consummated on or before September 1, 2003 and where (i) the aggregate gross
proceeds attributable to
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sales for the account of the Corporation in such public offering equal or exceed
$20,000,000, (ii) the price per share for which shares of Common Stock are sold
in such public offering is not less than four (4) times the Series A Purchase
Price for the Series A-1 Preferred Stock as in effect on such date (as equitably
adjusted to reflect any stock split, stock dividend, combination,
reorganization, recapitalization, reclassification or other similar event
involving the Series A Preferred Stock), and (iii) after giving effect to which
shares of Common Stock are listed on a national securities exchange or the
NASDAQ National Market System (a "QUALIFIED PUBLIC OFFERING"); or (B) the
consummation of a Sale of the Corporation on or before September 1, 2003 where
the consideration payable on or with respect to each share of Common Stock
(after giving effect to the conversion of all Series A Preferred Stock) is not
less than four (4) times the Series A Purchase Price as in effect on such date
(as equitably adjusted to reflect any stock split, stock dividend, combination,
reorganization, recapitalization, reclassification or other similar event
involving the Series A Preferred Stock (a "QUALIFIED SALE"). Notwithstanding the
foregoing if a Qualified Public Offering or a Qualified Sale is consummated, all
outstanding shares of Series A Preferred Stock shall be deemed to have been
converted into shares of Common Stock as provided in this Section A.5
immediately prior to such consummation.
(c) PROCEDURE FOR VOLUNTARY CONVERSION: EFFECTIVE DATE. Upon the
election to convert the Series A Preferred Stock made in accordance with Section
A.5(a), the holders of the Series A Preferred Stock making such election shall
provide written notice of such conversion (the "SERIES A VOLUNTARY CONVERSION
NOTICE") to the Corporation and each other holder of Series A Preferred Stock
that does not sign such notice. On the date the Series A Voluntary Conversion
Notice is delivered to the Corporation, all outstanding shares of Series A
Preferred Stock held by the electing holders (and in the case where the holders
of 60% or more of the then outstanding Series A Preferred Stock elect to convert
their Series A Preferred Stock, then all outstanding shares of Series A
Preferred Stock held by all holders thereof) shall thereupon be converted,
without further action, into the number of shares of Common Stock provided for
in Section A.5(a), and such number of shares of Common Stock into which the
Series A Preferred Stock is converted shall thereupon be deemed to have been
issued to such holders of Series A Preferred Stock. Such holders shall as soon
as practicable thereafter surrender to the Corporation at the Corporation's
principal executive office the certificate or certificates evidencing Series A
Preferred Stock, duly assigned or endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating
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thereto), or an Affidavit of Loss with respect thereto. Upon surrender of such
certificates or delivery of an Affidavit of Loss with respect thereto, the
Corporation shall issue and deliver to the holder so surrendering such
certificates or to such holder's designee, at an address designated by such
holder, certificates for the number of shares of Common Stock into which such
holder's Series A Preferred Stock shall have been converted. The issuance of
certificates for shares of Common Stock upon conversion of Series A Preferred
Stock will be made without charge to the holders of such shares for any issuance
tax in respect thereof or other costs incurred by the Corporation in connection
with such conversion and the related issuance of such stock, provided, that the
holder shall be required to pay any tax liability that it incurs in respect of
any transfer effected in connection with the issuance or delivery of any share
certificates in a name other than such holder. Notwithstanding anything to the
contrary set forth in this Section A.5(c), in the event that holders of shares
of Series A Preferred Stock elect to convert such shares pursuant to Section
A.5(a) in connection with any Liquidation Event or Public Offering (not
including the Qualified Public Offering), (i) such conversion may at the
election of such holders be conditioned upon the consummation of such
Liquidation Event or Public Offering, in which case, such conversion shall not
be deemed to be effective until the consummation of such Liquidation Event or
Public Offering and (ii) if such Liquidation Event or Public Offering occurs,
the shares of Series A Preferred Stock to be converted subject to the
consummation of such Liquidating Event or Public Offering shall be deemed to
have been converted into shares of Common Stock immediately prior thereto,
provided that the Corporation shall make appropriate provisions for the Common
Stock issued upon such conversion to be treated on the same basis as all other
Common Stock in such Liquidation Event or Public Offering.
(d) PROCEDURE FOR AUTOMATIC CONVERSION. As of the date of, and in all
cases subject to, the consummation of the Qualified Public Offering, all
outstanding shares of Series A Preferred Stock shall be converted automatically,
without further action, into the number of shares of Common Stock provided for
in Section A.5(a), and such number of shares of Common Stock into which the
Series A Preferred Stock is converted shall be deemed to have been issued to the
holders of Series A Preferred Stock. Such holders shall as soon as practicable
thereafter surrender the certificate or certificates evidencing the Series A
Preferred Stock, duly assigned or endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating thereto) or an Affidavit of
Loss with respect thereto. Upon surrender of such certificates or delivery of an
Affidavit of Loss with respect
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thereto, the Corporation shall issue and deliver to such holder so surrendering
such certificates or to such holder's designee, promptly (and in any event in
such time as is sufficient to enable such holder to participate in such
Qualified Public Offering) at an address designated by such holder, certificates
for the number of shares of Common Stock into which such holder's Series A
Preferred Stock shall have been converted.
6. NOTICE.
(a) LIQUIDATION EVENTS, EXTRAORDINARY TRANSACTIONS, ETC. In the event
(i) the Corporation establishes a record date to determine the holders of any
class of securities who are entitled to receive any dividend or other
distribution or who are entitled to vote at a meeting (or by written consent) in
connection with any of the transactions identified in clause (ii) hereof, or
(ii) any Liquidation Event, or any Public Offering, including without
limitation, a Qualified Public Offering, becomes reasonably likely to occur or
the Corporation enters into any agreement with respect thereto, the Corporation
shall mail or cause to be mailed by first class mail (postage prepaid) to each
holder of Series A Preferred Stock at least thirty (30) days prior to such
record date specified therein or the expected effective date of any such
transaction, a notice specifying (A) the date of such record date for the
purpose of such dividend or distribution or meeting or consent and a description
of such dividend or distribution or the action to be taken at such meeting or by
such consent, (B) the date on which any such Liquidation Event, or Public
Offering is expected to become effective and, in the case of a Sale of the
Corporation, the identity of the parties thereto, and (C) the date on which the
books of the Corporation shall close or a record shall be taken with respect to
any such event.
(b) WAIVER OF NOTICE. The holder or holders of not less than 60% of
the combined voting power of the outstanding shares of Series A Preferred Stock
may, at any time upon written notice to the Corporation, waive, either
prospectively or retrospectively, any notice provisions specified herein, and
any such waiver shall be effective as to all holders of Series A Preferred
Stock.
(c) GENERAL. In the event that the Corporation provides any notice,
report or statement to any holder of Common Stock, the Corporation shall at the
same time provide a copy of any such notice, report or statement to each holder
of outstanding shares of Series A Preferred Stock.
7. RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation shall
at all times reserve and keep available out of its authorized but unissued
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shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of Series A Preferred Stock, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of Series A Preferred Stock, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of Series A Preferred Stock into
Common Stock, the Corporation will take all such corporate action as may be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purpose.
8. VALUATION OF DISTRIBUTION SECURITIES. Any securities or other
consideration to be delivered to the holders of the Series A Preferred Stock,
upon any Liquidation Event in accordance with the terms hereof shall be valued
as follows:
(i) If traded on a nationally recognized securities exchange or
interdealer quotation system, the value shall be deemed to be the average of the
closing prices of the securities on such exchange or system over the 30-day
period ending three (3) business days prior to the closing;
(ii) If traded over-the-counter, the value shall be deemed to be
the average of the closing bid prices over the 30-day period ending three (3)
business days prior to the closing; and
(iii) If there is no active public market, the value shall be the
fair market value thereof, as mutually determined by the Corporation and the
holders of not less than 60% of the combined voting power of the issued and
outstanding shares of Series A Preferred Stock; PROVIDED that if the Corporation
and the holders of such percentage of the combined voting power of the issued
and outstanding shares of Series A Preferred Stock are unable to reach
agreement, then by independent appraisal by an investment banker hired and paid
by the Corporation, but reasonably acceptable to the holders of such percentage
of the combined voting power of the issued and outstanding shares of Series A
Preferred Stock.
9. ADJUSTMENTS.
(a) ADJUSTMENTS FOR SUBDIVISIONS, COMBINATIONS OR CONSOLIDATION OF
COMMON STOCK. In the event the outstanding shares of Common Stock shall be
subdivided by stock split, stock dividends or otherwise, into a greater number
of
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shares of Common Stock, the Conversion Price then in effect shall, concurrently
with the effectiveness of such subdivision, be proportionately decreased. In the
event the outstanding shares of Common Stock shall be combined or consolidated,
by reclassification or otherwise, into a lesser number of shares of Common
Stock, the Conversion Price then in effect shall, concurrently with the
effectiveness of such combination or consolidation, be proportionately
increased.
(b) ADJUSTMENTS FOR STOCK DIVIDENDS AND OTHER DISTRIBUTIONS. In the
event the Corporation at any time or from time to time makes, or fixes a record
date for the determination of holders of Common Stock entitled to receive any
distribution (excluding any repurchases of securities by the Corporation not
made on a PRO RATA basis from all holders of any class of the Corporation's
securities) payable in property or in securities of the Corporation other than
shares of Common Stock, and other than as otherwise adjusted in accordance
herewith, then and in each such event the holders of Series A Preferred Stock
shall receive at the time of such distribution, the amount of property or the
number of securities of the Corporation that they would have received had their
Series A Preferred Stock been converted into Common Stock on the date of such
event or the record date therefor.
(c) ADJUSTMENTS FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If
the Common Stock issuable upon conversion of the Series A Preferred Stock shall
be changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or other
transaction (other than a subdivision or combination of shares provided for
above), each share of Series A Preferred Stock shall thereafter be convertible
into the number 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 share of Series A Preferred Stock shall have been
entitled upon such reorganization, reclassification or other transaction.
(d) ADJUSTMENTS OF THE CONVERSION PRICE. If and whenever on or after
the date the first share of Series A Preferred Stock is issued the Corporation
issues or sells, or in accordance with Section A.9(e) is deemed to have issued
or sold, any shares of its Common Stock or Convertible Securities for a
consideration per share less than the Conversion Price of shares of Series A-1
Preferred Stock and/or Series A-1 Preferred Stock in effect immediately prior to
the time of such issue or sale, then upon such issue or sale, the Conversion
Price of shares of Series A-1 Preferred Stock and/or Series A-1 Preferred Stock,
as the case may be, shall be
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reduced to an amount determined by dividing (a) the sum of (1) the product
derived by multiplying (i) the Conversion Price of such shares in effect
immediately prior to such issue or sale times (ii) the number of shares of
Common Stock Deemed Outstanding immediately prior to such issue or sale, plus
(2) the consideration, if any, received (or deemed received) by the Corporation
upon such issue or sale, by (b) the number of shares of Common Stock Deemed
Outstanding immediately after such issue or sale.
(e) EFFECT OF CERTAIN EVENTS ON CONVERSION PRICE. For purposes of
determining the adjusted Conversion Price under Section A.9(d), the following
shall be applicable:
(i) ISSUANCE OF CONVERTIBLE SECURITIES. If the Corporation in any
manner issues or sells any Convertible Securities, whether or not the rights to
exercise, convert or exchange any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is issuable upon
such conversion or exchange is less than the Conversion Price of Series A-1
Preferred Stock and/or Series A-2 Preferred Stock in effect immediately prior to
the time of such issue or sale, then the maximum number of shares of Common
Stock issuable upon the exercise, conversion or exchange of such Convertible
Securities shall be deemed to be outstanding and to have been issued and sold by
the Corporation at the time of the issuance or sale of such Convertible
Securities for such price per share. For the purposes of this paragraph, the
"price per share for which Common Stock is issuable" shall be determined by
dividing (a) the total amount received or receivable by the Corporation as
consideration for the issue or sale of such Convertible Securities, plus the
cumulative minimum aggregate amount of additional consideration, if any, payable
to the Corporation upon the exercise, conversion or exchange thereof and, if
applicable, the exercise, conversion and exchange of any other Convertible
Securities that such Convertible Securities may be converted into or exercised
or exchanged for (in each case, as set forth in the instruments and agreements
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such consideration), by (b) the total maximum number of
shares of Common Stock issuable upon the exercise, conversion or exchange of all
such Convertible Securities (as set forth in the instruments and agreements
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such number). No further adjustment of the Conversion
Price shall be made when Common Stock and, if applicable, any other Convertible
Securities, are actually issued upon the exercise, conversion or exchange of
such Convertible Securities.
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(ii) CHANGE IN EXERCISE PRICE OR CONVERSION RATE. If the
additional consideration payable to the Corporation upon the exercise,
conversion or exchange of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exchangeable for Common Stock
should change at any time, the Conversion Price in effect at the time of such
change shall be readjusted to the Conversion Price that would have been in
effect at such time had such Convertible Securities that are still outstanding
provided for such changed additional consideration or changed conversion rate,
as the case may be, at the time such Convertible Securities were initially
granted, issued or sold; and on the termination date of any right to exercise,
convert or exchange such Convertible Securities without such right having been
duly exercised, the Conversion Price then in effect hereunder shall be increased
to the Conversion Price that would have been in effect at the time of such
termination had such Convertible Securities, to the extent outstanding
immediately prior to such termination, never been issued.
(iii) EXCEPTIONS FOR EXCLUDED SECURITIES. Notwithstanding the
foregoing, no adjustments shall be made under this Section A.9(e) with respect
to the issuance of any Excluded Securities.
(iv) VALUATION OF NON-CASH CONSIDERATION. The consideration
received by the Corporation for the issue of any shares of Common Stock,
Convertible Securities or any other Convertible Securities that such Convertible
Securities may be converted into or exercised or exchanged for shall be computed
as follows:
(A) insofar as such consideration consists of cash, such consideration
shall equal the aggregate amount of cash received by the Corporation prior to
amounts paid or payable for accrued interest or accrued dividends and prior to
any commissions or expenses paid by the Corporation;
(B) insofar as such consideration consists of property other than
cash, such consideration shall be calculated at the fair value thereof at the
time of such issue, as determined in good faith by the Board of Directors; and
(C) in the event shares of Common Stock, Convertible Securities or any
other Convertible Securities that such Convertible Securities may be converted
into or exercised or exchanged for are issued together with other securities or
other assets of the Corporation for consideration that is allocable to both such
Common Stock and Convertible Securities, and to such other securities and
assets, the portion of such consideration allocable to such Common Stock or
Convertible
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Securities shall be that set forth in the instruments and agreements issued or
entered into in connection with such transaction, and if no such allocation is
so set forth, then the portion of such consideration allocable to such Common
Stock or Convertible Securities, calculated as provided in clauses (A) and (B)
above, as determined in good faith by the Board of Directors.
(f) OTHER DILUTIVE ISSUANCES. If an event not specified in this
Section A.9 occurs that has substantially the same economic effect on the Series
A Preferred Stock as those specifically enumerated, then this Section A.9 shall
be construed liberally, MUTATIS MUTANDIS, in order to give the holders of Series
A Preferred Stock the intended benefit of the protections provided under this
Section A.9. In such event, the Corporation's Board of Directors shall make an
appropriate adjustment in the Conversion Price so as to protect the rights of
the holders of Series A Preferred Stock; PROVIDED that no such adjustment shall
increase the Conversion Price as otherwise determined pursuant to this Section
A.9 or decrease the number of shares of Common Stock issuable upon conversion of
each share of Series A Preferred Stock.
(g) NO IMPAIRMENT. The Corporation will not, by amendment of its
certificate 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, and will at
all times in good faith assist in the carrying out of all the provisions of this
Section A.9 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 Series A
Preferred Stock against impairment.
(h) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section A.9,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
the affected class of Series A Preferred Stock a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of any holder of Series A Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price at the time in effect,
and (iii) the number of shares of Common
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Stock and the amount, if any, of other property that at the time would be
received upon the conversion of such holder's Series A Preferred Stock.
10. NO CLOSING OF TRANSFER BOOKS. The Corporation shall not close its
books against the transfer of shares of Series A Preferred Stock in any manner
that would interfere with the timely conversion of any shares of Series A
Preferred Stock.
11. NO REISSUANCE OF SERIES A PREFERRED STOCK. No share or shares of
Series A Preferred Stock acquired by the Corporation by reason of redemption,
purchase, conversion or otherwise shall be reissued, and all such shares shall
be canceled, retired and eliminated from the shares that the Corporation shall
be authorized to issue.
B. COMMON STOCK
1. GENERAL. The voting, dividend and liquidation rights of the holders of
the Common Stock are subject to and qualified by the rights of the holders of
Series A Preferred Stock as specified herein.
2. VOTING. The holder of each share of Common Stock shall be entitled to
one vote for each share thereof held by such holder at all meetings of
stockholders (and written actions in lieu of meetings). The holder of each share
of Common Stock shall be entitled to notice of any stockholders' meeting in
accordance with the by-laws of the Corporation and shall vote together with
holders of Series A Preferred Stock and Class B Stock, voting together as a
single class upon all matters submitted to a vote of stockholders. There shall
be no cumulative voting.
3. DIVIDENDS. Dividends may be declared and paid on the Common Stock from
funds lawfully available therefor as and when determined by the Board of
Directors and approved by the holders of Series A Preferred Stock as provided in
Section A.1(b)(J), and subject to any preferential dividend rights of any then
outstanding shares of Series A Preferred Stock and any other class of the
Company's Capital Securities that may hereafter be authorized and issued having
preferred dividend rights senior to the rights of holders of Common Stock, and
subject also to the dividend rights of the holders of any then outstanding
shares of Class B Stock under Section C.3.
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4. LIQUIDATION. Upon the occurrence of a Liquidation Event, holders of
Common Stock will be entitled to receive all assets of the Corporation available
for distribution to its stockholders, subject to the rights and preferences of
any then outstanding shares of Series A Preferred Stock and any other class of
the Company's Capital Securities that may hereafter be authorized and issued
having preferred rights upon the occurrence of a Liquidation Event senior to the
rights of holders of Common Stock, and subject also to the rights in liquidation
of the holders of any the outstanding shares of Class B Stock under Section C.4.
C. CLASS B STOCK
1. GENERAL. The voting, dividend and liquidation rights of the holders of
the Class B Stock are subject to and qualified by the rights of the holders of
Series A Preferred Stock and Common Stock as specified herein.
2. VOTING. The holder of each share of Class B Stock shall be to one vote
for each share thereof held by such holder at all meetings of stockholders (and
written actions in lieu of meetings). The holder of each share of Class B Stock
shall be entitled to notice of any stockholders' meeting in accordance with the
by-laws of the Corporation and shall vote together with holders of Series A
Preferred Stock and Common Stock, voting together as a single class upon all
matters submitted to a vote of stockholders. There shall be no cumulative
voting.
3. DIVIDENDS. After the Corporation has paid dividends, made
distributions in liquidation or otherwise distributed to the holders of Series A
Preferred Stock and Common Stock an amount in the aggregate equal to the Minimum
Enterprise Value, the holders of Class B Stock shall share, PARI PASSU with the
holders of Common Stock, in all dividends declared and paid on the Common Stock
in accordance with Section B.3, such that the amount of any dividends declared
and paid on account of each share of Common Stock and Class B Stock shall be
equal.
4. LIQUIDATION. Subject to the rights and preferences of any then
outstanding shares of Series A Preferred Stock and any other class of the
Company's Capital Securities that may hereafter be authorized and issued having
preferred rights upon the occurrence of a Liquidation Event senior to the rights
of holders of Common Stock, upon the occurrence of a Liquidation Event and after
the Corporation has paid dividends, made distributions in liquidation or
otherwise distributed to holders of Series A Preferred Stock and Common Stock in
accordance with Section A.3 and B.4, respectively, an amount in the aggregate
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equal to the Minimum Enterprise Value, holders of Class B Stock, will be
entitled to receive, PARI PASSU with the holders of Common Stock, all assets of
the Corporation available for distribution to its stockholders, such that the
amount paid or distributed on account of each share of Common Stock and Class B
Stock shall be equal.
5. VOLUNTARY CONVERSION OF CLASS B STOCK INTO COMMON STOCK. At any time,
each holder of shares of Class B Stock shall be entitled, upon the payment to
the Corporation in cash of $1.34551 (as adjusted in accordance with Section C.8,
the "Class B Conversion Price") for each such share of Class B Stock to be
converted, to cause each outstanding share of Class B Stock held by such holder
(but not less than all of such shares) to be converted into one (1) share of
fully paid and nonassessable Common Stock. Holders of Class B Stock may pay the
Class B Conversion Price payable in connection with any such conversion by
surrendering to the Corporation such number of additional shares of Class B
Stock that such Holder and the Company's Board of Directors agree have a fair
market value at least equal to the Class B Conversion Price payable in
connection with such conversion.
6. MANDATORY CONVERSION OF CLASS B STOCK INTO COMMON STOCK.
(a) Each share of Class B Stock shall automatically be converted,
without the payment of any additional consideration, into the number of shares
of Common Stock provided for in Section C.6(b) immediately prior to the date of
the consummation of a Qualified Public Offering.
(b) The number of shares of Common Stock issuable per share of Class B
Stock held by each holder thereof shall equal the product of (i) the aggregate
number of shares of Class B Stock held by such holder as of the date of
conversion, multiplied by (ii) the quotient of (x) the difference (but not less
than zero) between (aa) the price per share for which shares of the Common Stock
are sold in such Qualified Public Offering (as stated on the cover page of the
prospectus relating thereto) minus (bb) the Class B Conversion Price at the time
of such conversion, divided by (y) the price per share for which shares of the
Common Stock are sold in such Qualified Public Offering (as stated on the cover
page of the prospectus relating thereto).
(c) As of the date of the consummation of a Public Offering, all
outstanding shares of Class B Stock shall be converted automatically, without
further action, into the number of shares of Common Stock provided for in
Section
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C.6(b), and such number of shares of Common Stock into which the Class B
Stock is converted shall be deemed to have been issued to the holders of Class B
Stock. Such holders shall as soon as practicable thereafter surrender the
certificate or certificates evidencing the Class B Stock, duly assigned or
endorsed for transfer to the Corporation (or accompanied by duly executed stock
powers relating thereto) or an Affidavit of Loss with respect thereto. Upon
surrender of such certificates or delivery of an Affidavit of Loss with respect
thereto, the Corporation shall issue and deliver to such holder so surrendering
such certificates or to such holder's designee, promptly (and in any event in
such time as is sufficient to enable such holder to participate in such Public
Offering) at an address designated by such holder, certificates for the number
of shares of Common Stock into which such holder's Class B Stock shall have been
converted.
7. RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of Class B Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of Class B Stock, and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of all then outstanding shares of Class B Stock, the Corporation will take all
such corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
8. ADJUSTMENTS.
(a) SUBDIVISIONS, COMBINATIONS OR CONSOLIDATION OF COMMON STOCK. The
Corporation shall not subdivide by stock split, stock dividends or otherwise
shares of Common Stock into a greater number of shares of Common Stock unless it
shall also, concurrently therewith, subdivide shares of Class B Stock in the
same manner and in the same proportion as shares of Common Stock. In the event
of any such Subdivision of shares of Class B Stock into a greater number of
shares of Class B Stock, the Class B Conversion Price then in effect shall,
concurrently with the effectiveness of such subdivision, be proportionately
decreased. The Corporation shall not combine or consolidate shares of Common
Stock into a lesser number of shares of Common Stock unless it shall also,
concurrently therewith, combine or consolidate shares of Class B Stock in the
same manner and in the same proportion as shares of Common Stock. In the event
of any such combination or consolidation of shares of Class B Stock into a
lesser
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number of shares of Class B Stock, the Class B Conversion Price then in
effect shall, concurrently with the effectiveness of such consolidation or
combination, be proportionately increased.
(b) ADJUSTMENTS FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If
the Common Stock issuable upon conversion of the Class B Stock shall be changed
into the same or a different number of shares of any other class or classes of
stock, whether by capital reorganization, reclassification or other transaction
(other than a subdivision or combination of shares provided for above), each
share of Class B Stock shall thereafter be convertible into the number 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
share of Class B Stock shall have been entitled upon such reorganization,
reclassification or other transaction.
ARTICLE V
PERPETUAL EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VI
LIMITATION OF LIABILITY
To the fullest extent permitted by the DGCL, Director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a Director, except for
liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL or (iv) for any transaction from which the Director
derived an improper personal benefit. If the DGCL is amended after the effective
date of this Second Amended and Restated Certificate of Incorporation to
authorize corporate action further eliminating or limiting the personal
liability of Directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended.
Any repeal or modification of this Article VI by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect
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any right or protection existing at the time of such repeal or modification with
respect to any acts or omissions occurring before such repeal or modification of
a person serving as a Director at the time of such repeal or modification.
ARTICLE VII
AMENDMENT OF BY-LAWS
1. AMENDMENT BY DIRECTORS.
Except as otherwise provided by law, the by-laws of the Corporation may be
amended or repealed by the Board of Directors.
2. AMENDMENT BY STOCKHOLDERS.
The by-laws of the Corporation may be amended or repealed at any annual
meeting of stockholders, or special meeting of stockholders called for such
purpose, by the affirmative vote of at least two-thirds of the total votes
eligible to be cast on such amendment or repeal by holders of voting stock,
voting together as a single class; provided, however, that if the Board of
Directors recommends that stockholders approve such amendment or repeal at such
meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of a majority of the total votes eligible to be cast on such
amendment or repeal by holders of voting stock, voting together as a single
class.
ARTICLE VIII
INTERPRETATION
All references to "Sections" contained herein, unless otherwise specified,
are references to Sections of Article IV. The words "herein", "hereof" and the
like refer to the entirety of this Restated and Amended Certificate of
Incorporation and not to any specific article or section hereof.
ARTICLE IX
DEFINITIONS
The following terms are used herein with the meanings indicated:
"AFFIDAVIT OF LOSS" has the meaning set forth in Article IV, Section
A.4(e).
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"AFFILIATE or AFFILIATE" means with respect to any Person, any other Person
that would be considered to be an affiliate of such Person under Rule 144(a) of
the rules of regulations of the Securities and Exchange Commission, as in effect
on the date hereof.
"CAPITAL SECURITIES" means, as to any Person that is a corporation, the
authorized shares of such Person's capital stock, including all classes of
common, preferred, voting and non voting capital stock, and, as to any Person
that is not a corporation or an individual, the ownership interests in such
Person, including, without limitation, the right to share in profits and losses,
the right to receive distributions of cash and property, and the right to
receive allocations of items of income, gain, loss, deduction and credit and
similar items from such Person, whether or not such interests include voting or
similar rights entitling the holder thereof to exercise control over such
Person.
"CLASS B CONVERSION PRICE" has the meaning set forth in Article IV, Section
C.5.
"CLASS B STOCK" has the meaning set forth in Article IV (introductory
paragraph).
"COMMON STOCK" has the meaning set forth in Article IV (introductory
paragraph).
"COMMON STOCK DEEMED OUTSTANDING" means, at any given time, the number of
shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock issuable upon conversion of the Series A Preferred Stock,
plus the number of shares of Common Stock issuable upon the exercise in full of
all Convertible Securities whether or not such Convertible Securities are
convertible into Common Stock at such time.
"CONVERSION PRICE" has the meaning set forth in Article IV, Section A.5(a).
"CONVERTIBLE SECURITIES" means securities or obligations that are
exercisable for, convertible into or exchangeable for shares of Common Stock.
The term includes options, warrants or other rights to subscribe for or purchase
Common Stock or to subscribe for or purchase other securities or obligations
that are convertible into or exchangeable for Common Stock.
"DGCL" means the General Corporation Law of the State of Delaware.
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"EXCLUDED SECURITIES" means (i) Capital Securities sold by the Corporation
in a Qualified Public Offering, (ii) shares of Class B Stock and Convertible
Securities that are options to purchase shares of Common Stock or shares of
Class B Stock, in either case, issued to employees or Directors of, or
consultants or other service providers to, the Corporation that are options to
purchase shares of Common Stock pursuant to any incentive stock plan or other
form of incentive compensation plan approved by the Corporation's Board of
Directors, and the issuance of Common Stock or Class B Stock upon the exercise
or conversion of any such Convertible Securities or conversion of any such Class
B Stock (iii) shares of Common Stock issuable upon the conversion of Series A
Preferred Stock and (iv) shares of the Corporation's Capital Securities issued
in connection with a stock split, stock dividend, combination, reorganization,
recapitalization or other similar event for which adjustment is made in
accordance with Article IV, Section A.9(a) through (c).
"LIQUIDATION EVENT" has the meaning set forth in Article IV, Section
A.3(a).
"MINIMUM ENTERPRISE VALUE" means $24,144,164 plus, unless the Series A
Dividends have been cancelled in accordance with Article IV, Section A.2(c), the
amount of any accumulated but unpaid Series A Dividends.
"PERSON" OR "PERSON" means an individual, partnership, corporation, limited
liability company, association, trust, joint venture, unincorporated
organization and any government, governmental department or agency or political
subdivision thereof.
"PUBLIC OFFERING" means any offering by the Corporation of its equity
securities to the public pursuant to an effective registration statement under
the Securities Act of 1933 or any comparable statement under any similar federal
statute then in force, other than an offering of shares being issued as
consideration in a business acquisition or combination or an offering in
connection with an employee benefit plan.
"QUALIFIED PUBLIC OFFERING" has the meaning set forth in Article IV,
Section A.5(b).
"QUALIFIED SALE" has the meaning set forth in Article IV, Section A.5(b).
"REDEMPTION AGREEMENTS" means, collectively, (i) the Redemption and
Noncompetition Agreement dated as of September 1, 1998 between the
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Corporation and William Southworth, (ii) the Redemption and Severance Agreement
dated as of September 1, 1998 between the Corporation and Brent Paine, (iii) the
Redemption Agreement dated as of September 1, 1998 between the Corporation and
Scott Balfour and (iv) the Redemption Agreement dated as of September 1, 1998
between the Corporation and Peter M. Kendrick.
"SALE OF THE CORPORATION" means (a) a merger or consolidation of the
Corporation into or with any other Person or Persons who are not affiliates of
the Corporation in which more than 50% of the voting power of the surviving
entity is held, directly or indirectly, by persons who are not stockholders of
the Corporation or affiliates thereof prior to the consummation of such
transaction or (b) a single transaction or a series of transactions pursuant to
which a Person or Persons who are not stockholders of the Corporation or
affiliates thereof prior to such transaction or transactions acquire either of
the following: (i) capital stock of the Corporation possessing the voting power
to elect a majority of the Corporation's board of directors (whether by merger,
consolidation or sale or transfer of the Corporation's capital stock; PROVIDED,
HOWEVER, that a Qualified Public Offering that results in an acquisition of such
voting power shall not be a "Sale of the Corporation"); or (ii) all or
substantially all of the Corporation's assets determined on a consolidated
basis.
"SERIES A DIVIDENDS" has the meaning set forth in Article IV, Section
A.2(a).
"SERIES A LIQUIDATION PREFERENCE" has the meaning set forth in Article IV,
Section A.3(a).
"SERIES A PREFERRED STOCK" has the meaning set forth in Article IV
(introductory paragraph).
"SERIES A PURCHASE PRICE" shall have the meaning set forth in Article IV,
Section A.5(a).
"SERIES A REDEMPTION DATE" shall have the meaning set forth in Article IV,
Section A.4(b).
"SERIES A VOLUNTARY CONVERSION NOTICE" has the meaning set forth in Article
IV, Section A.5(c).
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"STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement dated as of
September 1, 1998 among the Corporation and the stockholders thereof, as the
same may be amended from time to time.
"SUBSIDIARY"/"SUBSIDIARIES" means any corporation, partnership, limited
liability company, association or other business entity of which (i) if a
corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by the Corporation or one or more of the other
Subsidiaries of the Corporation or a combination thereof, or (ii) if a
partnership, limited liability company, association or other business entity, a
majority of the ownership interests therein is at the time owned or controlled,
directly or indirectly, by the Corporation or one or more Subsidiaries of that
person or a combination thereof. For purposes hereof, the Corporation shall be
deemed to have a majority ownership interest in a partnership, limited liability
company, association or other business entity if the Corporation shall be
allocated a majority of partnership, limited liability company, association or
other business entity gains or losses or shall be or control the managing
general partner of such partnership, association or other business entity or a
manager of such limited liability company.
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I, Mark Washburn, the President and Chief Executive Officer of the
Corporation, for the purpose of restating and amending the Corporation's
certificate of incorporation pursuant to the DGCL, do make this certificate,
hereby declaring and certifying that this is my act and deed on behalf of the
Corporation this 28th day of May, 1999.
/s/ Mark Washburn
----------------------------------
Mark Washburn, President and Chief
Executive Officer
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Exhibit 10.1
HarvardNet, Inc.
1997 STOCK INCENTIVE PLAN
1. PURPOSE
The purpose of this 1997 Stock Incentive Plan (the "Plan",) of
HarvardNet, Inc., a Delaware corporation (the "Company"), is to advance the
interests of the Company's stockholders by enhancing the Company's ability to
attract, retain and motivate persons who make (or are expected to make)
important contributions to the Company by providing such persons with equity
ownership opportunities and performance based incentives and thereby better
aligning the interests of such persons with those of the Company's Stockholders.
Except where the context otherwise requires, the term "Company" shall include
any present or future subsidiary corporations of HarvardNet, Inc. as defined in
Section 424(f) of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the "Code").
2. ELIGIBILITY
All of the Company's employees, officers, directors, consultants and
advisors are eligible to be granted options, restricted stock, or other
stock-based awards (each, an "Award") under the Plan. Any person who has been
granted an Award under the Plan shall be deemed a "Participant".
3. ADMINISTRATION DELEGATION.
(a) ADMINISTRATION BY BOARD OF DIRECTORS. The Plan will be
administered by the Board of Directors of the Company (the "Board"). The Board
shall have authority to grant Awards and to adopt, amend and repeal such
administrative rules, guidelines and practices relating to the Plan as it shall
deem advisable. The Board may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Award in the manner and to the
extent it shall deem expedient to carry the Plan into effect and it shall be the
sole and final judge of such expediency. All decisions by the Board shall be
made in the Board's sole discretion and shall be final and binding on all
persons having or claiming any interest in the Plan or in any Award. No director
or person acting pursuant to the authority delegated by the Board shall be
liable for any action or determination relating to or under the Plan made in
good faith.
(b) DELEGATION TO EXECUTIVE OFFICERS. To the extent permitted
by applicable law, the Board may delegate to one or more executive officers of
the Company the power to make Awards and exercise such other powers under the
Plan as the Board may determine, provided that the Board shall fix the maximum
number of shares subject to Awards and the maximum number of shares for any one
Participant to be made by such executive officers.
(c) APPOINTMENT OF COMMITTEES. To the extent permitted by
applicable law, the Board may delegate any or all of its powers under the Plan
to one or more committees or
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subcommittees of the Board (a "Committee"). If and when the common stock, $.01
par value per share, of the Company (the "Common Stock") is registered under the
Securities Exchange Act of 1934 (the "Exchange Act"), the Board shall appoint
one such Committee of not less than two members, each member of which shall be
an "outside director" within the meaning of Section 162(m) of the Code and a
"non-employee director" as defined in Rule 16b-3 promulgated under the Exchange
Act." All references in the Plan to the "Board" shall mean the Board or a
Committee of the Board or the executive officer referred to in Section 3(b) to
the extent that the Board's powers or authority under the Plan have been
delegated to such Committee or executive officer.
4. STOCK AVAILABLE FOR AWARDS.
(a) NUMBER OF SHARES. Subject to adjustment under Section
4(c), Awards may be made under the Plan for up to 600 shares of Common Stock. If
any Award expires or is terminated, surrendered or canceled without having been
fully exercised or is forfeited in whole or in part or results in any Common
Stock not being issued, the unused Common Stock covered by such Award shall
again be available for the grant of Awards under the Plan, subject, however, in
the case of Incentive Stock Options (as hereinafter defined), to any limitation
required under the Code. Shares issued under the Plan may consist in whole or in
part of authorized but unissued shares or treasury shares.
(b) PER-PARTICIPANT LIMIT. Subject to adjustment under Section
4(c), for Awards granted after the Common Stock is registered under the Exchange
Act, the maximum number of shares with respect to which an Award may be granted
to any Participant under the Plan shall be 300 per calendar year. The
per-participant limit described in this Section 4(b) shall be construed and
applied consistently with Section 162(m) of the Code.
(c) ADJUSTMENT TO COMMON STOCK. In the event of any stock
split, stock dividend, recapitalization, reorganization, merger, consolidation,
combination, exchange of shares, liquidation, spin-off or other similar change
in capitalization or event, or any distribution to holders of Common Stock other
than a normal cash dividend, (i) the number and class of securities available
under this Plan, (ii) the number and class of security and exercise price per
share subject to each outstanding Option, (iii) the repurchase price per
security subject to each outstanding Restricted Stock Award, and (iv) the terms
of each other outstanding stock-based Award shall be appropriately adjusted by
the Company (or substituted Awards may be made, if applicable) to the extent the
Board shall determine, in good faith, that such an adjustment (or substitution)
is necessary and appropriate. If this Section 4(c) applies and Section 8(e)(1)
also applies to any event, Section 8(e)(1) shall be applicable to such event,
and this Section 4(c) shall not be applicable.
5. STOCK OPTIONS
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(a) GENERAL. The Board may grant options to purchase Common
Stock (each, an "Option") and determine the number of shares of Common Stock to
be covered by each Option, the exercise price of each Option and the conditions
and limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
(b) INCENTIVE STOCK OPTIONS. An Option that the Board intends
to be an "incentive stock option" as defined in Section 422 of the Code (an
"Incentive Stock Option") shall only be granted to employees of the Company and
shall be subject to and shall be construed consistently with the requirements of
Section 422 of the Code. The Company shall have no liability to a Participant,
or any other party, if an Option (or any part thereof) which is intended to be
an Incentive Stock Option is not an Incentive Stock Option.
(c) EXERCISE PRICE. The Board shall establish the exercise
price at the time each Option is granted and specify it in the applicable option
agreement.
(d) DURATION OF OPTIONS. Each Option shall be exercisable at
such times and subject to such terms and conditions as the Board may specify in
the applicable option agreement.
(e) EXERCISE OF OPTION. Options may be exercised only by
delivery to the Company of a written notice of exercise signed by the proper
person together with payment in full as specified in Section 5(f) for the number
of shares for which the Option is exercised.
(f) PAYMENT UPON EXERCISE. Common Stock purchased upon the
exercise of an Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may otherwise provide in an Option Agreement,
delivery of an irrevocable and unconditional undertaking by a credit worthy
broker to deliver promptly to the Company sufficient funds to pay the exercise
price, or delivery by the Participant to the Company of a copy of irrevocable
and unconditional instructions to a credit worthy broker to deliver promptly to
the Company cash or a check sufficient to pay the exercise price;
(3) to the extent permitted by the Board and explicitly provided in an
Option Agreement (i) by delivery of shares of Common Stock owned by the
Participant valued at their fair market value as determined by the Board in good
faith ("Fair Market Value"), which Common Stock was owned by the Participant at
least six months prior to such delivery, (ii) by delivery of a promissory note
of the Participant to the Company on terms determined by the Board, or (iii) by
payment of such other lawful consideration as the Board may determine; or
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(4) any combination of the above permitted forms of payment.
6. RESTRICTED STOCK.
(a) GRANTS. The Board may grant Awards entitling recipients to
acquire shares of Common Stock, subject to the right of the Company to
repurchase all or part of such shares at their issue price or other stated or
formula price (or to require forfeiture of such shares if issued at no cost)
from the recipient in the event that conditions specified by the Board in the
applicable Award are not satisfied prior to the end of the applicable
restriction period or periods established by the Board for such Award (each,
"Restricted Stock Award").
(b) TERMS AND CONDITIONS. The Board shall determine the terms
and conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any. Any stock certificates
issued in respect of a Restricted Stock Award shall be registered in the name of
the Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "Designated Beneficiary"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
7. OTHER STOCK-BASED AWARDS. The Board shall have the right to grant
other Awards based upon the Common Stock having such terms and conditions as the
Board may determine, including the grant of shares based upon certain
conditions, the grant of securities convertible into Common Stock and the grant
of stock appreciation rights.
8. GENERAL PROVISIONS APPLICABLE TO AWARDS
(a) TRANSFERABILITY OF AWARDS. Except as the Board may
otherwise determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the Participant, shall be
exercisable only by the Participant. References to a Participant, to the extent
relevant in the context, shall include references to authorized transferees.
(b) DOCUMENTATION. Each Award under the Plan shall be
evidenced by a written instrument in such form as the Board shall determine.
Each Award may contain terms and conditions in addition to those set forth in
the Plan.
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(c) BOARD DISCRETION. Except as otherwise provided by the
Plan, each type of Award may be made alone or in addition or in relation to any
other type of Award. The terms of each type of Award need not be identical, and
the Board need not treat Participants uniformly.
(d) TERMINATION OF STATUS. The Board shall determine the
effect on an Award of the disability, death, retirement, authorized leave of
absence or other change in the employment or other status of a Participant and
the extent to which, and the period during which, the Participant, the
Participant's legal representative, conservator, guardian or Designated
Beneficiary may exercise rights under the Award.
(e) ACQUISITION EVENTS
(1) CONSEQUENCES OF ACQUISITION EVENTS. Upon the occurrence of an
Acquisition Event (as defined below), or the execution by the Company of any
agreement with respect to an Acquisition Event, the Board shall take any one or
more of the following actions with respect to then outstanding Awards: (i)
provide that outstanding Options shall be assumed, or equivalent Options shall
be substituted, by the acquiring or succeeding corporation (or an affiliate
thereof), provided that any such Options substituted for Incentive Stock Options
shall satisfy, in the determination of the Board, the requirements of Section
424(a) of the Code; (ii) upon written notice to the Participants, provide that
all then unexercised Options will become exercisable in full as of a specified
time (the "Acceleration Time") prior to the Acquisition Event and will terminate
immediately prior to the consummation of such Acquisition Event, except to the
extent exercised by the Participants between the Acceleration Time and the
consummation of such Acquisition Event; (iii) in the event of an Acquisition
Event under the terms of which holders of Common Stock will receive upon
consummation thereof a cash payment for each share of Common Stock surrendered
pursuant to such Acquisition Event (the "Acquisition Price"), provide that all
outstanding Options shall terminate upon consummation of such Acquisition Event
and each Participant shall receive, in exchange therefor, a cash payment equal
to the amount (if any) by which (A) the Acquisition Price multiplied by the
number of shares of Common Stock subject to such outstanding Options (whether or
not then exercisable), exceeds (B) the aggregate exercise price of such Options;
(iv) provide that all Restricted Stock Awards then outstanding shall become free
of all restrictions prior to the consummation of the Acquisition Event; and (v)
provide that any other stock-based Awards outstanding (A) shall become
exercisable, realizable or vested in full, or shall be free of all conditions or
restrictions, as applicable to each such Award, prior to the consummation of the
Acquisition Event, or (B), if applicable, shall be assumed, or equivalent Awards
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof).
An "Acquisition Event" shall mean: (a) any merger or consolidation
which results in the voting securities of the Company outstanding immediately
prior thereto representing immediately thereafter (either by remaining
outstanding or by being converted into voting securities of the surviving or
acquiring entity) less than 50% of the combined voting power of the voting
securities of the Company or such surviving or acquiring entity outstanding
immediately
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after such merger or consolidation; (b) any sale of all or substantially all of
the assets of the Company; or (c) the complete liquidation of the Company.
(2) ASSUMPTION OF OPTIONS UPON CERTAIN EVENTS. The Board may grant
Awards under the Plan in substitution for stock and stock-based awards held by
employees of another corporation who become employees of the Company as a result
of a merger or consolidation of the employing corporation with the Company or
the acquisition by the Company of property or stock of the employing
corporation. The substitute Awards shall be granted on such terms and conditions
as the Board considers appropriate in the circumstances.
(f) WITHHOLDING. Each Participant shall pay to the Company, or
make provision satisfactory to the Board for payment of, any taxes required by
law to be withheld in connection with Awards to such Participant no later than
the date of the event creating the tax liability. The Board may allow
Participants to satisfy such tax obligations in whole or in part in shares of
Common Stock, including shares retained from the Award creating the tax
obligation, valued at their Fair Market Value. The Company may, to the extent
permitted by law, deduct any such tax obligations from any payment of any kind
otherwise due to a Participant.
(g) AMENDMENT OF AWARD. The Board may amend, modify or
terminate any outstanding Award, including but not limited to, substituting
therefor another Award of the same or a different type, changing the date of
exercise or realization, and converting an Incentive Stock Option to a
Nonstatutory Stock Option, provided that the Participant's consent to such
action shall be required unless the Board determines that the action, taking
into account any related action, would not materially and adversely affect the
Participant.
(h) CONDITIONS ON DELIVERY OF STOCK. The Company will not be
obligated to deliver any shares of Common Stock pursuant to the Plan or to
remove restrictions from shares previously delivered under the Plan until (i)
all conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company s counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(i) ACCELERATION. The Board may at any time provide that any
Options shall become immediately exercisable in full or in part, that any
Restricted Stock Awards shall be free of all restrictions or that any other
stock-based Awards may become exercisable in full or in part or free of some or
all restrictions or conditions, or otherwise realizable in full or in part, as
the case may be.
9. MISCELLANEOUS
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(a) NO RIGHT TO EMPLOYMENT OR OTHER STATUS. No person shall
have any claim or right to be granted an Award, and the grant of an Award shall
not be construed as giving a Participant the right to continued employment or
any other relationship with the Company. The Company expressly reserves the
right at any time to dismiss or otherwise terminate its relationship with a
Participant free from any liability or claim under the Plan, except as expressly
provided in the applicable Award.
(b) NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder of such shares.
(c) EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become
effective on the date on which it is adopted by the Board, but no Award granted
to a Participant designated as subject to Section 162(m) by the Board shall
become exercisable, vested or realizable, as applicable to such Award, unless
and until the Plan has been approved by the Company's stockholders. No Awards
shall be granted under the Plan after the completion of ten years from the
earlier of (i) the date on which the Plan was adopted by the Board or (ii) the
date the Plan was approved by the Company's stockholders, but Awards previously
granted may extend beyond that date.
(d) AMENDMENT OF PLAN. The Board may amend, suspend or
terminate the Plan or any portion thereof at any time, provided that no Award
granted to a Participant designated as subject to Section 162(m) by the Board
after the date of such amendment shall become exercisable, realizable or vested,
as applicable to such Award (to the extent that such amendment to the Plan was
required to grant such Award to a particular Participant), unless and until such
amendment shall have been approved by the Company's stockholders.
(e) STOCKHOLDER APPROVAL. For purposes of this Plan,
stockholder approval shall mean approval by a vote of the stockholders in
accordance with the requirements of Section 162(m) of the Code.
(f) GOVERNING LAW. The provisions of the Plan and all Awards
made hereunder shall be governed by and interpreted in accordance with the laws
of the State of Delaware, without regard to any applicable conflicts of law.
marykm/tanner/1O5435.116/plans/plan.wpf
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Exhibit 10.2
HARVARDNET INC.
1999 STOCK INCENTIVE PLAN
1. PURPOSE
The purpose of this 1999 Stock Incentive Plan (the "Plan") of HarvardNET
Inc., a Delaware corporation (the "Company"), is to advance the interests of the
Company's stockholders by enhancing the Company's ability to attract, retain and
motivate persons who make (or are expected to make) important contributions to
the Company by providing such persons with equity ownership opportunities and
performance-based incentives and thereby better aligning the interests of such
persons with those of the Company's stockholders. Except where the context
otherwise requires, the term "Company" shall include any present or future
subsidiary corporations of HarvardNET, Inc. as defined in Section 424(f) of the
Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder (the "Code").
2. ELIGIBILITY
All of the Company's full-time employees (as defined below), officers,
directors, consultants and advisors (and any individuals who have accepted an
offer for employment) are eligible to be granted options, restricted stock, or
other stock-based awards (each, an "Award") under the Plan. Any person who has
been granted an Award under the Plan shall be deemed a "Participant."
A "full-time employee" is an employee who works at least 30 hours per week.
3. ADMINISTRATION, DELEGATION
(1) ADMINISTRATION BY BOARD OF DIRECTORS. The Plan will be administered by
the Board of Directors of the Company (the "Board"). The Board shall have
authority to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable.
The Board may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem expedient to carry the Plan into effect and it shall be the sole and final
judge of such expediency. All decisions by the Board shall be made in the
Board's sole discretion and shall be final and binding on all persons having or
claiming any interest in the Plan or in any Award. No director or person acting
pursuant to the authority delegated by the Board shall be liable for any action
or determination relating to or under the Plan made in good faith.
(2) DELEGATION TO EXECUTIVE OFFICERS. To the extent permitted by applicable
law, the Board may delegate to one or more executive officers of the Company the
power to make Awards and exercise such other powers under the Plan as the Board
may determine, provided
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that the Board shall fix the maximum number of shares subject to Awards and the
maximum number of shares for any one Participant to be made by such executive
officers.
(3) APPOINTMENT OF COMMITTEES. To the extent permitted by applicable law,
the Board may delegate any or all of its powers under the Plan to one or more
committees or subcommittees of the Board (a "Committee"). If and when the common
stock, $.01 par value per share, of the Company (the "Common Stock") is
registered under the Securities Exchange Act of 1934 (the "Exchange Act"), the
Board shall appoint one such Committee of not less than two members, each member
of which shall be an "outside director" within the meaning of Section 162(m) of
the Code and a "non-employee director" as defined in Rule 16b-3 promulgated
under the Exchange Act." All references in the Plan to the "Board" shall mean
the Board or a Committee of the Board or the executive officer referred to in
Section 3(b) to the extent that the Board's powers or authority under the Plan
have been delegated to such Committee or executive officer.
4. STOCK AVAILABLE FOR AWARDS
(1) NUMBER OF SHARES. Subject to adjustment under Section 4(c), Awards may
be made under the Plan for up to 1,550,000 shares of Common Stock. If any Award
expires or is terminated, surrendered or canceled without having been fully
exercised or is forfeited in whole or in part or results in any Common Stock not
being issued, the unused Common Stock covered by such Award shall again be
available for the grant of Awards under the Plan, subject, however, in the case
of Incentive Stock Options (as hereinafter defined), to any limitation required
under the Code. Shares issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares.
(2) PER-PARTICIPANT LIMIT. Subject to adjustment under Section 4(c), for
Awards granted after the Common Stock is registered under the Exchange Act, the
maximum number of shares with respect to which an Award may be granted to any
Participant under the Plan shall be 500,000 per calendar year. The
per-participant limit described in this Section 4(b) shall be construed and
applied consistently with Section 162(m) of the Code.
(3) ADJUSTMENT TO COMMON STOCK. In the event of any stock split, stock
dividend, recapitalization, reorganization, merger, consolidation, combination,
exchange of shares, liquidation, spin-off or other similar change in
capitalization or event, or any distribution to holders of Common Stock other
than a normal cash dividend, (i) the number and class of securities available
under this Plan, (ii) the number and class of security and exercise price per
share subject to each outstanding Option, (iii) the repurchase price per
security subject to each outstanding Restricted Stock Award, and (iv) the terms
of each other outstanding stock-based Award shall be appropriately adjusted by
the Company (or substituted Awards may be made, if applicable) to the extent the
Board shall determine, in good faith, that such an adjustment (or substitution)
is necessary and appropriate. If this Section 4(c) applies and Section 8(e)(1)
also
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applies to any event, Section 8(e)(1) shall be applicable to such event,
and this Section 4(c) shall not be applicable.
5. STOCK OPTIONS
(1) GENERAL. The Board may grant options to purchase Common Stock (each, an
"Option") and determine the number of shares of Common Stock to be covered by
each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
(2) INCENTIVE STOCK OPTIONS. An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code (an "Incentive
Stock Option") shall only be granted to employees of the Company and shall be
subject to and shall be construed consistently with the requirements of Section
422 of the Code. The Company shall have no liability to a Participant, or any
other party, if an Option (or any part thereof) which is intended to be an
Incentive Stock Option is not an Incentive Stock Option.
(3) EXERCISE PRICE. The Board shall establish the exercise price at the
time each Option is granted and specify it in the applicable option agreement.
(4) DURATION OF OPTIONS. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in the applicable
option agreement.
(5) EXERCISE OF OPTION. Options may be exercised only by delivery to the
Company of a written notice of exercise signed by the proper person together
with payment in full as specified in Section 5(f) for the number of shares for
which the Option is exercised.
(6) PAYMENT UPON EXERCISE. Common Stock purchased upon the exercise of an
Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may otherwise provide in an Option Agreement,
delivery of an irrevocable and unconditional undertaking by a creditworthy
broker to deliver promptly to the Company sufficient funds to pay the exercise
price, or delivery by the Participant to the Company of a copy of irrevocable
and unconditional instructions to a creditworthy broker to deliver promptly to
the Company cash or a check sufficient to pay the exercise price;
(3) to the extent permitted by the Board and explicitly provided in an
Option Agreement (i) by delivery of shares of Common Stock owned by the
Participant valued at their fair market value as determined by the Board in good
faith ("Fair Market Value"), which
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Common Stock was owned by the Participant at least six months prior to such
delivery, (ii) by delivery of a promissory note of the Participant to the
Company on terms determined by the Board, or (iii) by payment of such other
lawful consideration as the Board may determine; or
(4) any combination of the above permitted forms of payment.
6. RESTRICTED STOCK
(1) GRANTS. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to the right of the Company to repurchase all or
part of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in
the event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, "Restricted Stock Award").
(2) TERMS AND CONDITIONS. The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any. Any stock certificates
issued in respect of a Restricted Stock Award shall be registered in the name of
the Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "Designated Beneficiary"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
7. OTHER STOCK-BASED AWARDS
The Board shall have the right to grant other Awards based upon the Common
Stock having such terms and conditions as the Board may determine, including the
grant of shares based upon certain conditions, the grant of securities
convertible into Common Stock and the grant of stock appreciation rights.
8. GENERAL PROVISIONS APPLICABLE TO AWARDS
(1) TRANSFERABILITY OF AWARDS. Except as the Board may otherwise determine
or provide in an Award, Awards shall not be sold, assigned, transferred, pledged
or otherwise encumbered by the person to whom they are granted, either
voluntarily or by operation of law, except by will or the laws of descent and
distribution, and, during the life of the Participant, shall
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be exercisable only by the Participant. References to a Participant, to the
extent relevant in the context, shall include references to authorized
transferees.
(2) DOCUMENTATION. Each Award under the Plan shall be evidenced by a
written instrument in such form as the Board shall determine. Each Award may
contain terms and conditions in addition to those set forth in the Plan.
(3) BOARD DISCRETION. Except as otherwise provided by the Plan, each type
of Award may be made alone or in addition or in relation to any other type of
Award. The terms of each type of Award need not be identical, and the Board need
not treat Participants uniformly.
(4) TERMINATION OF STATUS. The Board shall determine the effect on an Award
of the disability, death, retirement, authorized leave of absence or other
change in the employment or other status of a Participant and the extent to
which, and the period during which, the Participant, the Participant's legal
representative, conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
(5) ACQUISITION EVENTS
(1) CONSEQUENCES OF ACQUISITION EVENTS.
(A) ASSUMPTION OF OPTIONS AND AWARDS. Upon the occurrence of an
Acquisition Event (as defined below), or the execution by the Company of any
agreement with respect to an Acquisition Event, the Board may take any one or
more of the following actions with respect to then outstanding Awards: (i)
provide that outstanding Options shall be assumed, or equivalent Options shall
be substituted, by the acquiring or succeeding corporation (or an affiliate
thereof), provided that any such Options substituted for Incentive Stock Options
shall satisfy, in the determination of the Board, the requirements of Section
424(a) of the Code; (ii) provide that any other stock-based Awards outstanding
shall be assumed, or equivalent Awards shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof); and (iii) if the acquiring or
succeeding corporation (or an affiliate thereof) is unable or unwilling to
assume the outstanding Options and/or other stock-based Awards, upon written
notice to the Participants, provide that all then unexercised Options will
terminate immediately prior to the consummation of such Acquisition Event,
except to the extent exercised by the Participants prior to the consummation of
such Acquisition Event.
An "Acquisition Event" shall mean: (a) any merger or consolidation which
results in the voting securities of the Company outstanding immediately prior
thereto representing immediately thereafter (either by remaining outstanding or
by being converted into voting securities of the surviving or acquiring entity)
less than a majority of the combined voting power of the voting securities of
the Company or such surviving or acquiring entity outstanding immediately after
such merger or consolidation; (b) any sale of all or substantially all of the
assets of the Company; or (c) the complete liquidation of the Company.
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(B) ACCELERATION. Unless otherwise provided in the option
agreement evidencing an Option or the stock restriction agreement relating to a
Restricted Stock Award, upon the occurrence of an Acquisition Event, (i)
one-half the number of shares subject to the Option which were not already
vested shall be exercisable upon the occurrence of an Acquisition Event and the
remaining one-half of such number of shares shall continue to become vested in
accordance with the original vesting schedule set forth in such option, with
one-half of the number of shares that would otherwise have first become vested
becoming so vested on each subsequent vesting date in accordance with the
original schedule and; (ii) the vesting schedule of all Restricted Stock Awards
shall be accelerated in part so that one-half of the number of shares that would
otherwise have first become free from conditions or restrictions on any date
after the Acquisition Event shall immediately become free from conditions or
restrictions and the remaining one-half of such number of shares shall continue
to become free from conditions or restrictions in accordance with the original
schedule set forth in such Restricted Stock Award, with one-half of the number
of shares that would otherwise have first become free from conditions or
restrictions becoming free from conditions or restrictions on each subsequent
vesting date in accordance with the original schedule. In addition, upon the
occurrence of an Acquisition Event, or the execution by the Company of an
agreement with respect to an Acquisition Event, the Board may take any one of
the following actions with respect to then outstanding Awards: (i) upon written
notice to the Participants, provide that all then unexercised Options will
become exercisable in full as of a specified time (the "Acceleration Time")
prior to the Acquisition Event and will terminate immediately prior to the
consummation of such Acquisition Event, except to the extent exercised by the
Participants between the Acceleration Time and the consummation of such
Acquisition Event; (ii) provide that all Restricted Stock Awards then
outstanding shall become free of all restrictions prior to the consummation of
the Acquisition Event; (iii) in the event of an Acquisition Event under the
terms of which holders of Common Stock will receive upon consummation thereof a
cash payment for each share of Common Stock surrendered pursuant to such
Acquisition Event (the "Acquisition Price"), provide that all outstanding
Options shall terminate upon consummation of such Acquisition Event and each
Participant shall receive, in exchange therefor, a cash payment equal to the
amount (if any) by which (A) the Acquisition Price multiplied by the number of
shares of Common Stock subject to such outstanding Options (whether or not then
exercisable), exceeds (B) the aggregate exercise price of such Options; and (iv)
provide that any other stock-based Awards outstanding shall become exercisable,
realizable or vested in full, or shall be free of all conditions or
restrictions, as applicable to each such Award, prior to the consummation of the
Acquisition Event.
(2) ASSUMPTION OF OPTIONS UPON CERTAIN EVENTS. The Board may grant
Awards under the Plan in substitution for stock and stock-based awards held by
employees of another corporation who become employees of the Company as a result
of a merger or consolidation of the employing corporation with the Company or
the acquisition by the Company of property or stock of the employing
corporation. The substitute Awards shall be granted on such terms and conditions
as the Board considers appropriate in the circumstances.
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(f) WITHHOLDING. Each Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in connection with Awards to such Participant no later than the date
of the event creating the tax liability. The Board may allow Participants to
satisfy such tax obligations in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation, valued at
their Fair Market Value. The Company may, to the extent permitted by law, deduct
any such tax obligations from any payment of any kind otherwise due to a
Participant.
(g) AMENDMENT OF AWARD. The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting therefor another
Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Participant.
(h) CONDITIONS ON DELIVERY OF STOCK. The Company will not be obligated to
deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(i) ACCELERATION. The Board may at any time provide that any Options shall
become immediately exercisable in full or in part, that any Restricted Stock
Awards shall be free of all restrictions or that any other stock-based Awards
may become exercisable in full or in part or free of some or all restrictions or
conditions, or otherwise realizable in full or in part, as the case may be.
9. MISCELLANEOUS
(1) NO RIGHT TO EMPLOYMENT OR OTHER STATUS. No person shall have any claim
or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(2) NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any
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shares of Common Stock to be distributed with respect to an Award until becoming
the record holder of such shares.
(3) EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on the
date on which it is adopted by the Board. No Awards shall be granted under the
Plan after the completion of ten years from the earlier of (i) the date on which
the Plan was adopted by the Board or (ii) the date the Plan was approved by the
Company's stockholders, but Awards previously granted may extend beyond that
date.
(4) AMENDMENT OF PLAN. The Board may amend, suspend or terminate the Plan
or any portion thereof at any time.
(5) GOVERNING LAW. The provisions of the Plan and all Awards made hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware, without regard to any applicable conflicts of law.
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Exhibit 10.6
EMPLOYMENT AGREEMENT
Employment Agreement dated October 23, 1998 and effective as of
September 29, 1998 (the "Effective Date") by and between the HarvardNET, Inc., a
Delaware Corporation with its principal offices at One Harbour Place,
Portsmouth, New Hampshire (the "Company"), and Mark Washburn, 6 Whitetail Lane,
Sudbury, Massachusetts (the "Employee").
RECITALS
The Employee desires to be employed by the Company and the Company
desires to employ the Employee under the terms specified herein. The Employee
and the Company mutually desire to enter into this Agreement effective as of the
date hereof.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein provided, the parties hereto agree, effective as of the
Effective Date, as follows:
1. EMPLOYMENT.
1.1. The Company hereby employs the Employee as its Chief Operating
Officer, and the Employee hereby accepts such employment with the Company, all
in accordance with the terms and conditions hereof.
1.2. The Company represents and warrants that it has obtained the
agreement of M/C Partners and Fidelity, as defined in the Stockholders'
Agreement, to designate the Employee to be elected to the Company's Board of
Directors as their designee as provided in Section 2.1(a)(i)(D) of the
Stockholders' Agreement.
2. DUTIES.
2.1. In his capacity as the Company's Chief Operating Officer,
the Employee shall be responsible for managing the day-to-day operations of the
Company and, in conjunction with the Company's Chief Executive Officer and the
Board of Directors, developing strategic and financial plans for the Company. In
addition, the Employee shall perform such other duties and will have such
further responsibilities as are delegated to him by the Company's Board of
Directors.
2.2. The Employee shall devote his entire business time,
energies, best efforts, attention and ability to the business of the Company,
shall faithfully and diligently perform the duties of his employment with the
Company and shall take all actions reasonably in his power to promote, develop
and extend the business of the Company.
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3. COMPENSATION.
3.1. SALARY. The Company agrees to pay the Employee as
compensation for his services under this Agreement a salary (inclusive of
amounts to be deferred or contributed by the Employee from such salary to the
Company's 401(k) plan or deferred compensation plan in excess of the customary
amounts contributed by the Company) at the annual rate of One Hundred and Sixty
Thousand Dollars ($160,000), less all applicable payroll tax and similar
deductions, payable in arrears in bi-weekly installments (the "Salary"). The
Company will review the Salary annually, with any Salary increase granted to
Employee as a result of such review to be in the Company's sole discretion.
3.2. DISCRETIONARY QUARTERLY PERFORMANCE BONUS. The Employee
shall be eligible to earn a quarterly performance bonus (the "Quarterly Bonus")
in an amount of up to ten thousand dollars ($10,000.00). The amount, if any, of
such Quarterly Bonus shall be determined by the Company in its sole discretion
and, if determined to be paid, within fifteen days of the close of each quarter.
4. FRINGE BENEFITS.
4.1. The Company agrees to provide the Employee and his
dependents with such hospital, medical and major medical coverage and such other
employee benefits as the Company may have in effect, from time to time, under
its employee benefit plans for the benefit of its employees but only to the
extent that the Employee and his dependents may be eligible to receive such
benefits under the applicable provisions of the insurance policies or plans
providing such benefits.
4.2. The Employee shall be entitled to paid holidays and sick
time in accordance with the policies of the Company.
4.3 The Employee shall be granted, on January 1st of each
year, commencing with January 1, 1999, four (4) weeks of paid vacation for his
use during such year. Vacation unused at the end of any calendar year may not be
carried forward into the following calendar year.
5. EXPENSE REIMBURSEMENT. Upon submission of appropriate invoices,
receipts or vouchers, the Company shall pay or reimburse the Employee for all
reasonable and authorized expenses (including, but not limited to, expenses
associated with business travel) incurred by the Employee in the performance of
his duties hereunder in furtherance of the Company's business and in keeping
with the policies of the Company.
6. GRANT OF CLASS B STOCK. (a) In consideration of the Employee's
acceptance of employment in accordance with the provisions of this Agreement,
including, without limitation, the Employee's covenants set forth in Section 8
hereof, the Company is concurrently herewith issuing to the Employee 179,450
shares of the
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Company's Class B Stock (collectively, the "Shares"), which Shares shall be
subject to the vesting provisions set forth below and to certain other
associated rights and obligations as specified in the Stockholders' Agreement
dated as of September 1, 1998 among the Company and its stockholders and option
holder as of such date (as the same may be amended from time to time, the
"Stockholders' Agreement"). The Shares shall be subject to vesting as follows:
(i) The Employee shall be vested in 35,889 Shares as
of the date hereof; PROVIDED, HOWEVER, that such Shares shall cease to be vested
and shall be forfeited to the Company if the Employee voluntarily resigns his
employment with the Company on or prior to September 29, 1999.
(ii) The Employee shall be vested in an additional
47,854 Shares (such number is to be equitably adjusted to reflect any stock
split, stock dividend, combination, reorganization, recapitalization,
reclassification or other similar event involving the Company's Capital Stock)
as of September 29, 1999, provided that as of such date the Employee is employed
by the Company in accordance with this Agreement.
(iii) The Employee shall be vested in an additional
47,854 Shares (such number is to be equitably adjusted to reflect any stock
split, stock dividend, combination, reorganization, recapitalization,
reclassification or other similar event involving the Company's Capital Stock)
as of September 29, 2000, provided that as of such date the Employee is employed
by the Company in accordance with this Agreement.
(iv) The Employee shall be vested in an additional
47,853 Shares (such number is to be equitably adjusted to reflect any stock
split, stock dividend, combination, reorganization, recapitalization,
reclassification or other similar event involving the Company's Capital Stock)
as of September 29, 2001, provided that as of such date the Employee is employed
by the Company in accordance with this Agreement.
(v) Notwithstanding clauses (i) through (iv) above,
in the event an "Exit Transaction" or a "Qualified Public Offering" (as such
terms are defined in the Stockholders' Agreement) is consummated at a time when
the Employee is employed by the Company, the Employee shall thereupon be deemed
to have been fully vested into all of the Shares into which he shall not have
theretofore vested in accordance with this Agreement.
(vi) Notwithstanding clauses (i) through (v) above,
in the event that the Company terminates the Employee's employment for any
reason other than for "Cause" as that term is defined herein, the Employee shall
thereupon be fully vested into all Shares into which he shall have been eligible
to vest as of the September 29 next following the date the Company so terminates
the Employee's employment. (For example, if the Company terminates the
Employee's employment without Cause on October 15, 1999, then, in addition to
the 83,743 Shares the Employee shall have theretofore vested in, he shall, upon
such termination, vest into an additional 47,854 Shares, and he shall no longer
be eligible to vest in the 47,853 Shares that he would have
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been eligible to vest in as of September 29, 2001 had he been employed by the
Company as of such date.)
(vii) Any Shares that fail to vest in accordance with
the foregoing provisions of this Section 6 shall thereupon immediately be deemed
for all purposes to have been forfeited and to have been automatically
transferred to and redeemed by the Company without the need for any payment to
the Employee or other action by the Company or any other Person. The Employee
shall, immediately upon request of the Company, deliver to the Company all stock
certificates evidencing such repurchased shares, duly endorsed by the Employee
to the Company.
(b) The Employee hereby becomes a party to and agrees to be
bound by and subject to the terms of the Stockholders' Agreement as a "Holder"
and as a "Restricted Holder" for all purposes thereof as fully as if the
Employee were originally named as a party to the Stockholders' Agreement as a
"Holder" and as a "Restricted Holder" thereunder. The Employee shall also be
granted those rights and privileges as granted to Southworth in the
Stockholders' Agreement at paragraphs 4.1(b), 6.1, 6.2 and 10.4 as if the
Employee were originally named in those sections as a party to the Stockholders'
Agreement. Without limitation of the foregoing, (i) the Employee acknowledges
that the Shares constitute "Company Securities" for all purposes of the
Stockholders' Agreement and (ii), notwithstanding anything in the Stockholders'
Agreement to the contrary, the Employee agrees not to "Transfer" (as such term
is defined in the Stockholders' Agreement) any Shares or other Company
Securities that remain subject to vesting or risk of forfeiture in accordance
with this Agreement. The Employee further agrees that any share certificates
issued to him to evidence the Shares shall contain the legend contemplated by
Section 10.3 of the Stockholders' Agreement.
(c) The Employee hereby becomes a party to and agrees to be
bound by and subject to the terms of the Registration Rights Agreement dated as
of September 1, 1998 among the Company and its stockholders and option holder as
of such date (as the same may be amended from time to time, the "Registration
Rights Agreement") as a "Holder" for all purposes thereof as fully as if the
Employee were originally named as a party to the Registration Rights Agreement
as a "Holder" thereunder. Without limitation of the foregoing, the Employee
agrees to be bound by the provisions of Section 4(c) ("Holdback Agreements") of
the Registration Rights Agreement with respect to the Shares and any shares of
the Company's Common Stock into which the Share may be converted.
(d) The parties agree that the Company's fair market value as
of the date hereof is not more than $24,000,000 (based on, among other things,
the valuation represented by the recently completed equity investment in the
Company). Consistent with such valuation and the "Minimum Enterprise Value" set
forth in the Company's Second Restated and Amended Certificate of Incorporation
that must be surpassed before shares of Class B Stock participate in dividends
and distributions that might be paid or made by the Company in the future, the
parties agree that the value of the Shares on the date hereof does not
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exceed $1,800. Unless otherwise required by law, the parties agree to file their
respective income tax returns consistent with the foregoing valuation. The
Employee and the Company shall be solely responsible for their own respective
income tax liabilities arising from or in connection with the issuance of the
Shares in accordance herewith and neither shall have any liability to the other
on account thereof.
(e) While any of the Shares remain subject to vesting or risk
of forfeiture in accordance with this Agreement, the Company shall retain
possession of the stock certificates evidencing the unvested Shares or Shares
subject to a risk of forfeiture together with stock powers therefor executed by
the Employee in blank. The Employee hereby irrevocably authorizes and directs
the Company to complete such stock powers and otherwise retain and cancel such
stock certificates evidencing such number of Shares that shall fail to vest or
shall otherwise be forfeited in accordance with this Agreement upon such Shares
so failing to vest or otherwise being forfeited.
7. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES. The Employee hereby
represents and warrants to and covenants with the Company as follows:
(a) The Employee is acquiring the Shares hereunder for
investment for the account of the Employee and not in connection with any public
distribution within the meaning of any applicable federal or state securities
law, and the Employee will not effect any sale, transfer or disposition of the
Shares in violation of any such law.
(b) The Employee understands that he will be unable to sell or
otherwise transfer the Shares unless they are registered under the Securities
Act of 1933 (the "Act") or an exemption from such registration is then
available, and that the Shares may have to be held by the Employee indefinitely.
(c) The Employee acknowledges that the certificate(s) issued
to him to evidence the Shares will bear the following legends, in addition to
any other legend otherwise required with respect to the foregoing restrictions,
and agrees as set forth in such legend:
"The shares represented hereby have not been registered under
the Securities Act of 1933, as amended, (the "Act") or state
securities laws, and such securities may not be pledged, sold
or in any other way transferred unless, at the time they are
presented to the Issuer for transfer, (a) a registration
statement is effective under the Act and applicable state
securities laws with respect to such securities or (b) an
opinion of counsel, in form and substance reasonably
satisfactory to the Issuer, has been delivered to the Issuer
stating that no such registration is required under said
federal and state securities laws, together with such
undertakings and agreements with the Issuer by the proposed
transferee as the Issuer or such counsel may reasonably
require to ensure compliance with the Act and state securities
law."
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(d) Neither the Employee's execution and delivery of this
Agreement, nor his working for the Company as contemplated hereby or performing
his obligations hereunder, violates any provision of law, any order, judgment or
decree of any court, arbitrator (or panel thereof) or government agency, or any
agreement or instrument to which the Employee is a party or by which the
Employee is bound.
8. NONCOMPETITION AND NONDISCLOSURE AGREEMENT.
(a) NONCOMPETITION. While the Employee is employed by or
otherwise engaged to provide services to the Company, and for a period of one
year after the date the Employee ceases for any reason to be employed by or
engaged to provide services to the Company (such date being referred to as the
"Termination Date"), subject to and conditioned upon the Company's obligations
set forth in Section 8(b) hereof, the Employee agrees that he will not, singly,
jointly, or as a partner, member, employee, agent, officer, director,
stockholder (except as a holder of not more than one percent of the outstanding
stock of any company listed on a national securities exchange, or actively
traded in a national over-the-counter market), consultant, independent
contractor, or joint venturer of any other Person, or in any other capacity,
directly or indirectly, whether through a family member or otherwise, do any of
the following:
(i) own, manage, operate, join, control, or
participate in the ownership, management, operation or control of, or permit the
use of his name by, or work for, or provide consulting, financial or other
assistance to a Competing Business within the Protected Territory;
(ii) employ, retain or engage (as an employee,
consultant or independent contractor) any person who, on the date hereof or at
any time prior to the first anniversary of the Termination Date, is an employee
of the Company or any of its Subsidiaries except for (x) persons who have not
been employed by the Company or any of its Subsidiaries in any capacity during
the 365 days immediately preceding the Termination Date and (y) persons who the
Company terminates and who the Employee has not induced or attempted to induce
to terminate their employment with the Company or any of its Subsidiaries in
violation of this Agreement;
(iii) induce or attempt to induce any person who, on
the date hereof or at any time prior to the first anniversary of the Termination
Date, is an employee of the Company or any of its Subsidiaries to terminate his
or her employment with the Company or any of its Subsidiaries; or
(iv) induce or attempt to induce any person that is a
customer of the Company or any of its Subsidiaries, or that otherwise is a
contracting party with the Company or any of its Subsidiaries, as of the date
hereof or at any time prior to the first anniversary of the Termination Date to
terminate any written or oral agreement with the Company or any of its
Subsidiaries.
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(b) COMPENSATION DURING THE NONCOMPETITION PERIOD. The Company
agrees that if the Employee's employment with the Company terminates for any
reason other than by the Company for "Cause" as that term is defined herein, the
Employee shall be bound by the restrictions of Section 8(a) only for so long as
the Company continues to pay to the Employee his salary at the rate in effect at
the time of such termination and continues to provide to the Employee the
hospital, medical and major medical coverage benefits contemplated by Section
4.1 during the one year period of restriction, but in no event for longer than
one year. However, in the event the Employee obtains any subsequent employment
during the one year period following his termination with any business that does
not constitute a Competing Business within the Protected Territory, the Employee
shall immediately notify the Company of said employment and (i) the compensation
earned by the Employee in connection with such subsequent employment shall be
applied as an offset to any monies to be paid by the Company during his one year
non-competition period under this Agreement and (ii) the Company shall no longer
be required to continue to provide to the Employee the benefits contemplated by
Section 4.1 to the extent the Employee is eligible to participate in
substantially similar benefits in connection with such subsequent employment.
(c) CONFIDENTIALITY; NONDISPARAGEMENT. The Employee hereby
agrees that while he is employed by the Company or at any time thereafter he
will not, directly or indirectly, disclose, divulge, render, offer or discuss
any Confidential Information or Trade Secrets of the Company or any of its
Subsidiaries except as may be necessary in the performance of his duties
hereunder and in no event shall he make or publish, either orally or in writing,
any disparaging, defamatory, derogatory or other negative comments about the
Company, its officers, directors or stockholders, products, practices or
operations, or the Company's business or financial condition, plans or
prospects. The Company hereby agrees that it shall not make or publish, either
orally or in writing, any disparaging, defamatory, derogatory or other negative
comments about the Employee.
9. NO RIGHT TO EMPLOYMENT. THE EMPLOYEE AGREES THAT THIS AGREEMENT DOES
NOT CREATE AN OBLIGATION ON THE PART OF THE COMPANY, ITS SUBSIDIARIES OR ANY
OTHER PERSON TO CONTINUE HIS EMPLOYMENT, NOR DOES IT GIVE RISE TO ANY RIGHT TO
OR EXPECTANCY OF EMPLOYMENT WITH THE COMPANY, ITS SUBSIDIARIES OR ANY OTHER
PERSON; IT BEING AGREED THAT THE EMPLOYEE IS FOR ALL PURPOSES AN EMPLOYEE AT
WILL OF THE COMPANY. In exercising its discretion as to whether or not to
terminate the Employee's employment with the Company, the Company shall act only
upon the vote of a majority of the Company's Board of Directors (excluding for
such purpose the Employee if he shall then be serving on the Company's Board of
Directors).
10. ENFORCEMENT. (a) The Company and the Employee agree that the
covenants set forth in this Agreement shall be enforced to the fullest extent
permitted by law. Accordingly if, in any judicial or similar proceedings, a
court or any similar judicial body shall determine that such covenant is
unenforceable because it covers too extensive a geographical area or survives
too long a period of time, or for any other reason, then the parties intend that
such covenant shall be deemed to cover only such maximum geographical area and
maximum period of time, and shall otherwise be deemed to be
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limited in such manner, as will permit enforceability by such court or similar
body. The Company and the Employee further agree that covenants set forth in
this Agreement are reasonable in all the circumstances for the protection of the
legitimate interests of the Company and its stockholders. In the event that any
one or more of such covenants shall, either taken by itself or themselves
together, be adjudged to go beyond what is reasonable in all the circumstances
for the protection of the interests of the Company and its stockholders, but
would be adjudged reasonable if any particular covenant or covenants or parts
thereof were deleted, restricted or limited in a particular manner, then the
said covenants shall apply with such deletions, restrictions or limitations, as
the case may be.
(b) The Company and the Employee each agree that the breach of
this agreement by the other will cause irreparable damage to such party and that
in the event of such breach such party shall have, in addition to any and all
remedies of law, the right to an injunction, specific performance or other
equitable relief to prevent the violation of the other's obligations hereunder.
The seeking of any such injunction or other equitable relief shall not affect
the right of the party seeking the same to seek and obtain damages or other
equitable relief on account of any actual or threatened breach of this Agreement
by the other party.
11. DEFINITIONS.
"CAUSE" means any of the following: (a) the Employee's
conviction of any crime relating to the Company's business
involving dishonesty, fraud, embezzlement, securities laws
violations, or theft or a felony of any type (excluding minor
acts outside of the Employee's employment with the Company,
such as minor traffic violations or minor domestic relations
matters); (b) a breach of fiduciary duties to the Company; (c)
the Employee's commission of an act of dishonesty with regard
to the Company or any of its Subsidiaries; (d) the
adjudication of the mental incompetency of the Employee; (e)
the Employee's failure to diligently or substantially perform
his duties for the Company, which failure continues or ceases
to be cured for a period of thirty (30) days after the Company
delivers to the Employee written notice identifying the manner
in which the Company reasonably believes that the Employee has
not substantially, diligently or successfully performed his
duties; (f) the Employee's prolonged absence from duty without
the consent of the Company other than as a result of illness,
injury or death; or (g) any material breach by the Employee of
the terms of this Agreement or the Stockholders' Agreement,
such breach not being remedied within fifteen (15) days of the
Employee receiving written notice of the breach.
"COMPETING BUSINESS" means any one or more of the following:
(i) internet service provider or provider of other telephone
or voice or data services engaged anywhere in the Protected
Territory; (ii) any other business in which the Company or any
of its Subsidiaries engages at the
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time the Employee's employment with the Company terminates for
any reason; or (iii) any other business in which the Company
or its Subsidiaries actively contemplate engaging (as
evidenced by the creation or ongoing development of a written
business plan with respect thereto) at the time the Employee's
employment with the Company terminates for any reason.
"CONFIDENTIAL INFORMATION OR TRADE SECRETS" means any of the
trade secrets or confidential information concerning the
organization, business, technology or finances of the Company
or of any third party that the Company is under an obligation
to keep confidential (including, but not limited to, trade
secrets or confidential information respecting the Company's
or any such third party's inventions, products, designs,
specifications, methods, know-how, techniques, systems,
processes, software programs, works of authorship, customer
lists projects, plans and proposals).
"PERSON" means an individual, partnership, corporation,
limited liability company, association, trust, joint venture,
unincorporated organization and any government, governmental
department or agency or political subdivision thereof.
"PROTECTED TERRITORY" means the states of New York, New
Hampshire, Maine, Massachusetts, Connecticut, Vermont and
Rhode Island.
"SUBSIDIARY" means any person that the Company now or
hereafter shall at the time own, directly or indirectly
through any other person, at least a majority of the
outstanding capital stock (or other beneficial interest)
entitled to vote generally; and the term "Subsidiaries" shall
mean all of such persons collectively.
"TERMINATION WITHOUT CAUSE" means the Company's termination of
the Employee's employment for any reason other than for Cause.
12. BINDING EFFECT; BENEFITS; ASSIGNMENT. This Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs, and legal representatives. The Employee
may not assign his rights or delegate his duties under this Agreement in any
manner. In the event of a sale (including, without limitation, the sale of all
or substantially all of the Company's assets), merger or other reorganization of
the Company in which the Company is not the surviving or acquiring company, or
in which the Company is or becomes a wholly owned subsidiary of another Person,
the Company may assign its rights and delegate its duties under this Agreement
to the entity that results from or survives such sale, merger or other
reorganization, and this Agreement shall remain in full force and effect in
accordance with its terms following any such assignment and delegation.
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<PAGE>
13. NOTICES. All notices and other communications that are required or
permitted hereunder shall be in writing and shall be sufficient if delivered
personally or mailed by registered or certified mail, postage prepaid, or
delivered by a national, commercial overnight delivery service, to the following
addresses or such other address as any party hereto shall have specified by
notice in writing to the other party hereto:
If to the Employee:
To: Mark Washburn
6 Whitetail Lane
Sudbury, MA 01776
with a copy to:
Gary M. Feldman, Esq.
Davis, Malm & D'Agostine, P.C.
One Boston Place
Boston, MA 02108
If to the Company:
HarvardNET, Inc.
One Harbour Place
Portsmouth, NH 03801
Attention: Board of Directors
All such notices and communications shall be deemed to have been received on the
date of delivery thereof or the fifth business day after the mailing thereof by
certified mail, return receipt requested, or the first business day after the
delivery thereof by a national, commercial overnight delivery service, whichever
is earlier.
14. ENTIRE AGREEMENT. This Agreement, including the Exhibits hereto
which are incorporated herein by this reference, contains the entire agreement
between the parties hereto and supersedes all prior agreements and
understanding, oral or written, between the parties hereto with respect to the
subject matter hereof, including, without limitation, the letter agreement dated
August 31, 1998 between the Employee and the Company.
15. AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Either
party hereto may, by an instrument in writing, waive compliance by the other
party with any term or provision of the Agreement on the part of such other
party hereto to be performed or complied with. The waiver by any party hereto of
a breach of any term or provision of this Agreement shall not be construed as a
waiver or any subsequent breach.
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16. SECTION AND OTHER HEADINGS. The section and other headings
contained in the Agreement are for reference purposes only and shall not be
deemed to be a part of this Agreement or to control or affect the meaning or
construction of any provision of this Agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts (without giving
effect to the conflict or choice of law provisions thereof that would cause the
application of the domestic substantive laws of any other jurisdiction).
18. CONSENT TO JURISDICTION. The Employee hereby agrees to submit to
the nonexclusive jurisdiction of the courts in and of the Commonwealth of
Massachusetts and to the courts to which an appeal of the decisions of such
courts may be taken and consents that service of process with respect to all
courts in and of the Commonwealth of Massachusetts may be made by registered
mail to the Employee's address set forth herein.
19. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY
AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT
IN CONNECTION WITH THIS AGREEMENT, THE STOCKHOLDERS' AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first set forth above.
HARVARDNET, Inc.: Employee:
By: /s/ William Southworth /s/ Mark Washburn
---------------------- -----------------
William Southworth, Mark Washburn
Chief Executive Officer
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Exhibit 10.7
EMPLOYMENT AGREEMENT
Employment Agreement dated October 23, 1998 and effective as of December 3,
1998 (the "Effective Date") by and between the HarvardNET, Inc., a Delaware
Corporation with its principal offices at One Harbour Place, Portsmouth, New
Hampshire (the "Company"), and Todd Desisto, 11 Hugh Strain Road, Cohasset, MA
02025 (the "Employee").
RECITALS
The Employee desires to be employed by the Company and the Company desires
to employ the Employee under the terms specified herein. The Employee and the
Company mutually desire to enter into this Agreement effective as of the date
hereof.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements herein provided, the parties hereto agree, effective as of the
Effective Date, as follows:
1. EMPLOYMENT.
1.1. The Company hereby employs the Employee as its Chief Financial
Officer, and the Employee hereby accepts such employment with the Company, all
in accordance with the terms and conditions hereof.
2. DUTIES.
2.1. In his capacity as the Company's Chief Financial Officer, the
Employee shall be responsible for managing the day-to-day financial and
accounting operations of the Company, and in conjunction with the Chief
Executive Officer and Chief Operating Officer developing financial strategy and
plans for the Company. In addition, the Employee shall perform such other duties
and will have such further responsibilities as are delegated to him by the
Company's Chief Executive Officer or Board of Directors.
2.2. The Employee shall devote his entire business time, energies,
best efforts, attention and ability to the business of the Company, shall
faithfully and diligently perform the duties of his employment with the Company
and shall take all actions reasonably in his power to promote, develop and
extend the business of the Company.
<PAGE>
3. COMPENSATION.
3.1. SALARY. The Company agrees to pay the Employee as compensation
for his services under this Agreement a salary (inclusive of amounts to be
deferred or contributed by the Employee from such salary to the Company's 401(k)
plan or deferred compensation plan in excess of the customary amounts
contributed by the Company) at the annual rate of One Hundred Sixty Thousand
Dollars ($160,000), less all applicable payroll tax and similar deductions,
payable in arrears in bi-weekly installments (the "Salary"). The Company will
review the Salary annually, with any Salary increase granted to Employee as a
result of such review to be in the Company's sole discretion.
3.2. DISCRETIONARY QUARTERLY/ANNUAL PERFORMANCE BONUS. The Employee
shall be eligible to earn a quarterly performance bonus (the "Bonus") in an
amount of up to Ten Thousand Dollars ($10,000). The amount, if any, of such
Quarterly Bonus shall be determined by the Company in its sole discretion and,
if determined to be paid, within fifteen days of the close of each quarter.
4. FRINGE BENEFITS.
4.1. The Company agrees to provide the Employee and his dependents
with such hospital, medical and major medical coverage and such other employee
benefits as the Company may have in effect, from time to time, under its
employee benefit plans for the benefit of its employees but only to the extent
that the Employee and his dependents may be eligible to receive such benefits
under the applicable provisions of the insurance policies or plans providing
such benefits.
4.2. The Employee shall be entitled to paid holidays and sick time in
accordance with the policies of the Company.
4.3 The Employee shall be granted, on January 1st of each year,
commencing with January 1, 1999, three (3) weeks of paid vacation for his use
during such year. Vacation unused at the end of any calendar year may not be
carried forward into the following calendar year.
5. EXPENSE REIMBURSEMENT. Upon submission of appropriate invoices,
receipts or vouchers, the Company shall pay or reimburse the Employee for all
reasonable and authorized expenses (including, but not limited to, expenses
associated with business travel) incurred by the Employee in the performance of
his duties hereunder in furtherance of the Company's business and in keeping
with the policies of the Company.
6. GRANT OF CLASS B STOCK. (a) In consideration of the Employee's
acceptance of employment in accordance with the provisions of this Agreement,
including, without limitation, the Employee's covenants set forth in Section 8
hereof, the Company is concurrently herewith
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issuing to the Employee 560,780 shares of the Company's Class B Stock
(collectively, the "Shares"), which Shares shall be subject to the vesting
provisions set forth below and to certain other associated rights and
obligations as specified in the Stockholders' Agreement dated as of September 1,
1998 among the Company and its stockholders and option holder as of such date
(as the same may be amended from time to time, the "Stockholders' Agreement").
The Employee shall vest in 140,195 Shares (such number is to be equitably
adjusted to reflect any stock split, stock dividend, combination,
reorganization, recapitalization, reclassification or other similar event
involving the Company's Capital Stock) as of the first anniversary of the date
hereof, provided that as of such date the Employee is employed by the Company in
accordance with this Agreement. Thereafter, an additional 6.25% of the Shares
(the number of Shares to be equitably adjusted to reflect any stock split, stock
dividend, combination, reorganization, recapitalization, reclassification or
other similar event involving the Company's Capital Stock) shall vest at the end
of each calendar quarter following the first anniversary of this Agreement (each
a "Quarterly Vesting Date") until the fourth anniversary of this Agreement so
long the Employee is employed by the Company in accordance with this Agreement.
(b) Notwithstanding subsection (a) above to the contrary, in the event
an "Exit Transaction" or a "Qualified Public Offering" (as such terms are
defined in the Stockholders' Agreement) is consummated at a time when the
Employee is employed by the Company, the Employee shall thereupon be deemed to
have been fully vested into all of the Shares into which he shall not have
theretofore vested in accordance with this Agreement.
(c) Any Shares that fail to vest in accordance with the foregoing
provisions of this Section 6 shall thereupon immediately be deemed for all
purposes to have been forfeited and to have been automatically transferred to
and redeemed by the Company without the need for any payment to the Employee or
other action by the Company or any other Person. The Employee shall, immediately
upon request of the Company, deliver to the Company all stock certificates
evidencing such repurchased shares, duly endorsed by the Employee to the
Company.
(d) The Employee hereby becomes a party to and agrees to be bound by
and subject to the terms of the Stockholders' Agreement as a "Holder" and as a
"Restricted Holder" for all purposes thereof as fully as if the Employee were
originally named as a party to the Stockholders' Agreement as a "Holder" and as
a "Restricted Holder" thereunder. The Employee shall also be granted those
rights and privileges as granted to Southworth in the Stockholders' Agreement at
paragraphs 4.1(b), 6.1, 6.2 and 10.4 as if the Employee were originally named in
those sections as a party to the Stockholders' Agreement. Without limitation of
the foregoing, (i) the Employee acknowledges that the Shares constitute "Company
Securities" for all purposes of the Stockholders' Agreement and (ii),
notwithstanding anything in the Stockholders' Agreement to the contrary, the
Employee agrees not to "Transfer" (as such term is defined in the Stockholders'
Agreement) any Shares or other Company Securities that remain subject to vesting
or risk of forfeiture in accordance with this Agreement. The Employee further
agrees that any share certificates issued to him to evidence the Shares shall
contain the legend contemplated by Section 10.3 of the Stockholders' Agreement.
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<PAGE>
(e) The Employee hereby becomes a party to and agrees to be bound by
and subject to the terms of the Registration Rights Agreement dated as of
September 1, 1998 among the Company and its stockholders and option holder as of
such date (as the same may be amended from time to time, the "Registration
Rights Agreement") as a "Holder" for all purposes thereof as fully as if the
Employee were originally named as a party to the Registration Rights Agreement
as a "Holder" thereunder. Without limitation of the foregoing, the Employee
agrees to be bound by the provisions of Section 4(c) ("Holdback Agreements") of
the Registration Rights Agreement with respect to the Shares and any shares of
the Company's Common Stock into which the Share may be converted.
(f) The parties agree that the Company's fair market value as of the
date hereof is not more than $24,000,000 (based on, among other things, the
valuation represented by the recently completed equity investment in the
Company). Consistent with such valuation and the "Minimum Enterprise Value" set
forth in the Company's Second Restated and Amended Certificate of Incorporation
that must be surpassed before shares of Class B Stock participate in dividends
and distributions that might be paid or made by the Company in the future, the
parties agree that the value of the Shares on the date hereof does not exceed
$5,610. Unless otherwise required by law, the parties agree to file their
respective income tax returns consistent with the foregoing valuation. The
Employee and the Company shall be solely responsible for their own respective
income tax liabilities arising from or in connection with the issuance of the
Shares in accordance herewith and neither shall have any liability to the other
on account thereof.
(g) While any of the Shares remain subject to vesting or risk of
forfeiture in accordance with this Agreement, the Company shall retain
possession of the stock certificates evidencing the unvested Shares or Shares
subject to a risk of forfeiture together with stock powers therefor executed by
the Employee in blank. The Employee hereby irrevocably authorizes and directs
the Company to complete such stock powers and otherwise retain and cancel such
stock certificates evidencing such number of Shares that shall fail to vest or
shall otherwise be forfeited in accordance with this Agreement upon such Shares
so failing to vest or otherwise being forfeited.
7. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES. The Employee hereby
represents and warrants to and covenants with the Company as follows:
(a) The Employee is acquiring the Shares hereunder for investment for
the account of the Employee and not in connection with any public distribution
within the meaning of any applicable federal or state securities law, and the
Employee will not effect any sale, transfer or disposition of the Shares in
violation of any such law.
(b) The Employee understands that he will be unable to sell or
otherwise transfer the Shares unless they are registered under the Securities
Act of 1933 (the "Act") or an
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exemption from such registration is then available, and that the Shares may have
to be held by the Employee indefinitely.
(c) The Employee acknowledges that the certificate(s) issued to him to
evidence the Shares will bear the following legends, in addition to any other
legend otherwise required with respect to the foregoing restrictions, and agrees
as set forth in such legend:
"The shares represented hereby have not been registered under the Securities Act
of 1933, as amended, (the "Act") or state securities laws, and such securities
may not be pledged, sold or in any other way transferred unless, at the time
they are presented to the Issuer for transfer, (a) a registration statement is
effective under the Act and applicable state securities laws with respect to
such securities or (b) an opinion of counsel, in form and substance reasonably
satisfactory to the Issuer, has been delivered to the Issuer stating that no
such registration is required under said federal and state securities laws,
together with such undertakings and agreements with the Issuer by the proposed
transferee as the Issuer or such counsel may reasonably require to ensure
compliance with the Act and state securities law."
(d) Neither the Employee's execution and delivery of this Agreement,
nor his working for the Company as contemplated hereby or performing his
obligations hereunder, violates any provision of law, any order, judgment or
decree of any court, arbitrator (or panel thereof) or government agency, or any
agreement or instrument to which the Employee is a party or by which the
Employee is bound.
8. NONCOMPETITION AND NONDISCLOSURE AGREEMENT.
(a) NONCOMPETITION. While the Employee is employed by or otherwise
engaged to provide services to the Company, and for a period of one year after
the date the Employee ceases for any reason to be employed by or engaged to
provide services to the Company (such date being referred to as the "Termination
Date"), subject to and conditioned upon the Company's obligations set forth in
Section 8(b) hereof, the Employee agrees that he will not, singly, jointly, or
as a partner, member, employee, agent, officer, director, stockholder (except as
a holder of not more than one percent of the outstanding stock of any company
listed on a national securities exchange, or actively traded in a national
over-the-counter market), consultant, independent contractor, or joint venturer
of any other Person, or in any other capacity, directly or indirectly, whether
through a family member or otherwise, do any of the following:
(i) own, manage, operate, join, control, or participate in the
ownership, management, operation or control of, or permit the use of his name
by, or work for, or provide consulting, financial or other assistance to a
Competing Business within the Protected Territory;
(ii) employ, retain or engage (as an employee, consultant or
independent contractor) any person who, on the date hereof or at any time prior
to the first
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anniversary of the Termination Date, is an employee of the Company
or any of its Subsidiaries except for (x) persons who have not been employed by
the Company or any of its Subsidiaries in any capacity during the 365 days
immediately preceding the Termination Date and (y) persons who the Company
terminates and who the Employee has not induced or attempted to induce to
terminate their employment with the Company or any of its Subsidiaries in
violation of this Agreement;
(iii) induce or attempt to induce any person who, on the date
hereof or at any time prior to the first anniversary of the Termination Date, is
an employee of the Company or any of its Subsidiaries to terminate his or her
employment with the Company or any of its Subsidiaries; or
(iv) induce or attempt to induce any person that is a customer of
the Company or any of its Subsidiaries, or that otherwise is a contracting party
with the Company or any of its Subsidiaries, as of the date hereof or at any
time prior to the first anniversary of the Termination Date to terminate any
written or oral agreement with the Company or any of its Subsidiaries.
(b) COMPENSATION DURING THE NONCOMPETITION PERIOD. The Company agrees
that if the Employee's employment with the Company terminates for any reason
other than by the Company for "Cause" as that term is defined herein, (i) the
Employee shall be bound by the restrictions of Section 8(a) only for so long as
the Company continues to pay to the Employee his salary at the rate in effect at
the time of such termination and continues to provide to the Employee the
hospital, medical and major medical coverage benefits contemplated by Section
4.1 during the one year period of restriction, but in no event for longer than
one year and (ii) if the Company determines at any time on or after the date of
such termination to provide such compensation and benefits for less than one
year, the Company shall notify the Employee of such determination and the
Company shall be obligated to provide such compensation and benefits to Employee
for six months after the giving of such notice, provided that in no event shall
the Company be obligated to provide any compensation or benefits after the first
anniversary of such termination. However, in the event the Employee obtains any
subsequent employment during the one year period following his termination with
any business that does not constitute a Competing Business within the Protected
Territory, the Employee shall immediately notify the Company of said employment
and (x) the compensation earned by the Employee in connection with such
subsequent employment shall be applied as an offset to any monies to be paid by
the Company during his one year non-competition period under this Agreement and
(y) the Company shall no longer be required to continue to provide to the
Employee the benefits contemplated by Section 4.1 to the extent the Employee is
eligible to participate in substantially similar benefits in connection with
such subsequent employment.
(c) CONFIDENTIALITY; NONDISPARAGEMENT. The Employee hereby agrees that
while he is employed by the Company or at any time thereafter he will not,
directly or indirectly, disclose, divulge, render, offer or discuss any
Confidential Information or Trade Secrets of the
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<PAGE>
Company or any of its Subsidiaries except as may be necessary in the performance
of his duties hereunder and in no event shall he make or publish, either orally
or in writing, any disparaging, defamatory, derogatory or other negative
comments about the Company, its officers, directors or stockholders, products,
practices or operations, or the Company's business or financial condition, plans
or prospects. The Company hereby agrees that it shall not make or publish,
either orally or in writing, any disparaging, defamatory, derogatory or other
negative comments about the Employee.
9. NO RIGHT TO EMPLOYMENT. THE EMPLOYEE AGREES THAT THIS AGREEMENT DOES
NOT CREATE AN OBLIGATION ON THE PART OF THE COMPANY, ITS SUBSIDIARIES OR ANY
OTHER PERSON TO CONTINUE HIS EMPLOYMENT, NOR DOES IT GIVE RISE TO ANY RIGHT TO
OR EXPECTANCY OF EMPLOYMENT WITH THE COMPANY, ITS SUBSIDIARIES OR ANY OTHER
PERSON; IT BEING AGREED THAT THE EMPLOYEE IS FOR ALL PURPOSES AN EMPLOYEE AT
WILL OF THE COMPANY.
10. ENFORCEMENT. (a) The Company and the Employee agree that the covenants
set forth in this Agreement shall be enforced to the fullest extent permitted by
law. Accordingly if, in any judicial or similar proceedings, a court or any
similar judicial body shall determine that such covenant is unenforceable
because it covers too extensive a geographical area or survives too long a
period of time, or for any other reason, then the parties intend that such
covenant shall be deemed to cover only such maximum geographical area and
maximum period of time, and shall otherwise be deemed to be limited in such
manner, as will permit enforceability by such court or similar body. The Company
and the Employee further agree that covenants set forth in this Agreement are
reasonable in all the circumstances for the protection of the legitimate
interests of the Company and its stockholders. In the event that any one or more
of such covenants shall, either taken by itself or themselves together, be
adjudged to go beyond what is reasonable in all the circumstances for the
protection of the interests of the Company and its stockholders, but would be
adjudged reasonable if any particular covenant or covenants or parts thereof
were deleted, restricted or limited in a particular manner, then the said
covenants shall apply with such deletions, restrictions or limitations, as the
case may be.
(b) The Company and the Employee each agree that the breach of this
agreement by the other will cause irreparable damage to such party and that in
the event of such breach such party shall have, in addition to any and all
remedies of law, the right to an injunction, specific performance or other
equitable relief to prevent the violation of the other's obligations hereunder.
The seeking of any such injunction or other equitable relief shall not affect
the right of the party seeking the same to seek and obtain damages or other
equitable relief on account of any actual or threatened breach of this Agreement
by the other party.
11. DEFINITIONS.
"CAUSE" means any of the following: (a) the Employee's conviction of any crime
relating to the Company's business involving dishonesty, fraud, embezzlement,
securities laws violations, or theft or a felony of any type (excluding minor
acts outside of the Employee's employment with
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the Company, such as minor traffic violations or minor domestic relations
matters); (b) a breach of fiduciary duties to the Company; (c) the Employee's
commission of an act of dishonesty with regard to the Company or any of its
Subsidiaries; (d) the adjudication of the mental incompetency of the Employee;
(e) the Employee's failure to diligently or substantially perform his duties for
the Company, which failure continues or ceases to be cured for a period of
thirty (30) days after the Company delivers to the Employee written notice
identifying the manner in which the Company reasonably believes that the
Employee has not substantially, diligently or successfully performed his duties;
(f) the Employee's prolonged absence from duty without the consent of the
Company other than as a result of illness, injury or death; or (g) any material
breach by the Employee of the terms of this Agreement or the Stockholders'
Agreement, such breach not being remedied within fifteen (15) days of the
Employee receiving written notice of the breach.
"COMPETING BUSINESS" means any one or more of the following: (i) internet
service provider or provider of other telephone or voice or data services
engaged anywhere in the Protected Territory; (ii) any other business in which
the Company or any of its Subsidiaries engages at the time the Employee's
employment with the Company terminates for any reason; or (iii) any other
business in which the Company or its Subsidiaries actively contemplate engaging
(as evidenced by the creation or ongoing development of a written business plan
with respect thereto) at the time the Employee's employment with the Company
terminates for any reason.
"CONFIDENTIAL INFORMATION OR TRADE SECRETS" means any of the trade secrets or
confidential information concerning the organization, business, technology or
finances of the Company or of any third party that the Company is under an
obligation to keep confidential (including, but not limited to, trade secrets or
confidential information respecting the Company's or any such third party's
inventions, products, designs, specifications, methods, know-how, techniques,
systems, processes, software programs, works of authorship, customer lists
projects, plans and proposals).
"PERSON" means an individual, partnership, corporation, limited liability
company, association, trust, joint venture, unincorporated organization and any
government, governmental department or agency or political subdivision thereof.
"PROTECTED TERRITORY" means the states of New York, New Hampshire, Maine,
Massachusetts, Connecticut, Vermont and Rhode Island.
"SUBSIDIARY" means any person that the Company now or hereafter shall at the
time own, directly or indirectly through any other Person, at least a majority
of the outstanding capital stock (or other beneficial interest) entitled to vote
generally; and the term "Subsidiaries" shall mean all of such persons
collectively.
"TERMINATION WITHOUT CAUSE" means the Company's termination of the Employee's
employment for any reason other than for Cause.
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12. BINDING EFFECT; BENEFITS; ASSIGNMENT. This Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs, and legal representatives. The Employee
may not assign his rights or delegate his duties under this Agreement in any
manner. In the event of a sale (including, without limitation, the sale of all
or substantially all of the Company's assets), merger or other reorganization of
the Company in which the Company is not the surviving or acquiring company, or
in which the Company is or becomes a wholly owned subsidiary of another Person,
the Company may assign its rights and delegate its duties under this Agreement
to the entity that results from or survives such sale, merger or other
reorganization, and this Agreement shall remain in full force and effect in
accordance with its terms following any such assignment and delegation.
13. NOTICES. All notices and other communications that are required or
permitted hereunder shall be in writing and shall be sufficient if delivered
personally or mailed by registered or certified mail, postage prepaid, or
delivered by a national, commercial overnight delivery service, to the following
addresses or such other address as any party hereto shall have specified by
notice in writing to the other party hereto:
If to the Employee:
Todd Desisto
11 Hugh Strain Road
Cohasset, MA 02025
If to the Company:
HarvardNET, Inc.
One Harbour Place
Portsmouth, NH 03801
Attention: Mark M. Washburn, Chief Operating Officer
All such notices and communications shall be deemed to have been received on the
date of delivery thereof or the fifth business day after the mailing thereof by
certified mail, return receipt requested, or the first business day after the
delivery thereof by a national, commercial overnight delivery service, whichever
is earlier.
14. ENTIRE AGREEMENT. This Agreement, including the Exhibits hereto which
are incorporated herein by this reference, contains the entire agreement between
the parties hereto and supersedes all prior agreements and understanding, oral
or written, between the parties hereto with respect to the subject matter
hereof.
15. AMENDMENTS AND WAIVERS. This Agreement may not be modified or amended
except by an instrument or instruments in writing signed by the party against
whom enforcement of any such modification or amendment is sought. Either party
hereto may, by an instrument in
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<PAGE>
writing, waive compliance by the other party with any term or provision of the
Agreement on the part of such other party hereto to be performed or complied
with. The waiver by any party hereto of a breach of any term or provision of
this Agreement shall not be construed as a waiver or any subsequent breach.
16. SECTION AND OTHER HEADINGS. The section and other headings contained in
the Agreement are for reference purposes only and shall not be deemed to be a
part of this Agreement or to control or affect the meaning or construction of
any provision of this Agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts (without giving
effect to the conflict or choice of law provisions thereof that would cause the
application of the domestic substantive laws of any other jurisdiction).
18. CONSENT TO JURISDICTION. The Employee hereby agrees to submit to the
nonexclusive jurisdiction of the courts in and of the Commonwealth of
Massachusetts and to the courts to which an appeal of the decisions of such
courts may be taken and consents that service of process with respect to all
courts in and of the Commonwealth of Massachusetts may be made by registered
mail to the Employee's address set forth herein.
19. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN
CONNECTION WITH THIS AGREEMENT, THE STOCKHOLDERS' AGREEMENT, THE REGISTRATION
RIGHTS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first set forth above.
HARVARDNET, Inc. Employee:
By: /s/ Mark Washburn /s/ Todd Desisto
------------------------------------ -------------------------------------
Mark M. Washburn, Todd Desisto
Chief Operating Officer
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<PAGE>
EXHIBIT 10.8
LEASE
LANDLORD: Hood Business Park LLC, a Massachusetts Limited
Liability Company
TENANT: HarvardNet Inc., a Delaware Corporation
PREMISES: Hood Business Park, Charlestown, Massachusetts
DATED: October 30, 1998
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE CAPTION PAGE
I REFERENCE DATA 1
(A) Subjects Referred To 1
(B) Exhibits 2
II PREMISES 2
III TERM AND CONSTRUCTION 3
(A) Term 3
(B) Landlord's Required Work 3
(C) Intentionally Omitted 4
(D) General Construction Provisions 4
IV LANDLORD'S COVENANTS 4
(A) Landlord's Covenants During The Term 4
(B) Interruptions 5
V RENT 5
(A) Fixed Rent 5
(B) Additional Rent - Operating and Tax Expenses 6
(C) Additional Rent - Electricity, Gas, Water & Sewer 9
VI TENANT'S COVENANTS 9
VII DEFAULT 13
(A) Events of Default 13
(B) Obligations Thereafter 14
VIII CASUALTY AND TAKING 15
(A) Casualty And Taking 15
(B) Reservation Of Award 15
IX MORTGAGEE 16
(A) Subordination To Mortgages 16
(B) Limitation On Mortgagee's Liability 17
(C) No Release Or Termination 17
X GENERAL PROVISIONS 18
(A) Captions 18
(B) Short Form Lease 18
(C) Relocation 18
(D) Notices 18
(E) Successors And Assigns 18
<PAGE>
(F) No Surrender 19
(G) Waivers And Remedies 19
(H) Self-Help 20
(I) Estoppel Certificate 20
(J) Waiver Of Subrogation 20
(K) Brokers 21
(L) Landlord's Defaults 21
(M) Effectiveness Of Lease 21
(N) Hazardous Materials 21
(O) Delays 21
XI SECURITY DEPOSIT 21
XII MODIFICATION 23
XIII OPTION 23
(A) Option Term 23
(B) Option Rent 24
Exhibit A Plan Showing Location Of The Building
Exhibit B Landlord's Required Work
Exhibit B-1 Plan Showing Layout of Space
Exhibit C Intentionally Omitted
Exhibit D Landlord's Services
Exhibit E Rules And Regulations
Exhibit F Legal Description Of Lot
<PAGE>
Lease dated as of the ____ day of October, 1998, by and between Hood
Business Park LLC, a Massachusetts Limited Liability Company, as landlord
("Landlord"), and HarvardNet Inc., a Delaware corporation, as tenant ("Tenant").
ARTICLE I
REFERENCE DATA
1. (A) SUBJECTS REFERRED TO:
Each reference in this lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1(A):
LANDLORD'S ADDRESS: 90 Everett Avenue
Chelsea, MA 02150-2301
LANDLORD'S MANAGING AGENT: Nordblom Company
31 Third Avenue
Burlington, MA 01803-4470
TENANT'S ADDRESS: 500 Rutherford Avenue
Charlestown, Massachusetts
BUILDING: That certain building designated as "500 Rutherford
Avenue" upon Exhibit A.
RENTABLE FLOOR AREA OF TENANT'S SPACE:
WAREHOUSE: APPROXIMATELY 17,519 SQUARE FEET
OFFICE: APPROXIMATELY 6,280 SQUARE FEET
TOTAL RENTABLE FLOOR AREA OF THE BUILDING:
WAREHOUSE: APPROXIMATELY 109,148 SQUARE FEET
OFFICE: APPROXIMATELY 191,716 SQUARE FEET
ANTICIPATED DELIVERY DATE:
<PAGE>
OCTOBER 31, 1998, FOR THE WAREHOUSE SPACE; AND
JANUARY 1, 1999 FOR THE OFFICE SPACE
ORIGINAL TERM: FIVE (5) YEARS FROM THE
COMMENCEMENT DATE
OPTION TERM: ONE (1) OPTION FOR FIVE (5) YEARS
FIXED RENT FOR THE OFFICE SPACE:
COMMENCING UPON THE DELIVERY OF THE OFFICE SPACE TO TENANT AND THEREAFTER
DURING EACH YEAR OF THE ORIGINAL TERM:
$147,580.00 /YEAR; $12,298.33/MONTH
<PAGE>
FIXED RENT FOR THE WAREHOUSE SPACE:
DURING EACH YEAR OF THE ORIGINAL TERM: $205,848.25/YEAR; $17,154.02/MONTH
FIXED RENT DURING EACH YEAR OF THE OPTION TERM:
THAT FIXED RENT DETERMINED AS SET FORTH IN SECTION (B) OF ARTICLE 13 OF
THIS LEASE
ADDITIONAL RENT FOR TAXES AND OPERATING COSTS:
TENANT'S PROPORTIONATE SHARE OF REAL ESTATE TAXES AND OPERATING COSTS IN
EXCESS OF AN AMOUNT EQUAL TO THE PRODUCT OF $4.85 PER SQUARE FOOT AND THE
RENTABLE SQUARE FOOT FLOOR AREA OF TENANT'S OFFICE SPACE; AND IN EXCESS OF
AN AMOUNT EQUAL TO THE PRODUCT OF $2.75 PER SQUARE FOOT AND THE RENTABLE
SQUARE FOOT FLOOR AREA OF TENANT'S WAREHOUSE SPACE.
SECURITY DEPOSIT: $88,357.05 GUARANTOR: NONE
PERMITTED USE: GENERAL OFFICE AND WAREHOUSE
PURPOSES
PUBLIC LIABILITY INSURANCE LIMITS:
BODILY INJURY: $2,000,000.00
PROPERTY DAMAGE: $ 500,000.00
(B) EXHIBITS
The exhibits listed below in this Section are incorporated in this lease
by reference and are to be construed as part of this lease:
EXHIBIT A Plan Showing Location of the Building
EXHIBIT B Landlord's Required Work
<PAGE>
EXHIBIT B-1 Plan Showing Layout of Space
EXHIBIT C Intentionally Omitted
EXHIBIT D Landlord's Services
EXHIBIT E Rules and Regulations
EXHIBIT F Legal Description of Lot
ARTICLE II
PREMISES
2. PREMISES
Subject to and with the benefit of the provisions of this lease, Landlord
hereby leases to Tenant, and Tenant leases from Landlord, Tenant's space in the
Building, excluding exterior faces of exterior walls, all common facilities of
the Building and all building service fixtures and equipment serving
(exclusively or in common) other parts of the Building. Tenant's space includes
approximately 17,519 square feet of warehouse space and approximately 6,280
square feet of office space. The Building is outlined in red upon the plan
attached as Exhibit A. Tenant's space, with such exclusions, is hereinafter
referred to as "the demised premises". Tenant shall have, as appurtenant to the
demised premises, the right to use in common with others entitled thereto,
subject to reasonable rules from time to time made by Landlord of which Tenant
is given notice: (i) the common facilities from time to time included in the
Building or on the parcel of land on which the Building is located (said parcel
being more particularly described in Exhibit F and being hereafter referred to
as "the Lot"), to the extent from time to time designated by Landlord; and (ii)
the building service fixtures and equipment serving the demised premises. The
Lot is represented by the area outlined by a bold line upon said Exhibit A. It
is understood and agreed that said plan is intended only to show the approximate
size of the Lot as presently constituted and the approximate size and location
of the Building and for no other purpose. Landlord reserves the right from time
to time (a) to install, repair, replace, use, maintain and relocate for service
to the demised premises and to other parts of the Building or either, building
service fixtures and equipment wherever located in the Building; (b) to alter,
relocate or eliminate any other common facility; (c) to designate specific
parking areas upon the Lot to be for the exclusive use of one or more users
thereof; (d) to designate specific traffic routes for trucks and other delivery
vehicles; (e) to alter the size of the Building, including, without limitation,
converting warehouse space to office space
<PAGE>
or office space to warehouse space; and (f) to increase and/or decrease the size
of the Lot by the acquisition of adjacent land and/or the disposition of any
portions thereof. No such increase or decrease shall be deemed to have occurred
until Landlord shall give Tenant notice thereof. Landlord warrants that there
shall always be parking for at least two and one half (2 1/2) cars per 1000
square feet of office space and one and one half (1 1/2) cars per 1000 square
feet of warehouse space. Landlord agrees that in exercising its rights hereunder
it shall not unreasonably interfere with the conduct of Tenant's business in the
demised premises and there shall always be visitor parking reasonably proximate
to the front doors of the Building.
ARTICLE III
TERM AND CONSTRUCTION
3. (A) TERM
To have and to hold for a period ("the Term" or "the Original Term")
commencing when the warehouse space comprising part of the demised premises is
deemed ready for occupancy as provided hereinbelow (being hereafter referred to
as "the Commencement Date") and, unless sooner terminated as provided herein,
ending at the end of the Term; provided that if the Term (calculated as
aforesaid) would expire prior to the last day of a calendar month, the Term
shall be extended so as to expire on the last day of such calendar month.
(B) LANDLORD'S REQUIRED WORK
Landlord agrees to use reasonable efforts to complete Landlord's Required
Work (described in Exhibit B) on or before the Approximate Delivery Date, which
shall, however, be extended for a period equal to that of any delays due to
governmental regulations, scarcity of or inability to obtain labor or materials,
labor difficulties, casualty or other causes reasonably beyond Landlord's
control. The warehouse space comprising part of the demised premises shall be
deemed ready for occupancy on the earlier of:
(a) the date on which Tenant occupies all or any part of the warehouse
space comprising part of the demised premises for the conduct of its business;
or
(b) the substantial completion of Landlord's Required Work as so certified
by Landlord's general contractor, and the issuance of a certificate of occupancy
for
<PAGE>
the warehouse space comprising part of the demised premises.
The office space containing part of the demised premises shall be deemed ready
for occupancy on the earlier of:
(i) the date on which Tenant occupies all or any part of the office space
comprising part of the demised premises for the conduct of its business; or
(ii) the substantial completion of Landlord's Required Work as so
certified by Landlord's general contractor, and the issuance of a certificate of
occupancy for the office space comprising part of the demised premises.
Landlord shall permit Tenant access (at Tenant's sole risk) for installing
equipment and furnishings in the demised premises prior to the Term if it can be
done without material interference with, or delay of, Landlord's work in the
demised premises and/or in other portions of the Building. Tenant shall have the
right to install one (1) satellite dish not more than 18" in diameter in a
location approved therefor by Landlord and not more than two (2) antenna of a
height and size approved by Landlord in a location approved by Landlord. Tenant
shall have the right to use the Building risers to connect said devices to the
demised premises. Tenant shall have the right to install an emergency generator
of reasonable size and a fuel tank of reasonable size to run same. The fuel tank
and generator shall be located in a loading bay inside or outside in a location
approved by Landlord. Tenant shall have the right to run a conduit approved by
Landlord from the generator to the demised premises and from the office space
thereof to the warehouse space thereof. Finally, Tenant shall have the right to
engage any telecommunications company approved by Landlord and certified by the
Massachusetts Department of Telecommunications and Energy, to have access to the
Building and the demised premises to install conduit and cabling approved by
Landlord and necessary for the conduct of Tenant's business. Landlord agrees
that its consent to the foregoing shall not be unreasonably withheld, delayed or
conditioned.
(C) INTENTIONALLY OMITTED
(D) GENERAL CONSTRUCTION PROVISIONS
All construction work required or permitted by this lease, whether by
<PAGE>
Landlord or by Tenant, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all lawful ordinances, regulations and
orders of governmental authorities and insurance rating or inspection bureaus
having jurisdiction over the Building. Either party may inspect the work of the
other at reasonable times and shall promptly give notice of observed defects.
Landlord's Required Work shall be deemed to have been performed upon the
Commencement Date except for items which are incomplete or do not conform with
the requirements of Exhibit B and as to which Tenant shall, in either case, have
given written notice to Landlord prior to the Commencement Date, except for
latent defects or seasonal defects of which notice is given to Landlord within
twelve (12) months of the Commencement Date.
<PAGE>
ARTICLE IV
LANDLORD'S COVENANTS
4. (A) LANDLORD'S COVENANTS DURING THE TERM:
Landlord covenants during the Term:
(1) To furnish, through Landlord's employees or independent contractors,
the services listed in Exhibit D; and
<PAGE>
(2) Except as otherwise provided in this lease, to make such structural
repairs to the roof, exterior walls, and common facilities of the Building and
the Lot as may be necessary to keep them in serviceable condition.
(B) INTERRUPTIONS
Landlord shall not be liable to Tenant for any compensation or reduction
of rent by reason of inconvenience or annoyance or for loss of business arising
from (a) power losses or shortages, or (b) the necessity of Landlord's entering
the demised premises for any of the purposes in this lease authorized, including
without limitation, for repairing or altering the demised premises or any
portion of the Building or for bringing materials into and/or through the
demised premises in connection with the making of repairs or alterations.
Landlord agrees to use reasonable efforts to restore any such service.
In case Landlord is prevented or delayed from making any repairs,
alterations or improvements or furnishing any service or performing any other
covenant or duty to be performed on Landlord's part, by reason of any cause
reasonably beyond Landlord's control, Landlord shall not be liable to Tenant
therefor, nor, except as expressly otherwise provided in Article VIII, shall
Tenant be entitled to any abatement or reduction of rent by reason thereof, nor
shall the same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the demised
premises. Landlord reserves the right to stop any service or utility system when
necessary in Landlord's opinion by reason of accident or emergency or until
necessary repairs have been completed. Except in case of emergency repairs,
Landlord will give Tenant reasonable advance notice of any contemplated stoppage
and, in any event, Landlord will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof. Landlord agrees that if there is a
stoppage of such service or utility system for more than ten (10) business days,
and if Tenant cannot reasonably conduct its business in the demised premises as
a result thereof, Fixed Rent shall thereafter abate until such service or
utility system is restored or Tenant is again able reasonably to conduct its
business in the demised premises.
ARTICLE V
RENT
<PAGE>
5. (A) FIXED RENT
Tenant agrees to pay, without any offset or reduction whatever (except as
made in accordance with the express provisions of this lease), fixed monthly
rent equal to 1/12th of the Fixed Rent, such rent to be paid in equal
installments in advance on the first day of each calendar month included in the
Term provided, however, that no fixed monthly rent shall be payable for the
office space until the date same are delivered to Tenant as set forth in Article
3 above; and for any portion of a calendar month at the beginning or end of the
Term, a portion of such fixed monthly rent, prorated on a per diem basis. All
payments of Fixed and additional rent shall be made in lawful money of the
United States and shall be made to Hood Business Park LLC and sent to Landlord's
Managing Agent at Managing Agent's Address set forth in Section (A) of Article I
above, or to such other person and/or at such other address as Landlord may from
time to time designate.
If any payment of rent or any other payment payable hereunder by Tenant to
Landlord shall not be paid within the grace period set forth in Article VII
hereof, the same shall bear interest from the date when the same was payable
until the date paid at the lesser of (a) twelve percent (12%) per annum, or (b)
the highest lawful rate of interest which Landlord may charge to Tenant without
violating any applicable law. Such interest shall constitute additional rent
payable hereunder.
(B) ADDITIONAL RENT - OPERATING AND TAX EXPENSES
(1) For the purposes of this Section, "Tax Year" shall mean the
twelve-month period in use in the City of Boston for the purpose of imposing ad
valorem taxes upon real property. In the event that said City changes the period
of its tax year, "Tax Year" shall mean a twelve-month period commencing on the
first day of such new tax year, and each twelve-month period commencing on an
anniversary of such date during the Term of this lease; "the Property" shall
mean the Lot and all improvements thereon from time to time, including the
Building; "the Office Escalation Factor" shall mean a fraction the numerator of
which is the Rentable Floor Area of Tenant's Office Space and the denominator of
which is the Total Rentable Floor Area of the office space in the Building. The
"Warehouse Escalation Factor" shall mean a fraction the numerator of which is
the Rentable Floor Area of Tenant's warehouse space and the denominator of which
is the Total Rentable Floor Area of warehouse space of the Building; "the
Building's Share of
<PAGE>
Real Estate Taxes" shall mean the sum of (i) the real estate taxes upon the
Building (determined in accordance with the real estate tax bill, the assessor's
records or a certification from the assessor), plus (ii) the product of the real
estate taxes upon the Lot and a fraction the numerator of which is the number of
square feet of Rentable Floor Area contained within the Building and the
denominator of which is the number of square feet of rentable floor area
contained within all buildings located upon the Lot provided, however, that for
purposes of this sub-subsection (ii), if any portion of the Lot shall be
separately assessed, the real estate taxes towards which Tenant shall be
obligated to contribute shall include only those taxes on those portions of the
Lot jointly assessed with the portion of the Lot on which the Building is
located; and the denominator of the Office Escalation Factor shall be the Total
Rentable Floor Area of the office space contained within all buildings located
upon those portions of the Lot jointly assessed with the portion of the Lot on
which the Building is located. Any betterment assessment, so-called "rent tax"
or any other tax levied or imposed by any governmental authority in addition to,
in lieu of or as a substitute for real estate taxes shall nevertheless be deemed
to be real estate taxes for the purpose of this Section (B). Furthermore, to the
extent that any equipment installed as part of the Property (e.g. heating or air
conditioning equipment) shall be classified as personal property for purposes of
taxation, any personal property taxes thereon shall be deemed to be real estate
taxes for purposes of this Section (B). Real estate taxes shall not include any
franchise, estate, inheritance, succession, capital levy or transfer tax of
Landlord, or any income tax of Landlord.
"Operating Year" shall mean each successive fiscal year (as adopted by
Landlord) in which any part of the Term of this lease shall fall.
"Operating and Tax Expenses" shall mean the Buildings's Share of Real
Estate Taxes plus all costs or expenses reasonably incurred for the operation,
cleaning, maintenance, repair and upkeep of the Property, including, without
limitation, all costs of maintaining and repairing the Property (including snow
removal, landscaping and grounds maintenance, parking lot operation and
maintenance, security, operation and repair of heating and air-conditioning
<PAGE>
equipment, elevators, lighting and any other Building equipment or systems) and
of all repairs and replacements (other than repairs or replacements for which
Landlord has received full reimbursement from contractors, other tenants of the
Building or from others) necessary to keep the Property in good working order,
repair, appearance and condition; all costs, including material and equipment
costs, for cleaning and janitorial services to the Building (including window
cleaning of the Building); all costs of any reasonable insurance carried by
Landlord relating to the Property; all costs related to provision of heat
(including oil, electric, steam and/or gas), air-conditioning, and water
(including sewer charges) and other utilities to the Building, if not separately
metered; payments under all service contracts relating to the foregoing; all
compensation, fringe benefits, payroll taxes and workmen's compensation
insurance premiums related thereto with respect to any employees of Landlord or
its affiliates, at customary rates and at or below the grade of building
manager, engaged in security and maintenance of the Property; attorneys' fees
and disbursements (exclusive of any such fees and disbursements incurred in tax
abatement proceedings or the preparation or enforcement of leases or in any
financing or refinancing) and auditing and other professional fees and expenses;
and a management fee at market rates customarily paid with respect to buildings
similar to the Building.
There shall not be included in such Operating and Tax Expenses brokerage fees
(including rental fees) related to the operation of the Building; interest and
depreciation charges incurred on the Property; or expenditures made by Tenant
with respect to (i) cleaning, maintenance and upkeep of the demised premises;
and (ii) the provision of electricity to the demised premises.
If, during the Term of this lease, Landlord shall replace any capital items or
make any capital expenditures which are required by law or are intended to
reduce operating expenses (collectively called "capital expenditures") the total
amount of which is not properly included in Operating and Tax Expenses for the
calendar year in which they were made, there shall nevertheless be included in
Operating and Tax Expenses for each calendar year in which and after such
capital expenditure is made the annual charge-off of such capital expenditure,
with an appropriate allocation being made between warehouse space and office
space as same may be affected by such capital expenditure. (Annual charge-off
shall be determined by (i) dividing the original cost of the capital expenditure
by the number of years of useful life thereof [the useful life shall be
reasonably determined by Landlord in accordance with
<PAGE>
generally accepted accounting principles and practices in effect at the time of
acquisition of the capital item]; and (ii) adding to such quotient an interest
factor computed on the unamortized balance of such capital expenditure based
upon an interest rate reasonably determined by Landlord as being the interest
rate then being charged for long term mortgages by institutional lenders on like
properties within the locality in which the Building is located.) Provided,
further, that if Landlord reasonably concludes on the basis of engineering
estimates that a particular capital expenditure will effect savings in Operating
and Tax Expenses and that such annual projected savings will exceed the annual
charge-off of such capital expenditure computed as aforesaid, then and in such
events, the annual charge-off shall be shall be determined by dividing the
amount of such capital expenditure by the number of years over which the
projected amount of such savings shall fully amortize the cost of such capital
item or the amount of such capital expenditure; and by adding the interest
factor, as aforesaid.
If during any portion of any year for which Operating and Tax Expenses are being
computed, the Building was not fully occupied by tenants or if not all of such
tenants were paying fixed rent or if Landlord was not supplying all tenants
<PAGE>
with the services being supplied hereunder, actual Operating and Tax Expenses
incurred shall be reasonably extrapolated by Landlord to the estimated Operating
and Tax Expenses that would have been incurred if the Building were fully
occupied by tenants and all such tenants were then paying fixed rent or if such
services were being supplied to all tenants, and such extrapolated amount shall,
for the purposes of this Section (B) be deemed to be the Operating and Tax
Expenses for such year.
Base Operating and Tax Expenses for Office Space: that amount equal to the
product of $4.85 per square foot and the rentable square foot floor area of all
office space in the Building.
Base Operating and Tax Expenses for Warehouse Space: that amount equal to
the product of $2.75 per square foot and the rentable square foot floor area of
all warehouse space in the Building.
(2) After the expiration of each Operating Year, Landlord shall furnish
Tenant with a statement setting forth in reasonable detail the Operating and Tax
Expenses for all the Warehouse Space and for all the Office Space of the
Property for such Operating Year. Such statement shall be accompanied by a
computation of the amount, if any, of the additional rent payable to Landlord
pursuant to this Section.
(3) In the event the respective Operating and Tax Expenses during any
Operating Year shall be greater than the respective Base Operating and Tax
Expenses, Tenant shall pay to Landlord as additional rent an amount equal to the
excess of the Operating and Tax Expenses for the Warehouse Space and/or the
Office Space, as the case may be, for such Operating Year over and above the
Base Operating and Tax Expenses for the Warehouse Space and/or the Office Space,
as the case may be, multiplied by the Warehouse Escalation Factor and/or the
Office Escalation Factor, as the case may be.
(4) Said additional rent shall, with respect to the Operating Years in
which the Commencement Date and end of the Term of this lease fall, be adjusted
to that proportion thereof as the portion of the Term of this lease falling
within such Operating Year bears to the full Operating Year. If Landlord shall
change its fiscal year, appropriate adjustments shall be made for any Operating
Year of less than twelve months which may result.
<PAGE>
(5) Any additional rent payable by Tenant under this Section (B) shall be
paid within ten (10) days after Landlord has furnished Tenant with the statement
described above.
(6) In the event of any taking of the Building or buildings under
circumstances whereby this lease shall not terminate, the Escalation Factor
shall be appropriately adjusted to reflect any change in the Rentable Floor Area
of Tenant's Office Space and/or Warehouse Space and/or the Total Rentable Floor
Area of office space and/or warehouse space in all buildings in the Property,
and the Base Operating and Tax Expenses shall be reduced in proportion to the
reduction in the Total Rentable Floor Area of office and/or warehouse space in
the Property.
(7) If with respect to any Operating Year, or fraction thereof, during the
Term, Tenant is obligated to pay any additional rent as aforesaid, then at
Landlord's election Tenant shall pay, as additional rent, on the first day of
each month of the next ensuing Operating Year, estimated monthly operating
escalation payments equal to 1/12th of the annualized amount of additional rent
payable hereunder for said previous Operating Year. Estimated monthly operating
escalation and tax payments for each ensuing Operating Year shall be made
retroactively to the first day of the Operating Year in question, with an
appropriate additional payment or refund to be made at the time set forth in
Paragraph (5) of this Section.
(C) ADDITIONAL RENT - ELECTRICITY, GAS, WATER & SEWER
(1) Tenant shall pay for all electric service as metered in Tenant's
office space and in Tenant's warehouse space; and Tenant shall pay for the gas
consumed by the unit heaters in Tenant's warehouse space. Landlord shall pay for
the customary water and sewer usage in the office space.
(2) Tenant's use of electricity in the demised premises shall not at any
time exceed the capacity of any of the electrical conductors or equipment in or
otherwise serving the demised premises, so long as such conductors and equipment
are of reasonable standards for such space and the proposed uses.
ARTICLE VI
TENANT'S COVENANTS
<PAGE>
6. TENANT'S COVENANTS DURING THE TERM.
Tenant covenants during the Term and such other time as Tenant occupies
any part of the demised premises:
(1) To pay when due (a) all Fixed Rent and additional rent, (b) all taxes
which may be imposed on Tenant's personal property in the demised premises
(including, without limitation, Tenant's fixtures and equipment) regardless to
whomever assessed, and (c) all charges by any public utility for telephone and
other utility services rendered to the demised premises;
(2) Except as otherwise provided in Article VIII and Section 4(A)(2), to
keep the demised premises in good order, repair and condition, reasonable wear
only excepted; to replace all light bulbs as necessary; maintain and replace all
interior glass; keep all utilities, pipes, conduits, drains and other
installations used in connection with the demised premises, including , without
limitation, the heating, ventilating and air conditioning systems which serve
only the warehouse space comprising part of the demised premises in good order,
condition and repair; and at the expiration or termination of this lease
peaceably to yield up the demised premises and all changes and additions therein
in such order, repair and condition, first removing all goods and effects of
Tenant and those claiming under Tenant and any items the removal of which is
required by any agreement between Landlord and Tenant (or specified therein to
be removed at Tenant's election and which Tenant elects to remove), and
repairing all damage caused by such removal and restoring the demised premises
and leaving them clean and neat. Notwithstanding anything to the contrary
contained herein, Tenant shall forthwith remove from the demised premises
(repairing any damage caused by such removal) any installations, alterations,
additions or improvements made by Tenant or Landlord as part of Landlord's
Required Work or as part of Tenant's work, and which Landlord requests Tenant to
remove by notice given at the time of installation of the same, such removal to
include returning the previously modified portions of the demised premises to
their condition prior to the making of such installations, alterations,
additions or improvements. Tenant's obligations hereunder shall survive the
expiration or termination of the term of this lease. For purposes of this
Section (2) the word "repairs" includes the making of replacements when
necessary. Tenant shall keep the warehouse space comprising part of the demised
premises clean and
<PAGE>
free of refuse and provide all necessary janitorial services to said warehouse
space. Tenant shall provide snow and ice removal from the stairs, entrances and
loading docks serving said warehouse space;
(3) To use and occupy the demised premises only for the Permitted Use; and
not to injure or deface the demised premises, Building, or Lot; and not to
permit in the demised premises any auction sale, nuisance, or the emission from
the demised premises of any objectionable noise or odor; nor any use thereof
which is improper, offensive, contrary to law or ordinances, or liable to
invalidate or increase the premiums for any insurance on the Building (or any
portion thereof) or its contents, or liable to render necessary any alteration
or addition to the Building;
(4) To comply with the rules and regulations set forth in Exhibit E and
all other reasonable rules and regulations hereafter made by Landlord (but only
after copies thereof have been delivered to Tenant) for the care and use of the
Building and Lot and their facilities and approaches, it being expressly
understood, however, that Landlord shall not be liable to Tenant for the failure
of other tenants of the Building to conform to such rules and regulations.
Landlord agrees that it shall not discriminate against Tenant in enforcing said
rules and regulations;
(5) To keep the demised premises equipped with all safety appliances
required by law or ordinance or any other regulation of any public authority
and/or any insurance inspection or rating bureau having jurisdiction pursuant to
the specific use made by Tenant of the demised premises (including hand held
fire extinguishers), and to procure all licenses and permits required because of
any use made by Tenant and, if requested by Landlord, to do any work required
because of such use, it being understood that the foregoing provisions shall not
be construed to broaden in any way the Permitted Use;
(6) Not without the prior written consent of Landlord to assign,
hypothecate, pledge or otherwise encumber this lease, to make any sublease or to
permit occupancy of the demised premises or any part thereof by anyone other
than Tenant, voluntarily or by operation of law, and as additional rent, to
reimburse Landlord promptly upon demand for reasonable legal and other expenses
incurred by Landlord in connection with any request by Tenant for consent to
assignment or subletting. Landlord agrees that it shall not unreasonably
withhold, delay or condition such consent. If Landlord shall consent to any
assignment of this lease by
<PAGE>
Tenant or a subletting of the whole of the demised premises by Tenant at a rent
which exceeds the rent payable hereunder by Tenant, or if Landlord shall consent
to a subletting of a portion of the demised premises by Tenant at a rent in
excess of the subleased portion's prorata share of the rent payable hereunder by
Tenant, then Tenant shall pay to Landlord, as additional rent forthwith upon
Tenant's receipt of each installment of any such excess rent, one half (1/2) the
amount of any such excess rent after deducting reasonable expenses related
thereto. Each request by Tenant for permission to assign this lease or to sublet
the whole or any part of the demised premises shall be accompanied by a warranty
by Tenant as to the amount of rent to be paid to Tenant by the proposed assignee
or sublessee. For purposes of this
<PAGE>
Section (6), the term "rent" shall mean all fixed rent, additional rent or other
payments and/or consideration payable by one party to another for the use and
occupancy of premises. Tenant agrees, however, that neither it nor anyone
claiming under it shall enter into any sublease, license, concession or other
agreement for use, occupancy or utilization of space in the demised premises
which provides for rental or other payment for such use, occupancy or
utilization based, in whole or in part, on the net income or profits derived by
any person or entity from the space leased, used, occupied or utilized (other
than an amount based on a fixed percentage or percentages of receipts or sales),
and Tenant agrees that any such purported sublease, license, concession or other
agreement shall be absolutely void and ineffective as a conveyance of any right
or interest in the possession, use, occupancy, or utilization of any part of the
demised premises. Tenant further agrees that any sublease, license, concession
or agreement for use, occupancy or utilization of space in the demised premises
entered into by it or by anyone claiming under it shall contain the provisions
set forth in the immediately preceding sentence. If there shall be any
assignment or subletting by Tenant pursuant to the provisions of this paragraph,
Tenant shall remain primarily liable for the performance and observance of the
covenants and agreements herein contained on the part of Tenant to be performed
and observed, such liability to be (in the case of any assignment) joint and
several with that of such assignee. It is expressly understood and agreed that
no assignment of Tenant's interest in this lease shall be effective until such
time as Tenant shall deliver to Landlord an agreement from the assignee, which
agreement shall be reasonably satisfactory to Landlord in form and substance and
shall provide that the assignee agrees with Landlord to be primarily liable for
the performance and observance of the covenants and agreements herein contained
on the part of Tenant to be performed and observed, such liability to be joint
and several with that of Tenant. Landlord hereby agrees, however, that Tenant
may assign its interest in this lease or sublet the whole of the demised
premises to (a) a corporation which owns all of the outstanding stock of Tenant
("Tenant's Parent"); (b) a corporation wholly owned by Tenant or by Tenant's
Parent ("a Subsidiary"); (c) a corporation resulting from the consolidation or
merger of Tenant with any other corporation; or (d) a business organization
which shall acquire all or substantially all of the stock or assets of Tenant
provided, however, that in the case of (c) and (d) above, the net worth of the
surviving entity or assignee shall be at least equal to that of the net worth of
Tenant both immediately prior to the assignment and immediately thereafter.
Notwithstanding the foregoing provisions, if the assignment or subletting is to
a Subsidiary, said assignment or subletting shall be valid only for such period
<PAGE>
of time as said Subsidiary is wholly owned by Tenant or Tenant's Parent unless
otherwise permitted above. In the event that Tenant or Tenant's Parent shall
ever sell or otherwise transfer any interest in said Subsidiary to another
person or entity, unless Landlord shall have specifically assented thereto, the
same shall be deemed to be a material breach of this lease;
(7) To defend Landlord, with counsel reasonably acceptable to Landlord,
save Landlord harmless from, and indemnify Landlord against any liability for
injury, loss, accident or damage to any person or property and from any claims,
actions, proceedings and expenses and costs in connection therewith (including,
without implied limitation, reasonable counsel's fees): (i) arising from the
omission, fault, willful act, negligence or other misconduct of Tenant or anyone
claiming under Tenant, or from any use made or thing done or occurring upon or
about the demised premises but not due to the omission, fault, willful act,
negligence or other misconduct of Landlord, or (ii) resulting from the failure
of Tenant to perform and discharge its covenants and obligations under this
lease. Landlord agrees to save Tenant harmless from and indemnify Tenant
against, to the extent permitted by law, any and all injury, loss or damage, and
any and all claims for injury, loss or damage, of whatever nature, caused by or
resulting from, or claimed to have been caused by or to have resulted from, any
act, omission, or negligence of Landlord or its agents or employees. It is a
condition of the foregoing indemnification by each of Tenant and Landlord that
the indemnitor shall be notified with reasonable promptness of any suits,
proceedings, claims or demands with respect to which the indemnitee requests
indemnification, and the indemnitor shall have the right to assume the entire
control of the defense, compromise or settlement thereof, and the indemnitee
shall cooperate fully with the indemnitor in such defense;
(8) To maintain public liability insurance upon the demised premises in
amounts which shall, at the beginning of the Term, be at least equal to
$2,000,000.00 for bodily injury or death to one or more individuals and
$500,000.00 for damage to property, and from time to time during the Term, shall
be for such higher limits, if any, as are customarily carried in the area in
which the demised premises are located upon property similar in type and use to
the demised premises. Such insurance shall name Landlord, Landlord's Managing
Agent, and Landlord's Mortgagee as additional insureds. Tenant shall deliver to
Landlord the policies of such insurance, or certificates thereof, at least
fifteen (15) days prior to the Commencement Date, and each renewal policy or
certificate thereof, at least
<PAGE>
fifteen (15) days prior to the expiration of the policy it renews. Each such
policy shall be written by a responsible insurance company authorized to do
business in the Commonwealth of Massachusetts and shall provide that the same
shall not be modified or terminated without at least twenty (20) days' prior
written notice to each named insured;
(9) To keep all employees working in the demised premises covered by
workmen's compensation insurance in amounts required by law, and to furnish
Landlord with certificates thereof;
(10) To permit Landlord and its agents entry, after reasonable notice
during regular business hours and accompanied by Tenant if Tenant so requests
(provided, however, that in an emergency, Landlord may enter at any time with or
without Tenant, upon the giving of whatever notice is reasonable in the
circumstances): to examine the demised premises at reasonable times and, if
Landlord shall so elect, to make repairs, alterations and replacements; to
remove, at Tenant's expense, any changes, additions, signs, curtains, blinds,
shades, awnings, aerials, flagpoles, or the like not consented to in writing;
and to show the demised premises to prospective tenants during the nine (9)
months preceding the expiration of the Term and to prospective purchasers and
mortgagees at all reasonable times;
(11) Not to place a load upon any part of the floor of the demised
premises exceeding that for which said floor was designed or in violation of
what is allowed by law; and not to move any safe, vault or other heavy equipment
in, about or out of the demised premises except in such manner and at such times
as Landlord shall approve in writing in each instance. Tenant's business
machines and mechanical equipment which cause vibration or noise that may be
transmitted to the Building structure or to any other space in the Building
shall be placed and maintained by Tenant in settings of cork, rubber, spring, or
other types of vibration eliminators sufficient to confine such vibration or
noise to the demised premises;
(12) All the furnishings, fixtures, equipment, effects and property of
every kind, nature and description of Tenant and of all persons claiming by,
through or under Tenant which, during the continuance of this lease or any
occupancy of the demised premises by Tenant or anyone claiming under Tenant, may
be on the demised premises or elsewhere in the Building or on the Lot shall be
at the sole risk and hazard of Tenant, and if the whole or any part thereof
shall be destroyed or
<PAGE>
damaged by fire, water or otherwise, or by the leakage or bursting of water
pipes, steam pipes, or other pipes, by theft, or from any other cause, no part
of said loss or damage is to be charged to or to be borne by Landlord, unless
caused by the gross negligence or willful conduct of Landlord or its agents;
(13) To pay promptly when due the entire cost of any work done on the
demised premises by Tenant and those claiming under Tenant; not to cause or
permit any liens for labor or materials performed or furnished in connection
therewith to attach to the demised premises; and immediately to discharge any
such liens which may so attach;
(14) Not to make any alterations, improvements, changes or additions to
the demised premises without Landlord's prior written consent. Landlord agrees
that it shall not unreasonably withhold or delay its consent to interior, non
structural alterations, improvements, changes or additions to the demised
premises;
(15) To pay to Landlord two (2) times the total of the Fixed Rent and
additional rent then applicable for each month or portion thereof that Tenant
shall retain possession of the demised premises or any part thereof after the
termination of this lease, whether by lapse of time or otherwise, and also to
pay all damages sustained by Landlord on account thereof; however, the
provisions of this subsection shall not operate as a waiver by Landlord of any
right of re-entry provided in this lease or as a matter of law;
(16) To insure the contents, equipment, and improvements of Tenant and
those claiming under Tenant, under policies covering at least fire and the
standard extended coverage risks, in amounts equal to the replacement cost
thereof, the terms of which policies shall provide that such insurance shall not
be canceled without at least twenty (20) days' prior written notice to Landlord.
Copies of such insurance policy or policies, or certificates there of, shall be
delivered to Landlord at least fifteen (15) days prior to the Commencement Date
and each renewal policy or certificate thereof, at least fifteen (15) days prior
to the expiration of the policy it renews; and
(17) To pay Landlord's expenses, including reasonable attorney's fees,
incurred in enforcing any obligation of Tenant in this lease. Landlord agrees to
pay Tenant's expenses, including reasonable attorney's fees, incurred in
enforcing any
<PAGE>
obligation of Landlord in this lease.
ARTICLE VII
DEFAULT
7. (A) EVENTS OF DEFAULT
(1) If Tenant shall default in the payment of Fixed Rent, additional rent
or other payments required of Tenant, and if Tenant shall fail to cure said
default within seven (7) days after receipt of notice of said default from
Landlord, or (2) if Tenant shall default in the performance or observance of any
other agreement or condition on its part to be performed or observed and if
Tenant shall fail to cure said default within fifteen days after receipt of
notice of said default from Landlord (but if longer than fifteen days shall be
reasonably required to cure said default, then if Tenant shall fail to commence
the curing of such default within fifteen days after receipt of said notice and
diligently prosecute the curing thereof to completion), or (3) if any person
shall levy upon, or take this leasehold interest or any part thereof upon
execution, attachment or other process of law, or (4) if Tenant or Guarantor
shall make an assignment of its property for the benefit of creditors, or (5) if
Tenant or Guarantor shall be declared bankrupt or insolvent according to law, or
(6) if any bankruptcy or insolvency proceedings shall be commenced by or against
Tenant or Guarantor and, if against, if not dismissed within ninety (90) days,
or (7) if a receiver, trustee or assignee shall be appointed for the whole or
any part of Tenant's or Guarantor's property, then in any of said cases,
Landlord lawfully may immediately, or at any time thereafter, and without any
further notice or demand, enter into and upon the demised premises or any part
thereof in the name of the whole, and hold the demised premises as if this lease
had not been made, and expel Tenant and those claiming under it and remove its
or their property without being taken or deemed to be guilty of any manner of
trespass (or Landlord may send written notice to Tenant of the termination of
this lease), and upon entry as aforesaid (or in the event that Landlord shall
send Tenant notice of termination as above provided, on the fifth day next
following the date of the sending of the notice), the term of this lease shall
terminate. Notwithstanding the provisions of clauses (1) and (2) of the
immediately preceding sentence, if Landlord shall have rightfully given Tenant
notice of default pursuant to either or both of said clauses twice during any
twelve-month period, and if Tenant shall thereafter default in the payment of
Fixed Rent, additional rent or other payments and/or the performance or
observance of any
<PAGE>
other agreement or condition required of Tenant, then Landlord may exercise the
right of termination provided for it in said immediately preceding sentence
without first giving Tenant notice of such default and the opportunity to cure
the same within the time provided in said clause (1) and/or clause (2), as the
case may be. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event Landlord terminates this
lease as provided in this Article.
(B) OBLIGATIONS THEREAFTER
In case of any such termination, Tenant will indemnify Landlord each month
against all loss of Fixed Rent and additional rent and against all obligations
which Landlord may incur by reason of any such termination between the time of
termination and the expiration of the Term; or at the election of Landlord,
exercised at the time of termination or at any time thereafter, Tenant will
indemnify Landlord each month until the exercise of the election against all
loss of Fixed Rent and additional rent and against all obligations which
Landlord may incur by reason of such termination during the period between the
time of the termination and the exercise of the election, and upon the exercise
of the election Tenant will pay to Landlord as damages the present value at
prime rate of such amount as at the time of the exercise of the election
represents the amount by which the rental value of the demised premises for the
period from the exercise of the election until the expiration of the Term shall
be less than the amount of rent and other payments provided herein to be paid by
Tenant to Landlord during said period. It is understood and agreed that at the
time of the termination or at any time thereafter Landlord may rent the demised
premises, and for a term which may expire before or after the expiration of the
Term, without releasing Tenant from any liability whatsoever, that Tenant shall
be liable for any reasonable expenses incurred by Landlord in connection with
obtaining possession of the demised premises, with removing from the demised
premises property of Tenant and persons claiming under it (including warehouse
charges), with putting the demised premises into good condition for reletting,
and with any reletting, including, but without limitation, reasonable attorneys'
fees and brokers fees, and that any monies collected from any reletting shall be
applied first to the foregoing expenses and then to the payment of Fixed Rent,
additional rent and all other payments due from Tenant to Landlord.
ARTICLE VIII
<PAGE>
CASUALTY AND TAKING
8. (A) CASUALTY AND TAKING
In case during the Term all or any substantial part of the demised
premises, the Building, or Lot or any one or more of them, are damaged by fire
or any other casualty or by action of public or other authority or are taken by
eminent domain, this lease shall terminate at Landlord's election, which may be
made notwithstanding Landlord's entire interest may have been divested, by
notice given to Tenant within thirty days after the occurrence of the event
giving rise to the election to terminate. Said notice shall, in the case of
damage as aforesaid, specify the effective date of termination which shall be
not less than thirty nor more than sixty days after the date of notice of such
termination. In the case of any such taking by eminent domain, the effective
date of the termination shall be the day on which the taking authority shall
take possession of the taken property. Fixed Rent and additional rent shall be
apportioned and adjusted as of the effective date of any such termination. If in
any such case the demised premises are rendered unfit for use and occupation and
this lease is not so terminated, Landlord shall use due diligence to put the
demised premises, or, in the case of a taking, what may remain thereof
(excluding any items which Tenant may be required or permitted to remove from
the demised premises at the expiration of the Term) into proper condition for
use and occupation, but Landlord shall not be required to spend more than the
net proceeds of insurance or award of damages it receives therefor, and a just
proportion of the Fixed Rent and additional rent according to the nature and
extent of the injury to the demised premises shall be abated until the demised
premises or such remainder shall have been put by Landlord in such condition;
and in case of a taking which permanently reduces the area of the demised
premises, a just proportion of the Fixed Rent shall be abated for the remainder
of the Term. Appropriate consideration shall be given as to whether the part so
taken is warehouse space or office space. Notwithstanding the foregoing, if
there shall be damage or destruction to the demised premises by fire or other
casualty which shall not be repaired or restored by Landlord within a period of
twelve (12) months after the date of such damage or destruction, then Tenant, as
Tenant's sole remedy, may terminate the Term of this lease by a notice to
Landlord within sixty (60) days after the expiration of such twelve (12) month
period; provided that said repair or restoration shall not have been completed
prior to the receipt by Landlord of said notice.
<PAGE>
(B) RESERVATION OF AWARD
Landlord reserves to itself any and all rights to receive awards made for
damage to the demised premises, Building or Lot and the leasehold hereby
<PAGE>
created, or any one or more of them, accruing by reason of any exercise of the
right of eminent domain or by reason of anything done in pursuance of public or
other authority. Tenant hereby releases and assigns to Landlord all of Tenant's
rights to such awards, and covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request, hereby irrevocably
designating and appointing Landlord as its attorney-in-fact to execute and
deliver in Tenant's name and behalf all such further assignments thereof. It is
agreed and understood, however, that Landlord does not reserve to itself, and
Tenant does not assign to Landlord, any damages payable for (i) movable
equipment installed by Tenant or anybody claiming under Tenant at its own
expense or (ii) relocation expenses, but in each case only if and to the extent
that such damages are recoverable by Tenant from such authority in a separate
action and without reducing Landlord's award of damages.
ARTICLE IX
MORTGAGEE
9. (A) SUBORDINATION TO MORTGAGES
It is agreed that the rights and interest of Tenant under this lease shall
be: (i) subject and subordinate to the lien of any present or future first
mortgage and to any and all advances to be made thereunder, and to the interest
thereon, upon the demised premises or any property of which the demised premises
are a part, if the holder of such mortgage shall elect, by notice to Tenant, to
subject and subordinate the rights and interest of Tenant under this lease to
the lien of its mortgage; or (ii) prior to the lien of any present or future
first mortgage, if the holder of such mortgage shall elect, by notice to Tenant,
to give the rights and interest of Tenant under this lease priority to the lien
of its mortgage. It is understood and agreed that the holder of such mortgage
may also elect, by notice to Tenant, to make some provisions hereof subject and
subordinate to the lien of its mortgage while granting other provisions hereof
priority to the lien of its mortgage. In the event of any of such elections, and
upon notification by the holder of such mortgage to that effect, the rights and
interest of Tenant under this lease shall be deemed to be subordinate to, or to
have priority over, as the case may be, the lien of said mortgage, irrespective
of the time of execution or time of recording of any such mortgage. Tenant
agrees that it will, upon request of Landlord, execute, acknowledge and deliver
any and all instruments deemed by Landlord necessary or desirable to
<PAGE>
evidence or to give notice of such subordination or priority. Tenant also agrees
that if it shall fail at any time to execute, acknowledge and deliver any such
instrument reasonably requested by Landlord, Landlord may, in addition to any
other remedies available to it, execute, acknowledge and deliver such instrument
as the attorney-in-fact of Tenant and in Tenant's name; and Tenant does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact and in
its name, place and stead so to do. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments and modifications,
consolidations, extensions, renewals, replacements and substitutes thereof.
Whether the lien of any mortgage upon the demised premises or any property of
which the demised premises are a part shall be superior or subordinate to this
lease and the lien hereof, Tenant agrees that it will, upon request, attorn to
the holder of such mortgage or anyone claiming under such holder and their
respective successors and assigns in the event of foreclosure of or similar
action taken under such mortgage. Tenant further agrees that it shall not
subordinate its interest in this lease to the lien of any junior mortgage,
security agreement or lease affecting the demised premises, unless the holder of
the first mortgage upon the demised premises or property which includes the
demised premises shall consent thereto. Notwithstanding anything to the contrary
contained in this Article 9, Tenant shall not be required to subordinate this
lease and the lien hereof to the lien of any mortgage unless the holder of such
mortgage shall enter into an agreement with Tenant, recordable in form, to the
effect that in the event of foreclosure of, or similar action taken under, such
mortgage, Tenant's possession of the demised premises shall not be terminated or
disturbed by such mortgage holder or anyone claiming under such mortgage holder
so long as Tenant shall not be in default under this lease. Landlord agrees to
use best efforts to obtain such an agreement from the present mortgagee of the
Property. Best efforts shall not require Landlord to pay any money.
(B) LIMITATION ON MORTGAGEE'S LIABILITY
Upon entry and taking possession of the mortgaged premises for any
purpose, the holder of a mortgage shall have all rights of Landlord, and during
the period of such possession Landlord, not such mortgage holder, shall have the
duty to perform all of Landlord's obligations hereunder. No such holder shall be
liable, either as a mortgagee or as holder of a collateral assignment of this
lease, to perform, or be liable in damages for failure to perform, any of the
obligations of Landlord unless and until such holder shall succeed to Landlord's
interest herein through foreclosure
<PAGE>
of its mortgage or the taking of a deed in lieu of foreclosure, and thereafter
such mortgage holder shall not be liable for the performance of any of
Landlord's obligations hereunder, except for the performance of those
obligations which arise during the period of time that such mortgage holder
holds Landlord's right, title and interest in this lease, such liability to be
limited to the same extent as Landlord's liability is limited pursuant to
Section 10(E) hereof.
(C) NO RELEASE OR TERMINATION
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this lease, or by law, to be relieved of any of
Tenant's obligations hereunder or to terminate this lease, shall result in a
release or termination of such obligations or a termination of this lease unless
(i) Tenant shall have first given written notice of Landlord's act or failure to
act to Landlord's mortgagees of record, if any, specifying the act or failure to
act on the part of Landlord which could or would be the basis of Tenant's rights
and (ii) such mortgagees, after receipt of such notice, have failed or refused
to correct or cure the condition complained of within a reasonable time
thereafter, but nothing contained in this Section (C) shall be deemed to impose
any obligation on any such mortgagee to correct or cure any such condition.
"Reasonable time" as used above means and includes a reasonable time to obtain
possession of the mortgaged premises, if the mortgagee elects to do so, and a
reasonable time to correct or cure the condition. Finally, Tenant agrees that so
long as any present or future mortgage shall remain in effect Tenant shall not
alter, modify, amend, change, surrender or cancel this lease nor pay the rent
due hereunder in advance for more than thirty (30) days, except as may be
required herein, without the prior written consent of the holder thereof, and
Tenant will not seek to be made an adverse or defendant party in any action or
proceeding brought to enforce or foreclose such mortgage.
ARTICLE X
GENERAL PROVISIONS
10. (A) CAPTIONS
The captions of the Articles are for convenience and are not to be
considered in construing this lease.
<PAGE>
(B) SHORT FORM LEASE
Upon request of either party both parties shall execute and deliver a
short form of this lease in form appropriate for recording, and if this lease is
terminated before the Term expires, an instrument in such form acknowledging the
date of termination. No such short form lease shall contain any indication of
the amount of the rentals payable hereunder by Tenant.
(C) RELOCATION
Intentionally Omitted.
(D) NOTICES
All notices and other communications authorized or required hereunder
shall be in writing and shall be given by mailing the same by certified or
registered mail, return receipt requested, postage prepaid, by mailing the same
by Express Mail or by having the same delivered by a commercial delivery service
such as Federal Express, UPS, Purolator Courier and the like. If given to Tenant
the same shall be directed to Tenant at Tenant's Address, with a copy to Hale
and Dorr LLP, 60 State Street, Boston, Massachusetts 02109, Attention: Jeffrey
A. Hermanson, Esquire, or to such other person or at such other address as
Tenant may hereafter designate by notice to Landlord; and if given to Landlord
the same shall be directed to Landlord at Landlord's Address, or to such other
person or at such other address as Landlord may hereafter designate by notice to
Tenant. In the event the notice directed as above provided shall not be received
upon attempted delivery thereof to the proper address and shall be returned by
the Postal Service or delivery service to the sender because of a refusal of
receipt, the absence of a person to receive, or otherwise, the time of the
giving of such notice shall be the first business day on which delivery was so
attempted.
After receiving notice from Landlord or from any person, firm or other
entity that such person, firm or other entity holds a mortgage which includes
the demised premises as part of the mortgaged premises, no notice from Tenant to
Landlord shall be effective unless and until a copy of the same is given by
certified or registered mail to such holder, and the curing of any of Landlord's
defaults by such holder shall be treated as performance by Landlord, it being
understood and agreed that such
<PAGE>
holder shall be afforded a reasonable period of time after the receipt of such
notice in which to effect such cure.
(E) SUCCESSORS AND ASSIGNS
The obligations of this lease shall run with the land, and this lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns, except that the
Landlord named herein and each successive owner of Landlord's interest in this
lease shall be liable only for the obligations of Landlord accruing during the
period of its ownership. Whenever Landlord's interest in this lease is owned by
a trustee or trustees, the obligations of Landlord shall be binding upon
Landlord's trust estate, but not upon any trustee, beneficiary or shareholder of
the trust individually. Without limiting the generality of the foregoing, and
whether or not Landlord's interest in this lease is owned by a trustee or
trustees, Tenant specifically agrees to look solely to Landlord's interest in
the Building and Lot for recovery of any judgment from Landlord, it being
specifically agreed that neither Landlord, any trustee, beneficiary or
shareholder of any trust estate for which Landlord acts nor any person or entity
claiming by, through or under Landlord shall ever otherwise be personally liable
for any such judgment.
(F) NO SURRENDER
The delivery of keys to any employee of Landlord or to Landlord's agent or
any employee thereof shall not operate as a termination of this lease or a
surrender of the demised premises.
(G) WAIVERS AND REMEDIES
The failure of Landlord or of Tenant to seek redress for violation of, or
to insist upon the strict performance of any covenant or condition of this
lease, or, with respect to such failure of Landlord, any of the rules and
regulations referred to in Section 6(4), whether heretofore or hereafter adopted
by Landlord, shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from having
all the force and effect of an original violation, nor shall the failure of
Landlord to enforce any of said rules and regulations against any other tenant
in the Building be deemed a waiver of any such
<PAGE>
rules or regulations as far as Tenant is concerned. The receipt by Landlord of
Fixed Rent or additional rent with knowledge of the breach of any covenant of
this lease shall not be deemed a waiver of such breach by Landlord unless such
waiver be in writing signed by Landlord. No consent or waiver express or
implied, by Landlord or Tenant to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty. No acceptance by Landlord of a lesser sum than
the Fixed Rent and additional rent then due shall be deemed to be other than on
account of the earliest installment of such rent due, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
installment or pursue any other remedy available to it. The specific remedies to
which Landlord may resort under the terms of this lease are cumulative and are
not intended to be exclusive of any other remedies or means of redress to which
it may be lawfully entitled in case of any breach or threatened breach by Tenant
of any provisions of this lease. In addition to the other remedies provided in
this lease, Landlord shall be entitled to the restraint by injunction of the
violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this lease or to a decree compelling specific
performance of any such covenants, conditions or provisions. In addition to
other remedies provided in this lease, Tenant shall be entitled to the restraint
by injunction of the violation or attempted or threatened violation of any of
the covenants, conditions or provisions of this lease undertaken by Landlord or
to a decree compelling specific performance by Landlord of any such covenants,
conditions, or provisions made by Landlord. If any term of this lease, or the
application thereof to any person or circumstances shall be held, to any extent,
to be invalid or unenforceable, the remainder of this lease, or the application
of such term to persons or circumstances other than those as to which it has
been held invalid or unenforceable, shall not be affected thereby, and each term
of this lease shall be valid and enforceable to the fullest extent permitted by
law. If any interest to be paid by Tenant hereunder shall exceed the highest
lawful rate which Landlord may recover from Tenant, such interest shall be
reduced to such highest lawful rate of interest.
(H) SELF-HELP
If Tenant shall at any time default in the performance of any obligation
under
<PAGE>
this lease after the expiration of any applicable grace period, Landlord shall
have the right, but shall not be obligated, to enter upon the demised premises
and to perform such obligation, notwithstanding the fact that no specific
provision for such performance by Landlord is made in this lease with respect to
such default. In performing such obligation, Landlord may make any payment of
money or perform any other act. All sums so paid by Landlord (together with
interest, from the time paid by Landlord until the time Tenant repays the same
to Landlord, at the rate of interest per annum as set forth in Section (A) of
Article V above), shall be deemed to be additional rent and shall be payable to
Landlord immediately on demand. Landlord may exercise the foregoing right
without waiving any other of its rights or releasing Tenant from any of its
obligations under this lease.
(I) ESTOPPEL CERTIFICATE
Landlord and Tenant agree from time to time after the Commencement Date,
upon not less than ten (10) days' prior written request by either party, to
execute, acknowledge and deliver to the other a statement in writing certifying
that this lease is unmodified and in full force and effect; that Landlord and
Tenant have completed their required work; that Tenant has no defenses, offsets
or counterclaims against its obligations to pay the Fixed Rent and additional
rent and to perform its other covenants under this lease; that Landlord has no
defenses, offsets or counterclaims against its obligation to perform its
covenants under this lease; that there are no uncured defaults of Landlord or
Tenant under this lease (or, if there have been any modifications, that this
lease is in full force and effect as modified and stating the modifications,
and, if there are any defenses, offsets, counterclaims, or defaults, setting
them forth in reasonable detail); and the dates to which the Fixed Rent,
additional rent and other charges have been paid. Any such statement delivered
pursuant to this Section (I) may be relied upon by any prospective purchaser or
mortgagee of premises which include the demised premises or any prospective
assignee of any such mortgagee.
(J) WAIVER OF SUBROGATION
(1) Tenant hereby releases Landlord to the extent of Tenant's insurance
coverage, from any and all liability for any loss or damage caused by fire or
any of the extended coverage casualties or any other casualty insured against,
even if such fire or other casualty shall be brought about by the fault or
negligence of Landlord
<PAGE>
or its agents, provided, however this release shall be in force and effect only
with respect to loss or damage occurring during such time as Tenant's policies
covering such loss or damage shall contain a clause to the effect that this
release shall not affect said policies or the right of Tenant to recover
thereunder. Tenant agrees that its fire and other casualty insurance policies
will include such a clause so long as the same is includable without extra cost,
or if extra cost is chargeable therefor, so long as Landlord pays such extra
cost. If extra cost is chargeable therefor, Tenant will advise Landlord thereof
and of the amount thereof. Landlord at its election, may pay the same, but shall
not be obligated to do so.
(2) Landlord hereby releases Tenant, to the extent of the Landlord's
insurance coverage, from any and all liability for any loss or damage caused by
fire or any of the extended coverage casualties or any other casualty insured
against, even if such fire or other casualty shall be brought about by the fault
or negligence of Tenant or its agents, provided, however, this release shall be
in force and effect only with respect to loss or damage occurring during such
time as Landlord's policies covering such loss or damage shall contain a clause
to the effect that this release shall not affect said policies or the right of
Landlord to recover thereunder. Landlord agrees that its fire and other casualty
insurance policies will include such a clause so long as the same is includable
without extra cost, or if extra cost is chargeable therefor, so long as Tenant
pays such extra cost. If extra cost is chargeable therefor, Landlord will advise
Tenant thereof and of the amount thereof. Tenant at its election may pay the
same, but shall not be obligated to do so.
(K) BROKERS
Tenant and Landlord hereby represent and warrant to the other that they
have dealt with no broker in connection with this lease other than CB Whittier
Partners and Spaulding & Slye ("the Listed Broker/s"), and there are no other
brokerage commissions or other finders' fees payable in connection herewith.
Tenant hereby agrees to hold Landlord harmless from, and indemnified against,
all loss or damage (including without limitation, the cost of defending the
same) arising from any claim by any broker other than"the Listed Broker/s,
claiming to have dealt with Tenant. Landlord hereby agrees to hold Tenant
harmless from, and indemnified against, all loss or damage (including without
limitation, the cost of defending the same) arising from any claim by any broker
claiming to have dealt with Landlord. Landlord agrees to pay the brokerage
commission due the Listed Broker/s by separate
<PAGE>
agreement.
(L) LANDLORD'S DEFAULTS
Landlord shall not be deemed to have committed a breach of any obligation
to make repairs or alterations or perform any other act unless: (1) it shall
have made such repairs or alterations or performed such other act negligently;
or (2) it shall have received notice from Tenant designating the particular
repairs or alterations needed or the other act of which there has been failure
of performance and shall have failed to make such repairs or alterations or
performed such other act within a reasonable time after the receipt of such
notice; and in the latter event Landlord's liability shall be limited to the
cost of making such repairs or alterations or performing such other act.
(M) EFFECTIVENESS OF LEASE
The submission of this lease for examination does not constitute a
reservation of, or option for, the demised premises, and this lease becomes
effective as a lease only upon execution and unconditional delivery thereof by
both Landlord and Tenant.
<PAGE>
(N) HAZARDOUS MATERIALS
Tenant shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active or other
hazardous substances, or materials. Tenant shall not allow the storage or use of
such substances or materials in any manner not sanctioned by the applicable
permits, or by law or by the highest standards prevailing in the industry for
the storage and use of such substances or materials, nor allow to be brought
into the Lot any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Landlord acknowledges
that Tenant may have hazardous materials present in the warehouse space,
provided, however, if any permit or license is required therefor, Tenant shall
first obtain Landlord's consent thereto. Tenant shall obtain and maintain all
proper permits required by applicable law or ordinance for the storage and use
of hazardous materials, and Tenant shall furnish evidence of same upon request.
Without limitation, hazardous substances and materials shall include those
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any
applicable state or local laws and the regulations adopted under these acts. If
any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of hazardous materials, and if such
testing reveals that Tenant is responsible for any release of hazardous
materials, then the reasonable costs thereof shall be reimbursed by Tenant to
Landlord upon demand as additional rent if such requirement applies to the
demised premises. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's reasonable request concerning
Tenant's best knowledge and belief regarding the presence of hazardous
substances or materials on the demised premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this lease from any
release of hazardous materials on the demised premises occurring while Tenant is
in possession, or elsewhere if caused by Tenant or persons acting under Tenant.
The within covenants shall survive the expiration or earlier termination of the
term of this lease.
(O) DELAYS
In any case where either party hereto is required to do any act (other
than
<PAGE>
make a payment of money), delays caused by or resulting from Act of God, war,
civil commotion, fire or other casualty, labor difficulties, shortages of labor,
materials or equipment, government regulations or other causes beyond such
party's reasonable control (other than such party's financial condition) shall
not be counted in determining the time during which such act shall be completed,
whether such time be designated by a fixed date, a fixed time or "a reasonable
time". In any case where work is to be paid for out of insurance proceeds or
condemnation awards, due allowance shall be made, both to the party required to
perform such work and to the party required to make such payment, for delays in
the collection of such proceeds and awards. The foregoing shall not however,
extend the period of restoration following any fire or other casualty
ARTICLE XI
SECURITY DEPOSIT
11. Landlord acknowledges that it has received from Tenant the Security
Deposit, as security for the payment of rents and the performance and observance
of the agreements and conditions in this lease contained on the part of Tenant
to be performed and observed. In the event of any default or defaults in such
payment, performance or observance Landlord may apply said sum or any part
thereof toward the curing of any such default or defaults and/or toward
compensating Landlord for any loss or damage arising from any such default or
defaults. Upon the yielding up of the demised premises at the expiration or
other termination of the Term, if Tenant shall not then be in default or
otherwise liable to Landlord, said sum or the unapplied balance thereof shall be
returned to Tenant. It is understood and agreed that Landlord shall always have
the right to apply said sum, or any part thereof, as aforesaid in the event of
any such default or defaults, without prejudice to any other remedy or remedies
which Landlord may have, or Landlord may pursue any other such remedy or
remedies in lieu of applying said sum or any part thereof. Landlord agrees that
it shall place said sum in an interest bearing account of Landlord's choosing
and all interest payable on said sum or any part thereof shall accrue for the
benefit of Tenant. Tenant shall pay all taxes payable on said interest. If
Landlord shall apply said sum or any part thereof as aforesaid, Tenant shall
upon demand pay to Landlord the amount so applied by Landlord, to restore the
security to its original amount. Whenever the holder of Landlord's interest in
this lease, whether it be the Landlord named in this lease or any transferee of
said Landlord, immediate or remote, shall transfer its interest in this lease,
said holder shall turn over to its
<PAGE>
transferee said sum or the unapplied balance thereof, and thereafter such holder
shall be released from any and all liability to Tenant with respect to said sum
or its application or return, it being understood that Tenant shall thereafter
look only to such transferee with respect to said sum, its application and
return. The holder of any mortgage upon property which includes the demised
premises shall never be responsible to Tenant for said sum or its application or
return unless said sum shall actually have been received in hand by such holder.
ARTICLE XII
MODIFICATION
12. In the event that any holder or prospective holder of any mortgage
which includes the demised premises as part of the mortgaged premises, shall
request any modification of any of the provisions of this lease, other than a
provision directly related to the rents payable hereunder, the duration of the
term hereof, or the size, use or location of the demised premises, or any of
Tenant's other material rights under this lease, Tenant agrees that Tenant will
enter into an amendment of this lease containing each such modification so
requested.
ARTICLE XIII
OPTION
13. (A) OPTION TERM
Tenant shall have the right, at its election, to extend the Original Term
of this lease for either the warehouse space, or the office space, or both, for
an additional period of five (5) years commencing upon the expiration of the
Original Term, provided that Landlord shall receive written notice from Tenant
of the exercise of its election at least nine (9) months prior to the expiration
of the Original Term and provided further that Tenant shall not be in default
beyond any applicable cure period at the time of Landlord's receipt of such
notice in the performance or observance of any of the terms and agreements in
this lease contained on the part of Tenant to be performed or observed. Prior to
the exercise by Tenant of said election to extend the Original Term, the
expression "the Term of this lease" or any equivalent expression shall mean the
Original Term; after the exercise by Tenant of the aforesaid election, the
expression the "Term" or "the Term of this lease" or any equivalent expression
shall mean the Original Term as extended. Except as
<PAGE>
expressly otherwise provided in this lease, all the agreements and conditions in
this lease contained shall apply to the additional period to which the Original
Term shall be extended as aforesaid. If Landlord shall receive notice of the
exercise of the election in the manner and within the time provided aforesaid,
the Original Term shall be extended upon the receipt of the notice without the
requirement of any action on the part of Landlord.
(B) OPTION RENT
During the additional period for which the Original Term of this lease may
be extended as set forth in Section (A) above, the Fixed Rent payable hereunder
shall be adjusted so as to equal the greater of (a) the Fixed Rent payable
immediately prior thereto for the warehouse space, or the office space, or both,
as the case may be, or (b) the annual fair market rental value (the "Market
Value Rent") of the warehouse space, or the office space, or both, as the case
may be, as mutually determined by Landlord and Tenant through the process of
negotiation. Notwithstanding anything to the contrary contained herein, however,
if for any reason whatsoever Landlord and Tenant shall not agree in writing upon
the Market Value Rent for said additional period not later than six (6) months
prior to the commencement thereof, then Landlord and Tenant each shall give
notice (the "Determination Notice") to the other setting forth their respective
determinations of the Market Value Rent, and, subject to the provisions set
forth below, either party may apply to the American Arbitration Association or
any successor thereto for the designation of an arbitrator to render a final
determination of the Market Value Rent. The arbitrator shall be a licensed MAI
real estate appraiser who shall have at least seven (7) years' continuous
experience in the business of appraising commercial real estate in Boston,
Massachusetts. The arbitrator shall conduct such research and study as the
arbitrator shall deem appropriate and shall, within thirty (30) days after
having been appointed, choose one of the determinations set forth in either
Landlord's or Tenant's Determination Notice, and that choice by the arbitrator
shall be binding upon Landlord and Tenant. Each party shall pay its own counsel
and other advisors' fees and expenses, if any, in connection with the process
set forth in Article XIII, and the parties shall share equally all other
expenses and fees of any such arbitrator. The determination rendered in
accordance with the provisions of this paragraph shall be final and binding in
fixing the Market Value Rent. Notwithstanding the foregoing, in the event that
the determination of the Market Value Rent set forth in the Landlord's and
Tenant's Determination Notices
<PAGE>
shall differ by less than five percent (5%) of the smaller of Landlord's or
Tenant's determination thereof, then the Market Value Rent shall not be
determined by arbitration, but shall instead be set by taking the average of the
determinations set forth in Landlord's and Tenant's Determination Notices.
Furthermore, if either party shall fail to send its Determination Notice to the
other party prior to the expiration of ten (10) days after receiving the other
party's Determination Notice, the Market Value Rent shall be conclusively deemed
to be the determination thereof set forth in the Determination Notice which was
provided first. If for any reason the Market Value Rent shall not have been
determined prior to the commencement of said additional period, then, until the
Market Value Rent shall have been finally determined, the Fixed Rent payable
hereunder shall be the amount set forth in clause (a) above. Upon final
determination of the Market Value Rent, an appropriate adjustment to the Fixed
Rent shall be made, if necessary, reflecting such final determination, and
Tenant shall promptly pay to the Landlord any deficiency in the payment of Fixed
Rent from the commencement of said additional period to the date of such final
determination.
EXECUTED as a sealed instrument in two or more counterparts as of the day
and year first above written.
LANDLORD:
HOOD BUSINESS PARK LLC
BY: CATAMOUNT RUTHERFORD LLC
ITS MANAGER
/s/ Stephen J. Kaneb
------------------------------
Stephen J. Kaneb, Manager
TENANT:
HARVARDNET INC.
/s/ William Southworth
-------------------------------
William Southworth, President
<PAGE>
/s/ William Southworth
-------------------------------
William Southworth, Treasurer
(Corporate Seal)
<PAGE>
EXHIBIT A
PLAN SHOWING LOCATION OF THE BUILDING
<PAGE>
EXHIBIT B
LANDLORD'S REQUIRED WORK IN WAREHOUSE SPACE
(i) Broom clean;
(ii) Floor painted;
(iii) Fully air conditioned to warehouse standards; and
(iv) One wall to enclose the loading bay doors.
LANDLORD'S REQUIRED WORK IN OFFICE SPACE
<PAGE>
Entry way to be brick pavers.
A plan layout is attached as Exhibit B-1.
<PAGE>
EXHIBIT C
INTENTIONALLY OMITTED
<PAGE>
EXHIBIT D
LANDLORD'S SERVICES
Landlord shall cause the parking areas and driveways of the Lot to be kept
reasonably free and clear of snow, ice and refuse and shall cause the landscaped
areas (if any) of the Lot to be maintained in a reasonably attractive
appearance. Landlord shall also cause the parking areas of the Lot to be kept
lighted during hours of darkness to the extent reasonably required for the
business operations conducted upon the Lot.
Landlord shall provide to the Building hot water for lavatory purposes and
cold water for drinking, lavatory and toilet purposes. Landlord shall also
provide to the Building elevators for the use of all tenants and the general
public. Programming of elevators (including, but not limited to, service
elevators) shall be as Landlord from time to time determines. Landlord shall
cause the common lobbies, corridors, stairways and lavatories within the
Building to be kept reasonably neat and clean and lighted to the extent required
by the business operations conducted within the Building. Landlord shall also
cause the common areas of the Building to be heated and air conditioned during
the heating and air conditioning seasons in a manner consistent with applicable
law and customary practice in Boston, Massachusetts. Landlord shall also provide
central ventilating and air conditioning ("HVAC") service to the office portion
of the demised premises which shall include air conditioning in the cooling
season, and tempered air during the heating season. Tenant shall pay for all
electricity consumed in the warehouse space and office space as separately
metered, and Tenant shall pay for reheating the tempered air in the VAV system.
Finally, Landlord shall provide janitorial service for the office space
comprising part of the demised premises. Subject to the provisions of Section
(O) of Article X, Landlord agrees that throughout the Term, Tenant shall have
access to the demised premises, twenty four (24) hours a day, seven (7) days a
week and fifty two (52) weeks a year. Tenant shall be responsible for cleaning
and maintaining the warehouse space comprising part of the demised premises with
a contractor selected by Tenant. Landlord shall provide security for the Lot 24
hours/day..
<PAGE>
EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, paved and/or landscaped areas shall not be obstructed or
encumbered by Tenant or used for any purpose other than ingress and egress to
and from the demised premises. No merchandise, boxes or pallets may be stored by
Tenant outside of the demised premises and no cars, trucks or trailers may be
parked on the Lot overnight without the prior written consent of Landlord.
2. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the demised premises or
Building so as to be visible from outside the demised premises without the prior
written consent of Landlord. In the event of the violation of this paragraph,
Landlord may remove same without any liability, and may charge the expense
incurred in such removal to Tenant, as additional rent.
3. No awnings, curtains, blinds, shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
demised premises or any outside wall of the Building without the prior written
consent of Landlord. Such awnings, curtains, blinds, shades, screens or other
projections must be of a quality, type, design and color, and attached in the
manner, approved by Landlord.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids, chemicals, process water,
cooling water or like substances shall be deposited therein. Said plumbing
fixtures and the plumbing system of the Building shall be used only for the
discharge of so-called sanitary waste. All damage resulting from any misuse of
said fixtures and/or plumbing system by Tenant or anyone claiming under Tenant
shall be borne by Tenant.
5. Tenant must, upon the termination of its tenancy, return to Landlord
all locks, cylinders and keys to the demised premises and any offices therein.
<PAGE>
6. Tenant shall, at Tenant's expense, provide artificial light and
electric current for the employees of Landlord and/or Landlord's contractors
while making repairs or alterations in the demised premises.
7. Tenant shall not make, or permit to be made, any unseemly or disturbing
odors or noises or disturb or interfere with occupants of the Building or those
having business with them, whether by use of any musical instrument, radio,
machine, or in any other way.
8. Canvassing, soliciting, and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
9. Tenant shall keep the demised premises free at all times of pests,
rodents and other vermin, and at the end of each business day Tenant shall place
for collection in the place or places provided therefor all trash and rubbish
then in the demised premises.
10. Landlord reserves the right to rescind, alter, waive and/or establish
any rules and regulations, which, in its judgment, are necessary, desirable or
proper for its best interests and the best interests of the occupants of the
Building.
11. All of the work done by Tenant shall be done by such contractors,
labor and means so that, as far as may be possible, all work on the Property,
whether by Landlord or Tenant, shall be done without interruption on account of
strikes, work stoppages or similar causes of delay.
12. The buildings of Hood Business Park are smoke free buildings, and
Tenant shall cause its employees and invitees who smoke to restrict such smoking
to areas designated as "smoking areas" by Landlord from time to time.
<PAGE>
EXHIBIT F
LEGAL DESCRIPTION OF LOT
<PAGE>
EXHIBIT 10.9
AMENDMENT A TO LEASE AGREEMENT
As of March 15, 1999
1. Reference is made to lease dated as of October 30, 1998, by and between
Hood Business Park LLC, a Massachusetts Limited Liability Company, as landlord
("Landlord"), and HarvardNet Inc., a Delaware corporation, as tenant ("Tenant").
Said lease is hereinafter referred to as "the Lease".
2. Landlord and Tenant hereby agree that the Lease is modified in the
following respects:
(A) On or before March 15, 1999 (hereinafter referred to as "Delivery
Date"), Landlord shall deliver to Tenant approximately one thousand
three hundred sixteen (1,316) square feet of additional warehouse
space outlined in red upon Exhibit B-1/Warehouse ("the expansion
warehouse space"). Also, upon Delivery Date Landlord shall deliver
to Tenant approximately twelve hundred (1200) square feet of
mezzanine warehouse space comprising mezzanine floor area over the
warehouse space now occupied by Tenant pursuant to the Lease ("the
mezzanine space"). Tenant's warehouse space as increased by the
expansion warehouse space and the mezzanine space shall be deemed to
be twenty thousand and thirty five (20,035) square feet of floor
area for all purposes of the Lease provided, however, that no Fixed
Rent shall be payable on the mezzanine space. The mezzanine space
shall be made accessible to Landlord twenty four (24) hours per day,
seven (7) days a week for incidental Building maintenance. Tenant
shall carry the insurance required to be carried by Tenant under the
Lease also on the expansion warehouse space and the mezzanine space.
(B) On the Relocation Date (hereinafter defined), Landlord shall deliver
to Tenant and Tenant shall take possession of certain additional
office
<PAGE>
space premises (hereinafter referred to as the "additional office
space") on the second floor of the Building. The additional office
space contains approximately sixteen thousand one hundred eighty
(16,180) square feet of floor area, and is outlined in red upon
Exhibit B-1/Office attached hereto and made a part hereof. Landlord
agrees to deliver the additional office space upon the substantial
completion of the work required of Landlord as set forth on Exhibit
B attached hereto and made a part hereof; and such date of delivery,
which is scheduled to be on or before June 7, 1999, shall be "the
Relocation Date". Landlord's Work on the additional office space
shall be performed at Landlord's sole cost and expense and shall be
deemed substantially complete when the architect in charge of the
construction so certifies. Landlord shall permit Tenant and its
contractor access (at Tenant's sole risk) for installing equipment
and furnishings in the additional office space prior to the
Relocation Date if it can be done without material interference, or
delay of, Landlord's Work in the additional office space. Landlord's
Work shall be deemed to have been performed upon the Relocation Date
except for items which were incomplete or do not conform with the
requirements of Exhibit B and as to which Tenant shall, in either
case, have given written notice to Landlord prior to the Relocation
Date, except for latent defects or seasonal defects of which notice
is given to Landlord within twelve (12) months of the Relocation
Date. Tenant shall perform, at its own cost and expense, any
additional work beyond that to be performed by Landlord pursuant to
Exhibit B hereof; and required to prepare the additional office
space for Tenant's occupancy (pursuant to plans and specifications
approved by Landlord, which consent shall not be unreasonably
withheld or delayed), and Tenant shall equip the additional office
space with all trade fixtures and personal property suitable or
appropriate to the regular normal operation of the type of business
in which Tenant is engaged. From and after Relocation Date, the
original office space containing six thousand two hundred eighty
(6280) square feet of floor area, the additional office space
containing sixteen thousand one hundred eighty (16,180) square feet
of floor area, and the warehouse space as increased by the expansion
warehouse space and the mezzanine space and containing twenty
thousand thirty five (20,035) square feet of floor area, ("the new
demised premises") shall be the
<PAGE>
demised premises for all purposes of the Lease.
(C) The Original Term of the Lease shall be extended for a period of
five (5) years from the Relocation Date (the "new Original Term").
(D) The Fixed Rent payable by Tenant shall be payable as follows:
(i) Tenant shall continue to pay Fixed Rent to Landlord on the
original office space at the annual rate of $147,580.00 per annum;
$12,298.33 per month through the expiration of the new Original
Term.
(ii) During the period commencing on the Relocation Date and
continuing through the expiration of the new Original Term, the
Fixed Rent payable for the additional office space shall be payable
at the annual rate of $24.70 per square foot on 16,180 square feet
or $399,646.00 per annum;$33,303.83 per month. The total combined
Fixed Rent payable for the original office space and the additional
office space shall be $547,226.00 per annum; $45,602.16 per month.
(iii) Tenant shall pay Fixed Rent for the warehouse space as
presently set forth in the Lease through the new Original Term; and,
commencing on the Relocation Date and thereafter until the
expiration of the new Original Term, also on the expansion warehouse
space at the annual rate of $13.00 per square foot. From and after
the Relocation Date, the Fixed Rent payable for the warehouse space
as increased by the expansion warehouse space and the mezzanine
space shall be $222,956.25 per annum; $18,579.69 per month,
in each case payable as set forth in Section (A) of Article 5 of the
Lease.
(E) Appropriate prorations shall be made for the month during which the
Relocation Date shall occur for the monthly payments to be made
pursuant to the provisions of Section (B) of Article 5 of the Lease
with an appropriate proration being made for any Tax Year or other
fiscal period during which the Relocation Date shall occur. From and
after the Relocation Date, Tenant shall pay the additional rent set
forth in Section (C) of Article 5 of the Lease on the new demised
premises in
<PAGE>
the manner determined and set forth in the Lease.
3. Except as expressly modified herein, the Lease shall remain unmodified
and in full force and effect.
4. This Amendment A shall be binding upon and shall inure to the benefit
of Landlord and Tenant and their respective legal representatives, successors
and assigns.
In Witness Whereof, Landlord and Tenant have caused this Amendment A to be
executed as a sealed instrument as of the day and year first above written.
LANDLORD:
HOOD BUSINESS PARK LLC
BY: CATAMOUNT RUTHERFORD LLC
ITS MANAGER
/s/ Stephen J. Kaneb
------------------------------
Stephen J. Kaneb, Manager
TENANT:
HARVARDNET INC.
/s/ Mark M. Washburn
-----------------------------
Mark M. Washburn, President
/s/ Todd C. DeSisto
-----------------------------
Todd C. DeSisto, Treasurer
(Corporate Seal)
<PAGE>
EXHIBIT B
LANDLORD'S REQUIRED WORK
<PAGE>
EXHIBIT B-1/OFFICE
<PAGE>
EXHIBIT B-1/WAREHOUSE
<PAGE>
Exhibit 10.10
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of February 24, 1999
by and between
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY,
d/b/a
BELL ATLANTIC - NEW HAMPSHIRE
and
HARVARD NET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
24th day of February 1999 (the "Effective Date"), by and between New England
Telephone and Telegraph Company, d/b/a Bell Atlantic - New Hampshire ("BA"), a
New Hampshire corporation with offices at 185 Franklin Street, Boston,
Massachusetts, and Harvard Net, Inc. ("HarvardNet"), a Delaware, corporation
with offices at 500 Rutherford Avenue, Charlestown, Massachusetts, 02129 (each a
"Party" and, collectively, the "Parties").
WHEREAS, HarvardNet has requested that BA make available to HarvardNet
Interconnection service and unbundled Network Elements upon the same terms and
conditions as provided in the Interconnection Agreement (and amendments thereto)
between New England Fiber Communications, LLC and BA, dated as of July 17, 1997,
for New Hampshire, approved by the Commission under Section 252 of the Act the
(the, "Separate Agreement") and attached as Appendix 1 hereto; and
WHEREAS, BA has undertaken to make such terms and conditions available to
HarvardNet hereby only because of and, to the extent required by, Section 252(i)
of the Act.
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, HarvardNet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement (as set forth in Appendix 1 hereto), as it is in effect on
the date hereof after giving effect to operation of law, and of the other
Appendices hereto, are incorporated by reference in their entirety herein and
form an integral part of this Agreement.
1.2 References in Appendix 1 hereto to New England Fiber Communications,
LLC or to NEFC shall for purposes of this Agreement be deemed to refer to
HarvardNet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of Appendix 1 hereto, this Agreement shall continue in
effect in accordance with Section 21 of Appendix 1 until the Separate Agreement
expires or is otherwise terminated.
1.4 All references in Appendix 1 hereto to "800/888" shall be deleted in
their entirety and replaced with the following: "800/888/877".
<PAGE>
1.5 If HarvardNet so requests, at such time as BA makes available the
Performance Monitoring Reports set forth in the Memorandum Opinion and Order
adopted by the FCC on August 14, 1997 (the "FCC Merger Order") to other
Telecommunications Carriers purchasing Interconnection from BA, BA shall provide
HarvardNet with the Performance Monitoring Reports applicable to HarvardNet in
accordance with the requirements of said FCC Merger Order in lieu of the
quarterly performance reports set forth in Schedules 27.2A through 27.2D
thereto.
1.6 Notices to HarvardNet under Section 29.12 of Appendix 1 hereto shall
be sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
1.7 Notices to BA under Section 29.12 of Appendix 1 hereto shall be sent
to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
Bell Atlantic New Hampshire
Attn: Victor Del Vecchio
185 Franklin Street
Room 1403
Boston, MA 02110
Telephone: (617) 743-2323
2
<PAGE>
Facsimile: (617) 737-0648
1.8 Schedule 4.0 set forth at Appendix 2 hereto shall replace and
supersede in its entirety Schedule 4.0 of Appendix 1 hereto.
2.0 Clarifications
2.1 BA and HarvardNet have entered into this Agreement in accordance with
the requirements of 47 USC ss. 252(i). However, BA has advised HarvardNet that
BA disputes the applicability of the Separate Agreement's Reciprocal
Compensation arrangements to traffic that is transmitted to or returned from the
Internet at any point during the duration of the transmission ("Internet
Traffic"), (herein the "Disputed Issue"). BA believes that Internet Traffic is
not "Local Traffic" pursuant to Section 5.7 of the Separate Agreement and
HarvardNet disagrees.
2.2 The execution of this Agreement does not constitute (1) an admission
by either Party that the other Party's interpretation thereof is lawful or
reasonable; or (2) a release or waiver by either Party of its claims and
defenses pertaining to the Disputed Issue. Bell Atlantic agrees to be bound by
the terms of the Separate Agreement only as and to the extent required by
Section 252(i). Moreover, the entry into, filing and performance by the Parties
of this Agreement does not in any way constitute a waiver by either Party of any
of the rights and remedies it may have pursuant to Section 28 of the Separate
Agreement. Nor does it constitute a waiver of any right available under
Applicable Law, in connection with either the Disputed Issue or with
HarvardNet's election under 47 U.S.C. ss. 252(i): (1) to petition the
Commission, other administrative body or court for reconsideration or reversal
of any determination made by such body or court or (2) to seek enforcement or
review of this Agreement or the Separate Agreement.
3
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 24th day of February, 1999.
HARVARD NET, INC. BELL ATLANTIC-NEW HAMPSHIRE, INC.
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
-------------------------- -------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
---------------------- --------------------------
Title: President & CEO Title: Vice-President - Interconnection
----------------------- Services Policy & Planning
----------------------------
4
<PAGE>
APPENDIX 1
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of July 17, 1997
by and between
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
and
NEW ENGLAND FIBER COMMUNICATIONS, L.C.C.
FOR NEW HAMPSHIRE
<PAGE>
TABLE OF CONTENTS
Section Page
1.0 DEFINITIONS 1
2.0 INTERPRETATION AND CONSTRUCTION 7
3.0 SCOPE 7
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) 7
4.1 Scope 7
4.2 Physical Architecture 8
4.3 Initial Interim Architecture 8
4.4 Technical Specifications 8
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2) 9
5.1 Scope of Traffic 9
5.2 Switching System Hierarchy 9
5.3 Trunk Group Architecture and Traffic Routing 10
5.4 Signaling 11
5.5 Grades of Service 11
5.6 Measurement and Billing 11
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5) 12
5.8 Municipal Calling Service 13
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
SECTION 251(c)(2) 13
6.1 Scope of Traffic 13
6.2 Trunk Group Architecture and Traffic Routing 13
6.3 Meet-Point Billing Arrangements 14
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC 14
7.1 Information Services Traffic 14
7.2 Tandem Transit Service 15
7.3 Dedicated Transit Service 16
7.4 911/E911 Arrangements 17
8.0 JOINT NETWORK CONFIGURATION AND GROOMING PLAN; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR 18
8.1 Joint Network Configuration and Grooming Plan 18
8.2 Installation, Maintenance, Testing and Repair 18
8.3 Network Reliability Council 18
<PAGE>
9.0 UNBUNDLED ACCESS -- SECTION 251(c)(3) 18
9.1 Local Link Transmission Types 18
9.2 ADSL and HDSL 19
9.3 Port Types 20
9.4 Private Lines and Special Access 20
9.5 Limitations on Unbundled Access 21
9.6 Availability of Other Network Elements on an Unbundled Basis 22
9.7 Provisioning of Unbundled Links 22
9.8 Maintenance of Unbundled Network Elements 24
9.9 True-up of Monthly Unbundled Link Charges for New Hampshire 24
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1) 26
10.1 Availability of Wholesale Rates for Resale 26
10.2 Availability of Retail Rates for Resale 26
10.3 Term and Volume Discounts 26
11.0 NOTICE OF CHANGES -- SECTION 251(c)(5) 26
12.0 COLLOCATION -- SECTION 251(c)(6) 26
13.0 NUMBER PORTABILITY -- SECTION 251(b)(2) 27
13.1 Scope 27
13.2 Procedures for Providing INP Through Remote Call Forwarding 27
13.3 Procedures for Providing INP Through Route Indexing 28
13.4 Procedures for Providing INP Through Full NXX Code Migration 28
13.5 Receipt of Terminating Compensation on Traffic to INP'ed
Numbers 29
13.6 True-up of Monthly INP Costs 30
14.0 NUMBER RESOURCE ASSIGNMENTS 30
15.0 DIALING PARITY -- SECTION 251(b)(3) 30
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 30
17.0 DATABASES AND SIGNALING 31
18.0 REFERRAL ANNOUNCEMENT 31
19.0 DIRECTORY SERVICES ARRANGEMENTS 31
19.1 Directory Listings and Directory Distributions 31
19.2 Directory Assistance (DA) and Operator Services 32
20.0 GENERAL RESPONSIBILITIES OF THE PARTIES 34
21.0 TERM AND TERMINATION 36
2
<PAGE>
22.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 37
23.0 CANCELLATION CHARGES 37
24.0 NON-SEVERABILITY 37
25.0 INDEMNIFICATION 37
26.0 LIMITATION OF LIABILITY 38
27.0 PERFORMANCE STANDARDS AND REPORTING REQUIREMENTS 39
27.1 Performance Standards 39
27.2 Reporting Requirements 39
28.0 REGULATORY APPROVAL 40
29.0 MISCELLANEOUS 40
29.1 Authorization 40
29.2 Compliance 41
29.3 Compliance with the Communications Law Enforcement Act of
1994 41
29.4 Independent Contractor 41
29.5 Force Majeure 41
29.6 Confidentiality 41
29.7 Governing Law 42
29.8 Taxes 43
29.9 Non-Assignment 43
29.10 Non-Waiver 43
29.11 Disputed Amounts 43
29.12 Notices 44
29.13 Publicity and Use of Trademarks or Service Marks 45
29.14 Section 252(i) Obligations 45
29.15 Joint Work Product 45
29.16 No Third Party Beneficiaries; Disclaimer of Agency 45
29.17 No License 45
29.18 Technology Upgrades 46
29.19 Survival 46
29.20 Scope of Agreement 46
29.21 Entire Agreement 46
29.22 Power and Authority 46
3
<PAGE>
LIST OF SCHEDULES AND EXHIBIT
Schedules
Schedule 1.0 Certain Terms As Defined in the Act
Schedule 4.0 Network Interconnection Schedule
Schedule 8.2 NYNEX Intervals for Installation
Schedule 27.1 NYNEX Performance Standards
Schedule 27.1(A) NEFC Service Quality Criteria
Schedule 27.2 Performance Measurement Reports
Pricing Schedule
Exhibit
Exhibit A Network Element Bona Fide Request
4
<PAGE>
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 effective as of the 10th day of
July, 1997 (the "Effective Date"), by and between New England Fiber
Communications L.L.C. ("NEFC") a Delaware limited liability companywith offices
at 2 Wall Street, Manchester, New Hampshire 03101 and New England Telephone and
Telegraph Company d/b/a NYNEX ("NYNEX" or "NET"), a New York corporation with
offices at 185 Franklin Street, Boston, Mass. 02110.
WHEREAS the Parties want to interconnect their networks at mutually agreed
upon points of Interconnection to provide Telephone Exchange Services (as
defined below) and Exchange Access (as defined below) to their respective
Customers; 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 Act (as defined below) and additional services as set forth
herein;
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, NEFC and NYNEX hereby agree as follows:
1.0 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
specified below in this Section 1.0. For convenience of reference only, the
definitions of certain terms that are As Defined in the Act (as defined below)
are set forth on Schedule 1.0. Schedule 1.0 sets forth the definitions of such
terms as of the date specified on such Schedule and neither Schedule 1.0 nor any
revision, amendment or supplement thereof intended to reflect any revised or
subsequent interpretation of any term that is set forth in the Act is intended
to be a part of or to affect the meaning or interpretation of this Agreement.
1.1 "Act" means the Communications Act of 1934 (47 U.S.C. ss. 151, et
seq.), as amended by the Telecommunications Act of 1996, and as from time to
time interpreted in the duly authorized rules and regulations of the FCC or a
state regulatory agency within its state of jurisdiction.
1.2 "ADSL" or "Asymmetrical Digital Subscriber Line" means a transmission
technology which transmits an asymmetrical digital signal using one of a variety
of line codes as specified in ANSI standards T1.413-1995-007R2.
1.3 "Affiliate" is As Defined in the Act.
<PAGE>
1.4 "Agreement for Switched Access Meet Point Billing" means the Agreement
for Switched Access Meet Point Billing between the Parties as amended.
1.5 "As Defined in the Act" means as specifically defined by the Act and
as from time to time interpreted in the duly authorized rules and regulations of
the FCC or the PUC.
1.6 "As Described in the Act" means as described in or required by the Act
and as from time to time interpreted in the duly authorized rules and
regulations of the FCC or the PUC.
1.7 "Automatic Number Identification" or "ANI" means a Feature Group D
signaling parameter which refers to the number transmitted through a network
identifying the billing number of the calling party.
1.8 "Busy Line Verification/Busy Line Verification Interrupt Traffic" or
"BLV/BLVI Traffic" means an operator service call in which the caller inquires
as to the busy status of or requests an interruption of a call on another
Customer's Telephone Exchange Service line.
1.9 "Calling Party Number" or "CPN" is a Common Channel Interoffice
Signaling ("CCIS") parameter which refers to the number transmitted through a
network identifying the calling party.
1.10 "Central Office Switch" means a switch used to provide
Telecommunications Services, including, but not limited to:
(a) "End Office Switches" which are used to terminate Customer
station Links for the purpose of interconnection to each other and to
trunks; and
(b) "Tandem Office Switches" ("Tandems") which are used to connect
and switch trunk circuits between and among other Central Office Switches.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
1.11 "CCS" means one hundred (100) call seconds.
1.12 "CLASS Features" means certain CCIS-based features available to
Customers including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification; Call Return and future CCIS-based offerings.
1.13 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in its equipment necessary for
2
<PAGE>
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"). For purposes of Collocation, the "premises" of a Housing Party
is limited to the occupied structure or portion thereof in which such Housing
Party has the exclusive right of occupancy. Collocation will be "physical,"
unless physical collocation is not practical for technical reasons or because of
space/limitations, in which case virtual collocation will be provided, subject
to PUC approval. In "Physical Collocation," the Collocating Party installs and
maintains its own equipment in the Housing Party's premises.
1.14 Commission means the New Hampshire Public Utilities Commission
("PUC").
1.15 "Customer" means a third-party residence or business that subscribes
to Telecommunications Services provided by either of the Parties.
1.16 "Common Channel Interoffice Signaling" or "CCIS" means the signaling
system, developed for use between switching systems with stored-program control,
in which all of the signaling information for one or more groups of trunks is
transmitted over a dedicated high-speed data link rather than on a per-trunk
basis and, unless otherwise agreed by the Parties, the CCIS used by the Parties
shall be SS7.
1.17 "Cross Connection" means a connection provided pursuant to
Collocation at the Digital Signal Cross Connect, Main Distribution Frame or
other suitable frame or panel between (i) the Collocating Party's equipment and
(ii) the equipment or facilities of the Housing Party.
1.18 "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.
"Local Dialing Parity" means the ability of Telephone Exchange Service Customers
of one LEC to select a provider and make local calls without dialing extra
digits. "Toll Dialing Parity" means the ability of Telephone Exchange Service
Customers of a LEC to place toll calls (inter or intraLATA) which are routed to
a toll carrier (intraLATA or interLATA) of their selection without dialing
access codes or additional digits and with no unreasonable dialing delay.
1.19 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.20 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.21 "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.
3
<PAGE>
1.22 "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.
1.23 "Direct Customer Access Service" or "DCAS" is an electronic interface
system provided by NYNEX to facilitate the ordering, provisioning and
maintenance of various interconnection arrangements.
1.24 "Exchange Message Record" or "EMR" means the standard used for
exchange of Telecommunications message information among Telecommunications
providers for billable, non-billable, sample, settlement and study data. The EMR
format is contained in Bellcore Practice BR-010-200-010 CRIS Exchange Message
Record.
1.25 "Exchange Access" is As Defined in the Act.
1.26 "FCC" means the Federal Communications Commission.
1.27 "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.
1.28 "High-Bit Rate Digital Subscriber Line" or "HDSL" means a
transmission technology which transmits up to a DS1-level signal, using any one
of the following line codes: 2 Binary / 1 Quartenary ("2B1Q"), Carrierless
AM/PM, Discrete Multitone ("DMT"), or 3 Binary / 1 Octel ("3BO").
1.29 "Information Service" is As Defined in the Act.
1.30 "Information Service Traffic" means Local Traffic or IntraLATA Toll
Traffic which originates on a Telephone Exchange Service line and which is
addressed to an information service provided over a Party's information services
platform.
1.31 "Integrated Digital Loop Carrier" means a subscriber loop carrier
system which integrates within the switch, at a DS1 level, twenty-four (24)
Local Link Transmission paths combined into a 1.544 Mbps digital signal.
1.32 "Interconnection" is As Described in the Act and refers to the
connection of a network, equipment, or facilities, of one carrier with the
network, equipment, or facilities of another for the purpose of transmission and
routing of Telephone Exchange Service traffic and Exchange Access traffic.
1.33 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll Services.
4
<PAGE>
1.34 "Interim Telecommunications Number Portability" or "INP" is
As Described in the Act.
1.35 "InterLATA Service" is As Defined in the Act.
1.36 "Integrated Services Digital Network" or "ISDN" means a switched
network service that provides end-to-end digital connectivity for the
simultaneous transmission of voice and data. Basic Rate Interface-ISDN
(BRI-ISDN) provides for a digital transmission of two 64 Kbps bearer channels
and one 16 Kbps data channel (2B+D).
1.37 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined as Local Traffic in this Agreement.
1.38 "Local Access and Transport Area" or "LATA" is As Defined in the Act.
1.39 "Local Traffic" means a call which is originated and terminated
within a local service area as defined in NHPUC No.77 Tariff, Part A, Section 6.
IntraLATA calls originated on a 1+ presubscription basis when available or a
casual dialed (10XXX/101XXXX) basis are not considered local traffic.
1.40 "Local Exchange Carrier" or "LEC" is As Defined in the Act.
1.41 "Local Link Transmission" or "Link" means the entire transmission
path which extends from the network interface/demarcation point at a Customer's
premises to the Main Distribution Frame or other designated frame or panel in a
Party's Wire Center which serves the Customer. Links are defined by the
electrical interface rather than the type of facility used.
1.42 "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).
1.43 "Main Distribution Frame" or "MDF" means the distribution frame of
the Party providing the Link used to interconnect cable pairs and line and trunk
equipment terminals on a switching system.
1.44 "Meet-Point Billing" means the process whereby each Party bills the
appropriate tariffed rate for its portion of a jointly provided Switched
Exchange Access Service as agreed to in the Agreement for Switched Access Meet
Point Billing.
1.45 "Municipal Calling Service" is a calling service arrangement provided
on a non-optional basis to Customers in municipalities served by more than one
exchange or locality where toll charges would normally apply. Calls between
exchanges or localities serving the same municipality are not chargeable as toll
except for calls originating from
5
<PAGE>
coin (public and semi-public) telephones, terminating at public telephones, or
made to or from foreign exchange lines unless dial tone for the foreign exchange
line is provided from a central office serving some portion of the municipality
in which the foreign exchange line service address is located.
1.46 "Network Element" is As Defined in the Act.
1.47 "Network Element Bona Fide Request" means the process described in
Exhibit A that prescribes the terms and conditions relating to a Party's request
that the other Party provide a Network Element not otherwise provided by the
terms of this Agreement.
1.48 "North American Numbering Plan" or "NANP" means the numbering plan
used in the United States, Canada, Bermuda, Puerto Rico and certain Caribbean
Islands. The NANP format is a 10-digit number that consists of a 3-digit NPA
code (commonly referred to as the area code), followed by a 3-digit NXX code and
4-digit line number.
1.49 "Number Portability" is As Defined in the Act.
1.50 "NXX" means the three-digit code which appears as the first three
digits of a seven digit telephone number.
1.51 "Party" means either NYNEX or NEFC, and "Parties" means NYNEX and
NEFC.
1.52 "Port" means a termination on a Central Office Switch that permits
Customers to send or receive Telecommunications over the public switched
network, but does not include switch features or switching functionality.
1.53 "POT Bay" or "Point of Termination Bay" means the intermediate
distributing frame system which serves as the point of demarcation for
collocated interconnection.
1.54 "Rate Center" means the specific geographic point which has been
designated by a given LEC as being associated with a particular NPA-NXX code
which has been assigned to the LEC for its provision of Telephone Exchange
Service. The Rate Center is the finite geographic point identified by a specific
V&H coordinate, which is used by that LEC to measure, for billing purposes,
distance sensitive transmission services associated with the specific Rate
Center. Rate Centers will be identical for each Party until such time as NEFC
establishes its own Rate Centers within an area.
1.55 "Reciprocal Compensation" is As Described in the Act.
6
<PAGE>
1.56 "Route Indexing" means the provision of Interim Number Portability
through the use of direct trunks provisioned between End Offices of NYNEX and
NEFC over which inbound traffic to a ported number will be routed.
1.57 "Routing Point" means a location which a LEC has designated on its
own network as the homing (routing) point for inbound traffic to one or more of
its NPA-NXX codes. The Routing Point is also used to calculate mileage
measurements for the distance-sensitive transport element charges of Switched
Exchange Access Services. Pursuant to Bell Communications Research, Inc.
("Bellcore") Practice BR 795-100-100 (the "Bellcore Practice"), the Routing
Point (referred to as the "Rating Point" in such Bellcore Practice) may be an
End Office Switch location or a "LEC Consortium Point of Interconnection."
Pursuant to such Bellcore Practice, each "LEC Consortium Point of
Interconnection" shall be designated by a common language location identifier
(CLLI) code with (x)KD in positions 9, 10, 11, where (x) may be any alphanumeric
A-Z or 0-9. The Routing Point must be located within the LATA in which the
corresponding NPA-NXX is located. However, Routing Points associated with each
NPA-NXX need not be the same as the corresponding Rate Center, nor must there be
a unique and separate Routing Point corresponding to each unique and separate
Rate Center; provided only that the Routing Point associated with a given
NPA-NXX must be located in the same LATA as the Rate Center associated with the
NPA-NXX.
1.58 "Service Control Point" or "SCP" means a component of the signaling
network that acts as a database to provide information to another component of
the signaling network (i.e., Service Switching Point or another SCP) for
processing or routing certain types of network calls. A query/response mechanism
is typically used in communicating with an SCP.
1.59 "Signaling Transfer Point" or "STP" means a component of the
signaling network that performs message routing functions and provides
information for the routing of messages between signaling network components. An
STP transmits, receives and processes CCIS messages.
1.60 "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 successors or similar Switched Exchange Access
services.
1.61 "Synchronous Optical Network" or "SONET" means an optical interface
standard that allows inter-networking of transmission products from multiple
vendors. The base transmission rate is 51.84 Mbps (OC-1/STS-1) and higher rates
are direct multiples of the base rate.
1.62 "Technically Feasible Point" is As Described in the Act.
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1.63 "Telecommunications" is As Defined in the Act.
1.64 "Telecommunications Act" means the Telecommunications Act of 1996 and
any rules and regulations promulgated thereunder.
1.65 "Telecommunications Carrier" is As Defined in the Act.
1.66 "Telecommunications Service" is As Defined in the Act.
1.67 "Telephone Exchange Service" is As Defined in the Act.
1.68 "Telephone Toll Service" is As Defined in the Act.
1.69 "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
All references to Sections, Exhibits and Schedules shall be deemed to be
references to Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. The headings of the Sections and the terms
defined in Schedule 1.0 are inserted for convenience of reference only and are
not intended to be a part of or to affect the meaning of this Agreement. Unless
the context shall otherwise require, any reference to any agreement, other
instrument (including NYNEX or other third party offerings, guides or
practices), statute, regulation, rule or tariff is to such agreement,
instrument, statute, regulation, rule or tariff as amended and supplemented from
time to time (and, in the case of a statute, regulation, rule or tariff, to any
successor provision).
3.0 SCOPE
This Agreement sets forth the terms and conditions under which NEFC and
NYNEX will interconnect their respective networks to enable NEFC to provide
Telecommunications Services consistent with the rights and obligations set forth
in Section 251 of the Act.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
Subject to the terms and conditions of this Agreement, Interconnection of
the Parties' facilities and equipment pursuant to Section 4.0 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 the State of New Hampshire on
Schedule 4.0. Schedule 4.0 may be revised and supplemented from time to time
upon the mutual agreement of the Parties. Interconnection in the LATA
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shall be accomplished through either (i) a Fiber-Meet as provided in Section
4.2, (ii) Collocation as provided in Section 12.0, (iii) any other
Interconnection method provided by applicable tariff, law, rule or regulation,
or (iv) any other Interconnection method to which the Parties may agree.
4.1 Scope
Section 4.0 describes the physical architecture for Interconnection of the
Parties' facilities and equipment for the transmission and routing of Local
Traffic and IntraLATA toll traffic pursuant to Section 251(c)(2) of the Act.
Sections 5.0 and 6.0 prescribe the specific logical trunk groups (and traffic
routing parameters) which will be configured over the physical connections
described in this Section 4.0 related to the transmission and routing of
Telephone Exchange Service Traffic and Exchange Access traffic, respectively.
Other trunk groups, as described in this Agreement, may be configured using this
architecture.
4.2 Physical Architecture
For LATA 130 identified on Schedule 4.0, NEFC and NYNEX shall jointly
engineer and operate a diverse Synchronous Optical Network ("SONET")
transmission system by which they shall interconnect their networks pursuant to
the joint network reconfiguration and grooming plan ("Joint Grooming Plan")
specified in Section 8.1, and according to the following minimum specifications:
4.2.1 The Parties shall establish physical Interconnection points at
the locations designated in Schedule 4.0. Interconnection points on NEFC's
network shall be designated as NEFC Interconnection Points ("B-IP");
Interconnection points on the NYNEX network shall be designated as NYNEX
Interconnection Points ("N-IP"). The Parties may by mutual agreement establish
additional Interconnection points at any Technically Feasible Point consistent
with Act.
4.2.2 Unless otherwise mutually agreed, the SONET transmission
system in the LATA shall be pursuant to the Joint Grooming Plan. Each Party
shall be responsible for procuring, installing and maintaining the agreed-upon
Optical Line Terminating Multiplexor ("OLTM") equipment, fiber optic facilities
and other equipment as agreed pursuant to the Joint Grooming Plan.
4.2.3 Unless otherwise mutually agreed, the physical interface of
NEFC's and NYNEX's facilities necessary to effect the SONET transmission system
shall be at the optical level via a Fiber-Meet or other comparable means.
4.3 Initial Interim Architecture
4.3.1 The Parties agree to allow interim alternatives to the
architecture described in Section 4.2, utilizing electrical hand-offs, provided
the Parties mutually
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develop and agree on a plan to fully transition to an arrangement reflective of
Section 4.2 in that LATA within one hundred and eighty (180) days following the
Interconnection Activation Date listed for that LATA in Schedule 4.0.
4.4 Technical Specifications
4.4.1 NEFC and NYNEX shall work cooperatively to install and
maintain a reliable network. NEFC and NYNEX 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.
4.4.2 NEFC and NYNEX shall work cooperatively to apply sound network
management principles by invoking network management controls to alleviate or to
prevent congestion.
4.4.3 The publication "Bellcore Technical Publication GR-342-CORE;
High Capacity Digital Special Access Service, Transmission Parameter Limits and
Interface Combinations" describes the practices, procedures, specifications and
interfaces generally utilized by NYNEX and is referenced herein to assist the
Parties in meeting their respective Interconnection responsibilities related to
electrical/optical interfaces.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
Section 5.0 prescribes parameters for trunk groups (the "Traffic Exchange
Trunks") to be effected over the Interconnections specified in Section 4.0 for
the transmission and routing of Local Traffic and IntraLATA Toll Traffic between
the Parties' respective Telephone Exchange Service Customers and where such
traffic is not presubscribed for carriage by a third party carrier nor carried
by a third party carrier as casual dialed (10XXX and 101XXXX) traffic.
5.2 Switching System Hierarchy
5.2.1 For purposes of this Section 5.0, each of the following
Central Office Switches shall be designated as a "Primary Switch":
(a) Each Access Tandem NYNEX operates in the LATA;
(b) The initial switch NEFC employs to provide Telephone Exchange
Service in the LATA;
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(c) Any Access Tandem NEFC may establish for provision of Exchange
Access in the LATA;
(d) Any additional switch NEFC may subsequently employ to provide
Telephone Exchange Service in the LATA which NEFC may at its
sole option designate as a Primary Switch; provided that the
total number of NEFC Primary Switches for a LATA may not
exceed the total number of NYNEX Primary Switches for that
LATA. To the extent NEFC chooses to designate any additional
switch as a Primary Switch, it shall provide notice to NYNEX
of such designation at least ninety (90) days in advance of
the date on which NEFC activates such switch as a Primary
Switch; and
(e) Any additional tandem switch NYNEX may subsequently employ to
provide access and/or sector traffic capacity within a LATA.
Traffic destined to sub-tending Secondary Switches routed via
such a tandem(s) would be determined by network requirements
and notice made available to all LECs at least one
hundred-eighty (180) days prior to service introduction.
5.2.2 Each Central Office Switch operated by the Parties which is
not designated as a Primary Switch pursuant to Section 5.2.1 shall be designated
as a "Secondary Switch".
5.2.3 For purposes of NEFC routing traffic to NYNEX, sub-tending
arrangements between NYNEX Primary Switches and NYNEX Secondary Switches shall
be the same as the Access Tandem/End Office sub-tending arrangements which NYNEX
maintains for those switches. For purposes of NYNEX routing traffic to NEFC,
subtending arrangements between NEFC Primary Switches and NEFC Secondary
Switches shall be the same as the Access Tandem/End Office sub-tending
arrangements which NEFC maintains for those switches.
5.3 Trunk Group Architecture and Traffic Routing
The Parties shall jointly engineer and configure Traffic Exchange Trunks
over the physical Interconnection arrangements for the transport and termination
of Telephone Exchange Service Traffic, as follows:
5.3.1 The Parties shall initially configure a separate two-way trunk
group, and operate as one-way or two-way as mutually agreed to by both Parties,
as a direct transmission path between each NEFC Primary Switch and each NYNEX
Primary Switch.
5.3.2 Notwithstanding anything to the contrary in this Section 5.0,
if the two-way traffic volumes between any two Central Office Switches (whether
Primary-
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Primary, Primary-Secondary or Secondary-Secondary) at any time exceeds the CCS
busy hour equivalent of one DS-1, the Parties shall within sixty (60) days after
such occurrence add trunks or establish new direct trunk groups consistent with
the grades of service and quality parameters set forth in the Joint Grooming
Plan addressed in Section 8.0.
5.3.3 NYNEX and NEFCwill allow each other to route their intrastate
and interstate switched access service traffic over the Traffic Exchange Trunk
Groups, pursuant to the rates, terms and conditions specified in each Party's
effective intrastate and interstate access tariffs or at generally available and
prevailing rates, terms and conditions.
5.4 Signaling
5.4.1 Where available, CCIS signaling shall be used by the Parties
to set up calls between the Parties' Telephone Exchange Service networks. If
CCIS signaling is unavailable, MF (Multi-Frequency) signaling shall be used by
the Parties. In the interim, each Party shall charge the other Party equal and
reciprocal rates for CCIS signaling in accordance with applicable tariffs. In
the event NEFC does not have an effective tariff rate, it shall charge NYNEX at
the tariffed NYNEX rate. During the term of this Agreement neither Party shall
charge the other Party additional usage-sensitive rates for SS7 queries (TCAP
and ISUP) made for Local Traffic interchanged between the Parties.
5.4.2 The publication "Bellcore Special Report SR-TSV-002275, BOC
Notes on the LEC Networks - Signaling" describes the practices, procedures and
specifications generally utilized by NYNEX for signaling purposes and is
referenced herein to assist the Parties in meeting their respective
Interconnection responsibilities related to signaling.
5.4.3 The Parties will cooperate on the exchange of Transactional
Capabilities Application Part ("TCAP") messages to facilitate interoperability
of CCIS-based features between their respective networks, including all CLASS
features and functions, to the extent each Party offers such features and
functions to its Customers. All CCIS signaling parameters will be provided
including, calling party number ("CPN"), originating line information (OLI),
calling party category and charge number.
5.4.4 Upon request, each Party shall provide trunk groups where
available that are configured utilizing the B8ZS ESF protocol for 64 Kbps clear
channel transmission to allow for ISDN interoperability between the Parties'
respective networks.
5.5 Grades of Service
The Parties shall initially engineer and shall jointly monitor and enhance
all trunk groups consistent with the Joint Grooming Plan.
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5.6 Measurement and Billing
5.6.1 For billing purposes, each Party shall pass calling party
number information on each call carried over the Local/IntraLATA Trunks;
provided that so long as the percentage of calls passed with CPN is greater than
ninety percent (90%), all calls exchanged without CPN information shall be
billed as either Local Traffic or IntraLATA Toll Traffic in direct proportion to
the minutes of use of calls exchanged with CPN information.
5.6.2 Measurement of billing minutes (except for originating 800/888
calls) shall be in actual conversation seconds. Measurement of billing minutes
for originating 800/888 calls shall be in accordance with applicable tariffs.
5.6.3 Where CPN is not available in a LATA for greater than ten
percent (10%) of the traffic, the party sending the traffic shall provide
factors to determine the jurisdiction, as well as local vs. toll distinction, of
the traffic. Such factors shall be supported by call record details that will be
made available for review upon request. Where parties are passing CPN but the
receiving party is not properly receiving or recording the information, the
Parties shall cooperatively work to correctly identify the traffic, and
establish a mutually agreeable mechanism that will prevent improperly rated
traffic. Notwithstanding this, if any improperly rated traffic occurs, the
Parties agree to reconcile it.
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5).
5.7.1 Reciprocal Compensation only applies to the transport and
termination of Local Traffic billable by NYNEX or NEFC which a Telephone
Exchange Service Customer originates on NYNEX's or NEFC's network for
termination on the other Party's network except as provided
in Section 5.7.6 below.
5.7.2 The Parties shall compensate each other for transport and
termination of Local Traffic in an equal and symmetrical manner at the rate
provided in the Pricing Schedule. This rate is to be applied at the B-IP for
traffic delivered by NYNEX, and at the N-IP for traffic delivered by NEFC. No
additional charges, including Port or transport charges, shall apply for the
termination of Local Traffic delivered to the B-IP or the N-IP. When Local
Traffic is terminated over the same trunks as IntraLATA or InterLATA toll, any
Port or transport or other applicable access charges related to the toll traffic
shall be prorated to be applied only to the toll traffic.
5.7.3 The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access Service or to any other
IntraLATA calls originated on a third Party carrier's network on a 1+
presubscribed basis or a casual dialed (10XXX or 101XXX) basis. All Switched
Exchange Access Service and all IntraLATA Toll Traffic shall continue to be
governed by the terms and conditions of the applicable federal and state
tariffs.
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5.7.4 Each Party shall charge the other Party its effective
applicable tariffed IntraLATA switched access rates for the transport and
termination of all IntraLATA Toll Traffic.
5.7.5 The Parties agree to interconnect their respective frame relay
networks where facilities are available. Each Party will charge the other the
rates specified in the Pricing Schedule for Network-to-Network Interfaces
("NNI") in those instances where the Parties are interconnecting for the
purposes of terminating Telephone Exchange Service Traffic. NYNEX will charge
NEFC the same rates charged to other similarly situated local exchange carriers
for frame relay-to-frame relay network.
5.7.6 The rates for termination of Local Traffic are set forth in
the Pricing Schedule which is incorporated by reference herein.
5.7.7 Compensation for transport and termination of all traffic
which has been subject to performance of INP by one Party for the other Party
pursuant to Section 13.0 shall be as specified in Section 13.6.
5.7.8 When either Party delivers seven (7) or ten (10) digit
translated IntraLATA 800/888 service to the other Party for termination, the
originating party shall provide the terminating Party with billing records in
industry standard format (EMR) if required by the terminating Party. The
originating Party may bill the terminating Party for the delivery of the traffic
at local Reciprocal Compensation rates. The terminating Party may not bill the
originating Party Reciprocal Compensation under this Agreement. The Party that
is providing the 800/888 service shall pay the database inquiry charge per the
Pricing Schedule to the Party that performed the database inquiry.
5.8 Municipal Calling Service
The Parties shall work cooperatively to facilitate each Party's public
service obligations as required by the PUC to provide its end user customers
with toll free Municipal Calling Service ("MCS"). Such cooperation shall include
the sharing of certain account and toll free municipal ("TFM") codes on a daily
or other mutually agreeable basis and working with other industry participants
to satisfactorily resolve MCS related measurement and billing issues associated
with implementation of IntraLATA presubscription.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO SECTION
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
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for the transmission and routing of Exchange Access traffic between NEFC's
Telephone Exchange Service Customers and Interexchange Carriers ("IXCs").
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 The Parties shall jointly establish Access Toll Connecting
Trunks by which they will jointly provide tandem-transported Switched Exchange
Access Services to Interexchange Carriers to enable such Interexchange Carriers
to originate and terminate traffic from/to
NEFC's Customers.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Exchange Access to allow NEFC's Customers to connect
to or be connected to the interexchange trunks of any Interexchange Carrier
which is connected to an NYNEX Access Tandem.
6.2.3 The Access Toll Connecting Trunks shall be two-way trunks, and
operated as one-way or two-way as mutually agreed to by both Parties, connecting
an End Office Switch NEFC utilizes to provide Telephone Exchange Service and
Switched Exchange Access in a given LATA to an Access Tandem Switch NYNEX
utilizes to provide Exchange Access in such LATA.
6.3 Meet-Point Billing Arrangements
6.3.1 Meet-Point Billing arrangements between the Parties for
jointly-provided Switched Exchange Access Services on Access Toll Connecting
Trunks will be governed by the terms and conditions of a mutually agreeable
arrangement, in accordance with Ordering and Billing Forum Guidelines, which the
Parties will cooperatively work to develop.
6.3.2 Until and unless changed by the FCC on a going forward basis,
NEFC shall retain one hundred percent (100%) of the Residual Interconnection
Charge in instances in which NEFC provides the End Office switching.
6.3.3 For Meet-Point billing, NEFC's End Office switch (i.e.,
Routing Point) shall subtend the NYNEX Access Tandem nearest to such Routing
Point, as measured in airline miles utilizing the V&H coordinate method.
Alternative configurations will be discussed as part of the Joint Grooming Plan
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Services Traffic
7.1.1 If and when Information Services become available in the State
of New Hampshire, the Parties shall work cooperatively with one another to
develop a mutually agreeable compensation arrangement for the provision of such
services.
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7.2 Tandem Transit Service ("Transit Service")
7.2.1 "Transit Service" means the delivery of certain traffic
between NEFC and a LEC by NYNEX over the Local/IntraLATA/InterLATA Trunks. The
following traffic types will be delivered: (i) Local or Intralata Toll Traffic
originated from NEFC to such LEC and (ii) Local Traffic or IntraLATA Toll
Traffic originated from such LEC and terminated to NEFC where NYNEX carries such
traffic.
7.2.2 Subject to Section 7.2.4, the Parties shall compensate each
other for Transit Service as follows:
(a) NEFC shall pay NYNEX for Local Traffic NEFC originated over
the Transit Service at the rate specified in the Pricing
Schedule plus any additional charges or costs such terminating
LEC imposes or levies on NYNEX for the delivery or termination
of such traffic, including any switched access charges;
(b) NYNEX shall pay NEFC for Local, InterLATA, or IntraLATA Toll
Traffic terminated to NEFC from such LEC at the appropriate
Reciprocal Compensation rates described in Section 5.7,
InterLATA access rates, or (where NYNEX delivers such traffic
pursuant to the PUC's primary toll carrier plan or other
similar plan) at NEFC's applicable switched access rates or
local termination rate, whichever is appropriate.
7.2.3 While the Parties agree that it is the responsibility of a LEC
to enter into arrangements to deliver Local Traffic to NEFC, they acknowledge
that such arrangements are not currently in place and an interim arrangement is
necessary to ensure traffic completion. Accordingly, until the earlier of (i)
the date on which either Party has entered into an arrangement with such LEC to
deliver Local Traffic to NEFC or (ii) one-hundred and eighty (180) days after
the Interconnection Activation Date, NYNEX will deliver and NEFC will terminate
Local Traffic originated from such LEC without charge to one another.
7.2.4 NYNEX expects that all networks involved in transit traffic
will deliver each call to each involved network with CCIS and the appropriate
Transactional Capabilities Application Part ("TCAP") message to facilitate full
interoperability of those services supported by NYNEX as noted in Section 1.12
and billing functions. In all cases, NEFC is responsible to follow the Exchange
Message Record ("EMR") standard and exchange records with both NYNEX and the
terminating LEC to facilitate the billing process to the originating network.
7.2.5 NYNEX agrees that it shall make available to NEFC, at NEFC's
sole option, any Tandem Transit arrangement NYNEX offers to another
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Telecommunications Carrier at the same rates, terms, and conditions provided to
such other Telecommunications carrier, at the rates, terms and conditions set
forth in its applicable tariffs, or as provided by law, rule or regulation.
7.3 Dedicated Transit Service
7.3.1 "Dedicated Transit Service" provides for the dedicated
connection between a NEFC Collocation arrangement established pursuant to
applicable tariffs and/or license agreements at a NYNEX premises and a
Collocation arrangement of a third party carrier that maintains a Collocation
arrangement at the same premises. Dedicated Transit Service shall be provided
using a Cross-Connection (dedicated connection) using suitable NYNEX-provided
cable or transmission facilities or any other mutually agreed upon arrangement.
7.3.2 The carrier that requests the Dedicated Transit Service shall
be the customer of record for both ends of the service in terms of ordering,
provisioning, maintenance, and billing. Alternative arrangements may be utilized
if agreed upon by all three Parties.
7.3.3 NYNEX agrees that it shall make available to NEFC, at NEFC's sole
option, any Dedicated Transit arrangement NYNEX offers to another
Telecommunications Carrier at the same rates, terms, and conditions provided to
such other Telecommunications carrier, at the rates, terms and conditions set
forth in its applicable tariffs, or as provided by law, rule or regulation.
7.4 E911 Arrangement
7.4.1 NEFC will interconnect at the meet point designated in
Schedule 4.0 for the provision of E911 services and for access to all
sub-tending Public Safety Answering Points ("PSAPs").
7.4.2 Path and route diverse interconnections for E911 shall be made
at the Concord and Manchester tandems. NEFC shall provision, install and
maintain four trunks from each End Office(s) or Host End Office(s) to the meet
point between NYNEX and NEFC. Two trunks shall be routed to the primary E911
tandem in Concord and two trunks shall be routed to the secondary E911 tandem in
Manchester for a total of four trunks from each End Office or Host End Office.
NEFC agrees to route all 911 calls received by its exchanges to the E911 network
in accordance with the following routing option: first attempt, the primary high
usage trunk group to the Concord E911 tandem; second attempt, the intermediate
high usage trunks to the Manchester E911 tandem; third and final attempt, if
technically feasible, to a predetermined local 7-digit emergency number as
specified by the New Hampshire Bureau of Emergency Communications ("NHBEC").
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7.4.3 NYNEX will provide NEFC with an electronic interface through
which NEFC shall input and provide a daily update of E911 database information
related to appropriate NEFC customers. NYNEX will provide NEFC with the Master
Street Address Guide (MSAG) so that NEFC can ensure the accuracy of the data
transfer. Additionally, NYNEX shall assist NEFC in identifying the appropriate
person in each municipality for the purpose of obtaining the ten-digit
Subscriber number of each PSAP.
7.4.4 NYNEX and NEFC will use their best efforts to facilitate the
prompt, robust, reliable and efficient Interconnection of NEFC's systems to the
911/E911 platforms.
7.4.5 NEFC will compensate NYNEX for connections to its 911/E911
System pursuant to the Pricing Schedule.
7.4.6 Both Parties will comply with all applicable rules and
regulations pertaining to the provision of 911/E911 services in the State of New
Hampshire.
7.4.7 In accordance with New Hampshire RSA 508:12 a, III, NEFC, its
shareholders, officers, and agents, shall not be liable in any suit for civil
damages when NEFC in good faith and without willful or wanton negligence
receives, develops, collects or processes information for the E911 data base,
relays or transfers E911 services or provides emergency telephone communications
for ambulance, police and fire departments.
7.4.8 In accordance with New Hampshire RSA 508:12 a, III, NYNEX, its
shareholders, officers, and agents, shall not be liable in any suit for civil
damages when NYNEX in good faith and without willful or wanton negligence
receives, develops, collects or processes information for the E911 data base,
relays or transfers E911 services or provides emergency telephone communications
for ambulance, police and fire departments.
8.0 JOINT NETWORK CONFIGURATION AND GROOMING PLAN; AND INSTALLATION,
MAINTENANCE, TESTING AND REPAIR.
8.1 Joint Network Configuration and Grooming Plan. Within six (6) months
after the date of the Agreement, or may be mutually agreed to by parties, NEFC
and NYNEX shall jointly develop a grooming plan (the "Joint Grooming Plan")
which shall define and detail, inter alia,
(a) agreement on Physical Architecture consistent with the guidelines
defined in Section 4.0;
(b) standards to ensure that Interconnection trunk groups experience a
grade of service, availability and quality which is comparable to
that achieved on interoffice trunks within NYNEX's network and in
accord with all
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appropriate relevant industry-accepted quality, reliability and
availability standards;
(c) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of the trunk groups,
including but not limited to standards and procedures for
notification and discoveries of trunk disconnects;
(d) disaster recovery provision escalations;
(e) provisions for expediting orders; and
(f) such other matters as the Parties may agree.
The initial mutual interconnection is not dependent upon completion of the
Grooming Plan.
8.2 Installation, Maintenance, Testing and Repair. NYNEX's standard
intervals as set forth in Schedule 8.2 attached will be utilized in connection
with the establishment of all Interconnection trunking arrangements between the
Parties. NEFC 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 NYNEX of its
inability to do so and will negotiate such intervals in good faith.
8.3 Network Reliability Council. The Parties will carefully review the
Network Reliability Council's recommendations and, as part of the Joint Grooming
Plan, implement them where technically and economically feasible.
9.0 UNBUNDLED ACCESS -- SECTION 251(c)(3)
Pursuant to Section 251 (c)(3), NYNEX shall provide nondiscriminatory
access to Network Elements on an Unbundled basis at any technically feasible
point on rates, terms and conditions that are just, reasonable and
nondiscriminatory in accordance with the terms and conditions of this Agreement
and Section 252 of the Act.
9.1 Local Link Transmission Types
Subject to Section 9.5, NYNEX shall allow NEFC to access the following
Link types unbundled from local switching and local transport in accordance with
the terms and conditions set forth in this Section 9.
9.1.1 "2-Wire Switched Analog Voice Grade Links" or "Analog 2W"
("SVGAL") which support analog transmission of 300-3000 Hz, repeat link start,
link reverse battery, or ground start seizure and disconnect in one direction
(toward the End
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Office Switch), and repeat ringing in the other direction (toward the Customer).
Analog 2W include Links sufficient for the provision of PBX trunks, pay
telephone lines and electronic key system lines.
9.1.2 "4-Wire Switched Analog Voice Grade Links" or "Analog 4W"
("SVGALs") which support transmission of voice grade signals using separate
transmit and receive paths and terminate in a 4-wire electrical interface.
9.1.3 "2-Wire ISDN Digital Grade Links" or "BRI ISDN" (Premium Link)
which support digital transmission of two 64 Kbps bearer channels and one 16
Kbps data channel. BRI ISDN is a 2B+D Basic Rate Interface-Integrated Services
Digital Network (BRI-ISDN) Link which will meet national ISDN standards and
conform to ANSI T1.601-1992 & T1E1.4 90-004R3.
9.1.4 DS-1 Digital Grade Link provides a channel which provides
1.544 Mbps digital transmission path between a Customer premises and a NYNEX
central office, and is capable of operating in a full duplex, time division
(digital) multiplexing mode. A DS-1 Digital Grade Link provides transmission
capacity equivalent to 24 voice grade channels with associated signaling,
twenty-four 56 Kbps digital channels when in band signaling is provided or
twenty-four 64 Kbps channels with the selection of the Clear Channel signaling
option.
9.1.5 Extended Link Extended Link service is a channel which enables
NEFC when it is physically collocated in a given NYNEX central office to access
unbundled links served from another NYNEX central office. Extended Link service
is a designed service (similar to special access and private line services)
which requires detailed engineering to assure that the service provided conforms
to specific transmission performance standards unique to the specific service
e.g., voice grade DS0, DS1 and DS3.
9.1.6 Links will be offered on the terms and conditions specified
herein and on such other terms in applicable tariffs that are not inconsistent
with the terms and conditions set forth herein. NYNEX shall make Links available
to NEFC at the rates specified in the Pricing Schedule, as amended from time to
time, subject to the provisions of Section 9.9 or as subsequently determined by
the PUC.
9.2 ADSL AND HDSL
9.2.1 The Parties acknowledge that ADSL is not currently deployed
for use in the NYNEX network. If the issues surrounding deployment of ADSL in
NYNEX's network are satisfactorily resolved and ADSL is deployed, NYNEX shall
allow NEFC access ADSL Links unbundled from local switching and local transport
in accordance with the terms and conditions set forth in this Section 9.0.
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9.2.2 "2-Wire ADSL-Compatible Link" or "ADSL 2W" is a transmission
path that facilitates the transmission of up to a 6 Mbps digital signal
downstream (toward the Customer) and up to a 640 Kbps digital signal upstream
(away from the Customer) while simultaneously carrying an analog voice signal.
An ADSL-2W is provided over a 2-Wire non-loaded twisted copper pair provisioned
using revised resistance design guidelines and meeting ANSI Standard
T1.413-1995-007R2. An ADSL-2W terminates 2-wire electrical interface at the
Customer premises and at the NYNEX Central Office frame. ADSL technology can
only be deployed over Links which extend less than 18 Kft. From NYNEX's Central
Office. ADSL compatible Links will only be made available where existing copper
facilities can meet the ANSI T1.413-1995-007R2 specifications.
9.2.3 "2-Wire HDSL-Compatible Link" or "HDSL 2W" is a transmission
path that facilitates the transmission of a 768 Kbps digital signal over a
2-Wire non-loaded twisted copper pair meeting the specifications in ANSI T1E1
Committee Technical Report Number 28 / T1E1.4/92-002R3. HDSL compatible Links
will only be made available where existing copper facilities can meet the T1E1
Technical Report Number 28 specifications.
9.2.4 "4-Wire HDSL-Compatible Link" or "HDSL 4W" is a transmission
path that facilitates the transmission of a 1.544 Mbps digital signal over two
2-Wire non-loaded twisted copper pairs meeting the specifications in ANSI T1E1
Committee Technical Report Number 28. HDSL compatible Links will only be made
available where existing copper facilities can meet the specifications.
9.2.5 HDSL and ADSL compatible links will be offered on the terms
and conditions specified herein and on such other terms in applicable tariffs
that are not inconsistent with the terms and conditions set forth herein. NYNEX
shall make such links available to NEFC at rates approved by the PUC, as amended
from time to time.
9.3 Local Switching
NEFC may purchase unbundled local switching from NYNEX, in accordance with
the terms and conditions of and at the rates specified in the Pricing Schedule,
or subject to the rates, terms and conditions contained in any applicable NYNEX
tariff or any statement of generally available terms and conditions filed with
the PUC.
9.4 Local Transport
NEFC may purchase unbundled local transport from NYNEX, in accordance with
the terms and conditions of and at the rates specified in the Pricing Schedule,
or subject to the rates, terms and conditions contained in any applicable NYNEX
tariff or any statement of generally available terms and conditions filed with
the PUC.
9.5 Limitations on Unbundled Access
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9.5.1 Unless otherwise allowed by the FCC or PUC, NEFC may not
cross-connect a NYNEX-provided Link to a NYNEX- provided Port but instead shall
purchase a network access line under applicable tariffs.
9.5.2 NYNEX shall only be required to provide Links and Ports where
such Links and Ports are available.
9.5.3 NEFC shall access NYNEX's unbundled Network Elements
specifically identified in this Agreement via Collocation in accordance with
Section 12 at the NYNEX Wire Center where those elements exist and each Link or
Port shall be delivered to NEFC's Collocation node by means of a Cross
Connection which in the case of Links, is included in the rates set forth in the
Pricing Schedule, or via such other alternative Interconnection arrangement(s)
as the Parties may mutually agree, or FCC rules, the Act or PUC rules may
otherwise require.
9.5.4 NYNEX shall provide NEFC access to its unbundled Links at each
of NYNEX's Wire Centers. In addition, if NEFC's requests one or more Links
serviced by Integrated Digital Link Carrier or Remote Switching technology
deployed as a Link concentrator, NYNEX shall, where available, move the
requested Link(s) to a spare, existing physical Link at no charge to NEFC. If,
however, no spare physical Link is available, NYNEX shall within three (3)
business days of NEFC's request notify NEFC of the lack of available facilities.
NEFC may then at its discretion make a Network Element Bona Fide Request to
NYNEX to provide the unbundled Link through the demultiplexing of the integrated
digitized Link(s). NEFC may also make a Network Element Bona Fide Request for
access to unbundled Links at the Link concentration site point. Notwithstanding
anything to the contrary in this Agreement, the provisioning intervals set forth
in Section 9.7 and the Performance Interval Dates and Performance Criteria set
forth in Section 27.0 shall not apply to unbundled Links provided under this
Section 9.5.4.
9.5.5 If NEFC orders a Link type and the distance requested on such
Link exceeds the transmission characteristics as referenced in the corresponding
Technical Reference specified below, distance extensions may be required and
additional rates and charges shall apply as set forth on the Pricing Schedule.
Link Type Technical Reference/Limitation
Electronic Key Line 2.5 miles
ISDN Bellcore TA-NWT-000393
HDSL 2W T1E1 Technical Report Number 28
HDSL 4W T1E1 Technical Report Number 28
ADSL 2W ANSI T1.413-1995 Specification
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9.6 Availability of Other Network Elements on an Unbundled Basis
9.6.1 NYNEX shall, upon request of NEFC, at any Technically Feasible
Point provide to NEFC access to its Network Elements on an unbundled basis for
the provision of NEFC's Telecommunications Service. Any request by NEFC for
access to a NYNEX Network Element that is not already available shall be treated
as a Network Element Bona Fide Request. NEFC shall provide NYNEX access to its
Network Elements as mutually agreed by the Parties or as required by the Act,
PUC or FCC.
9.6.2 NYNEX shall provide Network Elements to NEFC under this
Section 9.6 to permit NEFC to provide Telecommunications Services, subject to
the requirements of Sections 251 (c) (3) and (d) (2) (A) and applicable FCC
and/or PUC rules.
9.7 Provisioning of Unbundled Links
The following coordination procedures shall apply for new unbundled Links
and the conversions of "live" Telephone Exchange Services to unbundled Links
(herein after referred to as "hot cuts"):
9.7.1 NEFC shall request unbundled Links from NYNEX by delivering to
NYNEX a valid electronic transmittal Service Order using the NYNEX electronic
ordering platform (as cooperatively designed and implemented to meet the minimum
requirements for information exchange needed to order and provision services to
certified local exchange carriers and enhanced to support industry standards as
developed for interconnection services) or another mutually agreed upon system.
Within two (2) business days of NYNEX's receipt of a Service Order, NYNEX shall
provide NEFC the firm order commitment ("FOC") date according to the applicable
Performance Standards set forth in Schedule 27.0 by which the Link(s) covered by
such Service Order will be installed.
9.7.2 NYNEX agrees to respond to NEFC's Service Orders on a
non-discriminatory basis consistent with the manner in which it provides service
to its own retail customers or any other Telecommunications Carrier.
9.7.3 NYNEX agrees to accept from NEFC at the time the service
request is submitted for scheduled conversion of hot cut unbundled link orders,
a desired date and time (the "Scheduled Conversion Time") in the "A.M." (12:01
a.m. to 12:00 noon) or "P.M." (12:01 p.m. to 12:00 midnight) (as applicable, the
"Conversion Window") for the hot cut.
9.7.4 NYNEX shall test for NEFC dial tone at the POT bay by testing
through the tie cable provisioned between the NYNEX main distributing frame and
the NEFC expanded interconnection node forty-eight (48) hours prior to the
Scheduled Conversion Time.
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9.7.5 Not less than one hour prior to the Scheduled Conversion Time,
either Party may contact the other Party and unilaterally designate a new
Scheduled Conversion Time (the "New Conversion Time"). If the New Conversion
Time is within the Conversion Window, no charges shall be assessed on or waived
by either Party. If, however, the New Conversion Time is outside of the
Conversion Window, the Party requesting such New Conversion Time shall be
subject to the following:
If NYNEX requests the New Conversion Time, the applicable Service
Order Charge shall be waived; and
If NEFC requests the New Conversion Time, NEFC shall be assessed a
Line Connection Charge in addition to the Service Order Charge that
will be incurred for the New Conversion Time.
9.7.6 Except as otherwise agreed by the Parties for a specific
conversion, such as large cutovers of ten lines or more that have negotiated
intervals, the Parties agree that the time interval expected from disconnection
of NYNEX's "live" Telephone Exchange Service to the connection of an unbundled
Network Element at the NEFC Collocation node's POT Bay will be accomplished
within a window of time as detailed following: Between the effective date of
this Agreement and 9/30/97 ninety (90) minutes; from 10/1/97 through the end of
this agreement sixty (60) minutes or less. If a conversion interval exceeds
sixty (60) minutes and such delay is caused solely by NYNEX (and not by a
contributing Delaying Event (as defined in Section 27.4)), NYNEX shall waive the
applicable Service Order Charge for such element. If NEFC has ordered INP with
the installation of a Link, NYNEX will coordinate the implementation of INP with
the Link conversion during with the above stated intervals at no additional
charge.
9.7.7 If either Party requests or approves the other Party's NYNEX
technician to perform services in excess of or not otherwise contemplated by the
Service Order charge either Party may charge the other Party for any additional
and reasonable labor charges to perform such services.
9.7.8 If as the result of end user actions, (e.g., Customer not
ready ["CNR"]), NYNEX cannot complete requested work activity when a technician
has been dispatched to the site NEFC will be assessed a non-recurring charge
associated with this visit. This charge will be the sum of the Service Order
Charge and Premises Visit Charge as specified in Tariff NHPUC - No. 77.
9.7.9 Until such time as the PUC approves an unbundled network
element non-recurring Service Order Charge, an interim non-recurring service
order charge shall apply on a per order basis. The interim service order rate
shall equal the Service and Equipment Charge to install a business network
access line, as specified in NHPUC - No. 77 Part M Section 1.5.2
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9.8 Maintenance of Unbundled Network Elements
If (i) NEFC reports to NYNEX a Customer trouble, (ii) NEFC requests a
dispatch, (iii) NYNEX dispatches a technician to a central office or to an end
user's premises, and (iv) such trouble was not caused by NYNEX's facilities or
equipment in whole or in part, then NEFC shall pay NYNEX a charge of $60.66, on
an interim basis subject to true-up based on the comparable cost-based charge as
approved by the PUC. In addition this charge also applies when the end user
contact as designated by NEFC is not available at the appointed time. NEFC
accepts responsibility for initial trouble isolation and providing NYNEX with
appropriate dispatch information based on their test results. NYNEX agrees to
respond to NEFC trouble reports on a non-discriminatory basis consistent with
the manner in which it provides service to its own retail customers or any other
Telecommunications Carrier.
9.9 True-Up of Monthly Unbundled Link Charges for New Hampshire
9.9.1 NYNEX and NEFC agree to provide true-ups to one another for
all links purchased in New Hampshire by NEFC through the end of the initial term
of this Agreement up to:
a) the date of the Initial Link Rate Decision, as defined in
Section 9.9.3; and for
b) the date of the Final Link Rate Decision, as defined in
Section 9.9.4.
9.9.2 "Current Monthly Rates" is as set forth in the Pricing
Schedule.
9.9.2.1 Notwithstanding the foregoing paragraph 9.9.2, nothing
in this Agreement shall be construed to imply that NEFC agrees that the rate set
forth in Section 9.9.2 is a reasonable or appropriate charge for unbundled
Links.
9.9.3 "Initial Link Rate Decision" is any decision of the PUC
establishing any interim monthly link rates which is issued subsequent to the
date of the execution of this Agreement and before the expiration of the initial
term of this Agreement.
9.9.4 "Final Link Rate Decision" represents the lower of any of the
following which occur during the initial term of this Agreement:
a) a decision of the PUC establishing permanent monthly
link rates for New Hampshire which is issued subsequent
to either the date of this Agreement or the Initial Link
Rate Decision as modified by any rulings by the FCC or
appeals
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ruled upon in any federal or state court of competent
jurisdiction,
b) any rate established through arbitration between NYNEX
and a third party that is approved by a ruling of the
PUC, the FCC or any federal or state court of competent
jurisdiction.
c) the most favorable negotiated Link rate agreed to by
NYNEX and a third party in New Hampshire.
9.9.5 "Initial Link Months" represents the cumulative sum of total
links in service to NEFC each month for the period beginning on the effective
date of this Agreement and ending at the date of the Initial Link Rate Decision.
For example, if 10 links are in service each month for 5 months, the number of
Link Months would equal 50.
9.9.6 "Final Link Months" represents the cumulative sum of total
links in service to NEFC each month for the period beginning on the effective
date of this Agreement and ending at the date of the Final Link Rate Decision.
9.9.7 "Initial Per-Link True-up" represents the difference between
the Current Monthly Rate and the rate established under the Initial Link Rate
Decision.
9.9.8 "Final Per-Link True-up" represents the difference between the
rate established under any Initial Link Rate Decision and the Final Link Rate
Decision; or the difference between the Current Monthly Rate and the Final Link
Rate Decision absent any Initial Link Rate Decision.
9.9.9 "Initial True-up Amount" is the product amount calculated by
multiplying Initial Link Months by the Initial Per-Link True-up.
9.9.10 "Final True-up Amount" is the product amount calculated by
multiplying Link Months by the Final Per-Link True-up.
9.9.11 NYNEX agrees to pay NEFC and NEFC agrees to pay NYNEX the
Initial True-up Amount as applicable within thirty (30) days of the Initial Link
Rate Decision.
9.9.12 NYNEX agrees to pay NEFC and NEFC agrees to pay NYNEX the
Final True-up Amount as applicable within thirty (30) days of any Final Link
Decision.
9.9.13 NEFC and NYNEX will track the number of Link Months on a
prospective basis up until payment of the Final True-up Amount.
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
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10.1 Availability of Wholesale Rates for Resale
NYNEX shall offer to NEFC for resale at wholesale rates its local exchange
telecommunications services, as described in Section 251(c)(4) of the Act, at
the rates set forth in the Pricing Schedule, pending approval by the PUC of
permanent resale rates. NYNEX shall make such resale arrangements available to
NEFC as soon as it makes such resale service generally available in the State of
New Hampshire.
10.2 Availability of Retail Rates for Resale
Each Party shall make available its Telecommunications Services for resale
at retail rates to the other Party in accordance with Section 251(b)(1) of the
Act in accordance with each Party's applicable approved tariffs.
10.3 Term and Volume Discounts
Upon request, NYNEX agrees to offer term and volume discounts for resold
retail services.
11.0 NOTICE OF CHANGES -- SECTION 251(c)(5)
If a Party makes a change in its network which it believes will materially
affect the inter-operability 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.
12.0 COLLOCATION -- SECTION 251(c)(6)
12.1 Upon request, NYNEX shall provide to NEFC Physical Collocation for
its transport facilities and equipment, pursuant to the terms and conditions of
NYNEX's applicable tariffs on file with the FCC and the PUC as necessary for
Interconnection (pursuant to Section 4.0) or for access to unbundled Network
Elements (pursuant to Section 9.0). NYNEX may provide for Virtual Collocation if
NYNEX demonstrates to the PUC that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. Upon request by NEFC and to the extent technically
feasible and as space permits, NYNEX shall provide Collocation at additional
locations for placement of such equipment and alternative physical Collocation
arrangements. Collocation shall be provided in accordance with the timetable
ordered by the PUC in DE 96-252 for Issue 35(F), or as otherwise mutually agreed
by the parties.
12.2 NEFC agrees to provide to NYNEX upon NYNEX's Network Element Bona
Fide Request, Collocation of equipment for purposes of Interconnection (pursuant
to Section 4.0) on a non-discriminatory basis and at comparable rates, terms and
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conditions as NEFC may provide to other common carriers. NEFC shall provide such
Collocation subject to applicable tariffs or contracts.
12.3 The Collocating Party shall provide its own or third-party leased
transport facilities and terminate those transport facilities in equipment
located in its Physical Collocation space at the Housing Party's premises as
described in applicable tariffs or contracts and purchase Cross Connection to
services or facilities as described in applicable tariffs or contracts.
12.4 NEFC may install any equipment allowed by law, including Remote
Switching Modules ("RSMs"), inside Collocation spaces unless and until the FCC
determines that incumbent LECs need not permit Collocation of such equipment, or
until the New Hampshire arbitration decision on which this clause is based is
reversed or overruled, in which event NYNEX must allow NEFC a reasonable
transition period for removing, replacing or modifying such equipment, or for
otherwise negotiating a mutually satisfactory alternative arrangement with
NYNEX.
12.5 To the extent not specified in this Agreement, the rates, terms and
conditions governing Collocation shall be those contained in applicable NYNEX
tariffs, NYNEX's standard Collocation license agreement, or (at the option of
NEFC) the Collocation portion of an approved New Hampshire Interconnection
agreement between NYNEX and another carrier.
13.0 NUMBER PORTABILITY -- SECTION 251(b)(2)
13.1 Scope
13.1.1 The Parties shall provide Number Portability on a reciprocal
basis to each other to the extent technically feasible, and in accordance with
rules and regulations as from time to time prescribed by the FCC and/or the PUC.
13.1.2 Until Number Portability is implemented by the industry
pursuant to regulations issued by the FCC or the PUC, the Parties agree to
provide Interim Telecommunications Number Portability ("INP") to each other
through remote call forwarding, Route Indexing, and full NXX code migration at
the prices listed in the Pricing
Schedule.
13.1.3 Once Number Portability is implemented pursuant to FCC or PUC
regulation, either Party may withdraw, at any time and at its sole discretion,
its INP offerings, subject to advance notice to the other Party and coordination
to allow the seamless and transparent conversion of INP Customer numbers to
Number Portability. Upon implementation of Number Portability pursuant to FCC
regulation, both Parties agree to conform and provide such Number Portability.
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13.2 Procedures for Providing INP Through Remote Call Forwarding
NEFC and NYNEX will provide INP through Remote Call Forwarding as follows:
13.2.1 A Customer of one Party ("Party A") elects to become a
Customer of the other Party ("Party B"). The Customer elects to utilize the
original telephone number(s) corresponding to the Exchange Service(s) it
previously received from Party A, in conjunction with the Exchange Service(s) it
will now receive from Party B. Upon receipt of a signed letter of agency from
the Customer (and an associated service order) assigning the number to Party B,
Party A will implement an arrangement whereby all calls to the original
telephone number(s) will be forwarded to a new telephone number(s) designated by
Party B. Party A will route the forwarded traffic to Party B over the
appropriate Local/IntraLATA Trunks as if the call had originated on Party A's
network.
13.2.2 Party B will become the customer of record for the original
Party A telephone numbers subject to the INP arrangements. Party A shall use its
reasonable efforts to consolidate into as few billing statements as possible all
collect, calling card, and 3rd-number billed calls associated with those
numbers, with sub-account detail by retained number. At Party B's sole
discretion, such billing statement shall be delivered to Party B in an
agreed-upon format via either electronic file transfer, daily magnetic tape, or
monthly magnetic tape.
13.2.3 Party A will update its Line Information Database ("LIDB")
listings for retained numbers, and restrict or cancel calling cards associated
with those forwarded numbers as directed by Party B.
13.2.4 Within two (2) business days of receiving notification from
the Customer, Party B shall notify Party A of the Customer's termination of
service with Party B, and shall further notify Party A as to that Customer's
instructions regarding its telephone number(s). Party A will reinstate service
to that Customer, cancel the INP arrangements for that Customer's telephone
number(s), or redirect the INP arrangement to another INP-participating-LEC
pursuant to the Customer's instructions at that time.
13.3 Procedures for Providing INP Through Route Indexing
Upon mutual agreement, NYNEX will deploy a Route Index arrangement as
mutually agreed upon, which combines direct trunks, provisioned between NYNEX's
and NEFC's End Offices, with trunk side routing translations and full SS7
functionality. Under this arrangement, inbound calls to a ported number will be
pointed at a route index that sends the call to a dedicated trunk group, built
as a direct final, for the sole purpose of facilitating completion of calls to a
ported number. NYNEX will coordinate with NEFC to provide this solution in a
mutually agreeable and administratively manageable manner (e.g., NXX level) so
as to minimize switch resource utilization for both Parties.
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13.4 Procedures for Providing INP Through Full NXX Code Migration
Where either Party has activated an entire NXX for a single Customer, or
activated a substantial portion of an NXX for a single Customer with the
remaining numbers in that NXX either reserved for future use or otherwise
unused, if such Customer 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 be
accomplished with appropriate coordination between the Parties and subject to
appropriate industry lead-times for movements of NXXs from one switch to
another.
13.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers
The Parties agree that under INP terminating compensation on calls to
INP'ed numbers should be received by each Customer's chosen LEC as if each call
to the Customer had been originally addressed by the caller to a telephone
number bearing an NPA-NXX directly assigned to the Customer's chosen LEC. In
order to accomplish this objective where INP is employed, the Parties shall
utilize the process set forth in this Section 13.5 whereby terminating
compensation on calls subject to INP will be passed from the Party (the
"Performing Party") which performs the INP to the other Party (the "Receiving
Party") for whose Customer the INP is provided.
13.5.1 The Parties shall individually and collectively track and
quantify INP traffic between their networks based on the CPN of each call by
identifying CPNs which are INP'ed numbers. The Receiving Party shall charge the
Performing Party for each minute of INP traffic at the INP Traffic Rate
specified in Section 13.6.3 in lieu of any other compensation charges for
terminating such traffic.
13.5.2 By the Interconnection Activation Date, the Parties shall
jointly estimate for the prospective year, based on historic data of all traffic
in the LATA, the percentages of such traffic that if dialed to telephone numbers
bearing NPA-NXXs directly assigned to a Receiving Party (as opposed to the
INP'ed number) would have been subject to (i) Local Traffic exchanged between
the Parties ("Local Reciprocal Traffic"), (ii) IntraLATA Toll Traffic exchanged
between the Parties ("IntraLATA Toll Reciprocal Traffic", iii) appropriate
Intrastate FGD charges ("Intra Traffic"), (iv) Interstate FGD charges ("Inter
Traffic"), or (v) handling as Local Traffic under transiting arrangements
between the Parties ("Transit Traffic"). On the date which is six (6) months
after the Interconnection Activation Date, and thereafter on each succeeding six
month anniversary of such Interconnection Activation Date, the Parties shall
establish new INP traffic percentages to be applied in the prospective six (6)
month period, based on actual INP traffic percentages from the preceding six (6)
month period.
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13.5.3 The INP Traffic Rate shall be equal to the sum of:
(Local Reciprocal Traffic percentage times the Local Reciprocal
Compensation Rate set forth in the Pricing Schedule) plus (IntraLATA
Toll Reciprocal Traffic percentage times NYNEX's effective
intrastate FGD rates, less rates for tandem switching and transport
functions performed by the Performing Party) plus (Interstate
IntraLATA Traffic percentage times NYNEX's effective interstate FGD
rates, less rates for tandem switching and transport functions
performed by the Performing Party).
A rate of zero shall be applied to the Transit Traffic percentage.
13.6 True-up of Monthly INP Costs
13.6.1 Until such time as a competitively neutral cost recovery
mechanism is implemented pursuant to a PUC or FCC order ("the Interim Recovery
Period"), the Parties shall track and record the cumulative sum of ported
numbers provided via an INP functionality to each other each month for the
purpose of calculating an INP true-up amount that the Party providing an INP
functionality may then be entitled to bill and receive under such PUC or FCC
order. The true-up amount shall equal the sum of the ported number provided to
the Party receiving the INP functionality, multiplied by the number of months
applicable to each ported number during the Interim Recovery Period, multiplied
by the Final INP Rate set by the PUC or FCC.
13.6.2 In the event the PUC or FCC establishes a competitively
neutral cost recovery mechanism which allows recovery of amounts for the
provision of INP functionalities different from those amounts listed for such
functionalities in the Pricing Schedule, the Parties shall adopt such different
amounts in accordance with such competitively neutral cost recovery mechanism.
Should the FCC or PUC adopt a competitively neutral cost recovery mechanism for
INP which differs from that stipulated to by the Parties herein the Parties
shall adopt such a mechanism pursuant to said order in lieu of the payment
arrangements outlined in this Section 13.0.
14.0 NUMBER RESOURCES ASSIGNMENTS
NYNEX shall assign to NEFC NXX codes in accordance with national
guidelines at no charge.
15.0 DIALING PARITY -- SECTION 251(b)(3)
NYNEX shall provide Local Dialing Parity as required under Section
251(b)(3) of the Act in the following manner: Telephone numbers are provided
pursuant to Section 14.0; Directory Assistance is provided pursuant to Section
19.2; Directory Listings are
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provided pursuant to section 19.1; and Operator Services are provided to
Sections 19.2.4 and 19.2.6.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
Each Party shall provide the other Party access to its poles, ducts,
rights-of-way and conduits it owns or controls, to the extent permitted by law
and as required by Section 224 of the Act or PUC Order, on terms, conditions and
prices comparable to those offered to any other entity pursuant to each Party's
applicable tariffs and/or standard agreements with such entities.
17.0 DATABASES AND SIGNALING
NYNEX shall provide NEFC with interfaces to access NYNEX's databases,
including LIDB and 800/888, as well as DCAS for ordering and provisioning
purposes, and associated signaling necessary for the routing and completion of
NEFC's traffic through the provision of SS7 under its applicable tariffs.
18.0 REFERRAL ANNOUNCEMENT
When a Customer changes its service provider from NYNEX to NEFC, or from
NEFC to NYNEX, and does not retain its original telephone number, the Party
formerly providing service to such Customer shall provide a referral
announcement ("Referral Announcement") on the abandoned telephone number which
provides details on the Customer's new number. Referral Announcements shall be
provided reciprocally, free of charge to either the other Party or the Customer,
for a period of not less than four (4) months after the date the Customer
changes its telephone number in the case of business Customers and not less than
sixty (60) days after the date the Customer changes its telephone number in the
case of residential Customers. However, if either Party provides Referral
Announcements for a period different than the above respective periods when its
Customers change their telephone numbers, such Party shall provide the same
level of service to Customers of the other Party.
19.0 DIRECTORY SERVICES ARRANGEMENTS
NYNEX will provide certain directory services to NEFC as defined herein.
In this Section 19 of this Agreement, references to NEFC Customer telephone
numbers means telephone numbers falling within NXX codes directly assigned to
NEFC and to numbers which are retained by NEFC on the Customer's behalf pursuant
to Interim Telecommunications Number Portability arrangements described in
Section 13 of this Agreement.
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19.1 Directory Listings and Directory Distributions
19.1.1 NYNEX will include NEFC Customers telephone numbers in all of
its "White Pages" and "Yellow Pages" directory listings (including electronic
directories) and directory assistance databases associated with the areas in
which NEFC provides services to such Customers, and will distribute such
directories to such Customers, in an identical and transparent manner in which
it provides those functions for its own Customers' telephone numbers.
19.1.2 NYNEX will include all NEFC NXX codes on appropriate existing
calling charts in the NYNEX Customer Guide section of the directory in the same
manner as it provides this information for its own NXX codes.
19.1.3 NEFC will provide NYNEX with its directory listings and daily
updates to those listings (including new, changed, and deleted listings) in a
mutually agreed upon format at no charge.
19.1.4 NYNEX will accord NEFC directory listing information the same
level of confidentiality which NYNEX accords its own directory listing
information.
19.1.5 NYNEX shall provide NEFC at no charge with (i) one basic
single line white and yellow page directory listing per business Customer
number, or one basic single line white page directory listing per residence
Customer number, (ii) directory distribution for NEFC Customers, and (iii)
listings of NEFC Customers in the directory assistance database.
19.1.6 NYNEX will provide NEFC with a report of all NEFC customer
listings ninety (90) days prior to directory publication in such form and format
as may be mutually agreed to by both Parties. Both Parties shall use their best
efforts to ensure the accurate listing of such information.
19.1.7 Yellow Page Maintenance
NYNEX will work cooperatively with NEFC so that Yellow Page
advertisements purchased by Customers who switch their service to NEFC
(including customers utilizing Interim Telecommunications Number Portability)
are maintained without interruption. NYNEX will allow NEFC customers to purchase
new yellow pages advertisements without discrimination, under the identical
rates, terms and conditions that apply to NYNEX's Customers.
19.1.8 Information Pages
NYNEX will include in the "Information Pages" or comparable section
of its White Pages Directories for areas served by NEFC, listings provided by
NEFC for NEFC's installation, repair and Customer service, information,
including appropriate
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identifying logo. Such listings shall appear in the manner that such information
appears for subscribers of NYNEX and other LECs. NYNEX shall not charge NEFC for
inclusion of this information.
19.2 Directory Assistance And Operator Services
Under this option, NYNEX will provide Directory Assistance to NEFC end
users on behalf of NEFC.
NYNEX will offer Directory Assistance ("DA") service to NEFC's customers
served by NEFC's own switch over separate trunk groups ordered by NEFC to the
NYNEX TOPS switch(es) as specified by NYNEX. Access to the NYNEX DA platform
from NEFC's local switch requires that NEFC utilize Feature Group C ("FG-C")
Modified Operator Services Signaling. The Interoffice Transmission Facility
("IOF") mileage rate for the facility will be based on airline mileage using V&H
coordinate methods from the NEFC location to the nearest NYNEX TOPS. Trunk
terminations at the TOPS switch(es) require NEFC to purchase trunk ports at
rates specified in the Pricing Schedule. For each trunk group NEFC must indicate
the DA option selected as set forth in 19.2.2 (a)*, (b)* and (c)* immediately
following. NYNEX also provides NEFC, using the unbundled local switching
element, access to this optional service either through dedicated IOF and trunk
ports or on shared operator service trunks between the end office in which they
have unbundled local switching ports and the TOPS switches. Additional per
minute of use ("MOU") local switching charges will apply for all calls which
interconnect from the unbundled local switching ports to the NYNEX TOPS as
described in the Pricing Schedule.
19.2.1 Directory Assistance
This option provides NEFC end users access to Telephone Directory
Assistance operators via 411, 555-1212, or 1+ (NPA) 555-1212 dialing.
Rates for requests for Directory Assistance will be billed to NEFC and are
set forth in the Pricing Schedule.
There are no Directory Assistance call allowances provided to NEFC or
their end users.
19.2.2 Directory Assistance with Branding
This service allows NEFC to select only one of the three options as
follows:
*(a) NEFC may provide NYNEX with a NEFC branded, introductory
Directory Assistance and Operator Services announcement which will be played for
all NEFC end users completing DA or Operator Services calls over the trunk group
to the NYNEX TOPS.
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*(b) NEFC may request NYNEX branded announcement.
*(c) NEFC may request an unbranded, generic announcement.
This message may be a maximum of eighteen (18) seconds and may be recorded
by NEFC or, at NEFC's request, by NYNEX. A minimum of two (2) audio cassette
recordings of the NEFC branding announcement must be forwarded to NYNEX.
Rates for requests for Directory Assistance with branding will be billed
to NEFC and are set forth in the Pricing Schedule.
19.3 Directory Assistance Call Completion ("DACC")
This option provides for automatic connection of a NEFC end user calling
NYNEX DA to the published telephone number requested.
After the NYNEX DA operator provides the requested number, a recorded
service message will offer to connect the caller to that number for a specified
additional charge.
The caller can accept the offer for DACC by depressing a button (touch
tone) or responding by voice (dial), as instructed by the voice message.
The DACC charge will apply as set forth in the Pricing Schedule. In
addition, for calls originating from a facilities-based NEFC switch or for calls
from NEFC unbundled local switching line ports, there will be charges to
terminate the call from the TOPS tandem to the called party. These include the
per minute of use Unbundled Tandem Transport Charges ("UTTC") assessed for each
call transported between the TOPS tandem and the end office, the per minute of
use Tandem Transit Switching Charge ("TTSC") assessed for each call that
traverses a NYNEX tandem switch, and the appropriate per minute of use charges
for reciprocal compensation ("UNRCC or UCRCC") depending on the terminating end
office switch, as set forth in the Pricing Schedule.
DACC is available to NEFC residence and business customers and from
public telephones on a collect, bill to third number or calling card basis. The
charge appropriate to the billing option used will apply in addition to the DACC
charge.
DACC is available with all telephone numbers in the NYNEX DA
database except:
- non-published telephone numbers
- interLATA numbers
- 700, 800 and 900 numbers
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When a caller requests more than one number for Directory
Assistance, DACC is offered only for the first eligible listing that was
selected by the operator.
The DACC charge applies only to calls actually completed.
The DACC charge will be credited for completion of calls to the
wrong number, incomplete connections or calls with unsatisfactory transmission
as set forth in Section 19.4 following.
Rates for requests for DACC will be billed to NEFC as set forth in the
Pricing Schedule.
19.4 Directory Assistance Credits
A credit allowance will apply to NEFC for directory inaccessibility, wrong
numbers, cut-offs or poor transmission. When the NEFC end user reports to the
NYNEX directory assistance operator such a call and the number requested, the
number provided and the reason the number provided is incorrect, the number of
calls for which a credit will apply will be developed by the NYNEX DA operator
and credited to NEFC identifying the specific NEFC end user to whom the credit
applies.
19.5 Direct Access to Directory Assistance ("DADA")
Direct Access to Directory Assistance is a database service that provides
for access to NYNEX listings by a NEFC operator. The DADA database is a
physically distinct entity from the NYNEX DA database, populated with identical
listing data, and updated from the same source on a daily basis.
NEFC is required to arrange for interconnection to the database.
NYNEX will interconnect at any technically feasible point designated by NEFC.
NYNEX will provide NEFC with a User Guide for training its agents.
Rates and Charges for DADA are set forth in the Pricing Schedule.
19.6 Inward Operator Services
Inward Operator Services enables the NEFC end user or its operator service
provider to be connected to the NYNEX Traffic Operation Position Systems
("TOPS") office(s) for the purpose of providing operator services to their end
users. There are two types of Inward Operator Services:
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(i) Busy Line Verification ("BLV"):
BLV is an option where, at the request of NEFC's end user or its operator
service provider, a NYNEX operator will attempt to determine the status of an
exchange service line (e.g., conversation in progress, available to receive a
call or out of service) and report to NEFC's end user or its operator service
provider.
(ii) Busy Line Verification/Interrupt ("BLV/I")
BLV/I is an option where, at the request of NEFC's end user or its
operator service provider, a NYNEX operator determines and reports that a
conversation is in progress on an exchange service line and subsequently
interrupts such conversation to request that the conversation be terminated so
that NEFC's end user can attempt to complete a call to the line.
Inward Operator Services are provided over trunk groups ordered by
NEFC or its alternate operator service provider to the NYNEX TOPS switch(es) as
specified by NYNEX.
Inward Operator Services cannot be provided on ported telephone
numbers, telephone number which forward calls using Call Forwarding Variable
service features.
- NYNEX will provide BLV and BLV/I for telephone numbers provided in
its operating territory.
- The NYNEX operator will respond to one telephone number per call
on requests for BLV or BLV/I.
- NYNEX will designate which TOPS switch(es) services which NXXs and
make such information available to NEFC.
- NEFC shall order Inward Operator Services as set forth in this
Section.
- NEFC and its customer shall indemnify and save NYNEX harmless
against all claims that may arise from either party to the interrupted call or
any other person.
Rates and Charges for Inward Operator Services are set forth in the
Pricing Schedule.
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19.7 Operator Service ("OS")
Under this option, NYNEX shall provide for the routing of Operator
Services ("OS") calls dialed by NEFC subscribers directly to either the NEFC
Operator Services platform or to the NYNEX Operator Services platform as
specified by NEFC.
NYNEX will offer OS to NEFC customers served by NEFC switches over
separate trunk groups ordered by NEFC to the NYNEX TOPS switch(es) as specified
by NYNEX. Access to the NYNEX OS platform from NEFC's local switch requires that
NEFC utilize Feature Group C Modified Operator Services Signaling. The
Interoffice Transmission Facility mileage rate for the facility will be based on
airline mileage using V&H coordinate methods from the NEFC location to the
nearest NYNEX TOPS. Trunk terminations at the TOPS switch(es) require NEFC to
purchase trunk ports at rates specified in the Pricing Schedule. For each trunk
group, NEFC must indicate the branding option selected as set forth in Sectons
19.2.2 (a)*, (b)*, and*(c) preceding. NYNEX also provides NEFC, using the
unbundled local switching element, access to this optional service either
through dedicated IOF and trunk ports or on shared operator service trunks
between the end office in which they have unbundled local switching ports and
the TOPS switches. Additional per minute of use ("MOU") local switching charges
will apply for all calls which interconnect from the unbundled local switching
ports to the NYNEX TOPS at rates set forth in the Pricing Schedule.
19.8 0+ Mechanized Operator Calls (Calling Card, Collect, Bill to Third
Number):
This option is available for NEFC to provide their end user the ability,
through the mechanized NYNEX operator interface, to complete calls via 0+
dialing with alternate billing capabilities without live operator assistance.
Alternate billing call completions can be Calling Card, Collect or Bill to Third
Number.
0+ Mechanized calls may be provided over the same DA trunk groups which
establish interconnection from the NEFC switch or the trunk groups which provide
interconnection from the NEFC unbundled local switching line ports to the NYNEX
TOPS.
Rates for requests for 0+ Mechanized Calls will be billed to NEFC and are
set forth in the Pricing Schedule. In addition, for calls originating from a
facilities-based NEFC switch or for calls from NEFC unbundled local switching
line ports, there will be charges to terminate the call from the TOPS tandem to
the called party. These include the per minute of use Unbundled Tandem Transport
Charges ("UTTC") assessed for each call transported between the TOPS tandem and
the end office, the per minute of use Tandem Transit Switching Charge ("TTSC")
assessed for each call that traverses a NYNEX tandem switch, and the appropriate
per minute of use charges for reciprocal compensation ("UNRCC" or "UCRCC")
depending on the terminating end office switch, as set forth in the Pricing
Schedule.
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19.9 0- Operator Handled Calls (Calling Card, Collect, Bill to Third
Number)
This option is available for NEFC to provide their end user, through the
NYNEX operator, the ability to complete intraLATA calls via 0- dialing with
alternate billing capabilities and live operator assistance. Alternate billing
call completions can be Calling Card, Collect or Bill to Third Number, Station
to Station and Person to Person.
0- Operator Handled Calls may be provided over the same DA trunk groups
which establish interconnection from the NEFC switch or the trunk groups which
provide interconnection from the NEFC unbundled local switching line ports to
the NYNEX TOPS.
Rates for requests for 0- Operator Handled Calls will be billed to NEFC
and are set forth in the Pricing Schedule. In addition, for calls originating
from a facilities-based NEFC switch or for calls from NEFC unbundled local
switching line ports, there will be charges to terminate the call from the TOPS
tandem to the called party. These include the per minute of use Unbundled Tandem
Transport Charges ("UTTC") assessed for each call transported between the TOPS
tandem and the end office, the per minute of use Tandem Transit Switching Charge
("TTSC") assessed for each call that traverses a NYNEX tandem switch, and the
appropriate per minute of use charges for reciprocal compensation ("UNRCC" or
"UCRCC") depending on the terminating end office switch, as set forth in the
Pricing Schedule.
19.10 Operator Emergency Bulletin Service
This option provides NEFC with emergency numbers of police, fire,
ambulance and Public Safety Answering Points ("PSAP") in the NYNEX serving area
so that NEFC operators can connect callers directly to the proper emergency
bureaus.
The NYNEX Operator Emergency Bulletin Service lists the emergency,
police, fire, ambulance and PSAP telephone numbers by municipality and in
alphabetical order for each of the areas served by NYNEX.
Operator Emergency Bulletin Service is available for use by NEFC
operators for the sole purpose of assisting callers in reaching an emergency
bureau.
Operator Emergency Bulletin Service is a copy of NYNEX's own
emergency bulletin. This agreement includes one annual copy of the bulletin plus
periodic updates during the year. Independent telephone companies emergency
numbers are not included.
Rates and charges for Operator Emergency Bulletin service are set
forth in the Pricing Schedule.
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19.11 Operator Passthrough Service
This option provides NEFC's end users with access to operators of their
Presubscribed Interexchange Carriers ("IC") for operator assisted call
completion. This option applies only when the Presubscribed IC provides Operator
Services for NEFC's end users for calls originating from a particular LATA and
is capable of receiving calls passed through it by NYNEX in that LATA.
NYNEX will, when requested by NEFC's end user, connect that end user to a
specified IC for operator call completion provided that IC offers operator
services in that end user's originating LATA and is capable of receiving calls
passed through to it by NYNEX in that LATA.
If the IC does not provide Operator Services for NEFC's end user, at the
option of the IC, NYNEX will provide NEFC's end user with access to an IC
designated Operator Services Provider or to a NYNEX provided announcement which
will direct NEFC's end user to contact their Presubscribed IC for dialing
instructions.
The Operator Passthrough charge is applied on an operator work
second basis, and rated using the 0-Operator Handled calls in the Pricing
Schedule.
NEFC will be assessed this charge on calls that are passed through
to either the Presubscribed IC's operator, or a NYNEX provided recording
indicating that the IC does not provide service in that area.
Rates and charges applied to Operator Passthrough Service are set forth
in the Pricing Schedule.
20.0 GENERAL RESPONSIBILITIES OF THE PARTIES
20.1 Both NYNEX and NEFC shall use their best efforts to comply with the
Implementation Schedule.
20.2 The Parties shall exchange technical descriptions and forecasts of
their Interconnection and traffic requirements in sufficient detail necessary to
establish the Interconnections required to assure traffic completion to and from
all Customers in their respective designated service areas. NEFC, for the
purpose of ubiquitous connectivity, network diversity and alternate routing,
shall connect to at least one Tandem Office Switch for the receipt/completion of
traffic to any NYNEX End Office Switches.
20.3 Thirty (30) days after the Effective Date and each quarter during the
term of this Agreement, each Party shall provide the other Party with a rolling,
six (6) calendar month, non-binding forecast of its traffic and volume
requirements for the services and Network Elements provided under this Agreement
in the form and in such detail as agreed by the Parties. Notwithstanding Section
29.6.1, the Parties agree that each
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forecast provided under this Section 20.3 shall be deemed "Proprietary
Information" under Section 29.6.
20.4 Any Party that is required pursuant to this Agreement to provide a
forecast (the "Forecast Provider") or the Party that is entitled pursuant to
this Agreement to receive a forecast (the "Forecast Recipient") with respect to
traffic and volume requirements for the services and Network Elements provided
under this Agreement may request in addition to non-binding forecasts required
by Section 20.3 that the other Party enter into negotiations to establish a
forecast (a "Binding Forecast") that commits such Forecast Provider to purchase,
and such Forecast Recipient to provide, a specified volume to be utilized as set
forth in such Binding Forecast. The Forecast Provider and Forecast Recipient
shall negotiate the terms of such Binding Forecast in good faith and shall
include in such Binding Forecast provisions regarding price, quantity, liability
for failure to perform under a Binding Forecast and any other terms desired by
such Forecast Provider and Forecast Recipient. Notwithstanding Section 29.6.1,
the Parties agree that each forecast provided under this Section 20.4 shall be
deemed "Proprietary Information" under Section 29.6.
20.5 Each Party is individually responsible to provide facilities within
its network which 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 NYNEX's
network and to terminate the traffic it receives in that standard format to the
proper address on its network. Such facility shall be designed based upon the
description and forecasts provided under Sections 20.2 and 20.3 above. 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.
20.6 Neither Party shall use any service related to or any of the Services
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
Customers, and either Party may discontinue or refuse service if the other Party
violates this provision. Upon such violation, either Party shall provide the
other Party notice, if practicable, at the earliest practicable time.
20.7 Each Party is solely responsible for the services it provides to its
Customers and to other Telecommunications Carriers.
20.8 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.
20.9 Each Party is responsible for administering NXX codes assigned to it.
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20.10 Each Party is responsible for obtaining Local Exchange Routing Guide
("LERG") listings of CLLI codes assigned to its switches.
20.11 Each Party shall use the LERG published by Bellcore or its successor
for obtaining routing information and shall provide all required information to
Bellcore for maintaining the LERG in a timely manner.
20.12 Each Party shall program and update its own Central Office Switches
and End Office Switches and network systems to recognize and route traffic to
and from the other Party's assigned NXX codes. Except as mutually agreed or as
otherwise expressly defined in this Agreement, neither Party shall impose any
fees or charges on the other Party for such activities.
20.13 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).
20.14 End User Repair Calls. The Parties will employ the following
procedures for handling misdirected repair calls:
20.14.1 In answering 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 to market services.
Either Party will respond with factual information in answering customer
questions.
20.14.2 Each Party will notify its customers as to the correct
telephone numbers to call in order to access its repair bureaus.
20.14.3 To the extent possible, where the correct local exchange
carrier can be determined, misdirected repair calls to one Party will be
immediately referred to the other Party, as appropriate in a courteous manner,
at no charge.
20.14.4 The Parties will provide their respective repair contact
numbers to one another on a reciprocal basis.
21.0 TERM AND TERMINATION
21.1 The initial term of this Agreement shall be three (3) years (the
"Term") which shall commence on the Effective Date. 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 intends to
extend the Term of this Agreement, this
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Agreement shall automatically renew and remain in full force and effect on and
after the expiration of the Term until terminated by either Party as set forth
before.
21.1.1 If pursuant to Section 21.1 the Agreement continues in full force
and effect after the expiration of the Term, either Party may terminate the
Agreement ninety (90) days after delivering written notice to the other Party of
the intention to terminate this Agreement. Neither Party shall have any
liability to the other Party for termination of this Agreement pursuant to this
Section 21.1 other than to pay to the other Party any amounts owed under this
Agreement.
21.2 Upon termination or expiration of this Agreement in accordance with
this Section 21.0:
(a) each Party shall comply immediately with its obligations set
forth in Section 29.6.3;
(b) each Party shall promptly pay all amounts (including any late
payment charges) owed under this Agreement;
(c) each Party's indemnification obligations shall survive
termination or expiration of this Agreement; and
(d) each Party shall continue to perform its obligations and provide
its services described herein until such time as a survivor Agreement between
the Parties is entered into; provided, however, that the Parties may mutually
agree to renegotiate the rates, fees and charges herein to reflect any costs or
expenses associated with the transfer, renewal or termination of this Agreement.
22.0 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.
23.0 CANCELLATION CHARGES
Except as provided in Sections 9.6. and 20.4 and pursuant to a Network
Element Bona Fide Request, or as otherwise provided in any applicable tariff or
contract referenced herein, no cancellation charges shall apply.
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24.0 NON-SEVERABILITY
24.1 The services, arrangements, Interconnection, Network Elements, terms
and conditions of this Agreement were mutually negotiated by the Parties as a
total arrangement and are intended to be non-severable, subject only to Section
29.14 of this Agreement.
24.2 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.
25.0 INDEMNIFICATION
25.1 Each party (the "Indemnifying Party") shall indemnify and hold
harmless the other party ("Indemnified Party") from and against loss, cost,
claim liability, damage, and expense (including reasonable attorney's fees) to
third parties for:
(1) damage to tangible personal property or for personal injury
proximately caused by the negligence or willful misconduct of the
Indemnifying Party, its employees, agents or contractors; and
(2) claims for libel, slander, infringement of copyright arising
from the Indemnifying Party's own communications or the communications of
such Indemnifying Party's Customers transmitted over the Indemnified
Party's facilities; and
(3) claims for infringement of patents arising from combining the
Indemnified Party's facilities or services with, or the using of the
Indemnified Party's services or facilities in connection with, facilities
of the Indemnifying Party.
Notwithstanding this indemnification provision or any other provision in
the Agreement, neither Party, nor its parent, subsidiaries, affiliates, agents,
servants, or employees shall be liable to the other for "Consequential Damages"
as that term is described in Section 26.3 below.
25.2 The Indemnified Party will notify the Indemnifying Party promptly in
writing of any claims, lawsuits, or demands by third parties for which the
Indemnified Party alleges that the Indemnifying Party is responsible under this
Section, and, if requested by the Indemnifying Party, will tender the defense of
such claim, lawsuit or demand.
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(1) In the event the Indemnifying Party does not promptly assume or
diligently pursue the defense of the tendered action, then the Indemnified
Party may proceed to defend or settle said action and the Indemnifying
Party shall hold harmless the Indemnified Party from any loss, cost
liability, damage and expense.
(2) In the event the Party otherwise entitled to indemnification
from the other elects to decline such indemnification, then the Party
making such an election may, at its own expense, assume defense and
settlement of the claim, lawsuit or demand.
(3) The parties will cooperate in every reasonable manner with the
defense or settlement of any claim, demand, or lawsuit.
26.0 LIMITATION OF LIABILITY
26.1 Except for the indemnity obligations under Section 25.0, each Party's
liability to the other Party for any Loss relating to or arising out of any
negligent act or omission in its performance of this Agreement, whether in
contract or tort, shall be limited to the total amount that is or would have
been charged to the other Party by such negligent or breaching Party for the
services or functions not performed or improperly performed.
26.2 Except as otherwise provided in Section 25.0, no Party shall be
liable to the other Party for any Loss, defect or equipment failure caused by
the conduct of the other Party, the other Party's agents, servants, contractors
or others acting in aid or concert with the other Party, except for gross
negligence or willful misconduct.
26.3 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.
27.0 PERFORMANCE STANDARDS AND REPORTING REQUIREMENTS
27.1 Performance Standards
NYNEX shall provision, install, maintain, repair and monitor all services,
Interconnection facilities, unbundled elements, Collocation elements, and all
other Interconnection arrangements, facilities and services ordered by NEFC, at
the same level of quality which NYNEX provides to itself or any other party.
NYNEX shall provide to NEFC the same level of transmission quality, reliability,
maintenance, repair, installation, and other service characteristics, including
reporting of results, that it provides to any other party, whether pursuant to
written agreement or informal or formal practice.
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NYNEX shall upon request provide NEFC with complete information about all such
performance arrangements and understandings. Such information may be provided
pursuant to mutually acceptable confidentiality agreements where the underlying
information is treated as confidential by the NYNEX customer/user, provided that
such confidentiality claims are not applied in such a way as to deny NEFC
essential information concerning the performance standards agreed upon by NYNEX
and the customer/user.
Schedule 27.1 sets forth NYNEX's minimum performance standards for
unbundled link and interim number portability installation and unbundled link
out-of-service repairs. Schedule 27.1 (A) sets forth the service quality
standards that NEFC will meet.
27.2 Reporting Requirements
NYNEX shall provide NEFC, on a quarterly basis, the information listed in
Schedule 27.2. Such information shall be provided not more than thirty (30) days
after the close of a calendar month. NYNEX shall also report its performance
level as stated on Schedule 27.2 that is provided to (1) NEFC; (2) all
Telecommunication Carriers and (3) any NYNEX owned affiliates. NYNEX shall
explain any deviation between the performance provided to NEFC and that provided
to any of these three categories of customers/users, and indicate what steps
shall be taken to eliminate any deficiencies between the service provided to
NEFC and that provided to one or more of these other customers/users. NYNEX
shall also offer to provide to NEFC comparable quality and performance reports
and measurements to those that it provides to any other customers, specifying as
to NEFC's services the same types of information, and at the same intervals,
that it provides to these other customers.
28.0 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be filed with
the Commission and may thereafter be filed with the FCC. Each Party covenants
and agrees to fully support approval of this Agreement by the Commission or the
FCC under Section 252 of the Act subject to: (1) either Party's rights under
Section 29.14 of this Agreement; (2) at the option of either Party, to avail
itself of any rules or requirements adopted by the PUC or the FCC in
implementing the Telecommunications Act of 1996, including but not limited to
the FCC's rulemaking in the Matter of Implementation of the Local Competition
Provisions in the Telecommunications Act of 1996, FCC Docket No. 96-98, which
materially affect the matters covered by this Agreement; and (3) either Party's
right to bring an action in Federal district court pursuant to Section 252(e)(6)
of the Act. In the event either Party elects to avail itself of any such rules
or requirements, the Parties agree to meet and negotiate in good faith to arrive
at mutually acceptable modifications of this Agreement. The Parties, however,
reserve the right to seek regulatory relief and otherwise seek redress from each
other regarding performance and implementation of this Agreement. In the event
the PUC or FCC rejects this Agreement in whole or in part, the
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Parties agree to meet and negotiate in good faith to arrive at a mutually
acceptable modification of the rejected portion(s) provided that such rejected
portion(s) shall not affect the validity of the remainder of this Agreement.
This agreement is subject to change, modification, or cancellation as may
be required by a regulatory authority or court in the exercise of its lawful
jurisdiction. In the event such a modification or cancellation is required, the
parties agree to arrive at mutually acceptable modifications or cancellations.
29.0 MISCELLANEOUS
29.1 Authorization.
29.1.1 New England Telephone and Telegraph Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder, subject to necessary
regulatory approval.
29.1.2 NEFC is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder, subject to necessary regulatory approval.
29.2 Compliance. Each Party shall comply with all applicable federal,
state, and local laws, rules, and regulations applicable to its performance
under this Agreement.
29.3 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA"). Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with 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.
29.4 Independent Contractor. Neither this Agreement, nor any actions taken
by NYNEX or NEFC in compliance with this Agreement, shall be deemed to create an
agency or joint venture relationship between NEFC and NYNEX, or any relationship
other than that of purchaser and seller of services.
Neither this Agreement, nor any actions taken by NYNEX or NEFC in
compliance with this Agreement, shall create a contractual, agency, or any other
type of relationship or third party liability between NYNEX and NEFC's end
users.
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29.5 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, 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
(collectively, a "Force Majeure Event").
If any force majeure condition occurs, the Party delayed or unable
to perform shall give immediate notice to the other Party and shall take all
reasonable steps to correct the force majeure condition. During the pendency of
the force majeure, the duties of the Parties under this Agreement affected by
the force majeure condition shall be abated and shall resume without liability
thereafter.
29.6 Confidentiality.
29.6.1 Any information such as specifications, drawings, sketches,
business information, forecasts, models, samples, data, computer programs and
other software and documentation of one Party (a "Disclosing Party") that is
furnished or made available or otherwise disclosed to the other Party or any of
its employees, contractors, agents or Affiliates (its "Representatives" and with
a Party, a "Receiving Party") pursuant to this Agreement ("Proprietary
Information") shall be deemed the property of the Disclosing Party. Proprietary
Information, if written, shall be marked "Confidential" or "Proprietary" or by
other similar notice, and, if oral or visual, shall be confirmed in writing as
confidential by the Disclosing Party to the Receiving Party within ten (10) days
after disclosure. Unless Proprietary Information was previously known by the
Receiving Party free of any obligation to keep it confidential, or has been or
is subsequently made public by an act not attributable to the Receiving Party,
or is explicitly agreed in writing not to be regarded as confidential, it (a)
shall be held in confidence by each Receiving Party; (b) shall be disclosed to
only those persons who have a need for it in connection with the provision of
services required to fulfill this Agreement and shall be used only for such
purposes; and (c) may be used for other purposes only upon such terms and
conditions as may be mutually agreed to in advance of use in writing by the
Parties. Notwithstanding the foregoing sentence, a Receiving Party shall be
entitled to disclose or provide Proprietary Information as required by any
governmental authority or applicable law only in accordance with Section 29.6.2.
29.6.2 If any Receiving Party is required by any governmental
authority or by applicable law to disclose any Proprietary Information, then
such 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 29.6 with
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<PAGE>
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.
29.6.3 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 and shall use all reasonable efforts, including
instructing its employees and others who have had access to such information, to
keep confidential and not to use any such information, unless such information
is now, or is hereafter disclosed, through no act, omission or fault of such
Party, in any manner making it available to the general public.
29.7 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 PUC, the exclusive
jurisdiction for all such claims shall be with the PUC, and the exclusive remedy
for such claims shall be as provided for by such PUC. In all other respects,
this Agreement shall be governed by the domestic laws of the State of New
Hampshire without reference to conflict of law provisions.
29.8 Taxes. 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 levied against
or upon such purchasing Party (or the providing Party when such providing Party
is permitted to pass along to the purchasing Party such taxes, fees or
surcharges), except for any tax on either Party's corporate existence, status or
income. Whenever possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale tax exemption, the
purchasing 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.
29.9 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 the State of New Hampshire 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 State of New Hampshire, 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
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<PAGE>
which consent will not be unreasonably withheld; provided that either 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 prior 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.
29.10 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.
29.11 Disputed Amounts.
29.11.1 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.
29.11.2 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.
29.11.3 If the Parties are unable to resolve issues related to the
Disputed Amounts within forty-five (45) days, then either Party may file a
complaint with the PUC to resolve such issues or proceed with any other remedy
pursuant to law or equity. If such a filing is made with the PUC by either
Party, the Non-Paying Party shall pay all Disputed Amounts into an interest
bearing escrow account with a third Party escrow agent mutually agreed upon by
the Parties. The PUC may direct payment of any or all funds (including any
accrued interest) plus applicable late fees, to be paid to either Party.
29.11.4 The Parties agree that all negotiations pursuant to this
Section 29.11 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.
29.12 Notices. Notices given by one Party to the other Party under this
Agreement shall be in writing and shall be (a) delivered personally, (b)
delivered by express delivery service, (c) mailed, certified mail or first class
U.S. mail postage prepaid, return receipt requested or (d) delivered by telecopy
to the following addresses of the Parties:
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To NEFC
New England Fiber Communications, L.L.C.
425 Woods Mill Road South
Town and Country, MO 63017
Attn: President
Facsimile: (314) 878-3211
To NYNEX:
NYNEX
1095 Avenue of Americas
40th Floor
New York NY 10036
Attn: Vice President - Wholesale Markets
Facsimile: (212) 597-2585
or to such other address as either Party shall designate by proper notice.
Notices will be deemed given as of the earlier of (i) the date of actual
receipt, (ii) the next business day when notice is sent via express mail or
personal delivery, (iii) three (3) days after mailing in the case of first class
or certified U.S. mail or (iv) on the date set forth on the confirmation in the
case of telecopy.
29.13 Publicity and Use of Trademarks or Service Marks. Neither Party nor
its subcontractors or agents shall use the other Party's trademarks, service
marks, logos or other proprietary trade dress in any advertising, press
releases, publicity matters or other promotional materials without such Party's
prior written consent.
29.14 Section 252(i) Obligations. Consistent with FCC rules, if either
Party enters into an agreement approved by the PUC or FCC pursuant to Section
252 of the Act which provides for the provision in the State of New Hampshire of
arrangements covered in this Agreement to another requesting Telecommunications
Carrier (the "Other Agreement"), including itself or its 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. Provided however,
that upon proper notification from NEFC, NYNEX shall make available without
unreasonable delay to NEFC any form of Interconnection, service, or network
element contained in any agreement to which it is a Party that is approved by
any state commission in the NYNEX operating territory pursuant to Section 252,
if such arrangement is technically feasible in the State of New Hampshire, and
will negotiate in good faith with NEFC the rates, terms, and conditions that
will be applicable in the State of New Hampshire.
29.15 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
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fairly interpreted in accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either Party.
29.16 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 of 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.
29.17 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.
29.18 Technology Upgrades. Nothing in this Agreement shall limit NYNEX's
ability to upgrade its network through the incorporation of new equipment, new
software or otherwise. NYNEX shall provide NEFC written notice at least ninety
(90) days prior to the incorporation of any such upgrades in NYNEX's network
which will materially impact NEFC service. NEFC shall be solely responsible for
the cost and effort of accommodating such changes in its own network.
29.19 Alternate Dispute Resolution.
29.19.1 If a dispute arises between NYNEX and NEFC during the term
of the Agreement, the following process, which shall be overseen by the
Commission, shall be followed to resolve such dispute:
a) The Parties shall have an initial thirty (30) day period beginning from
the date on which either Party has provided written notice to the other Party
identifying the existence of a dispute and seeking to resolve it, within which
to resolve the dispute themselves, without meditation or arbitration as provided
below.
b) If the dispute is not resolved within such thirty (30) day period,
either Party may petition the Commission to request mediation. The period of
meditation shall be sixty (60) days commencing on the date of filing of such
petition for meditation. Such petition shall include a request to the Commission
to choose a mediator within the first ten (10) days of such sixty (60) day
period, and the mediation shall be conducted by a mediator designated by the
Commission. The Parties shall cooperate in good faith with the mediator to
resolve the dispute within such sixty (60) day period. If, at any date
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<PAGE>
following the forty-fifth (45) day of such sixty (60) day period, the Parties
have not resolved their dispute, the mediator may formally declare a deadlock.
c) Following the earlier to occur of (x) expiration of the sixty (60) day
mediation period without resolution of the dispute between the Parties or (y)
formal declaration of a deadlock by the mediator as contemplated in preceding
paragraph (b), either Party may petition the Commission for arbitration. The
period of arbitration shall be seventy (70) days commencing on the date of
filing of such petition for arbitration. Such petition shall include a request
to the Commission to choose an arbitrator within the first ten (10) days of such
seventy (70) day period, and the arbitration shall be conducted by a arbitrator
designated by the Commission.
29.19.2 In the event that NYNEX and NEFC must enter into the dispute
resolution process described above, both Parties shall share equally the expense
to the Commission of such process. However, if in the Commission's judgment, one
Party's claim is particularly and/or consistently frivolous, then the Commission
may determine that such Party should bear such expense.
29.19.3 In the event that a dispute requires resolution sooner than
provided by the dispute resolution process described above, either party may
seek resolution in any other appropriate forum.
29.20 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,
including without limitation, Sections 22.0, 25.0, 26.0, 29.3, 29.6, 29.11,
29.13 and 29.17.
29.21 Scope of Agreement. This Agreement is intended to describe and
enable specific Interconnection and access to unbundled Network Elements and
compensation arrangements between the Parties. This Agreement does not obligate
either Party to provide arrangements not specifically provided for herein.
29.22 Entire Agreement. The terms contained in this Agreement and any
Schedules, Exhibits, 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.
29.23 Power and Authority. Each Party has full power and authority to
enter into and perform this Agreement, and the person signing this Agreement on
behalf of each has been properly authorized and empowered to enter into this
Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this 17th day of July, 1997.
NEW ENGLAND FIBER NYNEX
COMMUNICATIONS, L.L.C.
By: /s/ Richard P. Anthony By: /s/ Jacob J. Goldberg
-------------------------- ---------------------------
Printed: Richard P. Anthony Printed: Jacob J. Goldberg
--------------------- ----------------------
Title: President - Eastern Region Title: Vice President-Wholesale Markets
----------------------- ------------------------
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SCHEDULE 1.0
CERTAIN TERMS AS DEFINED IN THE ACT
"Affiliate" means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or the equivalent thereof) of more than ten percent (10%).
"Dialing Parity" means that a person that is not an Affiliate of a LEC is
able to provide Telecommunications Services in such a manner that Customers have
the ability to route automatically, without the use of any access code, their
Telecommunications to the Telecommunications Services provider of the Customer's
designation from among two (2) or more Telecommunications Services providers
(including such LEC).
"Exchange Access" means the offering of access to Telephone Exchange
Services or facilities for the purpose of the origination or termination of
Telephone Toll Services.
"InterLATA Service" means Telecommunications between a point located in a
local access and transport area and a point located outside such area.
"Local Access and Transport Area" or "LATA" means a contiguous geographic
area: (a) established before the date of enactment of the Act by a Bell
operating company such that no Exchange Area includes points within more than
one (1) metropolitan statistical area, consolidated metropolitan statistical
area, or State, except as expressly permitted under the AT&T Consent Decree; or
(b) established or modified by a Bell operating company after such date of
enactment and approved by the FCC.
"Local Exchange Carrier" means any person that is engaged in the provision
of Telephone Exchange Service or Exchange Access. Such term does not include a
person insofar as such person is engaged in the provision of a commercial mobile
service under Section 332(c) of the Act, except to the extent that the FCC finds
that such service should be included in the definition of such term.
"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 and collection or used in the transmission, routing, or other provision
of a Telecommunications Service.
"Number Portability" means the ability of users of telecommunications
services to retain, at the same location, existing telecommunications numbers
without impairment of
<PAGE>
quality, reliability, or convenience when switching from one telecommunications
carrier to another.
"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.
"Telecommunications Carrier" means any provider of Telecommunications
Services, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Communications
Act).
"Telecommunications Service" 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.
"Telephone Exchange Service" means (a) service within a telephone exchange
within a connected system of telephone exchanges within the same exchange area
operated to furnish subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the exchange
service charge, or (b) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
"Telephone Toll Service" means telephone service between stations in
different exchange areas for which there is made a separate charge not included
in contracts with subscribers for exchange service.
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SCHEDULE 4.0 Network Interconnection Schedule*
LATA NYNEX N-IP NEFC B-IP ACTIVATION DATE
130 MNCHNHCODS2
MNCHNHCOO4T
MNCHNHCO2GT
NASHNHWPDS1
* Information to be provided by the Parties at a date to be determined by the
Parties.
<PAGE>
SCHEDULE 8.2 NYNEX Intervals for Installation
Service Order Standard Intervals
Number of Standard Interval
DS1Systems (Business Days)
---------- ---------------
Establishment of New Trunk Groups
1-10 60
over 10 negotiated
Additions to Existent Trunk Groups
1-4 30
over 4 negotiated
<PAGE>
SCHEDULE 27.1 NYNEX Performance Targets(1)
<TABLE>
<CAPTION>
ACTIVITY PERFORMANCE TARGETS
<S> <C>
1. Unbundled Link Installation
a) New Link Installation:
i) Order for Installation < 10 links 5 business days(1)
No Available Facilities Reappoint installation date
ii) Order for Installation => 10 links
Facilities Confirmation 5 business days(1)
If Available Facilities
< 20 links 10 business days from
Facilities Confirmation
=> 20 links negotiated interval(2)
b) "Hot Cutover" Installation
i) Order for Installation < 10 links 5 businesss days
ii) Order for Installation => 10 links negotiated interval(2)
2. Interim Number Portability Installation
i) Order for Installation < 10 numbers 5 businesss days
ii) Order for Installation => 10 numbers negotiated interval(2)
3. Out-of-Service Repairs Less than 24 hours from NYNEX's
Receipt of Notification of
Out-of-Service Condition
* Subject to the following percentage limitations:
1st half of Agreement 2nd half of Agreement
Period Period
65% 70%
</TABLE>
- --------
(1) The Parties agree to use a five (5) business day interval. At a future
time mutally agreed to by the Parties, the installation interval will be a
SMARTS CLOCK interval.
(2) NYNEX will provide the same negotiated intervals it provides to any
carrier, Customer or Parties that are similarly situated.
<PAGE>
SCHEDULE 27.1 (A)
NEFC
Service Quality Criteria
1 New Unbundled Link (SVGALS) Orders
1.0 ANI to NEFC number, verification successful from DEMARC by NYNEX field
technician.
1.1 All order information submitted by NEFC is valid (e.g. street address,
end user LCON, floor/unit number, cable pair assignment)
1.2 Customer (end user) available at appointed date.
1.3 Orders completed as submitted without cancellation after FOC
2 Hot Cut Unbundled Link (SVGALS) Orders
2.0 Verifiable NEFC dial tone at POT bay testable by NYNEX through
appropriate tie cable pair as provided by NEFC on the service request.
2.1 Accurate account and end user information submitted on service request
2.3 Accurate SVGAL tie cable and pair assignment provided by NEFC on
service request
2.4 Orders completed as submitted without cancellation after FOC
<PAGE>
PRICING SCHEDULE A
I. Reciprocal Compensation for local traffic shall equal the rate set forth
below. Such rate shall be:
Rate = $.008 per minute
The rate for Reciprocal Compensation is to be adjusted bi-annually based
upon the rates and formula set forth in this Pricing Schedule. The first
adjustment shall occur six (6) months after traffic is exchanged between the
Parties and future adjustments every six months thereafter.
Reciprocal Compensation for IntraLATA Toll traffic shall equal each
Party's effective applicable tariffed IntraLATA switched access rates.
II. Information Services Billing and Collection
Fee = $.05 per message
EMR = $.00415 per record charge
III. Transit Service (Tandem Transit Service)
A. Transit Service
Rate = $.0035 per minute
B. Dedicated Transiting Service
Rate = twice the applicable charge for a collocated channel
termination
IV. Interim Telecommunications Number Portability
A. Monthly Recurring Charges
Rate per Business Number = $2.00
Rate per Residential Number = $1.00
No additional recurring charges shall apply for interim number
portability, including additional per-path, per-port, or usage-related charges,
except for third party and collect calls.
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B. Non-recurring charge
Rate = $20.00 per ported number
Non-recurring charges only apply when interim number portability is
ordered separately from an unbundled link.
V. IntraLATA 800/888
Reciprocal Compensation (refer to I above).
Compensation for records exchanged = $.00415 per record
800 database inquiry = $.003981 per database inquiry
VI. Directory Assistance and Operator Services
(A) Directory Assistance Services
(1) Directory Assistance
Per Request
-----------
Each Request for Information per one telephone
number, with NYNEX branding $0.322250
Each Request for Information per one telephone
number, with NEFC branding $0.322250
Each Request for Information per one telephone
number, without branding $0.268541
Branding surcharge per call (if applicable) $0.053709
(2) Directory Assistance Call
Completion (DACC) #:
Each Request for Information per one telephone
number, with NEFC branding or with NYNEX
branding plus call completion $0.500138
Each Request for Information per one telephone
number, without branding plus call completion $0.446429
DACC Surcharge per call $0.177888
2
<PAGE>
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
Record Charges
EMR format - per record charge $.004150
(4) Direct Access to Directory Assistance (DADA)
Monthly Access Charge $4000
Each Search Request $0.038
Rate
----
(B) Inward Operator Services#
(1) BLV
- Per work second $0.034465
(2) BLV/I
- Per work second $0.034465
(3) Branding surcharge per call
(if applicable) $0.053709
(C) 0+/Mechanized Operator Calls #
(1) Calling Card
- Per request $0.116585
(2) Collect
- Per request $0.131100
(3) Third Number
- Per request $0.131100
(4) Branding surcharge per call
(if applicable) $0.053709
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
(D) 0- Operator Handled Calls #
(1) Per work second $0.013043
(2) Branding surcharge per call
(if applicable) $0.053709
3
<PAGE>
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
(E) Operator Emergency Bulletin Service
- Per State Bulletin, per year $17.80
Recurring Non-recurring
--------- -------------
(F) TOPS Trunk Ports $14.53 $147.87
Service Access Charge
-Per TOPS Port $1.81 N/A
(G) IOF mileage for Dedicated
Trunk Transport $126.35 $470.98
Mileage Charge, per mile
per month $0.73
Peak Off-Peak
---- --------
Digital Trunk Port Usage / Shared
- per MOU $0.001965 $0.000436
Peak Off-Peak
---- --------
Unbundled Local Switching
- per MOU $0.008689 $0.004565
Unbundled Tandem Transport (UTTC)
- per MOU $.001780 $.000400
Tandem Transit Switching (TTSC)
- per MOU $0.008642 $0.002702
NYNEX Reciprocal Compensation (UNRCC)
- per MOU $0.010654 $0.005001
NEFC Reciprocal Compensation (UCRCC)
- per MOU $0.010654 $0.005001
VII. UNBUNDLED NETWORK ELEMENT
NYNEX
ELEMENT ZONE PRICE
- ------- ---- -----
2W ANALOG LINK URBAN $12.67
SUBURBAN $15.59
4
<PAGE>
RURAL $23.00
STATEWIDE $17.53
4W ANALOG LINK URBAN $38.31
SUBURBAN $43.17
RURAL $72.54
STATEWIDE $52.46
2W LINK CONDITIONED URBAN $28.66
FOR DIGITAL SUBURBAN $29.37
RURAL $70.38
STATEWIDE $43.79
4W LINK CONDITIONED URBAN $148.20
FOR DIGITAL SUBURBAN $157.42
RURAL $392.52
STATEWIDE $238.84
NETWORK INTERFACE URBAN $0.72 (See Note A)
DEVICE SUBURBAN $0.72
2W ANALOG LINK RURAL $0.72
STATEWIDE $0.72
NETWORK INTERFACE URBAN $0.86
DEVICE SUBURBAN $0.86
4W ANALOG LINK RURAL $0.86
STATEWIDE $0.86
NETWORK INTERFACE URBAN $0.72
DEVICE SUBURBAN $0.72
2W LINK CONDITIONED RURAL $0.72
FOR DIGITAL STATEWIDE $0.72
NETWORK INTERFACE URBAN $0.86
DEVICE SUBURBAN $0.86
4W LINK CONDITIONED RURAL $0.86
FOR DIGITAL STATEWIDE $0.86
LOCAL SWITCHING URBAN $2.24
ANALOG PORT SUBURBAN $2.07
RURAL $1.82
LOCAL SWITCHING URBAN $3.08
DIGITAL PORT SUBURBAN $2.87
RURAL $2.68
5
<PAGE>
LOCAL SWITCHING URBAN $26.55
ISDN-BRI PORT SUBURBAN $30.84
RURAL $29.11
LOCAL SWITCHING URBAN $6.96
DIGITAL TRUNK PORT SUBURBAN $6.77
RURAL $7.35
LOCAL SWITCHING URBAN $412.80
ISDN-PRI PORT SUBURBAN $371.84
RURAL $371.84
LOCAL SWITCHING URBAN $0.000863
TRUNK PORT PER MOU SUBURBAN $0.000904
DAY RURAL $0.000925
LOCAL SWITCHING URBAN $0.001096
TRUNK PORT PER MOU SUBURBAN $0.001149
EVENING RURAL $0.001176
LOCAL SWITCHING URBAN $0.000000
TRUNK PORT PER MOU SUBURBAN $0.000000
NIGHT RURAL $0.000000
LOCAL SWITCHING URBAN $0.003197
USAGE PER MOU SUBURBAN $0.005262
DAY RURAL $0.009101
LOCAL SWITCHING URBAN $0.003871
USAGE PER MOU SUBURBAN $0.006074
EVENING RURAL $0.010106
LOCAL SWITCHING URBAN $0.000707
USAGE PER MOU SUBURBAN $0.002263
NIGHT RURAL $0.005389
LOCAL SWITCHING URBAN $0.7767
PORT ADDITIVE SUBURBAN $0.7767
CENTREX RURAL $0.7767
LOCAL SWITCHING URBAN $0.9267
PORT ADDITIVE SUBURBAN $0.9267
RINGMATE SVC. RURAL $0.9267
6
<PAGE>
LOCAL SWITCHING URBAN $0.3451
PORT ADDITIVE SUBURBAN $0.3517
THREE-WAY CALLING RURAL $0.3300
TANDEM SWITHING
DIGITAL TRUNK ALL ZONES $6.86
COMMON TRUNK PER MOU ALL ZONES
DAY $0.003543
EVENING $0.004503
NIGHT $0.000000
USAGE PER MOU ALL ZONES
DAY $0.002971
EVENING $0.003221
NIGHT $0.002049
DEDICATED TRANSPORT ALL ZONES
OC-48 FIXED $8,976.19
OC-48 PER MILE $178.75
OC-12 FIXED $3,575.40
OC-12 PER MILE $74.59
OC-3 FIXED $1,455.74
OC-3 PER MILE $18.65
DS-3 FIXED $791.63
DS-3 PER MILE $6.22
DS-1 FIXED $103.27
DS-1 PER MILE $0.22
CO MUXING 3/1 $211.97
COMMON TRANSPORT ALL ZONES
USAGE
DAY $0.000886
EVENING $0.001127
NIGHT $0.000000
UNBUNDLED NETWORK ELEMENT
7
<PAGE>
SIGNALING ALL ZONES
STP PER LINK $38.93
STP PER PORT $752.00
SCP "800" QUERY $0.001786
SCP LIDB QUERY $0.001394
EXTENDED LINK
URBAN $51.60
SUBURBAN $54.52
RURAL $61.93
STATEWIDE $56.46
NOTES
A. The Arbitrator's original decision on 11/6/96 for the NID was based on a
NYNEX adjusted price of $0.93 and a reduction of 24.7% resulting in a $0.70 NID
price. NYNEX's actual adjusted NID price is actually $0.97. A reduction of 25.7%
is then applied resulting in a final NID price of $0.72.
8
<PAGE>
WHOLESALE DISCOUNTS
With NYNEX Provided Operator Services
BUSINESS 18.78%
RESIDENCE 17.30%
With NEFC Provided Operator Services
BUSINESS 20.25%
RESIDENCE 19.04%
9
<PAGE>
PRICING SCHEDULE
Reciprocal Compensation Calculation
I. Time of Day Definitions
II. Base Rates - Per Minute of Use
Peak = $0.011
Off-Peak = $0.008
III. Formula for determining Reciprocal Compensation (% Peak Traffic +
% Off-Peak Traffic = 100% for each Party)
(NEFC-originated Peak Minutes + NYNEX-originated Peak Minutes) * Peak Rate /
Total NEFC + NYNEX Minutes
+
(NEFC-originated Off-Peak Minutes + NYNEX-originated Off-Peak Minutes) *
Off-Peak Rate / Total NEFC + NYNEX Minutes
<PAGE>
EXHIBIT A
NETWORK ELEMENT BONA FIDE REQUEST
1. Each Party shall promptly consider and analyze access to a 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) para. 259 and n.603 or
subsequent orders.
2. A Network Element Bona Fide Request shall be submitted in writing and
shall include a technical description of each requested Network Element.
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.
4. Within ten (10) business days of its receipt, the receiving Party shall
acknowledge receipt of the Network Element Bona Fide Request.
5. Except under extraordinary circumstances, within thirty (30) days of
its receipt of a Network Element 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 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.
6. If the receiving Party determines that the Network Element Bona Fide
Request is technically feasible and otherwise qualifies under the Act, it shall
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.
7. Unless the Parties otherwise agree, the Network Element Requested must
be priced in accordance with Section 252(d)(1) of the Act.
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 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.
<PAGE>
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 Element Bona Fide Request pursuant to the Network Element Bona Fide
Request quote or seek arbitration by the PUC pursuant to Section 252 of the Act.
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, or is failing to act in accordance with Section 251 of the Act, such
Party may seek mediation or arbitration by the PUC pursuant to Section 252 of
the Act.
2
<PAGE>
Schedule 27.2
Performance Measurement Reports
<PAGE>
Schedule 27.2
- ---------------------------------------------------
Product: Resale - POTS
- ---------------------------------------------------
State: New Hampshire by Market Area *
- ---------------------------------------------------
Time Period: (Monthly)
- ---------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Actual Service Performance
-------------------------------------
All Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Provisioning
- -------------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------------
Average Interval - business days
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days - Residence
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days - Business
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- -------------------------------------------------------------------------------------
% Completed in 1 business day - Dispatch
- -------------------------------------------------------------------------------------
% Completed in 1 business day - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 4 business days
- -------------------------------------------------------------------------------------
% Completed w/in 5 business days
- -------------------------------------------------------------------------------------
% Completed w/in 6 business days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------------
% Missed Repair Appointments
- -------------------------------------------------------------------------------------
Mean Time to Repair
- -------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- -------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- -------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------------
% Cleared within 24 Hours
- -------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------------
% CPE Troubles
- -------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------------
% No Access
- -------------------------------------------------------------------------------------
</TABLE>
Notes: 1.) Customer Trouble Report Rate excludes CPE and subsequents
reports. 2) Subsequents are additional calls on open troubles. 3.)Some
measures are an indicator of carrier performance, such as % no trouble
found, % CPE and % no access
2
<PAGE>
Comparability Reports for Resale
(Under development - separate reports for DS0, DS1, and DS3
- ---------------------------------------------------
Product: Resale - Specials
- ---------------------------------------------------
State: New Hampshire By Market Area*
- ---------------------------------------------------
Time Period: (Monthly)
- ---------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Actual Service Performance
-------------------------------------
All Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Provisioning
- -------------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------------
Average Interval business days
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- -------------------------------------------------------------------------------------
% Completed in 1 business day - Dispatch
- -------------------------------------------------------------------------------------
% Completed in 1 business day - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 4 business days
- -------------------------------------------------------------------------------------
% Completed w/in 5 business days
- -------------------------------------------------------------------------------------
% Completed w/in 6 business days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------------
Mean Time to Repair
- -------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- -------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- -------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------------
% Cleared within 24 Hours
- -------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------------
% CPE Troubles
- -------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------------
% No Access
- -------------------------------------------------------------------------------------
</TABLE>
Notes: 1. Customer Trouble Report Rate excludes CPE and subsequents. 2.
Subsequents are additional calls on open troubles. 3. Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
3
<PAGE>
Comparability Reports for Unbundled Elements - POTS
- -------------------------------------------------------------
Product: Unbundled Elements - POTS (Dial Tone Services)
- -------------------------------------------------------------
State: New Hampshire- By Market Area*
- -------------------------------------------------------------
Time Period: (Monthly)
- -------------------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Actual Service Performance
-------------------------------------
All Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Provisioning
- -------------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------------
Average Interval
- -------------------------------------------------------------------------------------
% completed in 1 business day - Dispatch
- -------------------------------------------------------------------------------------
% completed in 1 business day - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 4 business days
- -------------------------------------------------------------------------------------
% Completed w/in 5 business days
- -------------------------------------------------------------------------------------
% Completed w/in 6 business days
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate - Loop
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate - CO
- -------------------------------------------------------------------------------------
% Missed Repair Appointments
- -------------------------------------------------------------------------------------
Mean Time to Repair - Loop Trouble
- -------------------------------------------------------------------------------------
Mean Time to Repair - CO Trouble
- -------------------------------------------------------------------------------------
% Out of Service > 4 Hours
- -------------------------------------------------------------------------------------
% Out of Service > 12 Hours
- -------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------------
% Cleared within 24 Hours
- -------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------------
% CPE Troubles
- -------------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------------
% No Access
- -------------------------------------------------------------------------------------
</TABLE>
Notes: 1.) Customer Trouble Report Rate excludes CPE and subsequents. 2.)
Subsequents are additional calls on open troubles. 3.) Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access. 4.) Other Unbundled elements include equivalent complex special services
requiring specialized circuit design
4
<PAGE>
Comparability Reports for Unbundled Elements - Specials
(Under development - separate reports for DS0, DS1, and DS3
- ---------------------------------------------------
Product: Other Unbundled Elements - SPECIALS
- ---------------------------------------------------
State: New Hampshire- By Market Area*
- ---------------------------------------------------
Time Period: (Monthly)
- ---------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Actual Service Performance
-------------------------------------
All Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Provisioning
- -------------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------------
Average Interval - business days
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days - Dispatch
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days - No Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------------
Mean Time to Repair
- -------------------------------------------------------------------------------------
% Out of Service > 4 hours
- -------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------------
% CPE Troubles
- -------------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------------
% No Access
- -------------------------------------------------------------------------------------
</TABLE>
Notes: 1.) Customer Trouble Report Rate excludes CPE and subsequents. 2.)
Subsequents are additional calls on open troubles. 3.) Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access. 4.) Other Unbundled elements include equivalent complex special services
requiring specialized circuit design
5
<PAGE>
Comparability Reports for Interconnection
- -------------------------------------------
Product: Interconnection Trunks
- -------------------------------------------
State: New Hampshire- By Market Area*
- -------------------------------------------
Time Period: (Monthly)
- -------------------------------------------
- -------------------------------------------------------------------------------
Actual Service Performance
-------------------------------------
All Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------
Provisioning
- -------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------
Average Interval -business days
- -------------------------------------------------------------------------------
% Missed Appointment - NYNEX
- -------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------
Mean Time to Repair
- -------------------------------------------------------------------------------
% Out of Service > 2 Hours
- -------------------------------------------------------------------------------
% Out of Service > 4 Hours
- -------------------------------------------------------------------------------
% Out of Service > 12 Hours
- -------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------
Notes: 1.) Customer Trouble Report Rate excludes CPE and subsequents. 2.)
Subsequents are additional calls on open troubles. 3.) Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
6
<PAGE>
APPENDIX 2
<PAGE>
Appendix 2
SCHEDULE 4.0 Network Interconnection Schedule
LATA HARVARDNET-IP BA-IP Activation Date
TBD TBD TBD TBD
<PAGE>
RemoteConnect Offer Checklist
<TABLE>
<CAPTION>
======================================================================================================
Fully-Managed Transport Only Transport Only
- ------------------------------------------------------------------------------------------------------
Layer 3 Layer 3 Layer 2
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Hardware
- ------------------------------------------------------------------------------------------------------
DSL Remote Termination Units |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
Central Site Router |X| O
- ------------------------------------------------------------------------------------------------------
Central Site VPN Concentrator |X|
- ------------------------------------------------------------------------------------------------------
Branch Office Site Routers |X| O
- ------------------------------------------------------------------------------------------------------
Branch Office VPN Concentrators |X|
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Connectivity
- ------------------------------------------------------------------------------------------------------
Telecommuter DSL Port |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
Central Site T1/T3 |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
Branch Office DSL Port, Frame, or T1 |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
Telecomuter Dial-Up |X| |X|
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Internet Access
- ------------------------------------------------------------------------------------------------------
Central Site |X| |X| O
- ------------------------------------------------------------------------------------------------------
Branch Offices |X| |X|
- ------------------------------------------------------------------------------------------------------
Telecommuters |X| |X|
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Software
- ------------------------------------------------------------------------------------------------------
Client Tunneling Software |X|
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Installation
- ------------------------------------------------------------------------------------------------------
Pre-Install Consulting (1 day) |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
Implementation Scope of Work Document |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
Router Configuration |X| O
- ------------------------------------------------------------------------------------------------------
VPN Concentrator Configuration |X|
- ------------------------------------------------------------------------------------------------------
Hardware Installation |X| O
- ------------------------------------------------------------------------------------------------------
Line Installation - DSL, Frame, T1, and T3 |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
Distribution of Client Software |X|
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Mangement
- ------------------------------------------------------------------------------------------------------
VPN Concentrator
- ------------------------------------------------------------------------------------------------------
Up-time |X|
- ------------------------------------------------------------------------------------------------------
Performance |X|
- ------------------------------------------------------------------------------------------------------
Swap Out |X|
- ------------------------------------------------------------------------------------------------------
Routers
- ------------------------------------------------------------------------------------------------------
Up-time |X|
- ------------------------------------------------------------------------------------------------------
Performance |X|
- ------------------------------------------------------------------------------------------------------
Swap Out |X|
- ------------------------------------------------------------------------------------------------------
Radius Server Management O
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Support
- ------------------------------------------------------------------------------------------------------
7x24 Tier II Help Desk |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
7x24 Tier III Support |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
7x24 Monitoring Support |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Tools
- ------------------------------------------------------------------------------------------------------
Web-based Connectivity Monitoring |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
User Management Interface |X| |X| |X|
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Key - |X| - Included, O - Optional
======================================================================================================
</TABLE>
Offer Checklist 5/12/99
<PAGE>
EXHIBIT 10.11
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of February 24, 1999
by and between
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY,
d/b/a
BELL ATLANTIC - MAINE
and
HARVARDNET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
24th day of February 1999 (the "Effective Date"), by and between New England
Telephone and Telegraph Company, d/b/a Bell Atlantic - Maine ("BA"), a Maine
corporation with offices at 185 Franklin Street, Boston, Massachusetts, 02110,
and Harvard Net, Inc., ("HarvardNet") a Delaware corporation with offices at 500
Rutherford Avenue, Charlestown, Massachusetts, 02129 (each a "Party" and,
collectively, the "Parties").
WHEREAS, HarvardNet has requested that BA make available to HarvardNet
Interconnection service and unbundled Network Elements upon the same terms and
conditions as provided in the Interconnection Agreement (and amendments thereto)
between New England Fiber Communications, LLC and BA, dated as of July 17, 1997,
for Maine, approved by the Commission under Section 252 of the Act the (the
"Separate Agreement") and attached as Appendix 1 hereto; and
WHEREAS, BA has undertaken to make such terms and conditions available to
HarvardNet hereby only because of and, to the extent required by, Section 252(i)
of the Act.
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, HarvardNet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement (as set forth in Appendix 1 hereto), as it is in effect on
the date hereof after giving effect to operation of law, and of the other
Appendices hereto, are incorporated by reference in their entirety herein and
form an integral part of this Agreement.
1.2 References in Appendix 1 hereto to New England Fiber Communications,
LLC or to NEFC shall for purposes of this Agreement be deemed to refer to
HarvardNet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of Appendix 1 hereto, this Agreement shall continue in
effect in accordance with Section 21 of Appendix 1 until the Separate Agreement
expires or is otherwise terminated.
1.4 All references in Appendix 1 hereto to "800/888" shall be deleted in
their entirety and replaced with the following: "800/888/877".
<PAGE>
1.5 The Joint Network Configuration and Grooming Plan referred to in
Section 8.1 of Appendix 1 hereto shall be developed upon the request of either
Party within a reasonable amount of time after receipt of such request, but an
initial plan shall be established no more than six months after the request is
made.
1.6 If HarvardNet so requests, at such time as BA makes available the
Performance Monitoring Reports set forth in the Memorandum Opinion and Order
adopted by the FCC on August 14, 1997 (the "FCC Merger Order") to other
Telecommunications Carriers purchasing Interconnection from BA, BA shall provide
HarvardNet with the Performance Monitoring Reports applicable to HarvardNet in
accordance with the requirements of said FCC Merger Order in lieu of the
quarterly performance reports set forth in Schedules 27.2A through 27.2D
thereto.
1.7 Notices to HarvardNet under Section 29.12 of Appendix 1 hereto shall
be sent to the following address:
HarvardNet, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
1.8 Notices to BA under Section 29.12 of Appendix 1 hereto shall be sent
to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
2
<PAGE>
Bell Atlantic Maine
Attn: Donald Boecke
General Counsel
Room 1403
185 Franklin Street
Boston, Massachusetts 02110
Telephone: (617) 743-5769
Facsimile: (617) 737-0648
1.9 Schedule 4.0 set forth at Appendix 2 hereto shall replace and
supersede in its entirety Schedule 4.0 of Appendix 1 hereto.
2.0 Clarifications
2.1 BA and HarvardNet have entered into this Agreement in accordance with
the requirements of 47 USC ss. 252(i). However, BA has advised HarvardNet that
BA disputes the applicability of the Separate Agreement's Reciprocal
Compensation arrangements to traffic that is transmitted to or returned from the
Internet at any point during the duration of the transmission ("Internet
Traffic"), (herein the "Disputed Issue"). BA believes that Internet Traffic is
not "Local Traffic" pursuant to Section 5.7 of the Separate Agreement and
HarvardNet disagrees.
2.2 The execution of this Agreement does not constitute (1) an admission
by either Party that the other Party's interpretation thereof is lawful or
reasonable; or (2) a release or waiver by either Party of its claims and
defenses pertaining to the Disputed Issue. Bell Atlantic agrees to be bound by
the terms of the Separate Agreement only as and to the extent required by
Section 252(i). Moreover, the entry into, filing and performance by the Parties
of this Agreement does not in any way constitute a waiver by either Party of any
of the rights and remedies it may have pursuant to Section 28 of the Separate
Agreement. Nor does it constitute a waiver of any right available under
Applicable Law, in connection with either the Disputed Issue or with
HarvardNet's election under 47 U.S.C. ss. 252(i): (1) to petition the
Commission, other administrative body or court for reconsideration or reversal
of any determination made by such body or court or (2) to seek enforcement or
review of this Agreement or the Separate Agreement.
3
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 24th day of February, 1999.
HARVARDNET, INC. BELL ATLANTIC-MAINE, INC.
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
--------------------------- ---------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
---------------------- ----------------------------
Title: Chief Executive Officer Title: Vice-President - Interconnection
------------------------ Services Policy & Planning
------------------------------
4
<PAGE>
APPENDIX 1
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of July 17, 1997
by and between
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
and
NEW ENGLAND FIBER COMMUNICATIONS, L.L.C.
FOR MAINE
<PAGE>
TABLE OF CONTENTS
Section Page
1.0 DEFINITIONS 1
2.0 INTERPRETATION AND CONSTRUCTION 7
3.0 SCOPE 7
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) 7
4.1 Scope 7
4.2 Physical Architecture 8
4.3 Initial Interim Architecture 8
4.4 Technical Specifications 8
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2) 9
5.1 Scope of Traffic 9
5.2 Switching System Hierarchy 9
5.3 Trunk Group Architecture and Traffic Routing 10
5.4 Signaling 11
5.5 Grades of Service 11
5.6 Measurement and Billing 11
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5) 12
5.8 Municipal Calling Service 13
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
SECTION 251(c)(2) 13
6.1 Scope of Traffic 13
6.2 Trunk Group Architecture and Traffic Routing 13
6.3 Meet-Point Billing Arrangements 14
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC 14
7.1 Information Services Traffic 14
7.2 Tandem Transit Service 15
7.3 Dedicated Transit Service 16
7.4 911/E911 Arrangements 17
8.0 JOINT NETWORK CONFIGURATION AND GROOMING PLAN; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR 18
8.1 Joint Network Configuration and Grooming Plan 18
8.2 Installation, Maintenance, Testing and Repair 18
8.3 Network Reliability Council
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9.0 UNBUNDLED ACCESS -- SECTION 251(c)(3) 18
9.1 Local Link Transmission Types 18
9.2 ADSL and HDSL 19
9.3 Port Types 20
9.4 Private Lines and Special Access 20
9.5 Limitations on Unbundled Access 21
9.6 Availability of Other Network Elements on an Unbundled Basis 22
9.7 Provisioning of Unbundled Links 22
9.8 Maintenance of Unbundled Network Elements 24
9.9 True-up of Monthly Unbundled Link Charges for Maine 24
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1) 26
10.1 Availability of Wholesale Rates for Resale 26
10.2 Availability of Retail Rates for Resale 26
10.3 Term and Volume Discounts 26
11.0 NOTICE OF CHANGES -- SECTION 251(c)(5) 26
12.0 COLLOCATION -- SECTION 251(c)(6) 26
13.0 NUMBER PORTABILITY -- SECTION 251(b)(2) 27
13.1 Scope 27
13.2 Procedures for Providing INP Through Remote Call Forwarding 27
13.3 Procedures for Providing INP Through Route Indexing 28
13.4 Procedures for Providing INP Through Full NXX Code Migration 28
13.5 Receipt of Terminating Compensation on Traffic to INP'ed
Numbers 29
13.6 True-up of Monthly INP Costs 30
14.0 NUMBER RESOURCE ASSIGNMENTS 30
15.0 DIALING PARITY -- SECTION 251(b)(3) 30
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 30
17.0 DATABASES AND SIGNALING 31
18.0 REFERRAL ANNOUNCEMENT 31
19.0 DIRECTORY SERVICES ARRANGEMENTS 31
19.1 Directory Listings and Directory Distributions 31
19.2 Directory Assistance (DA) and Operator Services 32
20.0 GENERAL RESPONSIBILITIES OF THE PARTIES 34
21.0 TERM AND TERMINATION 36
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22.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 37
23.0 CANCELLATION CHARGES 37
24.0 NON-SEVERABILITY 37
25.0 INDEMNIFICATION 37
26.0 LIMITATION OF LIABILITY 38
27.0 PERFORMANCE STANDARDS AND REPORTING REQUIREMENTS 39
27.1 Performance Standards 39
27.2 Reporting Requirements 39
28.0 REGULATORY APPROVAL 40
29.0 MISCELLANEOUS 40
29.1 Authorization 40
29.2 Compliance 41
29.3 Compliance with the Communications Law Enforcement Act of
1994 41
29.4 Independent Contractor 41
29.5 Force Majeure 41
29.6 Confidentiality 41
29.7 Governing Law 42
29.8 Taxes 43
29.9 Non-Assignment 43
29.10 Non-Waiver 43
29.11 Disputed Amounts 43
29.12 Notices 44
29.13 Publicity and Use of Trademarks or Service Marks 45
29.14 Section 252(i) Obligations 45
29.15 Joint Work Product 45
29.16 No Third Party Beneficiaries; Disclaimer of Agency 45
29.17 No License 45
29.18 Technology Upgrades 46
29.19 Alternate Dispute Resolution 46
29.20 Survival 46
29.21 Scope of Agreement 46
29.22 Entire Agreement 46
29.23 Power and Authority
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LIST OF SCHEDULES AND EXHIBIT
Schedules
Schedule 1.0 Certain Terms As Defined in the Act
Schedule 4.0 Network Interconnection Schedule
Schedule 8.2 NYNEX Intervals for Installation
Schedule 27.1 NYNEX Performance Standards
Schedule 27.1(A) NEFC Service Quality Criteria
Schedule 27.2 Performance Measurement Reports
Pricing Schedule
Exhibit
Exhibit A Network Element Bona Fide Request
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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 effective as of the 6th day of
June, 1997 (the "Effective Date"), by and between New England Fiber
Communications L.L.C. ("NEFC") a Delaware limited liability company with offices
at One City Center, Second Floor, Portland, Maine 04101 and New England
Telephone and Telegraph Company d/b/a NYNEX ("NYNEX" or "NET"), a New York
corporation with offices at 185 Franklin Street, Boston, Mass. 02110.
WHEREAS the Parties want to interconnect their networks at mutually agreed
upon points of Interconnection to provide Telephone Exchange Services (as
defined below) and Exchange Access (as defined below) to their respective
Customers; 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 Act (as defined below) and additional services as set forth
herein;
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, NEFC and NYNEX hereby agree as follows:
1.0 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
specified below in this Section 1.0. For convenience of reference only, the
definitions of certain terms that are As Defined in the Act (as defined below)
are set forth on Schedule 1.0. Schedule 1.0 sets forth the definitions of such
terms as of the date specified on such Schedule and neither Schedule 1.0 nor any
revision, amendment or supplement thereof intended to reflect any revised or
subsequent interpretation of any term that is set forth in the Act is intended
to be a part of or to affect the meaning or interpretation of this Agreement.
1.1 "Act" means the Communications Act of 1934 (47 U.S.C. ss. 151, et
seq.), as amended by the Telecommunications Act of 1996, and as from time to
time interpreted in the duly authorized rules and regulations of the FCC or a
state regulatory agency within its state of jurisdiction.
1.2 "ADSL" or "Asymmetrical Digital Subscriber Line" means a transmission
technology which transmits an asymmetrical digital signal using one of a variety
of line codes as specified in ANSI standards T1.413-1995-007R2.
1.3 "Affiliate" is As Defined in the Act.
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1.4 "Agreement for Switched Access Meet Point Billing" means the Agreement
for Switched Access Meet Point Billing between the Parties as amended.
1.5 "As Defined in the Act" means as specifically defined by the Act and
as from time to time interpreted in the duly authorized rules and regulations of
the FCC or the PUC.
1.6 "As Described in the Act" means as described in or required by the Act
and as from time to time interpreted in the duly authorized rules and
regulations of the FCC or the PUC.
1.7 "Automatic Number Identification" or "ANI" means a Feature Group D
signaling parameter which refers to the number transmitted through a network
identifying the billing number of the calling party.
1.8 "Busy Line Verification/Busy Line Verification Interrupt Traffic" or
"BLV/BLVI Traffic" means an operator service call in which the caller inquires
as to the busy status of or requests an interruption of a call on another
Customer's Telephone Exchange Service line.
1.9 "Calling Party Number" or "CPN" is a Common Channel Interoffice
Signaling ("CCIS") parameter which refers to the number transmitted through a
network identifying the calling party.
1.10 "Central Office Switch" means a switch used to provide
Telecommunications Services, including, but not limited to:
(a) "End Office Switches" which are used to terminate Customer
station Links for the purpose of interconnection to each other and to
trunks; and
(b) "Tandem Office Switches" ("Tandems") which are used to connect
and switch trunk circuits between and among other Central Office Switches.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
1.11 "CCS" means one hundred (100) call seconds.
1.12 "CLASS Features" means certain CCIS-based features available to
Customers including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification; Call Return and future CCIS-based offerings.
1.13 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in its equipment necessary for
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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"). For purposes of Collocation, the "premises" of a Housing Party
is limited to the occupied structure or portion thereof in which such Housing
Party has the exclusive right of occupancy. Collocation will be "physical,"
unless physical collocation is not practical for technical reasons or because of
space/limitations, in which case virtual collocation will be provided, subject
to PUC approval. In "Physical Collocation," the Collocating Party installs and
maintains its own equipment in the Housing Party's premises.
1.14 Commission means the Maine Public Utilities Commission ("PUC").
1.15 "Customer" means a third-party residence or business that subscribes
to Telecommunications Services provided by either of the Parties.
1.16 "Common Channel Interoffice Signaling" or "CCIS" means the signaling
system, developed for use between switching systems with stored-program control,
in which all of the signaling information for one or more groups of trunks is
transmitted over a dedicated high-speed data link rather than on a per-trunk
basis and, unless otherwise agreed by the Parties, the CCIS used by the Parties
shall be SS7.
1.17 "Cross Connection" means a connection provided pursuant to
Collocation at the Digital Signal Cross Connect, Main Distribution Frame or
other suitable frame or panel between (i) the Collocating Party's equipment and
(ii) the equipment or facilities of the Housing Party.
1.18 "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.
"Local Dialing Parity" means the ability of Telephone Exchange Service Customers
of one LEC to select a provider and make local calls without dialing extra
digits. "Toll Dialing Parity" means the ability of Telephone Exchange Service
Customers of a LEC to place toll calls (inter or intraLATA) which are routed to
a toll carrier (intraLATA or interLATA) of their selection without dialing
access codes or additional digits and with no unreasonable dialing delay.
1.19 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.20 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.21 "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.
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1.22 "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.
1.23 "Direct Customer Access Service" or "DCAS" is an electronic interface
system provided by NYNEX to facilitate the ordering, provisioning and
maintenance of various interconnection arrangements.
1.24 "Exchange Message Record" or "EMR" means the standard used for
exchange of Telecommunications message information among Telecommunications
providers for billable, non-billable, sample, settlement and study data. The EMR
format is contained in Bellcore Practice BR-010-200-010 CRIS Exchange Message
Record.
1.25 "Exchange Access" is As Defined in the Act.
1.26 "FCC" means the Federal Communications Commission.
1.27 "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.
1.28 "High-Bit Rate Digital Subscriber Line" or "HDSL" means a
transmission technology which transmits up to a DS1-level signal, using any one
of the following line codes: 2 Binary / 1 Quartenary ("2B1Q"), Carrierless
AM/PM, Discrete Multitone ("DMT"), or 3 Binary / 1 Octel ("3BO").
1.28a "Information Service" is As Defined in the Act.
1.29 "Information Service Traffic" means Local Traffic or IntraLATA Toll
Traffic which originates on a Telephone Exchange Service line and which is
addressed to an information service provided over a Party's information services
platform.
1.30 "Integrated Digital Loop Carrier" means a subscriber loop carrier
system which integrates within the switch, at a DS1 level, twenty-four (24)
Local Link Transmission paths combined into a 1.544 Mbps digital signal.
1.31 "Interconnection" is As Described in the Act and refers to the
connection of a network, equipment, or facilities, of one carrier with the
network, equipment, or facilities of another for the purpose of transmission and
routing of Telephone Exchange Service traffic and Exchange Access traffic.
1.32 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll Services.
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1.33 "Interim Telecommunications Number Portability" or "INP" is As
Described in the Act.
1.34 "InterLATA Service" is As Defined in the Act.
1.35 "Integrated Services Digital Network" or "ISDN" means a switched
network service that provides end-to-end digital connectivity for the
simultaneous transmission of voice and data. Basic Rate Interface-ISDN
(BRI-ISDN) provides for a digital transmission of two 64 Kbps bearer channels
and one 16 Kbps data channel (2B+D).
1.36 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined as Local Traffic in this Agreement.
1.37 "Local Access and Transport Area" or "LATA" is As Defined in the Act.
1.38 "Local Traffic" means a call which is originated and terminated
within a local service area as defined in P.U.C. - Me Tariff No.15, Part A ,
Section 6 . IntraLATA calls originated on a 1+ presubscription basis when
available or a casual dialed (10XXX/101XXXX) basis are not considered local
traffic.
1.39 "Local Exchange Carrier" or "LEC" is As Defined in the Act.
1.40 "Local Link Transmission" or "Link" means the entire transmission
path which extends from the network interface/demarcation point at a Customer's
premises to the Main Distribution Frame or other designated frame or panel in a
Party's Wire Center which serves the Customer. Links are defined by the
electrical interface rather than the type of facility used.
1.41 "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).
1.42 "Main Distribution Frame" or "MDF" means the distribution frame of
the Party providing the Link used to interconnect cable pairs and line and trunk
equipment terminals on a switching system.
1.43 "Meet-Point Billing" means the process whereby each Party bills the
appropriate tariffed rate for its portion of a jointly provided Switched
Exchange Access Service as agreed to in the Agreement for Switched Access Meet
Point Billing.
1.44 "Municipal Calling Service" is a calling service arrangement provided
on a non-optional basis to Customers in municipalities served by more than one
exchange or locality where toll charges would normally apply. Calls between
exchanges or localities serving the same municipality are not chargeable as toll
except for calls originating from
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coin (public and semi-public) telephones, terminating at public telephones, or
made to or from foreign exchange lines unless dial tone for the foreign exchange
line is provided from a central office serving some portion of the municipality
in which the foreign exchange line service address is located.
1.45 "Network Element" is As Defined in the Act.
1.46 "Network Element Bona Fide Request" means the process described in
Exhibit A that prescribes the terms and conditions relating to a Party's request
that the other Party provide a Network Element not otherwise provided by the
terms of this Agreement.
1.47 "North American Numbering Plan" or "NANP" means the numbering plan
used in the United States, Canada, Bermuda, Puerto Rico and certain Caribbean
Islands. The NANP format is a 10-digit number that consists of a 3-digit NPA
code (commonly referred to as the area code), followed by a 3-digit NXX code and
4-digit line number.
1.48 "Number Portability" is As Defined in the Act.
1.49 "NXX" means the three-digit code which appears as the first three
digits of a seven digit telephone number.
1.50 "Party" means either NYNEX or NEFC, and "Parties" means NYNEX and
NEFC.
1.51 "Port" means a termination on a Central Office Switch that permits
Customers to send or receive Telecommunications over the public switched
network, but does not include switch features or switching functionality.
1.52 "POT Bay" or "Point of Termination Bay" means the intermediate
distributing frame system which serves as the point of demarcation for
collocated interconnection.
1.53 "Rate Center" means the specific geographic point which has been
designated by a given LEC as being associated with a particular NPA-NXX code
which has been assigned to the LEC for its provision of Telephone Exchange
Service. The Rate Center is the finite geographic point identified by a specific
V&H coordinate, which is used by that LEC to measure, for billing purposes,
distance sensitive transmission services associated with the specific Rate
Center. Rate Centers will be identical for each Party until such time as NEFC
establishes its own Rate Centers within an area.
1.54 "Reciprocal Compensation" is As Described in the Act.
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1.55 "Route Indexing" means the provision of Interim Number Portability
through the use of direct trunks provisioned between End Offices of NYNEX and
NEFC over which inbound traffic to a ported number will be routed.
1.56 "Routing Point" means a location which a LEC has designated on its
own network as the homing (routing) point for inbound traffic to one or more of
its NPA-NXX codes. The Routing Point is also used to calculate mileage
measurements for the distance-sensitive transport element charges of Switched
Exchange Access Services. Pursuant to Bell Communications Research, Inc.
("Bellcore") Practice BR 795-100-100 (the "Bellcore Practice"), the Routing
Point (referred to as the "Rating Point" in such Bellcore Practice) may be an
End Office Switch location or a "LEC Consortium Point of Interconnection."
Pursuant to such Bellcore Practice, each "LEC Consortium Point of
Interconnection" shall be designated by a common language location identifier
(CLLI) code with (x)KD in positions 9, 10, 11, where (x) may be any alphanumeric
A-Z or 0-9. The Routing Point must be located within the LATA in which the
corresponding NPA-NXX is located. However, Routing Points associated with each
NPA-NXX need not be the same as the corresponding Rate Center, nor must there be
a unique and separate Routing Point corresponding to each unique and separate
Rate Center; provided only that the Routing Point associated with a given
NPA-NXX must be located in the same LATA as the Rate Center associated with the
NPA-NXX.
1.57 "Service Control Point" or "SCP" means a component of the signaling
network that acts as a database to provide information to another component of
the signaling network (i.e., Service Switching Point or another SCP) for
processing or routing certain types of network calls. A query/response mechanism
is typically used in communicating with an SCP.
1.58 "Signaling Transfer Point" or "STP" means a component of the
signaling network that performs message routing functions and provides
information for the routing of messages between signaling network components. An
STP transmits, receives and processes CCIS messages.
1.59 "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 successors or similar Switched Exchange Access
services.
1.60 "Synchronous Optical Network" or "SONET" means an optical interface
standard that allows inter-networking of transmission products from multiple
vendors. The base transmission rate is 51.84 Mbps (OC-1/STS-1) and higher rates
are direct multiples of the base rate.
1.61 "Technically Feasible Point" is As Described in the Act.
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1.62 "Telecommunications" is As Defined in the Act.
1.63 "Telecommunications Act" means the Telecommunications Act of 1996 and
any rules and regulations promulgated thereunder.
1.64 "Telecommunications Carrier" is As Defined in the Act.
1.65 "Telecommunications Service" is As Defined in the Act.
1.66 "Telephone Exchange Service" is As Defined in the Act.
1.67 "Telephone Toll Service" is As Defined in the Act.
1.68 "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
All references to Sections, Exhibits and Schedules shall be deemed to be
references to Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. The headings of the Sections and the terms
defined in Schedule 1.0 are inserted for convenience of reference only and are
not intended to be a part of or to affect the meaning of this Agreement. Unless
the context shall otherwise require, any reference to any agreement, other
instrument (including NYNEX or other third party offerings, guides or
practices), statute, regulation, rule or tariff is to such agreement,
instrument, statute, regulation, rule or tariff as amended and supplemented from
time to time (and, in the case of a statute, regulation, rule or tariff, to any
successor provision).
3.0 SCOPE
This Agreement sets forth the terms and conditions under which NEFC and
NYNEX will interconnect their respective networks to enable NEFC to provide
Telecommunications Services consistent with the rights and obligations set forth
in Section 251 of the Act.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
Subject to the terms and conditions of this Agreement, Interconnection of
the Parties' facilities and equipment pursuant to Section 4.0 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 the State of Maine on Schedule 4.0.
Schedule 4.0 may be revised and supplemented from time to time upon the mutual
agreement of the Parties. Interconnection in the LATA shall be
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accomplished through either (i) a Fiber-Meet as provided in Section 4.2, (ii)
Collocation as provided in Section 12.0, (iii) any other Interconnection method
provided by applicable tariff, law, rule or regulation, or (iv) any other
Interconnection method to which the Parties may agree.
4.1 Scope
Section 4.0 describes the physical architecture for Interconnection of the
Parties' facilities and equipment for the transmission and routing of Local
Traffic and IntraLATA toll traffic pursuant to Section 251(c)(2) of the Act.
Sections 5.0 and 6.0 prescribe the specific logical trunk groups (and traffic
routing parameters) which will be configured over the physical connections
described in this Section 4.0 related to the transmission and routing of
Telephone Exchange Service Traffic and Exchange Access traffic, respectively.
Other trunk groups, as described in this Agreement, may be configured using this
architecture.
4.2 Physical Architecture
For LATA 120 identified on Schedule 4.0, NEFC and NYNEX shall jointly
engineer and operate a diverse Synchronous Optical Network ("SONET")
transmission system by which they shall interconnect their networks pursuant to
the joint network configuration and grooming plan ("Joint Grooming Plan")
specified in Section 8.1, and according to the following minimum specifications:
4.2.1 The Parties shall establish physical Interconnection points at
the locations designated in Schedule 4.0. Interconnection points on NEFC's
network shall be designated as NEFC Interconnection Points ("B-IP");
Interconnection points on the NYNEX network shall be designated as NYNEX
Interconnection Points ("N-IP"). The Parties may by mutual agreement establish
additional Interconnection points at any Technically Feasible Point consistent
with Act.
4.2.2 Unless otherwise mutually agreed, the SONET transmission
system in the LATA shall be pursuant to the Joint Grooming Plan. Each Party
shall be responsible for procuring, installing and maintaining the agreed-upon
Optical Line Terminating Multiplexor ("OLTM") equipment, fiber optic facilities
and other equipment as agreed pursuant to the Joint Grooming Plan.
4.2.3 Unless otherwise mutually agreed, the physical interface of
NEFC's and NYNEX's facilities necessary to effect the SONET transmission system
shall be at the optical level via a Fiber-Meet or other comparable means.
4.3 Initial Interim Architecture
4.3.1 The Parties agree to allow interim alternatives to the
architecture described in Section 4.2, utilizing electrical hand-offs, provided
the Parties mutually
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develop and agree on a plan to fully transition to an arrangement reflective of
Section 4.2 in that LATA within one hundred and eighty (180) days following the
Interconnection Activation Date listed for that LATA in Schedule 4.0.
4.4 Technical Specifications
4.4.1 NEFC and NYNEX shall work cooperatively to install and
maintain a reliable network. NEFC and NYNEX 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.
4.4.2 NEFC and NYNEX shall work cooperatively to apply sound network
management principles by invoking network management controls to alleviate or to
prevent congestion.
4.4.3 The publication "Bellcore Technical Publication GR-342-CORE;
High Capacity Digital Special Access Service, Transmission Parameter Limits and
Interface Combinations" describes the practices, procedures, specifications and
interfaces generally utilized by NYNEX and is referenced herein to assist the
Parties in meeting their respective Interconnection responsibilities related to
electrical/optical interfaces.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
Section 5.0 prescribes parameters for trunk groups (the "Traffic Exchange
Trunks") to be effected over the Interconnections specified in Section 4.0 for
the transmission and routing of Local Traffic and IntraLATA Toll Traffic between
the Parties' respective Telephone Exchange Service Customers and where such
traffic is not presubscribed for carriage by a third party carrier nor carried
by a third party carrier as casual dialed (10XXX and 101XXXX) traffic.
5.2 Switching System Hierarchy
5.2.1 For purposes of this Section 5.0, each of the following
Central Office Switches shall be designated as a "Primary Switch":
(a) Each Access Tandem NYNEX operates in the LATA;
(b) The initial switch NEFC employs to provide Telephone Exchange
Service in the LATA;
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(c) Any Access Tandem NEFC may establish for provision of Exchange
Access in the LATA;
(d) Any additional switch NEFC may subsequently employ to provide
Telephone Exchange Service in the LATA which NEFC may at its
sole option designate as a Primary Switch; provided that the
total number of NEFC Primary Switches for a LATA may not
exceed the total number of NYNEX Primary Switches for that
LATA. To the extent NEFC chooses to designate any additional
switch as a Primary Switch, it shall provide notice to NYNEX
of such designation at least ninety (90) days in advance of
the date on which NEFC activates such switch as a Primary
Switch; and
(e) Any additional tandem switch NYNEX may subsequently employ to
provide access and/or sector traffic capacity within a LATA.
Traffic destined to sub-tending Secondary Switches routed via
such a tandem(s) would be determined by network requirements
and notice made available to all LECs at least one
hundred-eighty (180) days prior to service introduction.
5.2.2 Each Central Office Switch operated by the Parties which is
not designated as a Primary Switch pursuant to Section 5.2.1 shall be designated
as a "Secondary Switch".
5.2.3 For purposes of NEFC routing traffic to NYNEX, sub-tending
arrangements between NYNEX Primary Switches and NYNEX Secondary Switches shall
be the same as the Access Tandem/End Office sub-tending arrangements which NYNEX
maintains for those switches. For purposes of NYNEX routing traffic to NEFC,
subtending arrangements between NEFC Primary Switches and NEFC Secondary
Switches shall be the same as the Access Tandem/End Office sub-tending
arrangements which NEFC maintains for those switches.
5.3 Trunk Group Architecture and Traffic Routing
The Parties shall jointly engineer and configure Traffic Exchange Trunks
over the physical Interconnection arrangements for the transport and termination
of Telephone Exchange Service Traffic, as follows:
5.3.1 The Parties shall initially configure a separate two-way trunk
group, and operate as one-way or two-way as mutually agreed to by both Parties,
as a direct transmission path between each NEFC Primary Switch and each NYNEX
Primary Switch.
5.3.2 Notwithstanding anything to the contrary in this Section 5.0,
if the two- way traffic volumes between any two Central Office Switches (whether
Primary-
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Primary, Primary-Secondary or Secondary-Secondary) at any time exceeds the CCS
busy hour equivalent of one DS-1, the Parties shall within sixty (60) days after
such occurrence add trunks or establish new direct trunk groups consistent with
the grades of service and quality parameters set forth in the Joint Grooming
Plan addressed in Section 8.0.
5.3.3 NYNEX and NEFC will allow each other to route their intrastate
and interstate switched access service traffic over the Traffic Exchange Trunk
Groups, pursuant to the rates, terms and conditions specified in each Party's
effective intrastate and interstate access tariffs or at generally available and
prevailing rates, terms and conditions.
5.4 Signaling
5.4.1 Where available, CCIS signaling shall be used by the Parties
to set up calls between the Parties' Telephone Exchange Service networks. If
CCIS signaling is unavailable, MF (Multi-Frequency) signaling shall be used by
the Parties. In the interim, each Party shall charge the other Party equal and
reciprocal rates for CCIS signaling in accordance with applicable tariffs. In
the event NEFC does not have an effective tariff rate, it shall charge NYNEX at
the tariffed NYNEX rate. During the term of this Agreement neither Party shall
charge the other Party additional usage-sensitive rates for SS7 queries (TCAP
and ISUP) made for Local Traffic interchanged between the Parties.
5.4.2 The publication "Bellcore Special Report SR-TSV-002275, BOC
Notes on the LEC Networks - Signaling" describes the practices, procedures and
specifications generally utilized by NYNEX for signaling purposes and is
referenced herein to assist the Parties in meeting their respective
Interconnection responsibilities related to signaling.
5.4.3 The Parties will cooperate on the exchange of Transactional
Capabilities Application Part ("TCAP") messages to facilitate interoperability
of CCIS-based features between their respective networks, including all CLASS
features and functions, to the extent each Party offers such features and
functions to its Customers. All CCIS signaling parameters will be provided
including, calling party number ("CPN"), originating line information ("OLI"),
calling party category and charge number.
5.4.4 Upon request, each Party shall provide trunk groups where
available that are configured utilizing the B8ZS ESF protocol for 64 Kbps clear
channel transmission to allow for ISDN interoperability between the Parties'
respective networks.
5.5 Grades of Service
The Parties shall initially engineer and shall jointly monitor and enhance
all trunk groups consistent with the Joint Grooming Plan.
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5.6 Measurement and Billing
5.6.1 For billing purposes, each Party shall pass calling party
number information on each call carried over the Local/IntraLATA Trunks;
provided that so long as the percentage of calls passed with CPN is greater than
ninety percent (90%), all calls exchanged without CPN information shall be
billed as either Local Traffic or IntraLATA Toll Traffic in direct proportion to
the minutes of use of calls exchanged with CPN information.
5.6.2 Measurement of billing minutes (except for originating 800/888
calls) shall be in actual conversation seconds. Measurement of billing minutes
for originating 800/888 calls shall be in accordance with applicable tariffs.
5.6.3 Where CPN is not available in a LATA for greater than ten
percent (10%) of the traffic, the party sending the traffic shall provide
factors to determine the jurisdiction, as well as local vs. toll distinction, of
the traffic. Such factors shall be supported by call record details that will be
made available for review upon request. Where parties are passing CPN but the
receiving party is not properly receiving or recording the information, the
Parties shall cooperatively work to correctly identify the traffic, and
establish a mutually agreeable mechanism that will prevent improperly rated
traffic. Notwithstanding this, if any improperly rated traffic occurs, the
Parties agree to reconcile it.
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5).
5.7.1 Reciprocal Compensation only applies to the transport and
termination of Local Traffic billable by NYNEX or NEFC which a Telephone
Exchange Service Customer originates on NYNEX's or NEFC's network for
termination on the other Party's network except as provided in Section 5.7.6
below.
5.7.2 The Parties shall compensate each other for transport and
termination of Local Traffic in an equal and symmetrical manner at the rate
provided in the Pricing Schedule. This rate is to be applied at the B-IP for
traffic delivered by NYNEX, and at the N-IP for traffic delivered by NEFC. No
additional charges, including Port or transport charges, shall apply for the
termination of Local Traffic delivered to the B-IP or the N-IP. When Local
Traffic is terminated over the same trunks as IntraLATA or InterLATA toll, any
Port or transport or other applicable access charges related to the toll traffic
shall be prorated to be applied only to the toll traffic.
5.7.3 The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access Service or to any other
IntraLATA calls originated on a third Party carrier's network on a 1+
presubscribed basis or a casual dialed (10XXX or 101XXX) basis. All Switched
Exchange Access Service and all IntraLATA Toll Traffic shall continue to be
governed by the terms and conditions of the applicable federal and state
tariffs.
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5.7.4 Each Party shall charge the other Party its effective
applicable tariffed IntraLATA switched access rates for the transport and
termination of all IntraLATA Toll Traffic.
5.7.5 The Parties agree to interconnect their respective frame relay
networks where facilities are available. Each Party will charge the other the
rates specified in the Pricing Schedule for Network-to-Network Interfaces
("NNI") in those instances where the Parties are interconnecting for the
purposes of terminating Telephone Exchange Service Traffic. NYNEX will charge
NEFC the same rates charged to other similarly situated local exchange carriers
for frame relay-to-frame relay network.
5.7.6 The rates for termination of Local Traffic are set forth in
the Pricing Schedule which is incorporated by reference herein.
5.7.7 Compensation for transport and termination of all traffic
which has been subject to performance of INP by one Party for the other Party
pursuant to Section 13.0 shall be as specified in Section 13.6.
5.7.8 When either Party delivers seven (7) or ten (10) digit
translated IntraLATA 800/888 service to the other Party for termination, the
originating party shall provide the terminating Party with billing records in
industry standard format (EMR) if required by the terminating Party. The
originating Party may bill the terminating Party for the delivery of the traffic
at local Reciprocal Compensation rates. The terminating Party may not bill the
originating Party Reciprocal Compensation under this Agreement. The Party that
is providing the 800/888 service shall pay the database inquiry charge per the
Pricing Schedule to the Party that performed the database inquiry.
5.8 Municipal Calling Service
The Parties shall work cooperatively to facilitate each Party's public
service obligations as required by the PUC to provide its end user customers
with toll free Municipal Calling Service ("MCS"). Such cooperation shall include
the sharing of certain account and toll free municipal ("TFM") codes on a daily
or other mutually agreeable basis and working with other industry participants
to satisfactorily resolve MCS related measurement and billing issues associated
with implementation of IntraLATA presubscription.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO SECTION
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
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for the transmission and routing of Exchange Access traffic between NEFC's
Telephone Exchange Service Customers and Interexchange Carriers ("IXCs").
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 The Parties shall jointly establish Access Toll Connecting
Trunks by which they will jointly provide tandem-transported Switched Exchange
Access Services to Interexchange Carriers to enable such Interexchange Carriers
to originate and terminate traffic from/to NEFC's Customers.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Exchange Access to allow NEFC's Customers to connect
to or be connected to the interexchange trunks of any Interexchange Carrier
which is connected to an NYNEX Access Tandem.
6.2.3 The Access Toll Connecting Trunks shall be two-way trunks, and
operated as one-way or two-way as mutually agreed to by both Parties, connecting
an End Office Switch NEFC utilizes to provide Telephone Exchange Service and
Switched Exchange Access in a given LATA to an Access Tandem Switch NYNEX
utilizes to provide Exchange Access in such LATA.
6.3 Meet-Point Billing Arrangements
6.3.1 Meet-Point Billing arrangements between the Parties for
jointly-provided Switched Exchange Access Services on Access Toll Connecting
Trunks will be governed by the terms and conditions of a mutually agreeable
arrangement, in accordance with Ordering and Billing Forum Guidelines, which the
Parties will cooperatively work to develop.
6.3.2 Until and unless changed by the FCC on a going forward basis,
NEFC shall retain one hundred percent (100%) of the Residual Interconnection
Charge in instances in which NEFC provides the End Office switching.
6.3.3 For Meet-Point billing, NEFC's End Office switch (i.e.,
Routing Point) shall subtend the NYNEX Access Tandem nearest to such Routing
Point, as measured in airline miles utilizing the V&H coordinate method.
Alternative configurations will be discussed as part of the Joint Grooming Plan
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Services Traffic
The Parties agree that NEFC may elect when technically feasible either a
bundled or an unbundled billing arrangement applicable either to Mass Service
Announcements or applicable to variable rated information services.
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7.1.1 Bundled IP Billing Arrangement:
7.1.1.1 Routing and Provisioning
Each Party shall route Information Service Traffic which originates on its
own network to the appropriate information services platform(s) connected to the
other Party's network. Where the NEFC uses its own network facilities, the NEFC
will establish a direct trunk group to the NYNEX information services tandem
switch. This trunk group will be utilized to allow the NEFC to route Information
Service Traffic originated on its network to NYNEX. Where NYNEX routing plans
permit a combination of POTS and IP traffic on such direct trunk groups, the
NEFC may route a combination of POTS and IP traffic without establishing a
separate direct trunk group exclusively for IP data. However, where NYNEX
requires direct trunks dedicated to IP traffic, the NEFC must establish direct,
dedicated trunking for its IP traffic. Such determinations will be at the sole
discretion of NYNEX, on a par with its established routing requirements in each
LATA, and are subject to change.
Where NEFC utilizes the NYNEX network through the purchase of unbundled network
elements, Information Service Traffic may be routed over NYNEX information
service trunks on a shared basis.
7.1.1.2 Information Mass Announcement Services
a) For Information Mass Announcement Service, the Party
('Originating Party') on whose network the Information Services Traffic
originated shall bill and collect such Information Provider charges and remit an
amount equal to such charges to the Party ('Terminating Party') to whose
information platform the Information Service Traffic terminated less the
Information Service Billing and Collection fee set forth in the Pricing
Schedule. The Terminating Party may bill the Originating Party for such charges.
The Originating Party shall pay the Terminating party in full regardless of
uncollectible items. This shall apply whether the originating party uses its own
network or utilizes the other party's network through the purchase of unbundled
network elements.
b) Upon written request, the Party (Originating Party) on whose
network the Information Service Traffic originated shall provide via electronic
file transfer or magnetic tape or other means as available all recorded call
detail information to the Party (Terminating Party) to whose information
platform the Information Service Traffic terminated, at the standard price for
record transmission. This data shall be in unrated EMR format per OBF/Bellcore
guidelines.
7.1.1.3 Variable Rated Information Services
a) The Party (Originating Party) on whose network the Information
Service Traffic originated shall provide via electronic file transfer or
magnetic tape or
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other means as available all recorded call detail information to the Party
(Terminating Party) to whose information platform the Information Service
Traffic terminated, at the standard price for record transmission. This data
shall be in unrated EMR format per OBF/Bellcore guidelines. This shall apply
whether the originating party uses its own network or utilizes the other party's
network through the purchase of unbundled network elements.
b) The Terminating Party shall provide to the Originating Party via
electronic file transfer or magnetic tape or other means as available all
necessary information to bill the Information Service Traffic to the Originating
Party's Customers pursuant to the Terminating Party's agreements with each
Information Provider, at the standard price for record transmission. Information
shall be provided in as timely a fashion as practical in order to facilitate
record review and reflect actual prices set by the individual Information
Providers. This data will consist of the EMR records previously delivered by the
Originating Party, returned to the Originating Party in rated format where
possible, or with appropriate indicators populated on error messages. No Billing
and Collection fees will be applied to error messages. No taxes will be
calculated or paid on the Originating Party's traffic.
c) The Originating Party shall bill and collect such Information
Provider charges and remit the amounts collected to the Terminating Party less:
(1) The Information Services Billing and Collection fees set
forth on the Pricing Schedule; and
(2) Customer adjustments provided by the Originating Party.
Adjustments are made for subscriber-priced traffic only.
d) The Terminating Party shall calculate these charges and bill them
to the Originating Party for remittance.
e) The Originating Party shall provide to the Terminating Party
sufficient information regarding uncollectibles and customer adjustments. The
Terminating Party shall pass through the adjustments to the Information
Provider. However, if the Information Provider disputes such adjustments and
refuses to accept such adjustments, the Originating Party shall reimburse the
Terminating Party for all such disputed adjustments. Final resolution regarding
all disputed adjustments shall be solely between the Originating Party and the
Information Provider.
7.1.1.4 Blocking
Nothing in this Agreement shall restrict either Party from offering
to its Exchange Service Customers the ability to block the completion of
Information Service Traffic, whether Information Mass Announcement Services or
Variable Rated Information Services.
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7.1.1.5 Billing and Usage Specifications
The Parties shall adopt an Information Provider Usage and Billing
Specification Agreement prior to implementation of this billing arrangement.
With the mutual consent of both Parties, the Information Provider Usage and
Billing Specification Agreement may be modified in the future.
7.1.2 Unbundled IP Billing Arrangement:
This section describes a cooperative billing arrangement to support
Interconnection to network services for recorded information programs. These are
`pay-per-call' audiotex programs in which a vendor contracts with the local
exchange carrier to provide recorded announcement information or open discussion
programs to the general public. In specific LATA's in the NYNEX region, NYNEX
reserves exchanges 976, 550, 540, 970 and 940 for its Information Services
Provider customers offering the services addressed in the following paragraphs:
7.1.2.1 Routing and Provisioning
Each Party shall route Information Service Traffic which originates
on its own network to the appropriate information services platform(s) connected
to the other Party's network. Where the NEFC uses its own network facilities,
the NEFC will establish a direct trunk group to the NYNEX information services
tandem switch. This trunk group will be utilized to allow the NEFC to route
Information Service Traffic originated on its network to NYNEX. Where NYNEX
routing plans permit a combination of POTS and IP traffic on such direct trunk
groups, the NEFC may route a combination of POTS and IP traffic without
establishing a separate direct trunk group exclusively for IP data. However,
where NYNEX requires direct trunks dedicated to IP traffic, the NEFC must
establish direct, dedicated trunking for its IP traffic. Such determinations
will be at the sole discretion of NYNEX, on a par with its established routing
requirements in each LATA, and are subject to change.
Where NEFC utilizes the NYNEX network through the purchase of unbundled network
elements, Information Service Traffic may be routed over NYNEX information
service trunks on a shared basis.
7.1.2.2 Information Mass Announcement Services
a) For Information Mass Announcement Service, the Party
('Originating Party') on whose network the Information Services Traffic
originated shall bill and collect such Information Provider charges and remit an
amount equal to such charges to the Party ('Terminating Party') to whose
information platform the Information Service Traffic terminated less the
Information Service Billing and Collection fee set forth in the Pricing
Schedule. The Terminating Party may bill the Originating Party for such charges.
The
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Originating Party shall pay the Terminating party in full regardless of
uncollectible items. This shall apply whether the originating party uses its own
network or utilizes the other party's network through the purchase of unbundled
network elements.
b) Upon written request, the Party (Originating Party) on whose
network the Information Service Traffic originated shall provide via electronic
file transfer or magnetic tape or other means as available all recorded call
detail information to the Party (Terminating Party) to whose information
platform the Information Service Traffic terminated, at the standard price for
record transmission. This data shall be in unrated EMR format per OBF/Bellcore
guidelines.
7.1.2.3 Variable Rated Information Services
a) The Terminating Party shall charge the originating Party $.03 per
minute of use for transport and switching. These charges shall be calculated by
the Terminating Company and billed to the Originating Company. These charges
shall apply whether the Originating Party uses its own network or utilizes the
other party's network through the purchase of unbundled network elements. End
user customer adjustments shall not apply to these charges.
b) Upon request from the Originating Party, the Terminating Party
shall make available its Rating Service at a charge of $.03 per message plus a
$15,000 non-recurring charge. Under Rating Service, the Originating Party shall
provide to the Terminating Party via electronic file transfer or magnetic tape
or other means as available recorded call detail information in unrated EMR
format per OBF/Bellcore guidelines; the Terminating Party shall rate such calls
placed by the Originating Party's Customers and terminating to Information
Provider services contracted with the Terminating Party, according to the rates
established by such Information Providers. The Terminating Party shall then
return the call records to the Originating Party, in rated format where
possible, or with appropriate indicators populated on error messages. The Rating
Service fee will be applied to all messages. In addition to the charges for
Rating Service, standard charges will be made by the Terminating Party for the
transmission and delivery of such records and files. The Terminating Party will
not bill and collect for such rated calls. The Terminating Party will not
calculate or pay taxes for such rated calls.
c) Alternatively, at the originating Party's option, it may purchase
a rating table from the Terminating Party at the rate set forth in the Pricing
Schedule.
d) The Originating Party is responsible for all payments due the
Information Providers to whose programs that Party's Customer places calls, and
other obligations and relationships with such Information Providers.
e) Resolution regarding all customer adjustments shall be solely
between the Originating Party and the Information Provider.
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7.1.2.4 Blocking
Nothing in this Agreement shall restrict either Party from offering
to its Exchange Service Customers the ability to block the completion of
Information Service Traffic, whether Information Mass Announcement Services or
Variable Rated Information Services.
7.1.2.5 Billing and Usage Specifications
The Parties shall adopt an Information Provider Usage and Billing
Specification Agreement prior to implementation of this billing arrangement.
With the mutual consent of both Parties, the Information Provider Usage and
Billing Specification Agreement may be modified in the future.
7.2 Tandem Transit Service ("Transit Service")
7.2.1 "Transit Service" means the delivery of certain traffic
between NEFC and a LEC by NYNEX over the Local/IntraLATA/InterLATA Trunks. The
following traffic types will be delivered: (i) Local or Intralata Toll Traffic
originated from NEFC to such LEC and (ii) Local Traffic or IntraLATA Toll
Traffic originated from such LEC and terminated to NEFC where NYNEX carries such
traffic.
7.2.2 Subject to Section 7.2.4, the Parties shall compensate each
other for Transit Service as follows:
(a) NEFC shall pay NYNEX for Local Traffic NEFC originated over
the Transit Service at the rate specified in the Pricing
Schedule plus any additional charges or costs such terminating
LEC imposes or levies on NYNEX for the delivery or termination
of such traffic, including any switched access charges;
(b) NYNEX shall pay NEFC for Local, InterLATA, or IntraLATA Toll
Traffic terminated to NEFC from such LEC at the appropriate
Reciprocal Compensation rates described in Section 5.7,
InterLATA access rates, or (where NYNEX delivers such traffic
pursuant to the PUC's primary toll carrier plan or other
similar plan) at NEFC's applicable switched access rates or
local termination rate, whichever is appropriate.
7.2.3 While the Parties agree that it is the responsibility of a LEC
to enter into arrangements to deliver Local Traffic to NEFC, they acknowledge
that such arrangements are not currently in place and an interim arrangement is
necessary to ensure traffic completion. Accordingly, until the earlier of (i)
the date on which either Party has entered into an arrangement with such LEC to
deliver Local Traffic to NEFC or (ii) one-hundred and eighty (180) days after
the Interconnection Activation Date, NYNEX will
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deliver and NEFC will terminate Local Traffic originated from such LEC without
charge to one another.
7.2.4 NYNEX expects that all networks involved in transit traffic
will deliver each call to each involved network with CCIS and the appropriate
Transactional Capabilities Application Part ("TCAP") message to facilitate full
interoperability of those services supported by NYNEX as noted in Section 1.12
and billing functions. In all cases, NEFC is responsible to follow the Exchange
Message Record ("EMR") standard and exchange records with both NYNEX and the
terminating LEC to facilitate the billing process to the originating network.
7.2.5 NYNEX agrees that it shall make available to NEFC, at NEFC's
sole option, any Tandem Transit arrangement NYNEX offers to another
Telecommunications Carrier at the same rates, terms, and conditions provided to
such other Telecommunications carrier, at the rates, terms and conditions set
forth in its applicable tariffs, or as provided by law, rule or regulation.
7.3 Dedicated Transit Service
7.3.1 "Dedicated Transit Service" provides for the dedicated
connection between a NEFC Collocation arrangement established pursuant to
applicable tariffs and/or license agreements at a NYNEX premises and a
Collocation arrangement of a third party carrier that maintains a Collocation
arrangement at the same premises. Dedicated Transit Service shall be provided
using a Cross-Connection (dedicated connection) using suitable NYNEX-provided
cable or transmission facilities or any other mutually agreed upon arrangement.
7.3.2 The carrier that requests the Dedicated Transit Service shall
be the customer of record for both ends of the service in terms of ordering,
provisioning, maintenance, and billing. Alternative arrangements may be utilized
if agreed upon by all three Parties.
7.3.3 NYNEX agrees that it shall make available to NEFC, at NEFC's
sole option, any Dedicated Transit arrangement NYNEX offers to another
Telecommunications Carrier at the same rates, terms, and conditions provided to
such other Telecommunications carrier, at the rates, terms and conditions set
forth in its applicable tariffs, or as provided by law, rule or regulation.
7.4 911/E911 Arrangement
7.4.1 NYNEX will provide NEFC a list consisting of each municipality
in NYNEX's service territory that subscribes to Basic 911 Service. The list will
contain a 10-digit directory number representing the appropriate emergency
answering position for each municipality subscribed to Basic 911 Service.
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7.4.2 NEFC shall arrange to accept 911 calls from its customers in
municipalities that subscribe to Basic 911 Service. NEFC shall translate the 911
call to the appropriate 10-digit directory number from the list provided by
NYNEX and then route that call to NYNEX at the appropriate tandem or end office
over the same trunk group(s) that other local traffic is sent.
7.4.3 NYNEX and NEFC shall comply with all applicable state laws and
rules governing the provision of 911 or E911 service. The Parties agree to work
cooperatively with the state to implement an E911 system in a competitively
neutral manner.
8.0 JOINT NETWORK CONFIGURATION AND GROOMING PLAN; AND INSTALLATION,
MAINTENANCE, TESTING AND REPAIR.
8.1 Joint Network Configuration and Grooming Plan. On or before January 1,
1998, NEFC and NYNEX shall jointly develop a grooming plan (the "Joint Grooming
Plan") which shall define and detail, inter alia,
(a) agreement on Physical Architecture consistent with the guidelines
defined in Section 4.0;
(b) standards to ensure that Interconnection trunk groups experience a
grade of service, availability and quality which is comparable to
that achieved on interoffice trunks within NYNEX's network and in
accord with all appropriate relevant industry-accepted quality,
reliability and availability standards;
(c) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of the trunk groups,
including but not limited to standards and procedures for
notification and discoveries of trunk disconnects;
(d) disaster recovery provision escalations; and
(e) expediting orders;
(f) such other matters as the Parties may agree.
The Initial mutual interconnection is not dependent upon completion of the
Grooming Plan.
8.2 Installation, Maintenance, Testing and Repair. NYNEX's standard
intervals as set forth in Schedule 8.2 attached will be utilized in connection
with the establishment of all Interconnection trunking arrangements between the
Parties. NEFC shall meet the same intervals for comparable installations,
maintenance, joint testing, and
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repair of its facilities and services associated with or used in conjunction
with Interconnection or shall notify NYNEX of its inability to do so and will
negotiate such intervals in good faith.
8.3 Network Reliability Council. The Parties will carefully review the
Network Reliability Council's recommendations and, as part of the Joint Grooming
Plan, implement them where technically and economically feasible.
9.0 UNBUNDLED ACCESS -- SECTION 251(c)(3)
Pursuant to Section 251 (c)(3), NYNEX shall provide nondiscriminatory
access to Network Elements on an Unbundled basis at any technically feasible
point on rates, terms and conditions that are just, reasonable and
nondiscriminatory in accordance with the terms and conditions of this Agreement
and Section 252 of the Act.
9.1 Local Link Transmission Types
Subject to Section 9.5, NYNEX shall allow NEFC to access the following
Link types unbundled from local switching and local transport in accordance with
the terms and conditions set forth in this Section 9.
9.1.1 "2-Wire Switched Analog Voice Grade Links" or "Analog 2W"
("SVGAL") which support analog transmission of 300-3000 Hz, repeat link start,
link reverse battery, or ground start seizure and disconnect in one direction
(toward the End Office Switch), and repeat ringing in the other direction
(toward the Customer). Analog 2W include Links sufficient for the provision of
PBX trunks, pay telephone lines and electronic key system lines.
9.1.2 "4-Wire Switched Analog Voice Grade Links" or "Analog 4W"
("SVGALs") which support transmission of voice grade signals using separate
transmit and receive paths and terminate in a 4-wire electrical interface.
9.1.3 "2-Wire ISDN Digital Grade Links" or "BRI ISDN" (Premium Link)
which support digital transmission of two 64 Kbps bearer channels and one 16
Kbps data channel. BRI ISDN is a 2B+D Basic Rate Interface-Integrated Services
Digital Network (BRI-ISDN) Link which will meet national ISDN standards and
conform to ANSI T1.601-1992 & T1E1.4 90-004R3.
9.1.4 DS-1 Digital Grade Link provides a channel which provides
1.544 Mbps digital transmission path between a Customer premises and a NYNEX
central office, and is capable of operating in a full duplex, time division
(digital) multiplexing mode. A DS-1 Digital Grade Link provides transmission
capacity equivalent to 24 voice grade channels with associated signaling,
twenty-four 56 Kbps digital channels when in band signaling is provided or
twenty-four 64 Kbps channels with the selection of the Clear Channel signaling
option.
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9.1.5 Extended Link service is a channel which enables NEFC when it
is physically collocated in a given NYNEX central office to access unbundled
links served from another NYNEX central office. Extended Link service is a
designed service (similar to special access and private line services) which
requires detailed engineering to assure that the service provided conforms to
specific transmission performance standards unique to the specific service e.g.,
voice grade DS0, DS1 and DS3.
9.1.6 Links will be offered on the terms and conditions specified
herein and on such other terms in applicable tariffs that are not inconsistent
with the terms and conditions set forth herein. NYNEX shall make Links available
to NEFC at the rates specified in the Pricing Schedule, as amended from time to
time, subject to the provisions of Section 9.9 or as subsequently determined by
the PUC.
9.2 ADSL AND HDSL
9.2.1 The Parties acknowledge that ADSL is not currently deployed
for use in the NYNEX network. If the issues surrounding deployment of ADSL in
NYNEX's network are satisfactorily resolved and ADSL is deployed, NYNEX shall
allow NEFC access ADSL Links unbundled from local switching and local transport
in accordance with the terms and conditions set forth in this Section 9.0.
9.2.2 "2-Wire ADSL-Compatible Link" or "ADSL 2W" is a transmission
path that facilitates the transmission of up to a 6 Mbps digital signal
downstream (toward the Customer) and up to a 640 Kbps digital signal upstream
(away from the Customer) while simultaneously carrying an analog voice signal.
An ADSL-2W is provided over a 2-Wire non-loaded twisted copper pair provisioned
using revised resistance design guidelines and meeting ANSI Standard
T1.413-1995-007R2. An ADSL-2W terminates 2-wire electrical interface at the
Customer premises and at the NYNEX Central Office frame. ADSL technology can
only be deployed over Links which extend less than 18 Kft. From NYNEX's Central
Office. ADSL compatible Links will only be made available where existing copper
facilities can meet the ANSI T1.413-1995-007R2 specifications.
9.2.3 "2-Wire HDSL-Compatible Link" or "HDSL 2W" is a transmission
path that facilitates the transmission of a 768 Kbps digital signal over a
2-Wire non-loaded twisted copper pair meeting the specifications in ANSI T1E1
Committee Technical Report Number 28 / T1E1.4/92-002R3. HDSL compatible Links
will only be made available where existing copper facilities can meet the T1E1
Technical Report Number 28 specifications.
9.2.4 "4-Wire HDSL-Compatible Link" or "HDSL 4W" is a transmission
path that facilitates the transmission of a 1.544 Mbps digital signal over two
2-Wire non-loaded twisted copper pairs meeting the specifications in ANSI T1E1
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Committee Technical Report Number 28. HDSL compatible Links will only be made
available where existing copper facilities can meet the specifications.
9.2.5 HDSL and ADSL compatible links will be offered on the terms
and conditions specified herein and on such other terms in applicable tariffs
that are not inconsistent with the terms and conditions set forth herein. NYNEX
shall make such links available to NEFC at rates approved by the PUC, as amended
from time to time.
9.3 Local Switching
NEFC may purchase unbundled local switching from NYNEX, in accordance with
the terms and conditions of and at the rates specified in the Pricing Schedule,
or subject to the rates, terms and conditions contained in any applicable NYNEX
tariff or any statement of generally available terms and conditions filed with
the PUC.
9.4 Local Transport
NEFC may purchase unbundled local transport from NYNEX, in accordance with
the terms and conditions of and at the rates specified in the Pricing Schedule,
or subject to the rates, terms and conditions contained in any applicable NYNEX
tariff or any statement of generally available terms and conditions filed with
the PUC.
9.5 Limitations on Unbundled Access
9.5.1 Unless otherwise allowed by the FCC or PUC, NEFC may not
cross-connect a NYNEX-provided Link to a NYNEX- provided Port but instead shall
purchase a network access line under applicable tariffs.
9.5.2 NYNEX shall only be required to provide Links and Ports where
such Links and Ports are available.
9.5.3 NEFC shall access NYNEX's unbundled Network Elements
specifically identified in this Agreement via Collocation in accordance with
Section 12 at the NYNEX Wire Center where those elements exist and each Link or
Port shall be delivered to NEFC's Collocation node by means of a Cross
Connection which in the case of Links, is included in the rates set forth in the
Pricing Schedule, or via such other alternative Interconnection arrangement(s)
as the Parties may mutually agree, or FCC rules, the Act or PUC rules may
otherwise require.
9.5.4 NYNEX shall provide NEFC access to its unbundled Links at each
of NYNEX's Wire Centers. In addition, if NEFC's requests one or more Links
serviced by Integrated Digital Link Carrier or Remote Switching technology
deployed as a Link concentrator, NYNEX shall, where available, move the
requested Link(s) to a spare, existing physical Link at no charge to NEFC. If,
however, no spare physical Link is available, NYNEX shall within three (3)
business days of NEFC's request notify NEFC
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of the lack of available facilities. NEFC may then at its discretion make a
Network Element Bona Fide Request to NYNEX to provide the unbundled Link through
the demultiplexing of the integrated digitized Link(s). NEFC may also make a
Network Element Bona Fide Request for access to unbundled Links at the Link
concentration site point. Notwithstanding anything to the contrary in this
Agreement, the provisioning intervals set forth in Section 9.7 and the
Performance Interval Dates and Performance Criteria set forth in Section 27.0
shall not apply to unbundled Links provided under this Section 9.5.4.
9.5.5 If NEFC orders a Link type and the distance requested on such
Link exceeds the transmission characteristics as referenced in the corresponding
Technical Reference specified below, distance extensions may be required and
additional rates and charges shall apply as set forth on the Pricing Schedule.
Link Type Technical Reference/Limitation
Electronic Key Line 2.5 miles
ISDN Bellcore TA-NWT-000393
HDSL 2W T1E1 Technical Report Number 28
HDSL 4W T1E1 Technical Report Number 28
ADSL 2W ANSI T1.413-1995 Specification
9.6 Availability of Other Network Elements on an Unbundled Basis
9.6.1 NYNEX shall, upon request of NEFC, at any Technically Feasible
Point provide to NEFC access to its Network Elements on an unbundled basis for
the provision of NEFC's Telecommunications Service. Any request by NEFC for
access to a NYNEX Network Element that is not already available shall be treated
as a Network Element Bona Fide Request. NEFC shall provide NYNEX access to its
Network Elements as mutually agreed by the Parties or as required by the Act,
PUC or FCC.
9.6.2 NYNEX shall provide Network Elements to NEFC under this
Section 9.6 to permit NEFC to provide Telecommunications Services, subject to
the requirements of Sections 251 (c) (3) and (d) (2) (A) and applicable FCC
and/or PUC rules.
9.7 Provisioning of Unbundled Links
The following coordination procedures shall apply for new unbundled Links
and the conversions of "live" Telephone Exchange Services to unbundled Links
(herein after referred to as "hot cuts"):
9.7.1 NEFC shall request unbundled Links from NYNEX by delivering to
NYNEX a valid electronic transmittal Service Order using the NYNEX electronic
ordering platform (as cooperatively designed and implemented to meet the minimum
requirements for information exchange needed to order and provision services to
certified
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local exchange carriers and enhanced to support industry standards as developed
for interconnection services) or another mutually agreed upon system. Within two
(2) business days of NYNEX's receipt of a Service Order, NYNEX shall provide
NEFC the firm order commitment ("FOC") date according to the applicable
Performance Standards set forth in Schedule 27.0 by which the Link(s) covered by
such Service Order will be installed.
9.7.2 NYNEX agrees to respond to NEFC's Service Orders on a
non-discriminatory basis consistent with the manner in which it provides service
to its own retail customers or any other Telecommunications Carrier.
9.7.3 NYNEX agrees to accept from NEFC at the time the service
request is submitted for scheduled conversion of hot cut unbundled link orders,
a desired date and time (the "Scheduled Conversion Time") in the "A.M." (12:01
a.m. to 12:00 noon) or "P.M." (12:01 p.m. to 12:00 midnight) (as applicable, the
"Conversion Window") for the hot cut.
9.7.4 NYNEX shall test for NEFC dial tone at the POT bay by testing
through the tie cable provisioned between the NYNEX main distributing frame and
the NEFC expanded interconnection node forty-eight (48) hours prior to the
Scheduled Conversion Time.
9.7.5 Not less than one hour prior to the Scheduled Conversion Time,
either Party may contact the other Party and unilaterally designate a new
Scheduled Conversion Time (the "New Conversion Time"). If the New Conversion
Time is within the Conversion Window, no charges shall be assessed on or waived
by either Party. If, however, the New Conversion Time is outside of the
Conversion Window, the Party requesting such New Conversion Time shall be
subject to the following:
If NYNEX requests the New Conversion Time, the applicable Service
Order Charge shall be waived; and
If NEFC requests the New Conversion Time, NEFC shall be assessed a
Line Connection Charge in addition to the Service Order Charge that
will be incurred for the New Conversion Time.
9.7.6 Except as otherwise agreed by the Parties for a specific
conversion, such as large cutovers of ten lines or more that have negotiated
intervals, the Parties agree that the time interval expected from disconnection
of NYNEX's "live" Telephone Exchange Service to the connection of an unbundled
Network Element at the NEFC Collocation node's POT Bay will be accomplished
within a window of time as detailed following: Between the effective date of
this Agreement and 9/30/97 ninety (90) minutes; from 10/1/97 through the end of
this agreement sixty (60) minutes or less. If a conversion interval exceeds
sixty (60) minutes and such delay is caused solely by NYNEX (and not by a
contributing Delaying Event (as defined in Section 27.4)),
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NYNEX shall waive the applicable Service Order Charge for such element. If NEFC
has ordered INP with the installation of a Link, NYNEX will coordinate the
implementation of INP with the Link conversion during with the above stated
intervals at no additional charge.
9.7.7 If either Party requests or approves the other Party's NYNEX
technician to perform services in excess of or not otherwise contemplated by the
Service Order charge either Party may charge the other Party for any additional
and reasonable labor charges to perform such services.
9.7.8 If as the result of end user actions, (e.g., Customer not
ready ["CNR"]), NYNEX cannot complete requested work activity when a technician
has been dispatched to the site NEFC will be assessed a non-recurring charge
associated with this visit. This charge will be the sum of the Service Order
Charge and Premises Visit Charge as specified in Tariff P.U.C. - Me - No. 17
Part M, Section 1.3.2..
9.7.9 Until such time as the PUC approves an unbundled network
element non-recurring Service Order Charge, an interim non-recurring service
order charge shall apply on a per order basis. The interim service order rate
shall equal the Service and Equipment Charge to install a business network
access line, as specified in Tariff P.U.C. - Me - No. 17 Part M, Section 1.5.2.
9.8 Maintenance of Unbundled Network Elements
If (i) NEFC reports to NYNEX a Customer trouble, (ii) NEFC requests a
dispatch, (iii) NYNEX dispatches a technician to a central office or to an end
user's premises, and (iv) such trouble was not caused by NYNEX's facilities or
equipment in whole or in part, then NEFC shall pay NYNEX a charge of $86.53, on
an interim basis subject to true-up based on the comparable cost-based charge as
approved by the PUC. In addition this charge also applies when the end user
contact as designated by NEFC is not available at the appointed time. NEFC
accepts responsibility for initial trouble isolation and providing NYNEX with
appropriate dispatch information based on their test results. NYNEX agrees to
respond to NEFC trouble reports on a non-discriminatory basis consistent with
the manner in which it provides service to its own retail customers or any other
Telecommunications Carrier.
9.9 True-Up of Monthly Unbundled Link Charges for Maine
9.9.1 NYNEX and NEFC agree to provide true-ups to one another for
all links purchased in Maine by NEFC through the end of the initial term of this
Agreement up to:
a) the date of the Initial Link Rate Decision, as defined in
Section 9.9.3; and for
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b) the date of the Final Link Rate Decision, as defined in
Section 9.9.4.
9.9.2 "Current Monthly Rates" are as set forth in the Pricing
Schedule.
9.9.2.1 Notwithstanding the foregoing paragraph 9.9.2, nothing
in this Agreement shall be construed to imply that NEFC agrees that the rate set
forth in Section 9.9.2 is a reasonable or appropriate charge for unbundled
Links.
9.9.3 "Initial Link Rate Decision" is any decision of the PUC
establishing any interim monthly link rates which is issued subsequent to the
date of the execution of this Agreement and before the expiration of the initial
term of this Agreement.
9.9.4 "Final Link Rate Decision" represents the lower of any of the
following which occur during the initial term of this Agreement:
a) a decision of the PUC establishing permanent monthly
link rates which is issued subsequent to either the date
of this Agreement or the Initial Link Rate Decision as
modified by any rulings by the FCC or appeals ruled upon
in any federal or state court of competent jurisdiction,
b) any rate established through arbitration between NYNEX
and a third party that is approved by a ruling of the
PUC, the FCC or any federal or state court of competent
jurisdiction.
c) the most favorable negotiated Link rate agreed to by
NYNEX and a third party in Maine.
9.9.5 "Initial Link Months" represents the cumulative sum of total
links in service to NEFC each month for the period beginning on the effective
date of this Agreement and ending at the date of the Initial Link Rate Decision.
For example, if 10 links are in service each month for 5 months, the number of
Link Months would equal 50.
9.9.6 "Final Link Months" represents the cumulative sum of total
links in service to NEFC each month for the period beginning on the effective
date of this Agreement and ending at the date of the Final Link Rate Decision.
9.9.7 "Initial Per-Link True-up" represents the difference between
the Current Monthly Rate and the rate established under the Initial Link Rate
Decision.
9.9.8 "Final Per-Link True-up" represents the difference between the
rate established under any Initial Link Rate Decision and the Final Link Rate
Decision; or the
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difference between the Current Monthly Rate and the Final Link Rate Decision
absent any Initial Link Rate Decision.
9.9.9 "Initial True-up Amount" is the product amount calculated by
multiplying Initial Link Months by the Initial Per-Link True-up.
9.9.10 "Final True-up Amount" is the product amount calculated by
multiplying Link Months by the Final Per-Link True-up.
9.9.11 NYNEX agrees to pay NEFC and NEFC agrees to pay NYNEX the
Initial True-up Amount as applicable within thirty (30) days of the Initial Link
Rate Decision.
9.9.12 NYNEX agrees to pay NEFC and NEFC agrees to pay NYNEX the
Final True-up Amount as applicable within thirty (30) days of any Final Link
Decision.
9.9.13 NEFC and NYNEX will track the number of Link Months on a
prospective basis up until payment of the Final True-up Amount.
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
10.1 Availability of Wholesale Rates for Resale
NYNEX shall offer to NEFC for resale at wholesale rates its local exchange
telecommunications services, as described in Section 251(c)(4) of the Act, at
the rates set forth in the Pricing Schedule, pending approval by the PUC of
permanent resale rates. NYNEX shall make such resale arrangements available to
NEFC as soon as it makes such resale service generally available in the State of
Maine.
10.2 Availability of Retail Rates for Resale
Each Party shall make available its Telecommunications Services for resale
at retail rates to the other Party in accordance with Section 251(b)(1) of the
Act in accordance with each Party's applicable approved tariffs.
10.3 Term and Volume Discounts
Upon request, NYNEX agrees to offer term and volume discounts for resold
retail services.
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11.0 NOTICE OF CHANGES -- SECTION 251(c)(5)
If a Party makes a change in its network which it believes will materially
affect the inter-operability 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.
12.0 COLLOCATION -- SECTION 251(c)(6)
12.1 Upon request, NYNEX shall provide to NEFC Physical Collocation for
its transport facilities and equipment, pursuant to the terms and conditions of
NYNEX's applicable tariffs on file with the FCC and the PUC as necessary for
Interconnection (pursuant to Section 4.0) or for access to unbundled Network
Elements (pursuant to Section 9.0). NYNEX may provide for Virtual Collocation if
NYNEX demonstrates to the PUC that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. Upon request by NEFC and to the extent technically
feasible and as space permits, NYNEX shall provide Collocation at additional
locations for placement of such equipment and alternative physical Collocation
arrangements. Collocation shall be provided in accordance with the timetable
ordered by the PUC in Docket No. 96-510 for Issue 35(F), or as otherwise
mutually agreed by the parties.
12.2 NEFC agrees to provide to NYNEX upon NYNEX's Network Element Bona
Fide Request, Collocation of equipment for purposes of Interconnection (pursuant
to Section 4.0) on a non-discriminatory basis and at comparable rates, terms and
conditions as NEFC may provide to other common carriers. NEFC shall provide such
Collocation subject to applicable tariffs or contracts.
12.3 The Collocating Party shall provide its own or third-party leased
transport facilities and terminate those transport facilities in equipment
located in its Physical Collocation space at the Housing Party's premises as
described in applicable tariffs or contracts and purchase Cross Connection to
services or facilities as described in applicable tariffs or contracts.
12.4 NEFC may install any equipment allowed by law, including Remote
Switching Modules ("RSMs"), inside Collocation spaces unless and until the FCC
determines that incumbent LECs need not permit Collocation of such equipment, or
until the Maine arbitration decision on which this clause is based is reversed
or overruled, in which event NYNEX must allow NEFC a reasonable transition
period for removing, replacing or modifying such equipment, or for otherwise
negotiating a mutually satisfactory alternative arrangement with NYNEX.
12.5 To the extent not specified in this Agreement, the rates, terms and
conditions governing Collocation shall be those contained in applicable NYNEX
tariffs, NYNEX's standard Collocation license agreement, or (at the option of
NEFC) the
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Collocation portion of an approved Maine Interconnection agreement between NYNEX
and another carrier.
13.0 NUMBER PORTABILITY -- SECTION 251(b)(2)
13.1 Scope
13.1.1 The Parties shall provide Number Portability on a reciprocal
basis to each other to the extent technically feasible, and in accordance with
rules and regulations as from time to time prescribed by the FCC and/or the PUC.
13.1.2 Until Number Portability is implemented by the industry
pursuant to regulations issued by the FCC or the PUC, the Parties agree to
provide Interim Telecommunications Number Portability ("INP") to each other
through remote call forwarding, Route Indexing, and full NXX code migration at
the prices listed in the Pricing Schedule.
13.1.3 Once Number Portability is implemented pursuant to FCC or PUC
regulation, either Party may withdraw, at any time and at its sole discretion,
its INP offerings, subject to advance notice to the other Party and coordination
to allow the seamless and transparent conversion of INP Customer numbers to
Number Portability. Upon implementation of Number Portability pursuant to FCC
regulation, both Parties agree to conform and provide such Number Portability.
13.2 Procedures for Providing INP Through Remote Call Forwarding
NEFC and NYNEX will provide INP through Remote Call Forwarding as follows:
13.2.1 A Customer of one Party ("Party A") elects to become a
Customer of the other Party ("Party B"). The Customer elects to utilize the
original telephone number(s) corresponding to the Exchange Service(s) it
previously received from Party A, in conjunction with the Exchange Service(s) it
will now receive from Party B. Upon receipt of a signed letter of agency from
the Customer (and an associated service order) assigning the number to Party B,
Party A will implement an arrangement whereby all calls to the original
telephone number(s) will be forwarded to a new telephone number(s) designated by
Party B. Party A will route the forwarded traffic to Party B over the
appropriate Local/IntraLATA Trunks as if the call had originated on Party A's
network.
13.2.2 Party B will become the customer of record for the original
Party A telephone numbers subject to the INP arrangements. Party A shall use its
reasonable efforts to consolidate into as few billing statements as possible all
collect, calling card, and 3rd-number billed calls associated with those
numbers, with sub-account detail by retained number. At Party B's sole
discretion, such billing statement shall be delivered to
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Party B in an agreed-upon format via either electronic file transfer, daily
magnetic tape, or monthly magnetic tape.
13.2.3 Party A will update its Line Information Database ("LIDB")
listings for retained numbers, and restrict or cancel calling cards associated
with those forwarded numbers as directed by Party B.
13.2.4 Within two (2) business days of receiving notification from
the Customer, Party B shall notify Party A of the Customer's termination of
service with Party B, and shall further notify Party A as to that Customer's
instructions regarding its telephone number(s). Party A will reinstate service
to that Customer, cancel the INP arrangements for that Customer's telephone
number(s), or redirect the INP arrangement to another INP-participating-LEC
pursuant to the Customer's instructions at that time.
13.3 Procedures for Providing INP Through Route Indexing
Upon mutual agreement, NYNEX will deploy a Route Index arrangement as
mutually agreed upon, which combines direct trunks, provisioned between NYNEX's
and NEFC's End Offices, with trunk side routing translations and full SS7
functionality. Under this arrangement, inbound calls to a ported number will be
pointed at a route index that sends the call to a dedicated trunk group, built
as a direct final, for the sole purpose of facilitating completion of calls to a
ported number. NYNEX will coordinate with NEFC to provide this solution in a
mutually agreeable and administratively manageable manner (e.g., NXX level) so
as to minimize switch resource utilization for both Parties.
13.4 Procedures for Providing INP Through Full NXX Code Migration
Where either Party has activated an entire NXX for a single Customer, or
activated a substantial portion of an NXX for a single Customer with the
remaining numbers in that NXX either reserved for future use or otherwise
unused, if such Customer 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 be
accomplished with appropriate coordination between the Parties and subject to
appropriate industry lead-times for movements of NXXs from one switch to
another.
13.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers
The Parties agree that under INP terminating compensation on calls to
INP'ed numbers should be received by each Customer's chosen LEC as if each call
to the Customer had been originally addressed by the caller to a telephone
number bearing an NPA-NXX directly assigned to the Customer's chosen LEC. In
order to accomplish this objective where INP is employed, the Parties shall
utilize the process set forth in this Section 13.5 whereby terminating
compensation on calls subject to INP will be passed
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from the Party (the "Performing Party") which performs the INP to the other
Party (the "Receiving Party") for whose Customer the INP is provided.
13.5.1 The Parties shall individually and collectively track and
quantify INP traffic between their networks based on the CPN of each call by
identifying CPNs which are INP'ed numbers. The Receiving Party shall charge the
Performing Party for each minute of INP traffic at the INP Traffic Rate
specified in Section 13.6.3 in lieu of any other compensation charges for
terminating such traffic.
13.5.2 By the Interconnection Activation Date, the Parties shall
jointly estimate for the prospective year, based on historic data of all traffic
in the LATA, the percentages of such traffic that if dialed to telephone numbers
bearing NPA-NXXs directly assigned to a Receiving Party (as opposed to the
INP'ed number) would have been subject to (i) Local Traffic exchanged between
the Parties ("Local Reciprocal Traffic"), (ii) IntraLATA Toll Traffic exchanged
between the Parties ("IntraLATA Toll Reciprocal Traffic", iii) appropriate
Intrastate FGD charges ("Intra Traffic"), (iv) Interstate FGD charges ("Inter
Traffic"), or (v) handling as Local Traffic under transiting arrangements
between the Parties ("Transit Traffic"). On the date which is six (6) months
after the Interconnection Activation Date, and thereafter on each succeeding six
month anniversary of such Interconnection Activation Date, the Parties shall
establish new INP traffic percentages to be applied in the prospective six (6)
month period, based on actual INP traffic percentages from the preceding six (6)
month period.
13.5.3 The INP Traffic Rate shall be equal to the sum of:
(Local Reciprocal Traffic percentage times the Local Reciprocal
Compensation Rate set forth in the Pricing Schedule) plus (IntraLATA
Toll Reciprocal Traffic percentage times NYNEX's effective
intrastate FGD rates, less rates for tandem switching and transport
functions performed by the Performing Party) plus (Interstate
IntraLATA Traffic percentage times NYNEX's effective interstate FGD
rates, less rates for tandem switching and transport functions
performed by the Performing Party).
A rate of zero shall be applied to the Transit Traffic percentage.
13.6 True-up of Monthly INP Costs
13.6.1 Until such time as a competitively neutral cost recovery
mechanism is implemented pursuant to a PUC or FCC order ("the Interim Recovery
Period"), the Parties shall track and record the cumulative sum of ported
numbers provided via an INP functionality to each other each month for the
purpose of calculating an INP true-up amount that the Party providing an INP
functionality may then be entitled to bill and receive under such PUC or FCC
order. The true-up amount shall equal the sum of the ported number provided to
the Party receiving the INP functionality,
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multiplied by the number of months applicable to each ported number during the
Interim Recovery Period, multiplied by the Final INP Rate set by the PUC or FCC.
13.6.2 In the event the PUC or FCC establishes a competitively
neutral cost recovery mechanism which allows recovery of amounts for the
provision of INP functionalities different from those amounts listed for such
functionalities in the Pricing Schedule, the Parties shall adopt such different
amounts in accordance with such competitively neutral cost recovery mechanism.
Should the FCC or PUC adopt a competitively neutral cost recovery mechanism for
INP which differs from that stipulated to by the Parties herein the Parties
shall adopt such a mechanism pursuant to said order in lieu of the payment
arrangements outlined in this Section 13.0.
14.0 NUMBER RESOURCES ASSIGNMENTS
NYNEX shall assign to NEFC NXX codes in accordance with national
guidelines at no charge.
15.0 DIALING PARITY -- SECTION 251(b)(3)
NYNEX shall provide Local Dialing Parity as required under Section
251(b)(3) of the Act in the following manner: Telephone numbers are provided
pursuant to Section 14.0; Directory Assistance is provided pursuant to Section
19.2; Directory Listings are provided pursuant to section 19.1; and Operator
Services are provided to Sections 19.2.4 and 19.2.6.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
Each Party shall provide the other Party access to its poles, ducts,
rights-of-way and conduits it owns or controls, to the extent permitted by law
and as required by Section 224 of the Act or PUC Order, on terms, conditions and
prices comparable to those offered to any other entity pursuant to each Party's
applicable tariffs and/or standard agreements with such entities.
17.0 DATABASES AND SIGNALING
NYNEX shall provide NEFC with interfaces to access NYNEX's databases,
including LIDB and 800/888, as well as DCAS for ordering and provisioning
purposes, and associated signaling necessary for the routing and completion of
NEFC's traffic through the provision of SS7 under its applicable tariffs.
18.0 REFERRAL ANNOUNCEMENT
When a Customer changes its service provider from NYNEX to NEFC, or from
NEFC to NYNEX, and does not retain its original telephone number, the Party
formerly providing service to such Customer shall provide a referral
announcement ("Referral
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Announcement") on the abandoned telephone number which provides details on the
Customer's new number. Referral Announcements shall be provided reciprocally,
free of charge to either the other Party or the Customer, for a period of not
less than four (4) months after the date the Customer changes its telephone
number in the case of business Customers and not less than sixty (60) days after
the date the Customer changes its telephone number in the case of residential
Customers. However, if either Party provides Referral Announcements for a period
different than the above respective periods when its Customers change their
telephone numbers, such Party shall provide the same level of service to
Customers of the other Party.
19.0 DIRECTORY SERVICES ARRANGEMENTS
NYNEX will provide certain directory services to NEFC as defined herein.
In this Section 19 of this Agreement, references to NEFC Customer telephone
numbers means telephone numbers falling within NXX codes directly assigned to
NEFC and to numbers which are retained by NEFC on the Customer's behalf pursuant
to Interim Telecommunications Number Portability arrangements described in
Section 13 of this Agreement.
19.1 Directory Listings and Directory Distributions
19.1.1 NYNEX will include NEFC Customers telephone numbers in all of
its "White Pages" and "Yellow Pages" directory listings (including electronic
directories) and directory assistance databases associated with the areas in
which NEFC provides services to such Customers, and will distribute such
directories to such Customers, in an identical and transparent manner in which
it provides those functions for its own Customers' telephone numbers.
19.1.2 NYNEX will include all NEFC NXX codes on appropriate existing
calling charts in the NYNEX Customer Guide section of the directory in the same
manner as it provides this information for its own NXX codes.
19.1.3 NEFC will provide NYNEX with its directory listings and daily
updates to those listings (including new, changed, and deleted listings) in a
mutually agreed upon format at no charge.
19.1.4 NYNEX will accord NEFC directory listing information the same
level of confidentiality which NYNEX accords its own directory listing
information.
19.1.5 NYNEX shall provide NEFC at no charge with (i) one basic
single line white and yellow page directory listing per business Customer
number, or one basic single line white page directory listing per residence
Customer number, (ii) directory distribution for NEFC Customers, and (iii)
listings of NEFC Customers in the directory assistance database.
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19.1.6 NYNEX will provide NEFC with a report of all NEFC customer
listings ninety (90) days prior to directory publication in such form and format
as may be mutually agreed to by both Parties. Both Parties shall use their best
efforts to ensure the accurate listing of such information.
19.1.7 Yellow Page Maintenance
NYNEX will work cooperatively with NEFC so that Yellow Page
advertisements purchased by Customers who switch their service to NEFC
(including customers utilizing Interim Telecommunications Number Portability)
are maintained without interruption. NYNEX will allow NEFC customers to purchase
new yellow pages advertisements without discrimination, under the identical
rates, terms and conditions that apply to NYNEX's Customers.
19.1.8 Information Pages
NYNEX will include in the "Information Pages" or comparable section
of its White Pages Directories for areas served by NEFC, listings provided by
NEFC for NEFC's installation, repair and Customer service, information,
including appropriate identifying logo. Such listings shall appear in the manner
that such information appears for subscribers of NYNEX and other LECs. NYNEX
shall not charge NEFC for inclusion of this information.
19.2 Directory Assistance ("DA") and Operator Services
19.2.1 NYNEX will provide NEFC's operators an on-line access to
NYNEX's directory assistance database, when and where such access becomes
available to organizations outside NYNEX.
19.2.2 At NEFC's option, NYNEX will provide NEFC with intraLATA,
NYNEX-branded directory assistance service, or NEFC-branded directory assistance
and Directory Assistance Call Completion (DACC), which are comparable to the
directory assistance service NYNEX makes available to its own end users, at the
prices set forth in the Pricing Schedule.
19.2.3 When NYNEX provides to NEFC DA or Operator Services, NYNEX
requires that such services will be provided to NEFC over dedicated operator
services trunk groups, utilizing Feature Group C-Type modified Operator Services
Signaling when interconnecting to the NYNEX operator services network.
19.2.4 NEFC (or its operator service provider) and NYNEX will
provide LEC-to-LEC Busy Line Verification and Interrupt (BLV/I) trunks to one
another, in conjunction with POTS traffic, to enable each party to support this
functionality. (This option is provisioned subject to technical limitations,
such as those that apply on ported numbers).
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19.2.5 Busy Line Verification ("BLV") is performed when one Party's
Customer requests assistance from the operator bureau to determine if the called
line is in use. However, the operator bureau will not complete the call for the
Customer initiating the BLV inquiry. Only one BLV attempt will be made per
Customer operator bureau call, and a charge shall apply whether or not the
called party releases the line.
19.2.6 Busy Line Verification and Interrupt ("BLVI") is performed
when one Party's operator bureau interrupts a telephone call in progress after
BLV has occurred. The operator bureau will interrupt the busy line and inform
the called party that there is a call waiting. The operator bureau will only
interrupt the call and will not complete the telephone call of the Customer
initiating the BLVI request. The operator bureau will make only one BLVI attempt
per Customer operator bureau call and the applicable charge applies whether or
not the called party releases the line.
19.2.7 Each Party's operator bureau shall accept BLV and BLVI
inquiries from the operator bureau of the other Party in order to allow
transparent provision of BLV/BLVI Traffic between the Parties' networks.
19.2.8 Each Party shall route BLV/BLVI Traffic inquiries over the
existing network established between the Parties' respective operator bureaus.
Each Party shall compensate the other Party for BLV/BLVI Traffic as set forth in
the Pricing Schedule.
19.2.9 NYNEX will provide operator services call completion to
NEFC's operators and Customers, upon NEFC's request, for the termination of
alternate billed calls from NEFC's subscribers. Call completion services will
allow NEFC Customers the ability, through the mechanized NYNEX operator
interface or the NYNEX operator, to complete calls via 0+ or 0- dialing with
alternate billing capabilities. Billing for the calls will be on a flat rate per
call transaction for 0+ calls or per Operator Work Second on 0- calls. NYNEX
will provide call detail records in EMR format for the call completion services
at a charge set forth in the Pricing Schedule.
20.0 GENERAL RESPONSIBILITIES OF THE PARTIES
20.1 Both NYNEX and NEFC shall use their best efforts to comply with the
Implementation Schedule.
20.2 The Parties shall exchange technical descriptions and forecasts of
their Interconnection and traffic requirements in sufficient detail necessary to
establish the Interconnections required to assure traffic completion to and from
all Customers in their respective designated service areas. NEFC, for the
purpose of ubiquitous connectivity, network diversity and alternate routing,
shall connect to at least one Tandem Office Switch for the receipt/completion of
traffic to any NYNEX End Office Switches.
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20.3 Thirty (30) days after the Effective Date and each quarter during the
term of this Agreement, each Party shall provide the other Party with a rolling,
six (6) calendar month, non-binding forecast of its traffic and volume
requirements for the services and Network Elements provided under this Agreement
in the form and in such detail as agreed by the Parties. Notwithstanding Section
29.6.1, the Parties agree that each forecast provided under this Section 20.3
shall be deemed "Proprietary Information" under Section 29.6.
20.4 Any Party that is required pursuant to this Agreement to provide a
forecast (the "Forecast Provider") or the Party that is entitled pursuant to
this Agreement to receive a forecast (the "Forecast Recipient") with respect to
traffic and volume requirements for the services and Network Elements provided
under this Agreement may request in addition to non-binding forecasts required
by Section 20.3 that the other Party enter into negotiations to establish a
forecast (a "Binding Forecast") that commits such Forecast Provider to purchase,
and such Forecast Recipient to provide, a specified volume to be utilized as set
forth in such Binding Forecast. The Forecast Provider and Forecast Recipient
shall negotiate the terms of such Binding Forecast in good faith and shall
include in such Binding Forecast provisions regarding price, quantity, liability
for failure to perform under a Binding Forecast and any other terms desired by
such Forecast Provider and Forecast Recipient. Notwithstanding Section 29.6.1,
the Parties agree that each forecast provided under this Section 20.4 shall be
deemed "Proprietary Information" under Section 29.6.
20.5 Each Party is individually responsible to provide facilities within
its network which 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 NYNEX's
network and to terminate the traffic it receives in that standard format to the
proper address on its network. Such facility shall be designed based upon the
description and forecasts provided under Sections 20.2 and 20.3 above. 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.
20.6 Neither Party shall use any service related to or any of the Services
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
Customers, and either Party may discontinue or refuse service if the other Party
violates this provision. Upon such violation, either Party shall provide the
other Party notice, if practicable, at the earliest practicable time.
20.7 Each Party is solely responsible for the services it provides to its
Customers and to other Telecommunications Carriers.
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20.8 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.
20.9 Each Party is responsible for administering NXX codes assigned to it.
20.10 Each Party is responsible for obtaining Local Exchange Routing Guide
("LERG") listings of CLLI codes assigned to its switches.
20.11 Each Party shall use the LERG published by Bellcore or its successor
for obtaining routing information and shall provide all required information to
Bellcore for maintaining the LERG in a timely manner.
20.12 Each Party shall program and update its own Central Office Switches
and End Office Switches and network systems to recognize and route traffic to
and from the other Party's assigned NXX codes. Except as mutually agreed or as
otherwise expressly defined in this Agreement, neither Party shall impose any
fees or charges on the other Party for such activities.
20.13 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).
20.14 End User Repair Calls. The Parties will employ the following
procedures for handling misdirected repair calls:
20.14.1 In answering 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 to market services.
Either Party will respond with factual information in answering customer
questions.
20.14.2 Each Party will notify its customers as to the correct
telephone numbers to call in order to access its repair bureaus.
20.14.3 To the extent possible, where the correct local exchange
carrier can be determined, misdirected repair calls to one Party will be
immediately referred to the other Party, as appropriate in a courteous manner,
at no charge.
20.14.4 The Parties will provide their respective repair contact
numbers to one another on a reciprocal basis.
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21.0 TERM AND TERMINATION
21.1 The initial term of this Agreement shall be three (3) years (the
"Term") which shall commence on the Effective Date. 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 intends 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 as set forth before.
21.1.1 If pursuant to Section 21.1 the Agreement continues in full force
and effect after the expiration of the Term, either Party may terminate the
Agreement ninety (90) days after delivering written notice to the other Party of
the intention to terminate this Agreement. Neither Party shall have any
liability to the other Party for termination of this Agreement pursuant to this
Section 21.1 other than to pay to the other Party any amounts owed under this
Agreement.
21.2 Upon termination or expiration of this Agreement in accordance with
this Section 21.0:
(a) each Party shall comply immediately with its obligations set
forth in Section 29.6.3;
(b) each Party shall promptly pay all amounts (including any late
payment charges) owed under this Agreement;
(c) each Party's indemnification obligations shall survive
termination or expiration of this Agreement; and
(d) each Party shall continue to perform its obligations and provide
its services described herein until such time as a survivor Agreement
between the Parties is entered into; provided, however, that the Parties
may mutually agree to renegotiate the rates, fees and charges herein to
reflect any costs or expenses associated with the transfer, renewal or
termination of this Agreement.
22.0 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.
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23.0 CANCELLATION CHARGES
Except as provided in Sections 9.6.4 and 19.4 and pursuant to a Network
Element Bona Fide Request, or as otherwise provided in any applicable tariff or
contract referenced herein, no cancellation charges shall apply.
24.0 NON-SEVERABILITY
24.1 The services, arrangements, Interconnection, Network Elements, terms
and conditions of this Agreement were mutually negotiated by the Parties as a
total arrangement and are intended to be non-severable, subject only to Section
29.14 of this Agreement.
24.2 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.
25.0 INDEMNIFICATION
25.1 Each party (the "Indemnifying Party") shall indemnify and hold
harmless the other party ("Indemnified Party") from and against loss, cost,
claim liability, damage, and expense (including reasonable attorney's fees) to
third parties for:
(1) damage to tangible personal property or for personal injury
proximately caused by the negligence or willful misconduct of the
Indemnifying Party, its employees, agents or contractors; and
(2) claims for libel, slander, infringement of copyright arising
from the Indemnifying Party's own communications or the communications of
such Indemnifying Party's Customers transmitted over the Indemnified
Party's facilities; and
(3) claims for infringement of patents arising from combining the
Indemnified Party's facilities or services with, or the using of the
Indemnified Party's services or facilities in connection with, facilities
of the Indemnifying Party.
Notwithstanding this indemnification provision or any other provision in
the Agreement, neither Party, nor its parent, subsidiaries, affiliates, agents,
servants, or employees shall be liable to the other for "Consequential Damages"
as that term is described in Section 26.3 below.
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25.2 The Indemnified Party will notify the Indemnifying Party promptly in
writing of any claims, lawsuits, or demands by third parties for which the
Indemnified Party alleges that the Indemnifying Party is responsible under this
Section, and, if requested by the Indemnifying Party, will tender the defense of
such claim, lawsuit or demand.
(1) In the event the Indemnifying Party does not promptly assume or
diligently pursue the defense of the tendered action, then the Indemnified
Party may proceed to defend or settle said action and the Indemnifying
Party shall hold harmless the Indemnified Party from any loss, cost
liability, damage and expense.
(2) In the event the Party otherwise entitled to indemnification
from the other elects to decline such indemnification, then the Party
making such an election may, at its own expense, assume defense and
settlement of the claim, lawsuit or demand.
(3) The parties will cooperate in every reasonable manner with the
defense or settlement of any claim, demand, or lawsuit.
26.0 LIMITATION OF LIABILITY
26.1 Except for the indemnity obligations under Section 25.0, each Party's
liability to the other Party for any Loss relating to or arising out of any
negligent act or omission in its performance of this Agreement, whether in
contract or tort, shall be limited to the total amount that is or would have
been charged to the other Party by such negligent or breaching Party for the
services or functions not performed or improperly performed.
26.2 Except as otherwise provided in Section 25.0, no Party shall be
liable to the other Party for any Loss, defect or equipment failure caused by
the conduct of the other Party, the other Party's agents, servants, contractors
or others acting in aid or concert with the other Party, except for gross
negligence or willful misconduct.
26.3 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.
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27.0 PERFORMANCE STANDARDS AND REPORTING REQUIREMENTS
27.1 Performance Standards
NYNEX shall provision, install, maintain, repair and monitor all services,
Interconnection facilities, unbundled elements, Collocation elements, and all
other Interconnection arrangements, facilities and services ordered by NEFC, at
the same level of quality which NYNEX provides to itself or any other party.
NYNEX shall provide to NEFC the same level of transmission quality, reliability,
maintenance, repair, installation, and other service characteristics, including
reporting of results, that it provides to any other party, whether pursuant to
written agreement or informal or formal practice. NYNEX shall upon request
provide NEFC with complete information about all such performance arrangements
and understandings. Such information may be provided pursuant to mutually
acceptable confidentiality agreements where the underlying information is
treated as confidential by the NYNEX customer/user, provided that such
confidentiality claims are not applied in such a way as to deny NEFC essential
information concerning the performance standards agreed upon by NYNEX and the
customer/user.
Schedule 27.1 sets forth NYNEX's minimum performance standards for
unbundled link and Interim Number Portability installation and unbundled link
out-of-service repairs. Schedule 27.1 (A) sets forth the service quality
standards that NEFC will meet.
27.2 Reporting Requirements
NYNEX shall provide NEFC, on a quarterly basis, the information listed in
Schedule 27.2. Such information shall be provided not more than thirty (30) days
after the close of a calendar month. NYNEX shall also report its performance
level as stated on Schedule 27.2 that is provided to (1) NEFC; (2) all
Telecommunication Carriers and (3) any NYNEX owned affiliates. NYNEX shall
explain any deviation between the performance provided to NEFC and that provided
to any of these three categories of customers/users, and indicate what steps
shall be taken to eliminate any deficiencies between the service provided to
NEFC and that provided to one or more of these other customers/users. NYNEX
shall also offer to provide to NEFC comparable quality and performance reports
and measurements to those that it provides to any other customers, specifying as
to NEFC's services the same types of information, and at the same intervals,
that it provides to these other customers.
28.0 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be filed with
the PUC and may thereafter be filed with the FCC. Each Party covenants and
agrees to fully support approval of this Agreement by the PUC or the FCC under
Section 252 of the Act subject to: (1) either Party's rights under Section 29.14
of this Agreement; (2) at the
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option of either Party, to avail itself of any rules or requirements adopted by
the PUC or the FCC in implementing the Telecommunications Act of 1996, including
but not limited to the FCC's rulemaking in the Matter of Implementation of the
Local Competition Provisions in the Telecommunications Act of 1996, FCC Docket
No. 96-98, which materially affect the matters covered by this Agreement; and
(3) either Party's right to bring an action in Federal district court pursuant
to Section 252(e)(6) of the Act. In the event either Party elects to avail
itself of any such rules or requirements, the Parties agree to meet and
negotiate in good faith to arrive at mutually acceptable modifications of this
Agreement. The Parties, however, reserve the right to seek regulatory relief and
otherwise seek redress from each other regarding performance and implementation
of this Agreement. In the event the PUC or FCC rejects this Agreement in whole
or in part, the Parties agree to meet and negotiate in good faith to arrive at a
mutually acceptable modification of the rejected portion(s) provided that such
rejected portion(s) shall not affect the validity of the Remainder of this
Agreement.
This Agreement is subject to change, modification or cancellation as may be
required by a regulatory authority or court in the exercise of its lawful
jurisdiction. In the event such a modification or cancellation is required, the
Parties agree to arrive at mutually acceptable modifications or cancellations.
29.0 MISCELLANEOUS
29.1 Authorization.
29.1.1 New England Telephone and Telegraph Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder, subject to necessary
regulatory approval.
29.1.2 NEFC is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder, subject to necessary regulatory approval.
29.2 Compliance. Each Party shall comply with all applicable federal,
state, and local laws, rules, and regulations applicable to its performance
under this Agreement.
29.3 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA"). Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with 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.
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29.4 Independent Contractor. Neither this Agreement, nor any actions taken
by NYNEX or NEFC in compliance with this Agreement, shall be deemed to create an
agency or joint venture relationship between NEFC and NYNEX, or any relationship
other than that of purchaser and seller of services.
Neither this Agreement, nor any actions taken by NYNEX or NEFC in
compliance with this Agreement, shall create a contractual, agency, or any other
type of relationship or third party liability between NYNEX and NEFC's end
users.
29.5 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, 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
(collectively, a "Force Majeure Event").
If any force majeure condition occurs, the Party delayed or unable
to perform shall give immediate notice to the other Party and shall take all
reasonable steps to correct the force majeure condition. During the pendency of
the force majeure, the duties of the Parties under this Agreement affected by
the force majeure condition shall be abated and shall resume without liability
thereafter.
29.6 Confidentiality.
29.6.1 Any information such as specifications, drawings, sketches,
business information, forecasts, models, samples, data, computer programs and
other software and documentation of one Party (a "Disclosing Party") that is
furnished or made available or otherwise disclosed to the other Party or any of
its employees, contractors, agents or Affiliates (its "Representatives" and with
a Party, a "Receiving Party") pursuant to this Agreement ("Proprietary
Information") shall be deemed the property of the Disclosing Party. Proprietary
Information, if written, shall be marked "Confidential" or "Proprietary" or by
other similar notice, and, if oral or visual, shall be confirmed in writing as
confidential by the Disclosing Party to the Receiving Party within ten (10) days
after disclosure. Unless Proprietary Information was previously known by the
Receiving Party free of any obligation to keep it confidential, or has been or
is subsequently made public by an act not attributable to the Receiving Party,
or is explicitly agreed in writing not to be regarded as confidential, it (a)
shall be held in confidence by each Receiving Party; (b) shall be disclosed to
only those persons who have a need for it in connection with the provision of
services required to fulfill this Agreement and shall be used only for such
purposes; and (c) may be used for other purposes only upon such terms and
conditions as may be mutually agreed to in advance of use in writing by the
Parties.
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Notwithstanding the foregoing sentence, a Receiving Party shall be entitled to
disclose or provide Proprietary Information as required by any governmental
authority or applicable law only in accordance with Section 29.6.2.
29.6.2 If any Receiving Party is required by any governmental
authority or by applicable law to disclose any Proprietary Information, then
such 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 29.6 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.
29.6.3 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 and shall use all reasonable efforts, including
instructing its employees and others who have had access to such information, to
keep confidential and not to use any such information, unless such information
is now, or is hereafter disclosed, through no act, omission or fault of such
Party, in any manner making it available to the general public.
29.7 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 PUC, the exclusive
jurisdiction for all such claims shall be with the PUC, and the exclusive remedy
for such claims shall be as provided for by such PUC. In all other respects,
this Agreement shall be governed by the domestic laws of the State of Maine
without reference to conflict of law provisions.
29.8 Taxes. 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 levied against
or upon such purchasing Party (or the providing Party when such providing Party
is permitted to pass along to the purchasing Party such taxes, fees or
surcharges), except for any tax on either Party's corporate existence, status or
income. Whenever possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale tax exemption, the
purchasing 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.
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29.9 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 the State of Maine 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 State of Maine, 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 which consent will not be unreasonably withheld; provided that
either 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 prior 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.
29.10 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.
29.11 Disputed Amounts.
29.11.1 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.
29.11.2 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.
29.11.3 If the Parties are unable to resolve issues related to the
Disputed Amounts within forty-five (45) days, then either Party may file a
complaint with the PUC to resolve such issues or proceed with any other remedy
pursuant to law or equity. If such a filing is made with the PUC by either
Party, the Non-Paying Party shall pay all Disputed Amounts into an interest
bearing escrow account with a third Party escrow agent mutually agreed upon by
the Parties. The PUC may direct payment of any or all funds (including any
accrued interest) plus applicable late fees, to be paid to either Party.
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29.11.4 The Parties agree that all negotiations pursuant to this
Section 29.11 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.
29.12 Notices. Notices given by one Party to the other Party under this
Agreement shall be in writing and shall be (a) delivered personally, (b)
delivered by express delivery service, (c) mailed, certified mail or first class
U.S. mail postage prepaid, return receipt requested or (d) delivered by telecopy
to the following addresses of the Parties:
To NEFC
New England Fiber Communications, L.L.C.
425 Woods Mill Road South
Town and Country, MO 63017
Attn: President
Facsimile: (314) 878-3211
To NYNEX:
NYNEX
1095 Avenue of Americas
40th Floor
New York NY 10036
Attn: Vice President - Wholesale Markets
Facsimile: (212) 597-2585
or to such other address as either Party shall designate by proper notice.
Notices will be deemed given as of the earlier of (i) the date of actual
receipt, (ii) the next business day when notice is sent via express mail or
personal delivery, (iii) three (3) days after mailing in the case of first class
or certified U.S. mail or (iv) on the date set forth on the confirmation in the
case of telecopy.
29.13 Publicity and Use of Trademarks or Service Marks. Neither Party nor
its subcontractors or agents shall use the other Party's trademarks, service
marks, logos or other proprietary trade dress in any advertising, press
releases, publicity matters or other promotional materials without such Party's
prior written consent.
29.14 Section 252(i) Obligations. Consistent with FCC rules, if either
Party enters into an agreement approved by the PUC or FCC pursuant to Section
252 of the Act which provides for the provision in the State of Maine of
arrangements covered in this Agreement to another requesting Telecommunications
Carrier (the "Other Agreement"), including itself or its 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
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Agreement. Provided however, that upon proper notification from NEFC, NYNEX
shall make available without unreasonable delay to NEFC any form of
Interconnection, service, or network element contained in any agreement to which
it is a Party that is approved by any state commission in the NYNEX operating
territory pursuant to Section 252, if such arrangement is technically feasible
in the State of Maine, and will negotiate in good faith with NEFC the rates,
terms, and conditions that will be applicable in the State of Maine.
29.15 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.
29.16 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 of 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.
29.17 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.
29.18 Technology Upgrades. Nothing in this Agreement shall limit NYNEX's
ability to upgrade its network through the incorporation of new equipment, new
software or otherwise. NYNEX shall provide NEFC written notice at least ninety
(90) days prior to the incorporation of any such upgrades in NYNEX's network
which will materially impact NEFC service. NEFC shall be solely responsible for
the cost and effort of accommodating such changes in its own network.
29.19 Alternate Dispute Resolution.
29.19.1 If a dispute arises between NYNEX and NEFC during the term
of the Agreement, the following process, which shall be overseen by the
Commission, shall be followed to resolve such dispute:
a) The Parties shall have an initial thirty (30) day period beginning from
the date on which either Party has provided written notice to the other Party
identifying the
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existence of a dispute and seeking to resolve it, within which to resolve the
dispute themselves, without meditation or arbitration as provided below.
b) If the dispute is not resolved within such thirty (30) day period,
either Party may petition the Commission to request mediation. The period of
meditation shall be sixty (60) days commencing on the date of filing of such
petition for meditation. Such petition shall include a request to the Commission
to choose a mediator within the first ten (10) days of such sixty (60) day
period, and the mediation shall be conducted by a mediator designated by the
Commission. The Parties shall cooperate in good faith with the mediator to
resolve the dispute within such sixty (60) day period. If, at any date following
the forty-fifth (45) day of such sixty (60) day period, the Parties have not
resolved their dispute, the mediator may formally declare a deadlock.
c) Following the earlier to occur of (x) expiration of the sixty (60) day
mediation period without resolution of the dispute between the Parties or (y)
formal declaration of a deadlock by the mediator as contemplated in preceding
paragraph (b), either Party may petition the Commission for arbitration. The
period of arbitration shall be seventy (70) days commencing on the date of
filing of such petition for arbitration. Such petition shall include a request
to the Commission to choose an arbitrator within the first ten (10) days of such
seventy (70) day period, and the arbitration shall be conducted by a arbitrator
designated by the Commission.
29.19.2 In the event that NYNEX and NEFC must enter into the dispute
resolution process described above, both Parties shall share equally the expense
to the Commission of such process. However, if in the Commission's judgment, one
Party's claim is particularly and/or consistently frivolous, then the Commission
may determine that such Party should bear such expense.
29.19.3 In the event that a dispute requires resolution sooner than
provided by the dispute resolution process described above, either party may
seek resolution in any other appropriate forum.
29.20 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,
including without limitation, Sections 22.0, 25.0, 26.0, 29.3, 29.6, 29.11,
29.13 and 29.17.
29.21 Scope of Agreement. This Agreement is intended to describe and
enable specific Interconnection and access to unbundled Network Elements and
compensation arrangements between the Parties. This Agreement does not obligate
either Party to provide arrangements not specifically provided for herein.
29.22 Entire Agreement. The terms contained in this Agreement and any
Schedules, Exhibits, tariffs and other documents or instruments referred to
herein, which are incorporated into this Agreement by this reference, constitute
the entire agreement
51
<PAGE>
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.
29.23 Power and Authority. Each Party has full power and authority to
enter into and perform this Agreement, and the person signing this Agreement on
behalf of each has been properly authorized and empowered to enter into this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this 17th day of July, 1997.
NEW ENGLAND FIBER NYNEX
COMMUNICATIONS, L.L.C.
By: /s/ Richard P. Anthony By: /s/ Jacob J. Goldberg
--------------------------- -----------------------------------
Printed: Richard P. Anthony Printed: Jacob J. Goldberg
Title: President-Eastern Region Title: Vice President-Wholesale Markets
52
<PAGE>
SCHEDULE 1.0
CERTAIN TERMS AS DEFINED IN THE ACT
"Affiliate" means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or the equivalent thereof) of more than ten percent (10%).
"Dialing Parity" means that a person that is not an Affiliate of a LEC is
able to provide Telecommunications Services in such a manner that Customers have
the ability to route automatically, without the use of any access code, their
Telecommunications to the Telecommunications Services provider of the Customer's
designation from among two (2) or more Telecommunications Services providers
(including such LEC).
"Exchange Access" means the offering of access to Telephone Exchange
Services or facilities for the purpose of the origination or termination of
Telephone Toll Services.
"InterLATA Service" means Telecommunications between a point located in a
local access and transport area and a point located outside such area.
"Local Access and Transport Area" or "LATA" means a contiguous geographic
area: (a) established before the date of enactment of the Act by a Bell
operating company such that no Exchange Area includes points within more than
one (1) metropolitan statistical area, consolidated metropolitan statistical
area, or State, except as expressly permitted under the AT&T Consent Decree; or
(b) established or modified by a Bell operating company after such date of
enactment and approved by the FCC.
"Local Exchange Carrier" means any person that is engaged in the provision
of Telephone Exchange Service or Exchange Access. Such term does not include a
person insofar as such person is engaged in the provision of a commercial mobile
service under Section 332(c) of the Act, except to the extent that the FCC finds
that such service should be included in the definition of such term.
"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 and collection or used in the transmission, routing, or other provision
of a Telecommunications Service.
"Number Portability" means the ability of users of telecommunications
services to retain, at the same location, existing telecommunications numbers
without impairment of
<PAGE>
quality, reliability, or convenience when switching from one telecommunications
carrier to another.
"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.
"Telecommunications Carrier" means any provider of Telecommunications
Services, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Communications
Act).
"Telecommunications Service" 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.
"Telephone Exchange Service" means (a) service within a telephone exchange
within a connected system of telephone exchanges within the same exchange area
operated to furnish subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the exchange
service charge, or (b) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
"Telephone Toll Service" means telephone service between stations in
different exchange areas for which there is made a separate charge not included
in contracts with subscribers for exchange service.
2
<PAGE>
SCHEDULE 4.0 Network Interconnection Schedule*
LATA NYNEX N-IP NEFC B-IP ACTIVATION DATE
120 PTLDMEFODSO
PTLDMEFOO3T
PTLDMEF01GT
* Information to be provided by the Parties at a date determined by the
Parties.
<PAGE>
SCHEDULE 8.2 NYNEX Intervals for Installation
Service Order Standard Intervals
Number of Standard Interval
DS1Systems (Business Days)
Establishment of New Trunk Groups
1-10 60
over 10 negotiated
Additions to Existent Trunk Groups
1-4 30
over 4 negotiated
<PAGE>
SCHEDULE 27.1 NYNEX Performance Targets1
ACTIVITY PERFORMANCE TARGETS
1. Unbundled Link Installation
a) New Link Installation:
i) Order for Installation < 10 links 5 business days(1)
No Available Facilities Reappoint installation date
ii)Order for Installation => 10 links
Facilities Confirmation 5 business days(1)
If Available Facilities
< 20 links 10 business days from
Facilities Confirmation
=> 20 links negotiated interval(2)
b) "Hot Cutover" Installation
i) Order for Installation < 10 links 5 businesss days
ii) Order for Installation => 10 links negotiated interval(2)
2. Interim Number Portability Installation
i) Order for Installation < 10 numbers 5 businesss days
ii) Order for Installation => 10 numbers negotiated interval(2)
3. Out-of-Service Repairs Less than 24 hours from
NYNEX's Receipt of
Notification of Out-of-
Service Condition
* Subject to the following percentage limitations:
1st half of Agreement 2nd half of Agreement
Period Period
65% 70%
- ----------
(1) The Parties agree to use a five (5) business day interval. At a future time
mutally agreed to by the Parties, the installation interval will be a SMARTS
CLOCK interval.
(2) NYNEX will provide the same negotiated intervals it provides to any carrier,
Customer or Parties that are similarly situated.
<PAGE>
SCHEDULE 27.1 (A)
NEFC
Service Quality Criteria
1 New Unbundled Link (SVGALS) Orders
1.0 ANI to NEFC number, verification successful from DEMARC by NYNEX field
technician.
1.1 All order information submitted by NEFC is valid (e.g. street address,
end user LCON, floor/unit number, cable pair assignment)
1.2 Customer (end user) available at appointed date.
1.3 Orders completed as submitted without cancellation after FOC
2 Hot Cut Unbundled Link (SVGALS) Orders
2.0 Verifiable NEFC dial tone at POT bay testable by NYNEX through
appropriate tie cable pair as provided by NEFC on the service request.
2.1 Accurate account and end user information submitted on service request
2.3 Accurate SVGAL tie cable and pair assignment provided by NEFC on
service request
2.4 Orders completed as submitted without cancellation after FOC
<PAGE>
PRICING SCHEDULE A
I. Reciprocal Compensation for local traffic shall equal the rate set forth
below. Such rate shall be:
Rate = $.008 per minute
The rate for Reciprocal Compensation is to be adjusted bi-annually based
upon the rates and formula set forth in this Pricing Schedule. The first
adjustment shall occur six (6) months after traffic is exchanged between the
Parties and future adjustments every six months thereafter.
Reciprocal Compensation for IntraLATA Toll traffic shall equal each
Party's effective applicable tariffed IntraLATA switched access rates.
II. Information Services Billing and Collection
Fee = $.05 per message
EMR = $.00415 per record charge
III. Transit Service (Tandem Transit Service)
A. Transit Service
Rate = $.0035 per minute
B. Dedicated Transiting Service
Rate = twice the applicable charge for a collocated channel
termination
IV. Interim Telecommunications Number Portability
A. Monthly Recurring Charges
Rate per Business Number = $2.00
Rate per Residential Number = $1.00
No additional recurring charges shall apply for interim number
portability, including additional per-path, per-port, or usage-related charges,
except for third party and collect calls.
<PAGE>
B. Non-recurring charge
Rate = $20.00 per ported number
Non-recurring charges only apply when interim number portability is
ordered separately from an unbundled link.
V. IntraLATA 800/888
Reciprocal Compensation (refer to I above).
Compensation for records exchanged = $.00415 per record
800 database inquiry = $.003981 per database inquiry
VI. Directory Assistance and Operator Services
(A) Directory Assistance Services
(1) Directory Assistance
Per Request
-----------
Each Request for Information per one telephone
number, with NYNEX branding $0.322250
Each Request for Information per one telephone
number, with NEFC branding $0.322250
Each Request for Information per one telephone
number, without branding $0.268541
Branding surcharge per call (if applicable) $0.053709
(2) Directory Assistance Call
Completion (DACC) #:
Each Request for Information per one telephone
number, with NEFC branding or with NYNEX
branding plus call completion $0.500138
Each Request for Information per one telephone
number, without branding plus call completion $0.446429
DACC Surcharge per call $0.177888
2
<PAGE>
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
Record Charges
EMR format - per record charge $.004150
(4) Direct Access to Directory Assistance (DADA)
Monthly Access Charge $4000
Each Search Request $0.038
Rate
----
(B) Inward Operator Services#
(1) BLV
- Per work second $0.034465
(2) BLV/I
- Per work second $0.034465
(3) Branding surcharge per call
(if applicable) $0.053709
(C) 0+/Mechanized Operator Calls #
(1) Calling Card
- Per request $0.116585
(2) Collect
- Per request $0.131100
(3) Third Number
- Per request $0.131100
(4) Branding surcharge per call
(if applicable) $0.053709
# These rates are in addition to the UTTC, TTSC &
UNRCC or UCRCC charges.
(D) 0- Operator Handled Calls #
(1) Per work second $0.013043
(2) Branding surcharge per call
(if applicable) $0.053709
3
<PAGE>
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC
charges.
(E) Operator Emergency Bulletin Service
- Per State Bulletin, per year $17.80
Recurring Non-recurring
--------- -------------
(F) TOPS Trunk Ports $14.53 $147.87
Service Access Charge
-Per TOPS Port $1.81 N/A
(G) IOF mileage for Dedicated
Trunk Transport $126.35 $470.98
Mileage Charge, per mile
per month $0.73
Peak Off-Peak
---- --------
Digital Trunk Port Usage / Shared
- per MOU $0.001965 $0.000436
Peak Off-Peak
---- --------
Unbundled Local Switching
- per MOU $0.008689 $0.004565
Unbundled Tandem Transport (UTTC)
- per MOU $.001780 $.000400
Tandem Transit Switching (TTSC)
- per MOU $0.008642 $0.002702
NYNEX Reciprocal Compensation (UNRCC)
- per MOU $0.010654 $0.005001
NEFC Reciprocal Compensation (UCRCC)
- per MOU $0.010654 $0.005001
VII. UNBUNDLED NETWORK ELEMENT
NYNEX
ELEMENT ZONE PRICE
- ------- ---- -----
2W ANALOG LINK URBAN $12.67
SUBURBAN $15.59
4
<PAGE>
RURAL $23.00
STATEWIDE $17.53
4W ANALOG LINK URBAN $38.31
SUBURBAN $43.17
RURAL $72.54
STATEWIDE $52.46
2W LINK CONDITIONED URBAN $28.66
FOR DIGITAL SUBURBAN $29.37
RURAL $70.38
STATEWIDE $43.79
4W LINK CONDITIONED URBAN $148.20
FOR DIGITAL SUBURBAN $157.42
RURAL $392.52
STATEWIDE $238.84
NETWORK INTERFACE URBAN $0.72 (See NoteA)
DEVICE SUBURBAN $0.72
2W ANALOG LINK RURAL $0.72
STATEWIDE $0.72
NETWORK INTERFACE URBAN $0.86
DEVICE SUBURBAN $0.86
4W ANALOG LINK RURAL $0.86
STATEWIDE $0.86
NETWORK INTERFACE URBAN $0.72
DEVICE SUBURBAN $0.72
2W LINK CONDITIONED RURAL $0.72
FOR DIGITAL STATEWIDE $0.72
NETWORK INTERFACE URBAN $0.86
DEVICE SUBURBAN $0.86
4W LINK CONDITIONED RURAL $0.86
FOR DIGITAL STATEWIDE $0.86
LOCAL SWITCHING URBAN $2.24
ANALOG PORT SUBURBAN $2.07
RURAL $1.82
LOCAL SWITCHING URBAN $3.08
DIGITAL PORT SUBURBAN $2.87
RURAL $2.68
5
<PAGE>
LOCAL SWITCHING URBAN $26.55
ISDN-BRI PORT SUBURBAN $30.84
RURAL $29.11
LOCAL SWITCHING URBAN $6.96
DIGITAL TRUNK PORT SUBURBAN $6.77
RURAL $7.35
LOCAL SWITCHING URBAN $412.80
ISDN-PRI PORT SUBURBAN $371.84
RURAL $371.84
LOCAL SWITCHING URBAN $0.000863
TRUNK PORT PER MOU SUBURBAN $0.000904
DAY RURAL $0.000925
LOCAL SWITCHING URBAN $0.001096
TRUNK PORT PER MOU SUBURBAN $0.001149
EVENING RURAL $0.001176
LOCAL SWITCHING URBAN $0.000000
TRUNK PORT PER MOU SUBURBAN $0.000000
NIGHT RURAL $0.000000
LOCAL SWITCHING URBAN $0.003197
USAGE PER MOU SUBURBAN $0.005262
DAY RURAL $0.009101
LOCAL SWITCHING URBAN $0.003871
USAGE PER MOU SUBURBAN $0.006074
EVENING RURAL $0.010106
LOCAL SWITCHING URBAN $0.000707
USAGE PER MOU SUBURBAN $0.002263
NIGHT RURAL $0.005389
LOCAL SWITCHING URBAN $0.7767
PORT ADDITIVE SUBURBAN $0.7767
CENTREX RURAL $0.7767
LOCAL SWITCHING URBAN $0.9267
PORT ADDITIVE SUBURBAN $0.9267
RINGMATE SVC. RURAL $0.9267
6
<PAGE>
LOCAL SWITCHING URBAN $0.3451
PORT ADDITIVE SUBURBAN $0.3517
THREE-WAY CALLING RURAL $0.3300
TANDEM SWITHING
DIGITAL TRUNK ALL ZONES $6.86
COMMON TRUNK PER MOU ALL ZONES
DAY $0.003543
EVENING $0.004503
NIGHT $0.000000
USAGE PER MOU ALL ZONES
DAY $0.002971
EVENING $0.003221
NIGHT $0.002049
DEDICATED TRANSPORT ALL ZONES
OC-48 FIXED $8,976.19
OC-48 PER MILE $178.75
OC-12 FIXED $3,575.40
OC-12 PER MILE $74.59
OC-3 FIXED $1,455.74
OC-3 PER MILE $18.65
DS-3 FIXED $791.63
DS-3 PER MILE $6.22
DS-1 FIXED $103.27
DS-1 PER MILE $0.22
CO MUXING 3/1 $211.97
COMMON TRANSPORT ALL ZONES
USAGE
DAY $0.000886
EVENING $0.001127
NIGHT $0.000000
UNBUNDLED NETWORK ELEMENT
7
<PAGE>
SIGNALING ALL ZONES
STP PER LINK $38.93
STP PER PORT $752.00
SCP "800" QUERY $0.001786
SCP LIDB QUERY $0.001394
EXTENDED LINK
URBAN $51.60
SUBURBAN $54.52
RURAL $61.93
STATEWIDE $56.46
NOTES
A. The Arbitrator's original decision on 11/6/96 for the NID was based on a
NYNEX adjusted price of $0.93 and a reduction of 24.7% resulting in a $0.70 NID
price. NYNEX's actual adjusted NID price is actually $0.97. A reduction of 25.7%
is then applied resulting in a final NID price of $0.72.
8
<PAGE>
WHOLESALE DISCOUNTS
With NYNEX Provided
Operator Services
BUSINESS 18.78%
RESIDENCE 17.30%
With NEFC Provided
Operator Services
BUSINESS 20.25%
RESIDENCE 19.04%
9
<PAGE>
PRICING SCHEDULE
Reciprocal Compensation Calculation
I. Time of Day Definitions - as specified in P.U.C. Me - No. 17, Section 6.6.4.
II. Base Rates - Per Minute of Use are as follows, subject to rates set forth in
applicable tariff or Statement Generally Available Terms and Conditions that
NYNEX may file and are approved by the P.U.C. and as amended from time to time.
Day Rate = $0.0098
Evening Rate = $0.0073
Night Rate = $0.0029
III. Formula for determining Reciprocal Compensation (%Day Traffic + % Evening
Traffic + % Night Traffic = 100% for each Party)
(NEFC -originated Day Minutes + NYNEX-originated Day Minutes) * Day
Rate / Total NEFC + NYNEX Minutes
+
(NEFC -originated Evening Minutes + NYNEX-originated Evening Minutes) *
Evening Rate / Total NEFC + NYNEX Minutes
+
(NEFC -originated Night Minutes + NYNEX-originated Night Minutes) *
Night Rate / Total NEFC + NYNEX Minutes
<PAGE>
EXHIBIT A
NETWORK ELEMENT BONA FIDE REQUEST
1. Each Party shall promptly consider and analyze access to a 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) P. 259 and n.603 or
subsequent orders.
2. A Network Element Bona Fide Request shall be submitted in writing and
shall include a technical description of each requested Network Element.
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.
4. Within ten (10) business days of its receipt, the receiving Party shall
acknowledge receipt of the Network Element Bona Fide Request.
5. Except under extraordinary circumstances, within thirty (30) days of
its receipt of a Network Element 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 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.
6. If the receiving Party determines that the Network Element Bona Fide
Request is technically feasible and otherwise qualifies under the Act, it shall
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.
7. Unless the Parties otherwise agree, the Network Element Requested must
be priced in accordance with Section 252(d)(1) of the Act.
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 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.
<PAGE>
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 Element Bona Fide Request pursuant to the Network Element Bona Fide
Request quote or seek arbitration by the PUC pursuant to Section 252 of the Act.
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, or is failing to act in accordance with Section 251 of the Act, such
Party may seek mediation or arbitration by the PUC pursuant to Section 252 of
the Act.
2
<PAGE>
Schedule 27.2
Performance Measurement Reports
<PAGE>
Schedule 27.2
- ---------------------------------------------------
Product: Resale - POTS
- ---------------------------------------------------
State: Maine by Market Area *
- ---------------------------------------------------
Time Period: (Monthly)
- ---------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------
All
Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Provisioning
- -------------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------------
Average Interval - business days
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days - Residence
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days - Business
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- -------------------------------------------------------------------------------------
% Completed in 1 business day - Dispatch
- -------------------------------------------------------------------------------------
% Completed in 1 business day - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 4 business days
- -------------------------------------------------------------------------------------
% Completed w/in 5 business days
- -------------------------------------------------------------------------------------
% Completed w/in 6 business days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------------
% Missed Repair Appointments
- -------------------------------------------------------------------------------------
Mean Time to Repair
- -------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- -------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- -------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------------
% Cleared within 24 Hours
- -------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------------
% CPE Troubles
- -------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------------
% No Access
- -------------------------------------------------------------------------------------
</TABLE>
Notes: 1.) Customer Trouble Report Rate excludes CPE and subsequents reports. 2)
Subsequents are additional calls on open troubles. 3.)Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
2
<PAGE>
Comparability Reports for Resale
(Under development - separate reports for DS0, DS1, and DS3
- ---------------------------------------------------
Product: Resale - Specials
- ---------------------------------------------------
State: Maine By Market Area*
- ---------------------------------------------------
Time Period: (Monthly)
- ---------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------
All
Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Provisioning
- -------------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------------
Average Interval business days
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- -------------------------------------------------------------------------------------
% Completed in 1 business day - Dispatch
- -------------------------------------------------------------------------------------
% Completed in 1 business day - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 4 business days
- -------------------------------------------------------------------------------------
% Completed w/in 5 business days
- -------------------------------------------------------------------------------------
% Completed w/in 6 business days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------------
Mean Time to Repair
- -------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- -------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- -------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------------
% Cleared within 24 Hours
- -------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------------
% CPE Troubles
- -------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------------
% No Access
- -------------------------------------------------------------------------------------
</TABLE>
Notes: 1. Customer Trouble Report Rate excludes CPE and subsequents. 2.
Subsequents are additional calls on open troubles. 3. Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
3
<PAGE>
Comparability Reports for Unbundled Elements - POTS
- -------------------------------------------------------------
Product: Unbundled Elements - POTS (Dial Tone Services)
- -------------------------------------------------------------
State: Maine- By Market Area*
- -------------------------------------------------------------
Time Period: (Monthly)
- -------------------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------
All
Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Provisioning
- -------------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------------
Average Interval
- -------------------------------------------------------------------------------------
% completed in 1 business day - Dispatch
- -------------------------------------------------------------------------------------
% completed in 1 business day - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 2 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- -------------------------------------------------------------------------------------
% Completed w/in 4 business days
- -------------------------------------------------------------------------------------
% Completed w/in 5 business days
- -------------------------------------------------------------------------------------
% Completed w/in 6 business days
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate - Loop
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate - CO
- -------------------------------------------------------------------------------------
% Missed Repair Appointments
- -------------------------------------------------------------------------------------
Mean Time to Repair - Loop Trouble
- -------------------------------------------------------------------------------------
Mean Time to Repair - CO Trouble
- -------------------------------------------------------------------------------------
% Out of Service > 4 Hours
- -------------------------------------------------------------------------------------
% Out of Service > 12 Hours
- -------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------------
% Cleared within 24 Hours
- -------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------------
% CPE Troubles
- -------------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------------
% No Access
- -------------------------------------------------------------------------------------
</TABLE>
Notes: 1.) Customer Trouble Report Rate excludes CPE and subsequents. 2.)
Subsequents are additional calls on open troubles. 3.) Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access. 4.) Other Unbundled elements include equivalent complex special services
requiring specialized circuit design
4
<PAGE>
Comparability Reports for Unbundled Elements - Specials (Under
development - separate reports for DS0, DS1, and DS3
- ---------------------------------------------------
Product: Other Unbundled Elements - SPECIALS
- ---------------------------------------------------
State: Maine- By Market Area*
- ---------------------------------------------------
Time Period: (Monthly)
- ---------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------
All
Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Provisioning
- -------------------------------------------------------------------------------------
Number of Installation Orders
- -------------------------------------------------------------------------------------
Average Interval - business days
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days - Dispatch
- -------------------------------------------------------------------------------------
% Complete w/in 5 Days - No Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- -------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- -------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- -------------------------------------------------------------------------------------
% Missed Appointment - Customer
- -------------------------------------------------------------------------------------
Maintenance
- -------------------------------------------------------------------------------------
Total Number of Troubles Reported
- -------------------------------------------------------------------------------------
Customer Trouble Report Rate
- -------------------------------------------------------------------------------------
Mean Time to Repair
- -------------------------------------------------------------------------------------
% Out of Service > 4 hours
- -------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- -------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- -------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- -------------------------------------------------------------------------------------
% CPE Troubles
- -------------------------------------------------------------------------------------
% No Trouble Found
- -------------------------------------------------------------------------------------
% No Access
- -------------------------------------------------------------------------------------
</TABLE>
Notes: 1.) Customer Trouble Report Rate excludes CPE and subsequents.
2.) Subsequents are additional calls on open troubles. 3.) Some
measures are an indicator of carrier performance, such as % no trouble
found, % CPE and % no access. 4.) Other Unbundled elements include
equivalent complex special services requiring specialized circuit design
5
<PAGE>
Comparability Reports for Interconnection
- -------------------------------------------
Product: Interconnection Trunks
- -------------------------------------------
State: Maine- By Market Area*
- -------------------------------------------
Time Period: (Monthly)
- -------------------------------------------
- --------------------------------------------------------------------------
Actual Service Performance
-----------------------------------
All
Telecom. NYNEX &
Metric Carrier Carriers Affiliates
- --------------------------------------------------------------------------
Provisioning
- --------------------------------------------------------------------------
Number of Installation Orders
- --------------------------------------------------------------------------
Average Interval -business days
- --------------------------------------------------------------------------
% Missed Appointment - NYNEX
- --------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- --------------------------------------------------------------------------
% Missed Appointment - Customer
- --------------------------------------------------------------------------
Maintenance
- --------------------------------------------------------------------------
Total Number of Troubles Reported
- --------------------------------------------------------------------------
Customer Trouble Report Rate
- --------------------------------------------------------------------------
Mean Time to Repair
- --------------------------------------------------------------------------
% Out of Service > 2 Hours
- --------------------------------------------------------------------------
% Out of Service > 4 Hours
- --------------------------------------------------------------------------
% Out of Service > 12 Hours
- --------------------------------------------------------------------------
% Out of Service > 24 Hours
- --------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- --------------------------------------------------------------------------
% Subsequent Trouble Reports
- --------------------------------------------------------------------------
% No Trouble Found
- --------------------------------------------------------------------------
Notes: 1.) Customer Trouble Report Rate excludes CPE and subsequents. 2.)
Subsequents are additional calls on open troubles. 3.) Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
6
<PAGE>
APPENDIX 2
<PAGE>
Appendix 2
SCHEDULE 4.0 Network Interconnection Schedule
LATA HARVARDNET-IP BA-IP Activation Date
TBD TBD TBD TBD
<PAGE>
EXHIBIT 10.12
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of February 24, 1999
by and between
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY,
d/b/a
BELL ATLANTIC - RHODE ISLAND
and
HARVARD NET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
24th day of February, 1999 (the "Effective Date"), by and between New England
Telephone and Telegraph Company, d/b/a Bell Atlantic - Rhode Island ("BA"), a
Rhode Island corporation with offices at 185 Franklin Street, Boston,
Massachusetts, 02110, and Harvard Net, Inc., ("HarvardNet") a Delaware
corporation with offices at 500 Rutherford Avenue, Charlestown, Massachusetts,
02129 (each a "Party" and, collectively, the "Parties").
WHEREAS, HarvardNet has requested that BA make available to HarvardNet
Interconnection service and unbundled Network Elements upon the same terms and
conditions as provided in the Interconnection Agreement (and amendments thereto)
between Brooks Fiber Communications and BA, dated as of May 22, 1997, for Rhode
Island, approved by the Commission under Section 252 of the Act the (the,
"Separate Agreement") and attached as Appendix 1 hereto; and
WHEREAS, BA has undertaken to make such terms and conditions available to
HarvardNet hereby only because of and, to the extent required by, Section 252(i)
of the Act.
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, HarvardNet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement (as set forth in Appendix 1 hereto), as it is in effect on
the date hereof after giving effect to operation of law, and of the other
Appendices hereto, are incorporated by reference in their entirety herein and
form an integral part of this Agreement.
1.2 References in Appendix 1 hereto to Brooks Fiber Communications or to
Brooks Fiber shall for purposes of this Agreement be deemed to refer to
HarvardNet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of Appendix 1 hereto, this Agreement shall continue in
effect in accordance with Section 21 of Appendix 1 until the Separate Agreement
expires or is otherwise terminated.
1.4 All references in Appendix 1 hereto to "800/888" shall be deleted in
their entirety and replaced with the following: "800/888/877".
<PAGE>
1.5 The Joint Network Configuration and Grooming Plan referred to in
Section 8.1 of Appendix 1 hereto shall be developed upon the request of either
Party within a reasonable amount of time after receipt of such request, but an
initial plan shall be established no more than six months after the request is
made.
1.6 If HarvardNet so requests, at such time as BA makes available the
Performance Monitoring Reports set forth in the Memorandum Opinion and Order
adopted by the FCC on August 14, 1997 (the "FCC Merger Order") to other
Telecommunications Carriers purchasing Interconnection from BA, BA shall provide
HarvardNet with the Performance Monitoring Reports applicable to HarvardNet in
accordance with the requirements of said FCC Merger Order in lieu of the
quarterly performance reports set forth in Schedules 27.2A through 27.2D
thereto.
1.7 Notices to HarvardNet under Section 29.12 of Appendix 1 hereto shall
be sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
1.8 Notices to BA under Section 29.12 of Appendix 1 hereto shall be sent
to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
2
<PAGE>
Bell Atlantic Rhode Island
Attn: Bruce P. Beausejour
General Counsel
Room 1403
185 Franklin Street
Boston, Massachusetts 02110
Telephone: (617) 743-2323
Facsimile: (617) 737-0648
1.9 Schedule 4.0 set forth at Appendix 2 hereto shall replace and
supersede in its entirety Schedule 4.0 of Appendix 1 hereto.
2.0 Clarifications
2.1 BA and HarvardNet have entered into this Agreement in accordance with
the requirements of 47 USC ss. 252(i). However, BA has advised HarvardNet that
BA disputes the applicability of the Separate Agreement's Reciprocal
Compensation arrangements to traffic that is transmitted to or returned from the
Internet at any point during the duration of the transmission ("Internet
Traffic"), (herein the "Disputed Issue"). BA believes that Internet Traffic is
not "Local Traffic" pursuant to Section 5.7 of the Separate Agreement and
HarvardNet disagrees.
2.2 The execution of this Agreement does not constitute (1) an admission
by either Party that the other Party's interpretation thereof is lawful or
reasonable; or (2) a release or waiver by either Party of its claims and
defenses pertaining to the Disputed Issue. Bell Atlantic agrees to be bound by
the terms of the Separate Agreement only as and to the extent required by
Section 252(i). Moreover, the entry into, filing and performance by the Parties
of this Agreement does not in any way constitute a waiver by either Party of any
of the rights and remedies it may have pursuant to Section 28 of the Separate
Agreement. Nor does it constitute a waiver of any right available under
Applicable Law, in connection with either the Disputed Issue or with
HarvardNet's election under 47 U.S.C. ss. 252(i): (1) to petition the
Commission, other administrative body or court for reconsideration or reversal
of any determination made by such body or court or (2) to seek enforcement or
review of this Agreement or the Separate Agreement.
3
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 24th day of February, 1999.
HARVARDNET, INC. BELL ATLANTIC-RHODE ISLAND, INC.
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
--------------------------- ------------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
---------------------- ------------------------------------
Title: President & CEO Title: Vice-President - Interconnection
------------------------- Services Policy & Planning
--------------------------------
4
<PAGE>
APPENDIX 1
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of May 22, 1997
by and between
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
and
BROOKS FIBER COMMUNICATIONS
FOR RHODE ISLAND
<PAGE>
TABLE OF CONTENTS
Section Page
1.0 DEFINITIONS 1
2.0 INTERPRETATION AND CONSTRUCTION 7
3.0 SCOPE 7
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) 7
4.1 Scope 7
4.2 Physical Architecture 8
4.3 Initial Interim Architecture 8
4.4 Technical Specifications 8
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2) 9
5.1 Scope of Traffic 9
5.2 Switching System Hierarchy 9
5.3 Trunk Group Architecture and Traffic Routing 10
5.4 Signaling 11
5.5 Grades of Service 11
5.6 Measurement and Billing 11
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5) 12
5.8 Municipal Calling Service 13
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
SECTION 251(c)(2) 13
6.1 Scope of Traffic 13
6.2 Trunk Group Architecture and Traffic Routing 13
6.3 Meet-Point Billing Arrangements 14
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC 14
7.1 Information Services Traffic 14
7.2 Tandem Transient Service 15
7.3 Dedicated Transit Service 16
7.4 911/E911 Arrangements 17
8.0 JOINT NETWORK CONFIGURATION AND GROOMING PLAN; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR 18
8.1 Joint Network Configuration and Grooming Plan 18
8.2 Installation, Maintenance, Testing and Repair 18
<PAGE>
9.0 UNBUNDLED ACCESS -- SECTION 251(c)(3) 18
9.1 Local Link Transmission Types 18
9.2 ADSL and HDSL 19
9.3 Port Types 20
9.4 Private Lines and Special Access 20
9.5 Limitations on Unbundled Access 21
9.6 Availability of Other Network Elements on an Unbundled Basis 22
9.7 Provisioning of Unbundled Links 22
9.8 Maintenance of Unbundled Network Elements 24
9.9 True-up of Monthly Unbundled Link Charges for Rhode Island 24
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1) 26
10.1 Availability of Wholesale Rates for Resale 26
10.2 Availability of Retail Rates for Resale 26
10.3 Term and Volume Discounts 26
11.0 NOTICE OF CHANGES -- SECTION 251(c)(5) 26
12.0 COLLOCATION -- SECTION 251(c)(6) 26
13.0 NUMBER PORTABILITY -- SECTION 251(b)(2) 27
13.1 Scope 27
13.2 Procedures for Providing INP Through Remote Call Forwarding 27
13.3 Procedures for Providing INP Through Route Indexing 28
13.4 Procedures for Providing INP Through Full NXX Code Migration 28
13.5 Receipt of Terminating Compensation on Traffic to INP'ed
Numbers 29
13.6 True-up of Monthly INP Costs 30
14.0 NUMBER RESOURCE ASSIGNMENTS 30
15.0 DIALING PARITY -- SECTION 251(b)(3) 30
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 30
17.0 DATABASES AND SIGNALING 31
18.0 REFERRAL ANNOUNCEMENT 31
19.0 DIRECTORY SERVICES ARRANGEMENTS 31
19.1 Directory Listings and Directory Distributions 31
19.2 Directory Assistance (DA) and Operator Services 32
20.0 GENERAL RESPONSIBILITIES OF THE PARTIES 34
21.0 TERM AND TERMINATION 36
2
<PAGE>
22.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 37
23.0 CANCELLATION CHARGES 37
24.0 NON-SEVERABILITY 37
25.0 INDEMNIFICATION 37
26.0 LIMITATION OF LIABILITY 38
27.0 PERFORMANCE STANDARDS AND REPORTING REQUIREMENTS 39
27.1 Performance Standards 39
27.2 Reporting Requirements 39
28.0 REGULATORY APPROVAL 40
29.0 MISCELLANEOUS 40
29.1 Authorization 40
29.2 Compliance 41
29.3 Compliance with the Communications Law Enforcement Act of 1994 41
29.4 Independent Contractor 41
29.5 Force Majeure 41
29.6 Confidentiality 41
29.7 Governing Law 42
29.8 Taxes 43
29.9 Non-Assignment 43
29.10 Non-Waiver 43
29.11 Disputed Amounts 43
29.12 Notices 44
29.13 Publicity and Use of Trademarks or Service Marks 45
29.14 Section 252(i) Obligations 45
29.15 Joint Work Product 45
29.16 No Third Party Beneficiaries; Disclaimer of Agency 45
29.17 No License 45
29.18 Technology Upgrades 46
29.19 Survival 46
29.20 Scope of Agreement 46
29.21 Entire Agreement 46
3
<PAGE>
LIST OF SCHEDULES AND EXHIBIT
Schedules
Schedule 1.0 Certain Terms As Defined in the Act
Schedule 4.0 Network Interconnection Schedule
Schedule 8.2 NYNEX Intervals for Installation
Schedule 27.1 NYNEX Performance Standards
Schedule 27.1(A) BROOKS FIBER Service Quality Criteria
Schedule 27.2 Performance Measurement Reports
Pricing Schedule
Exhibit
Exhibit A Network Element Bona Fide Request
4
<PAGE>
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 effective as of the 10th day of
April, 1997 (the "Effective Date"), by and between Brooks Fiber Communications
Inc., ("BROOKS FIBER") a corporation with offices at One Old Stone Square,
Providence, RI 02903 and New England Telephone and Telegraph Company d/b/a NYNEX
("NYNEX" or "NET"), a New York corporation with offices at 185 Franklin Street,
Boston, Mass. 02110.
WHEREAS the Parties want to interconnect their networks at mutually agreed
upon points of Interconnection to provide Telephone Exchange Services (as
defined below) and Exchange Access (as defined below) to their respective
Customers; 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 Act (as defined below) and additional services as set forth
herein;
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, BROOKS FIBER and NYNEX hereby agree as follows:
1.0 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
specified below in this Section 1.0. For convenience of reference only, the
definitions of certain terms that are As Defined in the Act (as defined below)
are set forth on Schedule 1.0. Schedule 1.0 sets forth the definitions of such
terms as of the date specified on such Schedule and neither Schedule 1.0 nor any
revision, amendment or supplement thereof intended to reflect any revised or
subsequent interpretation of any term that is set forth in the Act is intended
to be a part of or to affect the meaning or interpretation of this Agreement.
1.1 "Act" means the Communications Act of 1934 (47 U.S.C. ss. 151, et
seq.), as amended by the Telecommunications Act of 1996, and as from time to
time interpreted in the duly authorized rules and regulations of the FCC or a
state regulatory agency within its state of jurisdiction.
1.2 "ADSL" or "Asymmetrical Digital Subscriber Line" means a transmission
technology which transmits an asymmetrical digital signal using one of a variety
of line codes as specified in ANSI standards T1.413-1995-007R2.
1.3 "Affiliate" is As Defined in the Act.
<PAGE>
1.4 "Agreement for Switched Access Meet Point Billing" means the Agreement
for Switched Access Meet Point Billing between the Parties as amended.
1.5 "As Defined in the Act" means as specifically defined by the Act and
as from time to time interpreted in the duly authorized rules and regulations of
the FCC or the PUC.
1.6 "As Described in the Act" means as described in or required by the Act
and as from time to time interpreted in the duly authorized rules and
regulations of the FCC or the PUC.
1.7 "Automatic Number Identification" or "ANI" means a Feature Group D
signaling parameter which refers to the number transmitted through a network
identifying the billing number of the calling party.
1.8 "Busy Line Verification/Busy Line Verification Interrupt Traffic" or
"BLV/BLVI Traffic" means an operator service call in which the caller inquires
as to the busy status of or requests an interruption of a call on another
Customer's Telephone Exchange Service line.
1.9 "Calling Party Number" or "CPN" is a Common Channel Interoffice
Signaling ("CCIS") parameter which refers to the number transmitted through a
network identifying the calling party.
1.10 "Central Office Switch" means a switch used to provide
Telecommunications Services, including, but not limited to:
(a) "End Office Switches" which are used to terminate Customer
station Links for the purpose of interconnection to each other and to
trunks; and
(b) "Tandem Office Switches" ("Tandems") which are used to connect
and switch trunk circuits between and among other Central Office Switches.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
1.11 "CCS" means one hundred (100) call seconds.
1.12 "CLASS Features" means certain CCIS-based features available to
Customers including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification; Call Return and future CCIS-based offerings.
1.13 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in its equipment necessary for
Interconnection or for
2
<PAGE>
access to Network Elements on an unbundled basis which has been installed and
maintained at the premises of a second Party (the "Housing Party"). For purposes
of Collocation, the "premises" of a Housing Party is limited to the occupied
structure or portion thereof in which such Housing Party has the exclusive right
of occupancy. Collocation will be "physical," unless physical collocation is not
practical for technical reasons or because of space/limitations, in which case
virtual collocation will be provided, subject to PUC approval. In "Physical
Collocation," the Collocating Party installs and maintains its own equipment in
the Housing Party's premises.
1.14 Commission means the Rhode Island Public Utilities Commission
("PUC").
1.15 "Customer" means a third-party residence or business that subscribes
to Telecommunications Services provided by either of the Parties.
1.16 "Common Channel Interoffice Signaling" or "CCIS" means the signaling
system, developed for use between switching systems with stored-program control,
in which all of the signaling information for one or more groups of trunks is
transmitted over a dedicated high-speed data link rather than on a per-trunk
basis and, unless otherwise agreed by the Parties, the CCIS used by the Parties
shall be SS7.
1.17 "Cross Connection" means a connection provided pursuant to
Collocation at the Digital Signal Cross Connect, Main Distribution Frame or
other suitable frame or panel between (i) the Collocating Party's equipment and
(ii) the equipment or facilities of the Housing Party.
1.18 "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.
"Local Dialing Parity" means the ability of Telephone Exchange Service Customers
of one LEC to select a provider and make local calls without dialing extra
digits. "Toll Dialing Parity" means the ability of Telephone Exchange Service
Customers of a LEC to place toll calls (inter or intraLATA) which are routed to
a toll carrier (intraLATA or interLATA) of their selection without dialing
access codes or additional digits and with no unreasonable dialing delay.
1.19 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.20 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.21 "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.
3
<PAGE>
1.22 "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.
1.23 "Direct Customer Access Service" or "DCAS" is an electronic interface
system provided by NYNEX to facilitate the ordering, provisioning and
maintenance of various interconnection arrangements.
1.24 "Exchange Message Record" or "EMR" means the standard used for
exchange of Telecommunications message information among Telecommunications
providers for billable, non-billable, sample, settlement and study data. The EMR
format is contained in Bellcore Practice BR-010-200-010 CRIS Exchange Message
Record.
1.25 "Exchange Access" is As Defined in the Act.
1.26 "FCC" means the Federal Communications Commission.
1.27 "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.
1.28 "High-Bit Rate Digital Subscriber Line" or "HDSL" means a
transmission technology which transmits up to a DS1-level signal, using any one
of the following line codes: 2 Binary / 1 Quartenary ("2B1Q"), Carrierless
AM/PM, Discrete Multitone ("DMT"), or 3 Binary / 1 Octel ("3BO").
1.28a "Information Service" is As Defined in the Act.
1.29 "Information Service Traffic" means Local Traffic or IntraLATA Toll
Traffic which originates on a Telephone Exchange Service line and which is
addressed to an information service provided over a Party's information services
platform.
1.30 "Integrated Digital Loop Carrier" means a subscriber loop carrier
system which integrates within the switch, at a DS1 level, twenty-four (24)
Local Link Transmission paths combined into a 1.544 Mbps digital signal.
1.31 "Interconnection" is As Described in the Act and refers to the
connection of a network, equipment, or facilities, of one carrier with the
network, equipment, or facilities of another for the purpose of transmission and
routing of Telephone Exchange Service traffic and Exchange Access traffic.
1.32 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll Services.
4
<PAGE>
1.33 "Interim Telecommunications Number Portability" or "INP" is As
Described in the Act.
1.34 "InterLATA Service" is As Defined in the Act.
1.35 "Integrated Services Digital Network" or "ISDN" means a switched
network service that provides end-to-end digital connectivity for the
simultaneous transmission of voice and data. Basic Rate Interface-ISDN
(BRI-ISDN) provides for a digital transmission of two 64 Kbps bearer channels
and one 16 Kbps data channel (2B+D).
1.36 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined as Local Traffic in this Agreement.
1.37 "Local Access and Transport Area" or "LATA" is As Defined in the Act.
1.38 "Local Traffic" means a call which is originated and terminated
within a local service area as defined in P.U.C. - RI Tariff No. 15, Part A,
Section 6. IntraLATA calls originated on a 1+ presubscription basis when
available or a casual dialed (10XXX/101XXXX) basis are not considered local
traffic.
1.39 "Local Exchange Carrier" or "LEC" is As Defined in the Act.
1.40 "Local Link Transmission" or "Link" means the entire transmission
path which extends from the network interface/demarcation point at a Customer's
premises to the Main Distribution Frame or other designated frame or panel in a
Party's Wire Center which serves the Customer. Links are defined by the
electrical interface rather than the type of facility used.
1.41 "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).
1.42 "Main Distribution Frame" or "MDF" means the distribution frame of
the Party providing the Link used to interconnect cable pairs and line and trunk
equipment terminals on a switching system.
1.43 "Meet-Point Billing" means the process whereby each Party bills the
appropriate tariffed rate for its portion of a jointly provided Switched
Exchange Access Service as agreed to in the Agreement for Switched Access Meet
Point Billing.
1.44 "Municipal Calling Service" is a calling service arrangement provided
on a non-optional basis to Customers in municipalities served by more than one
exchange or locality where toll charges would normally apply. Calls between
exchanges or localities serving the same municipality are not chargeable as toll
except for calls originating from
5
<PAGE>
coin (public and semi-public) telephones, terminating at public telephones, or
made to or from foreign exchange lines unless dial tone for the foreign exchange
line is provided from a central office serving some portion of the municipality
in which the foreign exchange line service address is located.
1.45 "Network Element" is As Defined in the Act.
1.46 "Network Element Bona Fide Request" means the process described in
Exhibit A that prescribes the terms and conditions relating to a Party's request
that the other Party provide a Network Element not otherwise provided by the
terms of this Agreement.
1.47 "North American Numbering Plan" or "NANP" means the numbering plan
used in the United States, Canada, Bermuda, Puerto Rico and certain Caribbean
Islands. The NANP format is a 10-digit number that consists of a 3-digit NPA
code (commonly referred to as the area code), followed by a 3-digit NXX code and
4-digit line number.
1.48 "Number Portability" is As Defined in the Act.
1.49 "NXX" means the three-digit code which appears as the first three
digits of a seven digit telephone number.
1.50 "Party" means either NYNEX or BROOKS FIBER, and "Parties" means NYNEX
and BROOKS FIBER.
1.51 "Port" means a termination on a Central Office Switch that permits
Customers to send or receive Telecommunications over the public switched
network, but does not include switch features or switching functionality.
1.52 "POT Bay" or "Point of Termination Bay" means the intermediate
distributing frame system which serves as the point of demarcation for
collocated interconnection.
1.53 "Rate Center" means the specific geographic point which has been
designated by a given LEC as being associated with a particular NPA-NXX code
which has been assigned to the LEC for its provision of Telephone Exchange
Service. The Rate Center is the finite geographic point identified by a specific
V&H coordinate, which is used by that LEC to measure, for billing purposes,
distance sensitive transmission services associated with the specific Rate
Center. Rate Centers will be identical for each Party until such time as BROOKS
FIBER establishes its own Rate Centers within an area.
1.54 "Reciprocal Compensation" is As Described in the Act.
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1.55 "Route Indexing" means the provision of Interim Number Portability
through the use of direct trunks provisioned between End Offices of NYNEX and
BROOKS FIBER over which inbound traffic to a ported number will be routed.
1.56 "Routing Point" means a location which a LEC has designated on its
own network as the homing (routing) point for inbound traffic to one or more of
its NPA-NXX codes. The Routing Point is also used to calculate mileage
measurements for the distance-sensitive transport element charges of Switched
Exchange Access Services. Pursuant to Bell Communications Research, Inc.
("Bellcore") Practice BR 795-100-100 (the "Bellcore Practice"), the Routing
Point (referred to as the "Rating Point" in such Bellcore Practice) may be an
End Office Switch location or a "LEC Consortium Point of Interconnection."
Pursuant to such Bellcore Practice, each "LEC Consortium Point of
Interconnection" shall be designated by a common language location identifier
(CLLI) code with (x)KD in positions 9, 10, 11, where (x) may be any alphanumeric
A-Z or 0-9. The Routing Point must be located within the LATA in which the
corresponding NPA-NXX is located. However, Routing Points associated with each
NPA-NXX need not be the same as the corresponding Rate Center, nor must there be
a unique and separate Routing Point corresponding to each unique and separate
Rate Center; provided only that the Routing Point associated with a given
NPA-NXX must be located in the same LATA as the Rate Center associated with the
NPA-NXX.
1.57 "Service Control Point" or "SCP" means a component of the signaling
network that acts as a database to provide information to another component of
the signaling network (i.e., Service Switching Point or another SCP) for
processing or routing certain types of network calls. A query/response mechanism
is typically used in communicating with an SCP.
1.58 "Signaling Transfer Point" or "STP" means a component of the
signaling network that performs message routing functions and provides
information for the routing of messages between signaling network components. An
STP transmits, receives and processes CCIS messages.
1.59 "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 successors or similar Switched Exchange Access
services.
1.60 "Synchronous Optical Network" or "SONET" means an optical interface
standard that allows inter-networking of transmission products from multiple
vendors. The base transmission rate is 51.84 Mbps (OC-1/STS-1) and higher rates
are direct multiples of the base rate.
1.61 "Technically Feasible Point" is As Described in the Act.
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1.62 "Telecommunications" is As Defined in the Act.
1.63 "Telecommunications Act" means the Telecommunications Act of 1996 and
any rules and regulations promulgated thereunder.
1.64 "Telecommunications Carrier" is As Defined in the Act.
1.65 "Telecommunications Service" is As Defined in the Act.
1.66 "Telephone Exchange Service" is As Defined in the Act.
1.67 "Telephone Toll Service" is As Defined in the Act.
1.68 "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
All references to Sections, Exhibits and Schedules shall be deemed to be
references to Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. The headings of the Sections and the terms
defined in Schedule 1.0 are inserted for convenience of reference only and are
not intended to be a part of or to affect the meaning of this Agreement. Unless
the context shall otherwise require, any reference to any agreement, other
instrument (including NYNEX or other third party offerings, guides or
practices), statute, regulation, rule or tariff is to such agreement,
instrument, statute, regulation, rule or tariff as amended and supplemented from
time to time (and, in the case of a statute, regulation, rule or tariff, to any
successor provision).
3.0 SCOPE
This Agreement sets forth the terms and conditions under which BROOKS
FIBER and NYNEX will interconnect their respective networks to enable BROOKS
FIBER to provide Telecommunications Services consistent with the rights and
obligations set forth in Section 251 of the Act.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
Subject to the terms and conditions of this Agreement, Interconnection of
the Parties' facilities and equipment pursuant to Section 4.0 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 the State of Rhode Island on
Schedule 4.0. Schedule 4.0 may be revised and supplemented from time to time
upon the mutual agreement of the Parties. Interconnection in the LATA shall be
accomplished through either (i) a Fiber-Meet as provided in Section 4.2, (ii)
Collocation
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as provided in Section 12.0, (iii) any other Interconnection method provided by
applicable tariff, law, rule or regulation, or (iv) any other Interconnection
method to which the Parties may agree.
4.1 Scope
Section 4.0 describes the physical architecture for Interconnection of the
Parties' facilities and equipment for the transmission and routing of Local
Traffic and IntraLATA toll traffic pursuant to Section 251(c)(2) of the Act.
Sections 5.0 and 6.0 prescribe the specific logical trunk groups (and traffic
routing parameters) which will be configured over the physical connections
described in this Section 4.0 related to the transmission and routing of
Telephone Exchange Service Traffic and Exchange Access traffic, respectively.
Other trunk groups, as described in this Agreement, may be configured using this
architecture.
4.2 Physical Architecture
For LATA 130 identified on Schedule 4.0, BROOKS FIBER and NYNEX shall
jointly engineer and operate a diverse Synchronous Optical Network ("SONET")
transmission system by which they shall interconnect their networks pursuant to
the joint network reconfiguration and grooming plan ("Joint Grooming Plan")
specified in Section 8.1, and according to the following minimum specifications:
4.2.1 The Parties shall establish physical Interconnection points at
the locations designated in Schedule 4.0. Interconnection points on BROOKS
FIBER's network shall be designated as BROOKS FIBER Interconnection Points
("B-IP"); Interconnection points on the NYNEX network shall be designated as
NYNEX Interconnection Points ("N-IP"). The Parties may by mutual agreement
establish additional Interconnection points at any Technically Feasible Point
consistent with Act.
4.2.2 Unless otherwise mutually agreed, the SONET transmission
system in the LATA shall be pursuant to the Joint Grooming Plan. Each Party
shall be responsible for procuring, installing and maintaining the agreed-upon
Optical Line Terminating Multiplexor ("OLTM") equipment, fiber optic facilities
and other equipment as agreed pursuant to the Joint Grooming Plan.
4.2.3 Unless otherwise mutually agreed, the physical interface of
BROOKS FIBER's and NYNEX's facilities necessary to effect the SONET transmission
system shall be at the optical level via a Fiber-Meet or other comparable means.
4.3 Initial Interim Architecture
4.3.1 Where BROOKS FIBER and NYNEX have implemented Interconnection
arrangements prior to execution of this Agreement, the Parties shall for an
interim period not exceeding twelve (12) months from the Interconnection
Activation
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Date, maintain any preexisting physical Interconnection arrangements and,
pursuant to the Joint Grooming Plan, jointly coordinate and reconfigure such
arrangements to reflect the architecture described in Section 4.2 of this
Agreement.
4.3.2 The Parties agree to allow interim alternatives to the
architecture described in Section 4.2, utilizing electrical hand-offs, provided
the Parties mutually develop and agree on a plan to fully transition to an
arrangement reflective of Section 4.2 in that LATA within one hundred and eighty
(180) days following the Interconnection Activation Date listed for that LATA in
Schedule 4.0.
4.4 Technical Specifications
4.4.1 BROOKS FIBER and NYNEX shall work cooperatively to install and
maintain a reliable network. BROOKS FIBER and NYNEX 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.
4.4.2 BROOKS FIBER and NYNEX shall work cooperatively to apply sound
network management principles by invoking network management controls to
alleviate or to prevent congestion.
4.4.3 The publication "Bellcore Technical Publication GR-342-CORE;
High Capacity Digital Special Access Service, Transmission Parameter Limits and
Interface Combinations" describes the practices, procedures, specifications and
interfaces generally utilized by NYNEX and is referenced herein to assist the
Parties in meeting their respective Interconnection responsibilities related to
electrical/optical interfaces.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
Section 5.0 prescribes parameters for trunk groups (the "Traffic Exchange
Trunks") to be effected over the Interconnections specified in Section 4.0 for
the transmission and routing of Local Traffic and IntraLATA Toll Traffic between
the Parties' respective Telephone Exchange Service Customers and where such
traffic is not presubscribed for carriage by a third party carrier nor carried
by a third party carrier as casual dialed (10XXX and 101XXXX) traffic.
5.2 Switching System Hierarchy
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5.2.1 For purposes of this Section 5.0, each of the following
Central Office Switches shall be designated as a "Primary Switch":
(a) Each Access Tandem NYNEX operates in the LATA;
(b) The initial switch BROOKS FIBER employs to provide Telephone
Exchange Service in the LATA;
(c) Any Access Tandem BROOKS FIBER may establish for provision of
Exchange Access in the LATA;
(d) Any additional switch BROOKS FIBER may subsequently employ to
provide Telephone Exchange Service in the LATA which BROOKS
FIBER may at its sole option designate as a Primary Switch;
provided that the total number of BROOKS FIBER Primary
Switches for a LATA may not exceed the total number of NYNEX
Primary Switches for that LATA. To the extent BROOKS FIBER
chooses to designate any additional switch as a Primary
Switch, it shall provide notice to NYNEX of such designation
at least ninety (90) days in advance of the date on which
BROOKS FIBER activates such switch as a Primary Switch; and
(e) Any additional tandem switch NYNEX may subsequently employ to
provide access and/or sector traffic capacity within a LATA.
Traffic destined to sub-tending Secondary Switches routed via
such a tandem(s) would be determined by network requirements
and notice made available to all LECs at least one
hundred-eighty (180) days prior to service introduction.
5.2.2 Each Central Office Switch operated by the Parties which is
not designated as a Primary Switch pursuant to Section 5.2.1 shall be designated
as a "Secondary Switch".
5.2.3 For purposes of BROOKS FIBER routing traffic to NYNEX,
sub-tending arrangements between NYNEX Primary Switches and NYNEX Secondary
Switches shall be the same as the Access Tandem/End Office sub-tending
arrangements which NYNEX maintains for those switches. For purposes of NYNEX
routing traffic to BROOKS FIBER, subtending arrangements between BROOKS FIBER
Primary Switches and BROOKS FIBER Secondary Switches shall be the same as the
Access Tandem/End Office sub-tending arrangements which BROOKS FIBER maintains
for those switches.
5.3 Trunk Group Architecture and Traffic Routing
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The Parties shall jointly engineer and configure Traffic Exchange Trunks
over the physical Interconnection arrangements for the transport and termination
of Telephone Exchange Service Traffic, as follows:
5.3.1 The Parties shall initially configure a separate two-way trunk
group, and operate as one-way or two-way as mutually agreed to by both Parties,
as a direct transmission path between each BROOKS FIBER Primary Switch and each
NYNEX Primary Switch.
5.3.2 Notwithstanding anything to the contrary in this Section 5.0,
if the two- way traffic volumes between any two Central Office Switches (whether
Primary-Primary, Primary-Secondary or Secondary-Secondary) at any time exceeds
the CCS busy hour equivalent of one DS-1, the Parties shall within sixty (60)
days after such occurrence add trunks or establish new direct trunk groups
consistent with the grades of service and quality parameters set forth in the
Joint Grooming Plan addressed in Section 8.0.
5.4 Signaling
5.4.1 Where available, CCIS signaling shall be used by the Parties
to set up calls between the Parties' Telephone Exchange Service networks. If
CCIS signaling is unavailable, MF (Multi-Frequency) signaling shall be used by
the Parties. In the interim, each Party shall charge the other Party equal and
reciprocal rates for CCIS signaling in accordance with applicable tariffs. In
the event BROOKS FIBER does not have an effective tariff rate, it shall charge
NYNEX at the tariffed NYNEX rate. During the term of this Agreement neither
Party shall charge the other Party additional usage-sensitive rates for SS7
queries (TCAP and ISUP) made for Local Traffic interchanged between the Parties.
5.4.2 The publication "Bellcore Special Report SR-TSV-002275, BOC
Notes on the LEC Networks - Signaling" describes the practices, procedures and
specifications generally utilized by NYNEX for signaling purposes and is
referenced herein to assist the Parties in meeting their respective
Interconnection responsibilities related to signaling.
5.4.3 The Parties will cooperate on the exchange of Transactional
Capabilities Application Part ("TCAP") messages to facilitate interoperability
of CCIS-based features between their respective networks, including all CLASS
features and functions, to the extent each Party offers such features and
functions to its Customers. All CCIS signaling parameters will be provided
including, calling party number ("CPN"), originating line information (OLI),
calling party category and charge number.
5.4.4 Upon request, each Party shall provide trunk groups where
available that 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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5.5 Grades of Service
The Parties shall initially engineer and shall jointly monitor and enhance
all trunk groups consistent with the Joint Grooming Plan.
5.6 Measurement and Billing
5.6.1 For billing purposes, each Party shall pass calling party
number information on each call carried over the Local/IntraLATA Trunks;
provided that so long as the percentage of calls passed with CPN is greater than
ninety percent (90%), all calls exchanged without CPN information shall be
billed as either Local Traffic or IntraLATA Toll Traffic in direct proportion to
the minutes of use of calls exchanged with CPN information.
5.6.2 Measurement of billing minutes (except for originating 800/888
calls) shall be in actual conversation seconds. Measurement of billing minutes
for originating 800/888 calls shall be in accordance with applicable tariffs.
5.6.3 Where CPN is not available in a LATA for greater than ten
percent (10%) of the traffic, the party sending the traffic shall provide
factors to determine the jurisdiction, as well as local vs. toll distinction, of
the traffic. Such factors shall be supported by call record details that will be
made available for review upon request. Where parties are passing CPN but the
receiving party is not properly receiving or recording the information, the
Parties shall cooperatively work to correctly identify the traffic, and
establish a mutually agreeable mechanism that will prevent improperly rated
traffic. Notwithstanding this, if any improperly rated traffic occurs, the
Parties agree to reconcile it.
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5).
5.7.1 Reciprocal Compensation only applies to the transport and
termination of Local Traffic billable by NYNEX or BROOKS FIBER which a Telephone
Exchange Service Customer originates on NYNEX's or BROOKS FIBER's network for
termination on the other Party's network except as provided in Section 5.7.6
below.
5.7.2 The Parties shall compensate each other for transport and
termination of Local Traffic in an equal and symmetrical manner at the rate
provided in the Pricing Schedule. This rate is to be applied at the B-IP for
traffic delivered by NYNEX, and at the N-IP for traffic delivered by BROOKS
FIBER. No additional charges, including Port or transport charges, shall apply
for the termination of Local Traffic delivered to the B-IP or the N-IP. When
Local Traffic is terminated over the same trunks as IntraLATA or InterLATA toll,
any Port or transport or other applicable access charges related to the toll
traffic shall be prorated to be applied only to the toll traffic.
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5.7.3 The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access Service or to any other
IntraLATA calls originated on a third Party carrier's network on a 1+
presubscribed basis or a casual dialed (10XXX or 101XXX) basis. All Switched
Exchange Access Service and all IntraLATA Toll Traffic shall continue to be
governed by the terms and conditions of the applicable federal and state
tariffs.
5.7.4 Each Party shall charge the other Party its effective
applicable tariffed IntraLATA switched access rates for the transport and
termination of all IntraLATA Toll Traffic.
5.7.5 The Parties agree to interconnect their respective frame relay
networks where facilities are available. Each Party will charge the other the
rates specified in the Pricing Schedule for Network-to-Network Interfaces
("NNI") in those instances where the Parties are interconnecting for the
purposes of terminating Telephone Exchange Service Traffic. NYNEX will charge
BROOKS FIBER the same rates charged to other similarly situated local exchange
carriers for frame relay-to-frame relay network.
5.7.6 The rates for termination of Local Traffic are set forth in
the Pricing Schedule which is incorporated by reference herein.
5.7.7 Compensation for transport and termination of all traffic
which has been subject to performance of INP by one Party for the other Party
pursuant to Section 13.0 shall be as specified in Section 13.6.
5.7.8 When either Party delivers seven (7) or ten (10) digit
translated IntraLATA 800/888 service to the other Party for termination, the
originating party shall provide the terminating Party with billing records in
industry standard format (EMR) if required by the terminating Party. The
originating Party may bill the terminating Party for the delivery of the traffic
at local Reciprocal Compensation rates. The terminating Party may not bill the
originating Party Reciprocal Compensation under this Agreement. The Party that
is providing the 800/888 service shall pay the database inquiry charge per the
Pricing Schedule to the Party that performed the database inquiry.
5.8 Municipal Calling Service
The Parties shall work cooperatively to facilitate each Party's
public service obligations as required by the PUC to provide its end user
customers with toll free Municipal Calling Service ("MCS"). Such cooperation
shall include the sharing of certain account and toll free municipal ("TFM")
codes on a daily or other mutually agreeable basis and working with other
industry participants to satisfactorily resolve MCS related measurement and
billing issues associated with implementation of IntraLATA presubscription.
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6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO SECTION
251(c)(2)
6.1 Scope of Traffic
Section 6.0 prescribes parameters for certain trunk groups ("Access Toll
Connecting Trunks") to be established over the Interconnections specified in
Section 4.0 for the transmission and routing of Exchange Access traffic between
BROOKS FIBER's Telephone Exchange Service Customers and Interexchange Carriers
("IXCs").
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 The Parties shall jointly establish Access Toll Connecting
Trunks by which they will jointly provide tandem-transported Switched Exchange
Access Services to Interexchange Carriers to enable such Interexchange Carriers
to originate and terminate traffic from/to BROOKS FIBER's Customers.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Exchange Access to allow BROOKS FIBER's Customers to
connect to or be connected to the interexchange trunks of any Interexchange
Carrier which is connected to an NYNEX Access Tandem.
6.2.3 The Access Toll Connecting Trunks shall be two-way trunks, and
operated as one-way or two-way as mutually agreed to by both Parties, connecting
an End Office Switch BROOKS FIBER utilizes to provide Telephone Exchange Service
and Switched Exchange Access in a given LATA to an Access Tandem Switch NYNEX
utilizes to provide Exchange Access in such LATA.
6.3 Meet-Point Billing Arrangements
6.3.1 Meet-Point Billing arrangements between the Parties for
jointly-provided Switched Exchange Access Services on Access Toll Connecting
Trunks will be governed by the terms and conditions of a mutually agreeable
arrangement, in accordance with Ordering and Billing Forum Guidelines, which the
Parties will cooperatively work to develop.
6.3.2 Until and unless changed by the FCC on a going forward basis,
BROOKS FIBER shall retain one hundred percent (100%) of the Residual
Interconnection Charge in instances in which BROOKS FIBER provides the End
Office switching.
6.3.3 For Meet-Point billing, BROOKS FIBER's End Office switch
(i.e., Routing Point) shall subtend the NYNEX Access Tandem nearest to such
Routing Point, as measured in airline miles utilizing the V&H coordinate method.
Alternative configurations will be discussed as part of the Joint Grooming Plan
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7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Services Traffic
7.1.1 Each Party shall route Information Service Traffic which
originates on its own network to the appropriate information services
platform(s) connected to the other Party's network. BROOKS FIBER and NYNEX will
jointly establish a dedicated trunk group to the NYNEX information services
switch. This trunk group will be utilized to allow BROOKS FIBER to route
information service traffic originated on its network to NYNEX, and to allow
BROOKS FIBER to receive Information Services Traffic from NYNEX for a trial of
interim number portability arrangements related to information services traffic.
7.1.2 The Party ("Originating Party") on whose network the
Information Services Traffic originated shall provide an electronic file
transfer or monthly magnetic tape containing recorded call detail information to
the Party ("Terminating Party") to whose information platform the Information
Services Traffic terminated.
7.1.3 The Terminating Party shall provide to the Originating Party
via electronic file transfer or magnetic tape or other means as available all
necessary information to rate the Information Services Traffic to the
Originating Party's Customers pursuant to the Terminating Party's agreements
with each information provider. Information shall be provided in as timely a
fashion as practical in order to facilitate record review and reflect actual
prices set by the individual information providers.
7.1.4 For fixed price services, the Originating Party shall bill and
collect such information provider charges and remit the amounts collected to the
Terminating Party less:
(a) The Information Services Billing and Collection fee set forth
on the Pricing Schedule; and
(b) Customer adjustments provided by the Originating Party.
The Originating Party shall provide to the Terminating Party sufficient
information regarding uncollectibles and Customer adjustments. The Terminating
Party shall pass through the adjustments to the information provider. However,
if the information provider disputes such adjustments and refuses to accept such
adjustments, the Originating Party shall reimburse the Terminating Party for all
such disputed adjustments. Final resolution regarding all disputed adjustments
shall be solely between the Originating Party and the information provider.
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7.1.5 Nothing in this Agreement shall restrict either Party from
offering to its Exchange Service Customers the ability to block the completion
of Information Service Traffic.
7.1.6 The Parties will establish separate arrangements for the
billing and compensation of variable-rated information services.
7.1.7 NYNEX agrees that it shall make available to BROOKS FIBER, at
BROOKS FIBER's sole option, any Information Services arrangement NYNEX offers to
another Telecommunications Carrier at the same rates, terms and conditions
provided to such other Telecommunications Carrier, at the rates, terms and
conditions set forth in its applicable tariffs, or as provided by law, rule or
regulation.
7.2 Tandem Transient Service ("Transit Service")
7.2.1 "Transit Service" means the delivery of certain traffic
between BROOKS FIBER and a LEC by NYNEX over the Local/IntraLATA/InterLATA
Trunks. The following traffic types will be delivered: (i) Local or Intralata
Toll Traffic originated from BROOKS FIBER to such LEC and (ii) Local Traffic or
IntraLATA Toll Traffic originated from such LEC and terminated to BROOKS FIBER
where NYNEX carries such traffic.
7.2.2 Subject to Section 7.2.4, the Parties shall compensate each
other for Transit Service as follows:
(a) BROOKS FIBER shall pay NYNEX for Local Traffic BROOKS FIBER
originated over the Transit Service at the rate specified in
the Pricing Schedule plus any additional charges or costs such
terminating LEC imposes or levies on NYNEX for the delivery or
termination of such traffic, including any switched access
charges;
(b) NYNEX shall pay BROOKS FIBER for Local, InterLATA, or
IntraLATA Toll Traffic terminated to BROOKS FIBER from such
LEC at the appropriate Reciprocal Compensation rates described
in Section 5.7, InterLATA access rates, or (where NYNEX
delivers such traffic pursuant to the PUC's primary toll
carrier plan or other similar plan) at BROOKS FIBER's
applicable switched access rates or local termination rate,
whichever is appropriate.
7.2.3 While the Parties agree that it is the responsibility of a LEC
to enter into arrangements to deliver Local Traffic to BROOKS FIBER, they
acknowledge that such arrangements are not currently in place and an interim
arrangement is necessary to ensure traffic completion. Accordingly, until the
earlier of (i) the date on which either Party has entered into an arrangement
with such LEC to deliver Local Traffic to BROOKS FIBER or (ii) one-hundred and
eighty (180) days after the Interconnection
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Activation Date, NYNEX will deliver and BROOKS FIBER will terminate Local
Traffic originated from such LEC without charge to one another.
7.2.4 NYNEX expects that all networks involved in transit traffic
will deliver each call to each involved network with CCIS and the appropriate
Transactional Capabilities Application Part ("TCAP") message to facilitate full
interoperability of those services supported by NYNEX as noted in Section 1.12
and billing functions. In all cases, BROOKS FIBER is responsible to follow the
Exchange Message Record ("EMR") standard and exchange records with both NYNEX
and the terminating LEC to facilitate the billing process to the originating
network.
7.2.5 NYNEX agrees that it shall make available to BROOKS FIBER, at
BROOKS FIBER's sole option, any Tandem Transient arrangement NYNEX offers to
another Telecommunications Carrier at the same rates, terms, and conditions
provided to such other Telecommunications carrier, at the rates, terms and
conditions set forth in its applicable tariffs, or as provided by law, rule or
regulation.
7.3 Dedicated Transit Service
7.3.1 "Dedicated Transit Service" provides for the dedicated
connection between a BROOKS FIBER Collocation arrangement established pursuant
to applicable tariffs and/or license agreements at a NYNEX premises and a
Collocation arrangement of a third party carrier that maintains a Collocation
arrangement at the same premises. Dedicated Transit Service shall be provided
using a Cross-Connection (dedicated connection) using suitable NYNEX-provided
cable or transmission facilities or any other mutually agreed upon arrangement.
7.3.2 The carrier that requests the Dedicated Transit Service shall
be the customer of record for both ends of the service in terms of ordering,
provisioning, maintenance, and billing. Alternative arrangements may be utilized
if agreed upon by all three Parties.
7.3.3 NYNEX agrees that it shall make available to BROOKS FIBER, at
BROOKS FIBER's sole option, any Dedicated Transit arrangement NYNEX offers to
another Telecommunications Carrier at the same rates, terms, and conditions
provided to such other Telecommunications carrier, at the rates, terms and
conditions set forth in its applicable tariffs, or as provided by law, rule or
regulation.
7.4 911/E911 Arrangements
7.4.1 BROOKS FIBER will interconnect to the NYNEX 911/E911 selective
router/911 tandems which serve the areas in which BROOKS FIBER provides exchange
services, for the provision of 911/E911 services and for access to all
subtending Public Safety Answering Points ("PSAP's"). NYNEX will provide BROOKS
FIBER with the appropriate CLLI codes and specifications of the tandem serving
area.
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7.4.2 Path and route diverse interconnections for 911/E911 shall be
made at the B-IP, the N-IP, or other points as necessary and mutually agreed.
7.4.3 NYNEX will provide BROOKS FIBER with an electronic interface
through which BROOKS FIBER shall input and provide a daily update of 911/E911
database information related to appropriate BROOKS FIBER Customers. NYNEX will
provide BROOKS FIBER with the Master Street Address Guide (MSAG) so that BROOKS
FIBER can ensure the accuracy of the data transfer. Additionally, NYNEX shall
assist BROOKS FIBER in identifying the appropriate person in each municipality
for the purpose of obtaining the ten-digit Subscriber number of each PSAP.
7.4.4 NYNEX and BROOKS FIBER will use their best efforts to
facilitate the prompt, robust, reliable and efficient Interconnection of BROOKS
FIBER's systems to the 911/E911 platforms.
7.4.5 BROOKS FIBER will compensate NYNEX for connections to its
911/E911 System pursuant to the Pricing Schedule.
7.4.6 Both Parties will comply with all applicable rules and
regulations pertaining to the provision of 911/E911 services in the State of
Rhode Island.
8.0 JOINT NETWORK CONFIGURATION AND GROOMING PLAN; AND INSTALLATION,
MAINTENANCE, TESTING AND REPAIR.
8.1 Joint Network Configuration and Grooming Plan. On or before August 1,
1997, BROOKS FIBER and NYNEX shall jointly develop a grooming plan (the "Joint
Grooming Plan") which shall define and detail, inter alia,
(a) agreement on Physical Architecture consistent with the guidelines
defined in Section 4.0;
(b) standards to ensure that Interconnection trunk groups experience a
grade of service, availability and quality which is comparable to
that achieved on interoffice trunks within NYNEX's network and in
accord with all appropriate relevant industry-accepted quality,
reliability and availability standards;
(c) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of the trunk groups,
including but not limited to standards and procedures for
notification and discoveries of trunk disconnects;
(d) disaster recovery provision escalations;
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(e) provisions for expediting orders; and
(f) such other matters as the Parties may agree.
8.2 Installation, Maintenance, Testing and Repair. NYNEX's standard
intervals as set forth in Schedule 8.2 attached will be utilized in connection
with the establishment of all Interconnection trunking arrangements between the
Parties. BROOKS FIBER 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 NYNEX of its inability to do so and will negotiate such intervals in good
faith.
9.0 UNBUNDLED ACCESS -- SECTION 251(c)(3)
Pursuant to Section 251 (c)(3), NYNEX shall provide nondiscriminatory
access to Network Elements on an Unbundled basis at any technically feasible
point on rates, terms and conditions that are just, reasonable and
nondiscriminatory in accordance with the terms an conditions of this Agreement
and Section 252 of the Act.
9.1 Local Link Transmission Types
Subject to Section 9.5, NYNEX shall allow BROOKS FIBER to access the
following Link types unbundled from local switching and local transport in
accordance with the terms and conditions set forth in this Section 9.
9.1.1 "2-Wire Switched Analog Voice Grade Links" or "Analog 2W"
("SVGAL") which support analog transmission of 300-3000 Hz, repeat link start,
link reverse battery, or ground start seizure and disconnect in one direction
(toward the End Office Switch), and repeat ringing in the other direction
(toward the Customer). Analog 2W include Links sufficient for the provision of
PBX trunks, pay telephone lines and electronic key system lines.
9.1.2 "4-Wire Switched Analog Voice Grade Links" or "Analog 4W"
("SVGALs") which support transmission of voice grade signals using separate
transmit and receive paths and terminate in a 4-wire electrical interface.
9.1.3 "2-Wire ISDN Digital Grade Links" or "BRI ISDN" (Premium Link)
which support digital transmission of two 64 Kbps bearer channels and one 16
Kbps data channel. BRI ISDN is a 2B+D Basic Rate Interface-Integrated Services
Digital Network (BRI-ISDN) Link which will meet national ISDN standards and
conform to ANSI T1.601-1992 & T1E1.4 90-004R3.
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9.1.4 Extended Link Extended Link service is a channel which enables
BROOKS FIBER when it is physically collocated in a given NYNEX central office to
access unbundled links served from another NYNEX central office. Extended Link
service is a designed service (similar to special access and private line
services) which requires detailed engineering to assure that the service
provided conforms to specific transmission performance standards unique to the
specific service e.g., voice grade DS0, DS1 and DS3.
9.1.5 Links will be offered on the terms and conditions specified
herein and on such other terms in applicable tariffs that are not inconsistent
with the terms and conditions set forth herein. NYNEX shall make Links available
to BROOKS FIBER at the rates specified in the Pricing Schedule, as amended from
time to time, subject to the provisions of Section 9.9 or as subsequently
determined by the PUC.
9.2 ADSL AND HDSL
9.2.1 The Parties acknowledge that ADSL is not currently deployed
for use in the NYNEX network. If the issues surrounding deployment of ADSL in
NYNEX's network are satisfactorily resolved and ADSL is deployed, NYNEX shall
allow BROOKS FIBER access ADSL Links unbundled from local switching and local
transport in accordance with the terms and conditions set forth in this Section
9.0.
9.2.2 "2-Wire ADSL-Compatible Link" or "ADSL 2W" is a transmission
path that facilitates the transmission of up to a 6 Mbps digital signal
downstream (toward the Customer) and up to a 640 Kbps digital signal upstream
(away from the Customer) while simultaneously carrying an analog voice signal.
An ADSL-2W is provided over a 2-Wire non-loaded twisted copper pair provisioned
using revised resistance design guidelines and meeting ANSI Standard
T1.413-1995-007R2. An ADSL-2W terminates 2-wire electrical interface at the
Customer premises and at the NYNEX Central Office frame. ADSL technology can
only be deployed over Links which extend less than 18 Kft. From NYNEX's Central
Office. ADSL compatible Links will only be made available where existing copper
facilities can meet the ANSI T1.413-1995-007R2 specifications.
9.2.3 "2-Wire HDSL-Compatible Link" or "HDSL 2W" is a transmission
path that facilitates the transmission of a 768 Kbps digital signal over a
2-Wire non-loaded twisted copper pair meeting the specifications in ANSI T1E1
Committee Technical Report Number 28 / T1E1.4/92-002R3. HDSL compatible Links
will only be made available where existing copper facilities can meet the T1E1
Technical Report Number 28 specifications.
9.2.4 "4-Wire HDSL-Compatible Link" or "HDSL 4W" is a transmission
path that facilitates the transmission of a 1.544 Mbps digital signal over two
2-Wire non-loaded twisted copper pairs meeting the specifications in ANSI T1E1
Committee Technical Report Number 28. HDSL compatible Links will only be made
available where existing copper facilities can meet the specifications.
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9.2.5 HDSL and ADSL compatible links will be offered on the terms
and conditions specified herein and on such other terms in applicable tariffs
that are not inconsistent with the terms and conditions set forth herein. NYNEX
shall make such links available to BROOKS FIBER at rates approved by the PUC, as
amended from time to time.
9.3 Port Types
NYNEX shall make available to BROOKS FIBER unbundled Ports in accordance
with the terms and conditions of and at the rates specified in the Pricing
Schedule.
9.4 Private Lines, Special Access and Switched Transport
NYNEX shall provide unbundled private lines, special access and switched
local transport from the trunk side of its switches in accordance with the terms
and conditions of and at the rates specified in applicable tariffs.
9.5 Limitations on Unbundled Access
9.5.1 Unless otherwise allowed by the FCC or PUC, BROOKS FIBER may
not cross-connect a NYNEX-provided Link to a NYNEX- provided Port but instead
shall purchase a network access line under applicable tariffs.
9.5.2 NYNEX shall only be required to provide Links and Ports where
such Links and Ports are available.
9.5.3 BROOKS FIBER shall access NYNEX's unbundled Network Elements
specifically identified in this Agreement via Collocation in accordance with
Section 12 at the NYNEX Wire Center where those elements exist and each Link or
Port shall be delivered to BROOKS FIBER's Collocation node by means of a Cross
Connection which in the case of Links, is included in the rates set forth in the
Pricing Schedule, or via such other alternative Interconnection arrangement(s)
as the Parties may mutually agree, or FCC rules, the Act or PUC rules may
otherwise require.
9.5.4 NYNEX shall provide BROOKS FIBER access to its unbundled Links
at each of NYNEX's Wire Centers. In addition, if BROOKS FIBER's requests one or
more Links serviced by Integrated Digital Link Carrier or Remote Switching
technology deployed as a Link concentrator, NYNEX shall, where available, move
the requested Link(s) to a spare, existing physical Link at no charge to BROOKS
FIBER. If, however, no spare physical Link is available, NYNEX shall within
three (3) business days of BROOKS FIBER's request notify BROOKS FIBER of the
lack of available facilities. BROOKS FIBER may then at its discretion make a
Network Element Bona Fide
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Request to NYNEX to provide the unbundled Link through the demultiplexing of the
integrated digitized Link(s). BROOKS FIBER may also make a Network Element Bona
Fide Request for access to unbundled Links at the Link concentration site point.
Notwithstanding anything to the contrary in this Agreement, the provisioning
intervals set forth in Section 9.7 and the Performance Interval Dates and
Performance Criteria set forth in Section 27.0 shall not apply to unbundled
Links provided under this Section 9.5.4.
9.5.5 If BROOKS FIBER orders a Link type and the distance requested
on such Link exceeds the transmission characteristics as referenced in the
corresponding Technical Reference specified below, distance extensions may be
required and additional rates and charges shall apply as set forth on the
Pricing Schedule.
Link Type Technical Reference/Limitation
Electronic Key Line 2.5 miles
ISDN Bellcore TA-NWT-000393
HDSL 2W T1E1 Technical Report Number 28
HDSL 4W T1E1 Technical Report Number 28
ADSL 2W ANSI T1.413-1995 Specification
9.6 Availability of Other Network Elements on an Unbundled Basis
9.6.1 NYNEX shall, upon request of BROOKS FIBER, at any Technically
Feasible Point provide to BROOKS FIBER access to its Network Elements on an
unbundled basis for the provision of BROOKS FIBER's Telecommunications Service.
Any request by BROOKS FIBER for access to a NYNEX Network Element that is not
already available shall be treated as a Network Element Bona Fide Request.
BROOKS FIBER shall provide NYNEX access to its Network Elements as mutually
agreed by the Parties or as required by the Act, PUC or FCC.
9.6.2 NYNEX shall provide Network Elements to BROOKS FIBER under
this Section 9.6 subject to the requirements of Sections 251 (c) (3) and (d) (2)
(A) and applicable FCC and/or PUC rules.
9.7 Provisioning of Unbundled Links
The following coordination procedures shall apply for new unbundled Links
and the conversions of "live" Telephone Exchange Services to unbundled Links
(herein after referred to as "hot cuts"):
9.7.1 BROOKS FIBER shall request unbundled Links from NYNEX by
delivering to NYNEX a valid electronic transmittal Service Order using the NYNEX
electronic ordering platform (as cooperatively designed and implemented to meet
the minimum requirements for information exchange needed to order and provision
services to certified local exchange carriers and enhanced to support industry
standards as developed for interconnection services) or another mutually agreed
upon system. Within two (2) business days of NYNEX's receipt of a Service Order,
NYNEX shall provide BROOKS FIBER the firm order commitment ("FOC") date
according to the applicable Performance
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Standards set forth in Schedule 27.0 by which the Link(s) covered by such
Service Order will be installed.
9.7.2 NYNEX agrees to respond to BROOKS FIBER's Service Orders on a
non-discriminatory basis consistent with the manner in which it provides service
to its own retail customers or any other Telecommunications Carrier.
9.7.3 NYNEX agrees to accept from BROOKS FIBER at the time the
service request is submitted for scheduled conversion of hot cut unbundled link
orders, a desired date and time (the "Scheduled Conversion Time") in the "A.M."
(12:01 a.m. to 12:00 noon) or "P.M." (12:01 p.m. to 12:00 midnight) (as
applicable, the "Conversion Window") for the hot cut.
9.7.4 NYNEX shall test for BROOKS FIBER dial tone at the POT bay by
testing through the tie cable provisioned between the NYNEX main distributing
frame and the BROOKS FIBER expanded interconnection node forty-eight (48) hours
prior to the Scheduled Conversion Time.
9.7.5 Not less than one hour prior to the Scheduled Conversion Time,
either Party may contact the other Party and unilaterally designate a new
Scheduled Conversion Time (the "New Conversion Time"). If the New Conversion
Time is within the Conversion Window, no charges shall be assessed on or waived
by either Party. If, however, the New Conversion Time is outside of the
Conversion Window, the Party requesting such New Conversion Time shall be
subject to the following:
If NYNEX requests the New Conversion Time, the applicable Service
Order Charge shall be waived; and
If BROOKS FIBER requests the New Conversion Time, BROOKS FIBER shall
be assessed a Line Connection Charge in addition to the Service
Order Charge that will be incurred for the New Conversion Time.
9.7.6 Except as otherwise agreed by the Parties for a specific
conversion, such as large cutovers of ten lines or more that have negotiated
intervals, the Parties agree that the time interval expected from disconnection
of NYNEX's "live" Telephone Exchange Service to the connection of an unbundled
Network Element at the BROOKS FIBER Collocation node's POT Bay will be
accomplished within a window of time as detailed following: Between the
effective date of this Agreement and 9/30/97 ninety (90) minutes; from 10/1/97
through the end of this agreement sixty (60) minutes or less. If a conversion
interval exceeds sixty (60) minutes and such delay is caused solely by NYNEX
(and not by a contributing Delaying Event (as defined in Section 27.4)), NYNEX
shall waive the applicable Service Order Charge for such element. If BROOKS
FIBER has ordered INP with the installation of a Link, NYNEX will coordinate the
implementation of INP with the Link conversion during with the above stated
intervals at no additional charge.
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9.7.7 If either Party requests or approves the other Party's NYNEX
technician to perform services in excess of or not otherwise contemplated by the
Service Order charge either Party may charge the other Party for any additional
and reasonable labor charges to perform such services.
9.7.8 If as the result of end user actions, (e.g., Customer not
ready ["CNR"]), NYNEX cannot complete requested work activity when a technician
has been dispatched to the site BROOKS FIBER will be assessed a non-recurring
charge associated with this visit. This charge will be the sum of the Service
Order Charge and Premises Visit Charge as specified in Tariff P.U.C. - R.I. -
No. 15.
9.7.9 Until such time as the PUC approves an unbundled network
element non-recurring Service Order Charge, an interim non-recurring service
order charge shall apply on a per link basis. The interim service order rate
shall equal the Service and Equipment Charge to install a business network
access line, as specified in Tariff P.U.C. - R.I. - No. 15.
9.8 Maintenance of Unbundled Network Elements
If (i) BROOKS FIBER reports to NYNEX a Customer trouble, (ii) BROOKS FIBER
requests a dispatch, (iii) NYNEX dispatches a technician, and (iv) such trouble
was not caused by NYNEX's facilities or equipment in whole or in part, then
BROOKS FIBER shall pay NYNEX a trip charge of $45.00 and $18.00 per quarter hour
for time associated with said dispatch beyond the first 1/2 hour. In addition
this charge also applies when the end user contact as designated by BROOKS FIBER
is not available at the appointed time. BROOKS FIBER accepts responsibility for
initial trouble isolation and providing NYNEX with appropriate dispatch
information based on their test results. If as the result of BROOKS FIBER's
instructions, NYNEX is erroneously requested to dispatch within a NYNEX Central
Office or to a POT Bay ("dispatch in"), a charge of $100.00 per occurrence will
be assessed to BROOKS FIBER by NYNEX. NYNEX agrees to respond to BROOKS FIBER
trouble reports on a non-discriminatory basis consistent with the manner in
which it provides service to its own retail customers or any other
Telecommunications Carrier.
9.9 True-Up of Monthly Unbundled Link Charges for Rhode Island
9.9.1 NYNEX and BROOKS FIBER agree to provide true-ups to one
another for all links purchased in Rhode Island by BROOKS FIBER through the end
of the initial term of this Agreement up to:
a) the date of the Initial Link Rate Decision, as defined in
Section 9.9.3; and for
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b) the date of the Final Link Rate Decision, as defined in
Section 9.9.4.
9.9.2 "Current Monthly Rates" is as set forth in the Pricing
Schedule.
9.9.2.1 Notwithstanding the foregoing paragraph 9.9.2, nothing
in this Agreement shall be construed to imply that BROOKS FIBER agrees that the
rate set forth in Section 9.9.2 is a reasonable or appropriate charge for
unbundled Links.
9.9.3 "Initial Link Rate Decision" is any decision of the PUC
establishing any interim monthly link rates which is issued subsequent to the
date of the execution of this Agreement and before the expiration of the initial
term of this Agreement.
9.9.4 "Final Link Rate Decision" represents the lower of any of the
following which occur during the initial term of this Agreement:
a) a decision of the PUC establishing permanent monthly
link rates which is issued subsequent to either the date
of this Agreement or the Initial Link Rate Decision as
modified by any rulings by the FCC or appeals ruled upon
in any federal or state court of competent jurisdiction,
b) any rate established through arbitration between NYNEX
and a third party that is approved by a ruling of the
PUC, the FCC or any federal or state court of competent
jurisdiction.
c) the most favorable negotiated Link rate agreed to by
NYNEX and a third party in Rhode Island.
9.9.5 "Initial Link Months" represents the cumulative sum of total
links in service to BROOKS FIBER each month for the period beginning on the
effective date of this Agreement and ending at the date of the Initial Link Rate
Decision. For example, if 10 links are in service each month for 5 months, the
number of Link Months would equal 50.
9.9.6 "Final Link Months" represents the cumulative sum of total
links in service to BROOKS FIBER each month for the period beginning on the
effective date of this Agreement and ending at the date of the Final Link Rate
Decision.
9.9.7 "Initial Per-Link True-up" represents the difference between
the Current Monthly Rate and the rate established under the Initial Link Rate
Decision.
9.9.8 "Final Per-Link True-up" represents the difference between the
rate established under any Initial Link Rate Decision and the Final Link Rate
Decision; or the
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difference between the Current Monthly Rate and the Final Link Rate Decision
absent any Initial Link Rate Decision.
9.9.9 "Initial True-up Amount" is the product amount calculated by
multiplying Initial Link Months by the Initial Per-Link True-up.
9.9.10 "Final True-up Amount" is the product amount calculated by
multiplying Link Months by the Final Per-Link True-up.
9.9.11 NYNEX agrees to pay BROOKS FIBER and BROOKS FIBER agrees to
pay NYNEX the Initial True-up Amount as applicable within thirty (30) days of
the Initial Link Rate Decision.
9.9.12 NYNEX agrees to pay BROOKS FIBER and BROOKS FIBER agrees to
pay NYNEX the Final True-up Amount as applicable within thirty (30) days of any
Final Link Decision.
9.9.13 BROOKS FIBER and NYNEX will track the number of Link Months
on a prospective basis up until payment of the Final True-up Amount.
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
10.1 Availability of Wholesale Rates for Resale
NYNEX shall offer to BROOKS FIBER for resale at wholesale rates its local
exchange telecommunications services, as described in Section 251(c)(4) of the
Act, at the rates set forth in the Pricing Schedule, pending approval by the PUC
of permanent resale rates. NYNEX shall make such resale arrangements available
to BROOKS FIBER as soon as it makes such resale service generally available in
the State of Rhode Island.
10.2 Availability of Retail Rates for Resale
Each Party shall make available its Telecommunications Services for resale
at retail rates to the other Party in accordance with Section 251(b)(1) of the
Act in accordance with each Party's applicable approved tariffs.
10.3 Term and Volume Discounts
Upon request, NYNEX agrees to offer term and volume discounts for resold
retail services.
11.0 NOTICE OF CHANGES -- SECTION 251(c)(5)
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If a Party makes a change in its network which it believes will materially
affect the inter-operability 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.
12.0 COLLOCATION -- SECTION 251(c)(6)
12.1 Upon request, NYNEX shall provide to BROOKS FIBER Physical
Collocation for its transport facilities and equipment, pursuant to the terms
and conditions of NYNEX's applicable tariffs on file with the FCC and the PUC as
necessary for Interconnection (pursuant to Section 4.0) or for access to
unbundled Network Elements (pursuant to Section 9.0). NYNEX may provide for
Virtual Collocation if NYNEX demonstrates to the PUC that Physical Collocation
is not practical for technical reasons or because of space limitations, as
provided in Section 251(c)(6) of the Act. Upon request by BROOKS FIBER and to
the extent technically feasible and as space permits, NYNEX shall provide
Collocation at additional locations for placement of such equipment and
alternative physical Collocation arrangements.
12.2 BROOKS FIBER agrees to provide to NYNEX upon NYNEX's Network Element
Bona Fide Request, Collocation of equipment for purposes of Interconnection
(pursuant to Section 4.0) on a non-discriminatory basis and at comparable rates,
terms and conditions as BROOKS FIBER may provide to other common carriers.
BROOKS FIBER shall provide such Collocation subject to applicable tariffs or
contracts.
12.3 The Collocating Party shall provide its own or third-party leased
transport facilities and terminate those transport facilities in equipment
located in its Physical Collocation space at the Housing Party's premises as
described in applicable tariffs or contracts and purchase Cross Connection to
services or facilities as described in applicable tariffs or contracts.
12.4 BROOKS FIBER may install Remote Switching Modules ("RSMs") inside
Collocation spaces unless and until the FCC determines that incumbent LECs need
not permit Collocation of such equipment, in which event NYNEX must allow BROOKS
FIBER a reasonable transition period for removing or replacing such equipment.
12.5 To the extent not specified in this Agreement, the rates, terms and
conditions governing Collocation shall be those contained in applicable NYNEX
tariffs, NYNEX's standard Collocation license agreement, or (at the option of
BROOKS FIBER) the Collocation portion of an approved Rhode Island
Interconnection agreement between NYNEX and another carrier.
13.0 NUMBER PORTABILITY -- SECTION 251(b)(2)
13.1 Scope
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13.1.1 The Parties shall provide Number Portability on a reciprocal
basis to each other to the extent technically feasible, and in accordance with
rules and regulations as from time to time prescribed by the FCC and/or the PUC.
13.1.2 Until Number Portability is implemented by the industry
pursuant to regulations issued by the FCC or the PUC, the Parties agree to
provide Interim Telecommunications Number Portability ("INP") to each other
through remote call forwarding, Route Indexing, and full NXX code migration at
the prices listed in the Pricing Schedule.
13.1.3 Once Number Portability is implemented pursuant to FCC or PUC
regulation, either Party may withdraw, at any time and at its sole discretion,
its INP offerings, subject to advance notice to the other Party and coordination
to allow the seamless and transparent conversion of INP Customer numbers to
Number Portability. Upon implementation of Number Portability pursuant to FCC
regulation, both Parties agree to conform and provide such Number Portability.
13.2 Procedures for Providing INP Through Remote Call Forwarding
BROOKS FIBER and NYNEX will provide INP through Remote Call Forwarding as
follows:
13.2.1 A Customer of one Party ("Party A") elects to become a
Customer of the other Party ("Party B"). The Customer elects to utilize the
original telephone number(s) corresponding to the Exchange Service(s) it
previously received from Party A, in conjunction with the Exchange Service(s) it
will now receive from Party B. Upon receipt of a signed letter of agency from
the Customer (and an associated service order) assigning the number to Party B,
Party A will implement an arrangement whereby all calls to the original
telephone number(s) will be forwarded to a new telephone number(s) designated by
Party B. Party A will route the forwarded traffic to Party B over the
appropriate Local/IntraLATA Trunks as if the call had originated on Party A's
network.
13.2.2 Party B will become the customer of record for the original
Party A telephone numbers subject to the INP arrangements. Party A shall use its
reasonable efforts to consolidate into as few billing statements as possible all
collect, calling card, and 3rd-number billed calls associated with those
numbers, with sub-account detail by retained number. At Party B's sole
discretion, such billing statement shall be delivered to Party B in an
agreed-upon format via either electronic file transfer, daily magnetic tape, or
monthly magnetic tape.
13.2.3 Party A will update its Line Information Database ("LIDB")
listings for retained numbers, and restrict or cancel calling cards associated
with those forwarded numbers as directed by Party B.
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13.2.4 Within two (2) business days of receiving notification from
the Customer, Party B shall notify Party A of the Customer's termination of
service with Party B, and shall further notify Party A as to that Customer's
instructions regarding its telephone number(s). Party A will reinstate service
to that Customer, cancel the INP arrangements for that Customer's telephone
number(s), or redirect the INP arrangement to another INP-participating-LEC
pursuant to the Customer's instructions at that time.
13.3 Procedures for Providing INP Through Route Indexing
Upon mutual agreement, NYNEX will deploy a Route Index arrangement as
mutually agreed upon, which combines direct trunks, provisioned between NYNEX's
and BROOKS FIBER's End Offices, with trunk side routing translations and full
SS7 functionality. Under this arrangement, inbound calls to a ported number will
be pointed at a route index that sends the call to a dedicated trunk group,
built as a direct final, for the sole purpose of facilitating completion of
calls to a ported number. NYNEX will coordinate with BROOKS FIBER to provide
this solution in a mutually agreeable and administratively manageable manner
(e.g., NXX level) so as to minimize switch resource utilization for both
Parties.
13.4 Procedures for Providing INP Through Full NXX Code Migration
Where either Party has activated an entire NXX for a single Customer, or
activated a substantial portion of an NXX for a single Customer with the
remaining numbers in that NXX either reserved for future use or otherwise
unused, if such Customer 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 be
accomplished with appropriate coordination between the Parties and subject to
appropriate industry lead-times for movements of NXXs from one switch to
another.
13.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers
The Parties agree that under INP terminating compensation on calls to
INP'ed numbers should be received by each Customer's chosen LEC as if each call
to the Customer had been originally addressed by the caller to a telephone
number bearing an NPA-NXX directly assigned to the Customer's chosen LEC. In
order to accomplish this objective where INP is employed, the Parties shall
utilize the process set forth in this Section 13.5 whereby terminating
compensation on calls subject to INP will be passed from the Party (the
"Performing Party") which performs the INP to the other Party (the "Receiving
Party") for whose Customer the INP is provided.
13.5.1 The Parties shall individually and collectively track and
quantify INP traffic between their networks based on the CPN of each call by
identifying CPNs which are INP'ed numbers. The Receiving Party shall charge the
Performing Party for
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each minute of INP traffic at the INP Traffic Rate specified in Section 13.6.3
in lieu of any other compensation charges for terminating such traffic.
13.5.2 By the Interconnection Activation Date, the Parties shall
jointly estimate for the prospective year, based on historic data of all traffic
in the LATA, the percentages of such traffic that if dialed to telephone numbers
bearing NPA-NXXs directly assigned to a Receiving Party (as opposed to the
INP'ed number) would have been subject to (i) Local Traffic exchanged between
the Parties ("Local Reciprocal Traffic"), (ii) IntraLATA Toll Traffic exchanged
between the Parties ("IntraLATA Toll Reciprocal Traffic", iii) appropriate
Intrastate FGD charges ("Intra Traffic"), (iv) Interstate FGD charges ("Inter
Traffic"), or (v) handling as Local Traffic under transiting arrangements
between the Parties ("Transit Traffic"). On the date which is six (6) months
after the Interconnection Activation Date, and thereafter on each succeeding six
month anniversary of such Interconnection Activation Date, the Parties shall
establish new INP traffic percentages to be applied in the prospective six (6)
month period, based on actual INP traffic percentages from the preceding six (6)
month period.
13.5.3 The INP Traffic Rate shall be equal to the sum of:
(Local Reciprocal Traffic percentage times the Local Reciprocal
Compensation Rate set forth in the Pricing Schedule) plus (IntraLATA
Toll Reciprocal Traffic percentage times NYNEX's effective
intrastate FGD rates, less rates for tandem switching and transport
functions performed by the Performing Party) plus (Interstate
IntraLATA Traffic percentage times NYNEX's effective interstate FGD
rates, less rates for tandem switching and transport functions
performed by the Performing Party).
A rate of zero shall be applied to the Transit Traffic percentage.
13.6 True-up of Monthly INP Costs
13.6.1 Until such time as a competitively neutral cost recovery
mechanism is implemented pursuant to a PUC or FCC order ("the Interim Recovery
Period"), the Parties shall track and record the cumulative sum of ported
numbers provided via an INP functionality to each other each month for the
purpose of calculating an INP true-up amount that the Party providing an INP
functionality may then be entitled to bill and receive under such PUC or FCC
order. The true-up amount shall equal the sum of the ported number provided to
the Party receiving the INP functionality, multiplied by the number of months
applicable to each ported number during the Interim Recovery Period, multiplied
by the Final INP Rate set by the PUC or FCC.
13.6.2 In the event the PUC or FCC establishes a competitively
neutral cost recovery mechanism which allows recovery of amounts for the
provision of INP functionalities different from those amounts listed for such
functionalities in the Pricing Schedule, the Parties shall adopt such different
amounts in accordance with such
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competitively neutral cost recovery mechanism. Should the FCC or PUC adopt a
competitively neutral cost recovery mechanism for INP which differs from that
stipulated to by the Parties herein the Parties shall adopt such a mechanism
pursuant to said order in lieu of the payment arrangements outlined in this
Section 13.0.
14.0 NUMBER RESOURCES ASSIGNMENTS
NYNEX shall assign to BROOKS FIBER NXX codes in accordance with national
guidelines at no charge.
15.0 DIALING PARITY -- SECTION 251(b)(3)
NYNEX shall provide Local Dialing Parity as required under Section
251(b)(3) of the Act in the following manner: Telephone numbers are provided
pursuant to Section 14.0; Directory Assistance is provided pursuant to Section
19.2; Directory Listings are provided pursuant to section 19.1; and Operator
Services are provided to Sections 19.2.4 and 19.2.6.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
Each Party shall provide the other Party access to its poles, ducts,
rights-of-way and conduits it owns or controls, to the extent permitted by law
and as required by Section 224 of the Act or PUC Order, on terms, conditions and
prices comparable to those offered to any other entity pursuant to each Party's
applicable tariffs and/or standard agreements with such entities.
17.0 DATABASES AND SIGNALING
NYNEX shall provide BROOKS FIBER with interfaces to access NYNEX's
databases, including LIDB and 800/888, as well as DCAS for ordering and
provisioning purposes, and associated signaling necessary for the routing and
completion of BROOKS FIBER's traffic through the provision of SS7 under its
applicable tariffs.
18.0 REFERRAL ANNOUNCEMENT
When a Customer changes its service provider from NYNEX to BROOKS FIBER,
or from BROOKS FIBER to NYNEX, and does not retain its original telephone
number, the Party formerly providing service to such Customer shall provide a
referral announcement ("Referral Announcement") on the abandoned telephone
number which provides details on the Customer's new number. Referral
Announcements shall be provided reciprocally, free of charge to either the other
Party or the Customer, for a period of not less than four (4) months after the
date the Customer changes its telephone number in the case of business Customers
and not less than sixty (60) days after the date the Customer changes its
telephone number in the case of residential Customers. However, if either Party
provides Referral Announcements for a period different than the
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above respective periods when its Customers change their telephone numbers, such
Party shall provide the same level of service to Customers of the other Party.
19.0 DIRECTORY SERVICES ARRANGEMENTS
NYNEX will provide certain directory services to BROOKS FIBER as defined
herein. In this Section 19 of this Agreement, references to BROOKS FIBER
Customer telephone numbers means telephone numbers falling within NXX codes
directly assigned to BROOKS FIBER and to numbers which are retained by BROOKS
FIBER on the Customer's behalf pursuant to Interim Telecommunications Number
Portability arrangements described in Section 13 of this Agreement.
19.1 Directory Listings and Directory Distributions
19.1.1 NYNEX will include BROOKS FIBER Customers telephone numbers
in all of its "White Pages" and "Yellow Pages" directory listings (including
electronic directories) and directory assistance databases associated with the
areas in which BROOKS FIBER provides services to such Customers, and will
distribute such directories to such Customers, in an identical and transparent
manner in which it provides those functions for its own Customers' telephone
numbers.
19.1.2 NYNEX will include all BROOKS FIBER NXX codes on appropriate
existing calling charts in the NYNEX Customer Guide section of the directory in
the same manner as it provides this information for its own NXX codes.
19.1.3 BROOKS FIBER will provide NYNEX with its directory listings
and daily updates to those listings (including new, changed, and deleted
listings) in a mutually agreed upon format at no charge.
19.1.4 NYNEX will accord BROOKS FIBER directory listing information
the same level of confidentiality which NYNEX accords its own directory listing
information.
19.1.5 NYNEX shall provide BROOKS FIBER at no charge with (i) one
basic single line white and yellow page directory listing per business Customer
number, or one basic single line white page directory listing per residence
Customer number, (ii) directory distribution for BROOKS FIBER Customers, and
(iii) listings of BROOKS FIBER Customers in the directory assistance database.
19.1.6 NYNEX will provide BROOKS FIBER with a report of all BROOKS
FIBER customer listings ninety (90) days prior to directory publication in such
form and format as may be mutually agreed to by both Parties. Both Parties shall
use their best efforts to ensure the accurate listing of such information.
19.1.7 Yellow Page Maintenance
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NYNEX will work cooperatively with BROOKS FIBER so that Yellow Page
advertisements purchased by Customers who switch their service to BROOKS FIBER
(including customers utilizing Interim Telecommunications Number Portability)
are maintained without interruption. NYNEX will allow BROOKS FIBER customers to
purchase new yellow pages advertisements without discrimination, under the
identical rates, terms and conditions that apply to NYNEX's Customers.
19.1.8 Information Pages
NYNEX will include in the "Information Pages" or comparable section
of its White Pages Directories for areas served by BROOKS FIBER, listings
provided by BROOKS FIBER for BROOKS FIBER's installation, repair and Customer
service, information, including appropriate identifying logo. Such listings
shall appear in the manner that such information appears for subscribers of
NYNEX and other LECs. NYNEX shall not charge BROOKS FIBER for inclusion of this
information.
19.2 Directory Assistance ("DA") and Operator Services
19.2.1 NYNEX will provide BROOKS FIBER's operators an on-line access
to NYNEX's directory assistance database, when and where such access becomes
available to organizations outside NYNEX.
19.2.2 At BROOKS FIBER's option, NYNEX will provide BROOKS FIBER
with intraLATA, NYNEX-branded directory assistance service, or BROOKS
FIBER-branded directory assistance and Directory Assistance Call Completion
(DACC), which are comparable to the directory assistance service NYNEX makes
available to its own end users, at the prices set forth in the Pricing Schedule.
19.2.3 When NYNEX provides to BROOKS FIBER DA or Operator Services,
NYNEX requires that such services will be provided to BROOKS FIBER over
dedicated operator services trunk groups, utilizing Feature Group C-Type
modified Operator Services Signaling when interconnecting to the NYNEX operator
services network.
19.2.4 BROOKS FIBER (or its operator service provider) and NYNEX
will provide LEC-to-LEC Busy Line Verification and Interrupt (BLV/I) trunks to
one another, in conjunction with POTS traffic, to enable each party to support
this functionality. (This option is provisioned subject to technical
limitations, such as those that apply on ported numbers).
19.2.5 Busy Line Verification ("BLV") is performed when one Party's
Customer requests assistance from the operator bureau to determine if the called
line is in use. However, the operator bureau will not complete the call for the
Customer initiating
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the BLV inquiry. Only one BLV attempt will be made per Customer operator bureau
call, and a charge shall apply whether or not the called party releases the
line.
19.2.6 Busy Line Verification and Interrupt ("BLVI") is performed
when one Party's operator bureau interrupts a telephone call in progress after
BLV has occurred. The operator bureau will interrupt the busy line and inform
the called party that there is a call waiting. The operator bureau will only
interrupt the call and will not complete the telephone call of the Customer
initiating the BLVI request. The operator bureau will make only one BLVI attempt
per Customer operator bureau call and the applicable charge applies whether or
not the called party releases the line.
19.2.7 Each Party's operator bureau shall accept BLV and BLVI
inquiries from the operator bureau of the other Party in order to allow
transparent provision of BLV/BLVI Traffic between the Parties' networks.
19.2.8 Each Party shall route BLV/BLVI Traffic inquiries over the
existing network established between the Parties' respective operator bureaus.
Each Party shall compensate the other Party for BLV/BLVI Traffic as set forth in
the Pricing Schedule.
19.2.9 NYNEX will provide operator services call completion to
BROOKS FIBER's operators and Customers, upon BROOKS FIBER's request, for the
termination of alternate billed calls from BROOKS FIBER's subscribers. Call
completion services will allow BROOKS FIBER Customers the ability, through the
mechanized NYNEX operator interface or the NYNEX operator, to complete calls via
0+ or 0- dialing with alternate billing capabilities. Billing for the calls will
be on a flat rate per call transaction for 0+ calls or per Operator Work Second
on 0- calls. NYNEX will provide call detail records in EMR format for the call
completion services at a charge set forth in the Pricing Schedule.
20.0 GENERAL RESPONSIBILITIES OF THE PARTIES
20.1 Both NYNEX and BROOKS FIBER shall use their best efforts to comply
with the Implementation Schedule.
20.2 The Parties shall exchange technical descriptions and forecasts of
their Interconnection and traffic requirements in sufficient detail necessary to
establish the Interconnections required to assure traffic completion to and from
all Customers in their respective designated service areas. BROOKS FIBER, for
the purpose of ubiquitous connectivity, network diversity and alternate routing,
shall connect to at least one Tandem Office Switch for the receipt/completion of
traffic to any NYNEX End Office Switches.
20.3 Thirty (30) days after the Effective Date and each quarter during the
term of this Agreement, each Party shall provide the other Party with a rolling,
six (6) calendar month, non-binding forecast of its traffic and volume
requirements for the services and Network Elements provided under this Agreement
in the form and in such detail as agreed
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by the Parties. Notwithstanding Section 29.6.1, the Parties agree that each
forecast provided under this Section 20.3 shall be deemed "Proprietary
Information" under Section 29.6.
20.4 Any Party that is required pursuant to this Agreement to provide a
forecast (the "Forecast Provider") or the Party that is entitled pursuant to
this Agreement to receive a forecast (the "Forecast Recipient") with respect to
traffic and volume requirements for the services and Network Elements provided
under this Agreement may request in addition to non-binding forecasts required
by Section 20.3 that the other Party enter into negotiations to establish a
forecast (a "Binding Forecast") that commits such Forecast Provider to purchase,
and such Forecast Recipient to provide, a specified volume to be utilized as set
forth in such Binding Forecast. The Forecast Provider and Forecast Recipient
shall negotiate the terms of such Binding Forecast in good faith and shall
include in such Binding Forecast provisions regarding price, quantity, liability
for failure to perform under a Binding Forecast and any other terms desired by
such Forecast Provider and Forecast Recipient. Notwithstanding Section 29.6.1,
the Parties agree that each forecast provided under this Section 20.4 shall be
deemed "Proprietary Information" under Section 29.6.
20.5 Each Party is individually responsible to provide facilities within
its network which 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 NYNEX's
network and to terminate the traffic it receives in that standard format to the
proper address on its network. Such facility shall be designed based upon the
description and forecasts provided under Sections 20.2 and 20.3 above. 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.
20.6 Neither Party shall use any service related to or any of the Services
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
Customers, and either Party may discontinue or refuse service if the other Party
violates this provision. Upon such violation, either Party shall provide the
other Party notice, if practicable, at the earliest practicable time.
20.7 Each Party is solely responsible for the services it provides to its
Customers and to other Telecommunications Carriers.
20.8 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.
20.9 Each Party is responsible for administering NXX codes assigned to it.
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20.10 Each Party is responsible for obtaining Local Exchange Routing Guide
("LERG") listings of CLLI codes assigned to its switches.
20.11 Each Party shall use the LERG published by Bellcore or its successor
for obtaining routing information and shall provide all required information to
Bellcore for maintaining the LERG in a timely manner.
20.12 Each Party shall program and update its own Central Office Switches
and End Office Switches and network systems to recognize and route traffic to
and from the other Party's assigned NXX codes. Except as mutually agreed or as
otherwise expressly defined in this Agreement, neither Party shall impose any
fees or charges on the other Party for such activities.
20.13 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).
20.14 End User Repair Calls. The Parties will employ the following
procedures for handling misdirected repair calls:
20.14.1 In answering 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 to market services.
Either Party will respond with factual information in answering customer
questions.
20.14.2 Each Party will notify its customers as to the correct
telephone numbers to call in order to access its repair bureaus.
20.14.3 To the extent possible, where the correct local exchange
carrier can be determined, misdirected repair calls to one Party will be
immediately referred to the other Party, as appropriate in a courteous manner,
at no charge.
20.14.4 The Parties will provide their respective repair contact
numbers to one another on a reciprocal basis.
21.0 TERM AND TERMINATION
21.1 The initial term of this Agreement shall be three (3) years (the
"Term") which shall commence on the Effective Date. 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
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the effect that such Party does not intends 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
as set forth before.
21.1.1 If pursuant to Section 21.1 the Agreement continues in full
force and effect after the expiration of the Term, either Party may terminate
the Agreement ninety (90) days after delivering written notice to the other
Party of the intention to terminate this Agreement. Neither Party shall have any
liability to the other Party for termination of this Agreement pursuant to this
Section 21.1 other than to pay to the other Party any amounts owed under this
Agreement.
21.2 Upon termination or expiration of this Agreement in accordance with
this Section 21.0:
(a) each Party shall comply immediately with its obligations set
forth in Section 29.6.3;
(b) each Party shall promptly pay all amounts (including any late
payment charges) owed under this Agreement;
(c) each Party's indemnification obligations shall survive
termination or expiration of this Agreement; and
(d) each Party shall continue to perform its obligations and provide
its services described herein until such time as a survivor Agreement
between the Parties is entered into; provided, however, that the Parties
may mutually agree to renegotiate the rates, fees and charges herein to
reflect any costs or expenses associated with the transfer, renewal or
termination of this Agreement.
22.0 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.
23.0 CANCELLATION CHARGES
Except as provided in Sections 9.6.4 and 19.4 and pursuant to a Network
Element Bona Fide Request, or as otherwise provided in any applicable tariff or
contract referenced herein, no cancellation charges shall apply.
24.0 NON-SEVERABILITY
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24.1 The services, arrangements, Interconnection, Network Elements, terms
and conditions of this Agreement were mutually negotiated by the Parties as a
total arrangement and are intended to be non-severable, subject only to Section
29.14 of this Agreement.
24.2 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.
25.0 INDEMNIFICATION
25.1 Each party (the "Indemnifying Party") shall indemnify and hold
harmless the other party ("Indemnified Party") from and against loss, cost,
claim liability, damage, and expense (including reasonable attorney's fees) to
third parties for:
(1) damage to tangible personal property or for personal injury
proximately caused by the negligence or willful misconduct of the
Indemnifying Party, its employees, agents or contractors; and
(2) claims for libel, slander, infringement of copyright arising
from the Indemnifying Party's own communications or the communications of
such Indemnifying Party's Customers transmitted over the Indemnified
Party's facilities; and
(3) claims for infringement of patents arising from combining the
Indemnified Party's facilities or services with, or the using of the
Indemnified Party's services or facilities in connection with, facilities
of the Indemnifying Party.
Notwithstanding this indemnification provision or any other provision in
the Agreement, neither Party, nor its parent, subsidiaries, affiliates, agents,
servants, or employees shall be liable to the other for "Consequential Damages"
as that term is described in Section 26.3 below.
25.2 The Indemnified Party will notify the Indemnifying Party promptly in
writing of any claims, lawsuits, or demands by third parties for which the
Indemnified Party alleges that the Indemnifying Party is responsible under this
Section, and, if requested by the Indemnifying Party, will tender the defense of
such claim, lawsuit or demand.
(1) In the event the Indemnifying Party does not promptly assume or
diligently pursue the defense of the tendered action, then the Indemnified
Party may proceed to defend or settle said action and the Indemnifying
Party shall hold harmless the Indemnified Party from any loss, cost
liability, damage and expense.
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(2) In the event the Party otherwise entitled to indemnification
from the other elects to decline such indemnification, then the Party
making such an election may, at its own expense, assume defense and
settlement of the claim, lawsuit or demand.
(3) The parties will cooperate in every reasonable manner with the
defense or settlement of any claim, demand, or lawsuit.
26.0 LIMITATION OF LIABILITY
26.1 Except for the indemnity obligations under Section 25.0, each Party's
liability to the other Party for any Loss relating to or arising out of any
negligent act or omission in its performance of this Agreement, whether in
contract or tort, shall be limited to the total amount that is or would have
been charged to the other Party by such negligent or breaching Party for the
services or functions not performed or improperly performed.
26.2 Except as otherwise provided in Section 25.0, no Party shall be
liable to the other Party for any Loss, defect or equipment failure caused by
the conduct of the other Party, the other Party's agents, servants, contractors
or others acting in aid or concert with the other Party, except for gross
negligence or willful misconduct.
26.3 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.
27.0 PERFORMANCE STANDARDS AND REPORTING REQUIREMENTS
27.1 Performance Standards
NYNEX shall provision, install, maintain, repair and monitor all services,
Interconnection facilities, unbundled elements, Collocation elements, and all
other Interconnection arrangements, facilities and services ordered by BROOKS
FIBER, at the same level of quality which NYNEX provides to itself or any other
party. NYNEX shall provide to BROOKS FIBER the same level of transmission
quality, reliability, maintenance, repair, installation, and other service
characteristics, including reporting of results, that it provides to any other
party, whether pursuant to written agreement or informal or formal practice.
NYNEX shall upon request provide BROOKS FIBER with complete information about
all such performance arrangements and understandings. Such information may be
provided pursuant to mutually acceptable confidentiality agreements where the
underlying information is treated as confidential by the NYNEX customer/user,
provided that such confidentiality claims are not applied in such a way as to
deny
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BROOKS FIBER essential information concerning the performance standards agreed
upon by NYNEX and the customer/user.
Schedule 27.1 sets forth NYNEX's minimum performance standards for
unbundled link and interim number portability installation and unbundled link
out-of-service repairs. Schedule 27.1 (A) sets forth the service quality
standards that BROOKS FIBER will meet.
27.2 Reporting Requirements
NYNEX shall provide BROOKS FIBER, on a quarterly basis, the information
listed in Schedule 27.2. Such information shall be provided not more than thirty
(30) days after the close of a calendar month. NYNEX shall also report its
performance level as stated on Schedule 27.2 that is provided to (1) its
internal network clients; (2) any NYNEX owned affiliates (as affiliates are
defined under the Act); (3) to its three largest carrier customers
(cumulatively); and (4) to its ten largest commercial customers (cumulatively)
for the same period. NYNEX shall explain any deviation between the performance
provided to BROOKS FIBER and that provided to any of these four categories of
customers/users, and indicate what steps shall be taken to eliminate any
deficiencies between the service provided to BROOKS FIBER and that provided to
one or more of these other customers/users. NYNEX shall also offer to provide to
BROOKS FIBER comparable quality and performance reports and measurements to
those that it provides to any other customers, specifying as to BROOKS FIBER's
services the same types of information, and at the same intervals, that it
provides to these other customers.
28.0 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be filed with
the PUC and may thereafter be filed with the FCC. Each Party covenants and
agrees to fully support approval of this Agreement by the PUC or the FCC under
Section 252 of the Act subject to: (1) either Party's rights under Section 29.14
of this Agreement; (2) at the option of either Party, to avail itself of any
rules or requirements adopted by the PUC or the FCC in implementing the
Telecommunications Act of 1996, including but not limited to the FCC's
rulemaking in the Matter of Implementation of the Local Competition Provisions
in the Telecommunications Act of 1996, FCC Docket No. 96-98, which materially
affect the matters covered by this Agreement; and (3) either Party's right to
bring an action in Federal district court pursuant to Section 252(e)(6) of the
Act. In the event either Party elects to avail itself of any such rules or
requirements, the Parties agree to meet and negotiate in good faith to arrive at
mutually acceptable modifications of this Agreement. The Parties, however,
reserve the right to seek regulatory relief and otherwise seek redress from each
other regarding performance and implementation of this Agreement. In the event
the PUC or FCC rejects this Agreement in whole or in part, the Parties agree to
meet and negotiate in good faith to arrive at a mutually acceptable modification
of the rejected portion(s).
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This agreement is subject to change, modification, or cancellation as may
be required by a regulatory authority or court in the exercise of its lawful
jurisdiction.
29.0 MISCELLANEOUS
29.1 Authorization.
29.1.1 New England Telephone and Telegraph Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder, subject to necessary
regulatory approval.
29.1.2 BROOKS FIBER is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder, subject to necessary regulatory approval. BROOKS
FIBER represents that it intends to be 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 or in combination with the resale of the
telecommunications services of other carriers.
29.2 Compliance. Each Party shall comply with all applicable federal,
state, and local laws, rules, and regulations applicable to its performance
under this Agreement.
29.3 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA"). Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with 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.
29.4 Independent Contractor. Neither this Agreement, nor any actions taken
by NYNEX or BROOKS FIBER in compliance with this Agreement, shall be deemed to
create an agency or joint venture relationship between BROOKS FIBER and NYNEX,
or any relationship other than that of purchaser and seller of services.
Neither this Agreement, nor any actions taken by NYNEX or BROOKS FIBER in
compliance with this Agreement, shall create a contractual, agency, or any other
type of relationship or third party liability between NYNEX and BROOKS FIBER's
end users.
29.5 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
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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, 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
(collectively, a "Force Majeure Event").
If any force majeure condition occurs, the Party delayed or unable to
perform shall give immediate notice to the other Party and shall take all
reasonable steps to correct the force majeure condition. During the pendency of
the force majeure, the duties of the Parties under this Agreement affected by
the force majeure condition shall be abated and shall resume without liability
thereafter.
29.6 Confidentiality.
29.6.1 Any information such as specifications, drawings, sketches,
business information, forecasts, models, samples, data, computer programs and
other software and documentation of one Party (a "Disclosing Party") that is
furnished or made available or otherwise disclosed to the other Party or any of
its employees, contractors, agents or Affiliates (its "Representatives" and with
a Party, a "Receiving Party") pursuant to this Agreement ("Proprietary
Information") shall be deemed the property of the Disclosing Party. Proprietary
Information, if written, shall be marked "Confidential" or "Proprietary" or by
other similar notice, and, if oral or visual, shall be confirmed in writing as
confidential by the Disclosing Party to the Receiving Party within ten (10) days
after disclosure. Unless Proprietary Information was previously known by the
Receiving Party free of any obligation to keep it confidential, or has been or
is subsequently made public by an act not attributable to the Receiving Party,
or is explicitly agreed in writing not to be regarded as confidential, it (a)
shall be held in confidence by each Receiving Party; (b) shall be disclosed to
only those persons who have a need for it in connection with the provision of
services required to fulfill this Agreement and shall be used only for such
purposes; and (c) may be used for other purposes only upon such terms and
conditions as may be mutually agreed to in advance of use in writing by the
Parties. Notwithstanding the foregoing sentence, a Receiving Party shall be
entitled to disclose or provide Proprietary Information as required by any
governmental authority or applicable law only in accordance with Section 29.6.2.
29.6.2 If any Receiving Party is required by any governmental
authority or by applicable law to disclose any Proprietary Information, then
such 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 29.6 with
respect to all or part of such requirement. The Receiving Party shall use all
commercially
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reasonable efforts to cooperate with the Disclosing Party in attempting to
obtain any protective relief which such Disclosing Party chooses to obtain.
29.6.3 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 and shall use all reasonable efforts, including
instructing its employees and others who have had access to such information, to
keep confidential and not to use any such information, unless such information
is now, or is hereafter disclosed, through no act, omission or fault of such
Party, in any manner making it available to the general public.
29.7 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 PUC, the exclusive
jurisdiction for all such claims shall be with the PUC, and the exclusive remedy
for such claims shall be as provided for by such PUC. In all other respects,
this Agreement shall be governed by the domestic laws of the State of Rhode
Island without reference to conflict of law provisions.
29.8 Taxes. 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 levied against
or upon such purchasing Party (or the providing Party when such providing Party
is permitted to pass along to the purchasing Party such taxes, fees or
surcharges), except for any tax on either Party's corporate existence, status or
income. Whenever possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale tax exemption, the
purchasing 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.
29.9 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 the State of Rhode Island 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 State of Rhode Island, 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 which consent will not be unreasonably withheld;
provided that either Party may assign this Agreement to a
44
<PAGE>
corporate Affiliate or an entity under its common control or an entity acquiring
all or substantially all of its assets or equity by providing prior 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.
29.10 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.
29.11 Disputed Amounts.
29.11.1 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.
29.11.2 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.
29.11.3 If the Parties are unable to resolve issues related to the
Disputed Amounts within forty-five (45) days, then either Party may file a
complaint with the PUC to resolve such issues or proceed with any other remedy
pursuant to law or equity. If such a filing is made with the PUC by either
Party, the Non-Paying Party shall pay all Disputed Amounts into an interest
bearing escrow account with a third Party escrow agent mutually agreed upon by
the Parties. The PUC may direct payment of any or all funds (including any
accrued interest) plus applicable late fees, to be paid to either Party.
29.11.4 The Parties agree that all negotiations pursuant to this
Section 29.11 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.
29.12 Notices. Notices given by one Party to the other Party under this
Agreement shall be in writing and shall be (a) delivered personally, (b)
delivered by express delivery service, (c) mailed, certified mail or first class
U.S. mail postage prepaid, return receipt requested or (d) delivered by telecopy
to the following addresses of the Parties:
To BROOKS FIBER
45
<PAGE>
Brooks Fiber Communications, Inc.
425 Woods Mill Road South
Town and Country, MO 63017
Attn: President
Facsimile: (314) 878-3211
To NYNEX:
NYNEX
1095 Avenue of Americas
40th Floor
New York NY 10036
Attn: Vice President - Wholesale Markets
Facsimile: (212) 597-2585
or to such other address as either Party shall designate by proper notice.
Notices will be deemed given as of the earlier of (i) the date of actual
receipt, (ii) the next business day when notice is sent via express mail or
personal delivery, (iii) three (3) days after mailing in the case of first class
or certified U.S. mail or (iv) on the date set forth on the confirmation in the
case of telecopy.
29.13 Publicity and Use of Trademarks or Service Marks. Neither Party nor
its subcontractors or agents shall use the other Party's trademarks, service
marks, logos or other proprietary trade dress in any advertising, press
releases, publicity matters or other promotional materials without such Party's
prior written consent.
29.14 Section 252(i) Obligations. Consistent with FCC rules, if either
Party enters into an agreement approved by the PUC or FCC pursuant to Section
252 of the Act which provides for the provision in the State of Rhode Island of
arrangements covered in this Agreement to another requesting Telecommunications
Carrier (the "Other Agreement"), including itself or its 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. Provided however,
that upon proper notification from BROOKS FIBER, NYNEX shall make available
without unreasonable delay to BROOKS FIBER any form of Interconnection, service,
or network element contained in any agreement to which it is a Party that is
approved by any state commission in the NYNEX operating territory pursuant to
Section 252, if such arrangement is technically feasible in the State of Rhode
Island, and will negotiate in good faith with BROOKS FIBER the rates, terms, and
conditions that will be applicable in the State of Rhode Island. In addition to
the foregoing, BROOKS FIBER may at any time elect to include in this Agreement
that portion of any other party's approved Rhode Island interconnection
agreement that reflects any arbitration award from the consolidated arbitration
proceeding, Docket Nos. 2449, 2458 and 2467.
46
<PAGE>
29.15 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.
29.16 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 of 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.
29.17 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.
29.18 Technology Upgrades. Nothing in this Agreement shall limit NYNEX's
ability to upgrade its network through the incorporation of new equipment, new
software or otherwise. NYNEX shall provide BROOKS FIBER written notice at least
ninety (90) days prior to the incorporation of any such upgrades in NYNEX's
network which will materially impact BROOKS FIBER service. BROOKS FIBER shall be
solely responsible for the cost and effort of accommodating such changes in its
own network.
29.19 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,
including without limitation, Sections 22.0, 25.0, 26.0, 29.3, 29.6, 29.11,
29.13 and 29.17.
29.20 Scope of Agreement. This Agreement is intended to describe and
enable specific Interconnection and access to unbundled Network Elements and
compensation arrangements between the Parties. This Agreement does not obligate
either Party to provide arrangements not specifically provided for herein.
29.21 Entire Agreement. The terms contained in this Agreement and any
Schedules, Exhibits, 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
47
<PAGE>
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.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this 22 day of May, 1997.
BROOKS FIBER COMMUNICATIONS NYNEX
OF RHODE ISLAND
By: /s/ Robert Shanahan By: /s/ Jacob J. Goldberg
--------------------------- ------------------------------------
Printed: Robert Shanahan Printed: Jacob J. Goldberg
--------------------- ------------------------------
Title: Regional Vice President Title: Vice President-Wholesale Markets
----------------------- --------------------------------
48
<PAGE>
SCHEDULE 1.0
CERTAIN TERMS AS DEFINED IN THE ACT
"Affiliate" means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or the equivalent thereof) of more than ten percent (10%).
"Dialing Parity" means that a person that is not an Affiliate of a LEC is
able to provide Telecommunications Services in such a manner that Customers have
the ability to route automatically, without the use of any access code, their
Telecommunications to the Telecommunications Services provider of the Customer's
designation from among two (2) or more Telecommunications Services providers
(including such LEC).
"Exchange Access" means the offering of access to Telephone Exchange
Services or facilities for the purpose of the origination or termination of
Telephone Toll Services.
"InterLATA Service" means Telecommunications between a point located in a
local access and transport area and a point located outside such area.
"Local Access and Transport Area" or "LATA" means a contiguous geographic
area: (a) established before the date of enactment of the Act by a Bell
operating company such that no Exchange Area includes points within more than
one (1) metropolitan statistical area, consolidated metropolitan statistical
area, or State, except as expressly permitted under the AT&T Consent Decree; or
(b) established or modified by a Bell operating company after such date of
enactment and approved by the FCC.
"Local Exchange Carrier" means any person that is engaged in the provision
of Telephone Exchange Service or Exchange Access. Such term does not include a
person insofar as such person is engaged in the provision of a commercial mobile
service under Section 332(c) of the Act, except to the extent that the FCC finds
that such service should be included in the definition of such term.
"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 and collection or used in the transmission, routing, or other provision
of a Telecommunications Service.
"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.
<PAGE>
"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.
"Telecommunications Carrier" means any provider of Telecommunications
Services, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Communications
Act).
"Telecommunications Service" 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.
"Telephone Exchange Service" means (a) service within a telephone exchange
within a connected system of telephone exchanges within the same exchange area
operated to furnish subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the exchange
service charge, or (b) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
"Telephone Toll Service" means telephone service between stations in
different exchange areas for which there is made a separate charge not included
in contracts with subscribers for exchange service.
1
<PAGE>
SCHEDULE 4.0 Network Interconnection Schedule*
LATA NYNEX N-IP BROOKS FIBER B-IP ACTIVATION DATE
130
* Information to be provided by the Parties at a date determined by the
Parties.
2
<PAGE>
SCHEDULE 8.2 NYNEX Intervals for Installation
Service Order Standard Intervals
Number of Standard Interval
DS1Systems (Business Days)
---------- ---------------
Establishment of New Trunk Groups
1-10 60
over 10 negotiated
Additions to Existent Trunk Groups
1-4 30
over 4 negotiated
3
<PAGE>
SCHEDULE 27.1 NYNEX Performance Targets1
ACTIVITY PERFORMANCE TARGETS
1. Unbundled Link Installation
a) New Link Installation:
i) Order for Installation < 10 links 5 business days(1)
No Available Facilities Reappoint installation
date
ii) Order for Installation => 10 links
Facilities Confirmation 5 business days(1)
If Available Facilities
< 20 links 10 business days from
Facilities Confirmation
=> 20 links negotiated interval(2)
b) "Hot Cutover" Installation
i) Order for Installation < 10 links 7 business days (1/1/97 to
3/1/97)
5 businesss days (4/1/97
and after)
ii) Order for Installation => 10 links negotiated interval(2)
2. Interim Number Portability Installation
i) Order for Installation < 10 numbers 7 business days (1/1/97 to
3/1/97)
5 businesss days (4/1/97
and after)
ii) Order for Installation => 10 numbers negotiated interval(2)
- ----------
(1) The Parties agree to use a five (5) business day interval. At a future time
mutally agreed to by the Parties, the installation interval will be a SMARTS
CLOCK interval.
(2) NYNEX will provide the same negotiated intervals it provides to any carrier,
Customer or Parties that are similarly situated.
4
<PAGE>
3. Out-of-Service Repairs Less than 24 hours from
NYNEX's Receipt of
Notification of
Out-of-Service Condition
* Subject to the following percentage limitations:
1st half of Agreement 2nd half of Agreement
Period Period
65% 70%
5
<PAGE>
SCHEDULE 27.1 (A)
BROOKS FIBER
Service Quality Criteria
1 New Unbundled Link (SVGALS) Orders
1.0 ANI to BROOKS FIBER number, verification successful from DEMARC by
NYNEX field technician.
1.1 All order information submitted by BROOKS FIBER is valid (e.g. street
address, end user LCON, floor/unit number, cable pair assignment)
1.2 Customer (end user) available at appointed date.
1.3 Orders completed as submitted without cancellation after FOC
2 Hot Cut Unbundled Link (SVGALS) Orders
2.0 Verifiable BROOKS FIBER dial tone at POT bay testable by NYNEX through
appropriate tie cable pair as provided by BROOKS FIBER on the service request.
2.1 Accurate account and end user information submitted on service request
2.3 Accurate SVGAL tie cable and pair assignment provided by BROOKS FIBER
on service request
2.4 Orders completed as submitted without cancellation after FOC
6
<PAGE>
PRICING SCHEDULE
I. Reciprocal Compensation for local traffic shall equal the rate set forth
below. Such rate for the first six months shall be:
Rate = $.01 per minute
The rate for Reciprocal Compensation is to be adjusted bi-annually based
upon the rates and formula set forth in this Pricing Schedule. The first
adjustment shall occur on January 1, 1998 July 1, 1997 and future adjustments
every six months thereafter.
Reciprocal Compensation for IntraLATA Toll traffic shall equal each
Party's effective applicable tariffed IntraLATA switched access rates.
II. Information Services Billing and Collection
Fee = $.05 per message
III. BLV/BLVI Traffic
Rate = $1.00 per Busy Line Verification
$1.50 per Busy Line Verification Interrupt
(in addition to $1.00 for Busy Line Verification)
IV. Transit Service (Tandem Transient Service)
A. Transit Service
Rate = $.0035 per minute
B. Dedicated Transiting Service
Rate = twice the applicable charge for a collocated channel
termination
V. Interim Telecommunications Number Portability
A. Monthly Recurring Charges
Rate per Business Number = $2.00
Rate per Residential Number = $1.00
No additional charges shall apply for interim number portability,
including additional per-path, per-port, or usage-related charges, except for
third party and collect calls.
7
<PAGE>
B. Non-recurring charge
Rate = $20.00 per ported number
Non-recurring charges only apply when interim number portability is
ordered separately from an unbundled link.
VI. IntraLATA 800
Reciprocal Compensation (refer to I above).
Compensation for records exchanged = $.0115 per record
800 database inquiry = $.003981 per database inquiry
VII. Unbundled Links
A. Monthly Rates
1. 2 Wire Switched Voice Grade Analog Link Statewide = $17.53
2. 4 Wire Switched Voice Grade Analog Link Statewide = $52.46
3. 2 Wire Link Conditioned for Digital Statewide = $43.79
4. 4 Wire Link Conditioned for Digital Statewide = $238.84
5. ISDN Premium Link = Price determined on an Individual Case
Basis upon request.
6. Extended Link Service = Price determined on an Individual Case
Basis upon request.
VIII. Unbundled Ports
A. Monthly Rates
Residence voice grade port = $8.00
Business voice grade port = $8.00
IX. 911/E911 Interconnection
Monthly Rate = $252.00 per month for an unequipped DS1 Port and $100.00
per month per voice grade trunk activated and equipped on the DS1 port.
8
<PAGE>
X. Wholesale Discounts
a. Month- to- month discounts
Resale with Operator Business = 18.78 %
Services and Directory Residence = 17.30 %
Assistance
Resale without Operator Business = 20.25 %
Services and Directory Residence = 19.04 %
Assistance
b. Term and Volume Discounts
To be negotiated based on receipt of a Bona Fide Re,quest
XI. Directory Assistance
NYNEX-Branded DA = $.27 per message
BROOKS FIBER-Branded DA = $.32 per message
NYNEX Branded DA with Directory Assistance Call
Completion (DACC) = $.52 per message*
BROOKS FIBER Branded DA with DACC = $.57 per message*
(*plus flat rate charge per MOU for Call Completion)
Operator Services - Call Completion Services
0+ / Mechanized Call Completion
Calling Card $.20 per call
Collect $.40 per call
Bill to Third Number $.40 per call
0- / Operator Assisted Call Completion $.0230 per operator work second
Record Charges
EMR format - per record charge $.0102
9
<PAGE>
PRICING SCHEDULE
Reciprocal Compensation Calculation
I. Time of Day Definitions
II. Base Rates - Per Minute of Use
Peak = $0.011
Off-Peak = $0.008
III. Formula for determining Reciprocal Compensation (% Peak Traffic + %
Off-Peak Traffic = 100% for each Party)
(BROOKS FIBER-originated Peak Minutes + NYNEX-originated Peak Minutes) * Peak
Rate / Total BROOKS FIBER + NYNEX Minutes
+
(BROOKS FIBER-originated Off-Peak Minutes + NYNEX-originated Off-Peak Minutes)
* Off-Peak Rate / Total BROOKS FIBER + NYNEX Minutes
10
<PAGE>
EXHIBIT A
NETWORK ELEMENT BONA FIDE REQUEST
1. Each Party shall promptly consider and analyze access to a 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) P. 259 and n.603 or
subsequent orders.
2. A Network Element Bona Fide Request shall be submitted in writing and
shall include a technical description of each requested Network Element.
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.
4. Within ten (10) business days of its receipt, the receiving Party shall
acknowledge receipt of the Network Element Bona Fide Request.
5. Except under extraordinary circumstances, within thirty (30) days of
its receipt of a Network Element 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 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.
6. If the receiving Party determines that the Network Element Bona Fide
Request is technically feasible and otherwise qualifies under the Act, it shall
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.
7. Unless the Parties otherwise agree, the Network Element Requested must
be priced in accordance with Section 252(d)(1) of the Act.
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 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.
11
<PAGE>
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 Element Bona Fide Request pursuant to the Network Element Bona Fide
Request quote or seek arbitration by the PUC pursuant to Section 252 of the Act.
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, or is failing to act in accordance with Section 251 of the Act, such
Party may seek mediation or arbitration by the PUC pursuant to Section 252 of
the Act.
12
<PAGE>
Schedule 27.2
Performance Measurement Reports
13
<PAGE>
Comparability Reports for Resale - POTS
- -------------------------------------------
Product: Resale - POTS
- -------------------------------------------
State: Rhode Island
- -------------------------------------------
Time Period: (Monthly)
- -------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 5 Days - Residence
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 5 Days - Business
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% completed in 1business day - Dispatch
- ------------------------------------------------------------------------------------------------------------
% completed in 1business day - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 2 business days - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 2 business days - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 4 business days
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 5 business days
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 6 business days
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Missed Repair Appointments
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Cleared within 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes:
1. Customer Trouble Report Rate excludes CPE and subsequents
2. Subsequents are additional calls on open troubles
3. Some measures are an indicator of carrier performance, such as % no
trouble found, % CPE and % no access
14
<PAGE>
Comparability Reports for Resale - SPECIALS - DS0
- -------------------------------------------
Product: Resale - Specials DS0
- -------------------------------------------
State: Rhode Island
- -------------------------------------------
Time Period: (Monthly)
- -------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 5 Days - Residence
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 5 Days - Business
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% completed in 1business day - Dispatch
- ------------------------------------------------------------------------------------------------------------
% completed in 1business day - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 2 business days - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 2 business days - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 4 business days
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 5 business days
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 6 business days
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Cleared within 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes: 1. Customer Trouble Report Rate excludes CPE and subsequents, 2.
Subsequents are additional calls on open troubles, 3. Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
15
<PAGE>
Comparability Reports for Resale - SPECIALS - DS1
- -------------------------------------------
Product: Resale - Specials - DS1
- -------------------------------------------
State: Rhode Island
- -------------------------------------------
Time Period: (Monthly)
- -------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Cleared within 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes: 1. Customer Trouble Report Rate excludes CPE and subsequents, 2.
Subsequents are additional calls on open troubles, 3. Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
16
<PAGE>
Comparability Reports for Resale - SPECIALS - DS3
- -------------------------------------------
Product: Resale - Specials - DS3
- -------------------------------------------
State: Rhode Island
- -------------------------------------------
Time Period: (Monthly)
- -------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 5 Days - Residence
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 5 Days - Business
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Cleared within 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes: 1. Customer Trouble Report Rate excludes CPE and subsequents, 2.
Subsequents are additional calls on open troubles, 3. Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
17
<PAGE>
Comparability Reports for Resale - SPECIALS - Other
- -------------------------------------------
Product: Resale - Specials - Other
- -------------------------------------------
State: Rhode Island
- -------------------------------------------
Time Period: (Monthly)
- -------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 5 Days - Residence
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 5 Days - Business
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Cleared within 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes: 1. Customer Trouble Report Rate excludes CPE and subsequents, 2.
Subsequents are additional calls on open troubles, 3. Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access
18
<PAGE>
Comparability Reports for Unbundled Elements - POTS
- -------------------------------------------------------------
Product: Unbundled Elements - POTS (Dial Tone Services)
- -------------------------------------------------------------
State: Rhode Island
- -------------------------------------------------------------
Time Period: (Monthly)
- -------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 1 Days - Residence
- ------------------------------------------------------------------------------------------------------------
% Complete w/in 1 Days - Business
- ------------------------------------------------------------------------------------------------------------
% completed in 2 business day - Dispatch
- ------------------------------------------------------------------------------------------------------------
% completed in 2 business day - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 3 business days - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 3 business days - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 4 business days
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 5 business days
- ------------------------------------------------------------------------------------------------------------
% Completed w/in 6 business days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 7 Days
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate - Loop
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate - CO
- ------------------------------------------------------------------------------------------------------------
% Missed Repair Appointments
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair - Loop Trouble
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair - CO Trouble
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 4 Hours
- ------------------------------------------------------------------------------------------------------------
% Lines Out of Service > 12 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Cleared within 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes: 1. Customer Trouble Report Rate excludes CPE and subsequents, 2.
Subsequents are additional calls on open troubles, 3. Some measures are an
indicator of carrier performance, such as % no trouble found, % CPE and % no
access, 4., Other Unbundled elements include equivalent complex special services
requiring specialized circuit design
19
<PAGE>
Comparability Reports for Unbundled Elements - Specials - DS0
- ------------------------------------------------------
Product: Other Unbundled Elements - SPECIALS - DS0
- ------------------------------------------------------
State: Rhode Island
- ------------------------------------------------------
Time Period: (Monthly)
- ------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 4 hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes:
1. Customer Trouble Report Rate excludes CPE and subsequents
2. Subsequents are additional calls on open troubles
3. Some measures are an indicator of carrier performance, such as % no trouble
found, % CPE and % no access
4. Other Unbundled elements include equivalent complex special services
requiring specialized circuit design
20
<PAGE>
Comparability Reports for Unbundled Elements - Specials - DS1
- ------------------------------------------------------
Product: Other Unbundled Elements - SPECIALS - DS1
- ------------------------------------------------------
State: Rhode Island
- ------------------------------------------------------
Time Period: (Monthly)
- ------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 4 hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes:
1. Customer Trouble Report Rate excludes CPE and subsequents
2. Subsequents are additional calls on open troubles
3. Some measures are an indicator of carrier performance, such as % no trouble
found, % CPE and % no access
4. Other Unbundled elements include equivalent complex special services
requiring specialized circuit design
21
<PAGE>
Comparability Reports for Unbundled Elements - Specials - DS3
- -------------------------------------------------------
Product: Other Unbundled Elements - SPECIALS - DS3
- -------------------------------------------------------
State: Rhode Island
- -------------------------------------------------------
Time Period: (Monthly)
- -------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 4 hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes:
1. Customer Trouble Report Rate excludes CPE and subsequents
2. Subsequents are additional calls on open troubles
3. Some measures are an indicator of carrier performance, such as % no trouble
found, % CPE and % no access
4. Other Unbundled elements include equivalent complex special services
requiring specialized circuit design
22
<PAGE>
Comparability Reports for Unbundled Elements - Specials - Other
- --------------------------------------------------------
Product: Other Unbundled Elements - SPECIALS - Other
- --------------------------------------------------------
State: Rhode Island
- --------------------------------------------------------
Time Period: (Monthly)
- --------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - Dispatch
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX - No Dispatch
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 4 hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% CPE Troubles
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
% No Access
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes:
1. Customer Trouble Report Rate excludes CPE and subsequents
2. Subsequents are additional calls on open troubles
3. Some measures are an indicator of carrier performance, such as % no trouble
found, % CPE and % no access
4. Other Unbundled elements include equivalent complex special services
requiring specialized circuit design
23
<PAGE>
Comparability Reports for Interconnection
If appropriate - to be broken down into DS0, DS1 and DS3
- -------------------------------------------
Product: Interconnection Trunks
- -------------------------------------------
State: Rhode Island
- -------------------------------------------
Time Period: (Monthly)
- -------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Actual Service Performance
--------------------------------------------------------
Metric Specific All NYNEX & Top 10 (RI Top 3
Carrier Telecom. Affiliate only) Carriers
Carriers (RI only)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Provisioning
- ------------------------------------------------------------------------------------------------------------
Number of Installation Orders
- ------------------------------------------------------------------------------------------------------------
Average Interval - business days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - NYNEX
- ------------------------------------------------------------------------------------------------------------
% Installation Troubles w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Missed Appointment - Customer
- ------------------------------------------------------------------------------------------------------------
Maintenance
- ------------------------------------------------------------------------------------------------------------
Total Number of Troubles Reported
- ------------------------------------------------------------------------------------------------------------
Customer Trouble Report Rate
- ------------------------------------------------------------------------------------------------------------
Mean Time to Repair
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 2 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 4 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 12 Hours
- ------------------------------------------------------------------------------------------------------------
% Out of Service > 24 Hours
- ------------------------------------------------------------------------------------------------------------
% Repeat Reports w/in 30 days
- ------------------------------------------------------------------------------------------------------------
% Subsequent Trouble Reports
- ------------------------------------------------------------------------------------------------------------
% No Trouble Found
- ------------------------------------------------------------------------------------------------------------
</TABLE>
Notes:
1. Customer Trouble Report Rate excludes CPE and subsequents
2. Subsequents are additional calls on open troubles
3. Some measures are an indicator of carrier performance, such as % no trouble
found, % CPE and % no access
24
<PAGE>
Reports Defined - Service Category
- --------------------------------------------------------------------------------
Name Definition
- --------------------------------------------------------------------------------
Resale - POTS Retail Products sold on a wholesale basis to a
reseller. Services are bundled and equal to those
sold on a retail basis.
- --------------------------------------------------------------------------------
Resale - Special Resold services that require design intervention.
These include higher capacity lines and
interoffice facilities used in concert with a
local facility. Reported at the DS0, DS1, DS3 and
Other level.
- --------------------------------------------------------------------------------
Unbundled Elements - POTS Unbundled Network Elements that in part or
combined would create a POTS type service.
Elements include: Loops, Ports, NIDs, House and
Riser and combinations. Interim number
portability orders are also included.
- --------------------------------------------------------------------------------
Unbundled Elements - Special Unbundled Network Elements that in part or in
combination would require design intervention.
These include higher capacity lines and
interoffice facilities used in concert with a
local facility. Reported at the DS0, DS1, DS3 and
Other level.
- --------------------------------------------------------------------------------
Interconnection Trunks Trunks provisioned to carry traffic between NYNEX
Central offices to the local co-carrier (CLEC).
Interconnection trunks can be within the walls of
a central office to a co-located POT bay, or
between a NYNEX end office and a CLEC (local
co-carrier) office.
- --------------------------------------------------------------------------------
25
<PAGE>
Column Definitions
- --------------------------------------------------------------------------------
Name Definition
- --------------------------------------------------------------------------------
Local Co-Carrier (CLEC/Reseller) Service performance results for the specific
Specific Local Co-Carrier (Reseller/CLEC) within
designated geographic report.
- --------------------------------------------------------------------------------
All Aggregated service performance results for
all Local Co-Carriers CLECs/Resellers in
geographic report
- --------------------------------------------------------------------------------
NYNEX and Affiliates Service performance results for NYNEX end
users (business and residential) and the
services provided to a NYNEX affiliates end
users. Excludes reseller/CLEC results.
- --------------------------------------------------------------------------------
Top 100 Largest Customers Mass. Only. Aggregated service performance
results for the largest 100 NYNEX business
end users.
- --------------------------------------------------------------------------------
Top 10 Largest Customers RI Only. Aggregated service performance
results for the largest 10 NYNEX business end
users.
- --------------------------------------------------------------------------------
Top 3 Carriers RI Only. Aggregated service performance
results for three largest carriers and their
respective CLEC/Reseller operations. Not
intended as a comparison to Long Distance
Access Services.
- --------------------------------------------------------------------------------
26
<PAGE>
APPENDIX 2
<PAGE>
Appendix 2
SCHEDULE 4.0 Network Interconnection Schedule
LATA HARVARDNET N-IP BA-IP ACTIVATION DATE
TBD TBD TBD TBD
<PAGE>
EXHIBIT 10.13
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE TELECOMMUNICATIONS
ACT OF 1996
Dated as of January 28, 1998
by and between
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
and
HARVARDNET, INC.
FOR MASSACHUSETTS
<PAGE>
TABLE OF CONTENTS
Section Page
1.0 DEFINITIONS 1
2.0 INTERPRETATION AND CONSTRUCTION 8
3.0 SCOPE 8
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) 9
4.1 Scope 9
4.2 Physical Architecture 9
4.3 Technical Specifications 10
4.4 Interconnection in Additional LATA 10
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2) 11
5.1 Scope of Traffic 11
5.2 Switching System Hierarchy 11
5.3 Trunk Group Architecture and Traffic Routing 12
5.4 Signaling 13
5.5 Grades of Service 13
5.6 Measurement and Billing 13
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5) 14
5.8 Municipal Calling Service 15
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
SECTION 251(c)(2) 15
6.1 Scope of Traffic 15
6.2 Trunk Group Architecture and Traffic Routing 15
6.3 Meet-Point Billing Arrangements 16
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC 16
7.1 Information Services Traffic 16
7.2 Tandem Transient Service ("Transit Service") 19
7.3 Dedicated Transit Service 20
7.4 911/E911 Arrangements 21
8.0 JOINT NETWORK CONFIGURATION AND GROOMING PLAN; AND INSTALLATION,
MAINTENANCE, TESTING AND REPAIR 21
8.1 Joint Network Configuration and Grooming Plan 21
8.2 Installation, Maintenance, Testing and Repair 22
9.0 UNBUNDLED ACCESS -- SECTION 251(c)(3) 22
2
<PAGE>
9.1 Local Link Transmission Types 22
9.2 ADSL and HDSL 23
9.3 Port Types 24
9.4 Private Lines, Special Access and Switched Transport 24
9.5 Limitations on Unbundled Access 24
9.6 Availability of Other Network Elements on an Unbundled Basis 25
9.7 Provisioning of Unbundled Links 26
9.8 Maintenance of Unbundled Network Elements 27
9.9 True-Up of Monthly Unbundled Link Charges for Massachusetts 28
9.10 Acknowledgment Related to Unbundled Links 29
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1) 30
10.1 Availability of Wholesale Rates for Resale 30
10.2 Availability of Retail Rates for Resale 30
10.3 Term and Volume Discounts 30
11.0 NOTICE OF CHANGES -- SECTION 251(c)(5) 30
12.0 COLLOCATION -- SECTION 251(c)(6) 30
13.0 NUMBER PORTABILITY -- SECTION 251(b)(2) 31
13.1 Scope 31
13.2 Procedures for Providing INP Through Remote Call Forwarding 31
13.3 Procedures for Providing INP Through Route Indexing 32
13.4 Procedures for Providing INP Through Full NXX Code Migration 32
13.5 Other INP Options 32
13.6 Receipt of Terminating Compensation on Traffic to INP'ed
Numbers 33
13.7 True-Up of Monthly INP Costs 34
14.0 NUMBER RESOURCES ASSIGNMENTS 34
15.0 DIALING PARITY -- SECTION 251(b)(3) 34
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 34
17.0 DATABASES AND SIGNALING 35
18.0 REFERRAL ANNOUNCEMENT 35
19.0 DIRECTORY SERVICES ARRANGEMENTS 35
19.1 Directory Listings and Directory Distributions 35
19.2 Directory Assistance ("DA") and Operator Services 36
20.0 GENERAL RESPONSIBILITIES OF THE PARTIES 44
3
<PAGE>
21.0 TERM AND TERMINATION 46
22.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 47
23.0 CANCELLATION CHARGES 47
24.0 NON-SEVERABILITY 47
25.0 INDEMNIFICATION 47
26.0 LIMITATION OF LIABILITY 49
28.0 REGULATORY APPROVAL 51
29.0 MISCELLANEOUS 51
29.1 Authorization 51
29.2 Compliance 52
29.3 Compliance with the Communications Law Enforcement Act of 1994 52
29.4 Independent Contractor 52
29.5 Force Majeure 52
29.6 Confidentiality 52
29.7 Governing Law 53
29.8 Taxes 54
29.9 Non-Assignment 54
29.10 Non-Waiver 54
29.11 Disputed Amounts 54
29.12 Notices 55
29.13 Publicity and Use of Trademarks or Service Marks 56
29.14 Section 252(i) Obligations 56
29.15 Joint Work Product 56
29.16 No Third Party Beneficiaries; Disclaimer of Agency 57
29.17 No License 57
29.18 Technology Upgrades 57
29.19 Survival 57
29.20 Scope of Agreement 57
29.21 Entire Agreement 57
29.22 Power and Authority 58
29.23 Customer Proprietary Network Information 58
29.24 Alternative Dispute Resolution 58
4
<PAGE>
LIST OF SCHEDULES AND EXHIBIT
Schedules
Schedule 1.0 Certain Terms As Defined in the Act
Schedule 4.0 Network Interconnection Schedule
Pricing Schedule
Exhibit
Exhibit A Network Element Bona Fide Request
5
<PAGE>
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 effective as of the 28th day of
January, 1998 (the "Effective Date"), by and between HarvardNet, Inc., on behalf
of itself and its subsidiaries, ("HARVARDNET"), a Massachusetts corporation with
offices at 91 Ann Lee Road, Harvard, Massachusetts 02151,and New England
Telephone and Telegraph Company d/b/a Bell Atlantic ("BA" or "NET"), a New York
corporation with offices at 185 Franklin Street, Boston, Massachusetts 02110.
WHEREAS, the Parties want to interconnect their networks at mutually
agreed upon points of interconnection to provide Telephone Exchange Services (as
defined below) and Exchange Access (as defined below) to their respective
Customers.
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 Act (as defined below) and additional services as set forth
herein.
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, HARVARDNET and BA hereby agree as follows:
1.0 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
specified below in this Section 1.0. For convenience of reference only, the
definitions of certain terms that are As Defined in the Act (as defined below)
are set forth in Schedule 1.0. Schedule 1.0 sets forth the definitions of such
terms as of the date specified on such Schedule. Neither Schedule 1.0 nor any
revision, amendment or supplement thereof is intended to reflect any revised or
subsequent interpretation of any term that is set forth in the Act is intended
to be a part of or to affect the meaning or interpretation of this Agreement.
1.1 "Act" means the Communications Act of 1934 (47 U.S.C. 153(R)), as
amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or a state
regulatory agency within its state of jurisdiction.
1.2 ADSL is a digital loop transmission technology which permits the
transmission of up to 6 Mbps downstream (from the CO to the end-user customer)
and up to 640 kbps digital signal upstream (from the end-user customer to the
CO).
1.3 "Affiliate" is As Defined in the Act.
1.4 "Agreement for Switched Access Meet Point Billing" means the Agreement
for
6
<PAGE>
Switched Access Meet Point Billing the Parties as amended.
1.5 "As Defined in the Act" means as specifically defined by the Act and
as from time to time interpreted in the duly authorized rules and regulations of
the FCC or the Department.
1.6 "As Described in the Act" means as described in or required by the Act
and as from time to time interpreted in the duly authorized rules and
regulations of the FCC or the Department.
1.7 "Automatic Number Identification" or "ANI" means a Feature Group D
signaling parameter which refers to the number transmitted through a network
identifying the billing number of the calling party.
1.8 "Busy Line Verification/Busy Line Verification Interrupt Traffic" or
"BLV/BLVI Traffic" means an operator service call in which the caller inquires
as to the busy status of or requests an interruption of a call on another
Customer's Telephone Exchange Service line.
1.9 "Calling Party Number" or "CPN" is a Common Channel Interoffice
Signaling ("CCIS") parameter which refers to the number transmitted through a
network identifying the calling party.
1.10 "Central Office Switch" means a switch used to provide
Telecommunications Services, including, but not limited to:
(a) "End Office Switches" which are used to terminate Customer
station Links for the purpose of interconnection to each other and to
trunks; and
(b) "Tandem Office Switches" ("Tandems") which are used to connect
and switch trunk circuits between and among other Central Office Switches.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
1.11 "CCS" means one hundred (100) call seconds.
1.12 "CLASS Features" means certain CCIS-based features available to
Customers including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification; Call Return and future CCIS-based offerings.
1.13 "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"). For purposes of Collocation, the "premises" of a Housing Party
is limited to the occupied structure or portion thereof in which such Housing
Party has the
7
<PAGE>
exclusive right of occupancy. Collocation will be "physical," unless physical
collocation is not practical for technical reasons or because of space
limitations, in which case virtual collocation will be provided, subject to DPU
approval. In "Physical Collocation," the Collocating Party installs and
maintains its own equipment in the Housing Party's premises.
1.14 "Common Channel Interoffice Signaling" or "CCIS" means the signaling
system, developed for use between switching systems with stored-program control,
in which all of the signaling information for one or more groups of trunks is
transmitted over a dedicated high-speed data link rather than on a per-trunk
basis and, unless otherwise agreed by the Parties, the CCIS used by the Parties
shall be SS7.
1.15 "Cross Connection" means a connection provided pursuant to
Collocation at the Digital Signal Cross Connect, Main Distribution Frame or
other suitable frame or panel between (i) the Collocating Party's equipment and
(ii) the equipment or facilities of the Housing Party.
1.16 "Customer" means a third-party end user, residence, business that
purchases Telecommunications Services provided by either of the Parties.
1.17 "Department" or "DPU" means the Massachusetts Department of Public
Utilities.
1.18 "Dialing Parity" is As Defined in the Act.
1.19 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.20 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.21 "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.
1.22 "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.
1.23 "Direct Customer Access Service" or "DCAS" is an electronic interface
system provided by BA to facilitate the ordering, provisioning and maintenance
of various interconnection arrangements.
1.25 "Exchange Message Record" or "EMR" means the standard used for
exchange of Telecommunications message information among Telecommunications
providers for billable, non-billable, sample, settlement and study data. The EMR
format is contained in Bellcore Practice BR-010-200-010 CRIS Exchange Message
Record.
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1.26 "Exchange Access" is As Defined in the Act.
1.27 "FCC" means the Federal Communications Commission.
1.28 "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.
1.29 "High-Bit Rate Digital Subscriber Line" or "HDSL" means a
transmission technology which transmits up to 786 kbps on a single pair or a
DS1-level signal over two pairs using the 2B1Q line code and meeting the PSD
mask in Bellcore Technical Advisory TA-NWT-001210, Generic Requirements for
High-Bit-Rate Digital Subscriber Lines, Issue 1, Bellcore, October 1991.
1.30 "Information Service Traffic" means Local Traffic or IntraLATA Toll
Traffic which originates on a Telephone Exchange Service line and which is
addressed to an information service provided over a Party's information services
platform.
1.31 "Integrated Digital Loop Carrier" means a subscriber loop carrier
system which integrates within the switch, at a DS1 level, twenty-four (24)
Local Link Transmission paths combined into a 1.544 Mbps digital signal.
1.32 "Interconnection" is As Described in the Act and refers to the
connection of a network, equipment, or facilities, of one carrier with the
network, equipment, or facilities of another for the purpose of transmission and
routing of Telephone Exchange Service traffic and Exchange Access traffic.
1.33 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll Services.
1.34 "Interim Telecommunications Number Portability" or "INP" is As
Described in the Act.
1.35 "InterLATA Service" is As Defined in the Act.
1.36 "Integrated Services Digital Network" or "ISDN" means a switched
network service that provides end-to-end digital connectivity for the
simultaneous transmission of voice and data. Basic Rate Interface-ISDN
("BRI-ISDN") provides for a digital transmission of two 64 Kbps bearer channels
and one 16 Kbps data channel ("2B+D").
1.37 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined
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as Local Traffic in this Agreement.
1.38 "Local Access and Transport Area" or "LATA" is As Defined in the Act.
1.39 "Local Traffic" means a call between a BA-served end user within a
given LATA, in the Commonwealth of Massachusetts, on the one hand, and an
HARVARDNET-served end user within the Commonwealth of Massachusetts on the
other, for which (i) an agreement between BA and HARVARDNET is in force, and
(ii) has been approved by regulators of competent jurisdiction, which (iii)
defines traffic between the BA end user's BA exchange area and the CONTITNENTAL
end user's HARVARDNET exchange area to be "Local Traffic", and (iv) that
interchange of such "Local Traffic" between BA and HARVARDNET occurs at an
interconnection point ("X-IP") on the BA network within the same LATA as the BA
end user. The determination that a particular call is "Local Traffic" does not
rely upon which party originated the call. Those calls that are specified to be
terminated through switched access arrangements, IntraLATA calls originated on a
1+ toll or competitive presubscription basis or a casual dialed (i.e.
"950+XXXX+", "10XXX+", or 101XXXX+") basis are not considered to be Local
Traffic. BA and HARVARDNET exchange areas and rate centers need not coincide.
For purposes of this Agreement, local calling shall be defined in accordance
with BA's Massachusetts DPU No. 10 Traffic.
1.40 "Local Exchange Carrier" or "LEC" is As Defined in the Act.
1.41 "Local Link Transmission" or "Link" means the entire transmission
path which extends from the network interface/demarcation point at a Customer's
premises to the Main Distribution Frame or other designated frame or panel in a
Party's Wire Center which serves the Customer. Links are defined by the
electrical interface rather than the type of facility used.
1.42 "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).
1.43 "Main Distribution Frame" or "MDF" means the distribution frame of
the Party providing the Link used to interconnect cable pairs and line and trunk
equipment terminals on a switching system.
1.44 "Meet-Point Billing" means the process whereby each Party bills the
appropriate tariffed rate for its portion of a jointly provided Switched
Exchange Access Service as agreed to in the Agreement for Switched Access Meet
Point Billing.
1.45 "MECAB" shall mean 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-STS-000983, contains the recommended guidelines for the billing
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of an access service provided by two or more LECs, or by one LEC in two or more
states, within a single LATA.
1.46 "MECOD" shall mean the Multiple Exchange Carrier Ordering and Design
(MECOD) Guidelines for Access Services - Industry Support Interface, a document
developed by the Ordering/Provisioning Committee under the auspices of OBF. 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 by two or more LECs.
1.47 "Network Element" is As Defined in the Act.
1.48 "Network Element Bona Fide Request" means the process described in
Exhibit A that prescribes the terms and conditions relating to a Party's request
that the other Party provide a Network Element not otherwise provided by the
terms of this Agreement.
1.49 "North American Numbering Plan" or "NANP" means the numbering plan
used in the United States, Canada, Bermuda, Puerto Rico and certain Caribbean
Islands. The NANP format is a 10-digit number that consists of a 3-digit NPA
code (commonly referred to as the area code), followed by a 3-digit NXX code and
4-digit line number.
1.50 "Number Portability" is As Defined in the Act.
1.51 "NXX" means the three-digit code which appears as the first three
digits of a seven digit telephone number.
1.52 "Party" means either BA or HARVARDNET and HARVARDNET's affiliates as
listed on Exhibit B, and may be amended from time to time upon ten (10) days
notice from HARVARDNET to BA, and "Parties" means BA and HARVARDNET and
HARVARDNET's affiliates as listed on Exhibit B and may be amended from time to
time upon ten (10) days notice from HARVARDNET to BA.
1.53 "Port" means a termination on a Central Office Switch that permits
Customers to send or receive Telecommunications over the public switched
network, but does not include switch features or switching functionality.
1.54 "Point of Termination Bay" or "POT Bay" means the intermediate
distributing frame system which serves as the point of demarcation for
collocated interconnection.
1.56 "Rate Center" means the specific geographic point designated by a
given telecommunications carrier to be associated with a particular network
address pertinent to that carrier's provision of its switched telecommunications
services. The Rate Center is identified by a specific, rate center name and
state, a ten -(-10-) character rate center name abbreviation and
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state, together with a ten-(-10-) character "locality" name descriptor,
geographic coordinate pair (latitude and longitude) and corresponding V&H
coordinate-pair. Rate Centers are used, where appropriate, to calculate
distances applicable to distance-sensitive elements of switched
telecommunications services.
1.57 "Reciprocal Compensation" is As Described in the Act.
1.58 "Route Indexing" means the provision of Interim Number Portability
through the use of direct trunks provisioned between end offices of BA and
HARVARDNET over which inbound traffic to a ported number will be routed.
1.59 "Routing Point" means a location which a LEC has designated on its
own network as the homing (routing) point for inbound traffic to one or more of
its NPA-NXX codes. The Routing Point is also used to calculate mileage
measurements for the distance-sensitive transport element charges of Switched
Exchange Access Services. Pursuant to Bell Communications Research, Inc.
("Bellcore") Practice BR 795-100-100 (the "Bellcore Practice"), the Routing
Point (referred to as the "Rating Point" in such Bellcore Practice) may be an
End Office Switch location or a "LEC Consortium Point of Interconnection."
Pursuant to such Bellcore Practice, each "LEC Consortium Point of
Interconnection" shall be designated by a common language location identifier
(CLLI) code with (x)KD in positions 9, 10, 11, where (x) may be any alphanumeric
A-Z or 0-9. The Routing Point must be located within the LATA in which the
corresponding NPA-NXX is located. However, Routing Points associated with each
NPA-NXX need not be the same as the corresponding Rate Center, nor must there be
a unique and separate Routing Point corresponding to each unique and separate
Rate Center; provided only that the Routing Point associated with a given
NPA-NXX must be located in the same LATA as the Rate Center associated with the
NPA-NXX.
1.60 "Service Control Point" or "SCP" means a component of the signaling
network that acts as a database to provide information to another component of
the signaling network (i.e., Service Switching Point or another SCP) for
processing or routing certain types of network calls. A query/response mechanism
is typically used in communicating with an SCP.
1.61 "Signaling Transfer Point" or "STP" means a component of the
signaling network that performs message routing functions and provides
information for the routing of messages between signaling network components. An
STP transmits, receives and processes CCIS messages.
1.62 "Single Bill/Multiple Tariff" shall mean that one bill is rendered to
the IXC from all LECs who are jointly providing access service. A single bill
consists of all rate elements applicable to access services billed on one
statement of charges under one billing account number using each Party's
appropriate access tariffs. The bill could be rendered by, or on behalf of,
either of the Parties.
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1.64 "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 successors or similar Switched Exchange Access
services.
1.66 "Synchronous Optical Network" or "SONET" means an optical interface
standard that allows inter-networking of transmission products from multiple
vendors. The base transmission rate is 51.84 Mbps ("OC-1/STS-1") and higher
rates are direct multiples of the base rate.
1.67 "Technically Feasible Point" is As Described in the Act.
1.68 "Telecommunications" is As Defined in the Act.
1.69 "Telecommunications Act" means the Telecommunications Act of 1996 and
any rules and regulations promulgated thereunder.
1.70 "Telecommunications Carrier" is As Defined in the Act.
1.71 "Telecommunications Service" is As Defined in the Act.
1.72 "Telephone Exchange Service" is As Defined in the Act.
1.73 "Telephone Toll Service" is As Defined in the Act.
1.74 "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
All references to Sections, Exhibits and Schedules shall be deemed to be
references to Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. The headings of the Sections and the terms
defined in Schedule 1.0 are inserted for convenience of reference only and are
not intended to be a part of or to affect the meaning of this Agreement. Unless
the context shall otherwise require, any reference to any agreement, other
instrument (including BA or other third party offerings, guides or practices),
statute, regulation, rule or tariff is to such agreement, instrument, statute,
regulation for convenience of reference only and is not intended to be a part of
or to affect the meaning or rule or tariff as amended and supplemented from time
to time (and, in the case of a statute, regulation, rule or tariff, to any
successor provision).
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3.0 SCOPE
This Agreement sets forth the terms and conditions under which HARVARDNET
and BA will interconnect their respective networks to enable HARVARDNET to
provide residential and business telecommunications services pursuant to the
rights and obligations set forth in Section 251 of the Act.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
Subject to the terms and conditions of this Agreement, Interconnection of
the Parties' facilities and equipment pursuant to Section 4.0 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 LATA within the
Commonwealth of Massachusetts on Schedule 4.0. Schedule 4.0 may be revised and
supplemented from time to time upon the mutual agreement of the Parties to
reflect the Interconnection in the other LATA in Massachusetts pursuant to
Section 4.5 by attaching a supplementary schedule to Schedule 4.0.
Interconnection in the LATA shall be accomplished through either (i) a
Fiber-Meet as provided in Section 4.2, (ii) Collocation as provided in Section
12.0, (iii) any other Interconnection method provided by applicable tariff, law,
rule or regulation, or (iv) any other Interconnection method to which the
Parties may agree.
4.1 Scope
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. Sections 5.0 and 6.0 prescribe the specific logical trunk
groups (and traffic routing parameters) which will be configured over the
physical connections described in this Section 4.0 related to the transmission
and routing of Telephone Exchange Service traffic and Exchange Access traffic,
respectively. Other trunk groups, as described in this Agreement, may be
configured using this architecture.
4.2 Physical Architecture
In each LATA identified on Schedule 4.0, HARVARDNET and BA shall configure
existing network interconnection arrangements under a joint network
configuration and grooming plan ("Joint Grooming Plan" as defined in Section
8.1). Both Parties will endeavor to provision a diverse, reliable network that
incorporates the most practicable technologies.
4.2.1 Network architecture under the Joint Grooming Plan shall be
established under the following minimum criteria:
(a) The Parties shall establish physical interconnection points at
the locations
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designated on Schedule 4.0. Points on the HARVARDNET network from
which HARVARDNET will provide transport and termination of traffic
are designated as the HARVARDNET Interconnection Points ("H-IP").
Points on the BA network from which BA will provide transport and
termination of traffic are designated as the BA Interconnection
Points ("B-IP"). Additional interconnection points may be
established by mutual agreement of both parties at any technically
feasible points consistent with Act.
(b) Each Party will provide owned or leased facilities to deliver
traffic originated on its respective networks to the designated
interconnection points of the other Party's network. The Party
terminating the traffic will be responsible for all transport and
termination of calls beyond the designated interconnection point.
4.2.2 The Parties may implement one of the following configurations
as part of the Joint Grooming Plan, unless an alternative plan is
mutually agreed to by both parties.
(a) a jointly maintained SONET network, in which each party is
responsible for the procurement, installation, and maintenance of
mutually agreed-upon Optical Line Terminating Multiplexer ("OLTM")
equipment at its respective premises. Additionally, each party will
be responsible for the installation and maintenance of one-half of a
fiber optic ring;
(b) interconnection of networks at an optical level via a Fiber Meet
or other comparable means; and
(c) by any other Plan mutually agreeable to both Parties.
4.3 Technical Specifications
4.3.1 HARVARDNET and BA shall work cooperatively to install and
maintain a reliable network. HARVARDNET and BA 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.
4.3.2 HARVARDNET and BA shall work cooperatively to apply sound
network management principles by invoking network management controls to
alleviate or to prevent congestion.
4.3.3 The publication "Bellcore Technical Publication GR-342-CORE;
High Capacity Digital Special Access Service, Transmission Parameter Limits and
Interface Combinations" describes the practices, procedures, specifications and
interfaces generally utilized by BA and is referenced herein to assist the
Parties in meeting their respective Interconnection
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responsibilities related to Electrical/Optical Interfaces.
4.4 Interconnection in Additional LATA
4.4.1 If HARVARDNET determines to offer Telephone Exchange Services
in the other LATA in which BA also offers Telephone Exchange Services in
Massachusetts, HARVARDNET shall provide written notice to BA of the need to
establish Interconnection in that LATA pursuant to this Agreement.
4.4.2 The notice provided in Section 4.4.1 shall include (i) the
initial Routing Point HARVARDNET has designated in the new LATA; (ii)
HARVARDNET's requested Interconnection Activation Date; and (iii) a non-binding
forecast of HARVARDNET's trunking requirements.
4.4.3 Unless otherwise agreed by the Parties, the Parties shall
designate the Wire Center HARVARDNET has identified as its initial Routing Point
in the LATA as the H-IP in that LATA and shall designate the BA Tandem Office
Wire Center within the LATA nearest to the H-IP (as measured in airline miles
utilizing the V&H coordinates method) as the B-IP in that LATA. Nothing in
subsection shall require a physical switch facility in the LATA.
4.4.4 Unless otherwise agreed by the Parties, the Interconnection
Activation Date in the new LATA shall be the earlier of (i) the date mutually
agreed by the Parties or (ii) the date that is one hundred and fifty (150) days
after the date on which HARVARDNET delivered notice to BA pursuant to Section
4.4.1. Within ten (10) business days of BA's receipt of HARVARDNET'S notice, BA
and HARVARDNET shall confirm the B-IP, the H-IP and the Interconnection
Activation Date for the new LATA by attaching a supplementary schedule to
Schedule 4.0.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
Section 5.0 prescribes parameters for trunk groups (the "Traffic Exchange
Trunks") to be effected over the Interconnections specified in Section 4.0 for
the transmission and routing of Local Traffic and IntraLATA Toll Traffic between
the Parties' respective Telephone Exchange Service Customers and where such
traffic is not presubscribed for carriage by a third party carrier nor carried
by a third party carrier as casual dialed (10XXX and 101XXXX) traffic.
5.2 Switching System Hierarchy
5.2.1 For purposes of this Section 5.0, each of the following
Central Office Switches shall be designated as a "Primary Switch":
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(a) Each Access Tandem BA operates in the LATA;
(b) The initial switch HARVARDNET employs to provide Telephone
Exchange Service in the LATA, which may be the same as (c),
below;
(c) Any Access Tandem HARVARDNET may establish for provision of
Exchange Access in the LATA; and
(d) Any additional switch HARVARDNET may subsequently employ to
provide Telephone Exchange Service in the LATA which
HARVARDNET may at its sole option designate as a Primary
Switch. To the extent HARVARDNET chooses to designate any
additional switch as a Primary Switch, it shall provide notice
to BA of such designation at least ninety (90) days in advance
of the date on which HARVARDNET activates such switch as a
Primary Switch; and
(e) Any additional tandem switch BA may subsequently employ to
provide access and/or sector traffic capacity within a LATA.
Traffic destined to sub-tending Secondary Switches routed via
such a Tandem(s) would be determined by network requirements
and notice made available to all LECs at least one hundred and
eighty (180) days prior to service introduction.
5.2.2 Each Central Office Switch operated by the Parties which is
not designated as a Primary Switch pursuant to Section 5.2.1 shall be designated
as a "Secondary Switch".
5.2.3 For purposes of HARVARDNET routing traffic to BA, sub-tending
arrangements between BA Primary Switches and BA Secondary Switches shall be the
same as the Access Tandem/End Office sub-tending arrangements which BA maintains
for those switches. For purposes of BA routing traffic to HARVARDNET,
sub-tending arrangements between HARVARDNET Primary Switches and HARVARDNET
Secondary Switches shall be the same as the Access Tandem/End Office sub-tending
arrangements which HARVARDNET maintains for those switches. Nothing in this
subsection should be deemed to prevent HARVARDNET from creating subtending
arrangements within the same switch.
5.3 Trunk Group Architecture and Traffic Routing
The Parties shall jointly engineer and configure Traffic Exchange Trunks
over the physical Interconnection arrangements for the transport and termination
of Telephone Exchange Service Traffic, as follows:
5.3.1 The Parties shall initially configure a separate two-way trunk
group and operate as one way or two way as mutually agreed to by both Parties,
as a direct transmission path between each HARVARDNET Primary Switch and each BA
Primary Switch.
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5.3.2 Notwithstanding anything to the contrary in this Section 5.0,
if the two-way traffic volumes between any two Central Office Switches (whether
Primary-Primary, Primary-Secondary or Secondary-Secondary) at any time exceeds
the CCS busy hour equivalent of one DS1 using the standard trunk engineering
guidelines per Bellcore SR-TSV-000191, the Parties shall within sixty (60) days
after such occurrence add trunks or establish new direct trunk groups consistent
with the grades of service and quality parameters set forth in the Joint
Grooming Plan.
5.3.3 BA and HARVARDNET will allow each other to route their
intrastate and interstate switched exchange access service traffic over the
Traffic Exchange Trunk Groups, pursuant to the terms and conditions specified in
each Party's effective intrastate and interstate access tariffs.
5.4 Signaling
5.4.1 Where available, CCIS signaling shall be used by the Parties
to set up calls between the Parties' Telephone Exchange Service networks. If
CCIS signaling is unavailable, MF (Multi-Frequency) signaling shall be used by
the Parties. Each Party shall charge the other Party equal and reciprocal rates
for CCIS signaling in accordance with applicable tariffs. During the term of
this Agreement neither Party shall charge the other Party additional
usage-sensitive rates for SS7 queries Transactional Capabilities Application
Part ("TCAP") and Integrated Services User Part ("ISUP") made for Local Traffic
interexchanged between the Parties.
5.4.2 The publication "Bellcore Special Report SR-TSV-002275, BOC
Notes on the LEC Networks - Signaling" describes the practices, procedures and
specifications generally utilized by BA for signaling purposes and is referenced
herein to assist the Parties in meeting their respective Interconnection
responsibilities related to signaling.
5.4.3 The Parties will cooperate on the exchange of ISUP and TCAP
signaling messages to facilitate interoperability of CCIS-based features between
their respective networks, including all CLASS features and functions, to the
extent each Party offers such features and functions to its Customers. All CCIS
signaling parameters will be provided including, calling party number ("CPN"),
originating line information ("OLI"), calling party category and charge number.
5.4.4 Each Party shall provide trunk groups where available that are
configured utilizing the B8ZS ESF protocol for 64 Kbps clear channel
transmission to allow for ISDN interoperability between the Parties' respective
networks.
5.4.5 The Parties mutually agree to respect the privacy status of
CPN transmitted via CCIS.
5.5 Grades of Service
The Parties shall initially engineer and shall jointly monitor and enhance
all trunk groups
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consistent with the Joint Grooming Plan.
5.6 Measurement and Billing
5.6.1 For billing purposes, each Party shall pass Calling Party
Number (CPN) information on each call carried over the Local/IntraLATA Trunks;
provided that so long as the percentage of calls passed with CPN is greater than
ninety percent (90%), all calls exchanged without CPN information shall be
billed as either Local Traffic or IntraLATA Toll Traffic in direct proportion to
the minutes of use of calls exchanged with CPN information.
5.6.2 Measurement of billing minutes (except for originating 800/888
calls) shall be in actual conversation seconds. Measurement of billing minutes
for originating 800/888 calls shall be in accordance with applicable tariffs.
5.6.3 Where CPN is not available in a LATA for greater than 10% of
the traffic, the Party sending the traffic shall provide factors to determine
the jurisdiction, as well as local vs. toll distinction, of the traffic. Such
factors shall be supported by call record details that will be made available
for review upon request. Where a Party is passing CPN but the receiving Party is
not properly receiving or recording the information, the Parties shall
cooperatively work to correctly identify the traffic, and establish a mutually
agreeable mechanism that will prevent improperly rated traffic. Notwithstanding
this, if any improperly rated traffic occurs, the Parties agree to reconcile it.
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5)
5.7.1 Reciprocal Compensation only applies to the transport and
termination of Local Traffic billable by BA or HARVARDNET which a Telephone
Exchange Service Customer originates on BA's or HARVARDNET's network for
termination on the other Party's network except as provided in Section 5.7.6
below. The Parties agree that the issue of what, if any, compensation is
applicable to traffic handed off from one Party to the other Party, within a BA
local calling area, for delivery to an Internet Service Provider (ISP) for
carriage over the Internet is currently pending before the FCC. Until such time
as the issue is resolved by the FCC or by an applicable order of the Commission
or Court with jurisdiction over the appropriate compensation for such traffic
exchange, the Parties agree that the Reciprocal Compensation arrangements
contained in this subsection 5.7 shall not apply to such traffic. To the extent
that either Party is unable to measure the volume of such traffic, the Parties
agree to work cooperatively to estimate such traffic volume.
5.7.2 The Parties shall compensate each other for transport and
termination of Local Traffic in an equal and symmetrical manner at the rate
provided in the Pricing Schedule. This rate is to be applied at the H-IP for
traffic delivered by BA, and at the B-IP for traffic delivered by HARVARDNET. No
additional charges, including port or transport charges, shall
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apply for the termination of Local Traffic delivered to the H-IP or the B-IP.
When Local Traffic is terminated over the same trunks as intraLATA or interLATA
toll, any port or transport or other applicable access charges related to the
toll traffic shall be prorated to be applied only to the toll traffic.
5.7.3 The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access Service or to any other
IntraLATA calls originated on a third party carrier's network on a 1+
presubscribed basis or a casual dialed (10XXX or 101XXXX) basis. All Switched
Exchange Access Service and all IntraLATA Toll Traffic shall continue to be
governed by the rates, terms and conditions of the applicable federal and state
tariffs.
5.7.4 Each Party shall charge the other Party its effective
applicable tariffed IntraLATA switched access rates for the transport and
termination of all IntraLATA Toll Traffic
5.7.5 The rates for termination of Local Traffic are set forth in
the Pricing Schedule which is incorporated by reference herein.
5.7.6 Compensation for transport and termination of all traffic
which is subject to performance of INP by one Party for the other Party pursuant
to Section 13.0 shall be as specified in Section 13.6.
5.7.7 When either Party delivers seven (7) or ten (10) digit
translated IntraLATA 800/888 service to the other Party for termination, the
originating party shall provide the terminating Party with billing records in
industry standard format (EMR) if required by the terminating Party. The
originating Party may bill the terminating Party for the delivery of the traffic
at local Reciprocal Compensation rates. The terminating Party may not bill the
originating Party Reciprocal Compensation under this Agreement. The Party that
is providing the 800/888 service shall pay the database inquiry charge per the
Pricing Schedule to the Party that performed the database inquiry.
5.8 Municipal Calling Service
The Parties shall work cooperatively to facilitate each Party's public
service obligations as required by the Department to provide its end user
Customers with toll free Municipal Calling Service ("MCS"). Such cooperation
shall include the sharing of certain account and toll free municipal ("TFM")
codes on a daily or other mutually agreeable basis and working with other
industry participants to satisfactorily resolve MCS related measurement and
billing issues associated with implementation of IntraLATA presubscription.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO SECTION
251(c)(2)
6.1 Scope of Traffic
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Section 6.0 prescribes parameters for certain trunk groups ("Access Toll
Connecting Trunks") to be established over the Interconnections specified in
Section 4.0 for the transmission and routing of Exchange Access traffic between
HARVARDNET Telephone Exchange Service Customers and Interexchange Carriers
("IXCs").
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 The Parties shall jointly establish Access Toll Connecting
Trunks by which, when the parties so desire, they may jointly provide
tandem-transported Switched Exchange Access Services to Interexchange Carriers
to enable such Interexchange Carriers to originate and terminate traffic from/to
HARVARDNET's Customers.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Exchange Access to allow HARVARDNET's Customers to
connect to or be connected to the interexchange trunks of any Interexchange
Carrier which is connected to an BA Access Tandem.
6.2.3 The Access Toll Connecting Trunks shall be two-way trunks, and
operated as one-way or two-way as mutually agreed by both Parties, connecting a
Switch HARVARDNET utilizes to provide Telephone Exchange Service and Switched
Exchange Access in a given LATA to an Access Tandem Switch BA utilizes to
provide Exchange Access in such LATA.
6.2.4 The Parties shall jointly determine which BA Access Tandem(s)
will be sub-tended by each HARVARDNET Switch. HARVARDNET acknowledges that BA
does not have an obligation to provide tandem service arrangements outside its
tandem serving area.
6.3 Meet-Point Billing Arrangements
6.3.1 Ordering, facilities design, and billing arrangements for
access services involving one or more exchange service providers in addition to
BA or HARVARDNET with the exception of Tandem Switched Transit Traffic which is
treated separately within this Agreement, shall (i) for multi-provider ordering
and design situations, normally conform to the applicable guideline
recommendations established by the Alliance for Telecommunications Industry
Solutions ("ATIS") and published by Bellcore in document SR-STS-002643 entitled
Multiple Exchange Carriers Ordering and Design Guidelines for Access Services -
Industry Support Interface ("MECOD"), and (ii) for multi-carrier billing
arrangements, shall normally conform to the relevant ATIS guideline
recommendations published by Bellcore in document SR-STS-000983, entitled
Multiple Exchange Carrier Access Billing ("MECAB").
HARVARDNET and BA will work cooperatively to implement a single
bill, multiple tariff scenario as described in MECAB using the New York State
Intrastate Access Settlement Pool ("NYSIASP") as the billing vendor or a
competitive billing vendor(s) selected by HARVARDNET, in lieu of (or in addition
to) NYSIASP.
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6.3.2 Meet-Point Billing arrangements between the Parties for
jointly provided Switched Exchange Access Services on Access Toll Connecting
Trunks will be governed by the terms and conditions of a mutually agreeable
arrangement which the Parties will cooperatively work to develop in accordance
with the Meet-Point guidelines contained in the ordering and billing forum
("OBF's) MECAB and MECOD documents.
6.3.3 Until and unless changed by the FCC, on a going forward basis,
HARVARDNET shall retain one hundred percent (100%) of the Residual
Interconnection Charge, in instances in which HARVARDNET provides the End Office
switching.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Provider Services Interconnection
This section describes interconnection to pay-per-call audiotex programs
in which a vendor contracts with the Local Exchange Carrier to provide
recorded announcement information or open discussion programs to the
general public: these are not Internet services.
In specific LATAs in the Bell Atlantic region, BA reserves exchanges 976,
550, 540, 970 and 940 for its Information Services Provider customers
offering the services addressed in this section 7.1 and section 7.2.
7.1.1 Routing and Provisioning
Each Party shall route Information Service Traffic which originates
on its own network to the appropriate information services
platform(s) connected to the other Party's network. Where CLEC uses
its own network facilities, CLEC will establish a direct trunk group
to the Bell Atlantic information services tandem switch. This trunk
group will be utilized to allow the CLEC to route Information
Service Traffic originated on its network to BA. Where BA routing
plans permit a combination of POTS and Information Provider traffic
on such direct trunk groups, CLEC may route a combination of POTS
and Information Provider traffic without establishing a separate
direct trunk group exclusively for Information Provider data.
However, in LATAs where BA requires direct trunks dedicated to
Information Provider traffic, CLEC must establish direct, dedicated
trunking for its Information Provider traffic. Such determinations
will be at the sole discretion of Bell Atlantic, on a par with its
established routing requirements in each LATA, and are subject to
change.
Where CLEC utilizes the BA network through the purchase of unbundled
network elements, Information Service Traffic may be routed over BA
information service
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trunks on a shared basis.
7.1.2 Blocking
Nothing in this Agreement shall restrict either Party from offering
to its Exchange Service Customers the ability to block the
completion of Information Service Traffic, whether Information Mass
Announcement Services or Variable Rated Information Services.
7.2 Information Provider Services Billing Arrangements
This section describes two varieties of cooperative billing arrangement to
support interconnection to network services for recorded information
programs.
7.2.1 Billing and Usage Specifications
The Parties shall adopt an Information Provider Usage and Billing
Specification Agreement prior to implementing interconnection to
network services for recorded information programs. With the mutual
consent of both Parties, the Information Provider Usage and Billing
Specification Agreement may be modified in the future.
7.2.1.2 Information Mass Announcement Services
Information Mass Announcement Service (IMAS), e.g. flat-rate 976
calls, is only available in the New York Metro LATA (LATA 132).
Billing is based on the existing regulatory structure pursuant to
the New York State P.S.C. No. 900 tariff.
a) For Information Mass Announcement Service, the Party
('Originating Party') on whose network the Information
Services Traffic originated shall bill and collect such
Information Provider charges and remit an amount equal to such
charges to the Party ('Terminating Party') to whose
information platform the Information Service Traffic
terminated less the Information Service Billing and Collection
fee set forth in the Pricing Schedule. The Terminating Party
may bill the Originating Party for such charges. The
Originating Party shall pay the Terminating party in full
regardless of uncollectible items. This shall apply whether
the originating party uses its own network or utilizes the
other party's network through the purchase of unbundled
network elements.
b) Upon request, the Party (Originating Party) on whose
network the Information Service Traffic originated shall
provide via electronic file transfer or magnetic tape or other
means as available all recorded call detail
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information to the Party (Terminating Party) to whose
information platform the Information Service Traffic
terminated, at the standard price for record transmission.
This data shall be in unrated EMR format per OBF/Bellcore
standard.
7.2.1.3 Variable Rated Information Services
Variable Rated Information Services includes a variety of
Information Provider Services offered in the Bell Atlantic region.
Charges for these calls are made to the originating Exchange Service
Customer on a per minute basis; rates are generally set by the
individual program provider. Prior to implementing network
interconnection to these services, CLEC and BA will establish either
of the two cooperative billing arrangements described below:
7.2.1.3.1 Bundled Information Provider Billing Arrangement
a) The Party (Originating Party) on whose network the
Information Service Traffic originated shall provide via
electronic file transfer or magnetic tape or other means as
available all recorded call detail information to the Party
(Terminating Party) to whose information platform the
Information Service Traffic terminated, at the standard price
for record transmission. This data shall be in unrated EMR
format per OBF/Bellcore standard. This shall apply whether the
originating party uses its own network or utilizes the other
party's network through the purchase of unbundled network
elements.
b) The Terminating Party shall provide to the Originating
Party via electronic file transfer or magnetic tape or other
means as available all necessary information to bill the
Information Service Traffic to the Originating Party's
Customers pursuant to the Terminating Party's agreements with
each Information Provider, at the standard price for record
transmission. Information shall be provided in as timely a
fashion as practical in order to facilitate record review and
reflect actual prices set by the individual Information
Providers. This data will consist of the EMR records
previously delivered by the Originating Party, returned to the
Originating Party in rated format where possible, or with
appropriate indicators populated on error messages. No Billing
and Collection fees will be applied to error messages. No
taxes will be calculated or paid on the Originating Party's
traffic.
c) The Originating Party shall bill and collect such
Information Provider charges and remit the amounts collected
to the Terminating Party less:
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(1) The Information Services Billing and Collection fees
set forth on the Pricing Schedule; and
(2) Customer adjustments provided by the Originating
Party. Adjustments are made for subscriber-priced traffic
only.
d) The Terminating Party shall calculate these charges and
bill them to the Originating Party for remittance.
e) The Originating Party shall provide to the Terminating
Party sufficient information regarding uncollectibles and
customer adjustments, including the originating end user line
number, the dialed Information Provider subscriber number, the
amount to be adjusted against the Information Provider
subscriber account, and the date and duration, for each call.
Such amounts shall not include tax. The Terminating Party
shall pass through the adjustments to the Information
Provider. Limitations on the number of adjustments accepted
from the Terminating Party's Exchange Service Customers, i.e.
two adjustments per line, shall be applied equally to the
acceptance of adjustments from the Originating Party's
Exchange Service Customers, on a per line basis. However, if
the Information Provider disputes such adjustments and refuses
to accept such adjustments, the Originating Party shall
reimburse the Terminating Party for all such disputed
adjustments. Final resolution regarding all disputed
adjustments shall be solely between the Originating Party and
the Information Provider.
7.2.1.3.2 Unbundled Information Provider Billing Arrangement
a) The Terminating Party shall charge the originating Party
$.03 per minute of use for switching access. These charges
shall be calculated by the Terminating Company and billed to
the Originating Company. These charges shall apply whether the
Originating Party uses its own network or utilizes the other
party's network through the purchase of unbundled network
elements. Exchange Service Customer adjustments shall not
apply to these charges.
b) Upon request from the Originating Party, the Terminating
Party shall make available its Rating Service at a charge of
$.03 per message plus a $15,000 non-recurring charge. Under
Rating Service, the Originating Party shall provide to the
Terminating Party via electronic file transfer or magnetic
tape or other means as available recorded call detail
information in unrated EMR format per OBF/Bellcore standard;
the Terminating Party shall rate such calls placed by the
Originating Party's Exchange Service
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Customers and terminating to Information Provider services
contracted with the Terminating Party, according to the rates
established by such Information Providers. The Terminating
Party shall then return the call records to the Originating
Party, in rated format where possible, or with appropriate
indicators populated on error messages. The Rating Service fee
will be applied to all messages. In addition to the charges
for Rating Service, standard charges will be made by the
Terminating Party for the transmission and delivery of such
records and files. The Terminating Party will not bill and
collect for such rated calls. The Terminating Party will not
calculate or pay taxes for such rated calls.
c) The Originating Party is responsible for all payments due
the Information Providers to whose programs that Party's
Exchange Service Customer places calls, and other obligations
and relationships with such Information Providers.
d) Resolution regarding all Exchange Service Customer
adjustments shall be solely between the Originating Party and
the Information Provider.
7.2 Tandem Transient Service ("Transit Service")
7.2.1 "Transit Service" means the delivery of certain traffic
between HARVARDNET and a LEC by BA over the Local/IntraLATA/InterLATA Trunks.
The following traffic types will be delivered: (i) Local Traffic or IntraLata
Toll Traffic originated from HARVARDNET to such LEC and (ii) Local Traffic or
IntraLATA Toll Traffic originated from such LEC and terminated to HARVARDNET.
7.2.2 Subject to Section 7.2.4, the Parties shall compensate each
other for Transit Service as follows:
(a) HARVARDNET shall pay BA for Local InterLATA and IntraLATA Toll
Traffic HARVARDNET originated over the Transit Service at the
rate specified in the Pricing Schedule plus any additional
charges or costs such terminating LEC imposes or levies on BA
for the delivery or termination of such traffic, including any
switched access charges.
(b) BA shall pay HARVARDNET for Local, InterLATA, or IntraLATA
Toll Traffic terminated to HARVARDNET from such LEC at the
appropriate Reciprocal Compensation rates described in Section
5.7.
7.2.3 While the Parties agree that it is the responsibility of a LEC
to enter into
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arrangements to deliver Local Traffic to HARVARDNET, they acknowledge that such
arrangements are not currently in place and an interim arrangement is necessary
to ensure traffic completion. Accordingly, until the earlier of (i) the date on
which either Party has entered into an arrangement with such LEC to deliver
Local Traffic to HARVARDNET or (ii) one hundred and eighty (180) days after the
Interconnection Activation Date, BA will deliver and HARVARDNET will terminate
Local Traffic originated from such LEC without charge to one another.
7.2.4 BA expects that all networks involved in Transit Service will
deliver each call to each involved network with CCIS and the appropriate TCAP
message to facilitate full interoperability of those services supported by BA as
noted in Section 1.12 and billing functions. In all cases, HARVARDNET is
responsible to follow the EMR standard and exchange records with both BA and the
terminating LEC to facilitate the billing process to the originating network.
7.2.5 For purposes of this Section 7.2, BA agrees that it shall make
available to HARVARDNET, at HARVARDNET's sole option, any transiting arrangement
BA offers to another LEC at the same rates, terms and conditions provided to
such other LEC.
7.3 Dedicated Transit Service
7.3.1 "Dedicated Transit Service" provides for the dedicated
connection between a HARVARDNET collocation arrangement established pursuant to
applicable tariffs and/or license agreements at a BA premises and a collocation
arrangement of a third party carrier that maintains a collocation arrangement at
the same premises. Dedicated Transit Service shall be provided using a
cross-connection (dedicated connection) using suitable BA-provided cable or
transmission facilities or any other mutually agreed upon arrangement
7.3.2 The carrier that requests the Dedicated Transit Service shall
be the customer of record for both ends of the service in terms of ordering,
provisioning, maintenance, and billing. Alternative arrangements may be utilized
if agreed upon by all three parties.
7.4 911/E911 Arrangements
7.4.1 To the extent required by applicable law, HARVARDNET will
interconnect to the BA 911/E911 selective router/911 tandems which serve
the areas in which HARVARDNET provides exchange services , for the
provision of 911/E911 services and for access to all sub-tending Public
Safety Answering Points ("PSAPs"). BA will provide HARVARDNET with the
appropriate CLLI codes and specifications of the tandem serving area.
7.4.2 Path and route diverse interconnections for 911/E911 shall be
made at the H-IP, the B-IP, or other points as necessary and mutually agreed.
7.4.3 BA will provide HARVARDNET with an electronic interface
through which HARVARDNET shall input and provide a daily update of 911/E911
database information
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related to appropriate HARVARDNET Customers. BA will provide HARVARDNET with the
Master Street Address Guide ("MSAG") so that HARVARDNET can ensure the accuracy
of the data transfer. Additionally, BA shall assist HARVARDNET in identifying
the appropriate person in each municipality for the purpose of obtaining the
ten-digit Subscriber number of each PSAP.
7.4.4 BA and HARVARDNET will use their best efforts to facilitate
the prompt, robust, reliable and efficient interconnection of HARVARDNET systems
to the 911/E911 platforms.
7.4.5 HARVARDNET will compensate BA for connections to its 911/E911
System pursuant to the rules set forth in Mass. DPU Order 96-73/74/75, et al.,
at 70 dated 12/4/96 (the "Phase IV Consolidated Order).
7.4.6 HARVARDNET will comply with all applicable rules and
regulations pertaining to the provision of 911/E911 services in the Commonwealth
of Massachusetts.
8.0 JOINT NETWORK CONFIGURATION AND GROOMING PLAN; AND INSTALLATION,
MAINTENANCE, TESTING AND REPAIR.
8.1 Joint Network Configuration and Grooming Plan. Within six (6) months
of the date of the Agreement, or as mutually agreed to by the Parties,
HARVARDNET and BA shall jointly develop a grooming plan (the "Joint Grooming
Plan"). From time to time the Parties may upon mutual agreement, modify the
Joint Grooming plan so that interconnection between them is accomplished in a
manner, which remains efficient, reliable and incorporating the then emerging
technologies which shall define and detail, inter alia,
(a) agreement on Physical Architecture consistent with the guidelines
defined in Section 4.0;
(b) standards to ensure that Interconnection trunk groups experience a
grade of service, availability and quality which is comparable to
that achieved on interoffice trunks within BA's network and in
accord with all appropriate relevant industry-accepted quality,
reliability and availability standards;
(c) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of the trunk groups,
including but not limited to standards and procedures for
notification and discoveries of trunk disconnects;
(d) disaster recovery provision escalations;
(e) such other matters as the Parties may agree;
The initial mutual interconnection is not dependent upon completion of the
Grooming Plan.
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8.2 Installation, Maintenance, Testing and Repair.
BA's standard intervals as set forth in attached will be utilized in connection
with the establishment of all Interconnection trunking arrangements between the
Parties. HARVARDNET 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 BA of its
inability to do so and will negotiate such intervals in good faith.
8.3 The Parties will carefully review the Network Reliability Council's
recommendations and, as part of the Joint Grooming Plan implement them where
technically and economically feasible.
9.0 UNBUNDLED ACCESS -- SECTION 251(c)(3)
Pursuant to Section 251 (c)(3), BA shall provide nondiscriminatory access
to Network Elements on an Unbundled basis at any technically feasible point on
rates, terms and conditions that are just, reasonable and nondiscriminatory in
accordance with the terms an conditions of this Agreement and Section 252 of the
Act.
9.1 Local Link Transmission Types
Subject to Section 9.5, BA shall allow HARVARDNET to access the following
Link types (in addition to those Links available under applicable tariffs)
unbundled from local switching and local transport in accordance with the terms
and conditions set forth in this Section 9.0.
9.1.1 "2-Wire Switched Analog Voice Grade Links" or "Analog 2W"
("SVGAL") which support analog transmission of 300-3000 Hz, repeat link start,
link reverse battery, or ground start seizure and disconnect in one direction
(toward the End Office Switch), and repeat ringing in the other direction
(toward the Customer). Analog 2W include Links sufficient for the provision of
PBX trunks, pay telephone lines and electronic key system lines.
9.1.2 "4-Wire Switched Analog Voice Grade Links" or "Analog 4W"
("SVGAL") which support transmission of voice grade signals using separate
transmit and receive paths and terminate in a 4-wire electrical interface.
9.1.3 "2-Wire ISDN Digital Grade Links" or "BRI ISDN" which support
digital transmission of two 64 Kbps bearer channels and one 16 Kbps data
channel. BRI ISDN is a 2B+D Basic Rate Interface-Integrated Services Digital
Network ("BRI-ISDN") Link which will meet national ISDN standards and conform to
ANSI T1.601-1992 & T1E1.4 90-004R3.
9.1.5 Links will be offered on the terms and conditions specified
herein and on such other terms in applicable tariffs that are not inconsistent
with the terms and conditions set
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forth herein. BA shall make Links available to HARVARDNET at the rates specified
in the Pricing Schedule, as amended from time to time, subject to the provisions
of Section 9.9 or as subsequently determined by the Department.
9.2 ADSL and HDSL
9.2.1 The Parties acknowledge that ADSL is not currently deployed
for use in the BA network. If the issues surrounding deployment of ADSL in BA's
network are satisfactorily resolved and ADSL is deployed, BA shall allow
HARVARDNET to access ADSL Links unbundled from local switching and local
transport in accordance with the terms and conditions set forth in this Section
9.0 and pursuant to the development of BA technical requirements (e.g.,
TR72575).
9.2.2 "2-Wire ADSL-Compatible Link" or "ADSL 2W" is a transmission
path which facilitates the transmission of up to a 6 Mbps digital signal
downstream (toward the Customer) and up to approximately a 1 Mbps digital signal
upstream (away from the Customer) while simultaneously carrying an analog voice
signal. An ADSL-2W is provided over a 2-Wire non-loaded twisted copper pair
provisioned using revised resistance design guidelines. An ADSL-2W terminates in
a 2-wire electrical interface at the Customer premises and at the BA Central
Office frame.. ADSL compatible Links are only available where existing copper
facilities can meet revised resistance guidelines. Equipment connecting to an
ADSL-2W shall meet the Power Spectral Density mask specifications in T1 LB 652
or T1 LB 653.
9.2.3 "2-Wire HDSL-Compatible Link" or "HDSL 2W" is a transmission
path which facilitates the transmission of a 768 Kbps digital signal over a
2-Wire non-loaded twisted copper pair meeting the specifications in ANSI T1E1
Committee Technical Report Number 28 / T1E1.4/92-002R3. HDSL compatible Links
are available only where existing copper facilities can meet the T1E1 Technical
Report Number 28 specifications.
9.2.4 "4-Wire HDSL-Compatible Link" or "HDSL 4W" is a transmission
path which facilitates the transmission of a 1.544 Mbps digital signal over two
2-Wire non-loaded twisted copper pairs meeting the specifications in ANSI T1E1
Committee Technical Report Number 28. HDSL compatible Links are available only
where existing copper facilities can meet the specifications.
9.2.5 HDSL and ADSL compatible links will be offered on the terms
and conditions specified herein and on such other terms in applicable tariffs
that are not inconsistent with the terms and conditions set forth herein. BA
shall make such links available to HARVARDNET at rates approved by the DPU, as
amended from time to time.
9.3 Port Types
BA shall make available to HARVARDNET unbundled Ports in accordance with
the terms and conditions of and at the rates specified in the Pricing Schedule.
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9.4 Private Lines, Special Access and Switched Transport
BA shall provide unbundled private lines, special access and switched
local transport from the trunk side of its switches in accordance with the terms
and conditions of and at the rates specified in applicable tariffs.
9.5 Limitations on Unbundled Access
9.5.1 Unless otherwise permitted by the DPU or FCC, HARVARDNET may
not cross-connect a BA-provided Link to a BA- provided Port but instead shall
purchase a network access line under applicable tariffs.
9.5.2 BA shall only be required to provide Links and Ports where
such Links and Ports are available.
9.5.3 HARVARDNET shall access BA's unbundled Network Elements specifically
identified in this Agreement via Collocation in accordance with Section 12.0 at
the BA Wire Center where those elements exist and each Link or Port shall be
delivered to HARVARDNET's Collocation node by means of a Cross Connection which
in the case of Links, is included in the rates set forth in the Pricing Schedule
or via such other alternative arrangement(s) as the Parties may mutually agree,
or FCC rules, the ACT or DPU rules may otherwise require.
9.5.4 BA shall provide HARVARDNET access to its unbundled Links at
each of BA's Wire Centers. In addition, if HARVARDNET requests one or more Links
serviced by Integrated Digital Link Carrier or Remote Switching technology
deployed as a Link concentrator, BA shall, where available, move the requested
Link(s) to a spare, existing physical Link at no charge to HARVARDNET. If,
however, no spare physical Link is available, BA shall within three (3) Business
days of HARVARDNET's request notify HARVARDNET of the lack of available
facilities. HARVARDNET may then at its discretion make a Network Element Bona
Fide Request to BA to provide the unbundled Link through the demultiplexing of
the integrated digitized Link(s). HARVARDNET may also make a Network Element
Bona Fide Request for access to unbundled Links at the Link concentration site
point. Notwithstanding anything to the contrary in this Agreement, the
provisioning intervals set forth in Section 9.7 and the Performance Interval
Dates and Performance Criteria set forth in Section 27.0 shall not apply to
unbundled Links provided under this Section 9.5.4.
9.5.5 If HARVARDNET orders a Link type and the distance requested on
such Link exceeds the transmission characteristics as referenced in the
corresponding Technical Reference specified below, distance extensions may be
required and additional rates and charges shall apply as set forth on the
Pricing Schedule. Parties agree that full technical solutions may not be
available for HDSL and ADSL for these arrangements at the signing of this
agreement, but will make a good faith effort to implement such solutions.
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Link Type Technical Reference/Limitation
Electronic Key Line 2.5 miles
ISDN Bellcore TA-NWT-000393
HDSL 2W T1E1 Technical Report Number 28
HDSL 4W T1E1 Technical Report Number 28
ADSL 2W ANSI T1.413-1995 Specification
9.6 Availability of Other Network Elements on an Unbundled Basis
9.6.1 BA shall, upon request of HARVARDNET, at any technically
feasible point provide to HARVARDNET access to its Network Elements on an
unbundled basis for the provision of HARVARDNET's Telecommunications Service.
Any request by HARVARDNET for access to a BA Network Element that is not already
available shall be treated as a Network Element Bona Fide Request. HARVARDNET
shall provide BA access to its Network Elements as mutually agreed by the
Parties or as required by the Act, Department or FCC.
9.6.2 A Network Element obtained by one Party from the other Party
under this Section 9.6 may be used in combination with the facilities of the
requesting Party only to provide a Telecommunications Service, including
obtaining billing and collection, transmission, and routing of the
Telecommunications Service.
9.6.3 Notwithstanding anything to the contrary in this Section 9.6,
a Party shall not be required to provide a proprietary Network Element to the
other Party under this Section 9.5 except as required by the Act, Department or
FCC.
9.7 Provisioning of Unbundled Links
The following coordination procedures shall apply for new unbundled Links
and the conversions of "live" Telephone Exchange Services to unbundled Links
(herein after referred to as "hot cuts"):
9.7.1 HARVARDNET shall request unbundled Links from BA by delivering
to BA a valid electronic transmittal Service Order using the BA electronic
ordering platform (as cooperatively designed and implemented to meet the minimum
requirements for information exchange needed to order and provision services to
certified local exchange carriers and enhanced to support industry standards as
developed for interconnection services) or another mutually agreed upon system.
Within two (2) business days of BA's receipt of a Service Order, BA shall
provide HARVARDNET the firm order commitment ("FOC") date according to the
applicable Performance Interval Dates set forth in Schedule 27.0 by which the
Link(s) covered by such Service Order will be installed.
9.7.2 BA agrees to accept from HARVARDNET at the time the service
request is submitted for scheduled conversion of hot cut unbundled Link orders,
a desired date and time (the "Scheduled Conversion Time") in the "A.M." (12:01
am to 12:00 noon) or "P.M." (12:01pm
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to 12:00 midnight) (as applicable, the "Conversion Window") for the hot cut.
9.7.3 BA shall test for HARVARDNET dial tone at the POT Bay by
testing through the tie cable provisioned between the BA main distributing frame
and the HARVARDNET expanded interconnection node forty-eight (48) hours prior to
the Scheduled Conversion Time.
9.7.4 Not less than one hour prior to the Scheduled Conversion Time,
either Party may contact the other Party and unilaterally designate a new
Scheduled Conversion Time (the "New Conversion Time"). If the New Conversion
Time is within the Conversion Window, no charges shall be assessed on or waived
by either Party. If, however, the New Conversion Time is outside of the
Conversion Window, the Party requesting such New Conversion Time shall be
subject to the following:
If BA requests the New Conversion Time, the applicable Service Order
Charge shall be waived; and
If HARVARDNET requests the New Conversion Time, HARVARDNET shall be
assessed a Service Order Charge in addition to the Service Order
Charge that will be incurred for the New Conversion Time.
9.7.5 Except as otherwise agreed by the Parties for a specific
conversion, such as large cutovers of ten lines or more that have negotiated
intervals, the Parties agree that the time interval expected from disconnection
of BA's "live" Telephone Exchange Service to the connection of an unbundled
Network Element at the HARVARDNET Collocation node's POT Bay will be
accomplished within a window of time of sixty (60) minutes or less through the
end of this Agreement. If a conversion exceeds the specified interval and such
delay is caused solely by BA (and not by a contributing Delaying Event (as
defined in Section 27.4)), BA shall waive the applicable Service Order Charge
for such element. If HARVARDNET has ordered INP with the installation of a Link,
BA will coordinate the implementation of INP the Link conversion during the
above stated intervals at no additional charge.
9.7.6 If either Party requests or approves the other Party
technician to perform services in excess of or not otherwise contemplated by the
Service Order charge, either Party may charge the other Party for any additional
and reasonable labor charges to perform such services.
9.7.7 If as the result of end user actions, (e.g., Customer not
ready ["CNR"]), BA cannot complete requested work activity when a technician has
been dispatched to the site HARVARDNET will be assessed a non-recurring charge
associated with this visit. This charge will be the sum of the Service Order
Charge and Premises Visit Charge as specified in DPU No. 10., Part M, Section
1.3.
9.7.8 Until such time as the Department approves a non-recurring
unbundled network element Service Order Charge(s) an interim non-recurring
service order charge shall
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apply on a per link or other unbundled element basis. The interim service order
charge rate shall equal the Service Ordering Charge to install a business
network access line as specified in D.P.U. No. 10, Part M Section 1.3.
9.8 Maintenance of Unbundled Network Elements
If (i) HARVARDNET reports to BA a Customer trouble, (ii) HARVARDNET
requests a dispatch, (iii) BA dispatches a technician, and (iv) such trouble was
not caused by BA's facilities or equipment in whole or in part, then HARVARDNET
shall pay BA a trip charge of $60.00 and $29.15 per quarter hour for time
associated with said dispatch beyond the first 1/2 hour. In addition this charge
also applies when the end user contact as designated by HARVARDNET is not
available at the appointed time. HARVARDNET accepts responsibility for initial
trouble isolation and providing BA with appropriate dispatch information based
on their test results. If as the result of HARVARDNET instructions, BA is
erroneously requested to dispatch within a BA Central Office or to a POT Bay
("dispatch in"), a charge of $100.00 per occurrence will be assessed to
HARVARDNET's by BA. BA agrees to respond to HARVARDNET's trouble reports on a
non-discriminatory basis consistent with the manner in which it provides service
to its own retail customers or any other Telecommunications Carrier.
9.9 True-Up of Monthly Unbundled Link Charges for Massachusetts
9.9.1 BA and HARVARDNET agree to provide true-ups to one another for
all Links purchased in Massachusetts by HARVARDNET, through the end of the
initial term of this Agreement up to:
a) the date of the Initial Link Rate Decision, as defined in
Section 9.9.3; and or
b) the date of the Final Link Rate Decision, as defined in
Section 9.9.4.
9.9.2 "Current Monthly Rate" is $16.50.
9.9.2.1 Notwithstanding the foregoing paragraph 9.9.2, nothing
in this Agreement shall be construed to imply that HARVARDNET agrees that the
rate referenced in Section 9.9.2 is a reasonable or appropriate charge for
unbundled Links.
9.9.3 "Initial Link Rate Decision" is any decision of the Department
establishing any interim monthly Link rates which is issued subsequent to the
date of the execution of this Agreement and before the expiration of the initial
term of this Agreement.
9.9.4 "Final Link Rate Decision" represents the lower of any of the
following which occur during the initial term of this Agreement:
a) a decision of the Department establishing permanent
monthly link
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rates which is issued subsequent to either the date of
this Agreement or the Initial Link Rate Decision as
modified by any rulings by the FCC or appeals ruled upon
in any federal or state court of competent jurisdiction,
b) any Link rate established through arbitration between BA
and a third party that is approved by a ruling of the
Department, the FCC or any federal or state court of
competent jurisdiction.
9.9.5 "Initial Link Months" represents the cumulative sum of total
links in service to HARVARDNET each month for the period beginning on the
effective date of this Agreement and ending at the date of the Initial Link Rate
Decision. For example, if 10 Links are in service each month for 5 months, the
number of Link Months would equal 50.
9.9.6 "Final Link Months" represents the cumulative sum of total
links in service to HARVARDNET each month for the period beginning on the
effective date of the Agreement and ending at the date of the Final Link Rate
Decision.
9.9.7 "Initial Per-Link True-up" represents the difference between
the Current Monthly Rate and the rate established under the Initial Link Rate
Decision.
9.9.8 "Final Per-Link True-up" represents the difference between the
rate established under any Initial Link Rate Decision and the Final Link Rate
Decision; or the difference between the Current Monthly Rate and the Final Link
Rate Decision absent any Initial Link Rate Decision.
9.9.9 "Initial True-up Amount" is the product amount calculated by
multiplying Initial Link Months by the Initial Per-Link True-up.
9.9.10 "Final True-up Amount" is the product amount calculated by
multiplying Final Link Months by the Final Per-Link True-up.
9.9.11 BA agrees to pay HARVARDNET and HARVARDNET agrees to pay BA
the Initial True-up Amount as applicable within thirty (30) days of the Initial
Link Rate Decision.
9.9.12 BA agrees to pay HARVARDNET and HARVARDNET agrees to pay BA
the Final True-up Amount as applicable within thirty (30) days of any Final Link
Decision.
9.9.13 HARVARDNET and BA will track the number of Link Months on a
prospective basis up until payment of the Final True-up Amount.
9.10 Acknowledgments Related to Unbundled Network Elements
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9.10.1 HARVARDNET acknowledges that BA's provision of unbundled
links provides it with local loop transmission from the central office to the
customer's premises, unbundled from local switching or other services.
9.10.2 HARVARDNET acknowledges that BA's provision of unbundled
switched transport provides it with local transport from the trunk side of a
wireline local exchange carrier switch unbundled from switching or other
services.
9.10.3 HARVARDNET acknowledges that BA's provision of unbundled
line-side ports and unbundled trunk-side ports provides them local switching
unbundled from transport, local loop transmission and other services.
9.10.4 HARVARDNET acknowledges that the Network Element Bona Fide
Request Process established pursuant to this Agreement satisfies certain
requirements of the Act to provide unbundled network elements.
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
10.1 Availability of Wholesale Rates for Resale
BA shall offer to HARVARDNET for resale at wholesale rates its local
exchange telecommunications services, as described in Section 251(c)(4) of the
Act, at the rates set forth in the Pricing Schedule, pending approval by the
Department of permanent resale rates, pursuant to the terms and conditions of
BA's applicable tariffs which it expects to file during the term of this
Agreement. . BA shall make such resale arrangements available to HARVARDNET as
soon as it makes such resale service available in the Commonwealth of
Massachusetts. Pending approval of such permanent resale rates and tariffs BA
shall offer. HARVARDNET resale arrangements as set forth in the Interim Resale
Agreements filed with the Department, or as otherwise provided herein.
10.2 Availability of Retail Rates for Resale
Each Party shall make available its Telecommunications Services for resale
at retail rates to the other Party in accordance with Section 251(b)(1) of the
Act in accordance with each Party's applicable approved tariffs.
11.0 NOTICE OF CHANGES -- SECTION 251(c)(5)
If a Party makes a change in its network which it believes will materially
affect the inter-operability 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. In addition, the
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Parties will comply with the Network Disclosure rules adopted by the FCC in CC
Docket No. 86-79 as may be amended from time to time.
12.0 COLLOCATION -- SECTION 251(c)(6)
12.1 Upon request, BA shall provide to HARVARDNET Physical Collocation for
its transport facilities and equipment, pursuant to the terms and conditions of
BA's applicable tariffs on file with the FCC and the Department as necessary for
Interconnection (pursuant to Section 4.0) or for access to unbundled Network
Elements (pursuant to Section 9.0). BA may provide for Virtual Collocation if BA
demonstrates to the Department that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. Upon request by HARVARDNET and to the extent technically
feasible and as space permits, BA shall provide collocation at additional
locations for placement of such equipment and alternative physical collocation
arrangements.
12.2 Although not required to do so by Section 251(c)(6) of the Act, by
this Agreement, HARVARDNET agrees to provide to BA upon BA's Network Element
Bona Fide Request, Collocation of equipment for purposes of Interconnection
(pursuant to Section 4.0) on a non-discriminatory basis and at comparable rates,
terms and conditions as HARVARDNET may provide to other common carriers.
HARVARDNET shall provide such Collocation subject to applicable tariffs or
contracts.
12.2 The Collocating Party shall provide its own or third-party leased
transport facilities and terminate those transport facilities in equipment
located in its Physical Collocation space at the Housing Party's premises as
described in applicable tariffs or contracts and purchase Cross Connection to
services or facilities as described in applicable tariffs or contracts.
13.0 NUMBER PORTABILITY -- SECTION 251(b)(2)
13.1 Scope
13.1.1 The Parties shall provide Number Portability on a reciprocal
basis to each other to the extent technically feasible, and in accordance with
rules and regulations as from time to time prescribed by the FCC and/or the
Department.
13.1.2 Until Number Portability is implemented by the industry
pursuant to regulations issued by the FCC or the Department, the Parties agree
to provide Interim Telephone Number Portability ("INP") to each other through
remote call forwarding, route indexing, and full NXX code migration at the
prices listed in the Pricing Schedule.
13.1.3 Once Number Portability is implemented pursuant to FCC or
Department regulation, either Party may withdraw, at any time and at its sole
discretion, its INP offerings, subject to advance notice to the other Party and
coordination to allow the seamless and transparent conversion of INP Customer
numbers to Number Portability. Upon implementation
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of Number Portability pursuant to FCC regulation, both Parties agree to conform
and provide such Number Portability.
13.2 Procedures for Providing INP Through Remote Call Forwarding
HARVARDNET and BA will provide INP through Remote Call Forwarding as
follows:
13.2.1 A Customer of one Party ("Party A") elects to become a
Customer of the other Party ("Party B"). The Customer elects to utilize the
original telephone number(s) corresponding to the Exchange Service(s) it
previously received from Party A, in conjunction with the Exchange Service(s) it
will now receive from Party B. Upon receipt of confirmation of a service order
from the Customer (and an associated service order) assigning the number to
Party B, Party A will implement an arrangement whereby all calls to the original
telephone number(s) will be forwarded to a new telephone number(s) designated by
Party B. It is Party B's responsibility to maintain a file of all service orders
and Party A may request, upon reasonable notice, a copy of the service order to
be used solely for the purpose of examining compliance with this section. Party
A will route the forwarded traffic to Party B over the appropriate Telephone
Exchange Service Trunks as if the call had originated on Party A's network.
13.2.2 Party B will become the customer of record for the original Party A
telephone numbers subject to the INP arrangements. Party A shall use its
reasonable efforts to consolidate into as few billing statements as possible all
collect, calling card, and 3rd-number billed calls associated with those
numbers, with sub-account detail by retained number. At Party B's sole
discretion, such billing statement shall be delivered to Party B in an
agreed-upon format via either electronic file transfer, daily magnetic tape, or
monthly magnetic tape.
13.2.3 Party A will update its Line Information Database ("LIDB")
listings for retained numbers, and restrict or cancel calling cards associated
with those forwarded numbers as directed by Party B.
13.2.4 Within two (2) business days of receiving notification from
the Customer, Party B shall notify Party A of the Customer's termination of
service with Party B, and shall further notify Party A as to that Customer's
instructions regarding its telephone number(s). Party A will reinstate service
to that Customer, cancel the INP arrangements for that Customer's telephone
number(s), or redirect the INP arrangement to another INP-participating-LEC
pursuant to the Customer's instructions at that time.
13.3 Procedures for Providing INP Through Route Indexing
Upon mutual agreement, BA will deploy a Route Index arrangement as
mutually agreed upon, which combines direct trunks, provisioned between BA's and
HARVARDNET's End Offices, with trunk side routing translations and full
functionality for those CLASS services available in the BA switch. Under this
arrangement, inbound calls to a ported number will be pointed at a route index
that sends the call to a dedicated trunk group, built as a direct final, for the
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sole purpose of facilitating completion of calls to a ported number. BA will
coordinate with HARVARDNET to provide this solution in a mutually agreeable and
administratively manageable manner (e.g., NXX level) so as to minimize switch
resource utilization for both Parties.
13.4 Procedures for Providing INP Through Full NXX Code Migration
Where either Party has activated an entire NXX for a single Customer, or
activated a substantial portion of an NXX for a single Customer with the
remaining numbers in that NXX either reserved for future use or otherwise
unused, if such Customer 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 be
accomplished with appropriate coordination between the Parties and subject to
appropriate industry lead-times for movements of NXXs from one switch to
another.
13.5 Other Interim Number Portability Options
HARVARDNET may also request Direct Inward Dial Trunks pursuant to
applicable tariffs. If information or interim number portability is made
available to any Party for information services tariff (e.g., 976), it will be
made available to HARVARDNET.
13.6 Receipt of Terminating Compensation on Traffic to INP'ed Numbers
The Parties agree that the prices set forth in the Pricing Schedule shall
apply for each number ported.
The Parties agree that under INP terminating compensation on calls to
INP'ed numbers should be received by each Customer's chosen LEC as if each call
to the Customer had been originally addressed by the caller to a telephone
number bearing an NPA-NXX directly assigned to the Customer's chosen LEC. In
order to accomplish this objective where INP is employed, the Parties shall
utilize the process set forth in this Section 13.6 whereby terminating
compensation on calls subject to INP will be passed from the Party which
performs the INP (the "Performing Party") to the other Party for whose Customer
the INP is provided (the "Receiving Party").
13.6.1 The Parties shall individually and collectively track and
quantify INP traffic between their networks based on the CPN of each call by
identifying CPNs which are INP'ed numbers. The Receiving Party shall charge the
Performing Party for each minute of INP traffic at the INP Traffic Rate
specified in Section 13.6.3 in lieu of any other compensation charges for
terminating such traffic.
13.6.2 By the Interconnection Activation Date in each LATA, the
Parties shall jointly estimate for the prospective year, based on historic data
of all traffic in the LATA, the percentages of such traffic that if dialed to
telephone numbers bearing NPA-NXXs directly assigned to a Receiving Party (as
opposed to the INP'ed number) would have been subject to (i)
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Local Traffic exchanged between the Parties ("Local Reciprocal Traffic"), (ii)
IntraLATA Toll Traffic exchanged between the Parties ("IntraLATA Toll Reciprocal
Traffic"), (iii) appropriate intrastate FGD charges ("Intra Traffic"), (iv)
interstate FGD charges ("Inter Traffic"), or (v) handling as Local Traffic under
transiting arrangements between the Parties ("Transit Traffic"). For the
purposes of this section only, HARVARDNET'S intra-switch INP traffic should be
treated as Transit Service and assumed to be zero. On the date which is six (6)
months after the Interconnection Activation Date, and thereafter on each
succeeding six month anniversary of such Interconnection Activation Date, the
Parties shall establish new INP traffic percentages to be applied in the
prospective six (6) month period, based on actual INP traffic percentages from
the preceding six (6) month period.
13.6.3 The INP Traffic Rate shall be equal to the sum of:
(Local Reciprocal Traffic percentage times the Local Reciprocal
Compensation Rate set forth in the Pricing Schedule) plus (IntraLATA Toll
Reciprocal Traffic percentage times the Reciprocal Compensation Rate set forth
in the Pricing Schedule) plus (Intra Traffic percentage times BA's effective
intrastate FGD rates) plus (Inter Traffic percentage times BA's effective
interstate FGD rates).
A rate of zero shall be applied to the Transit Traffic percentage.
13.7 True-up of Monthly INP Costs
13.7.1 Until such time as a competitively neutral cost recovery
mechanism is implemented pursuant to a DPU or FCC order ("the Interim Recovery
Period"), the parties shall track and record the cumulative sum of ported
numbers provided via an INP functionality to each other each month for the
purpose of calculating an INP true-up amount that the party providing an INP
functionality may then be entitled to bill and receive under such DPU or FCC
order. The true-up amount shall equal the sum of the ported numbers provided to
the party receiving the INP functionality, multiplied by the number of months
applicable to each ported number during the Interim Recovery Period, multiplied
by the Final INP Rate set by the DPU or FCC. Numbers ported prior to February 1,
1997, shall be provided at the prices listed in the Pricing Schedule.
13.7.2 In the event the DPU or FCC establishes a competitively
neutral cost recovery mechanism which allows recovery of amounts for the
provision of INP functionalities different from those amounts listed for such
functionalities in the Pricing Schedule, the Parties shall adopt such different
amounts in accordance with such competitively neutral cost recovery mechanism.
Should the FCC or DPU adopt a competitively neutral cost recovery mechanism for
INP which differs from that stipulated to by the Parties herein, the Parties
shall adopt such a mechanism pursuant to said order in lieu of the payment
arrangements outlined in this Section 13.0.
14.0 NUMBER RESOURCES ASSIGNMENTS
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BA shall continue to assign to HARVARDNET NXX codes in accordance with
national guidelines at no charge.
15.0 DIALING PARITY -- SECTION 251(b)(3)
BA shall provide Local Dialing Parity as required under Section 251(b)(3)
of the Act in the following manner: Telephone numbers are provided pursuant to
Section 13.0; Directory Assistance is provided pursuant to Section 19.2;
Directory Listings are provided pursuant to Section 19.1; and Operator Services
are provided to Sections 19.2.4 and 19.2.6.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
Each Party shall provide the other Party access to its poles, ducts,
rights-of-way and conduits it owns or controls, to the extent permitted by law
and as required by Section 224 of the Act or Department Order, on terms,
conditions and prices comparable to those offered to any other entity pursuant
to each Party's applicable tariffs and/or standard agreements with such
entities.
17.0 DATABASES AND SIGNALING
BA shall provide HARVARDNET with interfaces to access BA's databases,
including LIDB and 800/888, as well as DCAS for ordering and provisioning
purposes, and associated signaling necessary for the routing and completion of
HARVARDNET's traffic through the provision of SS7 under its applicable tariffs.
18.0 REFERRAL ANNOUNCEMENT
When a Customer changes its service provider from BA to HARVARDNET, or
from HARVARDNET to BA, and does not retain its original telephone number, the
Party formerly providing service to such Customer shall provide a referral
announcement ("Referral Announcement") on the abandoned telephone number which
provides details on the Customer's new number. Referral Announcements shall be
provided reciprocally, free of charge to either the other Party or the Customer,
for a period of not less than four (4) months after the date the Customer
changes its telephone number in the case of business Customers and not less than
sixty (60) days after the date the Customer changes its telephone number in the
case of residential Customers. However, if either Party provides Referral
Announcements for a period different than the above respective periods when its
Customers change their telephone numbers, such Party shall provide the same
level of service to Customers of the other Party.
19.0 DIRECTORY SERVICES ARRANGEMENTS
BA will provide certain directory services to HARVARDNET as defined
herein. In this Section 19 of this Agreement, references to HARVARDNET Customer
telephone numbers means telephone numbers falling within NXX codes directly
assigned to HARVARDNET and to numbers
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which are retained by HARVARDNET on the Customer's behalf pursuant to Interim
Telephone Number Portability arrangements described in Section 13 of this
Agreement.
19.1 Directory Listings and Directory Distributions
19.1.1 BA will include HARVARDNET's Customers telephone numbers in
all of its "White Pages" and "Yellow Pages" directory listings (including
electronic directories) and directory assistance databases associated with the
areas in which HARVARDNET provides services to such Customers, and will
distribute such directories to such Customers, in an identical and transparent
manner in which it provides those functions for its own Customers' telephone
numbers.
19.1.2 BA will include all HARVARDNET NXX codes on appropriate
existing calling charts in the BA Customer Guide section of the directory in the
same manner as it provides this information for its own NXX codes.
19.1.3 HARVARDNET will provide BA with its directory listings
according to Section 19.1.5 and daily updates to those listings (including new,
changed, and deleted listings) in a mutually agreed upon format at no charge. BA
may use such publicly available information in the manner and to the same extent
available to third parties.
19.1.4 BA will accord HARVARDNET's directory listing information the
same level of confidentiality which BA accords its own directory listing
information.
19.1.5 BA shall provide HARVARDNET at no charge with (i) one basic
single line white and yellow page directory listing per business Customer
number, or one basic single line white page directory listing per residence
Customer number, (ii) directory distribution for HARVARDNET Customers, and (iii)
listings of HARVARDNET Customers in the directory assistance database.
19.1.6 BA will provide HARVARDNET with a report of all HARVARDNET
Customer listings ninety (90) days prior to book closing in such form and format
as may be mutually agreed to by both parties. Both Parties shall use their best
efforts to ensure the accurate listing of such information. BA shall continue to
accept new listings during this ninety day period for publication.
19.1.7 Yellow Page Maintenance
BA will work cooperatively with HARVARDNET so that Yellow Page
advertisements purchased by Customers who switch their service to HARVARDNET
(including Customers utilizing Interim Telephone Number Portability) are
maintained without interruption. BA will allow HARVARDNET Customers to purchase
new yellow pages advertisements without discrimination, under the identical
rates, terms and conditions that apply to BA's Customers.
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19.1.8 Information Pages
BA will include in the "Information Pages" or comparable section of
its White Pages Directories for areas served by HARVARDNET, listings provided by
HARVARDNET for HARVARDNET's installation, repair and customer service and other
service-oriented information, including appropriate identifying logo. Such
listings shall appear in the manner that such information appears for
subscribers of BA and other LECs. BA shall not charge HARVARDNET for inclusion
of this information.
19.2 Directory Assistance ("DA") and Operator Services
Under this option, BA will provide Directory Assistance to HARVARDNET end
users on behalf of HARVARDNET.
BA will offer Directory Assistance ("DA") service to HARVARDNET's
customers served by HARVARDNET's own switch over separate trunk groups ordered
by HARVARDNET to the BA TOPS switch(es) as specified by BA. Access to the BA DA
platform from HARVARDNET's local switch requires that HARVARDNET utilize Feature
Group C ("FG-C") Modified Operator Services Signaling. The Interoffice
Transmission Facility ("IOF") mileage rate for the facility will be based on
airline mileage using V&H coordinate methods from the HARVARDNET location to the
nearest BA TOPS. Trunk terminations at the TOPS switch(es) require HARVARDNET to
purchase trunk ports at rates specified in the Pricing Schedule. For each trunk
group HARVARDNET must indicate the DA option selected as set forth in 19.2.2
(a), (b) and (c) immediately following. BA also provides HARVARDNET, using the
unbundled local switching element, access to this optional service either
through dedicated IOF and trunk ports or on shared operator service trunks
between the end office in which they have unbundled local switching ports and
the TOPS switches. Additional per minute of use ("MOU") local switching charges
will apply for all calls which interconnect from the unbundled local switching
ports to the BA TOPS as described in the Pricing Schedule.
19.2.1 Directory Assistance
This option provides HARVARDNET end users access to Telephone Directory
Assistance operators via 411, 555-1212, or 1+ (NPA) 555-1212 dialing.
Rates for requests for Directory Assistance will be billed to HARVARDNET
and are set forth in the Pricing Schedule.
There are no Directory Assistance call allowances provided to HARVARDNET
or their end users.
19.2.2 Directory Assistance with Branding
This service allows HARVARDNET to select only one of the three options as
follows:
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*(a) HARVARDNET may provide BA with a HARVARDNET branded,
introductory Directory Assistance and Operator Services announcement which will
be played for all HARVARDNET end users completing DA or Operator Services calls
over the trunk group to the BA TOPS.
*(b) HARVARDNET may request BA branded announcement.
*(c) HARVARDNET may request an unbranded, generic announcement.
This message may be a maximum of eighteen (18) seconds and may be recorded
by HARVARDNET or, at HARVARDNET's request, by BA. A minimum of two (2) audio
cassette recordings of the HARVARDNET branding announcement must be forwarded to
BA.
Rates for requests for Directory Assistance with branding will be billed
to HARVARDNET and are set forth in the Pricing Schedule.
19.3 Directory Assistance Call Completion (DACC)
This option provides for automatic connection of a HARVARDNET end user
calling BA DA to the published telephone number requested.
After the BA DA operator provides the requested number, a recorded service
message will offer to connect the caller to that number for a specified
additional charge.
The caller can accept the offer for DACC by depressing a button (touch
tone) or responding by voice (dial), as instructed by the voice message.
The DACC charge will apply as set forth in the Pricing Schedule. In
addition, for calls originating from a facilities-based HARVARDNET switch or for
calls from HARVARDNET unbundled local switching line ports, there will be
charges to terminate the call from the TOPS tandem to the called party. These
include the per minute of use Unbundled Tandem Transport Charges (UTTC) assessed
for each call transported between the TOPS tandem and the end office, the per
minute of use Tandem Transient Switching Charge (TTSC) assessed for each call
that traverses a BA tandem switch, and the appropriate per minute of use charges
for reciprocal compensation (UNRCC or UCRCC) depending on the terminating end
office switch, as set forth in the Pricing Schedule.
DACC is available to HARVARDNET residence and business customers and
from public telephones on a collect, bill to third number or calling card basis.
The charge appropriate to the billing option used will apply in addition to the
DACC charge.
DACC is available with all telephone numbers in the BA DA database
except:
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- non-published telephone numbers
- interLATA numbers
- 700, 800 and 900 numbers
When a caller requests more than one number for Directory
Assistance, DACC is offered only for the first eligible listing that
was selected by the operator.
The DACC charge applies only to calls actually completed.
The DACC charge will be credited for completion of calls to the
wrong number, incomplete connections or calls with unsatisfactory
transmission as set forth in Section 19.4 following.
Rates for requests for DACC will be billed to HARVARDNET as set forth in
the Pricing Schedule.
19.4 Directory Assistance Credits
A credit allowance will apply to HARVARDNET for directory inaccessibility,
wrong numbers, cut-offs or poor transmission. When the HARVARDNET end user
reports to the BA directory assistance operator such a call and the number
requested, the number provided and the reason the number provided is incorrect,
the number of calls for which a credit will apply will be developed by the BA DA
operator and credited to HARVARDNET identifying the specific HARVARDNET end user
to whom the credit applies.
19.5 Direct Access to Directory Assistance ("DADA")
Direct Access to Directory Assistance ("DADA") is a database service that
provides for access to BA listings by a HARVARDNET operator. The DADA database
is a physically distinct entity from the BA DA database, populated with
identical listing data, and updated from the same source on a daily basis.
HARVARDNET is required to arrange for interconnection to the
database. BA will interconnect at any technically feasible point designated by
HARVARDNET.
BA will provide HARVARDNET with a User Guide for training its
agents.
Rates and Charges for DADA are set forth in the Pricing Schedule.
19.6 Inward Operator Services
Inward Operator Services enables the HARVARDNET end user or its operator
service provider to be connected to the BA Traffic Operation Position Systems
("TOPS") office(s) for
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the purpose of providing operator services to their end users. There are two
types of Inward Operator Services:
(i) Busy Line Verification ("BLV"):
BLV is an option where, at the request of HARVARDNET's end user or
its operator service provider, a BA operator will attempt to determine the
status of an exchange service line (e.g., conversation in progress,
available to receive a call or out of service) and report to HARVARDNET's
end user or its operator service provider.
(ii) Busy Line Verification/Interrupt ("BLV/I")
BLV/I is an option where, at the request of HARVARDNET's end user or
its operator service provider, a BA operator determines and reports that a
conversation is in progress on an exchange service line and subsequently
interrupts such conversation to request that the conversation be
terminated so that HARVARDNET's end user can attempt to complete a call to
the line.
Inward Operator Services are provided over trunk groups ordered by
HARVARDNET or its alternate operator service provider to the BA TOPS switch(es)
as specified by BA.
Inward Operator Services cannot be provided on ported telephone
numbers, telephone number which forward calls using Call Forwarding Variable
service features.
- BA will provide BLV and BLV/I for telephone numbers provided
in its operating territory.
- The BA operator will respond to one telephone number per call
on requests for BLV or BLV/I.
- BA will designate which TOPS switch(es) services which NXXs
and make such information available to HARVARDNET.
- HARVARDNET shall order Inward Operator Services as set forth
in this Section..
- HARVARDNET and its customer shall indemnify and save BA
harmless against all claims that may arise from either party
to the interrupted call or any other person.
Rates and Charges for Inward Operator Services are set forth in the
Pricing Schedule.
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19.7 Operator Service ("OS")
Under this option, BA shall provide for the routing of Operator Services
("OS") calls dialed by HARVARDNET subscribers directly to either the HARVARDNET
Operator Services platform or to the BA Operator Services platform as specified
by HARVARDNET.
BA will offer OS to HARVARDNET customers served by HARVARDNET switches
over separate trunk groups ordered by HARVARDNET to the BA TOPS switch(es) as
specified by BA. Access to the BA OS platform from HARVARDNET's local switch
requires that HARVARDNET utilize Feature Group C Modified Operator Services
Signaling. The Interoffice Transmission Facility mileage rate for the facility
will be based on airline mileage using V&H coordinate methods from the
HARVARDNET location to the nearest BA TOPS. Trunk terminations at the TOPS
switch(es) require HARVARDNET to purchase trunk ports at rates specified in the
Pricing Schedule. For each trunk group, HARVARDNET must indicate the branding
option selected as set forth in Sectons 19.2.2 (a), (b), and (c) preceding. BA
also provides HARVARDNET, using the unbundled local switching element, access to
this optional service either through dedicated IOF and trunk ports or on shared
operator service trunks between the end office in which they have unbundled
local switching ports and the TOPS switches. Additional per minute of use (MOU)
local switching charges will apply for all calls which interconnect from the
unbundled local switching ports to the BA TOPS at rates set forth in the Pricing
Schedule.
19.8 0+ Mechanized Operator Calls (Calling Card, Collect, Bill to Third
Number):
This option is available for HARVARDNET to provide their end user the
ability, through the mechanized BA operator interface, to complete calls via 0+
dialing with alternate billing capabilities without live operator assistance.
Alternate billing call completions can be Calling Card, Collect or Bill to Third
Number.
0+ Mechanized calls may be provided over the same DA trunk groups which
establish interconnection from the HARVARDNET switch or the trunk groups which
provide interconnection from the HARVARDNET unbundled local switching line ports
to the BA TOPS.
Rates for requests for 0+ Mechanized Calls will be billed to HARVARDNET
and are set forth in the Pricing Schedule. In addition, for calls originating
from a facilities-based HARVARDNET switch or for calls from HARVARDNET unbundled
local switching line ports, there will be charges to terminate the call from the
TOPS tandem to the called party. These include the per minute of use Unbundled
Tandem Transport Charges ("UTTC") assessed for each call transported between the
TOPS tandem and the end office, the per minute of use Tandem Transient Switching
Charge ("TTSC") assessed for each call that traverses a BA tandem switch, and
the appropriate per minute of use charges for reciprocal compensation ("UNRCC"
or "UCRCC") depending on the terminating end office switch, as set forth in the
Pricing Schedule.
19.9 0- Operator Handled Calls (Calling Card, Collect, Bill to Third
Number)
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This option is available for HARVARDNET to provide their end user, through
the BA operator, the ability to complete intraLATA calls via 0- dialing with
alternate billing capabilities and live operator assistance. Alternate billing
call completions can be Calling Card, Collect or Bill to Third Number, Station
to Station and Person to Person.
0- Operator Handled Calls may be provided over the same DA trunk groups
which establish interconnection from the HARVARDNET switch or the trunk groups
which provide interconnection from the HARVARDNET unbundled local switching line
ports to the BA TOPS.
Rates for requests for 0- Operator Handled Calls will be billed to
HARVARDNET and are set forth in the Pricing Schedule. In addition, for calls
originating from a facilities-based HARVARDNET switch or for calls from
HARVARDNET unbundled local switching line ports, there will be charges to
terminate the call from the TOPS tandem to the called party. These include the
per minute of use Unbundled Tandem Transport Charges ("UTTC") assessed for each
call transported between the TOPS tandem and the end office, the per minute of
use Tandem Transient Switching Charge ("TTSC") assessed for each call that
traverses a BA tandem switch, and the appropriate per minute of use charges for
reciprocal compensation ("UNRCC" or "UCRCC") depending on the terminating end
office switch, as set forth in the Pricing Schedule.
19.10 Operator Emergency Bulletin Service
This option provides HARVARDNET with emergency numbers of police, fire,
ambulance and Public Safety Answering Points (PSAP) in the BA serving area so
that HARVARDNET operators can connect callers directly to the proper emergency
bureaus.
The BA Operator Emergency Bulletin Service lists the emergency,
police, fire, ambulance and PSAP telephone numbers by municipality and in
alphabetical order for each of the areas served by BA.
Operator Emergency Bulletin Service is available for use by
HARVARDNET operators for the sole purpose of assisting callers in reaching an
emergency bureau.
Operator Emergency Bulletin Service is a copy of BA's own emergency
bulletin. This agreement includes one annual copy of the bulletin plus periodic
updates during the year. Independent telephone companies emergency numbers are
not included.
Rates and charges for Operator Emergency Bulletin service are set
forth in the Pricing Schedule.
19.11 Operator Passthrough Service
This option provides HARVARDNET's end users with access to operators of
their Presubscribed Interexchange Carriers ("IC") for operator assisted call
completion. This option
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applies only when the Presubscribed IC provides Operator Services for
HARVARDNET's end users for calls originating from a particular LATA and is
capable of receiving calls passed through it by BA in that LATA.
BA will, when requested by HARVARDNET's end user, connect that end user to
a specified IC for operator call completion provided that IC offers operator
services in that end user's originating LATA and is capable of receiving calls
passed through to it by BA in that LATA.
If the IC does not provide Operator Services for HARVARDNET's end user, at
the option of the IC, BA will provide HARVARDNET's end user with access to an IC
designated Operator Services Provider or to a BA provided announcement which
will direct HARVARDNET's end user to contact their Presubscribed IC for dialing
instructions.
The Operator Passthrough charge is applied on an operator work
second basis, and rated using the 0-Operator Handled calls in the Pricing
Schedule.
HARVARDNET will be assessed this charge on calls that are passed
through to either the Presubscribed IC's operator, or a BA provided recording
indicating that the IC does not provide service in that area.
Rates and charges applied to Operator Passthrough Service are set forth in
the Pricing Schedule.
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20.0 GENERAL RESPONSIBILITIES OF THE PARTIES
20.1 Both BA and HARVARDNET shall use their best efforts to comply with
the Implementation Schedule.
20.2 The Parties shall exchange technical descriptions and forecasts of
their Interconnection and traffic requirements in sufficient detail necessary to
establish the Interconnections required to assure traffic completion to and from
all Customers in their respective designated service areas. HARVARDNET, for the
purpose of ubiquitous connectivity, network diversity and alternate routing,
shall connect to at least one Tandem Office Switch for the receipt/completion of
traffic to any BA End Office Switches.
20.3 Thirty (30) days after the Effective Date and each quarter during the
term of this Agreement, each Party shall provide the other Party with a rolling,
six (6) calendar month, non- binding forecast of its traffic and volume
requirements for the services and Network Elements provided under this Agreement
in the form and in such detail as agreed by the Parties. Notwithstanding Section
29.6.1, the Parties agree that each forecast provided under this Section 20.3
shall be deemed "Proprietary Information" under Section 29.6.
20.4 Any Party that is required pursuant to this Agreement to provide a
forecast (the "Forecast Provider") or the Party that is entitled pursuant to
this Agreement to receive a forecast (the "Forecast Recipient") with respect to
traffic and volume requirements for the services and Network Elements provided
under this Agreement may request in addition to non-binding forecasts required
by Section 20.3 that the other Party enters into negotiations to establish a
forecast (a "Binding Forecast") that commits such Forecast Provider to purchase,
and such Forecast Recipient to provide, a specified volume to be utilized as set
forth in such Binding Forecast. The Forecast Provider and Forecast Recipient
shall negotiate the terms of such Binding Forecast in good faith and shall
include in such Binding Forecast provisions regarding price, quantity, liability
for failure to perform under a Binding Forecast, provisioning intervals and any
other terms desired by such Forecast Provider and Forecast Recipient. Failure to
agree to a Binding Forecast shall not in and of itself constitute bad faith for
the purposes of this section. In the event of such failure, the Forecast
Recipient should not be required to commit to the provision of the services and
Network Elements forecasted. Notwithstanding Section 29.6.1, the Parties agree
that each forecast provided under this Section 20.4 shall be deemed "Proprietary
Information" under Section 29.6.
20.5 Each Party is individually responsible to provide facilities within
its network which 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 BA's network
and to terminate the traffic it receives in that standard format to the proper
address on its network. Such facility shall be designed based upon the
description and forecasts provided under Sections 20.2 and 20.3 above. The
Parties are each solely responsible for participation in
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and compliance with national network plans, including The National Network
Security Plan and The Emergency Preparedness Plan.
20.6 Neither Party shall use any service related to or any of the Services
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
Customers, and either Party may discontinue or refuse service if the other Party
violates this provision. Upon such violation, either Party shall provide the
other Party notice, if practicable, at the earliest practicable time.
20.7 Each Party is solely responsible for the services it provides to its
Customers and to other Telecommunications Carriers.
20.8 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.
20.9 Each Party is responsible for administering NXX codes assigned to it.
20.10 Each Party is responsible for obtaining Local Exchange Routing Guide
("LERG") listings of CLLI codes assigned to its switches.
20.11 Each Party shall use the LERG published by Bellcore or its successor
for obtaining routing information and shall provide all required information to
Bellcore for maintaining the LERG in a timely manner.
20.12 Each Party shall program and update its own Central Office Switches
and End Office switches and network systems to recognize and route traffic to
and from the other Party's assigned NXX codes. Except as mutually agreed or as
otherwise expressly defined in this Agreement, neither Party shall impose any
fees or charges on the other Party for such activities.
20.13 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).
20.14 End User Repair Calls. The Parties will employ the following
procedures for handling misdirected repair calls:
20.14.1 In answering 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 to market services.
Either Party will respond with factual information in answering
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customer questions.
20.14.2 Each Party will notify its customers as to the correct
telephone numbers to call in order to access its repair bureaus.
20.14.3 To the extent possible, where the correct local exchange
carrier can be determined, misdirected repair calls to one Party will be
immediately referred to the other Party, as appropriate in a courteous manner,
at no charge.
20.14.4 The Parties will provide their respective repair contact
numbers to one another on a reciprocal basis.
21.0 TERM AND TERMINATION
21.1 The initial term of this Agreement (the "Term") shall commence on the
Effective Date and terminate on August 15, 1999. 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 as set forth below.
21.1.1 If pursuant to Section 21.1 the Agreement continues in full
force and effect after the expiration of the Term, either Party may terminate
the Agreement ninety (90) days after delivering written notice to the other
Party of the intention to terminate this Agreement. Neither Party shall have any
liability to the other Party for termination of this Agreement pursuant to this
Section 21.1 other than to pay to the other Party any amounts owed under this
Agreement.
21.2 Upon termination or expiration of this Agreement in accordance with
this Section 21.0:
(a) each Party shall comply immediately with its obligations set
forth in Section 29.6.3;
(b) each Party shall promptly pay all amounts (including any late
payment charges) owed under this Agreement;
(c) each Party's indemnification obligations shall survive
termination or expiration of this Agreement.
(d) each Party shall continue to perform its obligations and
provide its services described herein until such time as a
survivor Agreement between the Parties is entered into;
provided, however, that the Parties may mutually agree to
renegotiate the rates, fees and charges herein to reflect any
costs or expenses associated with the transfer, renewal or
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termination of this Agreement.
22.0 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.
23.0 CANCELLATION CHARGES
Except as provided in Sections 9.7.4 and 20.4 and pursuant to a Network
Element Bona Fide Request, or as otherwise provided in any applicable tariff or
contract referenced herein, no cancellation charges shall apply.
24.0 NON-SEVERABILITY
24.1 The services, arrangements, Interconnection, Network Elements, terms
and conditions of this Agreement were mutually negotiated by the Parties as a
total arrangement and are intended to be non-severable, subject only to Section
29.14 of this Agreement. If any provision of this Agreement shall be found in a
court of law to be contrary to applicable law, at the present or in the future,
such provision shall be deemed null and void, but this action shall not affect
the legality or effectiveness of the remaining provisions of this Agreement. In
the event that such a provision is deemed null and void, this Agreement will be
reformed and interpreted in accordance with applicable law as though such
provision did not appear and in such a way as will best serve the intention of
the Parties at the time of the execution of this Agreement.
24.2 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.
25.0 INDEMNIFICATION
25.1 Each party (the "Indemnifying Party") shall indemnify and hold
harmless the other party ("Indemnified Party") from and against loss, cost,
claim liability, damage, and expense (including reasonable attorney's fees) to
third parties for:
(1) damage to tangible personal property or for personal injury
proximately caused by the negligence or willful misconduct of the
Indemnifying Party, its employees, agents or contractors;
(2) claims for libel, slander, infringement of copyright arising
from the material transmitted over the Indemnified Party's facilities
arising from the Indemnifying Party's
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own communications or the communications of such Indemnifying Party's
Customers; and
(3) claims for infringement of patents arising from combining the
Indemnified Party's facilities or services with, or the using of the
Indemnified Party's services or facilities in connection with, facilities
of the Indemnifying Party.
Notwithstanding this indemnification provision or any other provision in
the Agreement, neither Party, nor its parent, subsidiaries, affiliates, agents,
servants, or employees shall be liable to the other for "Consequential Damages"
as that term is described in Section 26.3 below.
25.2 The Indemnified Party will notify the Indemnifying Party promptly in
writing of any claims, lawsuits, or demands by third parties for which the
Indemnified Party alleges that the Indemnifying Party is responsible under this
Section, and, if requested by the Indemnifying Party, will tender the defense of
such claim, lawsuit or demand.
(1) In the event the Indemnifying Party does not promptly assume or
diligently pursue the defense of the tendered action, then the Indemnified
Party may proceed to defend or settle said action and the Indemnifying
Party shall hold harmless the Indemnified Party from any loss, cost
liability, damage and expense.
(2) In the event the Party otherwise entitled to indemnification
from the other elects to decline such indemnification, then the Party
making such an election may, at its own expense, assume defense and
settlement of the claim, lawsuit or demand.
(3) The parties will cooperate in every reasonable manner with the
defense or settlement of any claim, demand, or lawsuit.
25.3 Except for the payment of Liquidated Damages by BA to HARVARDNET
pursuant to Section 27 below, no liability shall attach to either Party, its
parents, subsidiaries, affiliates, agents, servants or employees for damages
arising from errors, mistakes, omissions, interruptions, or delays in the course
of establishing, furnishing, rearranging, moving, terminating, changing, or
providing or failing to provide services or facilities (including the obtaining
or furnishing of information with respect thereof or with respect to users of
the services or facilities) in the absence of gross negligence or willful
misconduct.
Notwithstanding any other provisions of this Agreement, HARVARDNET shall
defend and indemnify BA and shall hold BA harmless from and against any and all
Loss alleged to have been incurred by a customer of HARVARDNET or any other
third party where such Loss arises or is attributable to BA's performance or
failure to perform a "Specified Activity" as that term is defined in Section 27,
below.
26.0 LIMITATION OF LIABILITY
26.1 Except for the indemnity obligations under Section 25.0 and payment
of
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Liquidated Damages under Section 27.0, each Party's liability to the other Party
for any Loss relating to or arising out of any negligent act or omission in its
performance of this Agreement, whether in contract or tort, shall be limited to
the total amount that is or would have been charged to the other Party by such
negligent or breaching Party for the services or functions not performed or
improperly performed.
26.2 Except as otherwise provided in Section 25.0, no Party shall be
liable to the other Party for any Loss, defect or equipment failure caused by
the conduct of the other Party, the other Party's agents, servants, contractors
or others acting in aid or concert with the other Party, except for gross
negligence or willful misconduct.
26.3 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.
28.0 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be filed with
the Commission and may thereafter be filed with the FCC as part of BA's
application pursuant to Section 271(d) of the Act. The Parties covenant and
agree that this Agreement is satisfactory to them as an agreement under Section
251 of the Act. 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. The Parties, however, reserve the right to seek regulatory relief
and otherwise seek redress from each other regarding performance and
implementation of this Agreement. In the event the Commission or FCC rejects
this Agreement in whole or in part, the Parties agree to meet and negotiate in
good faith to arrive at a mutually acceptable Agreement.
This Agreement is subject to change, modification, or cancellation as may
be required by either Party based on any significant change in FCC or Department
rules which may impact the provision of service under this Agreement or the
rights and obligations of the Parties under the Act.
BA shall charge Harvardnet new, additional or restructured rates, charges
or prices effective from the date when and to the extent the DPU approves new,
additional or restructured rates, charges or prices, either pursuant to a tariff
filing or other application to the DPU, subject to later true-up on the date
such new additional or restructured rates, charges or prices are actually
approved by the DPU.
29.0 MISCELLANEOUS
29.1 Authorization.
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29.1.1 New England Telephone and Telegraph Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder, subject to necessary
regulatory approval.
29.1.2 HARVARDNET is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder, subject to necessary regulatory approval.
29.2 Compliance. Each Party shall comply with all applicable federal,
state, and local laws, rules, and regulations applicable to its performance
under this Agreement.
29.3 Compliance with the Communications Law Enforcement Act of 1994
("CALEA"). Each Party represents and warrants that any equipment, facilities or
services provided to the other Party under this Agreement comply with 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.
29.4 Independent Contractor. Neither this Agreement, nor any actions taken
by BA or HARVARDNET in compliance with this Agreement, shall be deemed to create
an agency or joint venture relationship between HARVARDNET and BA, or any
relationship other than that of purchaser and seller of services.
Neither this Agreement, nor any actions taken by BA or HARVARDNET in
compliance with this Agreement, shall create a contractual, agency, or any other
type of relationship or third party liability between BA and HARVARDNET's end
users or others.
29.5 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, 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
(collectively, a "Force Majeure Event").
If any force majeure condition occurs, the Party delayed or unable
to perform shall give immediate notice to the other Party and shall take all
reasonable steps to correct the force majeure condition. During the pendency of
the Force Majeure, the duties of the Parties under this Agreement affected by
the Force Majeure condition shall be abated and shall resume without
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liability thereafter.
29.6 Confidentiality.
29.6.1 Any information such as specifications, drawings, sketches,
business information, forecasts, models, samples, data, computer programs and
other software and documentation of one Party (a "Disclosing Party") that is
furnished or made available or otherwise disclosed to the other Party or any of
its employees, contractors, agents or Affiliates (its "Representatives" and with
a Party, a "Receiving Party") pursuant to this Agreement ("Proprietary
Information") shall be deemed the property of the Disclosing Party. Proprietary
Information, if written, shall be marked "Confidential" or "Proprietary" or by
other similar notice, and, if oral or visual, shall be confirmed in writing as
confidential by the Disclosing Party to the Receiving Party within ten (10) days
after disclosure. Unless Proprietary Information was previously known by the
Receiving Party free of any obligation to keep it confidential, or has been or
is subsequently made public by an act not attributable to the Receiving Party,
or is explicitly agreed in writing not to be regarded as confidential, it (i)
shall be held in confidence by each Receiving Party; (ii) shall be disclosed to
only those persons who have a need for it in connection with the provision of
services required to fulfill this Agreement and shall be used only for such
purposes; and (iii) may be used for other purposes only upon such terms and
conditions as may be mutually agreed to in advance of use in writing by the
Parties. Notwithstanding the foregoing sentence, a Receiving Party shall be
entitled to disclose or provide Proprietary Information as required by any
governmental authority or applicable law only in accordance with Section 29.6.2.
29.6.2 If any Receiving Party is required by any governmental
authority or by applicable law to disclose any Proprietary Information, then
such 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 29.6 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.
29.6.3 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 and shall use all reasonable efforts, including
instructing its employees and others who have had access to such information, to
keep confidential and not to use any such information, unless such information
is now, or is hereafter disclosed, through no act, omission or fault of such
Party, in any manner making it available to the general public.
29.7 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
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Agreement that are based upon issues within the jurisdiction (primary or
otherwise) of the Department, the exclusive jurisdiction for all such claims
shall be with the Department, and the exclusive remedy for such claims shall be
as provided for by such Department. In all other respects, this Agreement shall
be governed by the domestic laws of the Commonwealth of Massachusetts without
reference to conflict of law provisions.
29.8 Taxes. 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 levied against
or upon such purchasing Party (or the providing Party when such providing Party
is permitted to pass along to the purchasing Party such taxes, fees or
surcharges), except for any tax on either Party's corporate existence, status or
income. Whenever possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale tax exemption, the
purchasing 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.
29.9 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 BA is an incumbent
Local Exchange Carrier 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 BA 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 which consent will not be
unreasonably withheld; provided that either 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 prior 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.
29.10 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.
29.11 Disputed Amounts.
29.11.1 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
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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 into an interest bearing escrow
account with a third party escrow agent mutually agreed upon by the Parties.
29.11.2 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.
29.11.3 Within seven (7) days of receipt of such notice each Party
shall appoint a representative who shall be authorized and who shall attempt to
resolve the issue through negotiations. 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, then either Party may
petition the Department pursuant to the Department's Order in D.P.U. 94-185,
dated August 29, 1996, to resolve such issues or proceed with any other remedy
pursuant to law or equity. The Department may direct payment of any or all funds
(including any accrued interest) plus applicable late fees, to be paid to either
Party.
29.11.4 The Parties agree that all negotiations pursuant to this
Section 29.11 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.
29.12 Notices. Notices given by one Party to the other Party under this
Agreement shall be in writing and shall be (i) delivered personally, (ii)
delivered by express delivery service, (iii) mailed, certified mail or first
class U.S. mail postage prepaid, return receipt requested or (iv) delivered by
telecopy to the following addresses of the Parties:
To HARVARDNET:
HarvardNet
91 Ann Lee Road
Harvard, MA 02151
Attn: Vice President - Telecommunications
Facsimile: 617 531 2002
To BA:BA
1095 Avenue of Americas
40th Floor
New York NY 10036
Attn: Vice President - Wholesale Markets
Facsimile: (212) 597-2585
or to such other address as either Party shall designate by proper notice.
Notices will be deemed
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given as of the earlier of (i) the date of actual receipt, (ii) the next
business day when notice is sent via express mail or personal delivery, (iii)
three (3) days after mailing in the case of first class or certified U.S. mail
or (iv) on the date set forth on the confirmation in the case of telecopy.
29.13 Publicity and Use of Trademarks or Service Marks. Neither Party nor
its subcontractors or agents shall use the other Party's trademarks, service
marks, logos or other proprietary trade dress in any advertising, press
releases, publicity matters or other promotional materials without such Party's
prior written consent.
29.14 Section 252(i) Obligations
29.14.1 To the extent required under Applicable Law, BA shall make
available without unreasonable delay to HARVARDNET any individual
Interconnection, service or network element contained in any agreement to which
it is a party that is approved by the Commission pursuant to Section 252 of the
Act, upon the same rates, terms, and conditions provided in the Agreement.
29.14.2 To the extent the exercise of the foregoing options requires
a rearrangement of facilities by the providing Party, the opting Party shall be
liable for the non-recurring charges associated therewith.
29.14.3 The Party electing to exercise such option shall do so by
delivering written notice to the first Party. Upon receipt of said notice by the
first Party, the Parties shall amend this Agreement to provide the same rates,
terms and conditions to the notifying Party for the remaining term of this
Agreement; provided, however, that the Party exercising its option under this
subsection 29.14 must continue to provide the same services or arrangements to
the first Party as required by this Agreement, subject either to the rates,
terms, and conditions applicable to the first Party in its Agreement with the
third party or to the rates, terms and conditions of this Agreement, whichever
is more favorable to the first Party in its sole determination.
29.15 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.
29.16 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
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implied, against or in the name of 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.
29.17 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.
29.18 Technology Upgrades. Nothing in this Agreement shall limit BA's
ability to upgrade its network through the incorporation of new equipment, new
software or otherwise. BA shall provide HARVARDNET written notice at least
ninety (90) days prior to the incorporation of any such upgrades in BA's network
which will materially impact HARVARDNET's service. HARVARDNET shall be solely
responsible for the cost and effort of accommodating such changes in its own
network.
29.19 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,
including without limitation, Sections 21.4, 22.0, 23.0, 25.0, 26.0, 29.3, 29.6,
29.11, 29.13 and 29.17.
29.20 Scope of Agreement. This Agreement is intended to describe and
enable specific Interconnection and access to unbundled Network Elements and
compensation arrangements between the Parties. This Agreement does not obligate
either Party to provide arrangements not specifically provided for herein.
29.21 Entire Agreement. The terms contained in this Agreement and any
Schedules, Exhibits, tariffs and other documents or instruments referred to
herein, which are incorporated into this Agreement by 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.
29.22 Power and Authority. Each Party has full power and authority to
enter into and perform this Agreement, and the person signing this Agreement on
behalf of each has been properly authorized and empowered to enter into this
Agreement.
29.23 Customer Proprietary Network Information. The Parties shall comply
with applicable law with regard to Customer Proprietary Network Information,
including but not limited to 47 U.S.C. ss. 222, and all applicable state or
federal agency rule or order with respect to Customer Proprietary Network
Information.
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29.24. Alternate Dispute Resolution
29.24.1 If a dispute arises between BA and HARVARDNET during the
term of the Agreement, the following process, which shall be overseen by the
Department, shall be followed to resolve such dispute:
a) The Parties shall have an initial thirty (30) day period
beginning from the date on which either Party has provided written notice to the
other Party identifying the existence of a dispute and seeking to resolve it,
within which to resolve the dispute themselves, without mediation or arbitration
as provided below.
b) If the dispute is not resolved within such thirty (30) day
period, either Party may petition the Department to request mediation. The
period of mediation shall be sixty (60) days commencing on the date of filing of
such petition for mediation. Such petition shall include a request to the
Department to choose a mediator within the first ten (10) days of such sixty
(60) day period, and the mediation shall be conducted by a mediator designated
by the Department. The Parties shall cooperate in good faith with the mediator
to resolve the dispute within such sixty (60) day period. If, at any date
following the forty-fifth (45) day of such sixty (60) day period, the Parties
have not resolved their dispute, the mediator may formally declare a deadlock.
c) Following the earlier to occur of (x) expiration of the sixty
(60) day mediation period without resolution of the dispute between the Parties
or (y) formal declaration of a deadlock by the mediator as contemplated in
proceeding paragraph (ii), either Party may petition the Department for
arbitration. The period of arbitration shall be seventy (70) days commencing on
the date of filing of such petition for arbitration. Such petition shall include
a request to the Department to choose an arbitrator within the first ten (10)
days of such seventy (70) day period, and the arbitration shall be conducted by
an arbitrator designated by the Department.
29.24.2 In the event that BA and HARVARDNET must enter into the
dispute resolution process described above, both Parties shall share equally the
expense to the Department of such process. However, if in the Department's
judgment, one Party's claim is particularly and/or consistently frivolous, then
the Department may determine that such Party should bear such expense.
29.25 Restructured/New Rates. BA reserves the right to impose
additional rates, prices and/or charges not expressly set forth in or applicable
to this Agreement with respect to the provisioning by BA of resale services or
unbundled elements to HARVARDNET, collocation, or the interconnection by the
parties of their respective telecommunication networks, including the right to
make any and all modifications, deletions, additions, or changes, including the
restructuring of any rate, charge or price of a service or element offered to
HARVARDNET hereunder. Nothing in this Agreement shall affect or limit (i) BA's
right with respect to a new element or service not offered to HARVARDNET under
this Agreement on the Effective Date of
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this Agreement, or (ii) BA's right to modify, restructure or change an existing
element or service and to charge HARVARDNET such rates as approved by the DPU
for such modified, restructured or altered element or service. BA shall be
entitled to recover from HARVARDNET such new, additional or restructured rates,
charges or prices effective from the date when and to the extent BA seeks
approval from the DPU of such new, additional or restructured rates, charges or
prices, either pursuant to a tariff filing or other application to the DPU,
subject to later true-up on the date such new additional or restructured rates,
charges or prices are actually approved by the DPU.
29.26 Refusal and Discontinuance of Service. If HARVARDNET fails to
comply with the terms and conditions of this Agreement, BA may refuse service in
accordance with Section 2.1.7 of BA's New York 914 tariff.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this 28th day of January, 1998.
HARVARDNET NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY D/B/A
By: /s/ William Southworth By: /s/ Jacob J. Goldberg
---------------------------- --------------------------------------
Printed: William H. Southworth Printed: Jacob J. Goldberg
------------------------ ----------------------------------
Title: Chief Executive Officer Title: Vice President - Wholesale Markets
------------------------ ----------------------------------
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SCHEDULE 1.0
CERTAIN TERMS AS DEFINED IN THE ACT
"Affiliate" means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or the equivalent thereof) of more than ten percent (10%).
"Dialing Parity" means that a person that is not an Affiliate of a LEC is
able to provide Telecommunications Services in such a manner that Customers have
the ability to route automatically, without the use of any access code, their
Telecommunications to the Telecommunications Services provider of the Customer's
designation from among two (2) or more Telecommunications Services providers
(including such LEC).
"Exchange Access" means the offering of access to Telephone Exchange
Services or facilities for the purpose of the origination or termination of
Telephone Toll Services.
"InterLATA Service" means Telecommunications between a point located in a
local access and transport area and a point located outside such area.
"Local Access and Transport Area" or "LATA" means a contiguous geographic
area: (a) established before the date of enactment of the Act by a Bell
operating company such that no Exchange Area includes points within more than
one (1) metropolitan statistical area, consolidated metropolitan statistical
area, or State, except as expressly permitted under the AT&T Consent Decree; or
(b) established or modified by a Bell operating company after such date of
enactment and approved by the FCC.
"Local Exchange Carrier" means any person that is engaged in the provision
of Telephone Exchange Service or Exchange Access. Such term does not include a
person insofar as such person is engaged in the provision of a commercial mobile
service under Section 332(c) of the Act, except to the extent that the FCC finds
that such service should be included in the definition of such term.
"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 and collection or used in the transmission, routing, or other provision
of a Telecommunications Service.
"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.
"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
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information as sent and received.
"Telecommunications Carrier" means any provider of Telecommunications
Services, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Communications
Act).
"Telecommunications Service" 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.
"Telephone Exchange Service" means (a) service within a telephone exchange
within a connected system of telephone exchanges within the same exchange area
operated to furnish subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the exchange
service charge, or (b) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
"Telephone Toll Service" means telephone service between stations in
different exchange areas for which there is made a separate charge not included
in contracts with subscribers for exchange service.
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SCHEDULE 4.0 Network Interconnection Schedule*
LATA HARVARDNET H-IP BA B-IP Activation Date**
128 in Mass Huntington Ave/Belvidere
Boston, MA
* Complete, accurate and verifiable information to be provided by
the Parties at a date to the determined by the Parties.
** This is the earliest date on which "live" customers traffic
between HARVARDNET and BA will occur.
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SCHEDULE 27.4.1 HARVARDNET Service Quality Criteria for Liquidated Damages
1 New Unbundled Link (SVGALS) Orders
1.0 ANI to HARVARDNET number, verification successful from DEMARC by BA
field technician.
1.1 All order information submitted by HARVARDNET is valid (e.g. street
address, end user LCON, floor/unit number, cable pair assignment)
1.2 Customer (end user) available at appointed date.
1.3 Orders completed as submitted without cancellation after FOC
2 Hot Cut Unbundled Link (SVGALS) Orders
2.0 Verifiable HARVARDNET dial tone at POT bay testable by BA through
appropriate tie cable pair as provided by HARVARDNET on the service request.
2.1 Accurate account and end user information submitted on service request
2.3 Accurate SVGAL tie cable and pair assignment provided by HARVARDNET on
service request
2.4 Orders completed as submitted without cancellation after FOC
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INTRODUCTION TO PRICING SCHEDULES
Pricing Schedule A contains negotiated rates the Parties shall charge on a
reciprocal basis for the specific services identified for the term of the
Agreement.
Until such time as the Department approves rates for BA in the
Consolidated Arbitration proceeding, the prices listed on Pricing Schedule B
attached hereto shall be the recurring rates to be charged for the elements or
services shown. The network element prices and wholesale discount rates shown on
Pricing Schedule B equal the rates BA filed with the Department in the
Consolidated Arbitration proceeding, Docket 96-73/74, et. al., ("Consolidated
Proceeding") on Februrary 14, 1997 and subsequently amended on March 14, 1997.
Except as otherwise provided for in this Agreement, when the Department
approves actual rates in the Consolidated Proceeding those rates shall apply to
any network element or service provided by BA to HARVARDNET under this
Agreement.
If the Department approves different rates at a later time, unless
otherwise agreed to by the Parties herein, the rates established by the
Department at a later time shall become the rates established herein. The
Parties agree that those rates shall be applied prospectively only.
Any additional recurring or non-recurring charges for an unbundled network
element or service shall be limited to those designated in the Statement of
Generally Available Terms and Conditions ("SGAT") filed with the New York Public
Service Department ("NYPSC") on February 13, 1997, and supplemented on March 17,
1997, pursuant to Section 252 of the Telecommunications Act of 1996. If the
NYPSC adopts rates that are different from those filed by BA in the SGAT, the
rates adopted by the NYPSC shall apply as of the date the NYPSC approves or
adopts those rates. Any rates approved by the NYPSC shall be superseded at such
time as the Department approves BA-Massachusetts recurring or non-recurring
rates for any elements or services not listed on Pricing Schedule B. These rates
shall apply on a going-forward basis, subject to a true-up retroactive to the
date of purchase (without interest) of any amount paid hereunder.
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PRICING SCHEDULE A
I. Reciprocal Compensation for local traffic shall equal the rate set forth
below. Such rate shall be:
Rate = $.008 per minute
During the term of this Agreement, HARVARDNET shall have the option to
elect rates and charges for reciprocal compensation as may be determined by the
Mass. DPU.
Reciprocal Compensation for IntraLATA Toll traffic shall equal each
Party's effective applicable tariffed IntraLATA switched access rates.
II. Information Services Billing and Collection
Fee = $.05 per message
III. Transit Service (Tandem Transient Service)
A. Transit Service
Rate = $.0035 per minute
B. Dedicated Transiting Service
Rate = twice the applicable charge for a collocated channel
termination
IV. Interim Telecommunications Number Portability
A. Monthly Recurring Charges
Rate per Business Number = $2.00
Rate per Residential Number = $1.00
No additional recurring charges shall apply for interim number
portability, including additional per-path, per-port, or usage-related charges,
except for third party and collect calls.
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B. Non-recurring charge
Rate = $10.00 per ported number
Non-recurring charges only apply when interim number portability is
ordered separately from an unbundled link.
If the Mass. DPU approves a nonrecurring rate for interim number
portability during the term of this Agreement, then such rate shall apply for
the balance of the term of the contract.
V. IntraLATA 800/888
Reciprocal Compensation (refer to I above).
Compensation for records exchanged = $.00415 per record
800 database inquiry = $.00108 per database inquiry
VI. Directory Assistance and Operator Services
(A) Directory Assistance Services
(1) Directory Assistance
Per Request
-----------
Each call for Information per one telephone
number, with BA branding $0.322250
Each call for Information per one telephone
number, with HARVARDNET branding $0.322250
Each call for Information per one telephone
number, without branding $0.268541
Branding surcharge per call (if applicable) $0.053709
(2) Directory Assistance Call
Completion (DACC) #:
Each call for Information per one telephone
number, with HARVARDNET branding or with BA
branding plus call completion $0.500138
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Each call for Information per one telephone
number, without branding plus call completion $0.446429
DACC Surcharge per call $0.177888
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
Record Charges
EMR format - per record charge = $.004150
(4) Direct Access to Directory Assistance (DADA)
Monthly Access Charge $4000
Each Search Request $0.038
Rate
----
(B) Inward Operator Services
(1) BLV
- Per work second $0.034465
(2) BLV/I
- Per work second $0.034465
(3) Branding surcharge per call (if applicable) $0.053709
(C) 0+/Mechanized Operator Calls #
(1) Calling Card
- Per request $0.116585
(2) Collect
- Per request $0.131100
(3) Third Number
- Per request $0.131100
(4) Branding surcharge per call (if applicable) $0.053709
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
(D) 0- Operator Handled Calls #
(1) Per work second $0.013043
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(2) Branding surcharge per call (if applicable) $0.053709
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
(E) Operator Emergency Bulletin Service
- Per State Bulletin, per year $17.80
Recurring Non-recurring
--------- -------------
(F) TOPS Trunk Ports - per DS1 $348.72 $147.87
Service Access Charge
-Per TOPS Port $5.18 N/A
(G) IOF mileage for Dedicated Trunk $126.35 $470.98
Transport
Mileage Charge, per mile per month $0.73
Peak Off-Peak
---- --------
Digital Trunk Port Usage / Shared
- per MOU $0.001965 $0.000436
Unbundled Local Switching (ULSC)
- per MOU $0.008689 $0.004565
Unbundled Tandem Transport (UTTC)
- per MOU $.001780 $.000400
Unbundled Common Transport (UCTC)
- per MOU $.003745 $.000836
Unbundled Toll Common Transport (UTCTC)
- per MOU $.005829 $.001456
Tandem Transient Switching (TTSC)
- per MOU $0.008642 $0.002702
Telephone Company Reciprocal
Compensation (UNRCC)
- per MOU $0.010654 $0.005001
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TC Reciprocal Compensation (UCRCC)
- per MOU $0.010654 $0.005001
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PRICING SCHEDULE B
- --------------------------------------------------------------------------------
SUMMARY OF MASSACHUSETTS RESULTS FOR UNBUNDLED ELEMENTS AND RESALE
COMPLIANCE FILING
- --------------------------------------------------------------------------------
ELEMENT ZONE COST RESULTS
- --------------------------------------------------------------------------------
2 WIRE ANALOG LINK METRO $ 7.54
URBAN $ 14.11
SUBURBAN $ 16.12
RURAL $ 20.04
- --------------------------------------------------------------------------------
4 WIRE ANALOG LINK METRO $ 30.97
URBAN $ 43.40
SUBURBAN $ 46.95
RURAL $ 52.39
- --------------------------------------------------------------------------------
2 WIRE LINK METRO $ 19.87
CONDITIONED FOR URBAN $ 27.24
DIGITAL SUBURBAN $ 29.38
RURAL $ 32.84
- --------------------------------------------------------------------------------
4 WIRE LINK METRO $ 76.11
CONDITIONED FOR URBAN $ 98.05
DIGITAL SUBURBAN $ 102.64
RURAL $ 147.05
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 5.52
ANALOG PORT URBAN $ 5.00
SUBURBAN $ 3.95
RURAL $ 6.96
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 5.37
DIGITAL PORT URBAN $ 6.96
SUBURBAN $ 6.34
RURAL $ 11.10
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 48.54
ISDN-BRI PORT URBAN $ 31.13
SUBURBAN $ 34.94
RURAL $ 26.88
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
SUMMARY OF MASSACHUSETTS RESULTS FOR UNBUNDLED ELEMENTS AND RESALE
COMPLIANCE FILING
- --------------------------------------------------------------------------------
ELEMENT ZONE COST RESULTS
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 12.53
DIGITAL TRUNK PORT URBAN $ 12.38
SUBURBAN $ 13.63
RURAL $ 14.21
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 609.58
ISDN-PRI PORT URBAN $ 471.64
SUBURBAN $ 583.35
RURAL $ 583.35
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO (PEAK) $ 0.001703
TRUNK PORT PER MOU URBAN $ 0.001820
(PEAK) SUBURBAN $ 0.002090
RURAL $ 0.002093
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO (OFF-PEAK) $ 0.000379
TRUNK PORT PER MOU URBAN $ 0.000404
(OFF-PEAK) SUBURBAN $ 0.000464
RURAL $ 0.000465
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO (PEAK) $ 0.004647
USAGE PER MOU URBAN $ 0.007401
(PEAK) SUBURBAN $ 0.009549
RURAL $ 0.014277
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO (OFF-PEAK) $ 0.001872
USAGE PER MOU URBAN $ 0.003516
(OFF-PEAK) SUBURBAN $ 0.005282
RURAL $ 0.008186
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 0.7924
PORT ADDITIVE URBAN $ 0.7924
CENTREX SUBURBAN $ 0.7807
RURAL $ 0.7807
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
SUMMARY OF MASSACHUSETTS RESULTS FOR UNBUNDLED ELEMENTS AND RESALE
COMPLIANCE FILING
- --------------------------------------------------------------------------------
ELEMENT ZONE COST RESULTS
- --------------------------------------------------------------------------------
LOCAL SWITCHING PORT METRO $ 0.9127
ADDITIVE RINGMATE URBAN $ 0.9194
SUBURBAN $ 0.9154
RURAL $ 0.9128
- --------------------------------------------------------------------------------
LOCAL SWITCHING PORT METRO $ 0.3575
ADDITIVE THREE-WAY URBAN $ 0.3523
CALLING SUBURBAN $ 0.3535
RURAL $ 0.3477
- --------------------------------------------------------------------------------
LOCAL SWITCHING PORT METRO $ 0.0011
ADDITIVE SPEED URBAN $ 0.0031
CALLING SUBURBAN $ 0.0064
RURAL $ 0.0056
- --------------------------------------------------------------------------------
LOCAL SWITCHING PORT METRO $ 0.0005
ADDITIVE CALL URBAN $ 0.0014
WAITING SUBURBAN $ 0.0029
RURAL $ 0.0025
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 0.0001
PORT ADDITIVE URBAN $ 0.0003
CALL FORWARDING SUBURBAN $ 0.0007
- D/A RURAL $ 0.0006
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 0.0001
PORT ADDITIVE URBAN $ 0.0003
CALL FORWARDING - SUBURBAN $ 0.0007
BUSY RURAL $ 0.0006
- --------------------------------------------------------------------------------
LOCAL SWITCHING METRO $ 0.0003
PORT ADDITIVE URBAN $ 0.0008
CALL FORWARDING - SUBURBAN $ 0.0016
VAR. RURAL $ 0.0014
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
SUMMARY OF MASSACHUSETTS RESULTS FOR UNBUNDLED ELEMENTS AND RESALE
COMPLIANCE FILING
- --------------------------------------------------------------------------------
ELEMENT ZONE COST RESULTS
- --------------------------------------------------------------------------------
TANDEM SWITCHING ALL ZONES $ 13.75
DIGITAL TRUNK PORT
- --------------------------------------------------------------------------------
TANDEM COMMON TRUNK ALL ZONES (PEAK) $ 0.008113 .003528
PORTS PER MOU
(OFF-PEAK) $ 0.001803 .000784
- --------------------------------------------------------------------------------
TANDEM USAGE PER ALL ZONES (PEAK) $ 0.003648 .001586
MOU
(OFF-PEAK) $ 0.002609 .001134
- --------------------------------------------------------------------------------
INTEROFFICE ALL ZONES
DEDICATED
TRANSPORT
OC-48-FIXED $11,531.11
OC-48 PER MILE $ 386.83
OC-12 FIXED $ 4,518.08
OC-12 PER MILE $ 245.24
OC-3 FIXED $ 1,779.69
OC-3 PER MILE $ 61.31
DS-3 FIXED $ 996.54
DS-3 PER MILE $ 20.44
DS-1 FIXED $ 126.35
DS-1 PER MILE $ 0.73
CO MUXING 3/1 $ 236.69
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
SUMMARY OF MASSACHUSETTS RESULTS FOR UNBUNDLED ELEMENTS AND RESALE
COMPLIANCE FILING
- --------------------------------------------------------------------------------
ELEMENT ZONE COST RESULTS
- --------------------------------------------------------------------------------
COMMON (SHARED) ALL ZONES (PEAK) $ 0.00178
TRANSPORT USAGE PER (OFF-PEAK) $ 0.00040
MOU
- --------------------------------------------------------------------------------
SIGNALING SYSTEM 7 ALL ZONES
SIGNALING PER LINK $ 47.65
STP PER PORT $ 1,245.46
LIBD QUERY PER QUERY $ 0.00138
800 PER QUERY $ 0.00108
- --------------------------------------------------------------------------------
RESALE DISCOUNTS
WITH OPER. SERV. & 24.99%
DIRECTORY ASSISTANCE
- --------------------------------------------------------------------------------
RESELLERS
WITHOUT OPER. SERV. 29.47%
& DIRECTORY
ASSISTANCE
- --------------------------------------------------------------------------------
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EXHIBIT A
NETWORK ELEMENT BONA FIDE REQUEST
1. Each Party shall promptly consider and analyze access to a 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) P. 259 and n.603 or
subsequent orders.
2. A Network Element Bona Fide Request shall be submitted in writing and
shall include a technical description of each requested Network Element.
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.
4. Within ten (10) business days of its receipt, the receiving Party shall
acknowledge receipt of the Network Element Bona Fide Request.
5. Except under extraordinary circumstances, within thirty (30) days of
its receipt of a Network Element 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 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.
6. If the receiving Party determines that the Network Element Bona Fide
Request is technically feasible and otherwise qualifies under the Act, it shall
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.
7. Unless the Parties otherwise agree, the Network Element Requested must
be priced in accordance with Section 252(d)(1) of the Act.
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 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.
80
<PAGE>
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 Element Bona Fide Request pursuant to the Network Element Bona Fide
Request quote or seek arbitration by the Department pursuant to Section 252 of
the Act.
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, or is failing to act in accordance with section 251 of the Act, such
Party may seek mediation or arbitration by the Department pursuant to Section
252 of the Act.
81
<PAGE>
EXHIBIT 10.14
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of May 26, 1999
by and between
BELL ATLANTIC - VIRGINIA, INC.
and
HARVARD NET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
26th day of May, 1999 (the "Effective Date"), by and between Bell Atlantic
- -Virginia, Inc. ("BA"), a Virginia corporation with offices at 600 East Main
Street, Richmond, Virginia 23261, and Harvard Net, Inc. ("HarvardNet"), a
Delaware, corporation with offices at 500 Rutherford Avenue, Charlestown,
Massachusetts, 02129 (each a "Party" and, collectively, the "Parties").
WHEREAS, Harvardnet has requested, pursuant to Section 252(i) of the Act,
that BA make available to Harvardnet Interconnection, services and unbundled
Network Elements upon the same terms and conditions as provided in the
Interconnection Agreement (and amendments thereto) between Dieca Communications,
Inc. and BA, dated as of October 7, 1998, for Virginia, approved by the
Commission under Section 252 of the Act copies of which agreement and amendments
are attached hereto as Appendix 1 (the "Separate Agreement"); and
WHEREAS, BA has agreed, subject to the terms and conditions set forth
below, to make available to Harvardnet hereby Interconnection, services and
unbundled Network Elements upon the terms and conditions of the Separate
Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Harvardnet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement, as it is in effect the date hereof after giving effect to
operation of law, and of the other Appendices hereto, are incorporated by
reference in their entirety herein and form an integral part of this Agreement.
1.2 References in the Separate Agreement to Dieca Communications, Inc. or
to Covad shall for purposes of this Agreement be deemed to refer to Harvardnet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of the Separate Agreement, this Agreement shall
continue in effect until March 15, 2001, unless extended pursuant to Section
22.1 of the Separate Agreement. If the parties to the Separate Agreement
terminate that agreement prior to the above date, such termination shall have no
impact on the term or effectiveness of this Agreement.
<PAGE>
1.4 All references in the Separate Agreement to "800/888" shall be deleted
in their entirety and replaced with the following: "800/888/877"or other such
toll free numbers.
1.5 All usage data to be provided pursuant to Sections 6.3.10 of the
Separate Agreement shall be sent to the following address on behalf of
Harvardnet:
Harvard Net, Inc.
Attn: James Newman
Vice President of Operations
500 Rutherford Avenue
Charlestown, MA 02129
1.6 All certificates or other proof of insurance to be sent to BA under
Section 21.3 of the Separate Agreement shall be sent to the following address:
Director - Interconnection Services
Bell Atlantic - Telecom Industry Services
Room 1423
1095 Avenue of the Americas
New York, New York 10036
1.7 All notices, affidavits, exemption-certificates or other
communications to Harvardnet under Section 29.6.7 of the Separate Agreement
shall be sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (800) 772-6771 (Ext 607)
Facsimile: (617) 242-6991
1.8 All notices, affidavits, exemption-certificates or other
communications to BA under Section 29.6.7 of the Separate Agreement shall be
sent to the following address:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
Telephone: (212) 395-1280
Facsimile: (212) 597-2915
1.9 Notices to Harvardnet under Section 29.10 of the Separate Agreement
shall be
<PAGE>
sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (617) 242-1700
Facsimile: (617) 242-6991
1.10 Notices to BA under Section 29.10 of the Separate Agreement shall be
sent to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
Bell Atlantic - Virginia, Inc.
Attn: General Counsel
24th Floor
600 East Main Street
Richmond, Virginia 23261
1.11 The rates, charges and other terms set forth in Appendix 2 hereto
shall replace and supersede in their entirety the rates, charges and other terms
set forth in Exhibit A to the Separate Agreement.
1.12 Schedules 3.0 and 4.0 set forth at Appendix 3 hereto shall replace
and supersede in their entirety Schedules 3.0 and 4.0 of the Separate Agreement.
<PAGE>
2.0 Clarifications
2.1 The entry into, filing and performance by the Parties of this
Agreement does not in any way constitute a waiver by either Party of any of the
rights and remedies it may have to seek review of any of the provisions of the
Separate Agreement, or to petition the Commission, other administrative body or
court for reconsideration or reversal of any determination made by any of them,
or to seek review in any way of any portion of this Agreement in connection with
Harvardnet's election under Section 252(i) of the Act.
2.2 Notwithstanding any other provisions of this Agreement, where the
state so mandates, BA shall have no obligation to perform under this Agreement
until such time as Harvardnet has obtained a Certificate of Public Convenience
and Necessity ("CPCN") or such other Commission authorization as may be required
by law as a condition for conducting business in the Commonwealth of Virginia as
a local exchange carrier, provided that, this restriction does not apply to BA's
obligation to provide Collocation or any other tariffed service to Harvardnet
irrespective of Harvardnet's CPCN status..
2.3 The Parties shall meet within thirty (30) days of the Effective Date,
or at such other time to which the Parties mutually agree, to exchange
information and to discuss in good faith the implementation issues addressed in
Section 10.1 (Joint Network Implementation and Grooming Process).
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 26th day of May, 1999.
HARVARD NET, INC. BELL ATLANTIC - VIRGINIA, INC.
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
--------------------------- -------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
---------------------- --------------------------
Title: President and Chief Title: Vice-President - Interconnection
Executive Officer Services Policy & Planning
------------------------ --------------------------------
<PAGE>
APPENDIX 2
EXHIBIT A
BELL ATLANTIC - VIRGINIA, INC. and HarvardNet
DETAILED SCHEDULE OF ITEMIZED CHARGES
A. BA SERVICES, FACILITIES, AND ARRANGEMENTS: (1)
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
I. Local Call Termination(2)
Traffic Delivered at BA End Office $.000927/MOU Not Applicable
Traffic Delivered at BA Tandem
$.001590/MOU Not Applicable
II. Unbundled Transport
A. Dedicated Transport
Voice Grade/DS-0 $9.54/Month All:
$10.81 /Service Order Connect
$4.91/ Service Order Disconnect:
DS-1 $35.10/Month plus installation connect and
installation disconnect charges
for each initial and additional
DS-3 $604.53/Month facility purchased at the time of
order:
DDS $9.84/Mile $216.79/Initial Facility &
$11.86/Additional Facility Connect
$92.88/Initial Facility &
$7.27/Additional Facility
Disconnect
</TABLE>
- ----------
(1) Unless a citation is provided to a generally applicable BA Tariff, all
listed rates and services are available only to HarvardNet when purchasing these
services for use in the provision of Telephone Exchange Service, and apply only
to Local Traffic and local Ancillary Traffic. BA rates and services for use by
HarvardNet in the carriage of Toll Traffic shall be subject to BA's Tariffs for
Exchange Access Service. Adherence to these limitations is subject to a
reasonable periodic audit by BA.
As applied to wholesale discount rates, unbundled Network Elements or call
transport and/or termination of Local Traffic purchased for the provision of
Telephone Exchange Service or Exchange Access, the rates and charges set forth
in Exhibit A shall apply until such time as they are replaced by new rates as
may be approved or allowed into effect by the Commission from time to time
pursuant to the FCC Regulations, subject to a stay or other order issued by any
court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend
Exhibit A to reflect the new approved rates.
(2) See note 8 regarding measurement and calculation of local traffic
termination charges.
1
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
B. Common Transport
Tandem Switching $.000548/MOU Not Applicable
Tandem-Switched Transport (Fixed) $.000114/MOU Not Applicable
C. Entrance Facilities
All:
Service Order Connect: $10.81
Service Order Disconnect: $4.91
plus installation connect and
installation disconnect charges
for each initial and additional
facility purchased at the time of
order:
$333.32/Initial &
2-Wire Voice Grade Channel $13.76/Month $192.99/Additional connect
Termination $55.39 Initial and $33.02/
Additional disconnect
$441.02/Initial &
4-Wire Voice Grade Channel $27.89/Month $255.99/Additional
Termination $65.71 Initial and
$39.32/Additional disconnect
Both DS-1 and DS-3 Channel
Termination:
$489.86/Initial &
$241.08/Additional
$67.13 Initial and
DS-1 Channel Termination $119.15/Month $32.61/Additional disconnect
DS-3 Channel Termination $767.44/Month Both DS1/0 and DS3/1 Muxing:
$441.42/Initial &
$441.42/Additional Connect
DS-1 to Voice Grade Multiplexing $53.77/Month $43.66 Initial and $43.66/
Additional disconnect
$185.73/Month
DS-3 to DS-1 Multiplexing
</TABLE>
2
<PAGE>
APPENDIX 2
EXHIBIT A
II. Unbundled Transport (Continued)
<TABLE>
<S> <C> <C>
D. Digital Cross-Connect System
Service Establishment Not Applicable $1683.85/Request
Database Modification Not Applicable $134.70/Modification Request
Reconfiguration by BA Personnel Not Applicable $29.67/Programming Charge/30
minute Increment
DS-0 Cross-Connect $20.03/Port/Month Service Order :
$10.81/Connect
$4.91/Disconnect
$20.90/Port Installation
$3.37/ Port Disconnect
DS-1 Cross-Connect $69.95/Port/Month Service Order :
$10.81/Connect
$4.91/Disconnect $20.23/Port
Installation
$10.12/Port Disconnect
E. Mid-Span Meet Arrangements To be charged in accordance with the requirements of Section 4.3 of
the Agreement
F. Tandem Transit arrangements
for Local Traffic between
HarvardNet and carriers other
than Bell Atlantic that subtend a
Bell Atlantic Tandem Switch. (Not
applicable to Toll Traffic or
when Meet Point Billing
Arrangement applies; Separate
trunks required for IXC
subtending trunks)
Tandem Switching $.000548/MOU Not Applicable
Tandem-Switched Transport $.000114/MOU Not Applicable
</TABLE>
3
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
III. Unbundled Switching(3)
A. Local Switching Ports
POTS/PBX/Centrex $1.30/Port/Month Service Order Connect: $10.81
Service Order Disconnect: $4.91
/Port
Installation Connect: $2.68/Port
Installation Disconnect: $1.07
ISDN (BRI) $6.52/Port/Month Service Order Connect: $10.81
Service Order Disconnect: $4.91
/Port
Installation Connect: $2.68/Port
Installation Disconnect: $1.07
ISDN (PRI) $81.28/Port/Month Service Order Connect: $10.81
Service Order Disconnect: $4.91
/Port
Installation Connect: $102.13/Port
Installation Disconnect: $1.07
</TABLE>
- ----------
(3) In addition to the recurring and non-recurring rates set forth herein for
unbundled switching elements, BA may levy upon a purchaser of such elements any
access charges (or portion thereof) permitted by Applicable Laws.
4
<PAGE>
APPENDIX 2
EXHIBIT A
III. Unbundled Switching (continued)
<TABLE>
<S> <C> <C>
A. Local Switching Ports (continued)
Public/Semi-Public $1.51/Port/Month Service Order Connect: $10.81
Service Order Disconnect: $4.91
/Port
Installation Connect: $2.68/Port
Installation Disconnect: $1.07
DID $3.63/Port/Month Service Order Connect: $10.81
Service Order Disconnect: $4.91
/Port
Installation Connect: $609.88/Port
Installation Disconnect: $1.07
Coordinated Port Cutover Not Applicable $2.89/Port
B. Tandem Switching Usage $.000548/MOU Not Applicable
</TABLE>
5
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
III. Unbundled Switching (Continued)
C. Local Switching Usage
POTS Originating With Vertical Features $.004129/MOU $8.42/Service Order
POTS Terminating With Vertical Features $.002079/MOU $8.42/Service Order
ISDN Originating Digital Circuit Switched $.001993/MOU $8.42/Service Order
Voice
ISDN Terminating Digital Circuit Switched $.000859/MOU $8.42/Service Order
Voice
ISDN Originating Digital Circuit Switched Data $.001013/MOU $8.42/Service Order
ISDN Terminating Digital Circuit Switched Data $.000859/MOU $8.42/Service Order
D. POTS Features
PBX $.000833/MOU Both:
$8.42/Service Order
Multi-Line Hunting $.000001/MOU
E. Centrex Features
UCD $.000655/MOU $8.42/Service Order
Hunting $.000464/MOU $8.42/Service Order
Queuing $.000595/MOU $8.42/Service Order
Intercom & Features $.017372/MOU $8.42/Service Order
Attendant $.021223/MOU $8.42/Service Order
Attendant Console $.017200/MOU $8.42/Service Order
Centralized Attendant Services $.214070/MOU $8.42/Service Order
Attendant Access Code Dialing $.040065/MOU $8.42/Service Order
Automatic Route Selection $.000408/MOU $8.42/Service Order
Electronic Tandem Switching $.000724/MOU $8.42/Service Order
F. ISDN Centrex Feature $.004007/MOU $8.42/Service Order
</TABLE>
6
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<S> <C> <C>
IV. Unbundled Loops
2 Wire Analog Loops (POTS Loops) Density Cell: Service Order Connect: $10.81
1 - $10.74/Month
2 - $16.45/Month Service Order Disconnect: $4.91
3 - $29.40/Month.
Installation:
If a premises visit is not
required, initial & each
additional loop - $2.68
If a premises visit is required:
initial loop installed on that
visit: $:47.55;
Each additional loop installed on
that visit: $21.69
Installation Disconnect:
$1.07/Loop
4 Wire Premium Loops Density Cell: Service Order Connect: $10.81
1 - $22.25/Month
2 - $33.23/Month Service Order Disconnect: $4.91
3 - $56.75/Month.
Installation:
If a premises visit is not
required, initial & each
additional loop: $50.89
If a premises visit is required:
initial loop installed on that
visit: $107.50;
Each additional loop installed on
that visit $81.63
Installation Disconnect:
$1.07/Loop
</TABLE>
7
<PAGE>
APPENDIX 2
EXHIBIT A
IV. Unbundled Loops (continued)
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
ISDN Loops Service Order Connect: $15.29
Density Cell:
1 - $12.52/Month Service Order Disconnect: $4.91
2 - $18.23/Month
3 - $31.18/Month. Installation:
If a premises visit is not
required, initial & each
additional loop - $11.61
If a premises visit is required:
initial loop installed on that
visit: $56.48
Each additional loop installed on
that visit: $30.62
Installation Disconnect:
$1.07/Loop
DS-1Loops Density Cell: Service Order Connect: $10.81
1 - $110.61/Month
2 - $142.49/Month Service Order Disconnect: $4.91
3 - $181.29/Month.
If premises visit not required,
initial & each additional loop -
$50.89
If a premises visit is required:
initial loop installed on that
visit $107.50;
Each additional loop installed on
that visit: $81.63
Installation Disconnect:
$1.07/Loop
</TABLE>
8
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
IV. Unbundled Loops (continued)
Customer Specified Signaling - 2-Wire Density Cell: Service Order Connect: $10.81
1 - $10.74/Month
2 - $16.45/Month Service Order Disconnect: $4.91
3 - $29.40/Month.
Installation:
If a premises visit is not
required, initial & each
additional loop - $50.89
If a premises visit is required:
initial loop installed on that
visit $107.50;
Each additional loop installed on
that visit: $81.63
Installation Disconnect:
$1.07/Loop
Customer Specified Signaling - 4-Wire Density Cell: Service Order Connect: $10.81
1 - $22.25/Month
2 - $33.23/Month Service Order Disconnect: $4.91
3 - $56.75/Month.
Installation:
If a premises visit is not
required, initial & each
additional loop - $50.89
If a premises visit is required:
initial loop installed on that
visit $107.50;
Each additional loop installed on
that visit: $81.63
Installation Disconnect:
$1.07/Loop
2 Wire ADSL Loops TBD TBD
2 Wire & 4 Wire HDSL Loops TBD TBD
</TABLE>
9
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<S> <C> <C>
Distance Extensions for various ULL types for TBD TBD
distances exceeding transmission characteristics
in applicable technical references.
Coordinated Cutover Not Applicable If premises visit not required,
$2.89/Loop
If premises visit required,
$11.74/Loop
V. Collocation Cross-Connection
A. Voice Grade Loop
Physical DS0 CO side to equipment $.67/Month Not Applicable
Virtual DS0 with RFT CO side MDF to equipment $1.58/Month Not Applicable
Virtual DS1 with EDSX (1DS1 + 24 $71.65/Month Both:
DS0s with IDLC) $10.81/Service Order Connect
$4.91/ Service Order Disconnect
Virtual DS1 with CFA (24DS0s with IDLC) $54.44/Month $353.48/Initial Installation &
$127.99/Additional Installations
$36.24/Initial Installation
Disconnect &
$9.48/ Additional Disconnect
B. Other
Physical DS3 or DS1 Cable Rack $1.53/Month Not Applicable
Physical DS3 $97.09/Month All:
$10.81/Service Order
Physical DS1 $16.81/Month $4.91/ Service Order Disconnect
$297.73/Initial Installation &
Virtual DS3 $101.49/Month $114.05/Additional Installations
Virtual DS1 $17.22/Month $36.24/ Initial Installation
Disconnect &
$9.48/Additional Disconnect
VI. Time and Materials
</TABLE>
10
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<S> <C> <C>
Special Construction As applicable per BA-VA Tariff
Service Technician (service work on unbundled Not Applicable $6.47/Service Order
loops outside of the Central Office) $27.35/Premises Visit
$11.74 Labor Charge/ Quarter Hour
After First Quarter Hour
Central Office Technician Not Applicable $6.74/Service Order
$11.15 Labor Charge/ Quarter Hour
VII. Signaling and Databases
A. STP Port
Access Link (incl. one end) $18.23/Month $10.81 /Service Order Connect
$4.91/ Service Order Disconnect:
plus installation connect and
installation disconnect charges
for each initial and additional
facility purchased at the time of
order:
$135.01/Initial Facility &
$11.86/Additional Facility Connect
$92.88/Initial Facility &
$7.27/Additional Facility
Disconnect
STP Port Termination $458.70/Month $81.77
B. 800/888/877 Database
Basic Query $.000658/Query Not Applicable
Vertical Query $.000181/Query Not Applicable
C. LIDB Validation
LIDB Point Codes Not Applicable $80.93/Point Code
Calling Card $.0153/Query Not Applicable
Billed Number Screening $.0153/Query Not Applicable
Storage of HarvardNet's Data in LIDB Not Applicable $1,381.66/ Service Establishment/
Request
VII. Signaling and Databases (Continued)
D. AIN Service Creation (ASC) Service
</TABLE>
11
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<S> <C> <C>
1. Developmental Charges
Service Establishment Not Applicable $878.23/Request
Service Creation Access Port $136.14/Port/Month Not Applicable
Service Creation Usage
a. Remote Access $1,266.13/Day Not Applicable
b. On-Premise $1,266.13/Day Not Applicable
Certification & Testing $76.49/Hour Not Applicable
Help Desk Support $80.95/Hour Not Applicable
2. Service Charges
Subscription Charge $.96/Month Not Applicable
Database Queries
a. Network Query $.0006/Query Not Applicable
b. HarvardNet Network Query $.0006/Query Not Applicable
c. HarvardNet Switch Query $.0006/Query Not Applicable
Trigger Charge
a. Line Based $.00042/Query Not Applicable
b. Office Based $.00042/Query Not Applicable
Utilization Element $.00031/ACU Not Applicable
Service Activation Charge
a. Network Service Activation Not Applicable $5.52/Service Order/Line
b. HarvardNet Network Service Not Applicable $5.52/Service Order/Line
Activation
c. HarvardNet Switch Service Not Applicable $5.52/Service Order /Line
Activation
Service Modification
DTMF Update $.10/Occurrence Not Applicable
Switch Based Announcement $.00318/ Announcement Not Applicable
VIII. Directory Listings & Books
Primary Listings No Charge
</TABLE>
12
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<S> <C> <C>
Additional Tariffed Listing Services Per applicable Tariff Per applicable Tariff (including,
(including, but not limited to, but not limited to, BA-VA SCC 203
BA-VA SCC 203 sec. 3 sec. 4
Retail Rates less Wholesale Retail Rates less Wholesale
Discount Discount
Books & delivery (annual home area directories No charge for normal numbers of books delivered to end users;
only) bulk deliveries to HarvardNet per separate arrangement
IX. Operator Services/Directory Assistance
Direct Access $.0313/Query $27,431.30/Link
Service Establishment Not Applicable $13,735.63/Request
Directory Assistance $.03209/Call Not Applicable
Directory Transport
Tandem Switched Transmission
Transport $.000098 Not Applicable
Tandem Switching $.000468
Operator call completion Per separate contract; branding available.
Operator Services - Live $.010475/Operator Work Second Not Applicable
Operator Services - Automated $.005547Automated Work Second Not Applicable
Branding for Directory Assistance and/or Operator Not Applicable $1,349.55/Customer Message
Services
</TABLE>
13
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<S> <C> <C>
Carrier to Carrier LSV/VCI Request $.010475/Operator Work Second Not Applicable
</TABLE>
14
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
X. Access to Operation Support Systems
A. Pre-Ordering $.24/Query Not Applicable
B. Ordering $3.83/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
EB/OSI Access $1.16/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $245.05/CD-ROM /Month Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000246/Message Not Applicable
b. Delivery of DUF
Data Tape $20.05/Tape Not Applicable
Network Data Mover $.000093/Message Not Applicable
CMDS $.000093/Message Not Applicable
c. DUF Transport
Communication Ports
9.6 kb Communications Port $116.83/Month Not Applicable
56 kb Communications Port $483.91/Month Not Applicable
256 kb Communications Port $804.90/Month Not Applicable
T1 Communications Port $2,872.12/Month Not Applicable
Port Maintenance
9.6 kb Communications Port $10.17/Month Not Applicable
56 kb Communications Port $28.08/Month Not Applicable
256 kb Communications Port $28.08/Month Not Applicable
T1 Communications Port $356.61/Month Not Applicable
Line Installation Not Applicable $64.96/ Programming Hour/ Port
Port Set-up Not Applicable $10.43/ Port
Network Control Programming Coding Not Applicable $64.96/ Programming Hour/ Port
</TABLE>
15
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<S> <C> <C>
d. CABS Billing
CABS Billing per Bill Entry $.000108/Bill Entry Not Applicable
X Access to Operation Support Systems (continued)
3. Computer Processing Usage (CPU) per
Customer
Data Transmission (CMDS and Tape) $1.18/Customer Not Applicable
Line Installation $1.18/Customer Not Applicable
Network Control Program Coding $1.18/Customer Not Applicable
Port Set Up $.18/Customer Not Applicable
XI. Exchange Access Service
Interstate Per BA-FCC Tariff number 1
Intrastate Per BA- VA S.C.C.-Va. - No. 217
XII. Interim Number Portability
INP with Transport $.00151/MOU
INP without Transport $.00124/MOU
XIII. 911/E911
Transport Per section II. Above
Data Entry and Maintenance No Charge
XIV. Poles Conduits & ROW Per contract rates pursuant to 47 U.S.C. sec. 224
Illustrative:
Duct: $4.50/Foot/Year
Pole: $3.81/Attachment/Year
XV. Network Interface Device $.44/mo Not Applicable
XVI. Access to Telephone Numbers (NXX codes issued No Charge
per ICCF Code Administration Guidelines)
XVII. Local Dialing Parity No Charge
</TABLE>
16
<PAGE>
APPENDIX 2
EXHIBIT A
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
XVIII. Customized Routing
Customized Routing $.12085/Line Not Applicable
$.06043/Call
Customized Routing Transport Per section II above.
XIX. Wholesale Discount for Resale of Retail Telecommunications Services(4)
Resale of retail services if HarvardNet 21.30% (5)
provides own operator services platform
Resale of retail services if HarvardNet uses 18.50% (6)
Bell Atlantic operator services platform
</TABLE>
(4) Excludes telecommunications services designed primarily for wholesale, such
as switched and special exchange access service, and, subject to Section 12 of
the Statement, the following additional arrangements that are not subject to
resale: limited duration (90 days or less) promotional offerings, public coin
telephone service, and technical and market trials. Taxes shall be collected and
remitted by the reseller and BA in accordance with legal requirements and as
agreed between the Parties. Surcharges (e.g., 911, telecommunications relay
service, universal service fund) shall be collected by the reseller and either
remitted to the recipient agency or NECA, or passed through to BA for remittance
to the recipient agency or NECA, as appropriate and agreed between the Parties.
End user common line charges shall be collected by the reseller and remitted to
BA.
(5) Pending establishment of mechanized billing procedures adapted to resale, BA
will apply the wholesale discount for resale as a "bottom-of-the-bill" discount
rate and will utilize a "true-up" process to correct possible inadvertent
application of the wholesale discount to the exclusions identified herein and to
reflect other adjustments as the Companies agree.
(6) Pending establishment of mechanized billing procedures adapted to resale, BA
will apply the wholesale discount for resale as a "bottom-of-the-bill" discount
rate and will utilize a "true-up" process to correct possible inadvertent
application of the wholesale discount to the exclusions identified herein and to
reflect other adjustments as the Companies agree.
17
<PAGE>
APPENDIX 2
EXHIBIT A
B. HarvardNet SERVICES, FACILITIES, AND ARRANGEMENTS:
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
I. Local Call Termination(7)
Traffic Delivered at HarvardNet End Office $.000927/MOU Not Applicable
Traffic Delivered at HarvardNet Tandem Switch $.001590/MOU Not Applicable
II. Number Portability
Interim with Transport $.00151/MOU
Interim without Transport
$.00124/MOU
III. Exchange Access Service
Interstate Per HarvardNet FCC exchange access Tariff.
Intrastate Per HarvardNet VA exchange access Tariff.
IV. All Other HarvardNet Services Available at HarvardNet's tariffed or otherwise generally
Available to BA for Purposes of available rates, not to exceed BA's rates for equivalent
Effectuating Local Exchange Competition services available to HarvardNet.
V. Other Services $.03 per call No Charge
Information Service Billing Fee
</TABLE>
- ----------
(7) See note 8 regarding measurement and calculation of local traffic
termination charges.
18
<PAGE>
APPENDIX 2
EXHIBIT A
8 Local Traffic Termination Rates
A. Charges by BA
(a) Traffic delivered to or BA Access Tandem: $.001590 per MOU.
(b) Traffic delivered directly to
terminating BA End Office: $.000927 per MOU.
B. Charges by HarvardNet
1. Single-tiered interconnection structure:
HarvardNet's rates for the termination of BA's Local Traffic under the
single-tiered interconnection structure shall be recalculated once each
year on each anniversary of the Effective Date (the "Rate Determination
Date"). The methodology for recalculating the rates is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic
delivered by HarvardNet to the BA Access Tandem for most recent
billed quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by
HarvardNet directly to the terminating BA End Office for most recent
billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by
HarvardNet to BA for most recent billed quarter.
HarvardNet Charge at the HarvardNet-IP =
(Access Tandem Minutes x $.001590) + (End Office Minutes x $.000927)
--------------------------------------------------------------------
Total Minutes
For the first year after the Effective Date, the HarvardNet charge shall
be calculated based on the traffic data of the quarter immediately
preceding such Effective Date, or if no such traffic exists, on the
proportion of local call termination trunks to BA End Offices and to BA
Access Tandems.
2. Multiple-tiered interconnection structure (if offered by HarvardNet to any
carrier)
(a) Local Traffic delivered to HarvardNet Access Tandem: $.001590/ MOU
(b) Local Traffic delivered to terminating HarvardNet
End Office/node: $.000927/ MOU
C. Miscellaneous Notes
1. The HarvardNet termination rate under the single-tiered interconnection
structure set forth above is intended to be a Local Traffic termination rate for
Interconnection to the HarvardNet-IP within each LATA that is reciprocal and
equal to the actual rates that will be charged by BA to HarvardNet under the
two-tiered Local Traffic termination rate structure described above that will
apply after the first anniversary of the Effective Date. The single HarvardNet
termination rate is also intended to provide financial incentives to HarvardNet
to deliver traffic directly to BA's terminating End Offices once HarvardNet's
traffic volumes reach an appropriate threshold.
19
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of October 7, 1998
by and between
BELL ATLANTIC - VIRGINIA INC.
and
DIECA COMMUNICATIONS, INC.
1
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TABLE OF CONTENTS
Page
----
1.0 DEFINITIONS 2
2.0 INTERPRETATION AND CONSTRUCTION 11
3.0 INTERCONNECTION ACTIVATION DATES AND IMPLEMENTATION SCHEDULE 11
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) 12
4.1 Scope 12
4.2 Physical Architectures 14
4.3 Mid-Span Meets 15
4.4 Interconnection in Additional LATAs 16
4.5 Interconnection Points for Different Types of Traffic 17
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2) 17
5.1 Scope of Traffic 17
5.2 Trunk Group Connections and Ordering 17
5.3 Additional Switching System Hierarchy and Trunking Requirements 18
5.4 Signaling 18
5.5 Grades of Service 18
5.6 Measurement and Billing 18
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5) 19
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
251(c)(2) 20
6.1 Scope of Traffic 20
6.2 Trunk Group Architecture and Traffic Routing 20
6.3 Meet-Point Billing Arrangements 21
6.4 800/888 Traffic 24
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC 25
7.1 Information Services Traffic 25
7.2 LSV/VCI Traffic 26
7.3 Transit Service 27
7.4 911/E911 Arrangements 28
7.5 Ancillary Traffic Generally 30
8.0 NUMBER RESOURCES, RATE CENTERS, AND RATING POINTS 30
2
<PAGE>
9.0 NETWORK MAINTENANCE AND MANAGEMENT; OUTAGES 31
9.1 Interference or Impairment 31
9.2 Repeated or Willful Noncompliance 31
9.3 Outage Repair Standard 32
9.4 Notice of Changes -- Section 251(c)(5) 32
10.0 JOINT NETWORK IMPLEMENTATION AND GROOMING PROCESS; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR 32
10.1 Joint Network Implementation and Grooming Process 32
10.2 Installation, Maintenance, Testing and Repair 33
10.3 Forecasting Requirements for Trunk Provisioning 33
11.0 UNBUNDLED ACCESS -- SECTION 251(c)(3) 34
11.1 Available Network Elements 35
11.2 Unbundled Local Loop (ULL) Transmission Types 35
11.3 Network Interface Device 37
11.4 Unbundled Switching Elements 37
11.5 Interoffice Transmission Facilities 37
11.6 Operations Support Systems 37
11.7 Limitations on Unbundled Access 37
11.8 Availability of Other Network Elements on an Unbundled Basis 38
11.9 Provisioning of Unbundled Local Loops 39
11.10 Maintenance of Unbundled Local Loops 40
11.11 Rates and Charges 40
12.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1) 41
12.1 Availability of Retail Rates for Resale 41
12.2 Availability of Wholesale Rates for Resale 41
12.3 Availability of Support Services for Resale 41
12.4 Restrictions on Resale and Use of BA Services 41
13.0 COLLOCATION -- SECTION 251(c)(6) 42
14.0 NUMBER PORTABILITY -- SECTION 251(b)(2) 44
14.1 Scope 44
14.2 Procedures for Providing INP Through Remote Call Forwarding 44
14.3 Procedures for Providing INP Through Direct Inward Dial Trunks
(Flex-DID) 46
14.4 Procedures for Providing LTNP Through Full NXX Code Migration 46
14.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers 46
14.6 Recovery of INP Costs Pursuant to FCC Order and Rulemaking 47
15.0 DIALING PARITY -- SECTION 251(b)(3) 47
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 48
3
<PAGE>
17.0 DATABASES AND SIGNALING 48
18.0 COORDINATED SERVICE ARRANGEMENTS 50
18.1 Intercept and Referral Announcements 50
18.2 Coordinated Repair Calls 50
18.3 Customer Authorization 50
19.0 DIRECTORY SERVICES ARRANGEMENTS 51
19.1 Directory Listings and Directory Distributions 51
19.2 Yellow Pages Maintenance 53
19.3 Service Information Pages 53
19.4 Directory Assistance (DA); Call Completion 54
20.0 COORDINATION WITH TARIFF TERMS 54
21.0 INSURANCE 55
22.0 TERM AND TERMINATION 55
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 56
24.0 CANCELLATION CHARGES 56
25.0 INDEMNIFICATION 57
26.0 LIMITATION OF LIABILITY 57
27.0 PERFORMANCE STANDARDS FOR SPECIFIED ACTIVITIES 58
27.1 Performance Standards 58
27.2 Performance Monitoring Reports, Standards and Remedies 58
27.3 Performance Measurement, Standard and Remedy for xDSL-Compatible ULLs 59
28.0 COMPLIANCE WITH LAWS; REGULATORY APPROVAL 59
29.0 MISCELLANEOUS 60
29.1 Authorization 60
29.2 Independent Contractor 60
29.3 Force Majeure 61
29.4 Confidentiality 61
29.5 Choice of Law 62
29.6 Taxes 62
29.7 Assignment 65
29.8 Billing and Payment; Disputed Amounts 65
29.9 Dispute Resolution 66
29.10 Notices 66
4
<PAGE>
29.11 Section 252(i) Obligations 67
29.12 Joint Work Product 68
29.13 No Third Party Beneficiaries; Disclaimer of Agency 68
29.14 No License 69
29.15 Technology Upgrades 69
29.16 Survival 69
29.17 Entire Agreement 70
29.18 Counterparts 70
29.19 Modification, Amendment, Supplement or Waiver 70
29.20 Successors and Assigns 70
29.21 Publicity and Use of Trademarks or Service Marks 70
29.22 Integrity of BELL ATLANTIC Network 70
29.23 Merger Conditions 70
LIST OF SCHEDULES AND EXHIBITS
------------------------------
Schedules
Schedule 1.0 Certain Terms As Defined in the Act, As of Effective Date
Schedule 3.0 Initial Network Implementation Schedule
Schedule 4.0 Interconnection Points in LATA
Schedule 4.5 Interconnection Points for Different Types of Traffic
Schedule 6.3 Rate Elements Under Meet Point Billing
Schedule 11.3 Access to Network Interface Device
Schedule 11.4 Unbundled Switching Elements
Schedule 12.3 Support Services for Resale
Schedule 13.4 Collocation: Shared Cage Arrangement
Schedule 27.2 Performance Monitoring Reports, Standards and Remedies
Exhibits
Exhibit A Detailed Schedule of Itemized Charges
Exhibit B Network Element Bona Fide Request
Exhibit C Directory Assistance and Call Completion Services Agreement
Exhibit D IntraLATA Telecommunications Services Settlement Agreement
5
<PAGE>
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, is effective as of the 7th day of October, 1998
(the "Effective Date"), by and between Bell Atlantic - Virginia Inc. ("BA"), a
Virginia corporation with offices at 600 East Main Street, Richmond, Virginia
23261, and DIECA Communications, Inc. (referred to in this Agreement as
"Covad"), a Virginia corporation with offices at 6849 Old Dominion Drive, Suite
220, McLean, Virginia 22101.
WHEREAS, the Parties want to interconnect their networks at mutually
agreed upon points of interconnection to provide Telephone Exchange Services,
Switched Exchange Access Services, and other Telecommunications Services (all as
defined below) to their respective customers;
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 Act (as defined below) and additional services as set forth
herein; and
WHEREAS, Sections 251, 252, and 271 of the Telecommunications Act of 1996
have specific requirements for interconnection, unbundling, and service resale,
commonly referred to as the "Checklist", and the Parties intend that this
Agreement address those Checklist requirements.
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, Covad and BA hereby agree as follows:
This Agreement sets forth the terms, conditions and pricing under which BA
and Covad (individually, a "Party" and collectively, the "Parties") will offer
and provide to each other network Interconnection, access to Network Elements,
ancillary services, and wholesale Telecommunications Services available for
resale within each LATA in which they both operate within Virginia. As such,
this Agreement is an integrated package that reflects a balancing of interests
critical to the Parties. It will be submitted to the Virginia State Corporation
Commission, and the Parties will specifically request that the Commission
refrain from taking any action to change, suspend or otherwise delay
implementation of the Agreement. So long as the Agreement remains in effect,
neither Party shall advocate before any legislative, regulatory, or other public
forum that any term of this Agreement be modified or eliminated, unless mutually
agreed to by the Parties.
1.0 DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
specified below in
6
<PAGE>
this Section 1. For convenience of reference only, the definitions of certain
terms that are As Defined in the Act (as defined below) are set forth on
Schedule 1.0.
1.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et. seq.),
as amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or the
Commission.
1.2 "ADSL" or "Asymmetrical Digital Subscriber Line" is a digital loop
transmission technology which typically permits the transmission of up to 6 Mbps
downstream (from the CO to the end-user customer) and up to 640 kbps digital
signal upstream (from the end-user customer to the CO).
1.2.A "Affiliate" is As Defined in the Act.
1.3 "Agreement" means this Interconnection Agreement under Sections 251
and 252 of the Act and all Exhibits, Schedules, addenda, and attachments
referenced herein and/or appended hereto.
1.4 "Ancillary Traffic," means all traffic that is destined for ancillary
services, or that may have special billing requirements, including but not
limited to the following: LSV/VCI, Directory Assistance, 911/E911, Operator
Services (IntraLATA call completion), IntraLATA third party, collect and calling
card, 800/888 database query, LIDB, and information services requiring special
billing.
1.5 "Applicable Laws" or "Applicable Law" or "Law" means all laws,
regulations, and orders applicable to each Party's performance of its
obligations hereunder.
1.6 "As Defined in the Act" means as specifically defined by the Act and
as from time to time interpreted in the duly authorized rules and regulations of
the FCC or the Commission.
1.7 "As Described in the Act" means as described in or required by the Act
and as from time to time interpreted in the duly authorized rules and
regulations of the FCC or the Commission.
1.8 "Automatic Number Identification" or "ANI" means a signaling parameter
which refers to the number transmitted through a network identifying the billing
number of the calling party.
1.8.A "Bona Fide Request" or "BFR" means the process described on Exhibit
B that prescribes the terms and conditions relating to a Party's request that
the other Party provide a BFR Item (as defined in Exhibit B) not otherwise
provided by the terms of this Agreement.
1.9 "Calling Party Number" or "CPN" is a Common Channel Signaling ("CCIS")
parameter which refers to the number transmitted through a network identifying
the calling Party.
7
<PAGE>
1.10 "Central Office Switch" means a switch used to provide
Telecommunications Services, including, but not limited to:
(a) "End Office Switch" or "End Office" is a switching entity that
is used to terminate Customer station Loops for the purpose of interconnection
to each other and to trunks; and
(b) "Tandem Switch" or "Tandem Office" or "Tandem" is a switching
entity that has billing and recording capabilities and is used to connect and
switch trunk circuits between and among End Office Switches and between and
among End Office Switches and carriers' aggregation points, points of
termination, or points of presence, and to provide Switched Exchange Access
Services.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
1.11 "CLASS Features" means certain CCIS-based features available to
Customers including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification, and future CCIS-based offerings.
1.12 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in equipment necessary for
Interconnection or for access to Network Elements offered by the second Party on
an unbundled basis that has been installed and maintained at the premises of a
second Party (the "Housing Party"). For purposes of Collocation, the "premises"
of a Housing Party is limited to a Housing Party Wire Center, other mutually
agreed-upon locations of the Housing Party, or any other location for which
Collocation has been ordered by the FCC or Commission. 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 owns, installs, and maintains equipment
dedicated to use by the Collocating Party in the Housing Party's premises. BA
currently provides Collocation under terms, rates, and conditions as described
in tariffs on file or soon to be filed with the FCC and the Commission. For
purposes of this Agreement, Collocation also includes alternative Collocation
arrangements required by Applicable Law or agreed to by the Parties purusant to
Section 13 below.
1.13 "Commission" means the Virginia State Corporation Commission.
1.14 "Common Channel Interoffice Signaling" or "CCIS" means a method of
transmitting call set-up and network control data over a digital signaling
network separate from the public switched telephone network facilities that
carry the actual voice or data traffic of the call. "SS7" means the common
channel out of band signaling protocol developed by the Consultative Committee
for International Telephone and Telegraph ("CCITT") and the American National
Standards Institute ("ANSI"). BA and Covad currently utilize this out-of-band
signaling protocol. "CCSAC" or "CCSAS" means the common channel signaling access
connection or service, respectively, which connects one Party's signaling point
of interconnection ("SPOI") to
8
<PAGE>
the other Party's STP for the exchange of SS7 messages.
1.15 "Competitive Local Exchange Carrier" or "CLEC" means any Local
Exchange Carrier other than BA, operating as such in BA's certificated territory
in Virginia. Covad is a CLEC.
1.16 "Cross Connection" means a jumper cable or similar connection
provided pursuant to Collocation at the digital signal cross connect, Main
Distribution Frame or other suitable frame or panel between (i) the Collocating
Party's equipment and (ii) the equipment or facilities of the Housing Party.
1.17 "Customer" means a third-party residence or business end-user
subscriber to Telecommunications Services provided by either of the Parties.
1.17.A "Customer Proprietary Network Information" or "CPNI" is As Defined
in the Act.
1.18 "Dialing Parity" is As Defined in the Act.
1.19 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.20 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.21 "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.
1.22 "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.
1.23 "Exchange Access" is As Defined in the Act.
1.24 "Exchange Message Record" or "EMR" means the standard used for
exchange of telecommunications message information among Local Exchange Carriers
for billable, non-billable, sample, settlement, and study data. EMR format is
contained in BR-010-200-010 CRIS Exchange Message Record, a Bell Communications
Research, Inc. ("Bellcore") document that defines industry standards for
Exchange Message Records.
1.25 "FCC" means the Federal Communications Commission.
1.26 "FCC Regulations" means Title 47 of the Code of Federal Regulations,
including but not limited to the amendments adopted in, and the additional
requirements of, the First Report and Order In the Matter of Implementation of
the Local Competition Provisions in the
9
<PAGE>
Telecommunications Act of 1996 and Interconnection between Local Exchange and
Commercial Mobile Radio Service Providers, CC Docket Nos. 96-98 and 95-185,
adopted on August 1, 1996 and released on August 8, 1996, the Second Report and
Order and Memorandum Opinion and Order, CC Docket Nos. 96-98, 95-185, and
92-237, adopted and released on August 8, 1996, and any and all rules or
regulations that are issued from Deployment of Wireline Services Offering
Advanced Telecommunications Capability, CC Docket No. 98-147 et al., Memorandum
Opinion and Order and Notice of Proposed Rulemaking, FCC 98-188, released on
August 7, 1998, as each may be amended, stayed, voided, repealed, or
supplemented from time to time.
1.27 "HDSL" or "High-Bit Rate Digital Subscriber Line" means a
transmission technology which transmits up to 784 kbps simultaneously in both
directions on a two-wire channel using a 2 Binary / 1 Quartenary ("2B1Q") line
code.
1.28 "Incumbent Local Exchange Carrier" or "ILEC" is As Defined in the
Act. For purposes of this Agreement, BA is an Incumbent Local Exchange Carrier.
1.29 "Independent Telephone Company" or "ITC" means any entity other than
BA which, with respect to its operations within the Commonwealth of Virginia, is
an Incumbent Local Exchange Carrier.
1.30 "Information Service Traffic" means Local Traffic or IntraLATA Toll
Traffic which originates on a Telephone Exchange Service line and which is
addressed to an information service provided over a Party's information services
platform (e.g., 976).
1.30.A "Inside Wire" or "Inside Wiring" means all wire, cable, terminals,
hardware, and other equipment or materials on the Customer's side of the Rate
Demarcation Point.
1.31 "Integrated Digital Loop Carrier" or "IDLC" means a subscriber loop
carrier system which integrates within the switch at a DS1 level that is
twenty-four (24) loop transmission paths combined into a 1.544 Mbps digital
signal.
1.32. "Integrated Services Digital Network" or "ISDN" means a switched
network service providing end-to-end digital connectivity for the simultaneous
transmission of voice and data. Basic Rate Interface-ISDN ("BRI-ISDN") provides
for digital transmission of two 64 kbps bearer channels and one 16 kbps data and
signaling channel (2B+D). Primary Rate Interface-ISDN ("PRI-ISDN") provides for
digital transmission of twenty three (23) 64 kbps bearer channels and one (1) 64
kbps data and signaling channel (23 B+D).
1.33 "Interconnection" is As Described in the Act, and means the
connection of equipment or facilities of one carrier with the equipment or
facilities of another carrier for the purpose of transmission and routing of
Telephone Exchange Service traffic and Exchange Access traffic.
1.34 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or
10
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indirectly, interLATA or intraLATA Telephone Toll Services.
1.35 "Interim Number Portability" or "INP" means the use of existing and
available call routing, forwarding, and addressing capabilities (e.g. remote
call forwarding) to enable a Customer to receive Telephone Exchange Service
provided by any Local Exchange Carrier operating within the exchange area with
which the Customer's telephone number(s) is associated, without having to change
the telephone number presently assigned to the Customer and regardless of
whether the Customer's chosen Local Exchange Carrier is the carrier that
originally assigned the number to the Customer.
1.36 "InterLATA" is As Defined in the Act.
1.37 "IntraLATA Toll Traffic" means those intraLATA calls that are not
defined as Local Traffic in this Agreement.
1.38 Reserved.
1.39 "Line Status Verification" or "LSV" means an operator request for a
status check on the line of a called party. The request is made by one Party's
operator to an operator of the other Party. The verification of the status check
is provided to the requesting operator.
1.40 "Local Access and Transport Area" or "LATA" is As Defined in the Act.
1.41 "Local Exchange Carrier" or "LEC" is As Defined in the Act. The
Parties to this Agreement are or will shortly become Local Exchange Carriers.
1.42 Reserved.
1.43 "Local Telephone Number Portability" or "LTNP" means "number
portability" As Defined in the Act.
1.44 "Local Traffic," unless otherwise defined by Applicable Law, is
traffic that is originated by a Customer of one Party on that Party's network
and terminates to a Customer of the other Party on that other Party's network,
within a given local calling area, or expanded area service ("EAS") area, as
defined in BA's effective Customer tariffs, or, if the Commission has defined
local calling areas applicable to all LECs, then as so defined by the
Commission.
1.45 "Main Distribution Frame" or "MDF" means the primary point at which
outside plant facilities terminate within a Wire Center, for interconnection to
other telecommunications facilities within the Wire Center.
1.46 "MECAB" means 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
11
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Bellcore as Special Report SR-BDS-000983, contains the recommended guidelines
for the billing of an Exchange Access service provided by two or more LECs, or
by one LEC in two or more states, within a single LATA.
1.47 "MECOD" means 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 OBF. The
MECOD document, published by Bellcore as Special Report SR-STS-002643,
establishes methods for processing orders for Exchange Access service which is
to be provided by two or more LECs.
1.48 "Meet-Point Billing" or "MPB" means an arrangement whereby two or
more LECs jointly provide to a third party the transport element of a Switched
Exchange Access Service to one of the LECs' End Office Switches, with each LEC
receiving an appropriate share of the transport element revenues as defined by
their effective Exchange Access tariffs. "Meet-Point Billing Traffic" means
traffic that is subject to an effective Meet-Point Billing arrangement.
1.49 "Mid-Span Meet" means an Interconnection architecture whereby two
carriers' transmission facilities meet at a mutually agreed-upon point of
Interconnection utilizing a fiber hand-off and, at the delivering carrier's
option, may interface with such carrier's collocated equipment to gain access to
unbundled elements.
1.50 "Multiple Bill/Single Tariff" or "Multiple Bill/Multiple Tariff"
means the MPB method whereby each LEC prepares and renders its own meet point
bill in accordance with its own Tariff(s) for the portion of the
jointly-provided Switched Exchange Access Service which the LEC provides.
1.51 "Network Element" is As Defined in the Act.
1.52 "Network Interface Device" or "NID" means the BA-provided interface
terminating BA's telecommunications network on the property where the Customer's
service is located at a point determined by BA.
1.53 "North American Numbering Plan" or "NANP" means the numbering plan
used in the United States that also serves Canada, Bermuda, Puerto Rico and
certain Caribbean Islands. The NANP format is a 10-digit number that consists of
a 3-digit NPA code (commonly referred to as the area code), followed by a
3-digit NXX code and 4-digit line number.
1.54. "Numbering Plan Area" or "NPA" is also sometimes referred to as an
area code. There are two general categories of NPAs, "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, 500 and 888 are examples of Non-Geographic NPAs.
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1.55 "NXX," "NXX Code," or "End Office Code" means the three digit switch
entity indicator (i.e. the first three digits of a seven digit telephone
number).
1.56 "Permanent Number Portability" or "PNP" means the use of a database
or other technical solution that comports with regulations issued by the FCC to
provide LTNP for all customers and service providers.
1.57 "Port Element" or "Port" means a termination on a Central Office
Switch that permits Customers to send or receive Telecommunications over the
public switched network, but does not include switch features or switching
functionality.
1.57.A "POT Bay" or "Point of Termination Bay" means the intermediate
distributing frame system which serves as the point of demarcation for
collocated Interconnection.
1.58 "Rate Center Area" or "Rate Center" or "Exchange Area" means the
geographic area that has been identified by a given LEC as being associated with
a particular NPA-NXX code assigned to the LEC for its provision of Telephone
Exchange Services. The Rate Center Area is the exclusive geographic area which
the LEC has identified as the area within which it will provide Telephone
Exchange Services bearing the particular NPA-NXX designation associated with the
specific Rate Center Area. A "Rate Center Point" is a specific geographic point,
defined by a V&H coordinate, located within the Rate Center Area and used to
measure distance for the purpose of billing Customers for distance-sensitive
Telephone Exchange Services and Toll Traffic. Rate Centers will be identical for
each Party until such time as Covad is permitted by an appropriate regulatory
body to create its own Rate Centers within an area.
1.59 "Rate Demarcation Point" means the point where network access
recurring charges and BA responsibility stop and beyond which Customer
responsibility begins, determined in accordance with FCC rules and BA standard
operating practices.
1.60 "Rating Point" or "Routing Point" means a specific geographic point
identified by a specific V&H coordinate. The Rating Point is used to route
inbound traffic to specified NPA-NXXs and to calculate mileage measurements for
distance-sensitive transport charges of switched access services. Pursuant to
Bellcore Practice BR-795-100-100, the Rating 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 be any alphanumeric A-Z or 0-9. The Rating Point/Routing Point
must be located within the LATA in which the corresponding NPA-NXX is located.
However, the Rating Point/Routing Point associated with each NPA-NXX need not be
the same as the corresponding Rate Center Point, nor must it be located within
the corresponding Rate Center Area, nor must there be a unique and separate
Rating Point corresponding to each unique and separate Rate Center.
1.61 "Reciprocal Compensation" is As Described in the Act, and refers to
the payment arrangements that recover costs incurred for the transport and
termination of Reciprocal Compensation Traffic originating on one Party's
network and terminating on the other Party's
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network.
1.62 "Service Control Point" or "SCP" means the node in the Common Channel
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 a service switching point and via a Signaling
Transfer Point, performs subscriber or application-specific service logic, and
then sends instructions back to the SSP on how to continue call processing.
1.63 "Signaling Transfer Point" or "STP" means a specialized switch that
provides SS7 network access and performs SS7 message routing and screening.
1.63.A "Strapping" means the act of installing a permanent connection
between a Point of Termination bay and a collocated interconnector's physical
Collocation node.
1.64 "Switched Access Detail Usage Data" means a category 1101XX record as
defined in the EMR Bellcore Practice BR-010-200-010.
1.65 "Switched Access Summary Usage Data" means a category 1150XX record
as defined in the EMR Bellcore Practice BR-010-200-010.
1.66 "Switched Exchange Access Service" means the offering of transmission
and switching services to Telecommunications Carriers for the purpose of the
origination or termination of Toll Traffic. Switched Exchange Access Services
include but may not be limited to: Feature Group A, Feature Group B, Feature
Group D, 700 access, 800 access, 888 access, and 900 access and functionally
equivalent Switched Exchange Access services that may be offered in the future.
1.67 "Switching Element" is the unbundled Network Element that provides a
CLEC the ability to use switching functionality in a BA End Office switch,
including all vertical services that are available on that switch, to provide
Telecommunications Services, including Telephone Exchange Service, to its end
user customer(s). The Switching Element will be provisioned with a Port Element,
which provides line side access to the Switching Element.
1.68 "Tariff" means any applicable federal or state tariff of a Party, or
standard agreement or other document that sets forth the generally available
terms and conditions, each as may be amended by the Party from time to time,
under which a Party offers a particular service, facility, or arrangement. A
Tariff shall not include BA's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary Services
and Resale of Telecommunications Services" which has been approved or is pending
approval by the Commission pursuant to Section 252(f) of the Communications Act
of 1934, 47 U.S.C. ss. 252(f).
1.69 "Technically Feasible Point" is As Described in the Act.
1.70 "Telecommunications" is As Defined in the Act.
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1.71 "Telecommunications Act" means the Telecommunications Act of 1996 and
any rules and regulations promulgated thereunder.
1.72 "Telecommunications Carrier" is As Defined in the Act.
1.73 "Telecommunications Service" is As Defined in the Act.
1.74 "Telephone Exchange Service," sometimes also referred to as "Exchange
Service," is As Defined in the Act. Telephone Exchange Service generally
provides the Customer with a telephonic connection to, and a unique telephone
number address on, the public switched telecommunications network, and enables
such Customer to place or receive calls to all other stations on the public
switched telecommunications network.
1.75 [Reserved]
1.76 "Toll Traffic" means traffic that is originated by a Customer of one
Party on that Party's network and terminates to a Customer of the other Party on
that Party's network and is not Local Traffic or Ancillary Traffic. Toll Traffic
may be either "IntraLATA Toll Traffic" or "InterLATA Toll Traffic," depending on
whether the originating and terminating points are within the same LATA.
1.77 "Transit Traffic" means any traffic that originates from or
terminates at Covad's network, "transits" BA's network substantially unchanged,
and terminates to or originates from a third carrier's network, as the case may
be. "Transit Traffic Service" provides Covad with the ability to use its
connection to a BA Tandem for the delivery of calls which originate or terminate
with Covad and terminate to or originate from a carrier other than BA, such as
another CLEC, a LEC other than BA, or a wireless carrier. In these cases,
neither the originating nor terminating Customer is a Customer of BA. This
service is provided through BA's Tandems and applies only where the terminating
End Office of the third carrier subtends the BA Tandem. "Transit Traffic" and
"Transit Traffic Service" do not include or apply to traffic that is subject to
an effective Meet-Point Billing arrangement.
1.78 "Trunk Side" means a Central Office Switch connection that is capable
of, and has been programmed to treat the circuit as, connecting to another
switching entity (e.g. another carrier's network). Trunk Side connections offer
those transmission and signaling features appropriate for the connection of
switching entities.
1.79 "Unbundled Local Loop Element" or "ULL" means a transmission path
that extends from a Main Distribution Frame, DSX-panel, or functionally
comparable piece of equipment in the Customer's serving End Office to the Rate
Demarcation Point (or network interface device (NID) if installed) in or at a
Customer's premises. The actual loop transmission facilities used to provide an
ULL may utilize any of several technologies.
1.80 "Verification with Call Interruption" or "VCI" means a service that
may be
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requested and provided when Line Status Verification has determined that a line
is busy due to an ongoing call. VCI is an operator interruption of that ongoing
call to inform the called party that a calling party is seeking to complete his
or her call to the called party.
1.81 "Voice Grade" means either an analog signal of 300 to 3000 Hz or a
digital signal of 56/64 kilobits per second. When referring to digital voice
grade service (a 56/64 kbps channel), the terms "DS-0" or "sub-DS-1" may also be
used.
1.82 "Wire Center" means a building or portion thereof which serves as a
Routing Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION.
2.1 All references to Sections, Exhibits and Schedules shall be deemed to
be references to Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. The headings used in this Agreement
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning of this Agreement. Unless the context shall
otherwise require, any reference to any agreement, other instrument (including
BA or other third party offerings, guides or practices), statute, regulation,
rule or tariff is to such agreement, instrument, statute, regulation, or rule or
tariff as amended and supplemented from time to time (and, in the case of a
statute, regulation, rule or tariff, to any successor provision).
2.2 Subject to the terms set forth in Section 20 regarding rates and
charges, each Party hereby incorporates by reference those provisions of its
tariffs that govern the provision of any of the services or facilities provided
hereunder. If any provision of this Agreement and an applicable tariff cannot be
reasonably construed or interpreted to avoid conflict, the provision contained
in this Agreement shall prevail, provided that in all cases the more specific
shall prevail over the more general. If any provision contained in this main
body of the Agreement and any Schedule or Exhibit hereto cannot be reasonably
construed or interpreted to avoid conflict, the provision contained in this main
body of the Agreement shall prevail. The fact that a condition, right,
obligation, or other term appears in this Agreement but not in any such tariff
shall not be interpreted as, or be deemed grounds for finding, a conflict for
purposes of this Section 2.
3.0 INTERCONNECTION ACTIVATION DATES AND IMPLEMENTATION SCHEDULE.
Subject to the terms and conditions of this Agreement, each Party shall
exercise its best efforts to adhere to the Interconnection Activation Dates and
Network Implementation Schedule set forth in Schedule 3.0, and to provide fully
operational service predominantly over its own Telephone Exchange Service
facilities to business and residential Customers as soon as reasonably
practicable following the achievement of the milestones in said Schedule for
each listed LATA in Virginia. Schedule 3.0 may be revised and supplemented from
time to time upon the mutual agreement of the Parties to reflect the intention
of the Parties to interconnect in additional LATAs
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pursuant to subsection 4.4 by attaching one or more supplementary schedules to
Schedule 3.0. The Parties agree that this Agreement addresses BA's obligation to
provide Interconnection under Section 251 of the Act, and the requirements of
the Competitive Checklist, under Section 271 of the Act. Covad represents that
it is, or intends to become, a provider of Telecommunications Service to
residential and business subscribers offered exclusively over its own
Telecommunications Service facilities or predominantly over its own
Telecommunications 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.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
The types of Traffic to be exchanged under this Agreement shall be Local
Traffic, IntraLATA Toll (and InterLATA Toll, as applicable) Traffic, Transit
Traffic, Meet Point Billing Traffic, and Ancillary Traffic. Subject to the terms
and conditions of this Agreement, Interconnection of the Parties facilities and
equipment for the transmission and routing of Local Traffic and Toll Traffic
pursuant to this Section 4 shall be established on or before the corresponding
"Interconnection Activation Date" shown for each such LATA within Virginia on
Schedule 3.0 and in accordance with the standards set forth in subsection 10.2.
Both Schedule 3.0 and Schedule 4.0 may be revised and supplemented from time to
time upon the mutual agreement of the Parties to reflect additional or changed
Interconnection Points in Virginia by attaching one or more supplementary
addenda to such Schedule.
4.1 Scope
4.1.1 Section 4 describes the architecture for Interconnection of
the Parties' facilities and equipment over which the Parties shall configure the
following separate and distinct trunk groups:
Traffic Exchange Trunks for the transmission and routing of
terminating Local Traffic, Transit Traffic, translated LEC IntraLATA
800/888 traffic, IntraLATA Toll Traffic, and, where agreed to
between the Parties and as set forth in subsection 4.2.8 below,
InterLATA Toll Traffic between their respective Telephone Exchange
Service customers pursuant to Section 251 (c)(2) of the Act, in
accordance with Section 5 below;
Access Toll Connecting Trunks for the transmission and routing of
Exchange Access traffic, including translated InterLATA 800/888
traffic, between Covad Telephone Exchange Service customers and
purchasers of Switched Exchange Access Service via a BA Tandem,
pursuant to Section 251(c)(2) of the Act, in accordance with Section
6 below;
Information Services Trunks for the transmission and routing of
terminating Information Services Traffic in accordance with Section
7 below;
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LSV/VCI Trunks for the transmission and routing of terminating
LSV/VCI traffic, in accordance with Section 7 below;
911/E911 Trunks for the transmission and routing of terminating
E911/911 traffic, in accordance with Section 7 below;
Directory Assistance Trunks for the transmission and routing of
terminating directory assistance traffic, in accordance with
subsection 19.4 below; and
Operator Services (IntraLATA call completion) Trunks for the
transmission and routing of terminating IntraLATA call completion
traffic, in accordance with subsection 19.4 below;
Choke Trunks for traffic congestion and testing; and
Others as may be requested and agreed to by the Parties.
4.1.2 To the extent required by Section 251 of the Act, this
Agreement provides for Interconnection to each other's networks at any
technically feasible point. For the purposes of this Agreement, the Parties
agree that Interconnection for the transport and termination of traffic may take
place, in the case of BA, at a terminating End Office, a Tandem, and/or other
points as specified herein, and, in the case of Covad, at a Central Office
and/or other points as specified herein, and, in the case of both Parties, any
mutually agreed-upon Mid-Span Meet arrangement as provided in Section 4.3 below.
For purposes of Interconnection, if Covad delivers traffic to BA at a BA End
Office or Tandem point of Interconnection other than the terminating End Office
or Tandem subtended by the terminating End Office, then such point of
Interconnection shall be deemed to be a serving Wire Center. In such instances
and whenever Covad utilizes a serving Wire Center as point of Interconnection,
Covad shall designate that such traffic be transported via a separate trunk
group to the BA Tandem that is subtended by the applicable terminating End
Office. In such cases, the BA Tandem subtended by the terminating End Office
will serve as the BA-IP (as defined below).
4.1.3 The Parties shall establish interconnection points
(collectively, the "Interconnection Points" or "IPs") at the available locations
designated in Schedule 4.0. The mutually agreed-upon IPs on the Covad network at
which Covad will provide transport and termination of traffic shall be
designated as the Covad Interconnection Points ("Covad-IPs"); the mutually
agreed-upon IPs on the BA network shall be designated as the BA Interconnection
Points ("BA-IPs") and shall be either a BA terminating End Office or Tandem.
4.1.4 In the event either Party fails to make available a
geographically relevant End Office or functional equivalent as an IP on its
network to the other Party, the other Party may, at any time, request that the
first Party establish such additional technically feasible IP(s). Such requests
shall be made as a part of the Joint Process established pursuant to subsection
10.1; provided, however, that the Parties shall commence negotiations to
determine the technically feasible and geographically relevant location(s) of
the additional IP(s) as soon as reasonably
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practicable following a Party's request therefor. If, after sixty (60) days
following said request, the Parties have been unable to reach agreement on the
additional Interconnection Points, then either Party may file a complaint with
the Commission to resolve such impasse or pursue with any other remedy available
under law or equity. For purposes of this subsection 4.1.4, a "geographically
relevant" IP shall mean an IP that is located within the BA local calling area
of equivalent BA end user customers, but no greater than twenty five (25) miles
from the BA Rate Center Point of the BA NXX serving the equivalent relevant end
user customers, or, with the mutual agreement of the Parties, an existing and
currently utilized IP within the LATA but outside the foregoing BA local calling
area and/or twenty five (25) mile radius. "Equivalent" customers shall mean
customers served by either Party at the same physical location.
4.1.5 In recognition of the large number and variety of BA-IPs
available for use by Covad, Covad's ability to select from among those points to
minimize the amount of transport it needs to provide or purchase, and the fewer
number of Covad-IPs available to BA to select from for similar purposes, and as
an express condition of BA's making its Wire Centers available to Covad as
points of Interconnection pursuant to subsection 4.1.2 above, Covad shall charge
BA no more than Covad's Tariffed non-distance sensitive entrance facility charge
for the transport of traffic from a BA-IP to a Covad-IP in any given LATA. The
Parties may by mutual agreement establish additional Interconnection Points at
any technically feasible points consistent with the Act.
4.1.6 The Parties shall configure separate trunk groups (as
described in subsection 4.1.1 above) for traffic from Covad to BA, and for
traffic from BA to Covad, respectively; however, the trunk groups shall be
equipped as two-way trunks for testing purposes. As provided in Section 10
below, the Parties agree to consider as part of the Joint Process the
feasibility of combining any of the separate trunk groups into a single two-way
trunk group.
4.2 Physical Architectures
4.2.1 In each LATA identified in Schedule 4.0, the Parties shall
utilize the Covad-IP(s) and BA-IP(s) designated in such Schedule as the points
from which each Party will provide the transport and termination of traffic.
4.2.2 Covad shall have the sole right and discretion to specify any
of the following methods for interconnection at any of the BA-IPs:
(a) a Physical or Virtual Collocation facility Covad establishes at
the BA-IP;
(b) a Physical or Virtual Collocation facility established
separately at the BA-IP by a third party with whom Covad has
contracted for such purposes; and/or
(c) an entrance facility and transport (where applicable) leased
from BA (and any necessary multiplexing), where such facility
extends to the BA-IP from a mutually agreed to point on Covad's
network.
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4.2.3 Covad shall provide its own facilities or purchase necessary
transport for the delivery of traffic to any Collocation arrangement it
establishes at a BA-IP pursuant to Section 13. BA shall provide the transport
and termination of the traffic beyond the BA-IP.
4.2.4 Covad may order from BA any of the Interconnection methods
specified above in accordance with the order intervals and other terms and
conditions, including, without limitation, rates and charges, set forth in this
Agreement, in any applicable Tariff(s), or as may be subsequently agreed to
between the Parties.
4.2.5 BA shall have the sole right and discretion to specify any one
of the following methods for Interconnection at any of the Covad-IPs:
(a) upon reasonable notice to Covad, a Physical Collocation facility
BA establishes at the Covad-IP;
(b) a Physical or Virtual Collocation facility established
separately at the Covad-IP by a third party with whom BA has
contracted for such purposes; and/or
(c) an entrance facility leased from Covad (and any necessary
multiplexing), where such facility extends to the Covad-IP from a
mutually agreed upon point on BA's network.
4.2.6 BA shall provide its own facilities or purchase necessary
transport for the delivery of traffic to any Collocation arrangement it
establishes at an Covad-IP pursuant to Section 13. Covad shall provide the
transport and termination of the traffic beyond the Covad-IP.
4.2.7 BA may order from Covad any of the Interconnection methods
specified above in accordance with the order intervals and other terms and
conditions, including, without limitation, rates and charges, set forth in this
Agreement, in any applicable Tariff(s), or as may be subsequently agreed to
between the Parties.
4.2.8 Under any of the architectures described in this subsection
4.2, either Party may utilize the Traffic Exchange Trunks for the termination of
InterLATA Toll Traffic in accordance with the terms contained in Section 5 below
and pursuant to the other Party's Switched Exchange Access Service tariffs. The
other Party's Switched Exchange Access Service rates shall apply to such
Traffic.
4.3 Mid-Span Meets
4.3.1 In addition to the foregoing methods of Interconnection, the
Parties may agree, at either Party's request at any time, to establish (i) a
Mid-Span Meet arrangement in accordance with the terms of this subsection 4.3
that utilizes either wireless or wireline transmission facilities, or a
combination of both, or (ii) a SONET backbone with an electrical interface at
the DS-3 level where and on the same terms BA offers such SONET services to
other carriers. In the event the Parties agree to adopt a Mid-Span Meet
arrangement that utilizes both
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wireless and wireline facilities, Covad agrees to bear all expenses associated
with the purchase of equipment, materials, or services necessary to facilitate a
wireless to wireline meet up to and including the optical to electrical
multiplexer necessary to effect a fiber hand-off to BA.
4.3.2 The establishment of any Mid-Span Meet arrangement is
expressly conditioned upon the Parties' reaching prior agreement on appropriate
sizing and forecasting, equipment, ordering, provisioning, maintenance, repair,
testing, augment, and compensation procedures and arrangements, reasonable
distance limitations, and on any other arrangements necessary to implement the
Mid-Span Meet arrangement. Any Mid-Span Meet arrangement requested at a
third-party premises is expressly conditioned on the Parties' having sufficient
capacity at the requested location to meet such request, on unrestricted 24-hour
access for both Parties to the requested location, on other appropriate
protections as deemed necessary by either Party, and on an appropriate
commitment that such access and other arrangements may not be restricted for a
reasonable period.
4.3.3 Mid-Span Meet arrangements shall be used only for the
termination of Local Traffic and IntraLATA Toll Traffic unless and until such
time as the Parties have agreed to appropriate compensation arrangements
relating to the exchange of other types of traffic over such Mid-Span Meet, and
only where facilities are available. Any agreement to access unbundled Network
Elements via a Mid-Span Meet arrangement shall be conditioned on the resolution
of the technical and other issues described in this subsection 4.3, resolution
by the joint operations team of additional issues (such as inventory and testing
procedures unique to the provision of unbundled Network Elements via a Mid-Span
Meet), and, as necessary, completion of a joint operational and technical test.
In addition, access to unbundled Network Elements via a Mid-Span Meet
arrangement for access to such Elements, shall be limited to that which is
required by Applicable Laws, and shall be subject to full compensation of all
relevant costs (as defined in the FCC Regulations) by the requesting Party to
the other Party.
4.4 Interconnection in Additional LATAs
4.4.1 If Covad determines to offer Telephone Exchange Services in
any LATA not listed in Schedule 3.0 in which BA also offers Telephone Exchange
Services, Covad shall provide written notice to BA of the need to establish
Interconnection in such LATA pursuant to this Agreement.
4.4.2 The notice provided in subsection 4.4.1 shall include (i) the
initial Routing Point Covad has designated in the new LATA; (ii) Covad's
requested Interconnection Activation Date (and related milestone dates in
accordance with the format in Schedule 3.0); and (iii) a non-binding forecast of
Covad's trunking requirements.
4.4.3 Unless otherwise agreed to by the Parties, the Parties shall
designate the Wire Center(s) Covad has identified as its initial Routing
Point(s) in the LATA as the Covad-IP(s) in that LATA and shall designate
mutually agreed upon BA Wire Center(s) that houses a Tandem Office within the
LATA nearest to the Covad-IP (as measured in airline miles utilizing the V&H
coordinates method) as the BA-IP(s) in that LATA, provided that, for the purpose
of charging for
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the transport of traffic from the BA-IP to the Covad-IP, the Covad-IP shall be
no further than an entrance facility away from the BA-IP.
4.4.4 The Parties shall agree upon an addendum to Schedule 3.0 to
reflect the schedule applicable to each new LATA requested by Covad; provided,
however, that unless agreed by the Parties, the Interconnection Activation Date
in a new LATA shall not be earlier than forty-five (45) days after receipt by BA
of all complete and accurate trunk orders and routing information. Within ten
(10) business days of BA's receipt of Covad's notice, BA and Covad shall confirm
the BA-IP, the Covad-IP and the Interconnection Activation Date for the new LATA
by attaching an addendum to Schedule 3.0.
4.5 Interconnection Points for Different Types of Traffic
Each Party shall make available Interconnection Points and facilities for
routing of traffic from those Interconnection Points as designated in Schedule
4.5. Any additional traffic that is not covered in Schedule 4.5 shall be subject
to separate negotiations between the Parties, except that (i) either Party may
deliver traffic of any type or character to the other Party for termination as
long as the delivering Party pays the receiving Party's then current Switched
Exchange Access rates for such traffic, and (ii) upon a bona fide request from
either Party, the Parties will exercise all reasonable efforts to conclude an
agreement covering the exchange of such traffic.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
Section 5 prescribes parameters for trunk groups (the "Traffic Exchange
Trunks") to be effected over the Interconnections specified in Section 4 for the
transmission and routing of Local Traffic, Transit Traffic, translated LEC
IntraLATA 800/888 traffic, InterLATA Toll Traffic (to the extent applicable),
and IntraLATA Toll Traffic between the Parties' respective Telephone Exchange
Service Customers.
5.2 Trunk Group Connections and Ordering
5.2.1 Traffic Exchange Trunk group connections will be made at a
DS-1 level or higher. Higher speed connections shall be made, when and where
available, in accordance with the Joint Implementation and Grooming Process
prescribed in Section 10. Ancillary Traffic trunk groups may be made below a
DS-1 level, as may be agreed to by the Parties.
5.2.2 Each Party will identify its Carrier Identification Code, a
three or four digit numeric obtained from Bellcore, to the other Party when
ordering a trunk group.
5.3 Additional Switching System Hierarchy and Trunking Requirements
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For purposes of routing Covad traffic to BA, the subtending arrangements
between BA Tandem Switches and BA End Office Switches shall be the same as the
Tandem/End Office subtending arrangements BA maintains for the routing of its
own or other carriers' traffic. For purposes of routing BA traffic to Covad, the
subtending arrangements between Covad Tandem Switches (or functional equivalent)
and Covad End Office Switches (or functional equivalent) shall be the same as
the Tandem/End Office subtending arrangements (or functional equivalent) which
Covad maintains for the routing of its own or other carriers' traffic.
5.4 Signaling
Each Party will provide the other Party with access to its databases and
associated signaling necessary for the routing and completion of the other
Party's traffic in accordance with the provisions contained in Section 17 below.
5.5 Grades of Service
The Parties shall initially engineer and shall jointly monitor and enhance
all trunk groups consistent with the Joint Implementation and Grooming Process
as set forth in Section 10.
5.6 Measurement and Billing
5.6.1 For billing purposes, each Party shall pass Calling Party
Number ("CPN") information on each call carried over the Traffic Exchange Trunks
at such time as the originating switch is equipped for SS7 and from all switches
no later than December 31, 1998. At such time as either Party has the ability,
as the Party receiving the traffic, to use such CPN information to classify on
an automated basis traffic delivered by the other Party as either Local Traffic
or Toll Traffic, such receiving Party shall bill the originating Party the Local
Traffic termination rates, Intrastate Exchange Access rates, or Interstate
Exchange Access rates applicable to each minute of Traffic for which CPN is
passed, as provided in Exhibit A and applicable Tariffs.
5.6.2 If, under the circumstances set forth in subsection 5.6.1, the
originating Party does not pass CPN on up to ten percent (10%) of calls, the
receiving Party shall bill the originating Party the Local Traffic termination
rates, Intrastate Exchange Access rates, Intrastate/Interstate Transit Traffic
rates, or Interstate Exchange Access rates applicable to each minute of traffic,
as provided in Exhibit A and applicable Tariffs, for which CPN is passed. For
the remaining up to ten percent (10%) of calls without CPN information, the
receiving Party shall bill the originating Party for such traffic as Local
Traffic termination rates, Intrastate Exchange Access rates,
Intrastate/Interstate Transit Traffic rates, or Interstate Exchange Access rates
applicable to each minute of traffic, as provided in Exhibit A and applicable
Tariffs, in direct proportion to the minutes of use of calls passed with CPN
information.
5.6.3 If the originating Party does not pass CPN on more than ten
percent (10%) of calls, or if the receiving Party lacks the ability to use CPN
information to classify on an automated basis traffic delivered by the other
Party as either Local Traffic or Toll Traffic, and the originating Party chooses
to combine Local and Toll Traffic on the same trunk group, it will supply an
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auditable Percent Local Use ("PLU") report quarterly, based on the previous
three months' traffic, and applicable to the following three months. If the
originating Party also chooses to combine Interstate and Intrastate Toll Traffic
on the same trunk group, it will supply an auditable Percent Interstate Use
("PIU") report quarterly, based on the previous three months' terminating
traffic, and applicable to the following three months. In lieu of the foregoing
PLU and/or PIU reports, the Parties may agree to provide and accept reasonable
surrogate measures for an agreed-upon interim period.
5.6.4 Measurement of billing minutes for purposes of determining
terminating compensation shall be in conversation seconds.
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5)
Reciprocal Compensation arrangements address the transport and termination
of Local Traffic. BA's delivery of Traffic to Covad that originated with a third
carrier is addressed in subsection 7.3. Where Covad delivers Traffic (other than
Local Traffic) to BA, except as may be set forth herein or subsequently agreed
to by the Parties, Covad shall pay BA the same amount that such carrier would
have paid BA for termination of that Traffic at the location the Traffic is
delivered to BA by Covad. Compensation for the transport and termination of
traffic not specifically addressed in this subsection 5.7 shall be as provided
elsewhere in this Agreement, or if not so provided, as required by the Tariffs
of the Party transporting and/or terminating the traffic. BA shall provide
notice to Covad of any BA filing to the Commission that would alter the
classification of particular traffic as Local or IntraLATA Toll Traffic.
5.7.1 Nothing in this Agreement shall be construed to limit either
Party's ability to designate the areas within which that Party's Customers may
make calls which that Party rates as "local" in its Customer Tariffs.
5.7.2 The Parties shall compensate each other for the transport and
termination of Local Traffic in an equal and symmetrical manner at the rates
provided in the Detailed Schedule of Itemized Charges (Exhibit A hereto), as may
be amended from time to time in accordance with Exhibit A and subsection 20.1.2
below or, if not set forth therein, in the applicable Tariff(s) of the
terminating Party, as the case may be. These rates are to be applied at the
Covad-IP for traffic delivered by BA, and at the BA-IP for traffic delivered by
Covad. No additional charges, including port or transport charges, shall apply
for the termination of Local Traffic delivered to the BA-IP or the Covad-IP,
except as set forth in Exhibit A. When Local Traffic is terminated over the same
trunks as Toll Traffic, any port or transport or other applicable access charges
related to the Toll Traffic shall be prorated to be applied only to the Toll
Traffic.
5.7.3 The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access Service. All Switched
Exchange Access Service and all Toll Traffic shall continue to be governed by
the terms and conditions of the applicable federal and state Tariffs. Similarly,
the Parties agree that the reciprocal compensation arrangements contained in
this subsection 5.7 shall not apply to traffic handed off from one Party to the
other Party, within a BA local calling area, for delivery to an Internet Service
Provider ("ISP") for
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carriage over the Internet.
5.7.4 Compensation for transport and termination of all Traffic
which has been subject to performance of INP by one Party for the other Party
pursuant to Section 14 shall be as specified in subsection 14.5.
5.7.5 The designation of Traffic as Local or non-Local for purposes
of compensation shall be based on the actual originating and terminating points
of the complete end-to-end call, regardless of the entities involved in carrying
any segment of the call.
5.7.6 Each Party reserves the right to measure and audit all
Traffic, up to a maximum of two audits per calendar year, to ensure that proper
rates are being applied appropriately, provided, however, that either Party
shall have the right to conduct additional audit(s) if the preceding audit
disclosed material errors or discrepancies. Each Party agrees to provide the
necessary Traffic data or permit the other Party's recording equipment to be
installed for sampling purposes in conjunction with any such audit.
5.7.7 The Parties will engage in settlements of intraLATA intrastate
alternate-billed calls (e.g. collect, calling card, and third-party billed
calls) originated or authorized by their respective Customers in Virginia in
accordance with the terms of an appropriate IntraLATA Telecommunications
Services Settlement Agreement between the Parties substantially in the form
appended hereto as Exhibit D.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO 251(c)(2)
6.1 Scope of Traffic
Section 6 prescribes parameters for certain trunks to be established over
the Interconnections specified in Section 4 for the transmission and routing of
traffic between Covad Telephone Exchange Service Customers and Interexchange
Carriers ("Access Toll Connecting Trunks"), in any case where Covad elects to
have its End Office Switch subtend a BA Tandem. This includes casually-dialed
(10XXX and 101XXXX) traffic.
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 Covad shall establish Access Toll Connecting Trunks by which
it will provide tandem-transported Switched Exchange Access Services to
Interexchange Carriers to enable such Interexchange Carriers to originate and
terminate traffic to and from Covad's Customers.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Exchange Access to allow Covad's Customers to
connect to or be connected to the interexchange trunks of any Interexchange
Carrier which is connected to a BA Tandem.
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6.2.3 The Access Toll Connecting Trunks shall be two-way trunks
connecting an End Office Switch Covad utilizes to provide Telephone Exchange
Service and Switched Exchange Access in a given LATA to a Tandem BA utilizes to
provide Exchange Access in such LATA.
6.2.4 The Parties shall jointly determine which BA Tandem(s) will be
subtended by each Covad End Office Switch. Covad's End Office switch shall
subtend the BA Tandem that would have served the same rate center on BA's
network. Alternative configurations will be discussed as part of the Joint
Implementation and Grooming Process.
6.3 Meet-Point Billing Arrangements
6.3.1 Covad and BA will establish Meet-Point Billing arrangements in
order to provide a common transport option to Switched Access Services Customers
via a Tandem Switch in accordance with the Meet-Point Billing guidelines
contained in the OBF's MECAB and MECOD documents, except as modified herein, and
BA's Virginia Tariff Number 217, Section 2.4.8. The arrangements described in
this Section 6 are intended to be used to provide Switched Exchange Access
Service that originates and/or terminates on a Telephone Exchange Service that
is provided by either Party, where the transport component of the Switched
Exchange Access Service is routed through a Tandem Switch that is provided by
BA.
6.3.2 In each LATA, the Parties shall establish MPB arrangements
between the applicable Rating Point/BA Wire Center combinations.
6.3.3 Interconnection for the MPB arrangement shall occur at the
BA-IP in the LATA, unless otherwise agreed to by the Parties.
6.3.4 Covad and BA will use reasonable efforts, individually and
collectively, to maintain provisions in their respective state access tariffs,
and/or provisions within the National Exchange Carrier Association ("NECA")
tariff No. 4, or any successor Tariff sufficient to reflect the MPB arrangements
established pursuant to this Agreement.
6.3.5 Each Party shall implement the "Multiple Bill/Single Tariff"
or "Multiple Bill/Multiple Tariff" option, as appropriate, in order to bill an
IXC for the portion of the jointly provided telecommunications service provided
by that Party.
6.3.6 The rate elements to be billed by each Party are as set forth
in Schedule 6.3. The actual rate values for each Party's affected access service
rate element shall be the rates contained in that Party's own effective federal
and state access tariffs, or other document that contains the terms under which
that Party's access services are offered. The MPB billing percentages for each
Rating Point/BA Wire Center combination shall be calculated in accordance with
the formula set forth in subsection 6.3.17 below.
6.3.7 Each Party shall provide the other Party with the billing
name, billing address, and Carrier Identification Code ("CIC") of the IXC, and
identification of the IXC's serving Wire Center in order to comply with the MPB
notification process as outlined in the
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MECAB document via facsimile or such other media as the Parties may agree to.
6.3.8 BA shall provide Covad with the Switched Access Detail Usage
Data (category 1101XX records) on magnetic tape or via such other media as the
Parties may agree to, no later than ten (10) business days after the date the
usage occurred.
6.3.9 Covad shall provide BA with the Switched Access Summary Usage
Data (category 1150XX records) on magnetic tape or via such other media as the
Parties may agree, no later than ten (10) business days after the date of its
rendering of the bill to the relevant IXC, which bill shall be rendered no less
frequently than monthly.
6.3.10 All usage data to be provided pursuant to subsections 6.3.8
and 6.3.9 above shall be sent to the following addresses:
To Covad: Covad to notify BA of Covad address.
To BA: Bell Atlantic
Tape Library
1500 Tech Center Drive
Monroeville, PA 15146
Either Party may change its address for receiving usage data by notifying the
other Party in writing.
6.3.11 Each Party shall coordinate and exchange the billing account
reference ("BAR") and billing account cross reference ("BACR") numbers or
Operating Company Number ("OCN"), as appropriate, for the MPB 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, or if the OCN changes.
6.3.12 Errors may be discovered by Covad, the IXC or BA. Each Party
agrees to provide the other Party with notification of any errors it discovers
within two (2) business days of the date of such discovery. In the event of a
loss of data, both Parties shall cooperate to reconstruct the lost data and, if
such reconstruction is not possible, shall accept a reasonable estimate of the
lost data based upon prior usage data.
6.3.13 Either Party may request a review or audit of the various
components of access recording up to a maximum of two (2) audits per calendar
year. All costs associated with each review and audit shall be borne by the
requesting Party. Such review or audit shall be conducted subject to
confidentiality protection and during regular business hours. A Party may
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conduct additional audits, at its expense, upon the other Party's consent, which
consent shall not be unreasonably withheld.
6.3.14 Nothing contained in this subsection 6.3 shall create any
liability for damages, losses, claims, costs, injuries, expenses or other
liabilities whatsoever on the part of either Party (other than as may be set
forth in MECAB or in any applicable Tariff).
6.3.15 The Parties shall not charge one another for the services
rendered or information provided pursuant to this subsection 6.3.
6.3.16 MPB will apply for all traffic bearing the 500, 900, 800/888
(to the extent provided by an IXC) or any other non-geographic NPA which may be
likewise designated for such traffic in the future.
6.3.17 In the event Covad determines to offer Telephone Exchange
Services in another LATA in which BA operates a Tandem Switch, BA shall permit
and enable Covad to subtend the BA Tandem Switch(es) designated for the BA End
Offices in the area where the Covad Rating Point(s) associated with the
NPA-NXX(s) to/from which the Switched Exchange Access Services are homed. The
MPB billing percentages for each new Rating Point/BA Wire Center combination
shall be calculated according to the following formula:
a / (a + b) = Covad Billing Percentage
and
b / (a + b) = BA Billing Percentage
where:
a = the airline mileage between the Rating Point and the
actual point of interconnection for the MPB arrangement; and
b = the airline mileage between the BA Wire Center and the
actual point of interconnection for the MPB arrangement.
Covad shall inform BA of the LATA in which it intends to offer Telephone
Exchange Services and its calculation of the billing percentages which should
apply for such arrangement, as part of the notice required by subsection 4.4.1
above. Within ten (10) business days of Covad's delivery of notice to BA, BA and
Covad shall confirm the new Rating Point/BA Wire Center combination and billing
percentages. Nothing in this subsection 6.3.17 shall be construed to limit
Covad's ability to select to interconnect with BA in additional LATAs by means
of Interconnection at a Wire Center, to the extent that such Interconnection is
permitted under this Agreement.
6.3.18 Within thirty (30) days of a request by Covad, BA agrees to
notify all switched access users with a Carrier Identification Code in a LATA in
which the Parties have newly established Interconnection arrangements pursuant
to this Agreement that BA and Covad have entered in a Meet Point Billing
arrangement.
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6.4 800/888 Traffic
The following terms shall apply when either Party delivers 800/888 calls
to the other Party for completion.
6.4.1 When Covad delivers translated 800/888 calls to BA for
completion
(a) to an IXC, Covad shall:
(i) Provide a MPB record in an industry standard format to BA; and
(ii) Bill the IXC the appropriate Covad query charge associated with
the call.
(b) as an IntraLATA call to BA or another LEC in the LATA, Covad shall:
(i) Provide a copy record in an industry standard format to BA or
the terminating LEC;
(ii) Submit the call records to ITORP for payment by BA or the LEC
that is the 800/888 service provider of Covad's and any intermediate
LEC's Tariffed Exchange Access charges and query charges.
6.4.2 When BA delivers translated 800/888 calls originated by BA's
or another LEC's Customers to Covad for completion
(a) to Covad in its capacity as an IXC, BA shall:
(i) Bill Covad the appropriate BA query charge associated with the
call; and
(ii) Bill Covad the appropriate FGD Exchange Access charges
associated with the call.
(b) as an IntraLATA call to Covad in its capacity as a LEC,
(i) the originating LEC shall submit the appropriate call records to
BA for processing under the IntraLATA Toll Originating
Responsibility Plan ("ITORP") for payment by Covad of BA's (and
another LEC's, if appropriate) tariffed Exchange Access charges; and
(ii) Covad shall pay the originating LEC's appropriate query charge
associated with the call.
6.4.3 The settlement of all IntraLATA 800/888 calls exchanged
pursuant to this subsection 6.4 shall be in accordance with the terms of an
appropriate IntraLATA
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Telecommunications Services Settlement Agreement between the Parties
substantially in the form appended hereto as Exhibit D.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Services Traffic
The following provisions shall apply only to Covad-originated Information
Services Traffic directed to an information services platform connected to BA's
network. At such time as Covad connects Information Services platforms to its
network, the Parties shall agree upon a comparable arrangement for BA-originated
Information Services Traffic.
7.1.1 Covad shall have the option to route Information Services
Traffic that originates on its own network to the appropriate information
services platform(s) connected to BA's network. In the event Covad exercises
such option, Covad will establish a dedicated trunk group to the BA information
services serving switch. This trunk group will be utilized to allow Covad to
route information service traffic originated on its network to BA.
7.1.2 Covad shall provide an electronic file transfer or monthly
magnetic tape containing recorded call detail information to BA.
7.1.3 BA shall provide to Covad via electronic file transfer or
magnetic tape or other means as available all necessary information to rate the
Information Services Traffic to Covad's Customers pursuant to the BA's
agreements with each information services provider. Information shall be
provided in as timely a fashion as practical in order to facilitate record
review and reflect actual prices set by the individual information services
providers.
7.1.4 Covad shall bill and collect such information services
provider charges and remit the amounts collected to BA less:
(a) The Information Services Billing and Collection fee set
forth in Exhibit A; and
(b) An uncollectibles reserve calculated based on the
uncollectibles reserve in BA's billing and collection agreement with the
applicable information services provider; and
(c) Customer adjustments provided by Covad.
Covad shall provide to BA sufficient information regarding uncollectibles
and Customer adjustments to allow BA to pass through the adjustments to the
information services provider, and BA shall pass through such adjustments.
However, if the information services provider disputes such adjustments and
refuses to accept such adjustments, Covad shall reimburse BA for all such
disputed adjustments. Final resolution regarding all disputed adjustments shall
be solely
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between Covad and the information services provider.
7.1.5 Nothing in this Agreement shall restrict either Party from
offering, or obviate either Party's obligations, if any, under Applicable Laws
to offer, to its Telephone Exchange Service Customers the ability to block the
completion of Information Service Traffic or from establishing such blocking as
the default and requiring that such Customers make an affirmative request to
remove the blocking.
7.1.6 To the extent either Party offers variable rated (e.g. 976,
554, and/or 915, as applicable) information services, the Parties may agree to
separate arrangements for the billing and compensation of such services.
7.1.7 The Information Services Traffic addressed herein does not
include 555 traffic or similar traffic with AIN service interfaces, which
traffic shall be subject to separate arrangements between the Parties.
7.2 LSV/VCI Traffic
7.2.1 If Party A decides or is required by a regulatory body of
competent jurisdiction to offer LSV and VCI services to enable its Customers to
verify and/or interrupt calls of Party B's Customers, Party B shall accept and
respond to LSV and VCI requests from the operator bureau of the Party A. Each
Party shall compensate the other Party for LSV and VCI inquiries in accordance
with the other Party's Tariffed rates, the terms of the Directory Assistance and
Call Completion Agreement appended hereto as Exhibit C, or as may be agreed to
by the Parties.
7.2.2 The Party B operator shall only verify the status of the line
(LSV) or interrupt the line to inform the called party that there is a call
waiting. The Party B operator will not complete the telephone call of the
Customer initiating the LSV/VCI request. The Party B operator will only make one
LSV/VCI attempt per Customer operator bureau telephone call, and the applicable
charges apply whether or not the called party releases the line.
7.2.3 Each Party's operator bureau shall accept LSV and VCI
inquiries from the operator bureau of the other Party in order to allow
transparent provision of LSV/VCI Traffic between the Parties' networks.
7.2.4 Each Party shall route LSV/VCI Traffic inquiries over separate
direct trunks (and not the Local/IntraLATA/InterLATA Trunks) established between
the Parties' respective operator bureaus. Each Party shall offer interconnection
for LSV/VCI traffic at its operator services Tandem Office, or other mutually
agreed point in the LATA. Separate LSV/VCI trunks will be directed to the
operator services Tandem Office designated by Party B. Unless otherwise mutually
agreed, the Parties shall configure LSV/VCI trunks over the Interconnection
architectures in accordance with the terms of Section 4, consistent with the
Joint Implementation and Grooming Process. Party A shall outpulse the
appropriate NPA, ATC Code, and Routing Code (operator code) to Party B.
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7.3 Transit Service
7.3.1 Each Party shall exercise all reasonable efforts to enter into
a reciprocal local traffic exchange arrangement (either via written agreement or
mutual tariffs) with any wireless carrier, ITC, CLEC, or other LEC to which it
sends, or from which it receives, local traffic that transits the other Party's
facilities over Traffic Exchange Trunks. If either Party fails to enter into
such an arrangement as quickly as commercially reasonable following the
Effective Date and to provide written notification of such Agreement, including
the relevant rates therein, to the other Party, but continues to utilize the
other Party's Transit Service for the exchange of local traffic with such
wireless carrier, ITC, CLEC, or other LEC, then the Party utilizing the Transit
Service shall, in addition to paying the rate set forth in Exhibit A for said
Transit Service, pay the other Party any charges or costs such terminating third
party carrier imposes or levies on the other Party for the delivery or
termination of such Traffic, including, where not prohibited by Applicable Law,
any switched access charges, plus all reasonable expenses incurred by the other
Party in delivering or terminating such Traffic and/or resulting from the
utilizing Party's failure to secure said reciprocal local traffic exchange
arrangement. Each Party will, upon request, provide the other Party with all
reasonable cooperation and assistance in obtaining such arrangements. In
addition, neither Party shall take any actions to prevent the other Party from
entering into a direct and reciprocal local traffic exchange arrangement (either
via written agreement or mutual tariffs) with any wireless carrier, ITC, CLEC,
or other LEC to which it sends, or from which it receives, local traffic that
does not utilize the Transit Service of the first Party. The Parties agree to
work cooperatively in appropriate industry fora to promote the adoption of
reasonable industry guidelines relating to Transit Traffic.
7.3.2 Transit Traffic that is originated by an ITC or wireless
carrier shall be settled in accordance with the terms of an appropriate
IntraLATA Telecommunications Services Settlement Agreement between the Parties
substantially in the form appended hereto as Exhibit D. Meet-Point Billing
compensation arrangements as described in subsection 6.3 shall be utilized for
compensation for the joint handling of Toll Traffic.
7.3.3 BA expects that most networks involved in Transit Traffic will
deliver each call to each involved network with CCIS and the appropriate
Transactional Capabilities Application Part ("TCAP") message to facilitate full
interoperability of those services supported by BA and billing functions. In all
cases, each Party shall follow the Exchange Message Record ("EMR") standard and
exchange records between the Parties and with the terminating carrier to
facilitate the billing process to the originating network.
7.3.4 Transit Traffic shall be routed over the Traffic Exchange
Trunks described in Section 5 above.
7.4 911/E911 Arrangements
7.4.1 Covad may, at its option, interconnect to the BA 911/E911
selective routers or 911 Tandem Offices, as appropriate, that serve the areas in
which Covad provides Telephone
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Exchange Services, for the provision of 911/E911 services and for access to all
subtending Public Safety Answering Points ("PSAP"). In such situations, BA will
provide Covad with the appropriate CLLI codes and specifications of the Tandem
Office serving area. In areas where E911 is not available, Covad and BA will
negotiate arrangements to connect Covad to the 911 service.
7.4.2 Path and route diverse interconnections for 911/E911 shall be
made at the Covad-IP, the BA-IP, or other points as necessary and mutually
agreed, and as required by law or regulation.
7.4.3 Within thirty (30) days of its receipt of a request from Covad
and to the extent authorized by the relevant federal, state, and local
authorities, BA will provide Covad with the following at no charge:
(a) a file on diskette or other mutually agreed upon medium
containing the Master Street Address Guide ("MSAG") for each county within the
LATA(s) specified in this Agreement, which MSAG shall be updated no more
frequently than monthly and a complete copy of which shall be made available on
an annual basis;
(b) a list of the address, CLLI code, and an associated NXX of each
911/E911 selective router or 911 Tandem office(s) in the area in which Covad
plans to offer Telephone Exchange Service;
(c) a list of the address, CLLI code, associated NXX, contact name
and phone number of each PSAP in each county in the area in which Covad plans to
offer Telephone Exchange Service;
(d) a list of BA personnel who currently have responsibility for
each county's 911 requirements;
(e) the ten-digit subscriber number for each PSAP or the "main" PSAP
that subtends each BA 911/E911 selective router or 911 Tandem to which Covad is
interconnected for the transfer of "0-" calls to the PSAP;
(f) any special 911 trunking requirements for each 911/E911
selective router or 911 Tandem;
(g) an electronic interface, when available, through which Covad
shall input and provide a daily update of 911/E911 database information related
to appropriate Covad Customers. Until such time as an electronic interface is
available, Covad shall provide BA with all appropriate 911 information such as
name, address, and telephone number in writing for BA's entry into the 911
database system. Any 911-related data exchanged between the Parties prior to the
availability of an electronic interface shall conform to BA standards, whereas
911-related data exchanged electronically shall conform to the National
Emergency Number Association standards;
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(h) return of any Covad E911 data entry files containing errors, so
that Covad may ensure the accuracy of the Customer records; and
(i) a Design Layout Record ("DLR") of a 911 (CAMA) trunk, if
applicable.
7.4.4 In cases where a Customer of one Party elects to discontinue
its service and become the Customer of the other Party ("Party B") but desires
to retain its original telephone number pursuant to an INP arrangement, Party B
will outpulse the telephone number to which the call has been forwarded (i.e.
the Customer's ANI) to the 911 Tandem Office. Party B will also provide the 911
database with both the forwarded number and the directory number, as well as the
appropriate address information of the Customer.
7.4.5 BA and Covad will use their best efforts to facilitate the
prompt, robust, reliable and efficient interconnection of Covad systems to the
911/E911 platforms.
7.4.6 BA and Covad will work cooperatively to arrange meetings with
PSAPs to answer any technical questions the PSAPs, or county or municipal
coordinators may have regarding the 911/E911 arrangements.
7.4.7 The Parties acknowledge that the provision of INP, until PNP
with full 911 compatibility is available, creates a special need to have the
Automatic Location Identification ("ALI") screen reflect two number: the "old"
number and the "new" number assigned by Covad. The Parties acknowledge further
the objective of including the five character Telephone Company Identification
("TCI") of the company that provides service to the calling line as part of the
ALI display. Until such time as TCI is operational, however, BA and Covad agree
to supply and use the three-letter Access Carrier Name Abbreviation ("ACNA") as
the carrier identifier.
7.4.8 Covad will compensate BA for connections to its 911/E911
pursuant to Exhibit A.
7.4.9 Covad will comply with all applicable rules and regulations
pertaining to the provision of 911/E911 services in Virginia.
7.5 Ancillary Traffic Generally
Ancillary Traffic that may be terminated at a BA Wire Center pursuant to
subsection 4.5 above shall be subject to a separate transport charge for
transport from the Wire Center to the appropriate Tandem Office, as set forth in
Exhibit A.
8.0 NUMBER RESOURCES, RATE CENTERS AND RATING POINTS
8.1 Nothing in this Agreement shall be construed to limit or otherwise
adversely affect in any manner either Party's right to employ or to request and
be assigned any Central Office (NXX) Codes pursuant to the Central Office Code
Assignment Guidelines, as may be amended
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from time to time, or to establish, by Tariff or otherwise, Rate Centers and
Rating Points corresponding to such NXX codes. Until such time as number
administration is provided by a third party, BA shall provide Covad access to
telephone numbers by assigning NXX codes to Covad in accordance with such
Assignment Guidelines.
8.2 It shall be the responsibility of each Party to program and update its
own switches and network systems in accordance with the Local Exchange Routing
Guide ("LERG") in order 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, except as expressly set forth
in this Agreement.
8.3 Unless mandated otherwise by a Commission order, the Rate Center Areas
will be the same for each Party. During the term of this Agreement, Covad shall
adopt the Rate Center Areas and Rate Center Points that the Commission has
approved for BA, in all areas where BA and Covad service areas overlap, and
Covad shall assign whole NPA-NXX codes to each Rate Center unless the LEC
industry adopts alternative methods of utilizing NXXs in the manner adopted by
the NANP.
8.4 Covad will also designate a Routing Point for each assigned NXX code.
Covad shall designate one location for each Rate Center Area as the Routing
Point for the NPA-NXXs associated with that Area, and such Routing Point shall
be within the same LATA as the Rate Center Area but not necessarily within the
Rate Center Area itself.
8.5 Notwithstanding anything to the contrary contained herein, nothing in
this Agreement is intended to, and nothing in this Agreement shall be construed
to, in any way constrain Covad's choices regarding the size of the local calling
area(s) that Covad may establish for its Customers, which local calling areas
may be larger than, smaller than, or identical to, BA's local calling areas.
9.0 NETWORK MAINTENANCE AND MANAGEMENT; OUTAGES
9.1 The Parties will work cooperatively to install and maintain a reliable
network. Covad and BA will exchange appropriate information (e.g., maintenance
contact numbers, escalation procedures, network information, information
required to comply with law enforcement and other security agencies of the
Government) to achieve this desired reliability. In addition, the Parties will
work cooperatively to apply sound network management principles to alleviate or
to prevent congestion. BA and Covad agree to work cooperatively to implement
technical guidelines to prevent degradation or other impairments to the quality
or reliability of either Party's network.
9.2 Each Party recognizes a responsibility to follow the standards that
may be agreed to between the Parties and to employ characteristics and methods
of operation that will not interfere with or impair the service or any
facilities of the other or any third parties connected with or involved directly
in the network of the other.
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9.3 Interference or Impairment
If BA reasonably determines that the use of an unbundled Network Element
or network service by Covad is interfering with or impairing BA's provision of
services, BA shall have the right to discontinue service to the degree
reasonably necessary to resolve the interference or impairment, subject,
however, to the following:
9.3.1 BA shall have given Covad at least ten (10) days' prior
written notice of the interference or impairment and the need to correct the
condition within said time period.
9.3.2 BA shall have concurrently provided a copy of the notice
provided to Covad under subsection 9.3.1 above to the appropriate federal and/or
state regulatory bodies.
9.3.3 Notice in accord with subsections 9.3.1 and 9.3.2 above shall
not be required in emergencies and BA may immediately discontinue service if
reasonably necessary to avoid interference with or impairment of BA's network or
services. In such case, however, BA shall use all reasonable means to notify
Covad and the appropriate federal and/or state regulatory bodies.
9.3.4 Upon correction of the interference or impairment, which may
include relocation at appropriate rates and charges, BA will promptly renew
service to Covad. During such period of discontinuance, there will be no
compensation or credit allowance by BA to Covad for interruptions.
9.3.5 The provisions of this Section 9.3 shall not apply to ADSL-2W,
HDSL-2W, and HDSL-4W ULLs provided to Covad by BA pursuant to Section 11.2 of
this Agreement, so long as Covad conforms to the applicable technical references
in its use of such Loops.
9.3.6 If Bell Atlantic reasonably determines that (i) Covad's use of
an unbundled Network Element or a service provided by BA or (ii) the
characteristics and methods of operation used by Covad will or may interfere
with or impair BA's provision of services, BA shall give Covad at least twenty
(20) days' prior written notice of the potential interference or impairment and
the need to correct the condition within said time period. If Covad fails to
correct the condition within said time period, BA may take any action permitted
by Applicable Law, including, but not limited to, filing a complaint with or
seeking other relief from the FCC or the Department.
9.4 Repeated or Willful Noncompliance
The Interconnection, unbundled Network Elements, and services provided
hereunder may be discontinued by either Party upon thirty (30) days written
notice to the other for repeated or willful violation of and/or a refusal to
comply with this Agreement in any material respect. The Party discontinuing will
notify the appropriate federal and/or state regulatory bodies concurrently with
the notice to the other Party of the prospective discontinuance.
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9.5 Outage Repair Standard
In the event of an outage or trouble in any arrangement, facility, or
service being provided by a Party hereunder, the providing Party will follow
procedures for isolating and clearing the outage or trouble that are no less
favorable than those that apply to comparable arrangements, facilities, or
services being provided by the providing Party to itself or any other carrier
whose network is connected to that of the providing Party. Covad and BA may
agree to modify those procedures from time to time based on their experience
with comparable Interconnection arrangements with other carriers.
9.6 Notice of Changes -- Section 251(c)(5)
If a Party makes a change in the information necessary for the
transmission and routing of services using that Party's network, or any other
change in its network which it believes will materially affect the
inter-operability of its network with the other Party's network, the Party
making the change shall provide at least ninety (90) days advance written notice
of such change to the other Party. In addition to all other disclosure rules
required by Applicable Law, the Parties will comply with the Network Disclosure
rules adopted by the FCC in CC Docket No. 86-79 and those promulgated pursuant
to Section 251(c)(5) of the Act as may be amended from time to time.
9.7 Fraud
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.
10. JOINT NETWORK IMPLEMENTATION AND GROOMING PROCESS; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR
10.1 Joint Network Implementation and Grooming Process
Upon request of either Party, the Parties shall jointly develop an
implementation and grooming process (the "Joint Grooming Process" or "Joint
Process") which may define and detail, inter alia,
(a) agreement on Physical Architecture consistent with the
guidelines defined in Section 4.0;
(b) standards to ensure that Interconnection trunk groups experience
a grade of service, availability and quality which is comparable to that
achieved on interoffice trunks within BA's network and in accord with all
appropriate relevant industry-accepted quality, reliability and
availability standards;
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(c) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of the trunk groups,
including, but not limited to, standards and procedures for notification
and discoveries of trunk disconnects;
(d) disaster recovery provision escalations;
(e) additional technically feasible and geographically relevant
IP(s) in a LATA as provided in Section 4.0 above; and
(f) such other matters as the Parties may agree, including, e.g.,
End Office to End Office high usage trunks as good engineering practices
may dictate.
Nothing in this subsection 10.1 shall affect either Party's obligations to
meet the milestone dates set forth in Schedule 3.0 hereof.
10.2 Installation, Maintenance, Testing and Repair
Unless otherwise agreed to by the Parties, Interconnection shall be
provided at parity. For purposes of this Agreement, a Party's obligation to
provide parity shall be in accordance with Applicable Laws, including relevant
Tariffs or service standards, regarding the establishment of Interconnectin
arrangements. If either Party is unable to fulfill its obligations under this
subsection 10.2, it shall notify the other Party of its inability to do so and
will negotiate alternative intervals in good faith. The Parties agree that the
standards to be used by each Party for isolating and clearing any disconnections
and/or other outages or troubles shall be at parity.
10.3 Forecasting Requirements for Trunk Provisioning
Within ninety (90) days of executing this Agreement, Covad shall provide
BA a one (1) year traffic forecast. This initial forecast will provide the
amount of traffic to be delivered to BA over each of the Traffic Exchange Trunk
groups over the next four (4) quarters. The forecast shall be updated and
provided to BA on an as-needed but no less frequently than quarterly basis. All
forecasts shall include Access Carrier Terminal Location (ACTL), traffic type
(local/toll, operator services, 911, etc.), code (identifies trunk group), A
location/Z location (CLLI codes for Covad-IPs and BA-IPs), interface type (e.g.,
DS1), and trunks in service each year (cumulative).
10.3.1 Initial Forecasts/Trunking Requirements Because BA's trunking
requirements will, at least during an initial period, be dependent on the
customer segments and service segments within customer segments to whom Covad
decides to market its services, BA will be largely dependent on Covad to provide
accurate trunk forecasts for both inbound (from BA) and outbound (from Covad)
traffic. BA will, as an initial matter and upon request, provide the same number
of trunks to terminate local traffic to Covad as Covad provides to terminate
local traffic to BA, unless Covad expressly identifies particular situations
that are expected to produce traffic that is substantially skewed in either the
inbound or outbound direction, in which case BA will provide the number of
trunks Covad suggests; provided, however, that in all cases BA's provision of
the forecasted number of trunks to Covad is conditioned on the following: that
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such forecast is based on reasonable engineering criteria, there are no capacity
constraints, and Covad's previous forecasts have proven to be reliable and
accurate.
10.3.2 Monitoring and Adjusting Forecasts BA will, for ninety (90)
days, monitor traffic on each trunk group that it establishes at Covad's
suggestion or request pursuant to the procedures identified in subsection 10.3.1
above. At the end of such ninety (90) day period, BA may disconnect trunks that,
based on reasonable engineering criteria and capacity constraints, are not
warranted by the actual traffic volume experienced. If, after such initial
ninety (90) day period for a trunk group, BA determines that any trunks in the
trunk group in excess of four (4) DS-1s are not warranted by actual traffic
volumes (considering engineering criteria for busy hour CCIS and blocking
percentages), then BA may hold Covad financially responsible for the excess
facilities. In subsequent periods, BA may also monitor traffic for ninety (90)
days on additional trunk groups that Covad suggests or requests BA to establish.
If, after any such (90) day period, BA determines that any trunks in the trunk
group are not warranted by actual traffic volumes (considering engineering
criteria for busy hour CCIS and blocking percentages), then BA may hold Covad
financially responsible for the excess facilities. At any time during the
relevant ninety (90) day period, Covad may request that BA disconnect trunks to
meet a revised forecast. In such instances, BA may hold Covad financially
responsible for the disconnected trunks retroactive to the start of the ninety
(90) day period through the date such trunks are disconnected.
10.3.3 Reciprocal Responsibility To the extent that BA requires
Covad to install trunks for delivery of traffic to BA, Covad may apply the same
procedures with respect to BA's trunking requirements.
10.3.4 Future Forecasts/Trunking Requirement The Parties agree to
determine and develop reciprocal forecast requirements at the end of two (2)
years following the Service Activation Date (as set forth in Schedule 3.0).
10.4 Demand Management Forecasts
10.4.1 Covad will furnish BA with good faith demand management
forecasts to enable BA to effectively plan its network infrastructure and work
force levels to accomodate anticipated Covad demand for BA services and
products. Such forecasts will describe Covad's expected needs for service
volumes, and timeframes for service deployment, by wire center. Covad agrees to
provide such forecasts to BA thirty (30) days following the Effective Date, with
updates to follow every six months thereafter. BA agrees that such forecasts
shall be subject to the confidentiality provisions defined in subsection 29.4
below, and that such information will only be used by BA to provide
Interconnection, unbundled Network Elements and other services pursuant to this
Agreement.
11.0 UNBUNDLED ACCESS -- SECTION 251(c)(3)
To the extent required of each Party by Section 251 of the Act, each Party
shall offer to the other Party nondiscriminatory access to Network Elements on
an unbundled basis at any
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technically feasible point. BA shall unbundle and separately price and offer
Network Elements such that Covad will be able to lease and interconnect to
whichever of the Network Elements Covad requires, and to allow Covad to combine
the BA-provided elements with any facilities and services that Covad may itself
provide, subject to Applicable Law. To the extent permitted by Applicable Law,
Covad may use one or more unbundled Network Elements to provide to itself, its
affiliates or its customers any feature, function or service option that (1)
such unbundled Network Element is presently capable or becomes capable of
providing in the BA network, (2) is described in the applicable Bellcore and
other industry standard technical references identified herein and which the BA
network has the capability of providing on the Effective Date of this Agreement
or becomes capable of providing during the Term of this Agreement, or (3) may
otherwise be agreed to by the Parties. Unless otherwise required by Applicable
Law, any combination by Covad of unbundled Network Elements purchased from BA
shall be through a Collocation arrangement pursuant to Section 13.0 or
applicable Tariff.
The unbundled Network Elements and rates specified in this Agreement shall
be made available by BA to Covad purusant to and to the extent required by
Applicable Law. Unless otherwise provided in this Agreement, the unbundled
Network Elements specified in this Agreement shall be made available by BA to
Covad for ordering and provisioning on the Effective Date. To the extent
required by Applicable Law, and notwithstanding anything to the contrary in this
Section, BA will offer Covad nondiscriminatory access to ADSL-2W, HDSL-2W, and
HDSL-4W ULLs to the extent that BA offers such ULLs to any Telecommunications
Carrier in the commonwealth of Virginia. Nothing in the preceding sentence or
elsewhere in this Section is intended to obligate Bell Atlantic to provide
ADSL-2W, HDSL-2W and HDSL-4W ULLs as of a specific date (other than as may be
required by Applicable Law) or to constitute a waiver of any right Covad may
have to obtain such Loops. In the event that a change in Applicable Law requires
Bell Atlantic to provide ADSL-2W, HDSL-2W and HDSL-4W ULLs or other types of
DSL-compatible Loops, the Parties will negotiate in good faith a
non-discriminatory, commercially reasonable schedule for the availability of
each such type of Loop consistent with Applicable Law.
Covad and BA agree that the unbundled Network Elements identified in this
Section 11 are not exclusive and that pursuant to the BFR Process Covad may
identify and request that BA furnish additional or revised unbundled Network
Elements to the extent required under the Act. Additionally, if BA provides any
unbundled Network Element that is not identified in this Agreement to a
requesting Telecommunications Carrier, including a BA Affiliate, without
requiring such carrier to utilize the BFR process, then BA will make available
the same unbundled Network Element to Covad without Covad being required to use
the BFR Process.
At the time Covad provides BA with an order for a particular unbundled
Network Element other than the standard interfaces provided under this
Agreement, Covad may request any technically feasible network interface. Any
such requested network interface shall be subject to the approval of BA, which
approval shall not be unreasonably withheld or delayed. If Covad's request is
denied, BA shall provide Covad with written notice of said denial, including, if
applicable, a specific description of why it is technically infeasible for BA to
comply with Covad's request.
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For each appropriate unbundled Network Element, BA shall identify a
demarcation point and, if necessary and appropriate, access to such demarcation
point.
11.1 Available Network Elements
At the request of Covad, BA shall provide Covad access to the following
unbundled Network Elements in accordance with the requirements of the FCC
Regulations and Applicable Law:
11.1.1 Local Loops, as set forth in subsection 11.2;
11.1.2 The Network Interface Device, as set forth in subsection
11.3;
11.1.3 Switching Capability, as set forth in subsection 11.4;
11.1.4 Interoffice Transmission Facilities, as set forth in
subsection 11.5;
11.1.5 Signaling Links and Call-Related Databases, as set forth
in Section 17;
11.1.6 Operations Support Systems, as set forth in subsection
11.6;
11.1.7 Operator Services and Directory Assistance, as set forth
in subsection 19.4; and
11.1.8 such other Network Elements in accordance with
subsection 11.8 below.
11.2 Unbundled Local Loop ("ULL") Transmission Types
Subject to subsection 11.7, BA shall allow Covad to access the following
unbundled Local Loop ("ULL") types unbundled from local switching and local
transport in accordance with the terms and conditions set forth in this
subsection 11.2.
11.2.1 "2-Wire Analog Voice Grade ULL" or "Analog 2W" which supports
analog transmission of 300-3000 Hz, loop start, loop reverse battery, ground
start, and no signaling and terminates at both the Central Office MDF (or
equivalent) and the Customer premises, in accordance with BA TR72565 and
TR72570.
11.2.2 "4-Wire Analog Voice Grade ULL" or "Analog 4W" provides an
effective 4-wire channel with 4-wire interfaces at each end that is suitable for
the transport of analog voice grade (nominal 300 to 3000 Hz) signals. The
service will operate with one of the following signaling types that may be
specified when the service is ordered: loop-start, ground-start,
loop-reverse-battery, duplex, and no signaling. The service is more fully
described in Bell Atlantic TR-72570.
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11.2.3 "2-Wire ISDN Digital Grade ULL" or "BRI ISDN" (Premium Link)
which supports digital transmission of two 64 kbps bearer channels and one 16
kbps data channel ("2B+D") in accordance with BA TR72575. BRI ISDN is a 2B+D
Basic Rate Interface-Integrated Services Digital Network (BRI-ISDN) Loop which
will support equipment that meets national ISDN standards and conforms to ANSI
T1.601-1992 & T1E1.4 90-004R3.
11.2.4 "2-Wire ADSL-Compatible ULL" or "ADSL 2W" is a 2-wire,
non-loaded, twisted copper pair that meets revised resistance design or carrier
serving area design guidelines. An ADSL-2W is a transmission path that is
suitable for the transmission of up to a 6 mpbs digital signal downstream
(toward the Customer) and up to a 640 kbps digital signal upstream (away from
the Customer) while simultaneously carrying an analog voice signal, although
Covad is not restricted to those bandwidth specificaitons in providing its
services, provided that Covad complies with appropriate industry ADSL standards
and BA technical reference TR72575. An ADSL 2W terminates in a 2-wire electrical
interface at the Customer premises and at the Bell Atlantic Central Office
frame. 2-wire ADSL-compatible local loops are only available where existing
facilities can meet the non-loaded revised resistance design or carrier serving
area design guidelines. The upstream and downstream ADSL power spectral density
masks and dc line power limits referenced in BA TR 72575 must be met. 2-Wire
ADSL-compatible Local Loops are subject to availability.
11.2.5 "2-Wire HDSL-Compatible ULL" or "HDSL 2W" consisits of a
single 2-wire, non-loaded, twisted copper pair that meets the carrier serving
area design criteria. The HDSL power spectral density mask and dc line power
limits referenced in BA TR 72575 must be met. 2-Wire HDSL-compatible Local Loops
are subject to availability.
11.2.6 "4-Wire HDSL-Compatible ULL" or "HDSL 4W" consists of two
2-wire, non-loaded, twisted copper pairs that meet the carrier serving area
design criteria. The HDSL power spectral density mask and dc line power limits
referenced in BA TR 72575 must be met. 4-Wire HDSL-compatible Local Loops are
subject to availability.
11.2.7 "4-Wire DS1-compatible ULL" (Digital Grade Loop) is a
transmission path that supports the transmission of digital signals of up to a
maximum binary information rate of 1.544 mbps and terminates in a 4-Wire
electrical interface at the Customer premises and a Covad Collocation node at a
BA Central Office. A DS-1 digital Grade Loop is capable of operating in a full
duplex, time division (digital) multiplexing mode and provides transmission
capacity equivalent to 24 voice grade channels with associated signaling,
twenty-four 56 kbps digital channels when in band signaling is provided or
twenty-four 64 kbps channels with the selection of the Clear Channel signaling
option, as described in BA TR 72575. .
11.2.8 ULLs will be offered on the terms and conditions specified
herein and on such other terms in applicable Tariffs that are not inconsistent
with the terms and conditions set forth herein. BA shall make ULLs available to
Covad at the rates specified by the Commission, as amended from time to time,
subject to the provisions of subsection 11.2.8.1 below.
11.2.8.1 BA will make Analog 2-Wire ULLs, BRI ISDN ULLs, Analog 4W
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ULLs, and 4-Wire DS-1-compatible ULLs available for purchase by Covad at any
time after the Effective Date.
11.2.9 Special Provisions Regarding ADSL and HDSL ULLs
At Covad's request, BA will provide the ADSL-2W, HDSL-2W and HDSL-4W
ULLs described in Sections 11.2.4, 11.2.5 and 11.2.6 of this Agreement after
successful completion of a Technical Trial, if necessary, and an Operational
Trial for each ULL type. A Technical Trial is required prior to an Operational
Trial; however, the Technical and/or Operational Trial may or may not involve
Covad and will not take place in Virginia. Upon Covad's request, BA will advise
Covad as to the status of any technical and/or operational trial(s) being
conducted or already completed by BA in any state. BA may also waive the need
for the Operational Trial, and BA will then provide Covad, and Covad may
utilize, such ULL types, subject to the provisions of Section
11.2.9.3-11.2.9.3.5 below.
BA shall exercise its best efforts to utilize all technical data
available to it to satisfy its requirement to conduct a Technical Trial. BA
shall share with Covad, upon Covad's written request, the technical trial
results related to potential interference issues of any ADSL or HDSL technical
trial that BA has undertaken with another Telecommunications Carrier in its
service territory, to the extent that the information is not proprietary to the
other Telecommunications Carrier.
At any time prior to its making ADSL Loops generally available in
Virginia, BA may request that Covad engage in an Operational or Technical Trial
and Covad will negotiate in good faith to reach agreement on the parameters of
such a trial. Covad shall be deemed to have satisfied its good faith obligation
under this section, inter alia, if it (a) reasonably determines that it lacks
sufficient resources to engage in the requested trial at the time of the
request, or (b) is or has been engaged in a BA user group or Commission
collaborative process that is addressing or has successfully addressed the issue
proposed to be resolved by the requested test.
11.2.9.2 Rates
The ADSL-2W and HDSL-2W rates and any other charges specified in Exhibit A
as applicable to such ULLs shall apply during the Operational Trial and
thereafter on an interim basis for ADSL-2W and HDSL-2W ULLs. The HDSL-4W rate
and other charges specified in Exhibit A as applicable to such ULLs shall apply
during the Operational Trial and on an interim basis thereafter for HDSL-4W
ULLs. The interim rates identified in this subsection shall only apply until
such time as the Commission approves rates for ADSL and HDSL-compatible ULLs
that comply with Section 252(d)(1) of the Act.
11.2.9.3 Interference and Impairment for ADSL-2W, HDSL-2W and HDSL-4W
ULLs.
After the successful completion of the Operational Trial and subject to
the BA published technical references and guidelines:
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11.2.9.3.1 Covad shall be able to order and BA shall provision ADSL-2W,
HDSL-2W and HDSL-4W ULL(s).
11.2.9.3.2. In its use of ADSL-2W, HDSL-2W and HDSL-4W ULLs, Covad shall
conform to the BA references and guidelines such that its provision of services
to its customers does not degrade or otherwise adversely affect the quality or
reliability of service to BA's customers, provided that BA is in compliance with
the provisions of this Section.
11.2.9.3.3 BA shall conform to its references and guidelines and shall not
introduce services on its network that would degrade or otherwise adversely
affect the quality or reliability of service to Covad's Customers, provided that
Covad is in compliance with the provisions of this Section.
11.2.9.3.4. If Covad determines that BA is deploying xDSL technology in a
manner that will or may interfere with Covad's provision of its services, Covad
shall notify BA in a reasonable manner and time frame. If BA determines that
Covad is using an ADSL or HDSL Compatible ULL in a manner that will or may
interfere with or impair BA's provision of its services, BA shall notify Covad
in a reasonable manner and time frame.
11.2.9.3.5. The Parties agree to work cooperatively to resolve
interference or other impairment issues. In the event a cooprative resolution
cannot be reached, the Dispute Resolution procedures for this Agreement shall
apply.
11.3 Network Interface Device
At the request of Covad, BA shall permit Covad to connect a carrier's loop
to the Inside Wiring of a Customer's premises through BA's NID in the manner set
forth in Schedule 11.3. Covad must establish the connection to BA's NID through
an adjoining NID deployed by Covad. The Customer shall be responsible for
resolving any conflicts between service providers for access to Customer's
premises and Inside Wire.
11.4 Unbundled Switching Elements
BA shall make available to Covad the local Switching Element and tandem
Switching Element unbundled from transport, local loop transmission, or other
services, as more fully described in Schedule 11.4, in accordance with the terms
and conditions of and at the rates specified in BA's applicable Tariff as
amended from time to time. In the event that there is no applicable Tariff in
Virginia, the Parties agree to negotiate the terms, conditions, and rates for
the provision of unbundled switching elements upon Covad's request.
11.5 Interoffice Transmission Facilities
11.5.1 BA will provide Covad access to unbundled interoffice transmission
facilities as set forth herein between its Central Offices.
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11.5.2 BA will provide Covad access to unbundled shared IOF transport in
conjunction with Covad's purchase of unbundled local switching. Unbundled shared
IOF transport provides Covad access to BA's inter-office transport facilities
(i.e. existing route(s) that are used within the Bell Atlantic network) which
carry transmission from several different carriers, including BA.
11.5.3 BA will provide Covad access to unbundled dedicated IOF transport.
"Dedicated Transport" is an interoffice transmission path of fixed capacity
between designated locations to which Covad is granted exclusive use. Access to
Dedicated Transport is from Covad's switching office or from its Collocation
arrangement established at BA's Central Office.
11.5.4 Dedicated Transport will be paid for by Covad at rates set forth in
Exhibit A.
11.5.5 BA will provide access to unbundled dedicated IOF transport
between: 1) Telecommunications Carrier switching office, 2) CLEC Collocation
Arrangements, and 3) a CLEC Collocation arrangement and a Telecommunications
Carrier switching office. When unbundled dedicated IOF transport terminates at a
Bell Atlantic Central Office, it must terminate at a CLEC Collocation
arrangement.
11.5.6 BA will provide unbundled dedicated IOF transport at the following
transmission speeds: DS-1 and DS-3. For other transmission speed requests (i.e.
OC-n) Covad shall submit a Bona Fide Request (BFR).
11.5.7 In addition to its obligations purusant to this Section 11.4, BA
shall provide Covad unbundled IOF Transport, unbundled from switching, and other
services as required by Applicable Law, at the rates, terms and conditions set
forth in applicable Tariffs, as amended from time to time.
11.6 Operations Support Systems
BA shall provide Covad with nondiscriminatory access to OSS functions for
pre-ordering, ordering, provisioning, maintenance and repair, and billing as
soon as required by Applicable Law. Once BA has developed a pre-order loop
qualification database for xDSL-compatible ULLs in Virginia, and either (i)
makes the database available to other Telecommunications Carriers, or (ii)
utilizes the database in its own retail operations on a routine basis, it shall
provide Covad nondiscriminatory access to such database, at rates and charges to
be determined. Nothing in this subsection shall restrict Covad's ability to
obtain access to any operational support systems ("OSS") that BA makes generally
available to any other Telecommunications Carrier in the state.
11.7 Limitations on Unbundled Access
11.7.1 BA shall only be required to provide ULLs and Ports where
such Loops and Ports are available.
11.7.2 Covad shall access BA's unbundled Network Elements
specifically identified in this Agreement via Collocation in accordance with
Section 13 at the BA Wire Center
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where those elements exist or other mutually agreed upon means of
Interconnection, and each ULL or Port shall, in the case of Collocation, be
delivered to Covad's Collocation by means of a Cross Connection or Strapping, at
the rates set forth in Exhibit A, or via such other alternative arrangement(s)
as the Parties may mutually agree, to the extent required by Applicable Law.
11.7.3 BA shall provide Covad access to its Unbundled Local Loops at
each of BA's Wire Centers for loops terminating in that Wire Center. In
addition, if Covad orders one or more ULL provisioned via Integrated Digital
Loop Carrier or Remote Switching technology deployed as a ULL concentrator, BA
shall, where available and in accordance with applicable technical references,
move the requested ULL(s) to a spare, existing physical ULL at no additional
charge to Covad. If, however, no spare physical ULL is available, BA shall
within three (3) business days of Covad's request notify Covad of the lack of
available facilities. In such event, BA shall offer Covad other options as may
be available, which shall, where feasible, include the placement of a suitable
digital line card at the remote terminal, provided that Covad shall agree to pay
the additional costs incurred by BA in making such other options available to
Covad. The additional cost of such other specific option, and the basis for
allocating such additional cost, will be determined at the time the option is
made available. Covad may also, at its discretion, make a Network Element Bona
Fide Request to BA to provide the unbundled Local Loop through the
demultiplexing of the integrated digitized ULL(s). Covad may also make a Network
Element Bona fide Request for access to Unbundled Local Loops at the ULL
concentration site point. Alternatively, Covad may choose to avail itself of
BA's Special Construction services, as set forth in Exhibit A, for the
provisioning of such ULL(s). Notwithstanding anything to the contrary in this
Agreement, standard provisioning intervals shall not apply to ULL provided under
this subsection 11.7.3.
11.7.4 If Covad orders a ULL type and the distance requested on such
ULL exceeds the transmission characteristics in applicable technical references,
as specified below, distance extensions may be required and additional rates and
charges shall apply as set forth in Exhibit A or applicable Tariffs.
Loop Type Technical Reference/Limitation
ISDN Bellcore TA-NWT-000393
HDSL 2W T1E1 Technical Report Number 28
HDSL 4W T1E1 Technical Report Number 28
ADSL 2W ANSI T1.413 1995 Specification
11.7.5 BA will exercise all reasonable efforts to ensure that the
service intervals that apply to ULLs and unbundled Ports are comparable to the
(i) repair intervals that apply to the bundled dial tone line service, and (ii)
installation intervals that apply to other BA-coordinated services, except as
provided in Section 27. Although BA will make commercially reasonable efforts to
ensure that ULLs and unbundled ports meet specified or agreed-upon technical
standards, BA makes no warranty that the ULLs or unbundled Ports supplied by BA
hereunder will be compatible with the services Covad may offer to its Customers
if they are used in a manner not contemplated by the Parties.
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11.8 Availability of Other Network Elements on an Unbundled Basis
11.8.1 BA shall, upon request of Covad and to the extent required by
Applicable Law, provide to Covad nondiscriminatory access to its Network
Elements on an unbundled basis for the provision of Covad's Telecommunications
Service. Any request by Covad for access to an BA Network Element that is not
already available shall be treated as a Network Element Bona Fide Request. Covad
shall provide BA access to its Network Elements as mutually agreed by the
Parties or as required by Applicable Laws.
11.8.2 A Network Element obtained by one Party from the other Party
under this subsection 11.8 may be used in combination with the facilities of the
requesting Party only to provide a Telecommunications Service, including
obtaining billing and collection, transmission, and routing of the
Telecommunications Service.
11.8.3 Notwithstanding anything to the contrary in this subsection
11.8, a Party shall not be required to provide a proprietary Network Element to
the other Party under this subsection 11.8 except as required by the Commission
or FCC.
11.8.4 BA will, on a semi-annual basis, notify Covad of the
availability of new unbundled Network Elements.
11.9 Provisioning of Unbundled Local Loops
The following coordination procedures shall apply for conversions of
"live" Telephone Exchange Services to ULLs. These and other mutually agreed-upon
procedures shall apply reciprocally for the "live" cutover of Customers from BA
to Covad and from Covad to BA.
11.9.1 Upon request by Covad, BA will apply the following
coordination procedures to conversions of live Telephone Exchange Services to
ULLs. Coordinated cutover charges will apply to any such arrangement. If Covad
elects not to request coordinated cutover, BA will process Covad's request in
the normal course and subject to the normal installation intervals.
11.9.2 Covad shall request ULLs from BA by delivering to BA a valid
electronic transmittal service order (when available) or another mutually
agreed-upon type of service order such as a Loop/NID Time and Material form.
Such service order shall be provided in accordance with industry format and
specifications or such format and specifications as may be agreed to by the
Parties. Within forty-eight (48) hours of BA's receipt of such valid service
order, BA shall provide Covad the firm order commitment date according to the
Performance Interval Dates set forth in Schedule 27 by which the ULLs covered by
such service order will be installed.
11.9.3 On each ULL order in a Wire Center, Covad and BA will agree
on a cutover time at least forty eight (48) hours before that cutover time. The
cutover time will be defined as a 15-30 minute window within which both the
Covad and BA personnel will make telephone contact to complete the cutover.
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11.9.4 Within the appointed 15-30 minute cutover time, the BA person
will call the Covad person designated to coordinate cutover work.
11.9.5 If Covad requires a change in scheduling, it must contact BA
to issue a supplement to the original order. The negotiations process to
determine the date and time of cutover will then be reinitiated as usual.
11.9.6 If the Covad person is not ready within the appointed
interval and if Covad had not called to reschedule the work at least two (2)
hours prior to the start of the interval, Covad shall be liable for the
non-recurring charge for the unbundled elements scheduled for the missed
appointment. In addition, non-recurring charges for the rescheduled appointment
will apply.
11.9.7 If BA is not available or not ready at any time during the
appointed 15-30 minute interval, Covad and BA will reschedule and BA will waive
the non-recurring charge for the unbundled elements originally scheduled for
that interval, whenever those unbundled elements are actually cut over pursuant
to an agreed-upon rescheduling.
11.9.8 The standard time expected from disconnection of a live
Telephone Exchange Service to the connection of the unbundled element to the
Covad Collocation Arrangement is fifteen (15) minutes per voice grade circuit
for all orders consisting of twenty (20) ULLs or less. Orders involving more
than twenty (20) ULLs will require a negotiated interval.
11.9.9 If unusual or unexpected circumstances prolong or extend the
time required to accomplish the coordinated cutover, the Party responsible for
such circumstances is responsible for the reasonable labor charges of the other
Party. Delays caused by the Customer are the responsibility of Covad.
11.9.10 If Covad has ordered INP as part of an ULL installation, BA
will coordinate implementation of INP with the ULL installation. BA's provision
of unbundled elements shall in all cases be subject to the availability of
suitable facilities, to the extent permitted by Section 251 of the Act.
11.9.11 If Covad requests or approves a BA technician to perform
services on the network side of the Rate Demarcation Point beyond normal
installation of the ULLs covered by the service order, BA may charge Covad for
any additional and reasonable labor charges to perform such services. BA may
also charge Covad its normal overtime rates for services Covad requests to be
performed outside of BA's normal business hours (M-F, 9 am to 5 pm, E.S.T.).
11.10 Maintenance of Unbundled Local Loops
BA has the obligation to maintain and repair unbundled Network Elements
provided to Covad on a nondiscriminatory basis and at parity with the
maintenance and repair services it provides to itself and other carriers. If (i)
Covad reports to BA a Customer trouble, (ii) Covad
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requests a dispatch, (iii) BA dispatches a technician, and (iv) such trouble was
not caused by BA facilities or equipment in whole or in part, then Covad shall
pay BA a charge set forth in Exhibit A for time associated with said dispatch.
In addition, this charge also applies when the Customer contact as designated by
Covad is not available at the appointed time. Covad accepts responsibility for
initial trouble isolation and providing BA with appropriate dispatch information
based on its test results. If, as the result of Covad instructions, BA is
erroneously requested to dispatch within a BA Central Office or to a POT Bay
("dispatch in"), BA may levy on Covad an appropriate charge. If, as the result
of Covad instructions, BA is erroneously requested to dispatch outside a BA
Central Office or to a POT Bay ("dispatch out"), BA may levy on Covad an
appropriate charge. BA agrees to respond to Covad trouble reports on a
non-discriminatory basis consistent with the manner in which it provides service
to its own retail customers or to any other similarly situated
Telecommunications Carrier. However, if BA imposes any charge on Covad under
this subsection 11.8 and the same trouble recurs and the cause in both instances
is determined to be in BA's facilities, then BA shall refund to Covad all
charges applicable to that trouble that were erroneously levied on and paid by
Covad to BA plus interest at the rate applicable to refunds of overpayments
pursuant to BA's Tariffs.
11.11 Other Terms and Conditions Including Rates and Charges
11.11.1 ULLs and other Network Elements will be offered on the terms and
conditions, including rates and charges, specified herein and on such other
terms as stated in applicable Tariffs, as amended from time to time, that are
not inconsistent with the terms and conditions set forth herein.
11.11.2 In the event that the Commission has not adopted permanent rates
for services, ULLs, and other Network Elements consistent with the requirements
of the FCC regulations, BA shall charge the non-recurring and monthly recurring
rates for ULLs and other Network Elements set forth in Exhibit A as interim
rates until such time as the Department adopts permanent rates consistent with
the requirements of the FCC Regulations. Such permanent rates shall be applied
in the manner described in Exhibit A and subsection 20.1.2 below.
11.11.3 Monthly ULL Charges.
11.11.3.1 "Current Monthly Rates" for ULLs are set forth in Exhibit
A.
11.11.3.2 Nothing in this Agreement shall be construed to imply that
Covad agrees that the Current Monthly Rate referenced in Section 11.11.3.1 is a
reasonable or appropriate charge for ULLs.
12.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
12.1 Availability of Retail Rates for Resale
Each Party shall make available its Telecommunications Services for resale
at the retail rates set forth in its Tariffs to the other Party in accordance
with Section 251(b)(1) of the Act. In
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addition, BA and Covad shall each allow the resale by the other of all
Telecommunications Services that are offered primarily or entirely to other
Telecommunications Carriers (e.g., Switched and special Exchange Access
Services) at the rates already applicable to such services. BA shall also allow
the resale by Covad of such other non-Telecommunications Services as BA, in its
sole discretion, determines to provide for resale under terms and conditions to
be agreed to by the Parties.
12.2 Availability of Wholesale Rates for Resale
BA shall make available to Covad for resale all Telecommunications
Services that BA provides at retail to Customers that are not Telecommunications
Carriers at the retail prices set forth in BA's Tariffs less the wholesale
discount set forth in Exhibit A in accordance with Section 251(c)(4) of the Act.
Such services shall be provided in accordance with the terms of the applicable
retail services Tariff(s), including, without limitation, user or user group
restrictions, as the case may be, subject to the requirement that such
restrictions shall in all cases comply with the requirements of Section 251 of
the Act and the FCC Regulations regarding restrictions on resale. The Parties
may also agree to negotiate term and/or volume discounts for resold services.
12.3 Availability of Support Services and Branding for Resale
BA shall make available to Covad the various support services for resale
described in Schedule 12.3 hereto in accordance with the terms set forth
therein. In addition, to the extent required by Applicable Law, upon request by
Covad and at prices, terms and conditions to be negotiated by Covad and BA, BA
shall provide BA Retail Telecommunications Services (as defined in Schedule
12.3) that are identified by Covad's trade name, or that are not identified by
trade name, trademark or service mark.
12.4 Additional Terms Governing Resale and Use of BA Services
12.4.1 Covad shall comply with the provisions of this Agreement
(including, but not limited to, all applicable BA Tariffs) regarding resale or
use of BA services. In addition, Covad shall undertake in good faith to ensure
that its Customers comply with the provisions of BA's Tariffs applicable to
their use of BA's Telecommunications Services.
12.4.2 Without in any way limiting subsection 12.4.1, Covad shall
not resell (a) residential service to business or other nonresidential Customers
of Covad, (b) Lifeline or other means-tested service offerings, or grandfathered
service offerings, to persons not eligible to subscribe to such service
offerings from BA, or (c) any other BA service in violation of any user or user
group restriction that may be contained in the BA Tariff applicable to such
service to the extent such restriction is not prohibited by Applicable Laws. In
addition, Covad shall be subject to the same limitations that BA's own retail
Customers may be subject to with respect to any Telecommunications Service that
BA may, in its discretion and to the extent not prohibited by Applicable Law,
discontinue offering.
12.4.3 BA shall not be obligated to offer to Covad at a wholesale
discount
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Telecommunications Services that BA offers at a special promotional rate if such
promotions are for a limited duration of ninety (90) days or less.
12.4.4 Upon request by BA, Covad shall provide to BA adequate
assurance of payment of charges due to BA in connection with Covad's purchase of
BA services for resale. Assurance of payment of charges may be requested by BA:
if Covad (a) in BA's reasonable judgment, at the Effective Date or at any time
thereafter, is unable to show itself to be creditworthy; (b) in BA's reasonable
judgment, at the Effective Date or at any time thereafter, is not creditworthy;
or, (c) fails to timely pay a bill rendered to Covad by BA. Unless otherwise
agreed by the Parties, the assurance of payment shall be in the form of a cash
deposit and shall be in an amount equal to the charges for BA services that
Covad may reasonably be expected to incur during a period of two (2) months. BA
may at any time use the deposit or other assurance of payment to pay amounts due
from Covad.
12.4.5 Covad shall not be eligible to participate in any BA plan or
program under which BA end user retail Customers may obtain products or
merchandise, or services which are not Bell Atlantic Retail Telecommunications
Services, in return for trying, agreeing to purchase, purchasing, or using Bell
Atlantic Retail Telecommunications Services.
12.4.6 BA may impose additional restrictions on Covad's resale of
BA's retail Telecommunications Services to the extent permitted by Applicable
Laws.
13.0 COLLOCATION -- SECTION 251(c)(6)
13.1 BA shall offer to Covad Physical or Virtual Collocation of equipment
necessary for Interconnection (pursuant to Section 4.0) or for access to
unbundled Network Elements (pursuant to Section 11.0), pursuant to the terms and
conditions in this Section and BA's approved Tariffs on file with the FCC and
the Commission, except that BA may offer only Virtual Collocation if BA
demonstrates to the Commission that Physical Collocation as described in this
Agreement is not practical for technical reasons or because of space
limitations, as provided in Section 251(c)(6) of the Act. BA shall provide
Collocation solely for the purpose of Interconnection with facilities or
services of BA or access to unbundled Network Elements of BA, except as
otherwise mutually agreed to in writing by the Parties or as required by the FCC
or the Commission, subject to applicable federal and state Tariffs and license
agreements.
13.2 BA shall offer, upon request by Covad and to the extent technically
feasible, Physical Collocation arrangements where the dedicated space may be a
minimum of approximately twenty-five (25) square feet, at the appropriate cost.
In the event there is no existing Tariff for this arrangement, the Parties shall
expeditiously and in good faith negotiate interim terms for this type of
physical Collocation. Such arrangements will be made pursuant to applicable
Tariff(s) when such Tariff(s) are approved.
13.3 BA will provide Covad with Physical Collocation as specified in
Sections 13.1 and 13.2 above; provided however, that upon written request by
Covad, Bell Atlantic will not enclose
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by a cage or other means Covad's equipment that is placed within the secured and
physically separated area set aside by Bell Atlantic within a Central Office for
the purposes of Collocation set forth in 13.1 above and pursuant to any
applicable BA Collocation Tariff(s). In the event that there is no existing
Tariff for this entire arrangement, the Parties shall expeditiously and in good
faith negotiate interim terms for this type of physical Collocation. This entire
arrangement will be made pursuant to applicable Tariff(s) when such Tariff(s)
are approved.
13.4 Collocation shall be made available to Covad on BA Premises as
required by Applicable Law and in a manner that is at parity to the priorities
that BA provides to persons who are permitted to collocate, including BA's
Affiliates that are required to collocate. Pursuant to applicable Tariff, or to
Schedule 13.4 until such time as an approved Tariff is effective, BA will
provide Covad with shared cage Collocation, in which Covad can collocate
equipment in another collocating entity's physical Collocation arrangement. Upon
request by Covad for shared cage Collocation, the Parties will negotiate
expeditiously and in good faith to resolve any operational, provisioning and
billing issues that are not covered by an applicable Tariff or Schedule 13.4.
Notwithstanding any other provision of this Agreement, BA will provide Covad
with alternative Collocation arrangements (including "cage-less" physical
Collocation) to the extent that such arrangements are required by Applicable
Law, and may consider other alternative arrangements proposed by Covad. BA shall
provide Collocation at additional locations for placement of equipment necessary
for Interconnection or for access to unbundled Network Elementsto the extent
required by Applicable Law.
13.5 In comport with Applicable Law, Covad reserves the right to have
Covad's dedicated (but not common) Collocation space constructed by a third
party sub-contractor in accordance with BA engineering specifications utilizing
a BA-approved sub-contractor. Request by Covad for approval of additional
sub-contractors will bot be unreasonably withheld.
13.6 Covad may collocate Digital Subscriber Line Access Multiplexers
("DSLAM"s) in its collocated space, subject to the requirements of this Section.
Covad may install any equipment allowed by Law, including Remote Switching
Modules ("RSM"s) and DSLAMs in its Collocation space unless and until the FCC,
the Commission, or a court of competent jurisdiction determines that incumbent
LECs need not permit Collocation of such equipment, in which event BA must allow
Covad a reasonable transition period for removing, replacing or modifying such
equipment, or for otherwise negotiating a mutually satisfactory alternative
arrangement with BA. Covad agrees that any such equipment must comply with
National Equipment Building System ("NEBS") Level III. Covad agrees that such
RSM or DSLAM equipment as may be collocated at BA premises will not be used to
provide switching functionality unless such use is specifically approved by the
Commission.
BA will permit Covad to install, maintain, repair and use ATM
cross-connect equipment in BA Premises where Covad has established a physical
Collocation arrangement, provided that such equipment will be used to support
pre-defined point-to-point Private Virtual Connections ("PVC"s) between the
Premises-collocated equipment and other points off BA's network. The ATM
cross-connect equipment shall be used exclusively for aggregating and
transporting traffic and will not under any circumstances be used for dynamic
routing or switching
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of traffic. BA shall have the right at its own expense to audit Covad's use of
such collocated equipment, and if it finds that Covad is using the equipment for
switching of Local Traffic or other uses prohibited hereunder, BA may either
invoke the dispute resolution provisions of this Agreement, or notify Covad in
writing and Covad shall then remove such equipment from BA's Premises.
13.7 Covad agrees to offer to BA Collocation of equipment for purposes of
Interconnection (pursuant to Section 4.0) on a non-discriminatory basis and at
comparable rates, terms and conditions as Covad may provide to other third
parties. Covad shall provide such Collocation subject to applicable Tariffs.
13.8 In the course of implementation of Collocation project, BA shall:
(a) identify the Collocation project manager assigned to the project;
(b) develop a written comprehensive "critical tasks" timeline detailing
the work (and relative sequence thereof) that is to be performed by each Party
or jointly by both Parties; and
(c) provide Covad with the relevant engineering requirements.
13.9 The Collocating Party shall purchase Cross Connection to services or
facilities as described in applicable Tariffs or this Agreement. Transport
facilities may be leased from BA under terms and conditions set forth in this
Agreement or applicable Tariffs.
13.10 Except in the event that Covad changes its Application for
Collocation requirements after they have been accepted by BA and such changes
would, in the reasonable judgement of BA, cause a construction or other delay
which would affect the delivery of collocated space, or in the event of "Special
Circumstances" detailed by BA for Covad, and subject to the circumstances
contemplated by Section 29.3 of this Agreement, the collocated space shall be
constructed, made ready, and delivered by BA to Covad within the interval
specified in the applicable Tariff following the date of receipt by BA of
Covad's Application for Collocation and the applicable BA Tariff fee(s).
Covad and BA also agree that a three (3) week extension will apply when
"Special Circumstances" are identified at the time of a "space walk-through" or
later in the Collocation process, provided that BA notifies Covad within two (2)
business days of the discovery of such "Special Circumstances". For the purposes
of this Section 13.0, the term "Special Circumstances" shall mean special,
unusual, or unanticipated conditions or circumstances arising out of or required
by Covad's Application for Collocation (excluding changes made by Covad to such
Application after such Application has been accepted by BA) which could, in the
reasonable judgement of BA, cause a construction or other delay in the delivery
of collocated space, including, by way of illustration and without limitation,
major construction obstacles, asbestos abatement procedures or uncustomary
modifications to the Collocation premises.
In those instances where Covad changes its requirements which will affect
the delivery of
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collocated space, or where otherwise extraordinary circumstances exist, the
interval for construction and delivery of the collocated space shall be extended
to reflect those changes upon mutual agreement of the Parties.
13.11 Collocation shall occur under the terms of each Party's applicable
and available Tariffs, subject to the provisons of this Section 13, and pursuant
to Applicable Law.
13.12 Cage-to-Cage Interconnection
13.12.1 Cage-to-Cage Interconnection provides for the dedicated
connection between a Covad Collocation arrangement established pursuant to
applicable Tariffs and/or license agreements at a BA Premises and the
Collocation arrangement of a third party carrier that maintains a Collocation
arrangement at the same premises, so long as the collocated equipment of both
Collocation arrangements is used for Interconnection with BA or access to BA's
unbundled Network Elements. Covad shall purchase Cage-to-Cage Interconnection
using Collocation Cross Connections to services and facilities as described in
applicable Tariffs.
13.12.2 The carrier that requests the Collocation Cross Connections
shall be the customer of record for both ends of the service in terms of
ordering, provisioning, maintenance, and billing. Alternative arrangements may
be utilized if agreed upon by all three parties. Rates and charges for
Collocation Cross Connections are stated in Exhibit A.
SECTION 251(b) PROVISIONS
14.0 NUMBER PORTABILITY -- SECTION 251(b)(2)
14.1 Scope
14.1.1 The Parties shall provide Local Telephone Number Portability
("LTNP") on a reciprocal basis to each other to the extent technically feasible,
and in accordance with rules and regulations as from time to time prescribed by
the FCC and/or the Commission.
14.1.2 Until Permanent Number Portability is implemented by the
industry pursuant to regulations issued by the FCC and/or the Commission, the
Parties agree to reciprocally provide Interim Number Portability to each other
at the prices listed in Exhibit A. Such agreed-upon prices for INP are not
intended to reflect either Party's views on the cost recovery mechanisms being
considered by the FCC in its current proceeding on number portability issues.
14.1.3 Upon the agreement of the Parties or issuance of applicable
FCC and/or Commission order(s) or regulations mandating the adoption of a
Permanent Number Portability ("PNP") arrangement, BA and Covad will commence
migration from INP to the agreed-upon or mandated PNP arrangement as quickly as
practically possible while minimizing interruption or degradation of service to
their respective Customers. Once PNP is implemented, either Party may
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withdraw, at any time and at its sole discretion, its INP offerings, subject to
advance notice to the other Party and coordination to allow the seamless and
transparent conversion of INP Customer numbers to PNP. Upon implementation of
PNP pursuant to FCC or Commission regulation, both Parties agree to conform and
provide such PNP. To the extent PNP rates or cost recovery mechanisms are not
established by the applicable FCC or Commission order or regulation mandating
the adoption of PNP, the Parties will negotiate in good faith the charges or
cost recovery mechanism for PNP service at such time as a PNP arrangement is
adopted by the Parties.
14.1.4 Under either an INP or PNP arrangement, Covad and BA will
implement a process to coordinate LTNP cutovers with ULL conversions (as
described in Section 11 of this Agreement).
14.2 Procedures for Providing INP Through Remote Call Forwarding
Covad and BA will provide INP through Remote Call Forwarding as follows:
14.2.1 A Customer of one Party ("Party A") elects to become a
Customer of the other Party ("Party B"). The Customer elects to utilize the
original telephone number(s) corresponding to the Telephone Exchange Service(s)
it previously received from Party A, in conjunction with the Telephone Exchange
Service(s) it will now receive from Party B. Upon receipt of a service order
from Party B requesting assignment of the number(s) to Party B, Party A will
implement an arrangement whereby all calls to the original telephone number(s)
will be forwarded to a new telephone number(s) designated by Party B, only
within the same Exchange Area as the original telephone number(s). Party A will
route the forwarded traffic to Party B over the appropriate traffic exchange
trunk groups.
14.2.2 Party B will become the customer of record for the original
Party A telephone number(s) subject to the INP arrangements. Upon the execution
of an appropriate billing services agreement or such other mutually agreed-upon
arrangement between the Parties, Party A shall use its reasonable efforts to
consolidate into as few billing statements as possible collect, calling card,
and third-number billed calls associated with the number(s), with sub-account
detail by retained number.
14.2.3 Party A will update its Line Information Database ("LIDB")
listings for retained numbers, and load calling card information associated with
those forwarded numbers as directed by Party B. In addition, Party A will update
the retained numbers in the LIDB with the screening options provided by Party B
on a per order basis. Party B shall determine which of the screening options
offered by Party A should apply to the Party B Customer account.
14.2.4 Party B will outpulse the telephone number to which the call
has been forwarded to the 911 Tandem Office. Party B will also provide the 911
database with both the forwarded number and the directory number, as well as the
appropriate address information of the Customer.
14.2.5 Party A shall be permitted to cancel INP arrangements and
reassign the
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telephone number(s) upon (i) receipt of notification from Party B or a third
party that is authorized to act on behalf of the Customer or (ii) authorization
from the Customer itself. The Parties agree to work cooperatively to develop
procedures or adopt industry standards or practices concerning the initiation
and termination of INP service in a multi-carrier environment.
14.2.6 The INP service offered herein shall not initially apply to
NXX Codes 555, 915, 950 (as applicable), or 976, or for Feature Group A or coin
telephone service. Upon request of either Party, provision of INP to these
services will be mutually negotiated between the parties and provided to the
extent feasible under negotiated rates, terms and conditions. INP shall not
apply for any arrangement that would render the forwarded call Toll Traffic.
14.2.7 The ordering of INP arrangements and the exchange of
screening information shall be made in accordance with industry-accepted (e.g.
OBF developed) format and specifications to the extent they have been
implemented by the Parties.
14.3 Other Interim Number Portability Options
14.3.1 Procedures for Providing INP Through Direct Inward Dial
Trunks (Flex-DID). Either Party may also request INP through Direct Inward Dial
Trunks pursuant to any applicable Tariffs.
14.3.2 Procedures for Providing INP Through Route Indexing. Upon
mutual agreement, BA will deploy a Route Index arrangement which combines direct
trunks, provisioned between BA's and Covad's End Offices, with Trunk Side
routing translations and full functionality for those CLASS services deployed in
the specific BA switch. Under this arrangement, inbound calls to a ported number
will be pointed at a route index that sends the call to a dedicated trunk group,
built as a direct final, for the sole purpose of facilitating completion of
calls to a ported bumber. BA will coordinate with Covad to provide this solution
in a mutually agreeable an administratively manageable manner (e.g. NXX level)
so as to minimize switch resource utilization for both Parties.
14.4 Procedures for Providing LTNP Through Full NXX Code Migration
Where either Party has activated an entire NXX for a single Customer, or
activated at least eighty percent (80%) of an NXX for a single Customer, with
the remaining numbers in that NXX either reserved for future use by that
Customer or otherwise unused, if such Customer chooses to receive Telephone
Exchange 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 be accomplished with appropriate coordination
between the Parties and subject to appropriate industry lead-times for movements
of NXXs from one switch to another. Neither Party shall charge the other in
connection with this coordinated transfer.
14.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers
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The Parties agree in principle that, under the INP arrangements described
in subsections 14.2 and 14.3 above, terminating compensation on calls to INP'ed
numbers should be received by each Customer's chosen LEC as if each call to the
Customer had been originally addressed by the caller to a telephone number
bearing an NPA-NXX directly assigned to the Customer's chosen LEC. In order to
accomplish this objective where INP is employed, the Parties shall utilize the
process set forth in this subsection 14.5 whereby terminating compensation on
calls subject to INP will be passed from the Party (the "Performing Party")
which performs the INP to the other Party (the "Receiving Party") for whose
Customer the INP is provided.
14.5.1 The Parties shall individually and collectively make best
efforts to track and quantify INP traffic between their networks based on the
CPN of each call by identifying CPNs which are INP'ed numbers. The Receiving
Party shall charge the Performing Party for each minute of INP traffic at the
INP Traffic Rate specified in subsection 14.5.3 in lieu of any other
compensation charges for terminating such traffic, except as provided in
subsection 14.5.2.
14.5.2 By the Interconnection Activation Date in each LATA, the
Parties shall jointly estimate for the prospective six months, based on historic
data of all traffic in the LATA, the percentages of such traffic that, if dialed
to telephone numbers bearing NPA-NXXs directly assigned to a Receiving Party (as
opposed to the INP'ed number), would have been subject to (i) Reciprocal
Compensation ("Recip Traffic"), (ii) appropriate intrastate FGD charges ("Intra
Traffic"), (iii) interstate FGD charges ("Inter Traffic"), or (iv) handling as
Transit Traffic. On the date which is six (6) months after the Interconnection
Activation Date, and thereafter on each succeeding six month anniversary of such
Interconnection Activation Date, the Parties shall establish new INP traffic
percentages to be applied in the prospective six (6) month period, based on the
Performing Party's choice of actual INP traffic percentages from the preceding
six (6) month period or historic data of all traffic in the LATA.
14.5.3 The INP Traffic Rate shall be equal to the sum of:
(Recip Traffic percentage times the Reciprocal
Compensation Rate set forth in Exhibit A)
plus
(Intra Traffic percentage times Receiving Party's
effective intrastate FGD rates)
plus
(Inter Traffic percentage times Receiving Party's
effective interstate FGD rates).
The Receiving Party shall compensate the Performing Party for its billing
and collection of charges for the intrastate and interstate FGD access services
provided by the Receiving Party to a third party through the greater of (i) the
difference between the intrastate and interstate FGD rates of the Receiving
Party and the Performing Party, or (ii) three percent (3%) of the Performing
Party's intrastate and interstate FGD revenues for INP'ed numbers. Under no
circumstances shall the Performing Party, in performing the billing and
collections service on behalf of the Receiving Party, be obligated to pass
through more than ninety seven percent (97%) of its FGD access charge to the
Receiving Party in connection with any given INP'ed call.
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14.6 Recovery of INP Costs Pursuant to FCC Order and Rulemaking
Notwithstanding anything to the contrary contained in this Section 14, in
light of the FCC's First Report and Order and Further Notice of Proposed
Rulemaking, adopted June 27, 1996, in CC Docket 95-116 (the "Order"), the
Parties stipulate and agree as follows:
14.6.1 The rates listed in Exhibit A for the provision of INP are
appropriate amounts that each Party providing INP service should recover for the
provision of those INP functionalities in BA's operating territory on an interim
basis until the Commission mandates an alternative cost recovery mechanism for
the provision of INP. For the INP functions it provides, each Party should be
allowed to recover these amounts in a manner consistent with any final FCC
and/or Commission order on INP cost recovery (such as a state-wide fund
contributed to by all telecommunications carriers).
14.6.2 The Parties agree that neither Party waives its rights to
advocate its views that are consistent with this subsection 14.6 on the
appropriate INP cost recovery mechanism, or to present such views before any
relevant regulatory body or other agency as they relate to FCC or Commission
actions on INP cost recovery.
15.0 DIALING PARITY -- SECTION 251(b)(3)
BA and Covad shall each provide the other with nondiscriminatory access to
such services and information as are necessary to allow the other Party to
implement dialing parity for Telephone Exchange Service, operator services,
directory assistance, and directory listing information with no unreasonable
dialing delays, as required under Section 251(b)(3) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
16.1 Each Party ("Licensor") shall provide the other Party ("Licensee")
within a reasonable time period access to the poles, ducts, rights-of-way and
conduits it owns or controls, to the extent permitted by Law and as required by
Section 224 of the Act or any FCC or Commission order or practice, on terms,
conditions and prices comparable to those offered to any other entity purusant
to each Party's applicable standard agreements with such entities.
17.0 DATABASES AND SIGNALING
17.1 Each Party shall provide the other Party with access to databases,
including LIDB and toll-free service access codes (i.e. 800/888), and associated
signaling necessary for call routing and completion of Covad's traffic through
the provision of SS7 Common Channel Signaling (CCIS) under its applicable
tariffs. Alternatively, either Party may secure CCS Interconnection from a
commercial SS7 hub provider, and in that case the other Party will permit the
purchasing Party to access the same databases as would have been accessible if
the purchasing
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party had connected directly to the other Party's CCIS network.
17.2 The Parties will provide CCIS Signaling to each other, where and as
available, in conjunction with all Local Traffic, Toll Traffic, Meet Point
Billing Traffic, and Transit Traffic. The Parties will cooperate on the exchange
of TCAP messages to facilitate interoperability of CCIS-based features between
their respective networks, including all CLASS features and functions, to the
extent each Party offers such features and functions to its Customers. All CCIS
Signaling parameters will be provided upon request (where available), including
called party number, calling party number, originating line information, calling
party category, and charge number. All privacy indicators will be honored. The
Parties will follow all Ordering and Billing Forum-adopted standards pertaining
to CIC/OZZ codes. Where CCIS Signaling is not available, in-band multi-frequency
(MF) wink start signaling will be provided. Any such MF arrangement will require
a separate local trunk circuit between the Parties' respective switches in those
instances where the Parties have established End Office to End Office high usage
trunk groups. In such an arrangement, each Party will outpulse the full
ten-digit telephone number of the called party to the other Party.
17.3 Each Party shall provide trunk groups, where available and upon
reasonable request, that are configured utilizing the B8ZS ESF protocol for 64
kbps clear channel transmission to allow for ISDN interoperability between the
Parties' respective networks.
17.4 The following publications describe the practices, procedures and
specifications generally utilized by BA for signaling purposes and is listed
herein to assist the Parties in meeting their respective Interconnection
responsibilities related to Signaling:
(a) Bellcore Generic Requirements, GR-905-CORE, Issue 1, March,
1995, and subsequent issues and amendments; and
(b) Bell Atlantic Supplement Common Channel Signaling Network
Interface Specification (BA-905).
17.5 Each Party shall charge the other Party mutual and reciprocal rates
for any usage-based charges for CCIS Signaling, 800/888 database access, LIDB
access, and access to other necessary databases, as follows: BA shall charge
Covad in accordance with Exhibit A hereto and applicable Tariffs; Covad shall
charge BA rates equal to the rates BA charges Covad, unless Covad's Tariffs for
CCIS signaling provide for lower generally available rates, in which case Covad
shall charge BA such lower rates; except to the extent a Party uses a third
party vendor for the provision of CCIS Signaling, in which case such charges
shall apply only to the third party vendor.
18.0 COORDINATED SERVICE ARRANGEMENTS
18.1 Intercept and Referral Announcements
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When a Customer changes its service provider from BA to Covad, or from
Covad to BA, and does not retain its original telephone number, the Party
formerly providing service to such Customer shall provide a referral
announcement ("Referral Announcement") on the abandoned telephone number which
provides details on the Customer's new number or provide other appropriate
information to the extent known. Referral Announcements shall be provided
reciprocally, free of charge to either the other Party or the Customer to the
extent the providing Party does not charge its own customers for such service,
for a period of not less than four (4) months after the date the Customer
changes its telephone number in the case of business Customers and not less than
sixty (60) days after the date the Customer changes its telephone number in the
case of residential Customers. However, if either Party provides Referral
Announcements for different periods than the above respective periods when its
Customers change their telephone numbers, such Party shall provide the same
level of service to Customers of the other Party.
18.2 Coordinated Repair Calls
Covad and BA will employ the following procedures for handling misdirected
repair calls:
18.2.1 Covad and BA will educate their respective Customers as to
the correct telephone numbers to call in order to access their respective repair
bureaus.
18.2.2 To the extent Party A is identifiable as the correct provider
of service to Customers that make misdirected repair calls to Party B, Party B
will immediately refer the Customers to the telephone number provided by Party
A, or to an information source that can provide the telephone number of Party A,
in a courteous manner and at no charge. In responding to misdirected repair
calls, neither Party shall make disparaging remarks about the other Party, its
services, rates, or service quality.
18.2.3 Covad and BA will provide their respective repair contact
numbers to one another on a reciprocal basis.
18.3 Customer Authorization
18.3.1 Without in any way limiting either Party's obligations under
subsection 28.1, each Party shall comply with Applicable Laws with regard to
Customer selection of a primary Telephone Exchange Service provider. Until the
Commission and/or FCC adopts regulations and/or orders applicable to Customer
selection of a primary Telephone Exchange Service provider, each Party shall
adhere to the rules and procedures set forth in Section 64.1100 of the FCC
Rules, 47 CFR ss. 64.1100, in effect on the Effective Date hereof when ordering,
terminating, or otherwise changing Telephone Exchange Service on behalf of the
other Party's or another carrier's Customers.
18.3.2 In the event either Party requests that the other Party
install, provide, change, or terminate a Customer's Telecommunications Service
(including, but not limited to, a Customer's selection of a primary Telephone
Exchange Service Provider) and (a) fails to provide
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documentary evidence of the Customer's primary Telephone Exchange Service
Provider selection upon request, or (b) without having obtained authorization
from the Customer for such installation, provision, selection, change or
termination in accordance with Applicable Laws (or as provided in subsection
18.3.1 above), the requesting Party shall be liable to the other Party for all
charges that would be applicable to the Customer for the initial change in the
Customer's Telecommunications Service and any charges for restoring the
Customer's Telecommunications Service to its Customer-authorized condition,
including to the appropriate primary Telephone Exchange Service provider.
18.3.3 Without in any way limiting Covad's obligations under
subsection 28.1, Covad shall comply with Applicable Laws with regard to Customer
Proprietary Network Information, including, but not limited to, 47 U.S.C. ss.
222. Covad shall not access (including, but not limited to, through BA OSS
Services and BA Pre-OSS Services), use, or disclose Customer Proprietary Network
Information made available to Covad by BA pursuant to this Agreement unless
Covad has obtained the appropriate Customer authorization for such access, use
and/or disclosure required by Applicable Laws. By accessing, using or disclosing
Customer Proprietary Network Information, Covad represents and warrants that it
has obtained authorization for such action from the applicable Customer in the
manner required by Applicable Laws and this Agreement. Covad shall, upon request
by BA, provide proof of such authorization (including a copy of any written
authorization).
18.3.4 BA shall have the right to monitor and/or audit Covad's
access to and use and/or disclosure of Customer Proprietary Network Information
that is made available by BA to Covad pursuant to this Agreement to ascertain
whether Covad is complying with the requirements of Applicable Laws and this
Agreement with regard to such access, use, and/or disclosure. To the extent
permitted by Applicable Laws, the foregoing right shall include, but not be
limited to, the right to electronically monitor Covad's access to and use of
Customer Proprietary Network Information that is made available by BA to Covad
pursuant to this Agreement.
19.0 DIRECTORY SERVICES ARRANGEMENTS
19.1 Directory Listings and Directory Distributions
In this subsection 19.1, references to a Covad Customer's "primary
listing" shall mean such Customer's primary name, address, and telephone number,
which number falls within the NXX codes directly assigned to Covad or is
retained by Covad on the Customer's behalf pursuant to LTNP arrangements with BA
or any other carrier within the geographic area covered in the relevant BA
directory. BA will, upon request, provide the following directory services to
Covad in accordance with the terms set forth herein.
19.1.1 BA will include the Covad Customer's primary listing in its
"White Pages" directory (residence and business listings) and "Yellow Pages"
directory (business listings) that cover the address of the Customer. Listings
of Covad's Customers will be interfiled with listings of BA's Customers and the
Customers of other LECs included in the BA directories. Covad will
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pay BA a non-recurring charge as set forth in Exhibit A for providing such
service for each Covad Customer's primary listing. Covad will also pay BA's
Tariffed charges, as the case may be, for additional and foreign white page
listings and other white pages services for Covad's Customers. BA will not
require a minimum number of listings per order.
19.1.2 BA will also include the Covad Customer's primary listing in
BA's directory assistance database on the same basis that BA's own Customers are
included, as well as in any electronic directories in which BA's Customers are
ordinarily included, for no charge other than the charges identified in
subsection 19.1.1.
19.1.3 BA will distribute to Covad Customers copies of their primary
white pages and yellow pages directories at the same time and on the same basis
that BA distributes primary directories to its own Customers. BA will also
deliver a reasonable number of such directories to Covad. These distributions
will be made for no additional charge. Covad and its Customers may request
additional directories from BA's Directory Fulfillment Centers, which Centers
will provide such additional directories for the same charges applicable to
comparable requests by BA Customers.
19.1.4 Upon request by Covad, BA will provide Covad with a directory
list of relevant NXX codes, the close dates, publishing data, and call guide
close dates on the same basis as such information is provided to BA's own
business offices.
19.1.5 Covad shall provide BA with daily listing information on all
new Covad Customers in the format required by BA or a mutually-agreed upon
industry standard format. The information shall include the Customer's name,
address, telephone number, the delivery address and number of directories to be
delivered, and, in the case of a business listing, the primary business heading
under which the business Customer desires to be placed, and any other
information necessary for the publication and delivery of directories. Covad
will also provide BA with daily listing information showing Customers that have
disconnected or terminated their service with Covad. BA will provide Covad with
confirmation of listing order activity within forty eight (48) hours.
19.1.6 BA will accord Covad's directory listing information the same
level of confidentiality which BA accords its own directory listing information,
and BA shall ensure that access to Covad's directory listing information will be
used solely for the purpose of providing directory services; provided, however,
that BA may use or license information contained in its directory listings for
direct marketing purposes so long as the Covad Customers are not separately
identified as such; and provided further that Covad may identify those of its
Customers that request that their names not be sold for direct marketing
purposes, and BA will honor such requests to the same extent as it does for its
own Customers.
19.1.7 Both Parties shall use their best efforts to ensure the
accurate listing of Covad Customer listings. BA will also provide Covad, upon
request, a copy of the BA listings standards and specifications manual. In
addition, BA will provide Covad with a listing of Yellow Pages headings and
directory close schedules on an ongoing basis.
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19.1.8 Covad will adhere to all practices, standards, and ethical
requirements of BA with regard to listings, and, by providing BA with listing
information, warrants to BA that Covad has the right to place such listings on
behalf of its Customers. Covad agrees that it will undertake commercially
practicable and reasonable steps to attempt to ensure that any business or
person to be listed is authorized and has the right (i) to provide the product
or service offered, and (ii) to use any personal or corporate name, trade name
or language used in the listing. In addition, Covad agrees to release, defend,
hold harmless and indemnify BA from and against any and all claims, losses,
damages, suits, or other actions, or any liability whatsoever, suffered, made,
instituted, or asserted by any person arising out of BA's listing of the listing
information provided by Covad hereunder.
19.1.9 BA's liability to Covad in the event of a BA error in or
omission of a listing shall not exceed the amount of charges actually paid by
Covad for such listing. In addition, Covad agrees to take, with respect to its
own Customers, all reasonable steps to ensure that its and BA's liability to
Covad's Customers in the event of a BA error in or omission of a listing shall
be subject to the same limitations that BA's liability to its own Customers are
subject to.
19.1.10 Within thirty (30) business days of the Effective Date, BA
agrees to meet with Covad and, if appropriate, arrange a meeting with a BA
authorized Yellow Pages agent, to address issues regarding Covad customer
referrals or questions pertaining to Yellow Pages listings.
19.2 Yellow Pages Maintenance
The Parties agree to work cooperatively to ensure that Yellow Page
advertisements purchased by Customers that switch their service to Covad
(including Customers utilizing Covad-assigned telephone numbers and Covad
Customers utilizing LTNP) are maintained without interruption. BA will offer
Yellow Pages services to Covad Customers on the same basis as they are offered
to BA Customers.
19.3 Service Information Pages
BA will include all Covad NXX codes associated with the areas to which
each directory pertains, along with BA's own NXX codes, in any lists of such
codes which are contained in the general reference portions of the directories.
Covad's NXX codes shall appear in such lists in the same manner as BA's NXX
information. In addition, BA will include in the "Customer Guide" or comparable
section of the applicable white pages directories listings provided by Covad for
Covad's installation, repair and customer service and other essential service
oriented information, as agreed by the Parties, including appropriate
identifying logo. Such listings shall appear in the manner agreed to by the
Parties. BA shall not charge Covad for inclusion of this essential
service-oriented information, but reserves the right to impose charges on other
information Covad may elect to submit and BA may elect to accept for inclusion
in BA's white pages directories. BA will provide Covad with the annual directory
close dates and reasonable notice of any changes in said dates.
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19.4 Directory Assistance (DA); Call Completion
19.4.1 Upon request, BA will provide Covad with directory
assistance, connect request, and/or IntraLATA call completion services in
accordance with the terms set forth in the Directory Assistance and Call
Completion Services Agreement appended hereto as Exhibit C.
19.4.2 Also upon request, BA will provide to Covad operator services
trunk groups, utilizing Feature Group D type signaling, with ANI, minus OZZ,
when interconnecting to the BA operator services network.
19.4.3 BA agrees to utilize existing trunking arrangements, at no
facility charge to Covad, to transfer Covad's operator calls handled by a BA
operator to the appropriate 911/E911 PSAP. The ALI information passed to the
PSAP shall be consistent with the information that BA passes on its own
operator-handled calls.
19.4.4 At the request of Covad, BA will provide Covad with "Direct
Access" service to the same directory assistance ("DA") database that is used by
BA to provide directory assistance to BA Customers. Direct Access will enable
Covad's operator bureau, if Covad elects to provide its own DA services, to
obtain direct electronic access to the DA database for the purpose of providing
intraLATA directory assistance to Covad Customers. Covad may search and read DA
database information at the per query rates specified in Exhibit A. BA will
furnish ports for connection and termination of Covad facilities to the DA
database system. The type of ports and associated charges will be based on the
type of access configuration required by Covad for termination of its
facilities. The number of ports provided at the database will be based on
Covad's annual forecast of "Busy Hour" queries. At the request of Covad, BA will
also accept electronic transmission of Covad Customer DA information for
inclusion in the DA database.
20.0 COORDINATION WITH TARIFF TERMS
20.1 The Parties acknowledge that some of the services, facilities, and
arrangements described herein are or will be available under and subject to the
terms of the federal or state Tariffs of the other Party applicable to such
services, facilities, and arrangements. To the extent a Tariff of the providing
Party applies to any service, facility, and arrangement described herein, the
Parties agree as follows:
20.1.1 Those rates and charges set forth in Exhibit A for the
services, facilities, and arrangements described herein that reference or are
identical to a rate contained in an existing Tariff of the providing Party,
shall conform with those contained in the then-prevailing Tariff and vary in
accordance with any changes that may be made to the Tariff rates and charges
subsequent to the Effective Date.
20.1.2 As applied to wholesale discount rates, unbundled Network
Elements or call transport and/or termination of Local Traffic purchased for the
provision of Telephone
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Exchange Service or Exchange Access, the rates and charges set forth in Exhibit
A shall apply until such time as they are replaced by new rates as may be
approved by the Commission from time to time pursuant to the FCC Regulations,
subject to a stay or other order issued by any court of competent jurisdiction.
At such time(s) as such new rates have been approved by the Commission, the
Parties shall amend Exhibit A to reflect the new approved rates.
20.2 Except with respect to the rates and charges described in subsection
20.1 above, all other terms contained in an applicable Tariff of the providing
Party shall apply in connection with its provision of the particular service,
facility, and arrangement purusant to that Tariff. . The availability of
particular services pursuant to this Agreement that are similar to those
provided for in any applicable Tariff shall not affect the ability of a Party to
obtain those services pursuant to this Agreement.
21.0 INSURANCE
21.1 Covad shall maintain, during the term of this Agreement, all
insurance and/or bonds required by law and necessary to satisfy its obligations
under this Agreement, including, without limitation, its obligations set forth
in Section 25 hereof. At a minimum and without limiting the foregoing covenant,
Covad shall maintain the following insurance:
(a) Commercial General Liability Insurance, on an occurrence basis,
including but not limited to, premises-operations, broad form property
damage, products/completed operations, contractual liability, independent
contractors, and personal injury, with limits of at least $2,000,000
combined single limit for each occurrence.
(b) Automobile Liability, Comprehensive Form, with limits of at
least $500,000 combined single limit for each occurrence.
(c) Excess Liability, in the umbrella form, with limits of at least
$10,000,000 combined single limit for each occurrence.
(d) Worker's Compensation Insurance as required by law and
Employer's Liability Insurance with limits of not less than $1,000,000 per
occurrence.
21.2 Covad shall name BA as an additional insured on the foregoing
insurance.
21.3 Covad shall, within two (2) weeks of the date hereof and on a
semi-annual basis thereafter, furnish certificates or other adequate proof of
the foregoing insurance. The certificates or other proof of the foregoing
insurance shall be sent to: Bell Atlantic, Insurance Administration Group, 1320
N. Court House Road, 4th Floor, Arlington, Virginia, 22201. In addition, Covad
shall require its agents, representatives, or contractors, if any, that may
enter upon the premises of BA or BA's affiliated companies to maintain similar
and appropriate insurance and, if requested, to furnish BA certificates or other
adequate proof of such insurance. Certificates furnished by Covad or Covad's
agents, representatives, or contractors shall contain a clause stating: "Bell
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Atlantic - Virginia, Inc. shall be notified in writing at least thirty (30) days
prior to cancellation of, or any material change in, the insurance."
22.0 TERM AND TERMINATION.
22.1 This Agreement shall be effective as of the date first above written
and continue in effect until March 15, 2001, and thereafter the Agreement shall
continue in force and effect unless and until terminated as provided herein.
Upon the expiration of the initial term, either Party may terminate this
Agreement by providing written notice of termination to the other Party, such
written notice to be provided at least ninety (90) days in advance of the date
of termination. In the event of such termination, those service arrangements
made available under this Agreement and existing at the time of termination
shall continue without interruption under (a) a new agreement executed by the
Parties, (b) standard Interconnection terms and conditions approved and made
generally effective by the Commission, (c) Tariff terms and conditions generally
available to CLECs, or (d) if none of the above is available, under the terms of
this Agreement on a month-to-month basis until such time as (a), (b), or (c)
becomes available.
22.2 For service arrangements made available under this Agreement and
existing at the time of termination, if the standard Interconnection terms and
conditions or Tariff terms and conditions result in the non-terminating Party
physically rearranging facilities or incurring programming expense, the
non-terminating Party shall be entitled to recover such rearrangement or
programming costs from the terminating Party.
22.3 If either Party defaults in the payment of any amount due hereunder,
or if either Party violates any other provision of this Agreement, and such
default or violation shall continue for sixty (60) days after written notice
thereof, the other Party may terminate this Agreement and services hereunder by
written notice; provided the other Party has provided the defaulting Party and
the appropriate federal and/or state regulatory bodies with written notice at
least twenty five (25) days' prior to terminating service. Notice shall be
posted by overnight mail, return receipt requested. If the defaulting Party
cures the default or violation within the twenty-five (25) day period, the other
Party will not terminate service or this Agreement but shall be entitled to
recover all costs, if any, incurred by it in connection with the default or
violation, including, without limitation, costs incurred to prepare for the
termination of service.
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NEITHER PARTY MAKES 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.
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24.0 CANCELLATION CHARGES
Except as provided in this Agreement or as otherwise provided in any
applicable Tariff, no cancellation charges shall apply.
25.0 INDEMNIFICATION
25.1 Each Party agrees to release, indemnify, defend and hold harmless the
other Party from and against all losses, claims, demands, damages, expenses,
suits or other actions, or any liability whatsoever, including, but not limited
to, costs and attorneys' fees (collectively, a "Loss"), (a) whether suffered,
made, instituted, or asserted by any other party or person, relating to personal
injury to or death of any person, or for loss, damage to, or destruction of real
and/or personal property, whether or not owned by others, arising from
transactions or activities relating to this Agreement and to the extent
proximately caused by the negligent or willful acts or omissions of the
indemnifying Party, regardless of the form of action, or (b) suffered, made,
instituted, or asserted by its own customer(s) against the other Party arising
out of the other Party's provision of services to the indemnifying Party under
this Agreement. Notwithstanding the foregoing indemnification, nothing in this
Section 25.0 shall affect or limit any claims, remedies, or other actions the
indemnifying Party may have against the indemnified Party under this Agreement,
any other contract, or any applicable Tariff(s), regulations or laws for the
indemnified Party's provision of said services.
25.2 The indemnification provided herein shall be conditioned upon:
(a) The indemnified Party shall promptly notify the indemnifying
Party of any action, claim, lawsuit or demand taken against the
indemnified Party relating to the indemnification.
(b) The indemnifying Party shall have sole authority to defend any
such action, claim, lawsuit or demand including the selection of legal
counsel, and the indemnified Party may engage separate legal counsel only
at its sole cost and expense. The Indemnifying Party shall keep the
Indemnified Party reasonably and timely apprised of the status of the
action, claim, demand or lawsuit. The Indemnifying Party will not be
liable under this Section for settlements or compromises by the
Indemnified party of any action, claim, demand or lawsuit unless the
Indemnifying Party has approved the settlement or compromise in advance or
unless the defense of the action, claim, demand or lawsuit has been
tendered to the Indemnifying Party in writing and the Indemnifying Party
has failed to promptly undertake the defense.
(c) In no event shall the indemnifying Party settle or consent to
any judgment pertaining to any such action without the prior written
consent of the indemnified Party, which consent shall not be unreasonably
withheld. However, in the event the settlement or judgment requires a
contribution from or affects the rights of the Indemnified Party, the
Indemnified Party shall have the right to refuse such settlement or
judgment and, at its
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own cost and expense, take over the defense against such Loss, provided
that in such event the indemnifying Party shall not be responsible for,
nor shall it be obligated to indemnify the indemnified Party against, the
Loss for any amount in excess of such refused settlement or judgment.
(d) The indemnified Party shall, in all cases, assert any and all
provisions in its Tariffs that limit liability to third parties as a bar
to any recovery by the third party claimant in excess of such limitation
of liability.
(e) The indemnified Party shall offer the indemnifying Party all
reasonable cooperation and assistance in the defense of any such action,
demand or lawsuit.
26.0 LIMITATION OF LIABILITY
26.1 The liability of either Party to the other Party for damages arising
out of failure to comply with a direction to install, restore or terminate
facilities; or out of failures, mistakes, omissions, interruptions, delays,
errors, or defects (collectively, "Errors") occurring in the course of
furnishing any services, arrangements, or facilities hereunder shall be
determined in accordance with the terms of the applicable tariff(s) of the
providing Party. In the event no tariff(s) apply, the providing Party's
liability for such Errors shall not exceed an amount equal to the pro rata
monthly charge for the period in which such failures, mistakes, omissions,
interruptions, delays, errors or defects occur. Except as otherwise provided in
Section 25, Section 26.2, Section 27 and Section 29.4, recovery of said amount
shall be the injured Party's sole and exclusive remedy against the providing
Party for Errors, provided however that Errors shall not include grossly
negligent or willful conduct.
26.2 Except as provided in Section 25, Section 27, and Section 29.4, or in
instances of gross negligence or willful misconduct, neither Party shall be
liable to the other in connection with the provision or use of services offered
under this Agreement for indirect, incidental, consequential, reliance or
special damages, including (without limitation) damages for lost profits
(collectively, "Consequential Damages"), regardless of the form of action,
whether in contract, warranty, strict liability, or tort, including, without
limitation, negligence of any kind, 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 Section 25.
26.3 The Parties agree that neither Party shall be liable to the customers
of the other Party in connection with its provision of services to the other
Party under this Agreement. Nothing in this Agreement shall be deemed to create
a third party beneficiary relationship between the Party providing the service
and the customers of the Party purchasing the service. In the event of a dispute
involving both Parties with a customer of one Party, both Parties shall assert
the applicability of any limitations on liability to customers that may be
contained in either Party's applicable Tariff(s).
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27.0 PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
27.1 Performance Standards
BA shall provide the Interconnection and unbundled Network Elements
contemplated hereunder in accordance with the performance standards set forth in
Section 251(c) of the Act and the FCC Regulations, including without limitation
the rules set forth in 47 Code of Federal Regulations ss.ss. 51.305(a)(3),
51.311(a), and 51.311(b).
27.2 Performance Monitoring Reports, Standards and Remedies
Schedule 27.2, "Performance Monitoring Reports, Standards and Remedies,"
is made a part of this Agreement and incorporated herein in its entirety.
27.3 Performance Measurement, Standard and Remedy for
xDSL-Compatible ULLs
Upon request by either Party, at such time as BA provides to Covad, as a
generally available offering, pursuant to Section 11.2, 2-Wire ADSL-Compatible
ULLs, 2-Wire HDSL-Compatible ULLs, and 4-Wire HDSL-Compatible ULLs, the Parties
will negotiate in good faith for insertion into Schedule 27.2 a missed
installation appointment performance measurement, standard and remedy, for such
ULLs. Unless otherwise agreed by the Parties, such measurement, standard and
remedy, will be a consolidated measurement, standard and remedy, that covers
missed installation appointments for all three types of ULLs.
28.0 COMPLIANCE WITH LAWS; REGULATORY APPROVAL
28.1 Each Party shall promptly notify the other Party in writing of any
governmental action that suspends, cancels, withdraws, limits, or otherwise
materially affects its ability to perform its obligations hereunder.
28.2 The Parties understand and agree that this Agreement will be filed
with the Commission and may thereafter be filed with the FCC as an integral part
of BA's application pursuant to Section 271(d) of the Act. The Parties covenant
and agree that this Agreement is satisfactory to them as an agreement under
Section 251 of the Act. 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. The Parties, however, reserve the right to seek
regulatory relief and otherwise seek redress from each other regarding
performance and implementation of this Agreement, including, without limitation,
the conformance of this Agreement to the FCC Regulations as provided in
subsection 28.3 below.
28.3 The Parties recognize that the FCC has issued and may continue to
issue the FCC Regulations implementing Sections 251, 252, and 271 and other
Sections of the Act that affect certain terms contained in this Agreement. In
the event that any one or more of the provisions
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contained herein is inconsistent with any applicable rule contained in such FCC
Regulations or as may be enacted by the Commission, or imposed by a court in the
exercise of its lawful jurisdiction, or which, in BA's reasonable determination,
affects BA's application pursuant to Section 271(d) of the Act, the Parties
agree to negotiate in good faith the revisions necessary to eliminate the
inconsistency or amend the application-affecting provision(s). Such revisions
need not be considered material, and need not require further Commission
approval beyond any Commission approval required under Section 252(e) of the
Act. If, however, any such change in Applicable Law or amendment to this
Agreement would necessitate a change that would affect the interconnectin of
network facilities or Covad's ability to use any BA service or Network Element,
Covad shall have a reasonable time to modify or re-deploy its network or
operations to reflect such change.
28.4 In the event any Applicable Law other than the FCC Regulations
requires modification of any material term(s) contained in this Agreement,
either Party may require a renegotiation of the term(s) that require direct
modification as well as of any term(s) that are reasonably affected thereby. If
neither Party requests a renegotiation or if an Applicable Law requires
modification of any non-material term(s), the remaining provisions of this
Agreement shall remain in full force and effect. For purposes of this subsection
28.4 and without limitation of any other modifications required by Applicable
Laws, the Parties agree that any modification required by Applicable Laws (i) to
the two-tier Reciprocal Call Termination compensation structure for the
transport and termination of Local Traffic described in Exhibit A, or (ii) that
affects either Party's receipt of Reciprocal Compensation for the transport and
termination of Local Traffic, shall be deemed to be a modification of a material
term that requires immediate good faith renegotiation between the Parties.
28.5 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA"). Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with CALEA. Each Party shall indemnify and hold the other Party harmless from
any and all penalties imposed upon the other Party for such non-compliance 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.
29.0 MISCELLANEOUS
29.1 Authorization
29.1.1 Bell Atlantic-Virginia, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Virginia and has full power and authority to execute and deliver this Agreement
and to perform the obligations hereunder.
29.1.2 DIECA Communications, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Virginia, and has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder.
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29.2 Independent Contractor
Each Party shall perform services hereunder as an independent contractor
and nothing herein shall be construed as creating any other relationship between
the Parties. 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 their
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.
29.3 Force Majeure
Neither Party shall be responsible for delays or failures in performance
resulting from acts or occurrences beyond the reasonable control of such Party,
regardless of whether such delays or failures in performance were foreseen or
foreseeable as of the date of this Agreement, including, without limitation:
adverse weather conditions, fire, explosion, power failure, acts of God, war,
revolution, civil commotion, or acts of public enemies; any law, order,
regulation, ordinance or requirement of any government or legal body; or labor
unrest, including, without limitation, strikes, slowdowns, picketing or
boycotts; or delays caused by the other Party or by other service or equipment
vendors; or any other circumstances beyond the Party's reasonable control. In
such event, the affected Party 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 interferences (and the other Party shall likewise be excused from
performance of its obligations on a day-to-day basis to the extent such Party's
obligations relate to the performance so interfered with). The affected Party
shall use its best efforts to avoid or remove the cause(s) of non-performance
and both Parties shall proceed to perform with dispatch once the cause(s) are
removed or cease.
29.4 Confidentiality
29.4.1 All information, including but not limited to specification,
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 to the other
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, 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, and by written notice given to the
receiving Party within ten (10) days after delivery, to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary Information"), shall
remain the property of the disclosing Party.
29.4.2 Each Party shall keep all of the other Party's Proprietary
Information confidential in the same manner it holds its own Proprietary
Information confidential (which in all cases shall be no less than reasonable)
and shall use the other Party's Proprietary Information only
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for performing the covenants contained in this Agreement. 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.
All Proprietary Information (i) shall be held in confidence by each receiving
Party; (ii) shall be disclosed on a confidential basis to only those persons who
have a need for it in connectin with the provision of services required to
fulfill this Agreement and shall be used only for such purposes; and (iii) may
be used for other purposes only upon such terms and conditions as may be
mutually agreed to in advance of use in writing by the Parties.
29.4.3 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this 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 it confidential as evidenced by
written records prepared prior to delivery by the disclosing Party; or
(b) is or becomes publicly known through no wrongful act of the
receiving Party; or
(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; or
(d) is independently developed by an employee, agent, or contractor
of the receiving Party that is not involved in any manner with the
provision of services pursuant to this Agreement and does not have any
direct or indirect access to the Proprietary Information; or
(e) is approved for release by written authorization of the
disclosing Party; or
(f) is required to be made public by the receiving Party pursuant to
applicable law or regulation, provided that the receiving Party shall give
sufficient notice of the requirement to the disclosing Party to enable the
disclosing Party to seek protective orders. In such event, the receiving
Party shall provide the disclosing Party with written notice of such
requirement, to the extent permitted by Law, as soon as possible and,
where possible, prior to such disclosure. The disclosing Party may then
seek appropriate protective relief from all or part of such requirement,
and the receiving Party shall use reasonable efforts to cooperate with the
disclosing Party in attempting to obtain any protective relief which such
disclosing Party chooses to obtain.
29.4.4 Upon request by the disclosing Party, the receiving Party
shall return all tangible copies of Proprietary Information, whether written,
graphic, electromagnetic or otherwise.
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29.4.5 Notwithstanding any other provision of this Agreement, the
provisions of this subsection 29.4 shall apply to all Proprietary Information
furnished by either Party to the other in furtherance of the purpose of this
Agreement, even if furnished before the Effective Date.
29.4.6 Except as otherwise expressly provided elsewhere in this
Agreement, no license is hereby granted under any patent, trademark, or
copyright, nor is any license implied, solely by virtue of the disclosure of any
Proprietary Information.
29.5 Choice of Law
The construction, interpretation and performance of this Agreement shall
be governed by and construed in accordance with the laws of the state in which
this Agreement is to be performed, except for its conflicts of laws provisions.
In addition, insofar as and to the extent federal law may apply, federal law
will control.
29.6 Taxes
29.6.1 In General. With respect to any purchase hereunder of
services, facilities or arrangements, if any federal, state or local tax, fee,
surcharge or other tax-like charge (a "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 properly bill the purchasing Party for such
Tax, (ii) the purchasing Party shall timely remit such Tax to the providing
Party and (iii) the providing Party shall timely remit such collected Tax to the
applicable taxing authority.
29.6.2 Taxes Imposed on the Providing Party With respect to any
purchase hereunder of services, facilities or arrangements, if any federal,
state or local Tax is imposed by Applicable Law on the receipts of the providing
Party, which Law permits the providing Party to exclude certain receipts
received from sales for resale to a public utility, distributor, telephone
company, local exchange carrier, telecommunications company or other
communications company ("Telecommunications Company"), such exclusion being
based solely on the fact that the purchasing Party is also subject to a tax
based upon receipts ("Receipts Tax"), then the purchasing Party (i) shall
provide the providing Party with notice in writing in accordance with subsection
29.6.6 of this Agreement of its intent to pay the Receipts Tax and (ii) shall
timely pay the Receipts Tax to the applicable tax authority.
29.6.3 Taxes Imposed on Customers With respect to any purchase
hereunder of services, facilities or arrangements that are resold to a third
party, if any federal, state or local Tax is imposed by Applicable Law on the
subscriber, end-user, Customer or ultimate consumer ("Subscriber") in connection
with any such purchase, which a Telecommunications Company is required to impose
and/or collect from a Subscriber, then the purchasing Party (i) shall be
required to impose and/or collect such Tax from the Subscriber and (ii) shall
timely remit such Tax to the applicable taxing authority.
29.6.4 Liability for Uncollected Tax, Interest and Penalty If the
providing Party has not received an exemption certificate and fails to collect
any Tax as required by subsection
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29.6.1, 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 interest assessed thereon and any
penalty assessed with respect to such uncollected Tax by such authority. If the
providing Party properly bills the purchasing Party for any Tax but the
purchasing Party fails to remit such Tax to the providing Party as required by
subsection 29.6.1, then, as between the providing Party and the purchasing
Party, the purchasing Party shall be liable for such uncollected Tax and any
interest assessed thereon, as well as any penalty assessed with respect to such
uncollected Tax by the applicable taxing authority. If the providing Party does
not collect any Tax as required by subsection 29.6.1 because the purchasing
Party has provided such providing Party with an exemption certificate that is
later found to be inadequate by a taxing authority, then, as between the
providing Party and the purchasing Party, the purchasing Party shall be liable
for such uncollected Tax and any interest assessed thereon, as well as any
penalty assessed with respect to such uncollected Tax by the applicable taxing
authority. If the purchasing Party fails to pay the Receipts Tax as required by
subsection 29.6.2, then, as between the providing Party and the purchasing
Party, (x) the providing Party shall be liable for any Tax imposed on its
receipts and (y) the purchasing Party shall be liable for any interest assessed
thereon and any penalty assessed upon the providing Party with respect to such
Tax by such authority. If the purchasing Party fails to impose and/or collect
any Tax from Subscribers as required by subsection 29.6.3, then, as between the
providing Party and the purchasing Party, the purchasing Party shall remain
liable for such uncollected Tax and any interest assessed thereon, as well as
any penalty assessed with respect to such uncollected Tax by the applicable
taxing authority. With respect to any Tax that the purchasing Party has agreed
to pay, or is required to impose on and/or collect from Subscribers, the
purchasing Party agrees to indemnify and hold the providing Party harmless 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 recover the Tax from the
providing Party due to the failure of the purchasing Party to timely pay, or
collect and timely remit, such Tax to such authority. In the event either Party
is audited by a taxing authority, the other Party agrees to cooperate fully with
the Party being audited in order to respond to any audit inquiries in a proper
and timely manner so that the audit and/or any resulting controversy may be
resolved expeditiously.
29.6.5 Tax Exemptions and Exemption Certificates If Applicable Law
clearly exempts a purchase hereunder from a Tax, and if such Law also provides
an exemption procedure, such as an exemption-certificate requirement, then, if
the purchasing Party complies with such procedure, the providing Party shall not
collect such Tax during the effective period of such exemption. Such exemption
shall be effective upon receipt of the exemption certificate or affidavit in
accordance with the terms set forth in subsection 29.6.6. If Applicable Law
clearly exempts a purchase hereunder from a Tax, but does not also provide an
exemption procedure, then the providing Party shall not collect such Tax if the
purchasing Party (i) furnishes the providing Party with a letter signed by an
officer requesting such an exemption and citing the provision in the Law which
clearly allows such exemption and (ii) supplies the providing Party with an
indemnification agreement, reasonably acceptable to the providing Party (e.g.,
an agreement commonly used in the industry), which holds the providing Party
harmless on an after-tax basis with respect to its forbearing to collect such
Tax.
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29.6.6 If any discount or portion of a discount in price provided to
Covad under this Agreement (including, but not limited to, a wholesale discount
provided for in Exhibit A) is based on anticipated Tax savings to BA because it
was anticipated that receipts from sales of BA services that would otherwise be
subject to a Tax on such receipts could be excluded from such Tax under
Applicable Law because the BA services would be sold to Covad for resale, and BA
is, in fact, required by Applicable Law to pay such Tax on receipts from sales
of BA services to Covad, then, as between BA and Covad, Covad shall be liable
for, and shall indemnify and hold harmless BA against (on an after-tax basis),
any such Tax and any interest and/or penalty assessed by the applicable taxing
authority on either Covad or BA with respect to the Tax on BA's receipts.
29.6.7 All notices, affidavits, exemption-certificates or other
communications required or permitted to be given by either Party to the other,
for purposes of this subsection 29.6, shall be made in writing and shall be
delivered in person or sent by certified mail, return receipt requested, or
registered mail, or a courier service providing proof of service, and sent to
the addressees set forth in subsection 29.10 as well as to the following:
To Bell Atlantic: Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, NY 10036
To Covad: Tax Administration
DIECA Communications, Inc.
2330 Central Expressway
Santa Clara, CA 95050-2516
Either Party may from time to time designate another address or other addressees
by giving notice is accordance with the terms of this subsection 29.6. Any
notice or other communication shall be deemed to be given when received.
29.7 Assignment
Neither Party may assign or transfer (whether by operation of Law or
otherwise) this Agreement or any of its rights or obligations hereunder to a
third partywithout the other Party's prior written consent, which consent shall
not be unreasonably withheld or delayed; provided , however, 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 prior written notice to the other Party of such assignment or
transfer, together with a properly executed acceptance of the assigning Party's
obligations and duties hereunder. Any attempted assignment or transfer that is
not permitted shall be void ab initio. All obligations and duties of any Party
shall be binding on all successors in interest and assigns of such Party.
29.8 Billing and Payment; Disputed Amounts
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29.8.1 Except as may otherwise be provided in this Agreement, each
Party shall submit on a monthly basis an itemized statement of charges incurred
by the other Party during the preceding month(s) for services rendered
hereunder. Payment of billed amounts under this Agreement, whether billed on a
monthly basis or as otherwise provided herein, shall be due, in immediately
available U.S. funds, within thirty (30) days of the date of such statement.
29.8.2 Although it is the intent of both Parties to submit timely
and accurate statements of charges, failure by either Party to present
statements to the other Party in a timely manner shall not constitute a breach
or default, or a waiver of the right to payment of the incurred charges, by the
billing Party under this Agreement, and the billed Party shall not be entitled
to dispute the billing Party's statement(s) based on such Party's failure to
submit them in a timely fashion.
29.8.3 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) the Disputed Amount up to the higher of $10,000 or 50% of the
Disputed Amount into an interest bearing escrow account with a third party
escrow agent mutually agreed upon by the Parties. The remaining balance of the
Disputed Amount not placed into escrow shall thereafter be paid, if appropriate,
upon final determination of such dispute.
29.8.4 If the Parties are unable to resolve the issues related to
the Disputed Amounts in the normal course of business within ninety (90) 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.
29.8.5 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 subsection 29.8.4, or if either Party
fails to appoint a designated representative within forty five (45) days, 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.
29.8.6 The Parties agree that all negotiations pursuant to this
subsection 29.8 shall
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remain confidential and shall be treated as compromise and settlement
negotiations for purposes of the Federal Rules of Evidence and state rules of
evidence.
29.8.7 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.
29.9 Dispute Resolution
Any dispute between the Parties regarding the interpretation or
enforcement of this Agreement or any of its terms shall be addressed by good
faith negotiation between the Parties, in the first instance. Should such
negotiations fail to resolve the dispute in a reasonable time, either Party may
initiate an appropriate action in any regulatory or judicial forum of competent
jurisdiction.
29.10 Notices
Except as otherwise provided in this Agreement, notices given by one Party
to the other Party under this Agreement shall be in writing and shall be (a)
delivered personally, (b) delivered by express delivery service, (c) mailed,
certified mail or first class U.S. mail postage prepaid, return receipt
requested, or (d) delivered by telecopy to the following addresses of the
Parties:
To Covad:
DIECA Communications, Inc.
2330 Central Expressway
Santa Clara, CA 95050-2516
Attn: Vice President and General Counsel
Facsimile: (408) 490-4507
with a copy to:
DIECA Communications, Inc.
6849 Old Dominion Drive, Suite 220
McLean, VA 22101
Att: Assistant General Counsel
Facsimile: (703) 734-5474
To BA:
Bell Atlantic
Telecom Industry Services
1095 Avenue of the Americas
40th Floor
New York, NY 10036
Facsimile: (212) 597-2585
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with a copy to:
General Attorney
Bell Atlantic
1320 N. Courthouse Road
8th Floor
Arlington, VA 22201
Facsimile: (703) 974-0744
or to such other address as either Party shall designate by proper notice.
Notices will be deemed given as of the earlier of (i) the date of actual
receipt, (ii) the next business day when notice is sent via express mail or
personal delivery, (iii) three (3) days after mailing in the case of first class
or certified U.S. mail, or (iv) on the date set forth on the confirmation in the
case of telecopy.
29.11 Section 252(i) Obligations
29.11.1 To the extent required under Applicable Law, BA shall make
available without unreasonable delay to Covad any individual interconnection,
service or network element contained in any agreement to which it is a party
that is approved by the Commission pursuant to Section 252 of the Act, upon the
same rates, terms, and conditions as those provided in the agreement.
29.11.2 To the extent the exercise of the foregoing options requires
a rearrangement of facilities by the providing Party, the opting Party shall be
liable for the non-recurring charges associated therewith.
29.11.3 The Party electing to exercise such option shall do so by
delivering written notice to the first Party. Upon receipt of said notice by the
first Party, the Parties shall amend this Agreement to provide the same rates,
terms and conditions to the notifying Party for the remaining term of this
Agreement; provided, however, that the Party exercising its option under this
subsection 29.11 must continue to provide the same services or arrangements to
the first Party as required by this Agreement, subject either to the rates,
terms, and conditions applicable to the first Party in its agreement with the
third party or to the rates, terms, and conditions of this Agreement, whichever
is more favorable to the first Party in its sole determination.
29.12 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.
29.13 No Third Party Beneficiaries; Disclaimer of Agency
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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.
29.14 No License
29.14.1 Except as may be expressly provided herein, nothing in this
Agreement shall be construed as the grant of a license with respect to any
patent, copyright, trademark, trade name, trade secret or any other proprietary
or intellectual property now or hereafter owned, controlled or licensable by
either Party. Neither Party may use any patent, copyrightable materials,
trademark, trade name, trade secret or other intellectual property right of the
other Party except in accordance with the terms of a separate license agreement
between the Parties granting such rights.
29.14.2 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 Party or its customers
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 of any facilities by either Party under this Agreement, alone or in
combination with that of the other Party, constitutes direct, vicarious or
contributory infringement or inducement to infringe, misuse or misappropriation
of any patent, copyright, trademark, trade secret, or any other proprietary or
intellectual property right of any Party or third party. Each Party, however,
shall offer to the other reasonable cooperation and assistance in the defense of
any such claim.
29.14.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES NOT EXIST, ANY
WARRANTY, EXPRESS OR IMPLIED, THAT THE USE BY THE PARTIES OF THE OTHER'S
FACILITIES, ARRANGEMENTS, OR SERVICES PROVIDED UNDER THIS AGREEMENT SHALL NOT
GIVE RISE TO A CLAIM BY ANY THIRD PARTY OF INFRINGEMENT, MISUSE, OR
MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT OF SUCH THIRD PARTY.
29.15 Technology Upgrades
Nothing in this Agreement shall limit BA's ability to upgrade its network
through the incorporation of new equipment, new software or otherwise. BA shall
provide Covad written
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notice at least ninety (90) days prior to the incorporation of any such upgrades
in BA's network that will materially affect Covad's service, and shall exercise
reasonable efforts to provide at least one hundred eighty (180) days notice
where practicable. In addition, BA shall comply with the FCC Network Disclosure
rules, promulgated purusant to Title II of the Act and, in particular, Section
251(c)(5) of the Act, set forth in the FCC Regulations to the extent applicable.
Covad shall be solely responsible for the cost and effort of accommodating such
changes in its own network.
29.16 Survival
The Parties' obligations under this Agreement which by their nature are
intended to continue beyond the termination or expiration of this Agreement,
including but not limited to Section 29.4, shall survive the termination or
expiration of this Agreement.
29.17 Entire Agreement
The terms contained in this Agreement and any Schedules, Exhibits, 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.
29.18 Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
29.19 Modification, Amendment, Supplement, or Waiver
No modification, amendment, supplement to, or waiver of the Agreement or
any of its provisions shall be effective and binding upon the Parties unless it
is made in writing and duly signed by the Parties. A failure or delay of either
Party to enforce any of the provisions hereof, to exercise any option which is
herein provided, or to require performance of any of the provisions hereof shall
in no way be construed to be a waiver of such provisions or options.
29.20 Successors and Assigns
This Agreement shall be binding on and inure to the benefit of the Parties
and their respective legal successors and permitted assigns.
29.21 Publicity and Use of Trademarks or Service Marks
Neither Party nor its subcontractors or agents shall use the other Party's
trademarks,
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service marks, logos or other proprietary trade dress in any advertising, press
releases, publicity matters or other promotional materials without such Party's
prior written consent.
29.22 Integrity of BELL ATLANTIC Network
The Parties acknowledge that BA, at its election, may deploy fiber
throughout its network and that such fiber deployment may inhibit or facilitate
Covad's ability to provide service using certain technologies. Notwithstanding
any other provision of this Agreement, BA shall have the right to deploy,
upgrade, migrate and maintain its network at its discretion pursuant to Section
29.15 of this Agreement.
29.23 Merger Conditions
Nothing in this Agreement shall constitute a waiver by Covad of any rights
it may have under the FCC Order in the Application of Bell Atlantic Corporation,
Transferee, For Consent to Transfer control of Bell Atlantic Corporation and its
Subsidiaries, NSD-L-96-10, Memorandum Opinion and Order (August 14, 1997) ("the
FCC Merger Order"). Any such rights under the FCC Merger Order shall supplement
Covad's rights under this Agreement. Upon Covad's request, Bell Atlantic will
provide Covad with the then current Installment Payment Option outlined in the
FCC Merger Order.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this 7th day of October, 1998.
DIECA COMMUNICATIONS, INC. BELL ATLANTIC - VIRGINIA, INC.
By: By:
------------------------------ -------------------------------
Printed: Dhruv Khanna Printed: Jeffrey A. Masoner
------------------------- --------------------------
Title: Vice President and General Counsel Title: Vice President -
---------------------------------- Interconnection Services
Policy & Planning
----------------------------
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SCHEDULE 1.0
CERTAIN TERMS AS DEFINED IN THE ACT AS OF EFFECTIVE DATE
"Affiliate" means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or the equivalent thereof) of more than ten percent (10%).
"Customer Proprietary Network Information" 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; except that such
term does not include subscriber list information.
"Dialing Parity" means that a person that is not an affiliate of a local
exchange carrier is able to provide Telecommunications Services in such a manner
that Customers have the ability to route automatically, without the use of any
access code, their Telecommunications to the Telecommunications Services
provider of the customer's designation from among two (2) or more
Telecommunications Services providers (including such LEC).
"Exchange Access" means the offering of access to Telephone Exchange
Services or facilities for the purpose of the origination or termination of
Telephone Toll Services.
"Incumbent Local Exchange Carrier" means, with respect to an area, the
Local Exchange Carrier, that (A) on the date of enactment of the
Telecommunications Act, provided Telephone Exchange Service in such area, and
(B)(i) on such date of enactment, was deemed to be a member of the exchange
carrier association pursuant to Section 69.601(b) of the FCC's regulations (47
C.F.R. 69.601(b)), or (ii) is a person or entity that, on or after such date of
enactment, became a successor or assign of a member described in clause (i).
"InterLATA" means Telecommunications between a point located in a local
access and transport area and a point located outside such area.
"Local Access and Transport Area" or "LATA" means a contiguous geographic
area: (a) established before the date of enactment of the Act by a Bell
operating company such that no Exchange Area includes points within more than
one (1) metropolitan statistical area, consolidated metropolitan statistical
area, or State, except as expressly permitted under the AT&T Consent Decree; or
(b) established or modified by a Bell operating company after such date of
enactment and approved by the FCC.
"Local Exchange Carrier" means any person that is engaged in the provision
of Telephone
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Exchange Service or Exchange Access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial mobile service under
Section 332(c) of the Act, except to the extent that the FCC finds that such
service should be included in the definition of such term.
"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 and collection or used in the transmission, routing, or other provision
of a Telecommunications Service.
"Number Portability" means the ability of end 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.
"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.
"Telecommunications Carrier" means any provider of Telecommunications
Services, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Communications
Act).
"Telecommunications Service" 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.
"Telephone Exchange Service" means (a) service within a telephone exchange
or within a connected system of telephone exchanges within the same exchange
area operated to furnish subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the exchange
service charge, or (b) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
"Telephone Toll Service" means telephone service between stations in
different exchange areas for which there is made a separate charge not included
in contracts with subscribers for exchange service.
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SCHEDULE 4.5
INTERCONNECTION POINTS FOR DIFFERENT TYPES OF TRAFFIC
Each Party shall provide the other Party with Interconnection to its
network at the following points for transmission, routing and termination. Each
Party shall make available at its Interconnection Points facilities to route the
traffic it receives to the appropriate final destination. Compensation for such
facilities will be as set forth in Exhibit A or as provided elsewhere herein.
1. For the termination of Local Traffic or Toll Traffic originated by one
Party's Customer and terminated to the other Party's Customer, at the points set
forth in subsections 4.2 and/or 4.3 of the main body of the Agreement.
2. For the termination of Meet Point Billing Traffic from an IXC to:
(a) Covad, at the Covad-IP in LATA in which the Traffic is to
terminate.
(b) BA, at the BA-IP in LATA in which the Traffic is to terminate.
3. For the termination of Transit Traffic from an ITC, wireless carrier,
or other CLEC to:
(a) Covad, at the Covad-IP in which the Traffic is to terminate.
(b) BA, at the BA-IP in LATA in which the Traffic is to terminate.
4. For 911/E911 traffic originated on Covad's network, at the PSAP in
areas where only Basic 911 service is available, or at the BA 911 Tandem Office
serving the area in which the Covad Customer is located, in accordance with
applicable state laws and regulations and PSAP requirements.
5. For Directory Assistance (411 or NPA-555-1212) traffic, at the
applicable BA Wire Center or the BA operator services Tandem Office subtended by
such Wire Center.
6. For Operator Services (call completion) traffic, at the applicable BA
Wire Center or the BA operator services Tandem Office subtended by such Wire
Center.
7. For LSV/VCI traffic, at the terminating Party's Wire Center or operator
services Tandem Office subtended by such Wire Center.
8. For SS7 signaling originated by:
(a) Covad, at mutually agreed-upon Signaling Point of
Interconnection(s) ("SPOI") in the LATA in which the Local or Toll Traffic
originates, over CCSAC links provisioned in accordance with Bellcore GR-905 and
Bell Atlantic Supplement Common Channel
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Signaling Network Interface Specification (BA_905).
(b) BA, at mutually agreed-upon SPOIs in the LATA in which the Local
or Toll Traffic originates, over a CCSAC links provisioned in accordance with
Bellcore GR-905 and BA-905.
Alternatively, either Party may elect to interconnect for SS7 signaling through
a commercial SS7 hub provider.
9. For 800/888 database inquiry traffic, at any BA Signaling Transfer
Point in the LATA in which the originating Covad Wire Center is located, over a
CCSAC link. Alternatively, Covad may elect to interconnect through a commercial
SS7 hub provider.
10. For Line Information Database ("LIDB") inquiry traffic, at any BA
Signaling Transfer Point in the LATA in which the LIDB is located, over a CCSAC
link. Alternatively, Covad may elect to interconnect through a commercial SS7
hub provider.
11. For any other type of traffic, at reasonable points to be agreed upon
by the Parties, based on the network architecture of the terminating Party's
network.
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SCHEDULE 11.3
ACCESS TO NETWORK INTERFACE DEVICE
1. Due to the wide variety of NIDs utilized by BA (based on Customer size
and environmental considerations), Covad may access the Customer's Inside Wire
by any of the following means:
(a) Where an adequate length of Inside Wire is present and
environmental conditions permit, Requesting Carrier may remove the Inside Wire
from BA's NID and connect that wire to Covad's NID;
(b) Enter the Customer access chamber or "side" of "dual chamber"
NID enclosures for the purpose of extending a connecterized or spliced jumper
wire from the Inside Wire through a suitable "punch-out" hole of such NID
enclosures;
(c) Request BA to make other rearrangements to the Inside Wire
terminations or terminal enclosure on a time and materials cost basis to be
charged to the requesting party (i.e., Covad, its agent, the building owner or
the Customer).
2. If Covad accesses the Customer's Inside Wire as described in Paragraph
1(c) above, the Tariffed time and materials charges will be billed to the
requesting party (i.e., Covad, the building owner or the Customer).
3. In no case shall Covad remove or disconnect BA's loop facilities from
BA's NIDs, enclosures, or protectors.
4. In no case shall Covad remove or disconnect ground wires from BA's
NIDs, enclosures, or protectors.
5. In no case shall Covad remove or disconnect NID modules, protectors, or
terminals from BA's NID enclosures.
6. Maintenance and control of premises wiring (Inside Wire) is the
responsibility of the Customer. Any conflicts between service providers for
access to the Customer's Inside Wire must be resolved by the Customer.
7. Due to the wide variety of NID enclosures and outside plant
environments, BA will work with Covad to develop specific procedures to
establish the most effective means of implementing this Schedule 11.3.
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SCHEDULE 11.4
UNBUNDLED SWITCHING ELEMENTS
Local Switching
The unbundled local Switching Elements include line side and trunk side
facilities (e.g. line and trunk side Ports such as analog and ISDN line side
Ports and DS1 trunk side Ports) plus the features, functions, and capabilities
of the switch. It consists of the line-side Port (including connection between a
loop termination and a switch line card, telephone number assignment, basic
intercept, one primary directory listing, presubscription, and access to 911,
operator services, and directory assistance), line and line group features
(including all vertical features and line blocking options that the switch and
its associated deployed switch software is capable of providing and are
currently offered to BA's local exchange customers), usage (including the
connection of lines to lines, lines to trunks, trunks to lines, and trunks to
trunks), and trunk features (including the connection between the trunk
termination and a trunk card).
BA shall offer, as an optional chargeable feature, daily usage tapes.
Covad may request activation or deactivation of features on a per-port basis at
any time, and shall compensate BA for the non-recurring charges associated with
processing the order. Covad may submit a Bona Fide Request for other switch
features and functions that the switch is capable of providing, but which BA
does not currently provide, or for customized routing of traffic other than
operator services and/or directory assistance traffic. BA shall develop and
provide these requested services where technically feasible with the agreement
of Covad to pay the recurring and non-recurring costs of developing, installing,
updating, providing and maintaining these services.
Tandem Switching
The unbundled tandem Switching Element includes trunk-connect facilities,
the basic switching function of connecting trunks to trunks, and the functions
that are centralized in Tandem Switches. Unbundled tandem switching creates a
temporary transmission path between interoffice trunks that are interconnected
at a BA Access Tandem for the purpose of routing a call or calls.
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APPENDIX 3
SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE FOR VIRGINIA
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
================================================================================
LATA in Virginia Milestone Date
- --------------------------------------------------------------------------------
LATA ___ LATA Start Date TBD
-----------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
-----------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
-----------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
-----------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
-----------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
-----------------------------------------------------------
SS7 Certification Achieved; (1) TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements(2)
-----------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
Call-through Testing Completed; TBD
"Interconnection Activation Date"
================================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in Virginia when HARVARDNET has an
effective Tariff for business Telephone Exchange Service in Virginia and a
significant number of Telephone Exchange Service Customer lines in service for
business Telephone Exchange Service Customers in that LATA in Virginia that are
not affiliates or employees
- ----------
(1) SS7 certification scheduling depends on actual schedule availability at time
of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
(2) Intervals for IDLC collocation arrangements for VG ULL capability are 60
days for Virtual Collocation and 120 days for Physical Collocation from the date
the arrangement is applied for.
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of either BA or HARVARDNET, and (ii) residential Telephone Exchange Service
shall be considered "fully operational" in a LATA in Virginia when HARVARDNET
has an effective Tariff for residential Telephone Exchange Service in Virginia
and has a significant number of Telephone Exchange Service Customer lines in
service for residential Telephone Exchange Service Customers in that LATA in
Virginia that are not affiliates or employees of either BA or HARVARDNET.
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APPENDIX 3
SCHEDULE 4.0 Network Interconnection Schedule
LATA HARVARDNET-IP BA-IP Activation Date
TBD TBD TBD TBD
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EXHIBIT B
BONA FIDE REQUEST PROCEDURES
1. The following procedures shall apply to any Bona Fide Request submitted by
Covad to BA for: (a) an Interconnection or access to an unbundled Network
Element not otherwise provided hereunder at the time of such request, (b)
an Interconnection or connection to a Network Element that is different in
quality to that which BA provides to itself at the time of such request,
(c) Collocation at a location other than a BA Central Office, and (d) such
other arrangement, service, or Network Element for which a BFR is required
under the Agreement. Items (a) through (d) above may be referred to
individually as a "BFR Item." The BFR procedures set forth herein do not
apply to those services requested pursuant to Report & Order and Notice of
Proposed Rulemaking 91-141 (rel. October 19, 1992), Paragraph 259 and
Footnote 603 or subsequent orders.
2. A BFR shall be submitted in writing and shall include a technical
description of each requested BFR Item, and a forecast (e.g. volume
requested, locations, dates) for such Item.
3. Covad may cancel a BFR at any time, but shall pay BA's reasonable and
demonstrable costs of processing, implementing the BFR, and/or developing
the BFR Item up to the date of cancellation, and any wind-up costs
resulting therefrom.
4. Within fifteen (15) business days of receipt of the BFR, BA will respond
in one of the following ways:
(a) provide confirmation that the BFR is technically feasible and the
date BA will deliver a price proposal, including a service
description, pricing and an estimated schedule for availability;
(b) request a face-to-face meeting between technical representatives of
both Parties to further explain the request;
(c) inform Covad that BA must do laboratory testing (at Covad's expense)
to determine whether the request is technically feasible;
(d) inform Covad that BA must do field testing (at Covad's expense) to
determine whether the request is technically feasible;
(e) inform Covad that it is necessary for the Parties to undertake a
joint technical/operational field test (at Covad's expense) in order
to determine both technical feasibility and operational cost
impacts; or
(f) provide a written explanation that it is not technically feasible to
comply with the request and/or the BFR Item does not qualify as one
that is required to be
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provided under the Act.
5. Within ten (10) business days of receiving BA's response from Step 4(c),
4(d), or 4(e), Covad shall:
(a) negotiate a mutually agreeable schedule for BA's testing and agree
to pay BA for the testing costs, in the case of Steps 4(c) or (d);
or
(b) negotiate a mutually agreeable schedule for joint
technical/operational field testing, and agree to pay BA the costs,
in the case of Step 4(e).
6. Within ten (10) days of receiving BA's confirmation (from Step 4(a)),
Covad shall:
(a) accept BA's price proposal date and agree to pay BA the cost of
developing the proposal;
(b) negotiate a different date for BA to deliver the price proposal, and
agree to pay BA the cost of developing the proposal; or
(c) abandon the request.
7. Unless the Parties have agreed to another date, BA will deliver the BFR
Item price proposal to Covad in response to Step 5 or Step 6 as soon as
reasonably practicable, but no later than ninety (90) days from the date
BA provided the price proposal date, unless such delivery is technically
unreasonable given the nature of the BFR. The price proposal shall include
a service description of the BFR Item, the costs, including costs
associated with the development of the BFR Item, and an estimated
availability schedule.
8. Covad accepts BA's price proposal or negotiates mutually acceptable
changes.
9. BA makes the BFR Item available in accordance with Step 7.
10. Unless the Parties otherwise agree, all prices shall be consistent with
the pricing principles of the Act and any applicable FCC or Commission
rules, regulations, or orders.
11. If a Party to a BFR believes that the other Party is not requesting, or
negotiating or processing the BFR in good faith, or disputes a
determination, or price or cost quote, or is failing to act in accordance
with Section 251 of the Act, such Party may seek mediation or arbitration
by the Commission pursuant to Section 252 of the Act.
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EXHIBIT C
DIRECTORY ASSISTANCE AND INTRALATA
CALL COMPLETION SERVICES AGREEMENT
THIS AGREEMENT is made, effective this _____ day of _____________ 19___,
by and between Bell Atlantic - __________________, Inc., (hereinafter referred
to as "Bell Atlantic"), a __________________________ corporation, with offices
at _____________________________________, and _______________________________,
hereinafter referred to as "Carrier", a ______________________ corporation with
offices at ______________________________________.
1. SCOPE AND TERM OF AGREEMENT
1.1 Scope This Agreement sets forth the terms and conditions which shall govern
the use of and payment for Directory Assistance (DA) Service and IntraLATA Call
Completion Service (hereinafter collectively referred to as "Services") to be
provided by Bell Atlantic, or its affiliated companies, to Carrier. Carrier
shall subscribe to and pay for Services for Carrier's local exchange customers
in the ___________ LATA(s).
1.2 Term The initial term of this Agreement shall be one (1) year and commence
as of 12:01 a.m. on the date first written above. At the end of this initial
term, or any subsequent renewal term, this Agreement shall automatically renew
for an additional period of one (1) year unless either party provides written
notice to the other of its intent to terminate at least three (3) months prior
to the expiration of the then current term.
2. DESCRIPTION OF SERVICES
2.1 Directory Assistance (DA) Service
a) Directory Assistance Service shall consist of 1) directory transport by
Bell Atlantic from the point of Bell Atlantic's interconnection with Carrier's
trunks to Bell Atlantic's designated DA locations, and 2) the provision of
telephone number listings by Bell Atlantic operators in response to calls from
Carrier's local exchange customers located in the LATA(s) designated in Section
1.1.
b) A maximum of two requests for telephone numbers will be accepted per DA
call. A "DA call" as used in this Agreement shall mean a call answered by or
forwarded to Bell Atlantic, regardless of whether a telephone number is
requested, provided, or available. The listings that will be available to
Carrier's customers are those telephone numbers that are listed in Bell
Atlantic's DA records for the LATA(s) designated in Section 1.1.
2.2 IntraLATA Call Completion Service IntraLATA Call Completion Service
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consists of the live and automated local and toll call completion services
specified in Appendix B, including the completion of collect, card and
bill-to-third party calls; busy line verification; customer requested interrupt;
and other assistance to Carrier's local exchange customers located in the
LATA(s) designated in Section 1.1.
2.3 Branding Branding is a service that permits the Carrier to deliver a
customized announcement to its callers, identifying the Carrier as the customer
service provider. Carrier shall provide the information required by Bell
Atlantic to create this announcement. Branding also requires that the Carrier
maintain dedicated trunking arrangements to the designated Bell Atlantic DA or
operator switch locations.
2.4 End User Billing Bell Atlantic will provide Carrier with unrated EMR records
for use in the billing of Carrier's end users for Services. The rating, billing,
and settlement of end-user charges for the calls are the responsibility of
Carrier.
2.5 Service Methods Bell Atlantic agrees to provide Services in accordance with
Bell Atlantic's service standards and methods. Bell Atlantic will notify Carrier
in writing of any significant policy changes to operator services or directory
assistance standards and methods prior to implementation.
2.6 Customized Service Features and Options Carrier may request custom-designed
service features or optional services to be provided in conjunction with the
Services hereunder. Upon mutual agreement of the parties, such features and
options will be provided pursuant to this Agreement. Bell Atlantic, if
requested, shall provide Carrier with an estimate of the charges for such
custom-designed supplements, changes, or options prior to implementation.
3. COMMENCEMENT AND IMPLEMENTATION OF SERVICE
3.1 Required Information Each party shall make good-faith efforts to carry out
its respective responsibilities in meeting a jointly established schedule for
implementation. All records and other required information specified in Appendix
C, as well as a completed Technical Questionnaire, will be furnished by Carrier
at least ninety (90) days prior to the commencement of Services (i.e., the
Cutover Date described in Section 3.2.) Notices of any changes, additions, or
deletions to such records and information shall be provided promptly in writing
by Carrier to Bell Atlantic. Bell Atlantic will review these change requests and
determine any potential impact on the cutover date. Written confirmation of any
impact will be provided to Carrier.
3.2 Cutover Date The Cutover Date for Service(s) provided under this Agreement
shall be the date on which the Service(s) shall be available to all of Carrier's
local exchange customers in the LATA(s) designated in Section 1.1.
3.3 Service Review Meetings Bell Atlantic will meet and confer with Carrier
during the term of this Agreement to review and discuss the Services provided
under this
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Agreement. The times for meetings will be established by mutual agreement of the
parties.
4. EQUIPMENT AND FACILITIES
4.1 Bell Atlantic will establish and maintain such access equipment and related
facilities as may be necessary to perform the Services under this Agreement,
provided that Carrier furnishes Bell Atlantic the information specified in
Appendix C, and any changes in such information, in a timely and accurate
manner. Any additional services that Carrier seeks during the term of this
Agreement will be subject to mutual agreement and the availability of facilities
and equipment.
4.2 Carrier will provide and maintain such equipment within its premises as is
necessary to permit Bell Atlantic to perform the agreed-upon Services in
accordance with Bell Atlantic standard equipment operation and traffic operation
procedures.
4.3 Carrier Transport and Switched Access Connection
a) Carrier shall, at its expense, arrange for and establish the trunking
and other transport, interface, and signaling arrangements required by Bell
Atlantic to provide Services to Carrier. Separate dedicated trunks for each NPA
or LATA may be required. Any trunks or other transport and access that Carrier
obtains from Bell Atlantic to deliver Carrier's calls to Bell Atlantic shall be
provided pursuant to the applicable tariffs or other contractual arrangements,
and not under this Agreement. Bell Atlantic agrees to coordinate the scheduling
of Services to be provided under this Agreement with the scheduling of any
trunking or related services provisioned by Bell Atlantic under such tariffs or
other contractual arrangements.
b) Carrier shall specify the number of trunks required for Services.
Carrier must provide trunks with operator services signaling directly to the
locations designated by Bell Atlantic. Bell Atlantic shall provide Carrier at
least three (3) months advance notice in the event of any change in a designated
location.
5. PAYMENT FOR SERVICES
5.1 Rates Carrier agrees to subscribe to and pay for the Services and options
selected in Appendix A. Carrier shall pay the rates set forth in Appendix A,
subject to such obligations as Bell Atlantic may have under the
Telecommunications Act of 1996, and the FCC and state regulations and decisions
thereunder, to set cost-based rates for unbundled network elements.
Specifically, when a regulatory body of competent jurisdiction has duly approved
the rates under which Bell Atlantic is required to provide Services to
competitive local exchange carriers (hereinafter referred to as "CLEC rates"),
Bell Atlantic shall charge, and Carrier shall pay, such CLEC rates for the
applicable Services.
5.2 Settlements Carrier shall render payment to Bell Atlantic net thirty (30)
calendar days from the date of delivery of the Services or from the date of
billing for the Services,
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whichever occurs later. Carrier shall pay interest on any amount overdue at the
rate specified for late payments in the Interconnection Agreement between Bell
Atlantic and Carrier.
5.3 Billing Disagreements
a) Carrier may, in good faith, dispute part or all of an invoice provided
by Bell Atlantic. To dispute an invoice, Carrier must provide Bell Atlantic with
a written explanation of the questioned charges for consideration within thirty
(30) days of receipt of the invoice. Bell Atlantic will respond to Carrier's
claim within thirty (30) days of receipt of the explanation.
b) The parties agree to negotiate any dispute in good faith to reach a
satisfactory resolution of the dispute no later than ninety (90) days after
Carrier's receipt of the invoice. Carrier shall have no obligation to pay
interest on a disputed amount while a resolution is being negotiated during this
period. In the event that the dispute is not resolved at the account manager
level within forty five (45) days after receipt of Carrier's claim, the parties
agree to submit the dispute to an Intercompany Review Board for resolution. The
Intercompany Review Board shall consist of two representatives from each party
who are authorized to resolve the dispute on behalf of their respective
companies. The Intercompany Review Board shall conduct a joint conference to
review the parties' respective positions and to resolve the dispute.
c) Upon the resolution of the dispute, an appropriate adjustment of
billing shall be made by Bell Atlantic. Bell Atlantic shall apply any reductions
in the invoiced amount as a credit. Carrier shall promptly pay any amounts the
parties agree are due with interest thereon under Section 5.2 retroactive to the
date of the original invoice. If no resolution is reached within the specified
90-day period, either party may pursue such other remedies and recourse as are
otherwise available under law or this Agreement.
5.4 Taxes The rates specified in this Agreement are exclusive of all taxes,
duties, or similar charges imposed by law. Carrier shall be liable for and shall
reimburse Bell Atlantic for any sales, use, excise, or other taxes applicable to
the Services performed under this Agreement.
5.5 Carrier's Customers Carrier shall be responsible for all contacts and
arrangements with its customers concerning the provision and maintenance, and
the billing and collection, of charges for Services furnished to Carrier's
customers.
6. DEFAULTS AND REMEDIES
6.1 Defaults If Carrier defaults in the payment of any amount due hereunder, or
if Bell Atlantic materially fails to provide Services as agreed hereunder, and
such default or failure shall continue for thirty (30) days after written notice
thereof, the other party may terminate this Agreement with thirty (30) days
written notice.
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6.2 Carrier Remedies In the event that Bell Atlantic, through negligence or
willful misconduct, fails to provide the Services selected and contracted for
under this Agreement, Bell Atlantic shall pay Carrier for Carrier's direct
damages resulting from such failure, up to an amount not to exceed the charges
payable under this Agreement for the Services affected.
6.3 Discontinuance by Carrier In the event that Carrier discontinues using
Services, either in part or in whole, prior to expiration of the then current
term and such discontinuance is not due to Bell Atlantic's material failure to
provide Services, Carrier shall pay Bell Atlantic an amount equal to the average
monthly charges for the six-month period immediately preceding the
discontinuance multiplied by the number of months remaining in the then-current
term. If Services have been provided for a period of less than six months,
Carrier shall pay the charges for the month with the highest usage multiplied by
the number of months remaining in the then-current one year term. If Carrier
terminates this Agreement prior to the Cutover Date, Carrier shall pay Bell
Atlantic the greater of the following: (i) all reasonable and necessary costs
already incurred by Bell Atlantic in preparation for the commencement of
services, or (ii) the sum of fifty thousand dollars ($50,000).
6.4 Other Remedies THE EXTENT OF LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE
LIMITED AS DESCRIBED IN SECTIONS 6.1, 6.2 AND 6.3 ABOVE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY OTHER LOSS, COST, CLAIM, INJURY, LIABILITY, OR
EXPENSE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY INCIDENTAL, SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT,
WHETHER RECOVERY IS SOUGHT IN TORT, CONTRACT, OR OTHERWISE, EVEN IF EITHER PARTY
HAD NOTICE OF SUCH DAMAGES.
7. CONFIDENTIAL INFORMATION
7.1 Confidentiality The parties agree that all confidential and proprietary
information that is marked as specified in Section 7.2 and that is disclosed by
either party to the other party for the purposes of this Agreement, including
rates and terms, shall be treated as confidential unless a) such information was
previously or becomes known to the receiving party free of any obligation to
keep it confidential, b) has been or is subsequently made public by the
disclosing party, or c) is required to be disclosed by law. The receiving party
shall not, except in the performance of the Services under this Agreement or
with the express prior written consent of the other party, disclose or permit
access to any confidential information to any other parties. The parties agree
to advise their respective employees, agents, and representatives to take such
action as may be advisable to preserve and protect the confidentiality of such
information.
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7.2 Marking of Confidential Information All information the disclosing party
considers proprietary or confidential, if in writing or other tangible form,
shall be conspicuously labeled or marked as "Proprietary" and/or "Confidential"
and, if oral, shall be identified as proprietary at the time of disclosure and
promptly confirmed in writing. Either party shall have the right to correct any
inadvertent failure to designate information as proprietary by written
notification within ten (10) days following disclosure.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractors Bell Atlantic and Carrier shall be independent
contractors under this Agreement, and all services under this Agreement shall be
performed by Bell Atlantic as an independent contractor and not as an agent of
Carrier.
8.2 Responsibility for Employees and Agents All persons furnished by Bell
Atlantic shall be considered solely Bell Atlantic's employees or agents, and
Bell Atlantic shall be responsible for compliance with all laws, rules, and
regulations relating to such persons including, but not limited to, hours of
labor, working conditions, workers' compensation, payment of wages, benefits,
unemployment, social security and other payroll taxes. Each party's employees
and agents, while on premises of the other, shall comply with all rules and
regulations, including any applicable security procedures and safeguarding of
confidential data.
9. GENERAL CONDITIONS
9.1 Assignment Neither party may assign or delegate its rights and obligations
under this Agreement without the prior written consent of the other party,
except that either party may assign this Agreement, without such consent, to its
parent, affiliate or subsidiary, provided that the assignee has the resources,
legal authority, and ability to perform all terms of this Agreement. Thirty (30)
days advance notice of such assignment shall be provided to the other party.
9.2 Choice of Law The validity, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware.
9.3 Compliance with Laws Each party shall comply with all applicable federal,
state, county and local laws, ordinances, regulation, rules and codes in the
performance of this Agreement. Neither party shall be liable to the other for
termination of this Agreement or any services to be provided hereunder
necessitated by compliance with any law, rule, regulation or court order of a
duly authorized governmental body.
9.4 Contingency Neither party shall be held responsible or liable to the other
for any delay or failure in performance caused by fires, strikes, embargoes,
requirements imposed by Government regulation, civil or military authorities,
act of God or by the public enemy, or other causes beyond the control of Carrier
or Bell Atlantic. If such a contingency occurs, the party injured by the other's
inability to perform may: a) terminate the affected
<PAGE>
services or part thereof not already rendered; or b) suspend the affected
services or part thereof for the duration of the delaying cause and resume
performance once the delaying causes cease.
9.5 Licenses No licenses, expressed or implied, under any patents, copyrights,
trademarks or other intellectual property rights are granted by Bell Atlantic to
Carrier under this Agreement.
9.6 Notices Except as otherwise specified in this Agreement, any notice required
or permitted under this Agreement shall be in writing and shall be given to the
other party at the address designated below by hand delivery, registered
return-receipt requested mail, or nationally recognized courier service:
For Bell Atlantic:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
For Carrier:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
The above addresses may be changed by giving thirty (30) calendar days prior
written notice as prescribed above. Notice shall be deemed to have been given or
made on the date of delivery if received by hand, or express courier, and three
days after delivery to the U.S. Postal Service, if mailed.
9.7 Publicity Bell Atlantic and Carrier agree not to publish any advertising,
sales promotions, or press releases that promote or otherwise relate to the
services provided under this Agreement and include the other party's name,
logos, trademarks, or service marks, unless it obtains the other party's prior
written consent, except that either party may disclose the fact that Bell
Atlantic provides directory assistance and/or operator services to Carrier
without such prior review or approval.
9.8 Severability If any provision of this Agreement or the application of any
provision shall be held by a tribunal of competent jurisdiction to be contrary
to law or unenforceable, the remaining provisions of this Agreement shall
continue in full force and effect.
9.9 Survival All obligations hereunder, incurred by either Bell Atlantic or
Carrier prior to the cancellation, termination, or expiration of this Agreement
shall survive such
<PAGE>
cancellation, termination or expiration.
9.10 Captions and Section Headings The captions and section headings in this
Agreement are for convenience only and do not affect the meaning or
interpretation of this Agreement.
9.11 Duplicate Originals This Agreement may be executed separately by the
parties in one or more counterparts. Each duplicate executed shall be deemed an
original, and all together shall constitute one and the same document.
9.12 Entire Agreement The terms and conditions of this Agreement, including the
Appendices attached to this Agreement, constitute the entire Agreement between
Bell Atlantic and Carrier relating to the subject matter of this Agreement, and
supersede any and all prior or contemporaneous understandings, promises or
representations, whether written or oral, between the parties relating to the
subject matter of this Agreement. Any waiver, modification or amendment of any
provision of this Agreement, or of any right or remedy hereunder, shall not be
effective unless made in writing and signed by both parties.
IN WITNESS WHEREOF, the parties agree that the effective date of this Agreement
is the date first written above, and each party warrants that it has caused this
Agreement to be signed and delivered by its duly authorized representative.
FOR BELL ATLANTIC - FOR CARRIER
________________________, INC.
Name: _______________________ Name: _______________________
Title: ________________________ Title: ________________________
Signature: ____________________ Signature: ____________________
Date: ________________________ Date: ________________________
<PAGE>
APPENDIX A
BELL ATLANTIC
CARRIER SERVICE SELECTION FORM
Please select desired services.
- --------------------------------------------------------------------------------
MINIMUM SERVICE
SERVICE SERVICE CHARGE SELECTION
PERIOD
- --------------------------------------------------------------------------------
Directory 12 months $______/call (Directory Yes No
Assistance (ADAS) Transport charges below)
- --------------------------------------------------------------------------------
IntraLATA Call 12 months Live: $______/op work second Yes No
Completion Automated: $______/auto wk sec
Operator Services LIDB: $______/query
- --------------------------------------------------------------------------------
Directory non-recurring $_________ per switch Yes No
Assistance fee
Branding
- --------------------------------------------------------------------------------
Operator Services non-recurring $_________ per switch Branding is
Branding fee required for
OS
- --------------------------------------------------------------------------------
Directory Transport charges are as follows. (Call miles are measured from the BA
Wire Center serving Carrier's premises to the Directory Assistance location.)
Rate Per Directory Assistance Call
----------------------------------
Tandem-Switched Transport
Fixed ........................................ $________
Per mile ..................................... $________
Tandem Switching ................................... $________
Note: Trunking, daily usage file, and switched access costs are not included in
the above rates.
<PAGE>
APPENDIX B
INTRALATA CALL COMPLETION OPERATOR SERVICES CALL TYPES
IntraLATA Call Completion Operator Services may include the following:
a. Calling Card
(i) Live: Bell Atlantic operator keys the calling card number and call
details into the system, secures validation, and releases the call to the
network.
(ii) Automated: Caller keys the calling number and call details in
response to automated prompts. Bell Atlantic secures validation and
releases the call to the network.
b. Collect
(i) Live: Bell Atlantic operator obtains the calling party's name, keys
the call details if necessary, announces the call to the called party,
waits for acceptance, and releases the call to the network.
(ii) Automated: Caller provides name and call details. Bell Atlantic's
automated system obtains called party's consent and releases the call to
the network.
c. Billed To A Third Party
(i) Live: Bell Atlantic operator requests the calling party's name, keys
the call details if necessary, calls the third party to verify acceptance
of billing, and upon acceptance, releases the call to the network.
(ii) Automated: Caller provides name, call details, and billing number.
Bell Atlantic's automated system verifies billed number and releases the
call to the network.
d. Person-to-Person
Bell Atlantic operator requests the person or department the calling party
has specified, ensures the appropriate party has been reached (person or
department), and releases the call to the network.
e. Coin Sent Paid
Bell Atlantic operator keys the call details if necessary, requests the
initial deposit, and upon deposit, releases the call to the network.
<PAGE>
f. Miscellaneous Call Assistance (Live)
(i) 0- Calls: Bell Atlantic operator provides caller with dialing
instructions or assistance, transfers emergency calls, or refers questions
to the business office or repair service.
(ii) Dialing Assistance & Intervention: Bell Atlantic operator dials a
number for a caller who is unwilling to dial directly or is encountering
trouble (such as wrong number, poor transmission, or cutoff), and who
requests a credit or reconnection.
(iii) Time and Charges: Bell Atlantic operator provides caller with time
and charges at the end of conversation, if requested.
(iv) Individuals with Disabilities: Bell Atlantic operator assists a
caller requiring dialing assistance due to a disability.
g. Busy-Line Verification
Bell Atlantic operator determines if the number specified by the customer
is in use, idle, or out of order. Appropriate facilities and equipment may
be required from the Carrier to enable verification of Carrier's lines.
h. Customer-Requested Interrupt
At the caller's request, Bell Atlantic operator interrupts conversation in
progress on a line that is in use, as verified through Busy-Line
Verification.
i. Operator Number Identification (ONI) Requests
Bell Atlantic operator requests the calling telephone number, keys the
number into the system for identification, and releases the call for
processing.
j. Automated Coin Toll Service (ACTS)
Bell Atlantic will provide automated messages for intraLATA toll calls
that originate from coin phones. The messages will prompt callers for the
correct change and record the change upon deposit. If a caller fails to
deposit the correct amount within the time threshold (set by Bell
Atlantic), the call will default to a live operator.
k. Validation Services
Bell Atlantic will launch queries for the validation of all calling card
calls, collect calls, and billed-to-third number calls to a Line
Information Data Base (LIDB). The validation costs for queries of LIDB are
separate from the individual call rates. Bell Atlantic will also launch
queries for validations to another company's LIDB if that company has a
card honoring agreement with Bell Atlantic.
<PAGE>
APPENDIX C
REQUIRED INFORMATION
Carrier shall furnish Bell Atlantic all information required by Bell Atlantic to
establish and maintain the Services to be provided to Carrier, including a
completed Technical Questionnaire. Such required information includes, but is
not limited to, the following:
1. Central office exchange names
2. Usage forecasts
3. Local central office characteristics
4. Trunking arrangements and trunk group types
5. Emergency reporting system and procedures
6. Business office information
7. Repair service information
8. Name and address request information
9. Tariffs and rate information
10. Customer dialing capabilities
11. Access to EMR records
12. Desired branding announcement (if applicable)
13. Carrier's estimated start date of Services
14. Access Service Requests (ASRs) for trunking and translations
Note: ASRs are not to be submitted by Carrier until Carrier and Bell Atlantic
have reviewed the Technical Questionnaire.
<PAGE>
APPENDIX D
OPTIONAL SERVICE SELECTION FORM
- --------------------------------------------------------------------------------
MINIMUM SERVICE
SERVICE SERVICE PERIOD CHARGE SELECTION
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Directory Assistance Call Completion 6 months $___/call Yes No
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT D
INTRALATA TELECOMMUNICATIONS SERVICES SETTLEMENT AGREEMENT
This Agreement is entered into as of _______________ , 1997, by and
between Bell Atlantic - _______________, Inc., a ___________ corporation, with
principal offices located at ______________________________ ("BA-__"), and
___________________________, a ______________ corporation, with principal
offices located at ________________________
____________________________________________________ ("Carrier").
SECTION I
SCOPE
This Agreement sets forth the terms and conditions for the following:
(a) administering and processing messages in the intraLATA Toll
Originating Responsibility Plan ("ITORP"); and
(b) the settlement of compensation for the following telecommunications
traffic within a BA-__ LATA:
(1) intrastate and interstate intraLATA traffic terminated to
Carrier and originated by an Independent Telephone Company or
wireless carriers that transits the facilities of BA-__ within a
BA-__ LATA, including Message Telecommunications Service and Local
Exchange Service (the "ITORP Transit Service Traffic");
(2) intrastate and interstate intraLATA Message Telecommunications
Service and Local Exchange Service traffic which originates from a
Certified Local Exchange Carrier or Carrier, transits BA-PA's
network and terminates to Carrier, or a wireless carrier or an
Exchange Carrier other than BA-__, which traffic is subject to a
Meet-Point Billing arrangement (the "Meet-Point Transit Service
Traffic");
(3) intraLATA 800/888 Service Traffic; and
(4) intraLATA Alternately Billed Calls billed to a line-based
telephone number within the state where the call is originated.
By way of clarification, this Agreement does not cover the following: (x)
traffic that does not use BA-__ facilities; (y) interLATA traffic; and (z) any
statewide services (whether interLATA or intraLATA) provided entirely by an
Interexchange Carrier such as statewide WATS.
<PAGE>
EXHIBIT D
SECTION II
DEFINITIONS
For purposes of this Agreement, the terms set forth below shall have the
following meaning:
A. 800/888 Number Database shall mean the call management service
database that provides POTS telephone number translation or routing
information or both for a given 800/888 telephone number.
B. 800/888 Service Traffic means a toll free call originating with the
Originating Company and billed to the Terminating Company's end
user. 800/888 service MOUs are recorded by the Originating Company
and provided to the Terminating Company so that it can bill its end
user(s).
C. Access Tandem shall mean a switching entity that is used to
connect and switch trunk circuits between and among End Offices and
between and among End Office switches and carriers' aggregation
points, points of termination, or points of presence, which entity
has billing and recording capabilities that are used to provide
switched Exchange Access services.
D. Alternately Billed Calls shall mean all intraLATA land-line
Collect Calls, Calling Card Calls and Third-Number Calls that
originate and terminate in the _________ of _____________ and are
billed to a line-based number within the jurisdiction of the
__________ of _____________ serviced by the Billing Company.
Alternately Billed Calls are identified in ITORP reports as
"Received Collect/Sent Collect Calls".
E. Basic 800/888 Number Query shall mean routing information
obtained from an 800/888 Number Database for originating 800/888
calls.
F. Billing Company shall mean the Local Exchange Carrier that
provides the local telephone exchange service for the number to
which an Alternately Billed Call is to be billed.
G. Calling Card Call shall mean a call billed to a pre-assigned end
user line-based billing number, including calls dialed or serviced
by an operator system.
H. Carrier Common Line Facilities means the facilities from the end
user's premises to the End Office used to originate or terminate
Transit Service Traffic and 800/888 Service Traffic. Such carrier
common line facilities are as specified in each party's Exchange
Access Tariff.
2
<PAGE>
EXHIBIT D
I. Category 01 shall mean the EMR/billing record for usage charges
applicable to the terminating 800/888 number service subscriber.
J. Category 08 shall mean the EMR/copy record containing the
information necessary for Carrier to bill/settle intraLATA
terminating charges with other carriers.
K. Category 11 shall mean the EMR/access record containing
information necessary for Carrier to bill/settle interexchange
access charges.
L. CCS/SS7 shall mean the Common Channel Signaling/Signaling System
7, which refers to the packet-switched communication, out-of-band
signaling architecture that allows signaling and voice to be carried
on separate facilities, and thus is a signaling network that is
common to many voice channels. There are two modes of operation
defined for CCS/SS7: database query mode, and trunk signaling mode.
M. Centralized Message Distribution System (CMDS) shall mean the
message processing system which handles the distribution of Message
Records from the Earning Company to the Billing Company.
N. Certified Local Exchange Carrier (CLEC) means a carrier certified by
the ____________ ____________to provide Local Exchange Access
services within the BA-__ operating territory in that state.
O. Collect Call shall mean a non-sent paid call that is billed to
the number receiving the call, including calls dialed or serviced by
an operator system.
P. Discounted Toll Services means services in which the originating end
user is charged a rate less than would normally be assessed for
calls placed to similar points outside the end user's local calling
area.
Q. Earning Company shall mean the Local Exchange Carrier that
provides local telephone exchange service for the number from which
an Alternately Billed Call originates.
R. End Office means the end office switching and end user line
termination facilities used to originate or terminate switched
intraLATA telecommunications services traffic.
S. Exchange means a geographic area established for the furnishing of
local telephone service under a local tariff. It usually embraces a
city, town or village and its
3
<PAGE>
EXHIBIT D
environs. It consists of one or more wire centers together with the
associated facilities used in furnishing communications service
within the area.
T. Exchange Access means the facilities and services used for the
purpose of originating or terminating interexchange
telecommunications in accordance with the schedule of charges,
regulations and conditions specified in lawfully established
Exchange Access Tariffs.
U. Exchange Access Tariffs means the tariffs lawfully established with
the Federal Communications Commission or the _____________
___________________ by an Exchange Carrier for the provision of
Exchange Access facilities and services.
V. Exchange Carrier shall mean a carrier licensed to provide
telecommunications services between points located in the same
Exchange area.
W. Exchange Message Record (EMR) shall mean the standard used for
exchange of telecommunications message information among Local
Exchange Carriers for billable, non-billable, sample, settlement and
study data. EMR format is described in BR-010-200-010 CRIS Exchange
Message Record, a Bell Communications Research, Inc. document that
defines industry standards for Exchange Message Records, which is
hereby incorporated by reference.
X. ITORP Transit Service Traffic shall have the meaning set forth in
Section I above titled "Scope".
Y. Independent Telephone Company shall mean any entity other than BA-__
which, with respect to its operations within the ___________ of
__________________, is an incumbent Local Exchange Carrier.
Z. Inter-Company Net Billing Statement shall mean the separate monthly
financial reports issued by BA-__ under ITORP to the Exchange
Carriers for settlement of amounts owed.
AA. IntraLATA Toll Originating Responsibility Plan (ITORP) shall mean
the information system owned and administered by BA-__ for
calculating charges between BA-__ and Local Exchange Carriers for
termination of intraLATA calls.
BB. Interexchange Carrier (IXC) means a carrier that provides, directly
or indirectly, interLATA or intraLATA telephone toll services.
CC. Local Access and Transport Area (LATA) means a contiguous geographic
area: (1) established before the date of enactment of the
Telecommunications Act of 1996 by BA-__ such that no Exchange area
includes points within more than one
4
<PAGE>
EXHIBIT D
metropolitan statistical area, consolidated metropolitan statistical
area, or state, except as expressly permitted under the AT&T Consent
Decree; or (2) established or modified by BA-__ after such date of
enactment and approved by the Federal Communications Commission.
DD. Local Exchange Carrier (LEC) means any person that is engaged in the
provision of Local Exchange Service or Exchange Access. Such term
does not include a person insofar as such person is engaged in the
provision of a commercial mobile service under Section 332 (c) of
the Telecommunications Act of 1996, except to the extent that the
Federal Communications Commission finds that such service should be
included in the definition of such term.
EE. Local Exchange Service means telecommunications services provided
between points located in the same LATA.
FF. Meet -Point Billing (MPB) means an arrangement whereby two or more
LECs jointly provide to a third party the transport element of a
switched access Local Exchange Service to one of the LECs' End
Office switches, with each LEC receiving an appropriate share of the
transport element revenues as defined by their effective Exchange
Access tariffs.
GG. Meet-Point Transit Service Traffic shall have the meaning set forth
in Section 1, "Scope".
HH. Message Records shall mean the message billing record in Exchange
Message Record format.
II. Message Telecommunications Service (MTS) means message toll
telephone communications, including Discounted Toll Services,
between end users in different Exchange areas, but within the same
LATA, provided in accordance with the schedules of charges,
regulations and conditions specified in lawfully applicable tariffs.
JJ. Minutes of Use (MOU) means the elapsed time in minutes used in
the recording of Transit Service Traffic and 800/888 Service
Traffic.
KK. Multiple Bill/Single Tariff means the MPB method whereby each LEC
prepares and renders its own Meet Point Bill in accordance with its
own tariff(s) for the portion of the jointly-provided Exchange
Access service which the LEC provides.
LL. Multiple Exchange Carrier Access Billing (MECAB) means the document
prepared by the Billing Committee of the Ordering and Billing Forum,
which functions under the auspices of the Carrier Liaison Committee
of the Alliance for
5
<PAGE>
EXHIBIT D
Telecommunications Industry Solutions, and published by Bellcore as
Special Report SR-BDS-000983, which document contains the
recommended guidelines for the billing of an Exchange Access service
provided by two or more LECs, or by one LEC in two or more states,
within a single LATA, and is incorporated herein by reference.
MM. Originating Company means the company which originates intraLATA
MTS or Local Exchange Service on its system. (For compensation
purposes, the Originating Company shall be considered the
Terminating Company for 800/888 Service Traffic.)
NN. Terminating Company means the company which terminates intraLATA
MTS or Local Exchange Service on its system where the charges for
such services are collected by the Originating (or Billing) Company.
(For compensation purposes, the Terminating Company shall be
considered the Originating Company for 800/888
Service Traffic.)
OO. Third-Number Call shall mean a call billed to a subscriber's
line-based billing number which is not the number to which the call
either terminates or originates.
PP. Transit Traffic shall refer to both ITORP Transit Service Traffic
and Meet-Point Transit Service Traffic.
QQ. Transiting Company shall mean a Local Exchange Carrier which
transports intraLATA telecommunications traffic on its system
between an Originating Company and a Terminating Company.
RR. Transport Facilities means the facilities from the End Office to a
tandem switching facility used to originate or terminate switched
intraLATA telecommunication services traffic.
SECTION III
SETTLEMENT OF TRANSIT SERVICES
(a) ITORP Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ will route
ITORP Transit Service Traffic over the combined local and toll trunk groups
between BA-__ and Carrier. BA-__
6
<PAGE>
EXHIBIT D
and Carrier agree to designate the points of interconnection for the purpose of
terminating ITORP Transit Service Traffic which originates from an Independent
Telephone Company or wireless carrier and terminates to Carrier. Both parties
further agree to develop and file mutually agreed to billing percentages
applicable to ITORP Transit Service Traffic in the National Exchange Carrier
Association F.C.C. Tariff No. 4, which billing percentages shall be calculated
in accordance with ITORP guidelines.
(2) Exchange of Billing Data. The Originating Company will provide to
BA-__ all billing data relating to ITORP Transit Service Traffic for processing
in ITORP within fourteen (14) days from the date the usage occurs (to the extent
usage occurs on any given day) for traffic originating from an Independent
Telephone Company or wireless carrier, which traffic transits BA-PA's facilities
and terminates to Carrier.
(3) Billing. BA-__ will, on behalf of Carrier, bill Exchange Carriers for
intraLATA ITORP Transit Service Traffic, and collect compensation due Carrier
based on Carrier's established and legally-approved tariffed or negotiated rates
utilizing ITORP. The charges set forth in Attachment A, attached hereto and
incorporated herein by reference, shall apply to the billing and collection
services provided by BA-__ to Carrier hereunder. Carrier will record the ITORP
Transit Service Traffic usage at its switch, and shall bill BA-__ for this
traffic in accordance with the rates set forth in the Interconnection Agreement
under Section 251 and 252 of the Telecommunications Act of 1996, dated as of
September __, 1996, by and between BA-__ and Carrier.
(b) Meet-Point Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ and Carrier
will route their respective Meet-Point Transit Service Traffic over the combined
local and toll trunk groups between them. BA-__ and Carrier agree to designate
the points of interconnection for the purpose of terminating Meet-Point Transit
Service Traffic which originates from a CLEC and terminates to Carrier, or
originates from Carrier and terminates to a CLEC, Independent Telephone Company,
or a wireless carrier. Both parties further agree to develop and file mutually
agreed to billing percentages applicable to Meet-Point Transit Service Traffic
in the National Exchange Carrier Association F.C.C. Tariff No. 4, which billing
percentages shall be calculated in accordance with MECAB guidelines.
(i) End Offices Subtending BA-__ Access Tandem. Meet-Point Transit Service
Traffic will be routed over the local and toll interconnection facilities
used to terminate similar traffic directly between BA-__ and Carrier when
the Originating and Terminating Company's End Office switches subtend
BA-PA's Access Tandem. BA-__ will record this traffic at the BA-__ Access
Tandem, and forward the terminating call records to the Terminating
Company for purposes of Meet-Point Billing.
7
<PAGE>
EXHIBIT D
(ii) End Offices That Do Not Subtend a BA-__ Access Tandem. When the
Originating and/or the Terminating Company's End Office switches do not
subtend BA-PA's Access Tandem, the Meet-Point Transit Service Traffic must
be routed over interconnection facilities other than those used to
terminate intraLATA MTS or Local Exchange Service to BA-PA's end users The
Terminating Company will record this traffic at its Access Tandem and
forward the terminating call records to BA-__ for Meet-Point Billing
purposes.
(iii) Special Access. Upon request, any Meet-Point Service Transit Traffic
may be routed over special access interconnection facilities between
Carrier, on the one hand, and a CLEC, an Independent Telephone Company, or
a wireless carrier, on the other.
(2) Exchange of Billing Data. All billing data exchanged hereunder will be
exchanged on magnetic tape or via electronic data transfer, to be delivered at
the addresses set forth below, using the Electronic Message Record format. BA-__
will provide to Carrier the switched-access detail usage data (category 1101XX
records) on magnetic tape within fourteen (14) days from the date the usage
occurs (to the extent usage occurs on any given day) for traffic originating
from a CLEC, transiting BA-PA's facilities and terminating to Carrier, and
Carrier will provide to BA-__ the switched access summary usage data (category
1150XX records) on a magnetic tape on a monthly basis within fourteen (14) days
of receipt from BA-__ of the switched access detail usage data referenced above.
(3) Billing. BA-__ and Carrier will submit to CLECs separate bills under
their respective tariffs for their portion of jointly-provided Meet-Point
Transit Service Traffic. With respect to Meet-Point Transit Service Traffic,
BA-__ and Carrier will exchange billing data and render bills under Multiple
Bill/Single Tariff arrangements in accordance with the applicable terms and
conditions set forth in MECAB.
(4) Addresses. Magnetic tapes to be sent hereunder to Carrier will be sent
to the following address (which address Carrier may change upon prior written
notice to BA-__):
Magnetic tapes to be sent hereunder to BA-__ will be sent to the following
address(es), as appropriate (which address(es) BA-__ may change upon prior
written notice to Carrier):
Bell Atlantic
Tape Library
8
<PAGE>
EXHIBIT D
1500 Tech Center Drive
Monroeville, PA 15146
SECTION V
800/888 SERVICE
800/888 Service Traffic will be exchanged among BA-__, Carrier,
Independent Telephone Companies, CLECs and wireless carriers via CCS/SS7 trunks,
and all will deliver/route these calls as appropriate and provide EMRs to the
Terminating Company to enable it to bill its 800/888 service subscriber. These
EMRs will, per industry standards, include the following: Category 01 (800/888
number subscriber billing), Category 08 (copy record/local exchange charges),
and Category 11 (interexchange carriers access records).
(a) Delivery of Translated 800/888 Number Queries and calls over CCS/SS7
links and trunks. BA-__ and Carrier will launch their own Basic 800/888 Number
Query for 800/888 Service Traffic originated in their networks, and route this
traffic to each other, as appropriate, utilizing existing local and toll
interconnection facilities.
(b) Exchange of Records; Compensation. All 800/888 Service Traffic
hereunder shall be subject to the appropriate access charges, as set forth in
the applicable tariffs. In addition, for jointly provided intraLATA 800/888
Service Traffic between two Local Exchange Carriers, the Originating Company is
responsible for billing its tariffed Basic 800/888 Number Query charge to the
Terminating Company. Carrier, when acting as an Originating Company, must submit
to BA-__, via magnetic tape(s) in EMR format, (i) the information necessary to
bill/settle intraLATA charges (EMR Category 110125), and (ii) the usage charges
applicable to the terminating 800/888-number service subscriber (EMR Category
010125). In the event any of these records are lost or destroyed, BA-__ and
Carrier will jointly estimate the terminating access charges due to either party
hereunder as follows:
(1) Total the terminating traffic compensation paid with respect to
800/888 Service Traffic to each party hereunder for the most recent
six (6) months period preceding the month covered by the lost or
destroyed tapes.
(2) Divide the total determined in (1) preceding, by 180 days.
(3) Multiply the terminating traffic compensation per day determined in
(2) preceding, by the number of days covered by the lost or
destroyed tapes. The calculated amount will be included as an
adjustment for lost or destroyed tapes in the next Inter-Company Net
Billing Statement.
BA-__ shall have no liability whatsoever with respect to any lost, damaged
or destroyed
9
<PAGE>
EXHIBIT D
records submitted hereunder by Carrier.
(c) Settlement. EMR records submitted by Carrier hereunder acting as an
Originating Company, as contemplated in Paragraph (b) above, will be processed
in accordance with ITORP. For purposes of calculating the access charges due
Local Exchange Carriers with respect to 800/888 Service Traffic, the Originating
Company shall be deemed the Terminating Company. Access charges payable
hereunder shall be calculated in accordance with Section VII of this Agreement,
as applicable.
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EXHIBIT D
SECTION VI
ALTERNATELY BILLED CALLS
(a) Responsibilities of the Billing Company. The Billing Company agrees to
provide the Earning Company with billing services, as specified below, with
respect to Alternately Billed Calls.
(1) Billing. Upon receipt of the appropriate Message Record from CMDS, the
Billing Company shall include this record in the bill to be issued to the end
user responsible for payment. The Billing Company shall also submit copies of
these Message Records to BA-__, at least once a month, in order to determine
monthly settlement amounts for both the Billing Company and the Earning Company
which will be reflected in the Inter-Company Net Billing Statement. These
amounts will reflect any and all applicable charges due the Billing Company for
performing billing services hereunder. In addition, as applicable, the
Inter-Company Net Billing Statement will reflect any amounts owed by Carrier to
BA-__ for administering and processing ITORP.
(2) Payment of Amounts Outstanding. Upon receipt of the Inter-Company Net
Billing Statement from BA-__, Carrier shall, within thirty (30) days of invoice,
remit to BA-__ full payment of amounts owed under the Inter-Company Net Billing
Statement.
(b) Responsibilities of the Earning Company. In connection with
Alternately Billed Calls, the Earning Company shall provide Message Records to
the Billing Company on a daily basis to the extent that any usage has been
recorded. These Message Records will be delivered by the Earning Company to the
Billing Company via the CMDS system, unless otherwise agreed to by the parties
hereto.
(c) Fees for Settlement of Alternately Billed Calls. The billing services
provided by the Billing Company to the Earning Company with respect to
Alternately Billed Calls shall be subject to the applicable charges set forth in
Attachment A, which charges will be reflected in the Inter-Company Net Billing
Statement. These charges may be revised upon mutual written agreement of the
parties hereto.
SECTION VII
CALCULATION OF COMPENSATION
BA-__ and Carrier agree to compensate each other with respect to Transit
Services Traffic and 800/888 Service Traffic in accordance with the terms
established below, and the rate elements set forth in Attachments A and B,
attached hereto and incorporated herein by reference.
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EXHIBIT D
(a) Compensation due to the Terminating/Transiting Company. Compensation
due to the Terminating Company/Transiting Company will be determined separately
for each month as follows:
(1) For Carrier Common Line Facilities provided by the Terminating
Company, an amount calculated as specified for Carrier Common Line Facilities in
the Terminating Company's Exchange Access Tariff. Compensation will be
determined by multiplying a) the Terminating Company's Carrier Common Line rate,
times b) the MOU.
(2) For End Office facilities provided by the Terminating Company, an
amount calculated as specified for End Office facilities in the Terminating
Company's Exchange Access Tariff. Compensation will be determined by multiplying
a) the Terminating Company's appropriate Exchange Access End Office rate
elements, times b) the MOU.
(3) For Transport Facilities, where these facilities are provided by the
Terminating Company, or a Transiting and Terminating Company, an amount
calculated in accordance with the following steps:
(i) Determine the Terminating Company's airline miles from the End
Office which serves the Terminating Company's end user to
either the Terminating Company's Access Tandem switching
facility or the interconnection point with the Transiting
Company(ies).
(ii) Determine the Transiting Company's airlines miles from the
Transiting Company(ies) Access Tandem switching facility to
the interconnection point with the Terminating Company.
(iii) Determine the sum of the total airline miles by adding (i) and
(ii) above.
(iv) Divide the Terminating Company's airline miles determined in
(i) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Terminating Company.
(v) Divide the Transiting Company's airline miles determined in
(ii) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Transiting Company.
(vi) Identify the rates set forth in the Exchange Access Tariff for
either the Terminating Company or Transiting Companies, or
both, as appropriate, which rates are applicable to Transport
Facilities.
(vii) Multiply the ratio determined in (iv) preceding, times the
rate calculated in
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EXHIBIT D
(vi) preceding, times the MOU, and add the amount set forth in
(ix) below to determine the amount due the Terminating
Company.
(viii) Multiply the ratio determined in (v) preceding, times the
rate calculated in (vi) preceding, times the MOU, and add the
amount set forth in (ix) below to determine the amount due the
Transiting Company.
(ix) To the extent the Exchange Access Tariffs of the Terminating
or Transiting Company, or both, provide for the payment of a
fixed transport charge to be assessed with respect to a
terminating location (End Office or toll switch), multiply
this charge times the chargeable MOU.
SECTION VIII
ITORP ADMINISTRATION AND RESPONSIBILITIES
(a) Responsibilities of BA-__. BA-__ shall:
1. Operate and maintain the ITORP system.
2. Provide the requirements and standards for ITORP records and
tapes (ITORP User Guide).
3. Inform Carrier of any proposed change in tape creation or
distribution process at least sixty (60) days prior to the
actual implementation of the change.
4. Develop and implement all system enhancements required to
maintain the integrity of BA-PA's ITORP system.
5. Process ITORP tapes received from Carrier, or its agent,
during the next available billing cycle.
6. Review and analyze daily pre-edit reports to determine if a
tape is acceptable for ITORP processing; provided, however,
that Carrier is not absolved, as the Originating Company, from
its responsibility to conform to ITORP input requirements.
7. Communicate with Carrier, or its agent, to resolve the
problems with tapes which are identified as being unacceptable
for ITORP processing.
8. Create and/or maintain all ITORP tables.
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EXHIBIT D
9. Include the monthly compensation due to and from Carrier as
identified by ITORP on the Inter-Company Net Billing
Statement. The compensation includes 800/888 Service Traffic
and Alternately Billed Services traffic.
10. Settle with all local Exchange Carriers, via the Inter-Company
Net Billing Statement, for 800/888 Service Traffic and
Alternately Billed Services traffic originating from and/or
terminating to Carrier.
11. Distribute monthly ITORP reports.
(b) Responsibilities of Carrier. Carrier shall:
1. Compensate BA-__ for the administration and processing of
ITORP as specified in Attachment A.
2. Notify BA-__ Exchange Carrier Services staff in writing of any
changes in its rates affecting ITORP tables, as specified in
Attachment A, thirty (30) days prior to the effective date of
any such changes.
3. Notify BA-__ Exchange Carrier Services staff in writing of any
network changes, such as changes in traffic routing, sixty
(60) days prior to the implementation of the change in the
network.
4. Conform to BA-__'s ITORP record requirements and standards.
5. Carrier or its designated agent will forward the Exchange
Message Records to BA-__, in a timely manner for processing.
6. Inform the BA-__ Exchange Carrier Services staff in writing of
any proposed changes in the Exchange Message Record creation
or distribution process at least sixty (60) days prior to the
actual implementation of the change.
7. Reimburse BA-__ for compensating other local Exchange Carriers
on behalf of Carrier, as reflected in the Inter-Company Net
Billing Statement.
(c) Fees. Compensation for the administration and processing of ITORP will
be due BA-__ on a monthly basis, based on the number of messages processed in
ITORP for Carrier at an average total cost per message. The processing and
administrative fees applicable on a per message basis are set forth in
Attachment A. These fees may be revised by BA-__, at its discretion and upon
notice to Carrier, based on annual studies conducted by BA-__, and Carrier
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<PAGE>
EXHIBIT D
hereby agrees to be bound by such revised rates. A minimum monthly fee, as
specified in Attachment A, will be assessed when Carrier's monthly ITORP
processing charges are below the stated minimum monthly charge.
SECTION IX
LIABILITIES
In the event of an error on the part of BA-__ in calculating or settling
any compensation amounts hereunder, Carrier's sole remedy and BA-PA's only
obligation shall be to re-calculate the compensation amount, and to the extent
any amounts are owed to or owed by Carrier, such amounts will be reflected as an
adjustment in the next Inter-Company Net Billing Statement. In addition and to
the extent applicable, BA-PA's liability under this Agreement and/or in
connection with the settlement, payment and/or calculation of any amounts due
hereunder shall be limited as set forth in the applicable tariffs. BA-__ shall
have no obligation or liability with respect to any billing, settlement or
calculation-of-compensation errors or omissions, including without limitation
the duty to re-calculate any compensation amounts reflected in the Inter-Company
Net Billing Statement, if such error or omission occurred more than two (2)
years prior to the time in which it is brought to BA-PA's attention in writing.
Without limiting the foregoing, in no event shall either party hereto be liable
for consequential, incidental, special or indirect damages (including without
limitation loss of profit or business) hereunder whether such damages are based
in tort (including, without limitation, under any theory of negligence),
contract breach or otherwise, and even if said party knew or should have known
of the possibility thereof.
SECTION X
RELATIONSHIP OF THE PARTIES
Nothing herein contained will be deemed to constitute a partnership or
agency relationship between the parties. Each party agrees that it will perform
its obligations hereunder as an independent contractor and not as the agent,
employee or servant of the other party. Neither party nor any personnel
furnished by such party will be deemed employees or agents of the other party or
entitled to any benefits available under any plans for such other party's
employees. Each party has and hereby retains the right to exercise full control
of and supervision over its own performance of the obligations under this
Agreement, and retains full control over the employment, direction, compensation
and discharge of all employees assisting in the performance of such obligations,
including without limitation all matters relating to payment of such employees,
including compliance with social security taxes, withholding taxes and all other
regulations governing such matters. In addition, each party will be responsible
for its own acts and those of its own subordinates, employees, agents and
subcontractors during the performance of that party's obligations hereunder.
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EXHIBIT D
SECTION XI
TERM AND TERMINATION
(a) Term - Upon execution by all parties hereto, this Agreement shall
become effective as of the date first shown on Page 1 of this Agreement, and
shall remain in effect until terminated by either party in accordance with
paragraphs (b), (c), (d), or (e) below.
(b) Termination for Breach - Either party may, upon prior written notice
to the other party, terminate this Agreement in the event the other party is in
default or breach of this Agreement and such breach or default is not corrected
within thirty (30) days after the breaching party has been notified of same.
(c) Termination for Convenience - Upon six (6) months written advance
notice to the other party, either party may terminate this Agreement.
(d) Acts of Insolvency - Either party may terminate this Agreement or any
portion thereof, effective immediately, by written notice to the other party, if
said other party (1) applies for or consents to the appointment of or the taking
of possession by receiver, custodian, trustee, or liquidator of itself or of all
or a substantial part of its property; (2) becomes insolvent; (3) makes a
general assignment for the benefit of creditors; (4) suffers or permits the
appointment of a receiver for its business or assets; (5) becomes subject to any
proceeding under any bankruptcy or insolvency law whether domestic or foreign,
voluntarily or otherwise; or (6) fails to contest in a timely or appropriate
manner, or acquiesces in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code or any application for the
appointment of a receiver, custodian, trustee, or liquidation of itself or of
all or a substantial part of its property, or its reorganization, or
dissolution.
(e) Termination of Interconnection Agreement. Unless otherwise agreed to
by the parties hereto in writing, in the event that the Interconnection
Agreement under Sections 251 and 252 of the Telecommunications Act of 1996,
dated as of December __, 1996, by and between BA-__ and Carrier expires without
being renewed, or expires or is terminated and no other interconnection
agreement has been entered into by BA-__ and Carrier, then this Agreement shall
be deemed terminated effective on the date the aforesaid Interconnection
Agreement expires or is terminated.
SECTION XII
NETWORK CONFIGURATION
Each party shall provide six (6) months advance written notice to the
other party of any network configuration that may affect any of the services or
compensation contemplated under this Agreement, and the parties hereto agree to
use reasonable efforts to avoid service
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EXHIBIT D
interruptions during any such network change.
SECTION XIII
CONSTRUCTION AND EFFECT
All services contemplated under this Agreement are provided in accordance
with any and all applicable regulatory requirements and effective tariffs filed
with and approved by the appropriate federal and/or state regulatory bodies, as
these tariffs and requirements may be modified from time to time. To the extent
there is a conflict between the terms of any said tariff or regulatory
requirement and this Agreement, the terms of the tariff or the regulatory
requirement shall prevail. However, to the extent not in conflict with the
provisions of the applicable tariffs or regulatory requirements, this Agreement
shall supplement the tariffs or regulatory requirements, and it shall be
construed to the fullest extent possible in harmony with such tariffs or
regulatory requirements.
SECTION XIII
MISCELLANEOUS
(a) Headings. Headings used in this Agreement are for reference only, do
not constitute part of this Agreement, and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
(b) Notices. All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing, shall be deemed delivered
(1) on the date of delivery when delivered by hand, (2) on the date of
transmission when sent by electronic mail or facsimile transmission during
normal business hours with telephone confirmation of receipt, (3) one (1) day
after dispatch when sent by overnight courier maintaining records of receipt, or
(4) three (3) days after dispatch when sent by registered mail, postage prepaid,
return-receipt requested, all addressed as follows (or at such other addresses
as shall be given in writing by either party to their other):
If to BA-__: Address: 1320 N. Court House Road, 9th Floor
Arlington, VA 22201
Attn.: Manager-Local Interconnection
Facsimile: 703 974 2188
Telephone: 704 974 4614
If to Carrier: Address:
Attn:
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EXHIBIT D
Facsimile:
Telephone:
(c) Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, and nothing herein shall be
construed to create any rights enforceable by any other person or third party.
This Agreement may not be assigned by either party (except by BA-__ to an
affiliate or successor in interest) without the prior written consent of the
other party, which consent shall not be unreasonably withheld.
(d) Waiver. No waiver of any right or term hereof shall be effective
unless in a writing executed by the waiving party. No waiver of any right or
privilege hereunder shall operate as a waiver of any subsequent or similar right
or privilege.
(e) Modifications. This Agreement may be modified or amended only by a
written agreement executed by the parties hereto.
(f) Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed an original.
(g) Severability. If any term, provision, paragraph or clause of this
Agreement or any application thereof shall be held invalid or unenforceable in
any particular jurisdiction, the remainder of this Agreement and any other
application of such term, provision, paragraph or clause shall not be affected
thereby in such jurisdiction (where such remainder or application shall be
construed as if such invalid or unenforceable term, provision, paragraph or
clause has not been inserted), and this Agreement and such application of such
term, provision, paragraph or clause shall not be affected in any other
jurisdiction.
(h) Contingency. Neither party will be held liable for any delay or
failure in performance of this Agreement from any cause beyond its control and
without its fault or negligence including but not limited to acts of God, acts
of civil or military authority, government regulations, embargoes, epidemics,
wars, terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, floods, strikes, power blackouts, other major environmental
disturbances, unusually sever weather conditions, inability to secure products
or services of other persons or transportation facilities, or acts or omissions
of transportation common carriers.
(i) Governing Law. Except as otherwise expressly provided herein, this
Agreement shall be interpreted, construed and governed by the laws of the State
of ____________, without regard to conflict of law provisions.
(j) Confidentiality. Unless by mutual agreement, or except to the extent
directed by a court of competent jurisdiction, neither party shall disclose this
Agreement or the terms hereof to any person other than such party's affiliates
or such party's officers, employees and consultants,
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EXHIBIT D
who are similarly bound hereby. This paragraph shall not prevent the filing of
this Agreement with a state or federal commission having jurisdiction over the
parties hereto if such filing is required by rule or order of that commission;
provided, however, that the parties hereto shall jointly request that the
Agreement be treated as confidential by that commission to the extent permitted
under the commission's regulations and procedures. Each party hereto must
maintain the confidentiality of all message, billing, traffic, and call records,
traffic volumes and all other material information and data pertaining to the
traffic covered by this Agreement and the carriers and end users associated with
such traffic.
(k) Remedies under Law. All remedies available to the parties hereto under
the terms of this Agreement shall be in addition to, and not by way of
limitation of, any other rights that said parties may have at law or equity,
none of which are hereby waived.
(l) Entire Agreement. This Agreement, including all Attachments and
Schedules attached hereto, contains the entire agreement, and supersedes and
voids any prior understanding, between BA-__ and Carrier regarding the subject
matter hereof.
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EXHIBIT D
In witness whereof, the undersigned parties have caused this Agreement
to be executed on their behalf this __________ day of _______________, 19__.
Witness: [Carrier]
______________________________ By: _____________________________
Witness: Bell Atlantic - _______________, Inc.
______________________________ By: _____________________________
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EXHIBIT D
ATTACHMENT A
BASIS OF COMPENSATION
CHARGES FOR ADMINISTRATION OF ITORP AND ITORP PROCESSING
A. Bell Atlantic - _____________, Inc. charges the following rates for
providing ITORP services:
Rate Per Message/ Month
1. Administrative Charge $
2. Processing Charge Elements:
a. Terminating Traffic $
b. Minute/Message $
c. 800/888 Message $
d. Net Compensation $
e. Collected Revenue Processing Charge $
3. Minimum Monthly Fee $
4. Alternately Billed Calls $
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EXHIBIT D
ATTACHMENT B
I.
Message Telecommunications Service - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Carrier
End Office Carrier
Transport based on negotiated billing percentages (BIPs)
II.
800/888 - Terminating to or originating from Carrier Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Originating Company
End Office Originating Company
Transport based on negotiated billing percentages (BIPs)
Query Originating Company
III.
Local Exchange - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Local E.O. Termination Charge Carrier
Transport based on negotiated billing percentages (BIPs)
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SCHEDULE 6.3
RATE ELEMENTS UNDER MEET POINT BILLING
Interstate Access - Terminating to or originating from COVAD Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
Intrastate Access - Terminating to or originating from COVAD Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
<PAGE>
SCHEDULE 12.3
SUPPORT SERVICES FOR RESALE
1. BA OSS SERVICES
1.1 Definitions
As used in the Schedule 12.3, the following terms shall have the meanings
stated below:
1.1.1 "BA Operations Support Systems" means BA systems for pre-ordering,
ordering, provisioning, maintenance and repair, and billing.
1.1.2 "BA OSS Services" means access to BA Operations Support Systems
functions. The term "BA OSS Services" includes, but is not limited to: (a)
BA's provision of Covad Usage Information to Covad pursuant to Section 1.3
below; and, (b) "BA OSS Information", as defined in Section 1.1.4 below.
1.1.3 "BA OSS Facilities" means any gateways, interfaces, databases,
facilities, equipment, software, or systems, used by BA to provide BA OSS
Services to Covad.
1.1.4 "BA OSS Information" means any information accessed by, or disclosed
or provided to, Covad through or as a part of BA OSS Services. The term
"BA OSS Information" includes, but is not limited to: (a) any Customer
Information related to a BA Customer or a Covad Customer accessed by, or
disclosed or provided to, Covad through or as a part of BA OSS Services;
and, (b) any Covad Usage Information (as defined in Section 1.1.6 below)
accessed by, or disclosed or provided to, Covad.
1.1.5 "BA Retail Telecommunications Service" means any Telecommunications
Service that Bell Atlantic provides at retail to subscribers that are not
Telecommunications Carriers. The term "BA Retail Telecommunications
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. ss. 153(16)) provided by BA.
1.1.6 "Covad Usage Information" means the usage information for a BA
Retail Telecommunications Service purchased by Covad under this Agreement
that BA would record if BA was furnishing such BA Retail
Telecommunications Service to a BA end-user retail Customer.
1.1.7 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
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1.2 BA OSS Services
1.2.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), BA OSS Services.
1.2.2 Subject to the requirements of Applicable Law, BA Operations Support
Systems, BA Operations Support Systems functions, BA OSS Facilities, BA
OSS Information, and the BA OSS Services that will be offered by BA, shall
be as determined by BA. Subject to the requirements of Applicable Law, BA
shall have the right to change BA Operations Support Systems, BA
Operations Support Systems functions, BA OSS Facilities, BA OSS
Information, and the BA OSS Services, from time-to-time, without the
consent of Covad.
1.3 Covad Usage Information
1.3.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), Covad Usage
Information.
1.3.2 Covad Usage Information will be available to Covad through the
following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
1.3.3.1 Covad Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Section 1.3.2(a)
above will be issued each day, Monday through Friday, except holidays
observed by BA.
1.3.4 Except as stated in this Section 1.3, subject to the requirements of
Applicable Law, the manner in which, and the frequency with which, Covad
Usage Information will be provided to Covad shall be determined by BA.
1.5 Access to and Use of BA OSS Facilities
1.5.1 BA OSS Facilities may be accessed and used by Covad only to the
extent necessary for Covad's access to and use of BA OSS Services pursuant
to the Agreement.
1.5.2 BA OSS Facilities may be accessed and used by Covad only to provide
Telecommunications Services to Covad Customers.
1.5.3 Covad shall restrict access to and use of BA OSS Facilities to
Covad. This Schedule 12.3 does not grant to Covad any right or license to
grant sublicenses to other
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persons, or permission to other persons (except Covad's employees, agents
and contractors, in accordance with Section 1.5.7 below), to access or use
BA OSS Facilities.
1.5.4 Covad shall not (a) alter, modify or damage the BA OSS Facilities
(including, but not limited to, BA software), (b) copy, remove, derive,
reverse engineer, or decompile, software from the BA OSS Facilities, or
(c) obtain access through BA OSS Facilities to BA databases, facilities,
equipment, software, or systems, which are not offered for Covad's use
under this Schedule 12.3.
1.5.5 Covad shall comply with all practices and procedures established by
BA for access to and use of BA OSS Facilities (including, but not limited
to, BA practices and procedures with regard to security and use of access
and user identification codes).
1.5.6 All practices and procedures for access to and use of BA OSS
Facilities, and all access and user identification codes for BA OSS
Facilities: (a) shall remain the property of BA; (b) shall be used by
Covad only in connection with Covad's use of BA OSS Facilities permitted
by this Schedule 12.3; (c) shall be treated by Covad as Confidential
Information of BA pursuant to subsection 29.4 of the Agreement; and, (d)
shall be destroyed or returned by Covad to BA upon the earlier of request
by BA or the expiration or termination of the Agreement.
1.5.7 Covad's employees, agents and contractors may access and use BA OSS
Facilities only to the extent necessary for Covad's access to and use of
the BA OSS Facilities permitted by this Agreement. Any access to or use of
BA OSS Facilities by Covad's employees, agents, or contractors, shall be
subject to the provisions of the Agreement, including, but not limited to,
subsection 29.4 thereof and Sections 1.5.6 and 1.6.3.3 of this Schedule
12.3.
1.6 BA OSS Information
1.6.1 Subject to the provisions of this Schedule 12.3 and Applicable Law,
BA grants to Covad a non-exclusive license to use BA OSS Information.
1.6.2 All BA OSS Information shall at all times remain the property of BA.
Except as expressly stated in this Schedule 12.3, Covad shall acquire no
rights in or to any BA OSS Information.
1.6.3.1 The provisions of this Section 1.6.3 shall apply to all BA OSS
Information, except (a) Covad Usage Information, (b) CPNI of Covad, and
(c) CPNI of a BA Customer or a Covad Customer, to the extent the Customer
has authorized Covad to use the Customer Information.
1.6.3.2 BA OSS Information may be accessed and used by Covad only to
provide Telecommunications Services to Covad Customers.
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1.6.3.3 Covad shall treat BA OSS Information that is designated by BA,
through written or electronic notice (including, but not limited to,
through the BA OSS Services), as "Confidential" or "Proprietary" as
Confidential Information of BA pursuant to subsection 29.4 of the
Agreement.
1.6.3.4 Except as expressly stated in this Schedule 12.3, this Agreement
does not grant to Covad any right or license to grant sublicenses to other
persons, or permission to other persons (except Covad's employees, agents
or contractors, in accordance with Section 1.6.3.5 below, to access, use
or disclose BA OSS Information.
1.6.3.5 Covad's employees, agents and contractors may access, use and
disclose BA OSS Information only to the extent necessary for Covad's
access to, and use and disclosure of, BA OSS Information permitted by this
Schedule 12.3. Any access to, or use or disclosure of, BA OSS Information
by Covad's employees, agents or contractors, shall be subject to the
provisions of this Agreement, including, but not limited to, subsection
29.4 of the Agreement and Section 1.6.3.3 above.
1.6.3.6 Covad's license to use BA OSS Information shall expire upon the
earliest of: (a) the time when the BA OSS Information is no longer needed
by Covad to provide Telecommunications Services to Covad Customers; (b)
termination of the license in accordance with this Schedule 12.3; or (c)
expiration or termination of the Agreement.
1.6.3.7 All BA OSS Information received by Covad shall be destroyed or
returned by Covad to BA, upon expiration, suspension or termination of the
license to use such BA OSS Information.
1.6.4 Unless sooner terminated or suspended in accordance with the
Agreement or this Schedule 12.3 (including, but not limited to, subsection
22.3 of the Agreement and Section 1.7.1 above), Covad's access to BA OSS
Information through BA OSS Services shall terminate upon the expiration or
termination of the Agreement.
1.6.5.1 Without in any way limiting subsection 18.3 of the Agreement, BA
shall have the right (but not the obligation) to audit Covad to ascertain
whether Covad is complying with the requirements of Applicable Law and
this Agreement with regard to Covad's access to, and use and disclosure
of, BA OSS Information.
1.6.5.2 Without in any way limiting any other rights BA may have under the
Agreement or Applicable Law, BA shall have the right (but not the
obligation) to monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad pursuant to this Agreement, to
ascertain whether Covad is complying with the requirements of Applicable
Law and this Agreement, with regard to Covad's access to, and use and
disclosure of, such BA OSS Information. The foregoing right shall include,
but not be limited to, the right (but not the obligation) to
electronically monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad through BA OSS Facilities.
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1.6.5.3 Information obtained by BA pursuant to this Section 1.6.5 shall be
treated by BA as Confidential Information of Covad pursuant to subsection
29.4 of the Agreement; provided that, BA shall have the right (but not the
obligation) to use and disclose information obtained by BA pursuant to
this Section 1.6.5 to enforce BA's rights under the Agreement or
Applicable Law.
1.6.6 Covad acknowledges that the BA OSS Information, by its nature, is
updated and corrected on a continuous basis by BA, and therefore that BA
OSS Information is subject to change from time to time.
1.7 Liabilities and Remedies
1.7.1 Any breach by Covad, or Covad's employees, agents or contractors, of
the provisions of Sections 1.5 or 1.6 above shall be deemed a material
breach of the Agreement. In addition, if Covad or an employee, agent or
contractor of Covad at any time breaches a provision of Sections 1.5 or
1.6 above and such breach continues for more than ten (10) days after
written notice thereof from BA, then, except as otherwise required by
Applicable Law, BA shall have the right, upon notice to Covad, to suspend
the license to use BA OSS Information granted by Section 1.6.1 above
and/or the provision of BA OSS Services, in whole or in part.
1.7.2 Covad agrees that BA would be irreparably injured by a breach of
Sections 1.5 or 1.6 above by Covad or the employees, agents or contractors
of Covad, and that BA shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of any
such breach. Such remedies shall not be deemed to be the exclusive
remedies for any such breach, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
1.8 Relation to Applicable Law
The provisions of Sections 1.5, 1.6 and 1.7 above shall be in addition to
and not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. ss. 222, and are not intended to constitute a
waiver by BA of any right with regard to protection of the confidentiality
of the information of BA or BA Customers provided by Applicable Law.
1.9 Cooperation
Covad, at Covad's expense, shall reasonably cooperate with BA in using BA
OSS Services. Such cooperation shall include, but not be limited to, the
following:
1.9.1 Upon request by BA, Covad shall by no later than the fifteenth
(15th) day of each calendar month submit to BA reasonable, good faith
estimates (by central office or other BA office or geographic area
designated by BA) of the volume of each BA Retail
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Telecommunications Service for which Covad anticipates submitting orders
in each week of the next calendar month.
1.9.2 Upon request by BA, Covad shall submit to BA reasonable, good faith
estimates of other types of transactions or use of BA OSS Services that
Covad anticipates.
1.9.3 Covad shall reasonably cooperate with BA in submitting orders for BA
Retail Telecommunications Services and otherwise using the BA OSS
Services, in order to avoid exceeding the capacity or capabilities of such
BA OSS Services.
1.9.4 Covad shall participate in cooperative testing of BA OSS Services
and shall provide assistance to BA in identifying and correcting mistakes,
omissions, interruptions, delays, errors, defects, faults, failures, or
other deficiencies, in BA OSS Services.
1.10 BA Access to Information Related to Covad Customers
1.10.1 BA shall have the right to access, use and disclose information
related to Covad Customers that is in BA's possession (including, but not
limited to, in BA OSS Facilities) to the extent such access, use and/or
disclosure has been authorized by the Covad Customer in the manner
required by Applicable Law.
1.10.2 Upon request by BA, Covad shall negotiate in good faith and enter
into a contract with BA, pursuant to which BA may obtain access to Covad's
operations support systems (including, systems for pre-ordering, ordering,
provisioning, maintenance and repair, and billing) and information
contained in such systems, to permit BA to obtain information related to
Covad Customers (as authorized by the applicable Covad Customer), to
permit Customers to transfer service from one Telecommunications Carrier
to another, and for such other purposes as may be permitted by Applicable
Law.
2. BELL ATLANTIC PRE-OSS SERVICES
2.1 As used in this Schedule 12.3, "BA Pre-OSS Service" means a service
which allows the performance of an activity which is comparable to an
activity to be performed through a BA OSS Service and which BA offers to
provide to Covad prior to, or in lieu of, BA's provision of the BA OSS
Service to Covad. The term "BA Pre-OSS Service" includes, but is not
limited to, the activity of placing orders for BA Retail
Telecommunications Services through a telephone facsimile communication.
2.2 Subject to the requirements of Applicable Law, the BA Pre-OSS Services
that will be offered by BA shall be as determined by BA and BA shall have
the right to change BA Pre-OSS Services, from time-to-time, without the
consent of Covad.
2.3 Subject to the requirements of Applicable Law, the prices for BA
Pre-OSS Services shall be as determined by BA and shall be subject to
change by BA from time-to-time.
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2.4 The provisions of Sections 1.5 through 1.9 above shall also apply to
BA Pre-OSS Services. For the purposes of this Section 2.4: (a) references
in Sections 1.5 through 1.9 above to BA OSS Services shall be deemed to
include BA Pre-OSS Services; and, (b) references in Sections 1.5 through
1.9 above to BA OSS Information shall be deemed to include information
made available to Covad through BA Pre-OSS Services.
3. RATES AND CHARGES
The prices for the foregoing services shall be as set forth in BA's
Tariffs or, in the absence of an applicable BA Tariff price, in Exhibit A
or, if not set forth in either, as may be determined by BA from time to
time. If BA at any time offers another resale support service the prices
for which are not stated in BA's Tariffs or Exhibit A, BA shall have the
right to revise Exhibit A to add such prices.
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SCHEDULE 13.4
COLLOCATION: SHARED CAGE ARRANGEMENT
1. Service Description
(A) Shared Cages provide an additional option to Covad for
Interconnection and access to unbundled Network Elements. Shared
Cages refers to an arrangement in which a Collocation node is shared
by two CLECs purusant to terms and conditions agreed to by those
CLECs.
(B) For established collocation nodes, the initial CLEC is the
"Collocator of Record" ("COR"), or "host" collocator; the other
collocator participating in the sharing arrangement is referred to
in this Agreement as the "guest". When two collocators request
establishment of a new Collocation node, to be used as a Shared
Cage, one of the participating CLECs must agree to be the COR and
the other to be the guest. The host collocator is BA's customer, and
has all of the rights and obligations applicable under this
Agreement and the applicable Tariff to CLECs purchasing
Collocation-related services, including, without limitation, the
obligation to pay all applicable charges, whether or not the COR is
reimbursed for all or any portion of such charges by the guest.
Neither this Agreement, nor any actions taken by BA or the COR in
compliance with this Agreement or the applicable Tariff, shall
create a contractual, agency, or any other type of relationship
between BA and the guest collocator in a sharing arrangement; and BA
does not assume any liability or obligation to the guest for any
actions of the COR. The two involved collocators are solely
responsible for determining whether to share a cage, and if so upon
what terms and conditions.
2. Shared Cage Arrangement
(A) The host CLEC must notify BA in writing of its intention to share
its cage space and provide BA with a certificate of insurance from
the guest before the guest occupies the cage.
(B) All orders for Telecommunications Services or unbundled Network
Elements must be placed by or on behalf of the COR. The host and
guest may agree that such orders may be placed by the guest on
behalf of the host, but in such case BA must be provided with an
acceptable Letter of Authorization explicitly authorizing the guest
to place such orders. Where an order is placed by the guest in
conformity with this section BA will send bills for the ordered
services to the guest, and will accept payments from the guest on
the COR's account. Notwithstanding such ordering and billing
arrangements, the obligation to pay BA for such services
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remains exclusively with the COR, regardless of whether the guest
complies with its obligations under its contract with the COR to
make payments to the COR or to BA. BA may pursue any available
rights and remedies against the COR in the event of non-payment,
without first seeking payment from the guest, regardless of whether
the services for which payment is due are being used by the COR or
by the guest.
(C) All terms and conditions for Physical Collocation as described in
applicable Tariffs and in Section 13.0 of this Agreement will apply.
In addition, the following terms and conditions will apply to shared
cages:
(1) The guest must be a CLEC.
(2) The host and guest must each be collocating for the purpose of
interconnecting to BA or accessing BA's unbundled Network
Elements.
(3) In its use of a Shared Cage, the guest must comply with the
same BA rules and regulations and municipal/zoning regulations
as are applicable to the COR.
(4) The COR assumes the responsibility for the guest's violation
of all Tariff regulations and other requirements related to a
Shared Cage arrangement, and will be liable for any damage or
injury to BA caused by the conduct of the guest, to the same
extent as the COR would be liable if it had engaged in such
conduct itself. The COR will also indemnify BA against any
third-party claims resulting from the guest's conduct, to the
same extent as it would be responsible for such
indemnification if it had engaged in such conduct itself.
(5) The host and guest will participate in Method of Procedure
(MOP) meetings detailing the installation work to be performed
by the guest. This shall be completed for all Physical
Collocation equipment installation. The host shall prominently
display the signed MOP at the multiplexing node while any
installation functions are performed.
(6) The host must provide BA's designated representative(s) with a
list of the names of all technicians who will need access to
the Shared Cage for support, maintenance and repair purposes.
The host is responsible for supplying such representative(s)
with the required completed non-employee ID badge application
forms and all appropriate indentification material for its
employees/agents as well as those of the guest.
(7) BA will issue only one identifying cage and POT Bay CLLI code
and provide it to the host. The host will assume connecting
facility assignment (CFA) responsibilities.
(8) All occupancy and specific cage construction communications
(e.g., cage
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augments, cage access or deployment requirements) will be
between the host and BA as specified in this Agreement.
(9) The host will remain responsible for all costs associated with
the cage (e.g., cage construction, POT Bay installation). BA
will not split bill any of the rate elements associated with
the Collocation cage between the host and its tenant (e.g.,
recurring square foot charges, power, cable racking).
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SCHEDULE 27.2
PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
1. Performance Monitoring Reports
1.1. Subject to the provisions of this Schedule 27.2, BA shall provide to Covad
performance monitoring reports ("Performance Monitoring Reports") for services
and facilities provided by BA. Subject to the provisions of Appendix 1, the
Performance Monitoring Reports will include the measurements set forth in
subsections (a) through (d) of this Section 1.1, to the extent the measurements
set forth in a subsection are applicable to the services set forth in such
subsection: (a) for services provided to BA's retail customers, in the
aggregate, the measurements stated in Appendix 1, Section 6, "Retail"; (b) for
services and facilities provided to any BA local exchange affiliate purchasing
Interconnection,(1) if BA decides to operate a wholesale carrier, the
measurements stated in Appendix 1, Section 2, "Unbundled Network Elements",
Section 3, "Resale", and Section 4, "Network Interconnection Trunks"; (c) for
services and facilities provided to carriers purchasing Interconnection, in the
aggregate, the measurements stated in Appendix 1, Section 1, "OSS", Section 2,
"Unbundled Network Elements", Section 3, "Resale", Section 4, "Network
Interconnection Trunks", and Section 5, "CLEC Billing"; and, (d) for services
and facilities provided to Covad, the measurements stated in Appendix 1, Section
2, "Unbundled Network Elements", Section 3, "Resale", and Section 4, "Network
Interconnection Trunks".(2)
- ----------
(1) As used in this Schedule 27.2, Section 1.1, "Interconnection" includes
interconnection, transport and termination, services for resale, and/or access
to unbundled network elements, under Section 251 of the Act, as amended.
(2) The measurements listed in subsections (b) and (d) do not include Section 2,
"Unbundled Network Elements", Measurement 7, "% Flow Through Orders", and
Section 3, "Resale", Measurement 7, "% Flow Through Orders".
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1.2 The Performance Monitoring Reports shall be provided on a calendar quarter
basis (January through March, April through June, July through September,
October through December) with monthly information detail. The Performance
Monitoring Reports shall be provided within forty-five (45) days after the
completion of each calendar quarter. The first Performance Monitoring Reports
shall cover the calendar quarter of [?], 1998.
2. Performance Metrics, Standards and Remedies
2.1 Appendix 2 sets out performance standards for 21 service quality measurement
items ("Performance Metrics") listed in the Performance Monitoring Reports. BA
shall measure on a calendar quarter basis BA's performance for each Performance
Metric for service provided to Covad.
2.2 If for any calendar quarter BA fails to meet the standard for a Performance
Metric for service provided to Covad, BA will conduct an investigation with
regard to the failure. The investigation will review the validity of the
measurement for the Performance Metric, and, if the measurement is concluded to
be valid, identify the cause of the failure. After identifying the cause of the
failure, BA will take commercially reasonable action to correct the failure
resulting from such cause. Covad shall provide all information and support
reasonably requested by BA in order to enable BA to conduct the investigation
and to correct any failure.
2.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2, above, to the extent the failure to meet the standard
for a Performance Metric is caused by a Delaying Event. As used in this Schedule
27.2, "Delaying Event" means: (a) a failure by Covad to perform any of its
obligations set forth in this Agreement; (b) any delay, act or failure to act by
Covad or a customer, end-user, agent, affiliate, representative, vendor, or
contractor of Covad; (c) any Force Majeure Event
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as defined in Section 28.3; (d) any event, delay, act or failure to act, beyond
the reasonable control of BA; or, (e) such other event, delay, act or failure to
act upon which the Parties may agree. In calculating a Performance Metric, BA
may adjust the performance data to exclude any negative effect upon BA's meeting
the standard for the Performance Metric caused by a Delaying Event. If, pursuant
to this Section 2.3.1, BA adjusts performance data to exclude a negative effect
upon BA's meeting the standard for a Performance Metric caused by a Delaying
Event, BA shall provide to Covad a reasonably detailed description of the
adjustment. If Covad disputes the appropriateness of the adjustment, either
Party may seek resolution of the dispute in accordance with Section 28.11 of the
Agreement.
2.3.2 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric that shows a failure to meet
a performance standard if BA can reasonably show that (a) the measurement for
the Performance Metric does not have a statistically valid basis, or (b) the
data measured for service provided to Covad cannot be validly compared to the
measurement to which Appendix 2 specifies such data is to be compared (e.g., the
measurement for service provided to BA retail customers). If, pursuant to the
preceding sentence of this Section 2.3.2, BA excludes from action under Section
2.2 any Performance Metric, BA shall provide to Covad a reasonably detailed
explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
2.3.3 BA may exclude from consideration in calculating Performance Metrics any
activities where Covad has requested a date due or other performance interval
different from (greater or less than) that which BA provides for its own retail
customers or its other telecommunications carrier customers.
2.3.4 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric where the data for two or
more months in a calendar quarter have been
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excluded from consideration pursuant to the provisions of this Agreement.
2.4 For each Performance Metric related to UNE or Resale Services that requires
calculation of a percentage, a minimum of 200 items per calendar quarter for the
denominator shall be a prerequisite (e.g., a/200 x 100 = b%). Lack of the
minimum 200 items will result in BA being deemed to have met the standard for
that Performance Metric. For each Performance Metric related to Interconnection
Trunks that requires calculation of a percentage, a minimum of 50 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/50 x 100 =
b%). Lack of the minimum 50 items will result in BA being deemed to have met the
standard for that Performance Metric.
2.5 As used in Appendix 2 for those Performance Metrics where "Parity" is the
standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
3. Performance Measurements, Standards and Remedies
3.1 Appendix 3 sets forth nine (9) performance categories ("Performance
Categories"). Each Performance Category is composed of one or more performance
measurements, which are listed in the left-hand column of each Performance
Category matrix ("Performance Measurements"). Each Performance Category
point-score, when calculated, will be the sum of the point-scores of the
Performance Measurements composing that Performance Category, and may be "0", a
positive number (+1 or higher), or a negative number (-1 or less).
3.2 BA shall measure on a calendar quarter basis BA's performance for each
Performance Measurement for service provided to Covad. No later than sixty (60)
days after the completion of each calendar quarter, BA shall forward to Covad a
statement showing BA's performance for each Performance Measurement for service
provided to Covad and a calculation of each Performance
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Category point-score ("Performance Statement").
3.3 If for any calendar quarter BA fails to obtain a point-score of "0" or
higher for a Performance Measurement for service provided to Covad, BA will
conduct an investigation with regard to the failure. The investigation will
review the validity of the measurement for the Performance Measurement, and, if
the measurement is concluded to be valid, identify the cause of the failure.
After identifying the cause of the failure, BA will take commercially reasonable
action to correct the failure resulting from such cause. Covad shall provide all
information and support reasonably requested by BA in order to enable BA to
conduct this investigation and to correct any failure to obtain a point-score of
"0" or higher for the Performance Measurement.
3.4.1 Subject to the provisions of this Schedule 27.2 and other applicable
provisions of this Agreement, if the point-score for a Performance Category for
service provided to Covad is a negative number (-1 or less) for two (2)
consecutive calendar quarters, BA shall give a billing credit to Covad in the
amount provided for in Appendix 3 ("Performance Credit"). A Performance Credit
shall be given for the second consecutive calendar quarter and for each
subsequent consecutive calendar quarter for which the point-score for the
Performance Category is a negative number (-1 or less). Each Performance
Statement shall include a statement showing any Performance Credit due to Covad.
Each Performance Credit which is due shall be applied to an appropriate Covad
bill no later than thirty (30) days after the Performance Statement stating that
the Performance Credit is due is delivered to Covad.
3.4.2 If the point-score for a Performance Category for service provided to
Covad is a positive number (+1 or more), BA may use the positive point-score for
that Performance Category to off-set a negative point-score for that Performance
Category for the next calendar quarter.
3.4.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 3.3, or
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to pay a Performance Credit, to the extent the negative point-score for a
Performance Measurement or Performance Category is caused by a Delaying Event,
as defined in Section 2.3.1, above. In calculating a Performance Measurement, BA
may adjust the performance data to exclude any negative effect on BA's meeting
the performance standard for the Performance Measurement caused by a Delaying
Event. If, pursuant to this Section 3.4.3.1, BA adjusts performance data to
exclude a negative effect on BA's meeting the performance standard for a
Performance Measurement caused by a Delaying Event, BA shall provide to Covad a
reasonably detailed description of the adjustment. If Covad disputes the
appropriateness of the adjustment, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.2 BA may exclude from consideration in calculating Performance Category
Point Scores and Performance Credits, and shall not be obligated to take
investigative or corrective action pursuant to Section 3.3 with regard to, any
Performance Measurement that shows a failure to meet a performance standard if
BA can reasonably show that (a) the measurement for the Performance Measurement
does not have a statistically valid basis, or (b) the data measured for service
provided to Covad cannot be validly compared to the measurement to which
Appendix 3 specifies such data is to be compared (e.g., the measurement for
service provided to BA retail customers). If, pursuant to the preceding sentence
of this Section 3.4.3.2, BA excludes from consideration in calculating
Performance Category Point Scores and Performance Credits and from action under
Section 3.3 any Performance Measurement, BA shall provide to Covad a reasonably
detailed explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.3 BA may exclude from consideration in calculating Performance
Measurements any activities
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where Covad has requested a date due or other performance interval different
from (greater or less than) that which BA provides for its own retail customers
or its other telecommunications carrier customers.
3.4.3.4 BA may also exclude from consideration in calculating Performance
Category point-scores and Performance Credits, and shall not be obligated to
take investigative or corrective action pursuant to Section 3.3 with regard to,
any Performance Measurement where the data for two or more months in a calendar
quarter have been excluded from consideration pursuant to the provisions of this
Agreement.
3.4.4 For each Performance Measurement related to OSS, UNE, Resale Services or
Billing, that requires calculation of a percentage, a minimum of 200 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/200 x 100
= b%). Lack of the minimum 200 items will result in BA receiving a "0 Points"
score for that Performance Measurement. For each Performance Measurement related
to Interconnection Trunks that requires calculation of a percentage, a minimum
of 50 items per calendar quarter for the denominator shall be a prerequisite
(e.g., a/50 x 100 = b%). Lack of the minimum 50 items will result in BA
receiving a "0 Points" score for that Performance Measurement.
3.4.5 As used in Appendix 3 for those Performance Measurements where "Parity" is
the standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
4. Notwithstanding anything in this Agreement to the contrary, the Performance
Metrics, Performance Metrics standards, Performance Measurements, Performance
Measurements standards, Performance Categories, and Performance Credits,
provided for in this Schedule 27.2 shall also apply to Covad with regard to OSS,
UNE, Resale Services, Interconnection Trunks,
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and other services and arrangements, purchased by BA from Covad. Covad shall for
OSS, UNE, Resale Services, Interconnection Trunks, and other services and
arrangements, purchased by BA from Covad, provide to BA Performance Monitoring
Reports and Performance Statements similar to those to be provided by BA to
Covad. If Covad fails to meet a standard for a Performance Metric or a
Performance Measurement or incurs a negative point-score on a Performance
Category, Covad shall (a) undertake correction of the failure, to the same
extent as BA would be required to undertake correction of the failure under this
Schedule 27.2, and (b) give Performance Credits to BA, to the same extent as BA
would be required to give Performance Credits to Covad under this Schedule 27.2.
5. Appendix 1 sets out definitions for terms that are used in this Schedule
27.2. Except as clearly stated otherwise in a particular instance, these
definitions apply throughout this Schedule 27.2.
6. Covad agrees that the information contained in the Performance Reports and
the information contained in the Performance Statements is confidential and
proprietary to BA, and shall be used by Covad solely for internal performance
assessment purposes, for purposes of joint Covad and BA assessments of service
performance, and for reporting to the Commission, the FCC, or courts of
competent jurisdiction, under cover of an agreed-upon protective order, for the
sole purpose of enforcing BA's obligations under this Agreement. Covad shall not
otherwise disclose the information contained in the Performance Reports or
Performance Statements to third-persons.
7. BA shall provide Covad with access to the available data and information
necessary for Covad to verify the accuracy of the Performance Monitoring Reports
provided by BA to Covad. Covad agrees that such data and information is
confidential and proprietary to BA and shall be used by Covad solely for the
purpose of verifying the accuracy of the Performance Monitoring Reports. Covad
shall not disclose such data and information to third-persons. BA shall be
obligated to retain data and information for access by Covad under this Section
7 only for the period of time required by Applicable
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Laws.
8. In providing Performance Reports to Covad, providing Performance Statements
to Covad, providing Covad with access to data and information pursuant to
Section 7, above, and otherwise performing its obligations under this Schedule
27.2, BA shall not be obligated, and may decline, to disclose to Covad any
individually identifiable information pertaining to a person other than Covad,
including, but not limited to, any other carrier customer of BA or any retail
customer of BA.
9. The Parties acknowledge that this Schedule 27.2 is intended to implement
obligations of BA under the FCC's Memorandum Opinion and Order in "In the
Applications of NYNEX Corporation, Transferor, and Bell Atlantic Corporation,
Transferee, For Consent to Transfer Control of NYNEX Corporation and Its
Subsidiaries", File No. NSD-L-96-10, Released August 14, 1997. This Schedule
27.2 shall be interpreted and construed in a manner consistent with the FCC's
Memorandum Opinion and Order.
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SCHEDULE 27.2
APPENDIX 1
PERFORMANCE MONITORING REPORTS
1. OSS
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
OSS:
- --------------------------------------------------------------------------------
Pre-Order Process:
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1. Pre-Order Response Time: Not Carrier Specific
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and
reservation
- --------------------------------------------------------------------------------
2. Availability of BA interface to OSS access: Not Carrier Specific
- --------------------------------------------------------------------------------
o % Interface Uptime(3)
- --------------------------------------------------------------------------------
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(3) This Schedule contemplates that measurements will be conducted in connection
with the use and/or operations of various BA systems (including, but not limited
to, ECG, EDI, WebGUI, and BA systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing). The Parties, through good faith
negotiation, shall amend this Schedule from time-to-time as necessary to conform
the Schedule to changes in, discontinuance of, or replacement of, BA systems.
Nothing in this Schedule shall be deemed to prevent BA from changing,
discontinuing or replacing any BA system or any version, issue or edition of a
BA system.
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2. UNBUNDLED NETWORK ELEMENTS ("UNE"):
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
- --------------------------------------------------------------------------------
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
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6. Timeliness of Completion Notification:
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o Average Response Time - Notice of Completion
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2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
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Provisioning Process
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8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. - Dispatch
o % Missed Installation Appt. - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appt.
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
12
<PAGE>
2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Trouble Report Rate - Dispatch
o Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt - Dispatch
o % Missed Repair Appt - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Dispatch (Run
Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
13
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials
o Average Response Time - Rejects
o Mechanized (Flow Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
% Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
14
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed -No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
15
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) -
Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair (Run Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
16
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
17
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o a. Average Response Time: Firm Order
Confirmation
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
4. Reject Timeliness Manual Tracking
- --------------------------------------------------------------------------------
o a. Average Response Time: Rejects
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion Manual Tracking
(Requires Serial Number)
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
18
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Network Performance
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Blockage
- --------------------------------------------------------------------------------
19
<PAGE>
5. CLEC BILLING (All Services, Interconnection, UNE and Resale):
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Usage Feed
- --------------------------------------------------------------------------------
o Timeliness of Usage Information
o % Usage in 3 business days
- --------------------------------------------------------------------------------
o % Usage in 4 business days
o % Usage in 5 business days
o % Usage in 8 business days
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Bill Not Carrier Specific
- --------------------------------------------------------------------------------
20
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time:
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and reservation
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
21
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines):
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) - Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate - Total
o Network Trouble Report Rate - Dispatch
o Network Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Total (Run Clock)
o Mean Time to Repair - Dispatch (Run Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
22
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Trunks
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered FGD
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed FGD
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons) FGD
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities FGD
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days FGD
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate FGD
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock) FGD
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours FGD
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days FGD
- --------------------------------------------------------------------------------
19. % Common Final Trunk Blockage
- --------------------------------------------------------------------------------
23
<PAGE>
DEFINITIONS
The following definitions apply to the terms used in this Schedule 27.2.
Product Definitions:
- --------------------------------------------------------------------------------
Products: Definition:
- --------------------------------------------------------------------------------
o POTS services Retail and Resale POTS includes all non-designed
lines/circuits that originate at a customer's
premise and terminate on an OE (switch Office
Equipment). All others are considered specials.
POTS includes Centrex, Basic ISDN and PBX trunks.
- --------------------------------------------------------------------------------
UNE POTS includes Basic 2-Wire Analog Loop,
Customer specified signaling loops, Analog Line
Port, and Interim Number Portability. Includes
both new loops and "coordinated cutover" loop
orders. "Coordinated cutover" loops are orders
where a live customer is converted to a CLEC
re-using the outside plant facilities.
Coordination of all parties is necessary to
minimize disruption of service to the end user.
- --------------------------------------------------------------------------------
o Special Services Special Services ("Specials") are services or
elements that require design intervention. These
include such services/elements as: high capacity
services (DS1 or DS3), Primary rate ISDN, digital
services, private lines, multiplexing, and
Interoffice Facilities.
- --------------------------------------------------------------------------------
o Interconnection Trunks Includes switched local interconnection (message)
trunks carrying traffic between BA and CLEC
offices. Includes End Office and Tandem trunks.
- --------------------------------------------------------------------------------
o Number of Installation Total number of "N", "T", or "C" type orders.
Orders These orders include new orders, orders where the
service is moving to a different location, or
changes for existing service.
- --------------------------------------------------------------------------------
24
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Pre-Ordering: .
- --------------------------------------------------------------------------------
1. Response Time: Note: All Pre-Order measures are reported on an
aggregated basis and are not CLEC specific. Where
BA uses an access platform and Operations Support
System (OSS) that serve multiple states, BA may
combine measurement data from those states for
this measurement.
"Response time" is defined as the time, in
seconds, that elapses from issuance of a query
request to receipt of a response. For CLECs, this
performance is measured at the ECG access
platform. For BA, this performance is measured
directly to and from the Operations Support System
(OSS). (This measurement does not apply to the
WebGUI interface.)
Methodology: BA to sample ten (10) transactions
per hour per transaction type, for each interface,
from Monday to Friday, 8 a.m. to 5 p.m., via
Sentinel system. Sentinel will replicate the
transaction of a BA service representative going
directly to the OSS as well as a CLEC
representative going to the OSS through ECG.
- --------------------------------------------------------------------------------
o Customer Service Record Customer Service Records can range from 1 to about
200 pages.
BA may combine measurement data for PA and DE for
this measurement.
BA may combine measurement data for DC, MD, VA and
WV for this measurement.
- --------------------------------------------------------------------------------
o Other Pre-Order Includes the average response time for the
aggregate performance of the following: (1) due
date availability; (2) address validation; (3)
product & service availability; and, (4) telephone
number availability/reservation.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, WV) for this
measurement.
- --------------------------------------------------------------------------------
25
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
2. OSS Interface Note: All Pre-Order measures are reported on an
Availability aggregated basis and are not CLEC specific. Where
BA uses an access platform that serves multiple
states, BA may combine measurement data from those
states for this measurement.
Measures the percentage of time the OSS interface
is available compared to scheduled availability.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, (%) WV) for this
measurement.
- --------------------------------------------------------------------------------
Ordering:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Mechanized WebGUI4 receipt of a valid order request to EDI or
Orders WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that
flow-through to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Manual Orders WebGUI receipt of a valid order request to EDI or
WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of a
valid Access Service Request ("ASR") to
distribution of a Firm Order Confirmation ("FOC").
Hours exclude weekends and holidays. Includes
orders for less than 96 trunks for which
facilities are available. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
- ----------
(4) As of the effective date of this Agreement, BA's WebGUI may not be fully
available for use in the BA-South states (DE, DC, MD, NJ, PA, VA, WV).
Accordingly, references in this Schedule 27.2 to BA's WebGUI are to BA's WebGUI
when and to the extent it is available for use by [CLEC].
26
<PAGE>
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the Firm
Order Confirmations are sent more than ten (10)
days after receipt of a valid ASR. Days exclude
weekends and holidays. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
27
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
4. Reject Notice Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Mechanized WebGUI receipt of an order request to EDI or
WebGUI distribution of reject or query. Hours
exclude weekends and holidays. Includes orders
received via EDI or WebGUI that flow-through to
legacy OSS ordering and provisioning systems. Does
not include orders with negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Manual WebGUI receipt of a service request to EDI or
WebGUI distribution of reject or query. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of an
Access Service Request ("ASR") to distribution of
a reject or query. Hours exclude weekends and
holidays. Includes orders for less than 96 trunks
for which facilities are available. All ASRs must
be electronically transmitted for measurement to
apply. Does not include orders with negotiated
intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the
reject or query is sent more than 10 days after
receipt of an ASR. Days exclude weekends and
holidays. All ASRs must be electronically
transmitted for measurement to apply. Does not
include orders with negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
28
<PAGE>
- --------------------------------------------------------------------------------
5. % Rejects The percent of total orders received that are
rejected or queried by BA.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
6. Timeliness of Completion The average interval (in days) from work
Notification completion to the distribution of the order
completion notification. Under the current
process: UNE non-loop and Resale order completion
notifications are transmitted either
electronically via EDI or WebGUI or via FAX; for
UNE loop orders, measurement is from the turnover
of the loop to telephonic acceptance by the CLEC;
and, for Interconnection Trunks, measurement is
from work completion to telephonic acceptance by
the CLEC at turn-up. Does not include orders with
negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
7. % Flow Through Orders The percentage of valid orders received via EDI or
WebGUI and processed directly to legacy service
order processor without manual intervention.
Flow-Through measurements are reported on an
aggregated basis and not on a CLEC specific basis.
Where BA uses an access platform and OSS that
serve multiple states, BA may combine measurement
data from those states for this measurement.
- --------------------------------------------------------------------------------
Provisioning:
- --------------------------------------------------------------------------------
8. Average Interval - Average number of business days between order
Offered application date and committed due date. The
application date is the date that a valid service
request is received. For orders received after 12
Noon Eastern Time the next business day is
considered the application date. Includes "W"
coded orders only. Does not include an order with
a due date that is beyond the standard available
appointment interval. Does not include coordinated
cut-over orders.
- --------------------------------------------------------------------------------
29
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
9. Average Interval - Average number of business days between order
Completed application date and actual work completion date.
The application date is the date that a valid
service request is received. Completion date is
the field completion date noted on the Service
Order. Includes "W" coded orders only. Orders
completed late due to a CLEC or CLEC end user
caused delay are excluded from this performance
measure. Does not include an order with a due date
that is beyond the standard available appointment
interval.
- --------------------------------------------------------------------------------
10. % Completed within For POTS orders of 1 to 5 lines. The percentage of
5 business days - Total orders completed in 5 business days between order
application date and actual work completion date.
The application date is the date that a valid
service request is received. Includes "W" coded
orders only. Orders completed late due to a CLEC
or CLEC end user caused delay are excluded from
this performance measure. Does not include an
order with a due date that is beyond the standard
available appointment interval. Does not include
coordinated cut-over orders, such as loop or
number portability orders.
- --------------------------------------------------------------------------------
11. % Missed Installation Percentage of all orders completed for which there
Appointment - BA - Total was a missed installation appointment caused by
BA. Excludes missed installation appointments
caused by CLEC or end user, including required
access not available during appointment interval.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require the
Appointment - Dispatch assignment of loop facilities, switching
office equipment, or both.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require
Appointment - No switching translations work only. These
Dispatch are primarily "feature orders".
- --------------------------------------------------------------------------------
12. % Missed Installation Percentage of all orders completed for which there
Appointment - Facilities was a missed installation appointment due to lack
of BA facilities.
- --------------------------------------------------------------------------------
30
<PAGE>
- --------------------------------------------------------------------------------
13. % Installation Troubles Percentage of lines/circuits/trunks ordered for
within 30 Days which a Network Trouble (Disposition Codes, 3, 4
and 5) is reported and found within 30 days of
order completion. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), and troubles closed due to
customer action. Trouble reports on unregulated
services, such as Voice Messaging, are excluded.
- --------------------------------------------------------------------------------
31
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Maintenance:
- --------------------------------------------------------------------------------
14. Network Trouble Report Total Initial Customer direct or referred Troubles
Rate reported on services by customer, where the
trouble disposition was found to be a network
problem (Disposition Codes 3, 4 and 5), per 100
lines/circuits/trunks in service. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Codes 3 (Drop Wire) and
Dispatch 4 (Outside Plant) only. Troubles found to be in
the Outside Plant facilities.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Code 5 (Central Office)
No Dispatch only. Troubles found to be within the Central
Office, including translation troubles.
- --------------------------------------------------------------------------------
15. % Missed Repair The percentage of Initial Network Trouble Reports
Appointments (Disposition Codes 3, 4 and 5) that are not
repaired and cleared by the time committed.
Excludes subsequent reports (additional customer
calls while the trouble is pending), Customer
Provided Equipment (CPE) troubles, troubles
reported but not found (Found OK and Test OK), and
troubles closed due to customer action. Also
excludes missed repair appointments caused by CLEC
or end user, including required access not
available during appointment interval. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch was
Appointment - Dispatch required outside of the BA Central Office and the
trouble was found in Outside Plant (Disposition
Codes 3 and 4). Troubles where there was both an
inside and an outside dispatch are included if the
final resolution was a loop trouble.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch may
Appointment - No have been required outside of the BA Central
Dispatch Office, but the trouble was resolved within the
Central Office. Includes translation type troubles
as well as Central Office type troubles.
- --------------------------------------------------------------------------------
32
<PAGE>
- --------------------------------------------------------------------------------
16. Mean Time to Repair For Initial Customer Trouble Reports found to be
network troubles (Disposition Codes 3, 4 and 5),
the average duration time from trouble receipt to
trouble clearance. Running clock for POTS
troubles. Stop Clock for Specials troubles and
Interconnection Trunk troubles. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
17. % Out of Service Network troubles (Disposition Codes 3, 4 and 5)
[greater than] 24 Hours out of service, repaired and cleared more than 24
hours after receipt of a customer trouble report,
as a percentage of total network troubles
(Disposition Codes 3, 4 and 5) out of service. Out
of Service means that there is no dial tone, the
customer cannot call out, or the customer cannot
be called. The Out of Service period commences
when the trouble is entered into BA's designated
trouble reporting interface either directly by the
CLEC or by a BA representative upon notification
by the CLEC. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), troubles closed due to customer
action, and troubles not out of service. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
Key Service Quality Measurement Definitions:
33
<PAGE>
- --------------------------------------------------------------------------------
18. % Repeat Trouble The percentage of network troubles (Disposition
Reports within 30 days Codes 3, 4 and 5) cleared that have an additional
trouble within thirty (30) days for which a
network trouble (Disposition Codes 3, 4 and 5) is
found. A "Repeat Trouble Report" is a trouble on
the same line/circuit/trunk as a previous trouble
reported within the last thirty (30) calendar
days. A trouble report is not treated as a "Repeat
Trouble Report" where the original trouble report
was: trouble that had an originating disposition
code of CPE (customer premises
equipment--disposition codes 12 and 13); trouble
that had an originating disposition code of
Customer Action (disposition code 6); or, trouble
that originally closed as a Front End Close-Out. A
trouble report is also not treated as a "Repeat
Trouble Report" where the repeat report is: a
subsequent report (an additional customer call
while the trouble is pending); customer provided
equipment (CPE) trouble; trouble reported but not
found (Found OK and Test OK); or, trouble closed
due to customer action.
- --------------------------------------------------------------------------------
Network Performance:
- --------------------------------------------------------------------------------
19. % Common Final Trunk Measures the percentage of BA Common Final Trunk
Blockage Groups that exceed the applicable blocking design
threshold (either B.01 or B.005).
Common Final Trunks: Common Final Trunks carry
local traffic between BA end offices and the BA
Tandem and between BA end offices.
Does not include Common Final Trunks carrying only
IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA trunk
groups exceeding the applicable blocking design
threshold (either B.01 or B.005) will be reported.
For B.01 design, this is trunk groups exceeding a
threshold of about 3% blocking. For B.005 design,
this is trunk groups exceeding a threshold of
about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
- --------------------------------------------------------------------------------
34
<PAGE>
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Measures the percentage of BA Dedicated Final
Blockage Trunk Groups that exceed the applicable blocking
design threshold (either B.01 or B.005).
Dedicated Final Trunks: Dedicated final trunk
groups carry local traffic from a BA Access Tandem
to a CLEC switch. A dedicated final trunk group
does not overflow.
Does not include IXC dedicated trunks or Dedicated
Final Trunks carrying only IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA to CLEC
dedicated final trunk groups exceeding the
applicable blocking design (either B.01 or B.005)
will be reported. For B.01 design, this is trunk
groups exceeding a threshold of about 3% blocking.
For B.005 design, this is trunk groups exceeding a
threshold of about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
35
<PAGE>
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Measures the number of business days from the
Usage Feed creation of the message to the date that the usage
information is made available to the CLEC on the
daily usage feed. Measured in percentage of usage
records available for transmission in 3, 4, 5, and
8 business days. The measurement includes both UNE
and Resale.
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Measures the percentage of carrier bills ready for
Bill distribution to the carriers within 10 business
days of the bill date. Includes mechanized and
paper carrier CABS bills for both carrier access
and CLECs. Does not include summary bills sent
from CRIS. This is an aggregate measurement and
not CLEC specific.
- --------------------------------------------------------------------------------
36
<PAGE>
SCHEDULE 27.2
APPENDIX 2
PERFORMANCE METRICS, STANDARDS AND REMEDIES
A. Unbundled Network Elements
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(UNE KSQM 13)(5) Parity
- ----------
(5) "(UNE KSQM 13)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Metric.
37
<PAGE>
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(UNE KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair - Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair - No Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
B. Resale Services
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - No Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (Specials)
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - No Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
38
<PAGE>
- --------------------------------------------------------------------------------
Average Interval Completed (Specials)
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair (POTS)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
C. Interconnection Trunks
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
FOC Timeliness [greater than or equal
(Network Interconnection Trunks {"IT"} KSQM 3.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Rejects Timeliness [greater than or equal
(IT KSQM 4.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Average Interval Offered
(IT KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed
(IT KSQM 9) Parity
- --------------------------------------------------------------------------------
D. Network Performance
1. Final Trunk Group Blocking
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Dedicated Final Trunk Group Blockage (CLEC Trunks) Standard, as
(IT KSQM 20) applicable)
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Common Final Trunk Group Blockage (Retail Trunks) Standard, as
(IT KSQM 19) applicable)
- --------------------------------------------------------------------------------
39
<PAGE>
Parity
"Parity" will be determined in accordance with the statistical methodology set
forth in Appendix 4, "Statistical Methodology for Determining 'Parity' Range".
"Parity" for UNE and Resale Services will be based upon a comparison of BA's
performance for the above Performance Metrics with BA's performance for the
appropriate corresponding Retail measurements set forth in Appendix 1, or, in
the absence of appropriate corresponding Retail measurements set forth in
Appendix 1, Retail measurements as reasonably determined and provided by BA.
Definitions, Conditions, Requirements & Exclusions for Appendix 2
See, "UNE Definitions, Conditions, Requirements & Exclusions", "Resale
Definitions, Conditions, Requirements & Exclusions", "Interconnection Trunk
Definitions, Conditions, Requirements & Exclusions", and "Billing Definitions,
Conditions, Requirements & Exclusions", in Appendix 3, which are incorporated
here by reference. As used in this Appendix 2, references to Performance
Measurements in "UNE Definitions, Conditions, Requirements & Exclusions",
"Resale Definitions, Conditions, Requirements & Exclusions", "Interconnection
Trunk Definitions, Conditions, Requirements & Exclusions", and "Billing
Definitions, Conditions, Requirements & Exclusions", in Appendix 3, shall be
deemed to be references to Performance Metrics.
Resale Services
1. Ordering and Provisioning. Average Interval Offered and Average Interval
Completed Performance Measurements do not include orders with negotiated
intervals.
Interconnection Trunks
1. FOC and Rejects measurements apply only to electronically received ASRs.
2. FOC and Rejects measurements apply only to additions to existing trunk
groups, adding less than 96 trunks, with no routing or translations changes.
3. Average Interval Offered measurement comparison is to IXC Feature Group D
switched access trunks provided by BA to IXCs.
4. Average Interval Offered measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
5. Average Interval Completed comparison is to IXC Feature Group D switched
access trunks provided by BA to IXCs.
6. Average Interval Completed measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
40
<PAGE>
SCHEDULE 27.2
APPENDIX 3
PERFORMANCE MEASURMENTS, STANDARDS AND REMEDIES
A. Operational Support Systems
1. Performance Category 1 -- OSS Pre-Order Response Time and Availability
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Customer Service [greater than] 7.0 to 8.5 [less than]
Records 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.a)(6) difference difference difference
- -------------------------------------------------------------------------------------
</TABLE>
- ----------
(6) "(OSS KSQM 1)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Measurement.
41
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Aggregated Other [greater than] 7.0 to 8.5 [less than]
Pre-Order Transactions 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.b) difference difference difference
- -------------------------------------------------------------------------------------
Access Platform Availability (1) [less than] 99 % [greater than
(OSS KSQM 2) Availability or equal to] 99%
Availability
- -------------------------------------------------------------------------------------
</TABLE>
(1) Excludes (a) scheduled maintenance and (b) unavailability of Operations
Support Systems (e.g., BOSS, Livewire) other than the access platform.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 to -2 points = 1 % of OSS Charges for the Measured Calendar Quarter
-3 points = 2 % of OSS Charges for the Measured Calendar Quarter
42
<PAGE>
OSS Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Response Time:
1. Performance Measurements and Performance Credits apply only to use of the ECG
gateway or such successor OSS gateway as shall be implemented and designated for
measurement under this Performance Category by BA.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
3. Performance Measurements apply only to CSR Retrieval and Aggregated Other
Pre-Order Transactions. Aggregated Other Pre-Order Transactions will initially
include Telephone Number Availability and Reservation, and Address Validation.
Product & Service Availability Information and Due Date Availability will be
added in the future.
4. Covad shall provide to BA forecasts of volumes at least six (6) months prior
to the commencement of the measured calendar quarter. Forecasts for UNE and
Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. Forecasts for Interconnection Trunk volumes (including both number of
orders to be submitted and number of items of service to be ordered) shall be
submitted by Covad either (a) for each month or (b) for each quarter, in which
case the quarterly volume will be pro-rated to a monthly volume. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in timely submitted forecasts by more than 15%
(plus or minus), BA may exclude that month from consideration in calculating
Performance Measurements and Performance Credits and determining whether BA is
obligated to take investigative or corrective action under Section 3.3. If Covad
fails to timely provide the forecasts of volumes to BA, BA may exclude
Performance Category 1 and the Performance Measurements in Category 1 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(7)
- ----------
(7) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
43
<PAGE>
all transactions for that day will be deemed to have at least met "Equals
Standard" ("O" Points).
6. These Performance Measurements are not carrier specific.
Access Platform Availability:
1. This Performance Measurement is not carrier specific. This Performance
Measurement measures the overall availability performance of the OSS access
platform and is not service or function specific.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
44
<PAGE>
B. Unbundled Network Elements:
1. Performance Category 2 - UNE Ordering and Provisioning: (8)
- ----------
(8) "Performance Category 2 - UNE Ordering and Provisioning" does not include
measurement of Provisioning (measurement of Missed Installation Appointments)
for new 2 - Wire ISDN Digital Grade ULLs (BRI ISDN).
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order confirmation
(1) Orders received after 12:00 Noon Eastern Time shall have the "clock" start
at 8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 to -3 points = 5 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -4 to -5 points = 10 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -6 to -7 points = 15 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
45
<PAGE>
(1) Missed Installation Factor = (Missed Installation Appointments for UNE POTS
and Specials provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for UNE POTS and Specials provided by BA
to Covad for the measured calendar quarter) - (Missed Installation Appointments
for POTS and Specials provided by BA to BA retail customers for the measured
calendar quarter as a percentage of Installation Appointments for POTS and
Specials provided by BA to BA retail customers for the measured calendar
quarter).
If more than 10% of Covad's orders are rejected or queried by BA, (9) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
- ----------
(9) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
46
<PAGE>
2. Category 3 - Provisioning of 2-Wire ISDN Digital Grade ULLs (BRI ISDN) (10)
This section applies to missed installation appointments for orders of new(11)
2-Wire ISDN Digital Grade ULLs (BRI ISDN) as described in Section 11.2.3 of this
Agreement.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - No Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding BA
retail measurements for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN).
- ----------
(10) BA is currently developing the means to perform the Performance
Measurements listed in this Category 3. BA will take commercially reasonable
efforts to implement performance of these Performance Measurements within a
reasonable period of time. Until BA has implemented its performance of the
Performance Measurements listed in this Performance Category 3, Performance
Category 3 will not apply and BA will not have an obligation to take
investigative or corrective action pursuant to Section 3.3 with regard to the
Performance Measurements listed in Category 3 or to calculate or provide
Performance Credits pursuant to Category 3.
(11) This section does not apply to the cutover of existing 2-Wire ISDN Digital
Grade loops from BA to Covad.
47
<PAGE>
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 point = 2.5 % of Non-Recurring Charges for orders of new 2-Wire
ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
-2 = 5 % of Non-Recurring Charges for orders of new 2-Wire ISDN
Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for orders of
new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter as a percentage of Installation Appointments for
orders of new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad
for the measured calendar quarter) - (Missed Installation Appointments for
orders of new 2-Wire ISDN Digital Grade lines (BRI ISDN) provided by BA to BA
retail customers for the measured calendar quarter as a percentage of
Installation Appointments for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN) provided by BA to BA retail customers for the measured calendar quarter).
48
<PAGE>
3. Performance Category 4 - UNE Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(UNE KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 2 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-2 points = 4 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-3 points = 6 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
(1) Lines Out of Service Factor = (Percentage of Covad UNE POTS and Specials
lines network troubles out of service [greater than] 24 hours - Percentage of BA
retail customer POTS and Specials lines network troubles out of service [greater
than] 24 hours) x (Covad UNE POTS and Specials lines with network troubles out
of service [greater than] 24 hours, as a percentage of the measured calendar
quarter average total Covad UNE POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair/maintenance function, mutual responsibilities exist. The
responsibility for testing unbundled loops and the identification of a required
dispatch for UNE reside with Covad. Reductions
49
<PAGE>
will be made in the Performance Credit if necessary access is not available, or
if a dispatch is made and no trouble is found,(12) or if trouble is found to be
on the Covad customer's side of the network demarcation point (e.g., in premises
wiring or customer premises equipment), at a statistically higher rate than BA
experiences for BA's own retail customers.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
% No Access Moderate to Parity (1) Moderate to
High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
% Found OK or Trouble Found on Moderate to Parity (1) Moderate to
Customer Premises High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(12) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
50
<PAGE>
UNE Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Unbundled Switching Network Elements are included for measurement after the
establishment of unbundled switching in the switch through the joint
planning/services establishment process.
2. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all UNE
ordering which can be performed via EDI; or, (b) BA's WebGUI is in place and
being used by Covad for all UNE ordering which can be performed via BA's WebGUI.
Covad must implement later specifications of EDI and later versions of WebGUI
within 90 days (or such other shorter period as may be required by this
Agreement) after BA has made them available for Covad's use.
3. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
4. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(13) all
transactions for that day will be deemed to have at least met "Equals Standard"
("O" Points).
- ----------
(13) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
51
<PAGE>
5. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(14) or Covad's customers (including, but not limited to, inability to
access customer interfaces and terminals).
2. If the Expedited Due Dates(15) for UNEs covered by Performance Category 2 for
any one month in a measured calendar quarter exceed 10% of the total
appointments for such UNEs for that month, BA will not be obligated to calculate
Performance Category 2 for that month, or the Performance Measurements in
Performance Category 2 for that month, and may exclude Performance Category 2
for that month, and the Performance Measurements in Performance Category 2 for
that month, from calculation of Performance Credits and from taking
investigative and corrective action under Section 3.3.
If the Expedited Due Dates for UNEs covered by Performance Category 3 for any
one month in a measured calendar quarter exceed 10% of the total appointments
for such UNEs for that month, BA will not be obligated to calculate Performance
Category 3 for that month, or the Performance Measurements in Performance
Category 3 for that month, and may exclude Performance Category 3 for that
month, and the Performance Measurements in Performance Category 3 for that
month, from calculation of Performance Credits and from taking investigative and
corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
a. Loop Orders:
(i) ANI to Covad telephone number, verification successful from
DEMARC by BA field technician.
(ii) All order information submitted by Covad was valid, accurate
and complete (e.g., street address, end user local contact (LCON),
floor/unit number, appropriate Covad transmission equipment
assignment information).
(iii) Covad and Covad's customer were available and ready for
service at appointed date and time.
(iv) Verifiable Covad dial tone and correct Covad telephone number
at POT bay testable by BA technician, by 8:00 a.m. on the date due
minus one (1) day.
- ----------
(14) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(15) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
52
<PAGE>
(v) Accurate account and end user information was submitted on the
service request.
(vi) Orders were completed as submitted without cancellation after
Order Confirmation.
(vii) Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
(viii) For ISDN loops, copper ISDN loops are available that, without
conditioning, meet BA's technical specifications for ISDN loops.
4. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude the
Missed Installation Appointments Performance Measurements for that month from
the calculation of calendar quarter Performance Measurements and Performance
Credits.
6. Performance Measurement calculations for provisioning will exclude UNEs
provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. UNE loops that meet the standards identified in appropriate BA unbundled loop
Technical References will not be treated as Out of Service.
4. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
53
<PAGE>
5. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
54
<PAGE>
C. Resale Services:
1. Performance Category 5 - Resale Services Ordering and Provisioning:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order Confirmation
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- -1 to -3 points = 5 % of Resale Services Non-Recurring Charges for Covad for the
measured calendar quarter multiplied by the Missed Installation Factor(1)
-4 to -5 points = 10 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
55
<PAGE>
-6 to -7 points = 15 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for Resale
Services provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for Resale Services provided by BA to
Covad for the measured calendar quarter) - (Missed Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter as a percentage of Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter).
If more than 10% of Covad's orders are rejected or queried by BA,(16) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
2. Performance Category 6 - Resale Services Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(Resale KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding
Retail measurements set forth in Appendix 1, or, in the absence of appropriate
corresponding Retail measurements set forth in Appendix 1, Retail measurements
to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- ----------
(16) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
56
<PAGE>
-1 point = 2 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -2 points = 4 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -3 points = 6 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
(1) Lines Out of Service Factor = (Percentage of Covad Resale Services POTS and
Specials lines network troubles out of service [greater than] 24 hours -
Percentage of BA retail customer POTS and Specials lines network troubles out of
service [greater than] 24 hours) x (Covad Resale Services POTS and Specials
lines with network troubles out of service [greater than] 24 hours, as a
percentage of the measured calendar quarter average total Covad Resale Services
POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair function, mutual responsibilities exist. The responsibility for
authorizing a dispatch resides with Covad. Reductions will be made in the
Performance Credit if necessary access is not available, or if a dispatch is
made and no trouble is found,17 or if trouble is found to be on the Covad
customer's side of the network demarcation point (e.g., in premises wiring or
customer premises equipment), at a statistically higher rate than the same
performance that BA experiences for BA's own retail customers.
- --------------------------------------------------------------------------------
Equals
Measurement Misses Standard Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
% No Access Rate Moderate to High Parity (1) Moderate to High
probability less than probability better
Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
% Found OK or Trouble Moderate to High Parity (1) Moderate to High
Found on Customer probability less than probability better
Premises Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(17) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
57
<PAGE>
Resale Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all Resale
Services ordering which can be performed via EDI; or, (b) BA's WebGUI is in
place and being used by Covad for all Resale Services ordering which can be
performed via BA's WebGUI. Covad must implement later specifications of EDI and
later versions of WebGUI within 90 days (or such other shorter period as may be
required by this Agreement) after BA has made them available for Covad's use.
2. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
3. When Covad submitted work load for any one hour in a day is more than twice
(2x) the daily average hour Covad submitted work load,(18) all transactions for
that day will be deemed to have at least met "Equals Standard" ("O" Points).
4. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
- ----------
(18) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
58
<PAGE>
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(19) or Covad's customers (including, but not limited to, inability to
access interfaces and terminals).
2. If the Expedited Due Dates(20) for any one month in a measured calendar
quarter exceed 10% of the total appointments for that month, BA will not be
obligated to calculate Performance Category 5 for that month, or the Performance
Measurements in Performance Category 5 for that month, and may exclude
Performance Category 5 for that month, and the Performance Measurements in
Performance Category 5 for that month, from calculation of Performance Credits
and from taking investigative or corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
(a) All order information submitted by Covad was valid (e.g., street
address, end user local contact (LCON), Floor/unit number).
(b) Covad and Covad's customer were available and ready for service at the
appointed date and time. Access to Terminal Equipment was available.
(c) Accurate account and customer information was submitted by Covad.
(d) Orders were completed as submitted without cancellation after Order
Confirmation.
(e) Covad and Covad's customer were available for testing and cooperative
coordination as requested by BA.
4. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude
Missed Installation Appointment Performance Measurements for that month from the
calculation of calendar quarter Performance Measurements and Performance
Credits.
- ----------
(19) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(20) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
59
<PAGE>
6. Performance Measurement calculations for provisioning will exclude Resale
Services provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
4. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
60
<PAGE>
D. Interconnection Trunks
1. Performance Category 7 - Interconnection Trunk Provisioning
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
-1 Point 0 Points + 1 Point
- --------------------------------------------------------------------------------
Provisioning - Missed Moderate to Parity(2) Moderate to
Installation Appointments(1) High High
(IT KSQM 11) probability probability
less than better than
Parity(2) Parity(2)
- --------------------------------------------------------------------------------
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score Credit Applied to
----- ------ ----------
0 or greater No Performance Credits
-1 point 10 % Trunk Non-Recurring Charges for
Covad for the measured calendar
quarter
multiplied by the Missed
Installation Factor(3)
(3) Missed Installation Factor = (Missed Covad Trunk Installation Appointments
for the measured calendar quarter as a percentage of Covad Trunk Installation
Appointments for the measured calendar quarter) - (Missed Installation
Appointments for BA IXC Feature Group D Trunks for the measured calendar quarter
as a percentage of BA IXC Feature Group D Trunk Installation Appointments for
the measured calendar quarter).
Adjustment of Performance Credit:
In the provisioning function, mutual responsibilities exist. In addition to
trunks provided by BA to Covad, Covad will provide trunks to BA. If the
percentage of Missed Appointments for trunks ordered by BA from Covad exceeds
the percentage of missed appointments for trunks ordered by Covad from BA
performance, the Performance Credit will be reduced as stated below. (The
percentage missed appointment calculation comparison requires a minimum sample
size of 50 trunks on both sides to be valid.) Covad shall maintain due date
intervals for trunks to be provided by Covad to BA that are no
61
<PAGE>
longer than BA's due date intervals for comparable trunks.
Trunks Ordered by BA from Covad
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Measurement 100% reduction in Credit 50% Reduction in Credit
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Provisioning of Trunks for BA by Covad - Missed [greater than] 5 percentage points [greater than] 2 but [less than
Installation Appointments: worse than BA Performance or equal to] 5 percentage points
worse than BA Performance
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
2. Performance Category 8 - Interconnection Trunk Maintenance and Repair
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Performance Misses Standard Equals Standard Exceeds Standard
Measurement - 1 point 0 points + 1 point
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Out of Service [greater than] 24 Hours Moderate to High Parity(1) Moderate to High
(IT KSQM 17) probability less than probability better
Parity(1) than Parity(1)
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score % Credit Applied to
----- -------- ----------
0 or greater No Performance Credits
-1 point $ 1.00 Per DS1 Trunk per Day out Lines Out of Service Factor
of service
(1) Lines Out of Service Factor = (Percentage of Covad Interconnection Trunks
network troubles out of service [greater than] 24 hours - Percentage of BA IXC
Feature Group D Trunks network troubles out of service [greater than] 24 hours)
x (Covad Interconnection Trunks with network troubles out of service [greater
than] 24 hours, as a percentage of the measured calendar quarter average total
Covad Interconnection Trunks in service).
62
<PAGE>
Interconnection Trunk Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Provisioning:
1. Performance Measurement calculations for provisioning will be performed only
if for the measured calendar quarter a minimum of 50 trunks was installed by BA
for Covad and a minimum of 100 IXC Feature Group D trunks was installed by BA
for IXCs.
2. Orders must be received electronically, using a BA supported version of BA's
electronic Access Service Request System.
3. Performance Measurement calculations for provisioning will exclude trunks
provided pursuant to negotiated installation intervals.
4. Performance Measurement calculations for provisioning will be based on
comparisons by trunk type (e.g., DS0 with DS0, DS1 with DS1).
5. Covad shall provide to BA forecasts of Interconnection Trunk volumes at least
six (6) months prior to the commencement of the measured calendar quarter.
Forecasts for Interconnection Trunk volumes (including both number of orders to
be submitted and number of items of service to be ordered) shall be submitted by
Covad either (a) for each month or (b) for each quarter, in which case the
quarterly volume will be pro-rated to a monthly volume. If submission volumes
for any one month in a measured calendar quarter vary from forecasted volumes
for such month stated in submitted forecasts by more than 15% (plus or minus),
BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide the forecasts of volumes to BA, BA may exclude Performance
Category 7 and the Performance Measurements in Category 7 from calculation of
Performance Credits and from taking investigative or corrective action under
Section 3.3.
6. Covad Missed Installation Appointments do not include:
a. Installation Appointments missed or rescheduled due to the delay,
act or omission of Covad, Covad's contractors or vendors,(21) or
Covad's customers.
b. Missed Installation Appointments for Covad installations being made
to rehome trunks or for network grooming.
- ----------
(21) For the purposes of Paragraph 6, above, the phrase "Covad's contractors or
vendors" does not include BA.
63
<PAGE>
7. Covad Missed Installation Appointments will be included in the computation
only if they result in a blockage of traffic that is in excess of standard
design blocking thresholds and that is identified and reported to BA by Covad.
8. Covad Missed Installation Appointments will be included in the computation
only if:
a. All order information submitted by Covad was valid.
b. Covad was prepared to accept the installation of service at the
scheduled time.
c. Orders were completed as submitted without cancellation after order
confirmation.
d. Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
9. Covad Missed Installation Appointments include only missed installation
appointments for interconnection trunks used one-way.
Maintenance:
1. This Performance Category will be measured no earlier than completion of the
WFA inventory for Covad and BA trunks and validation of applicable field
procedures.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 04 (Outside Plant) and 05 (Inside Central Office).
3. Applies only to trunks used as per applicable technical specifications.
4. Covad trunks will be included in the computation only if Covad was available
for testing and cooperative coordination if requested by BA.
5. Applies only to trunks where blockage exceeding standard design blocking
thresholds has been identified and reported by Covad.
6. Applies only to interconnection trunks used one-way.
64
<PAGE>
E. Billing
1. Performance Category 9 - Timeliness of Daily Usage Feed ("DUF") for UNE
Switching and Resale Services
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Timeliness of Daily [less than] 90% of 90% to 95% of [greater than] 95% of
Usage Feed recorded call events recorded call events recorded call events
(CLEC Billing KSQM 21) in 5 Business Days in 5 Business Days in 5 Business Days
- ---------------------------------------------------------------------------------------------------
</TABLE>
Calculation of Performance Credit
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 0.25 % of DUF Charges (for UNE Switching and Resale Services)
for Covad for the measured calendar quarter.
Billing Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
1. UNE usage (Daily Usage Feed) information is limited to only Unbundled
Switching. Measurement with regard to Unbundled Switching will begin no earlier
than 4/1/98.
2. Excluded are delays or failures to provide information provided by third
parties.
3. Excluded are delays or failures to provide information where the cause of the
delay or failure also affects BA's ability to collect and utilize information
for itself.
4. Measurement will be made for lines that have been equipped at Covad's request
to collect daily usage feed information.
65
<PAGE>
SCHEDULE 27.2
APPENDIX 4
STATISTICAL METHODOLOGY FOR DETERMINING "PARITY" RANGE
1. For Performance measures where the measure is a yes or no on each measured
item: (e.g., % met or not met):
Measurement Objective:
To determine if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
The following methodology applies to service in which in each instance of its
provision, the outcome can be categorized as a success or a failure (e.g., was
the appointment missed, was a customer's line out of service for more than 24
hours, etc.).
Now, let xij = the ith customers score on service; where
xij = 0 if the outcome is categorized as a success
xij = 1 if the outcome is categorized as a failure
More specifically, let
(SIGMA) x1ij = the number of Covad customers' instances of service
categorized as a failure
The standard of service against which the instances of service to Covad's
customers will be compared is the average of that provided by BA to its own
customers, viz.
P0j = (SIGMA) x0ij where N0j is the number of instances of provision
------------ of service j to BA's customers
N0j
The service index calculated for Covad for service j and which will be compared
against the service standard Poj is given by:
P1j = (SIGMA) x1ij where N1j is the number of instances of provision
------------ of service j to Covad's customers
N1j
It is assumed that N0j will be large relative to N1j ; and that N1j may in fact,
for certain j, be small.
The assumption can be made that the N1j constitutes a sample taken from a larger
population comprised
66
<PAGE>
of N0j ; i.e., instances of service provision like those provided to BA
customers. In this case the N1j are not technically a subset (i.e., sample) of
N0j. But for the purposes of the model we assume that if Covad customers are
being treated the same as BA customers, then the distribution of the x0ij and
the x1ij; should be identical, hence our viewing N1j as a sample of N0j.
If such an assumption is correct then the value P1j should be similar to the
value P0j. If it is not correct, then the two values would be expected to be
different with the magnitude of the difference reflecting how different the two
populations are, and by implication, how different the service level to each.
The question that arises is how close must P1j and P0j be to conclude that the
two populations received similar levels of service and how different must they
be to conclude they did not.
If we assume N1j is a sample taken from a universe identical to the BA universe,
then it is possible to derive the distribution of possible values of P1j that
could occur when drawing a sample of size N1j from such a universe. If N1j is
adequately large, (viz., if N1j is greater than 30) these values will follow a
normal distribution and have:
Expected value = E (x) = N1j x P0j
and
the Variance = Var (x) = N1j x P0j (1-P0j)
If the CLEC population is in fact identical (or very nearly so) to the BA
population, then most values of P1j would lie close to P0j, and if the
populations were not identical than most values of P1j would lie further from
P0j with the magnitude of the differences reflecting how different the two
underlying populations are and, by implication, how different the level of
service provided the two populations.
It is possible to evaluate how likely it is that the N0j and the N1j instances
of service are, on average, the same by evaluating how likely it would be by
chance alone to observe a difference as large as the one in fact observed, viz.
P0j - P1j.
67
<PAGE>
The procedure for performing this evaluation is as follows:
1. Calculate the BA service standard for service j as follows:
P0j = (SIGMA) x0ij
------------
N0j
2. Calculate the level of service provided to Covad as follows:
P1j = (SIGMA) x1ij
------------
N1j
3. Calculate an index of service level comparability, z, as follows:
z = (P0j-P1j)/[square root](P0j(1-P0j)/N1j)
4. Evaluate the probability of similar or dissimilar services for BA and CLEC
customers as follows:
[less than] -0.83 o Probability is moderate to high that Covad customers are
("Misses more poorly served than BA customers.
Standard")
- -0.83 to 0.83 o Probability is weak that Covad customers are more poorly
("Parity") served than BA customers, or the probability is high
that Covad customers are served the same as BA
("Equals customers, or the probability is weak that Covad
Standard") customers are better served than BA customers.
[greater than] 0.83 o Probability is moderate to high that Covad customers are
("Exceeds better served than BA customers.
Standard")
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 1 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 1 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses
68
<PAGE>
Standard") if the result is [less than] -0.83 ("Probability is moderate to high
that Covad customers are more poorly served than BA customers"); (b) to have
equaled or met the "Parity" standard ("Equals Standard") if the result is -0.83
to 0.83 (i.e., "Probability is weak that Covad customers are more poorly served
than BA customers, or the probability is high that Covad customers are served
the same as BA customers, or the probability is weak that Covad customers are
better served than BA customers"); or, (c) to have exceeded the "Parity"
standard ("Exceeds Standard") if the result is [greater than] 0.83 ("Probability
is moderate to high that Covad customers are better served than BA customers").
69
<PAGE>
2. For Performance measures where the measure is a variable measure: (e.g.,
cycle time):
Measurement Objective:
To determine, for those services for which performance level is measured as an
elapsed time, if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
Methodology:
The following methodology applies to service in which in each instance of its
provision, the outcome is represented as a measurement of an interval of time
(e.g., 10 minutes, 2.5 hours, 3.5 days, etc.). For example, "time to restore
service."
Define the variable X, as duration of interval being measured (e.g., time to
restore service in hours)
Now, let Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
xij = BA's ith customer's score on service j i = 1,2,3...Nj
x'ij = Covad's ith customer's score on service j i = 1,2,3...nj
1. Calculate the average duration for service j for all Bell Atlantic customers
as follows:
Average duration of BA customers = [GRAPHIC OMITTED]
2. Calculate the standard deviation of the duration scores on service j for all
BA customers as follows:
Standard deviation of BA customer's scores = [GRAPHIC OMITTED]
70
<PAGE>
3. Calculate the average duration for service j for all Covad customers as
follows:
Average duration of Covad customers = [GRAPHIC OMITTED]
4. Calculate an Index of parity:
Having determined the following values:
Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
[GRAPHIC OMITTED] = the average duration for all BA customers
[GRAPHIC OMITTED] = the standard deviation of duration scores for all BA
customers
[GRAPHIC OMITTED] = the average duration for all Covad customers
Derive an index of parity as follows:
Index of Parity = [GRAPHIC OMITTED]
where values of the index less than 0.0 indicate Covad customers are being
serviced on average with less delay (i.e., better) than BA customers, values of
the index greater than 0.0 indicate Covad customers are being serviced on
average with more delay (i.e., worse) than BA customers,
and
where greater absolute values of the index, t, indicate increasingly less
likelihood that the observed differences between Covad and BA customers' is due
to chance variation, or what is called sampling error, and greater likelihood
the difference is due to other than chance factors.
5. Interpret the Index of Parity by referring to the Parity Translation Table
and following these steps:
a. Note the value of nj as determined previously, and calculate the
value nj-1
b. Locate the value of nj-1 in the first column of the parity index
translation table
c. Inspect the ranges of values of t in the row of the table
corresponding to your value of nj-1, locating the range containing
the value of t corresponding to the one you calculated.
d. Look at the top of the column containing the value of t
corresponding to the one you
71
<PAGE>
calculated and read the interpretation of the calculated index.
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 2 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 2 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses Standard") if the result as shown on the Parity Translation
Table is "Probability that CLEC customers Serviced worse than BA's Customers is
High" or "Probability that CLEC customers Serviced worse than BA's Customers is
Moderate"; (b) to have equaled or met the "Parity" standard ("Equals Standard")
if the result as shown on the Parity Translation Table is "Probability that CLEC
customers Serviced worse than BA's Customers is Weak", "Probability CLEC & BA
Customers Serviced the Same is High", or "Probability that CLEC Customers
Serviced Better than BA's Customers is Weak"; or, (c) to have exceeded the
"Parity" standard ("Exceeds Standard") if the result as shown on the Parity
Translation Table is "Probability CLEC Customers Serviced Better than BA's
Customers is Moderate" or "Probability that CLEC Customers Serviced Better than
BA's Customers is High").
72
<PAGE>
Parity Translation Table
73
<PAGE>
SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE FOR VIRGINIA
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
================================================================================
LATA in Milestone Date
VIRGINIA
- --------------------------------------------------------------------------------
LATA ___ LATA Start Date TBD
-----------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
-----------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
-----------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
-----------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
-----------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
-----------------------------------------------------------
SS7 Certification Achieved; (1) TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements
-----------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
-----------------------------------------------------------
Call-through Testing Completed; TBD
"Interconnection Activation Date"
================================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in Virginia when Covad has an
effective Tariff for business Telephone Exchange Service in Virginia and a
significant number of Telephone Exchange Service Customer lines in service for
business Telephone Exchange Service Customers in that LATA in Virginia that are
not affiliates or employees of either BA or Covad, and (ii) residential
Telephone Exchange Service shall be considered "fully operational" in a LATA in
Virginia when Covad has an effective Tariff for residential
- ----------
(1) SS7 certification scheduling depends on actual schedule availability at time
of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
1
<PAGE>
Telephone Exchange Service in Virginia and has a significant number of Telephone
Exchange Service Customer lines in service for residential Telephone Exchange
Service Customers in that LATA in Virginia that are not affiliates or employees
of either BA or Covad.
2
<PAGE>
SCHEDULE 4.0
VIRGINIA
COVAD IPs BA IPs
- --------- ------
TBD TBD
<PAGE>
Exhibit A
BELL ATLANTIC-VIRGINIA, INC. AND COVAD
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
A. BA Services, Facilities, and Arrangements:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
BA Service Non-recurring Recurring
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1.a. Entrance facilities, and Per interstate [BA FCC #1 sec. 6.9.1.] access tariffs for Feature Group D
transport, as appropriate, service
for Interconnection at BA
End Office, Tandem Office,
or other Point of Illustrative:
Interconnection
Interstate non-recurring: $1, plus $1 switched access connection charge
per DS-1 trunk; DS-1 entrance facility $210-$212/mo.
- -------------------------------------------------------------------------------------------------------------------------------
1.b. Collocation and related services Per interstate [BA FCC 1 sec. 19] access tariffs.
for Interconnection at BA End
Office, Tandem Office, or other
Point of Interconnection
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(1) Pursuant to the Commission's Orders in Case Nos. PUC960100, PUC960103,
PUC960104, PUC960105, and PUC960113, issued on November 8, 1996, rates as set
forth herein, as applied to wholesale discount of retail Telecommunications
Service are final or permanent (until otherwise changed by the Commission), and
all other rates, including rates for unbundled Network Elements, call transport
and/or termination of Local Traffic, shall be interim rates. These interim rates
shall be replaced on a prospective basis by such permanent rates as may be
approved by the Commission from time to time. As such permanent rates are
approved by the Commission, the Parties shall append to this Exhibit an Exhibit
AA, setting forth such rates. Exhibit AA may be updated from time to time by
agreement of the Parties or by order of the Commission.
1
<PAGE>
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
1.c. Tandem transit arrangements (for Per tariffs cited in sections Per interstate [BA FCC 1 Sec. 6.9.1.B] for
Interconnection between Covad 1.a. and 1.b. above, as tandem switching and tandem switched
and carriers other than BA) applicable; separate trunks transport
required for IXC subtending
trunks Illustrative:
Interstate tandem switching
$.000800/mou, tandem switched transport
$.000279/mou plus $.000030/mou/mile
- -------------------------------------------------------------------------------------------------------------------------------
1.d. 911 Interconnection Per tariffs cited in 1.a., 1.b., and 1.c. above, as applicable, for entrance
facility plus applicable transport, or Collocation Arrangement at 911 tandem
- -------------------------------------------------------------------------------------------------------------------------------
1.e. Directory assistance Per interstate tariff BA FCC Per interstate tariff BA FCC 1 sec. 9.6.B
Interconnection 1 sec. 9.6.B
Illustrative:
Per call rate $.000082 fixed, $.000019 per
mile, $.000353 tandem switching, $.002311
interconnection
- -------------------------------------------------------------------------------------------------------------------------------
1.f. Operator services (call Per separate contract
completion) Interconnection
- -------------------------------------------------------------------------------------------------------------------------------
2. Unbundled elements Available as listed herein and pursuant to Section 11 of the Agreement
- -------------------------------------------------------------------------------------------------------------------------------
3. Poles, ducts, conduits, ROW Per contract rates pursuant to 47 U.S.C. sec. 224
- -------------------------------------------------------------------------------------------------------------------------------
4.a Local loop transmission Interim rates as follows until Interim rates as follows until
Commission determines permanent Commission determines permanent
rates: rates:
Unbundled Local Loop Element and
cross-connect to Basic Links
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<S> <C> <C>
Coordinated Cutover Not Applicable If premises visit not
required,
$7.80*/Loop
If premises visit
required,
$18.40*/Loop
</TABLE>
9
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurri------------------------------------------
<S> <C> <C>
4.a (Cont.) ISDN Loops Service Order: $23.93 Density Cell:
Installation: 1 - $19.87/Month
If premises visit not 2 - $24.47/Month
required, initial & each 3 - $41.26/Month
additional loop - $18.47
If premises visit required,
initial loop - $90.87
If premises visit required,
additional loop - $40.02
- -------------------------------------------------------------------------------------------------------------------------------
DS-1 Loops Service Order: $17.72 Density Cell:
Installation: 1 - $157.09/Month
If premises visit not 2 - $177.55/Month
required, initial & each 3 - $233.74/Month
additional loop - $70.58
If premises visit required,
initial loop - $156.29
If premises visit required,
additional loop - $105.43
- -------------------------------------------------------------------------------------------------------------------------------
2 Wire ADSL Loops TBD TBD
- -------------------------------------------------------------------------------------------------------------------------------
2 Wire & 4 Wire HDSL Loops TBD TBD
- -------------------------------------------------------------------------------------------------------------------------------
Distance Extensions for various TBD TBD
ULL types for distances
exceeding transmission
characteristics in applicable
technical references
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(2) Geographic density zones as proposed by BA in Exhibit CAE-54 in Case Nos.
PUC960100, PUC960103, PUC960104, PUC960105, and PUC960113.
3
<PAGE>
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
Coordinated cutover Without field dispatch $11
With field dispatch $25
- -------------------------------------------------------------------------------------------------------------------------------
Cross Connects to Basic Links: $0.86/DS-O
All others at BA's interstate expanded
interconnection tariff.
- -------------------------------------------------------------------------------------------------------------------------------
4.b. Special construction charges As applicable per BA-VA SCC 203 sec. 2
- -------------------------------------------------------------------------------------------------------------------------------
4.c.1 Service Technician Charges As per BA Companies Administrative Guidelines (Detariffed Services) Section
(Maintenance Service Charges) 6.D.2
(service technician work on
unbundled loops outside of the Illustrative:
central office)
Initial visit charge $42.00
Work charge (per quarter hour) $16.00
- -------------------------------------------------------------------------------------------------------------------------------
4.c.2 Central office technician charges Per interstate BA FCC 1 sec. 19.7.7 tariff.
Normal Working Hours:
First 1/2 hour or fraction thereof $90.00/technician
Each Additional 1/2 hour or fraction thereof $30.00/technician
Overtime:
First 1/2 hour or fraction thereof $100.00/technician
Each Additional 1/2 hour or fraction thereof $40.00/technician
Premium Time:
First 1/2 hour or fraction thereof $120.00/technician
Each Additional 1/2 hour or fraction thereof $50.00/technician
- -------------------------------------------------------------------------------------------------------------------------------
5.a. Trunk Side local transport Per interstate [BA FCC 1 sec. 6.9.1.C] tariffs
DS-1 trunks Illustrative recurring:
$60/mo fixed, $17.70/mile/mo
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
5.b. DS-3 trunks Tariff reference see 5.a. above.
Illustrative recurring:
$900/mo fixed, $180/mile/mo
- -------------------------------------------------------------------------------------------------------------------------------
5.c. Mid-span meet arrangements To be charged in accordance with the requirements of Section 4.3 of the
Agreement
- -------------------------------------------------------------------------------------------------------------------------------
6. Local switching(3)
Unbundled Switching $6/service order per line to $0.003/mou of local switch usage
Element establish or modify service
$1.55/mo
POTS switch Port $6/service order plus $6/Port
- -------------------------------------------------------------------------------------------------------------------------------
7 Network Interface Device $7.31/Service Order(4) $.89/Month
$30.99/Premises Visit
$13.31 Labor Charge/Quarter
Hour After First Quarter Hour
- -------------------------------------------------------------------------------------------------------------------------------
8.a. Operator services
911 service (data entry; No charge
database maintenance)
- -------------------------------------------------------------------------------------------------------------------------------
8.b. Directory assistance Per tariff or separate Per tariff or separate contract
contract; branding available
Directory transport per section 1.e. above
- -------------------------------------------------------------------------------------------------------------------------------
8.c. Operator call completion Per separate contract; branding available
- -------------------------------------------------------------------------------------------------------------------------------
9.a. White pages and Yellow Pages $5.00 per primary listing per No charge
(business only) directory number
listings
- -------------------------------------------------------------------------------------------------------------------------------
9.b. Books & delivery (annual home No charge for normal numbers of books delivered to end users; bulk deliveries
area directories only) to CLEC per separate arrangement
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(3) In addition to the recurring and non-recurring rates set forth herein for
unbundled switching elements, BA may levy upon a purchaser of such elements any
access charges (or portion thereof) permitted by Applicable Laws.
(4) These non-recurring rates shall apply only if BA is required to dispatch a
technician to the premises to effect a NID-to-NID access. The rates set forth in
4.c.1 shall apply for NID rearrangements.
5
<PAGE>
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
9.c. Additional listings, changes to As per Commission order number As per Commission order number
listings, non-listed, 961210026 (dated 12/2/96 in 961210026 (dated 12/2/96 in
non-published, and other extra case no. PUC960100), retail case no. PUC960100), retail
services rates less wholesale discount. rates less wholesale discount.
For retail rates see tariff For retail rates see tariff
BA-VA SCC 203 sec. 3 BA-VA SCC 203 sec. 4
Illustrative: Illustrative:
Additional listing: Additional listing
$9 residence; $1.12/mo residence, $1.42/mo business
$17 business
Non-list
Change to listing: $1.06/mo residence or business
$9 residence;
$17 business Non-published
$1.71/mo residence or business
Non-list:
$9 residence;
$17 business
Non-published:
$9 residence;
$17 business
- -------------------------------------------------------------------------------------------------------------------------------
10. Access to telephone numbers (NXX
codes issued per ICCF Code No charge
Administration Guidelines)
- -------------------------------------------------------------------------------------------------------------------------------
11.a SS7 Interconnection Per interstate [BA FCC 1 sec. Per interstate [BA FCC 1 sec. 6.9.1.L and
6.9.1.G] tariff 6.9.2A.] tariff
Illustrative:
STP ports, $900/mo.;
STP access, $3.50/mile/mo. To $5.72/mile/mo.
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
11.b LIDB Interconnection Per interstate tariff [BA FCC Per interstate tariff [BA FCC 1 sec. 6.9.1M]
1 sec. 6.9.1M]
Illustrative:
Illustrative:
Query validation $0.04/query
Originating point code, $125
Query transport $0.0002/query
- -------------------------------------------------------------------------------------------------------------------------------
11.c 800/888 data base Interconnection No separate charge (included Per interstate [BA FCC 1 sec. 6.9.1.N]
in FGD trunk and STP links) tariffs
Illustrative:
basic query, $0.00292/query; vertical
feature package, $0.000313/query
- -------------------------------------------------------------------------------------------------------------------------------
12.a Interim Number Portability "Track and True-up" - LECs track their quantity of ported numbers and,
through co-carrier call once the Commission establishes a rate and cost recovery method, there
forwarding will be a retroactive true-up with appropriate Commission determined
interest charges.
- -------------------------------------------------------------------------------------------------------------------------------
12.b Access pass-through to number In accordance with Section 14.5 of the
portability purchaser Agreement.
- -------------------------------------------------------------------------------------------------------------------------------
13. Local Dialing Parity No charge
- -------------------------------------------------------------------------------------------------------------------------------
14.a Reciprocal call termination
Local Traffic delivered to Bell $.003/mou End Office Termination
Atlantic Interconnection Point
$.005/mou Tandem Termination
Calculated in accordance with note 7 below
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(5) Excludes telecommunications services designated primarily for wholesale,
such as switched and special access, and, subject to Section 12 of the
Agreement, the following additional arrangements that are not subject to resale:
limited duration (90 days or less) promotional offerings, public coin telephone
services, and technical and market trials. Taxes shall be collected and remitted
by the reseller and BA in accordance with legal requirements and as agreed
between the Parties. Surcharges (e.g., 911, telecommunications relay service,
universal service fund) shall be collected by the reseller and either remitted
to the recipient agency or NECA, or passed through to BA for remittance to the
recipient agency or NECA, as appropriate and agreed between the Parties. End
user common line charges shall be collected by the reseller and remitted to BA.
7
<PAGE>
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
14.c Access charges for termination Per interstate and intrastate access
of intrastate and interstate tariffs (charged in conjunction with Local
Toll Traffic Traffic, using PLU and PIU, as appropriate)
- -------------------------------------------------------------------------------------------------------------------------------
15.a Wholesale rates for resale of Percentage discount from retail tariff(6)
telecommunications services
provided to end users(5)
- -------------------------------------------------------------------------------------------------------------------------------
15.b Resale of retail 21.3% or discount as determined by further Commission order.
Telecommunications Services if
Covad provides its own Operator
Services
- -------------------------------------------------------------------------------------------------------------------------------
15.c Resale of retail 18.5% or discount as determined by further Commission order.
Telecommunications Services if
Covad uses BA Operator Services
- -------------------------------------------------------------------------------------------------------------------------------
16.a Access to Pre-Ordering OSS $.26/Query
- -------------------------------------------------------------------------------------------------------------------------------
16.b Access to Ordering OSS $4.53/Transaction
- -------------------------------------------------------------------------------------------------------------------------------
16.c Access to Provisioning OSS Included in Ordering
- -------------------------------------------------------------------------------------------------------------------------------
16.d Access to Maintenance & Repair
OSS
ECG Access $.26/Query
EB/OSI Access $1.23/Trouble Ticket
- -------------------------------------------------------------------------------------------------------------------------------
16.e.1 Access to Billing OSS; CD-ROM $261.04/CD-ROM
- -------------------------------------------------------------------------------------------------------------------------------
16.e.2 Access to Billing OSS; Daily
Usage File
Existing Message Recording
$.000274/Message
- -------------------------------------------------------------------------------------------------------------------------------
16.e.3 Access to Billing OSS; Daily
Usage File Delivery
Data Tape $64.96/Programming Hour $20.11/Tape
Network Data Mover Not Applicable $.000099/Message
</TABLE>
- ----------
(6) Pending establishment of mechanized billing procedures adapted to resale,
the Parties will agree upon a composite "bottom-of-the-bill" discount that
reflects the discounts and exclusions identified herein, and such other
adjustments as the Parties agree.
8
<PAGE>
<TABLE>
<S> <C> <C> <C>
CMDS $64.96/Programming Hour $.000099/Message
- -------------------------------------------------------------------------------------------------------------------------------
16.e.4 Access to Billing OSS; Daily
Usage File Transport
9.6 kb Communications Port $8,335.27/Port $10.84/Month
56 kb Communications Port $34,494.62/Port $29.93/Month
256 kb Communications Port $57,422.87/Port $29.93/Month
T1 Communications Port $204,901.39/Port $380.18/Month
Line Installation $64.96/Programming Hour/Port Not Applicable
Port Set-up $10.43/Port Not Applicable
Network Control Programming $64.96/Programming Hour/Port Not Applicable
Coding
- -------------------------------------------------------------------------------------------------------------------------------
17 Customized Routing
To Reseller Platform $5.88/Line $.1913/Line/Month
To BA Platform for $5.88/Line $.09564/Call
Re-Branding
Customized Routing Transport See sections 1 & 5 above. See sections 1 & 5 above.
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
9
<PAGE>
B. Covad Services, Facilities, and Arrangements:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Covad Service Non-recurring Recurring
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1.a Interim Number Portability "Track and True-up" - LECs track their quantity of ported numbers and,
through co-carrier call once the Commission establishes a rate and cost recovery method, there
forwarding will be a retroactive true-up with appropriate Commission determined
interest charges.
- ---------------------------------------------------------------------------------------------------------------------
1.b Access pass-through to number In accordance with Section 14.5
portability purchaser of the Agreement.
- ---------------------------------------------------------------------------------------------------------------------
2. Local Dialing Parity No charge
- ---------------------------------------------------------------------------------------------------------------------
3.a Reciprocal call termination
Local Traffic delivered to Covad $.003/mou End Office Termination
Interconnection Point or if BA delivers traffic via
direct trunks from BA EO to Covad
switch
$.005/mou Tandem Termination
Calculated in accordance with
note 7 below
- ---------------------------------------------------------------------------------------------------------------------
3.b Access charges for termination of Per interstate and intrastate
intrastate and interstate Toll access tariffs (charged in
Traffic conjunction with Local Traffic,
using PLU and PIU, as appropriate)
- ---------------------------------------------------------------------------------------------------------------------
4. All other Covad services Available at Covad tariffed or otherwise generally available rates.
available to BA The rates charged by Covad will not exceed the BA rates for such
equivalent services.
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE>
7 LOCAL TRAFFIC TERMINATION RATES
A. Charges by BA
(a) Traffic delivered to BA Tandem: $.005 per mou
(b) Traffic delivered directly to terminating BA End Office: $.003 per
mou
B. Charges by Covad
1. Single-tiered interconnection structure:
Covad's rate for the termination of BA's Local Traffic from a BA Tandem
under the single-tiered interconnection structure shall be recalculated once
each year on each anniversary of the Effective Date (the "Rate Determination
Date"). The methodology for recalculating the rate is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic delivered by
Covad to the BA Tandem for most recent billed quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by Covad
directly to the terminating BA End Office for most recent billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by Covad
to BA for most recent billed quarter.
Covad Charge at the Covad-IP =
(Tandem Minutes x $.005) + (End Office Minutes x $.003)
-------------------------------------------------------
Total Minutes
For the first year after the Effective Date, the Covad charge shall be
calculated based on the traffic data of the quarter immediately preceding such
Effective Date or, if no such data is available, at the average rate of $.004
per mou.
2. Multiple-tiered interconnection structure (if provided pursuant to
subsection 4.1.4 of the Agreement or offered by Covad to any carrier):
(a) Local Traffic delivered to Covad Tandem: $.005 per mou
(b) Local Traffic delivered to terminating Covad End Office/node: $.003
per mou
C. Miscellaneous Notes
1. The Covad termination rate under the single-tiered interconnection structure
set forth above is intended by the Parties to be a Local Traffic termination
rate for Interconnection to the Covad-IP within each LATA that is reciprocal and
equal to the actual rates that will be charged by BA to Covad under the
two-tiered Local Traffic termination rate structure described above. Under this
single-tiered interconnection structure, the Covad termination rate for Local
Traffic is also intended to provide financial incentives to Covad to deliver
traffic directly to BA's terminating End Offices once Covad's traffic volumes
reach an appropriate threshold. The Parties agree that the Reciprocal
Compensation rate(s) set forth herein recover a reasonable approximation of each
Party's additional costs of terminating calls that originate on the network
facilities of the other Party
11
<PAGE>
EXHIBIT 10.15
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of May 26, 1999
by and between
BELL ATLANTIC - MARYLAND, INC.
and
HARVARD NET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
26th day of May, 1999 (the "Effective Date"), by and between Bell Atlantic
- -Maryland, Inc. ("BA"), a Maryland corporation with offices at 1 East Pratt
Street, Baltimore, Maryland 21202, and Harvard Net, Inc. ("HarvardNet"), a
Delaware, corporation with offices at 500 Rutherford Avenue, Charlestown,
Massachusetts, 02129 (each a "Party" and, collectively, the "Parties").
WHEREAS, Harvardnet has requested, pursuant to Section 252(i) of the Act,
that BA make available to Harvardnet Interconnection, services and unbundled
Network Elements upon the same terms and conditions as provided in the
Interconnection Agreement (and amendments thereto) between Dieca Communications,
Inc. and BA, dated as of October 7, 1998, for Maryland, approved by the
Commission under Section 252 of the Act copies of which agreement and amendments
are attached hereto as Appendix 1 (the "Separate Agreement"); and
WHEREAS, BA has agreed, subject to the terms and conditions set forth
below, to make available to Harvardnet hereby Interconnection, services and
unbundled Network Elements upon the terms and conditions of the Separate
Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Harvardnet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement, as it is in effect the date hereof after giving effect to
operation of law, and of the other Appendices hereto, are incorporated by
reference in their entirety herein and form an integral part of this Agreement.
1.2 References in the Separate Agreement to Dieca Communications, Inc. or
to Covad shall for purposes of this Agreement be deemed to refer to Harvardnet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of the Separate Agreement, this Agreement shall
continue in effect until March 15, 2001, unless extended pursuant to Section
22.1 of the Separate Agreement. If the parties to the Separate Agreement
terminate that agreement prior to the above date, such termination shall have no
impact on the term or effectiveness of this Agreement.
<PAGE>
1.4 All references in the Separate Agreement to "800/888" shall be deleted
in their entirety and replaced with the following: "800/888/877" and other such
toll free numbers.
1.5 All usage data to be provided pursuant to Sections 6.3.10 of the
Separate Agreement shall be sent to the following address on behalf of
Harvardnet:
Harvard Net, Inc.
Attn: James Newman
Vice President of Operations
500 Rutherford Avenue
Charlestown, MA 02129
1.6 All certificates or other proof of insurance to be sent to BA under
Section 21.3 of the Separate Agreement shall be sent to the following address:
Director - Interconnection Services
Bell Atlantic - Telecom Industry Services
Room 1423
1095 Avenue of the Americas
New York, New York 10036
1.7 All notices, affidavits, exemption-certificates or other
communications to Harvardnet under Section 29.6.7 of the Separate Agreement
shall be sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (800) 772-6771 (Ext 607)
Facsimile: (617) 242-6991
1.8 All notices, affidavits, exemption-certificates or other
communications to BA under Section 29.6.7 of the Separate Agreement shall be
sent to the following address:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
Telephone: (212) 395-1280
Facsimile: (212) 597-2915
1.9 Notices to Harvardnet under Section 29.10 of the Separate Agreement
shall be
<PAGE>
sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (617) 242-1700
Facsimile: (617) 242-6991
1.10 Notices to BA under Section 29.10 of the Separate Agreement shall be
sent to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
Bell Atlantic - Maryland, Inc.
Attn: General Counsel
8th Floor
1 East Pratt Street
Baltimore, Maryland 21202
1.11 The rates, charges and other terms set forth in Appendix 2 hereto
shall replace and supersede in their entirety the rates, charges and other terms
set forth in Exhibit A to the Separate Agreement.
1.12 Schedules 3.0 and 4.0 set forth at Appendix 3 hereto shall replace
and supersede in their entirety Schedules 3.0 and 4.0 of the Separate Agreement.
<PAGE>
2.0 Clarifications
2.1 The entry into, filing and performance by the Parties of this
Agreement does not in any way constitute a waiver by either Party of any of the
rights and remedies it may have to seek review of any of the provisions of the
Separate Agreement, or to petition the Commission, other administrative body or
court for reconsideration or reversal of any determination made by any of them,
or to seek review in any way of any portion of this Agreement in connection with
Harvardnet's election under Section 252(i) of the Act.
2.2 Notwithstanding any other provisions of this Agreement, where the
state so mandates, BA shall have no obligation to perform under this Agreement
until such time as Harvardnet has obtained a Certificate of Public Convenience
and Necessity ("CPCN") or such other Commission authorization as may be required
by law as a condition for conducting business in the State of Maryland as a
local exchange carrier provided that this restriction does not apply to BA's
obligation to provide Collocation or any other tariffed service to Harvardnet
irrespective of Harvardnet's CPCN status..
2.3 The Parties shall meet within thirty (30) days of the Effective Date,
or at such other time to which the Parties mutually agree, to exchange
information and to discuss in good faith the implementation issues addressed in
Section 10.1 (Joint Network Implementation and Grooming Process).
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 26th day of May, 1999.
HARVARD NET, INC. BELL ATLANTIC - MARYLAND, INC.
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
--------------------------- --------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
--------------------- --------------------------
Title: President and Chief Title: Vice-President - Interconnection
Executive Officer Services Policy & Planning
----------------------- ---------------------------------
<PAGE>
APPENDIX 2
EXHIBIT A
BELL ATLANTIC - MARYLAND, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES
A. BA SERVICES, FACILITIES, AND ARRANGEMENTS: (1)
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
I. Local Call Termination(2)
Traffic Delivered at BA End Office $.00225/MOU Not Applicable
Traffic Delivered at BA Tandem
$.0033/MOU Not Applicable
II. Unbundled Transport
A. Dedicated Transport
Voice Grade/DS-0 $8.54/Month & All:
$.018/Mile/Month $6.70*(3) /Service Order
plus installation
DS-1 $30.61/Month & charges for each
$.375/Mile/Month initial and additional
facility purchased at
DS-3 $414.74/Month & the time of order
$10.45/Mile/Month
$315.00*/Initial Facility
DDS $8.70/Mile & & $21.28*/Additional
$.02/Mile/Month Facility
</TABLE>
- --------------------------
(1) Unless a citation is provided to a generally applicable BA Tariff, all
listed rates and services are available only to HarvardNet when purchasing these
services for use in the provision of Telephone Exchange Service, and apply only
to Local Traffic and local Ancillary Traffic. BA rates and services for use by
HarvardNet in the carriage of Toll Traffic shall be subject to BA's Tariffs for
Exchange Access Service. Adherence to these limitations is subject to a
reasonable periodic audit by BA.
As applied to wholesale discount rates, unbundled Network Elements or call
transport and/or termination of Local Traffic purchased for the provision of
Telephone Exchange Service or Exchange Access, the rates and charges set forth
in Exhibit A shall apply until such time as they are replaced by new rates as
may be approved or allowed into effect by the Commission from time to time
pursuant to the FCC Regulations, subject to a stay or other order issued by any
court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend
Exhibit A to reflect the new approved rates.
(2) See note 14 regarding measurement and calculation of local traffic
termination charges.
(3) Rates accompanied by an asterisk indicate interim rates which will be
replaced by new rates at such time when established by the Maryland PSC in case
No. 8786.
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
B. Common Transport
Tandem Switching $.000695/MOU Not Applicable
Tandem-Switched Transport $.000353/MOU Not Applicable
C. Entrance Facilities
All:
$6.70*/Service Order
plus installation
charges for each
initial and additional
facility purchased at
the time of order:
2-Wire Voice Grade Channel $11.02/Month $296.00*/Initial &
Termination $171.44*/Additional
4-Wire Voice Grade Channel $17.63/Month $382.37*/Initial &
Termination $221.67*/Additional
DS-1 to Voice Grade Multiplexing $63.20/Month $366.56*/Initial &
$366.56*/Additional
DS-1 Channel Termination $125.32/Month $422.32*/Initial &
$205.89*/Additional
DS-3 to DS-1 Multiplexing $216.05/Month $366.56*/Initial &
$366.56*/Additional
DS-3 Channel Termination $918.37/Month $422.32*/Initial &
$205.89*/Additional
D. Digital Cross-Connect System
Service Establishment Not Applicable $2,062.75*/Request
Database Modification Not Applicable $159.75*/Modification
Request
Reconfiguration by BA Personnel Not Applicable $35.77*/Programming
Charge/Half Hour
DS-0 Cross-Connect $17.03/Port/Month $29.28*/Port
DS-1 Cross-Connect $59.54/Port/Month $36.59*/Port
</TABLE>
2
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
E. Mid-Span Meet Arrangements To be charged in accordance with the
requirements of Section 4.3 of the
Agreement
F. Tandem Transit arrangements for Separate trunks between
Local Traffic HarvardNet and required for IXC
carriers other than Bell Atlantic subtending trunks
that subtend a Bell Atlantic Tandem
Switch. (Not applicable to Toll
Traffic when Meet Point Billing
Arrangement applies; Separate
trunks required for IXC subtending
trunks)
Tandem Switching $.000695/MOU Not Applicable
Tandem-Switched Transport $.000353/MOU Not Applicable
III. Unbundled Switching(4)
A. Local Switching Ports
POTS/PBX/Centrex $1.895/Port/Month $6.70*/Service Order
$9.97*/Installation
/Port
ISDN (BRI) $10.545/Port/Month $6.70*/Service Order
$9.97*/Installation
/Port
ISDN (PRI) $113.315/Port/Month $6.70*/Service Order
$105.06*/Installation
/Port
Public/Semi-Public $2.695/Port/Month $6.70*/Service Order
$9.97*/Installation
/Port
DID $5.325/Port/Month $6.70*/Service Order
$631.03*/Installation
/Port
Coordinated Port Cutover Not Applicable $7.81*/Port
</TABLE>
- --------------------------
(4) In addition to the recurring and non-recurring rates set forth herein for
unbundled switching elements, BA may levy upon a purchaser of such elements any
access charges (or portion thereof) permitted by Applicable Laws.
3
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
B. Tandem Switching Usage $.000695/MOU Not Applicable
</TABLE>
4
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
III. Unbundled Switching (Continued)
C. Local Switching Usage
POTS Originating With Vertical Features $.0038/MOU Not Applicable
POTS Terminating With Vertical Features $.0038/MOU Not Applicable
ISDN Originating Digital Circuit $.002670/MOU Not Applicable*
Switched Voice
ISDN Terminating Digital Circuit $.001532/MOU Not Applicable*
Switched Voice
ISDN Originating Digital Circuit $.001664/MOU Not Applicable*
Switched Data
ISDN Terminating Digital Circuit $.001532/MOU Not Applicable*
Switched Data
D. POTS Features
PBX $.000918/MOU Both:
$4.24*/Service Order
Multi-Line Hunting $.0000013/MOU $.10*/Installation
E. Centrex Features
UCD $.001098/MOU All:
$4.24*/Service Order
Hunting $.000123/MOU $.10*/Installation
Queuing $.000426/MOU
Intercom & Features $.018648/MOU
Attendant $.019499/MOU
Attendant Console $.021134/MOU
Centralized Attendant Services $.196392/MOU
Attendant Access Code Dialing $.044330/MOU
Automatic Route Selection $.000269/MOU
Electronic Tandem Switching $.000997/MOU
F. ISDN Centrex Feature $.007571/MOU $4.24*/Service Order
$.10*/Installation
</TABLE>
5
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
IV. Unbundled Loops
2 Wire Analog Loops (POTS Loops) Rate Group: Service Order:
A1 - $12.11/mo. $6.70*
A2(5) - $12.85/mo. Installation:
B1 - $25.96/mo. If a premises visit
is not required,
B2 - $18.40/mo. initial & each
additional loop -
$9.52*
If a premises visit
is required: initial
loop installed on
that visit: $67.72*:
each additional loop
installed on that
visit: $29.96*
4 Wire Loops Rate Group: Service Order: $6.70*
A1 - $24.74/mo.
. Installation:
A2(6) - $26.45/mo. If a premises visit
is not required,
B1 - $52.45/mo. initial & each
additional loop -
B2 - $37.38/mo. $48.41*
If a premises visit
is required: initial
loop installed on
that visit $117.21*;
each additional loop
installed on that
visit $79.45*
</TABLE>
- --------------------------
(5) Rate Group A2 is modified to include the Hagerstown, Cumberland, and
Salisbury exchanges.
(6) See note 5
6
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
IV. Unbundled Loops (continued)
ISDN Loops Rate Group Service Order: $9.52*
A1-$13.63 Installation:
. A2(7)-$14.37 If a premises visit
B1-$27.40 is not required,
B2-$19.90 initial & each
additional loop -
$17.73*
If a premises visit
is required: initial
loop installed on
that visit $75.92*;
each additional loop
installed on that
visit: $38.16*
DS-1Loops Rate Groups: Service Order: $6.70*
A1-$113.03 Installation:
. A2(8)-$114.64 If premises visit
B1-$152.72 not required,
B2-$133.10 initial & each
additional loop -
$48.41*
If a premises visit
is required: initial
loop installed on
that visit $117.21*;
each additional loop
installed on that
visit: $79.45*
</TABLE>
- --------------------------
(7) See note 5
(8) See note 5
7
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
IV. Unbundled Loops (continued)
Customer Specified Signaling - 2-Wire Rate Groups: Service Order: $6.70*
A1-$12.11 Installation:
A2(9)-$12.85 If a premises visit
B1-$25.96 is not required,
B2-$18.40 initial & each
additional loop -
$48.41*
If a premises visit
is required: initial
loop installed on
that visit $117.21*;
each additional loop
installed on that
visit: $79.45*
Customer Specified Signaling - 4-Wire Rate Groups: Service Order: $6.70*
A1-$24.74 Installation:
A2(10)-$26.45 If a premises visit
B1-$52.45 is not required,
B2-$37.38 initial & each
additional loop -
$48.41*
If a premises visit
is required: initial
loop installed on
that visit $117.21*;
each additional loop
installed on that
visit: $79.45*
2 Wire ADSL Loops TBD TBD
2 Wire & 4 Wire HDSL Loops TBD TBD
Distance Extensions for various ULL types TBD TBD
for distances exceeding transmission
characteristics in applicable technical
references.
</TABLE>
- --------------------------
(9) See note 5
(10) See note 5
8
<PAGE>
APPENDIX 2
<TABLE>
<S> <C> <C>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
ame as the corresponding Rate Center Point, nor must it be located within
the corresponding Rate Center Area, nor must there be a unique and separate
Rating Point corresponding to each unique and separate Rate Center.
1.61 "Reciprocal Compensation" is As Described in the Act, and refers to
the payment arrangements that recover costs incurred for the transport and
termination of Reciprocal Compensation Traffic originating on one Party's
network and terminating on the other Party's
13
<PAGE>
network.
1.62 "Service Control Point" or "SCP" means the node in the Common Channel
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 a service switching point and via a Signaling
Trans------------------------------- ------------------ ----------------------
<S> <C> <C>
V. Collocation Cross-Connection(11)
A. Voice Grade Loop
Physical DS0 CO side to equipment All: Not Applicable
Per interstate [BA
Virtual DS0 with RFT CO side MDF to FCC 1 sec. 19] access Not Applicable
equipment Tariffs; intrastate
Virtual DS1 with EDSX (1DS1 + 24 DS0s access Tariffs (BA-MD Both:
with IDLC) 217); BA-MD 216 sec 8 $6.70/Service Order
Tariff. $312.13/Initial
Virtual DS1 with CFA (24DS0s with IDLC) Installation &
$109.16/Additional
Installations
B. Other
Physical DS3 or DS1 Cable Rack All: Not Applicable
Per interstate [BA
Physical DS3 FCC 1 sec. 19] access All:
Tariffs; intrastate $6.70/Service Order
Physical DS1 access Tariffs (BA-MD $269.62/Initial
217); BA-MD 216 sec 8 Installation &
Virtual DS3 Tariff. $98.53/Additional
Installations
Virtual DS1
VI. Time and Materials
Special Construction As applicable per BA-MD Tariff 203 sec. 2
Service Technician (service work on Not Applicable $1.20*/Service Order
unbundled loops outside of the Central $25.18*/Premises
Office) Visit
$10.61* Labor
Charge/ Quarter Hour
After First Quarter
Hour
</TABLE>
- --------------------------
(11) Collocation Cross-Connection rates are interim rates which will be replaced
by new rates at such time when established by the Maryland PSC in case No. 8766
10
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
Central Office Technician Not Applicable $1.20*/Service Order
$10.33* Labor
Charge/ Quarter Hour
</TABLE>
11
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
VII. Signaling and Databases
A. STP Port
SS7 Interconnection Per interstate [BA Per interstate [BA
FCC 1 sec. 6.9.1.L] FCC 1 sec. 6.9.1.G]
and intrastate [BA-MD and intrastate
217 sec. 6.9.1.M] [BA-MD 217 sec.
Tariff 6.9.1.M] Tariff
Illustrative:
Interstate:
STP ports,
$900.00 /mo.
STP access,
$3.50/mile/mo.
Intrastate:
STP ports,
$932.58/mo.;
STP access,
$2.38/mile/mo.
B. 800/888 Database
Basic Query $.00082/Query Not Applicable
Vertical Query $.000291/Query Not Applicable
C. LIDB Validation
LIDB Point Codes Not Applicable $88.46*/Point Code
Calling Card $.016352/Query Not Applicable
Billed Number Screening $.016352/Query Not Applicable
Storage of CLEC's Data in LIDB Database Not Applicable $1,514.69* Service
Establishment/Request
</TABLE>
12
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
VII. Signaling and Databases (Continued)
D. AIN Service Creation (ASC) Service
1. Developmental Charges
Service Establishment Not Applicable $911.12*/Request
Service Creation Access Port $105.78/Port/Month Not Applicable
Service Creation Usage
a. Remote Access $1,148.50 /Day Not Applicable
b. On-Premise $1,148.50/Day Not Applicable
Certification & Testing $79.35/Hour Not Applicable
Help Desk Support $ 83.98/Hour Not Applicable
2. Service Charges
Subscription Charge $3.29/Month Not Applicable
Database Queries
a. Network Query $.0006/Query Not Applicable
b. CLEC Network Query $.0006/Query Not Applicable
c. CLEC Switch Query $.0006/Query Not Applicable
Trigger Charge
a. Line Based $.00063/Query Not Applicable
b. Office Based $.00063/Query Not Applicable
Utilization Element $.00025/ACU Not Applicable
Service Activation Charge
a. Network Service Activation Not Applicable $13.19*/Service
Activated/Line
b. CLEC Network Service Not Applicable $13.19*/Service
Activation Activated/Line
c. CLEC Switch Service Not Applicable $13.19*/Service
Activation Activated /Line
Service Modification
DTMF Update $.07/Occurrence Not Applicable
Switch Based Announcement $.003/ Announcement Not Applicable
</TABLE>
13
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
VIII. Directory Listings & Books
Primary Listings $.29/mo./primary listing or a $5.00 one time
charge/primary listing, at HarvardNet's option
Additional Tariffed Listing Services Per applicable Tariff (including, but not
limited to, BA-MD Tariff P.S.C-MD-No. 203
sec. 4.
Books & delivery (annual home area No charge for normal numbers of books
directories only) delivered to end users; bulk deliveries to
CLEC per separate arrangement
IX. Operator Services/Directory Assistance
Direct Access $.0265/Query $31,049.76*/Link
Service Establishment Not Applicable $15,669.92*/ Request
Directory Assistance Residential: Not Applicable
$.25/Call
Business:
$.3205/Call
Directory Transport
Tandem Switching $.000577/Call Not Applicable
Tandem Switched Transport $.000099/Call & Not Applicable
$.000001/Mile/Call
Operator call completion Per separate contract; branding available.
Operator Services - Live $.011369/Operator Not Applicable
Work Second
Operator Services - Automated $.007396/Automated Not Applicable
Work Second
Branding for Directory Assistance and/or Not Applicable $1,401.12*/Customer
Operator Services Message
Carrier to Carrier LSV/VCI Request $.011369/Operator Not Applicable
Work Second
</TABLE>
14
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
X. Access to Operation Support Systems
A. Pre-Ordering $.26*/Query Not Applicable
B. Ordering $4.22*/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.26*/Query Not Applicable
2. EB/OSI Access $1.20*/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $254.11*/CD-ROM /Month Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000267*/Message Not Applicable
b. Delivery of DUF
Data Tape $21.46*/Tape $63.27*/Programming
Hour
Network Data Mover $.000096*/Message Not Applicable
CMDS $.000096*/Message $63.27*/Programming
Hour
c. DUF Transport
9.6 kb Communications Port $10.56*/Month $7,416.65*/Port
56 kb Communications Port $29.15*/Month $30,717.61*/Port
256 kb Communications Port $29.15*/Month $51,094.01*/Port
T1 Communications Port $370.26*/Month $182,318.17*/Port
Line Installation Not Applicable $63.27*/Programming
Hour
Port Set-up Not Applicable $10.16*/Port
Network Control Programming Coding Not Applicable $63.27*/Programming
Hour
XI. Exchange Access Service
Interstate Per BA-FCC Tariff number 1
</TABLE>
15
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
Intrastate Per BA- MD Tariff P.S.C-Md-217
</TABLE>
16
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
XII. Number Portability
Interim (using RCF) Per Commission
Order dated November 8, 1996,
track and true-up until
interim funding mechanism
established.
Permanent Per permanent funding
mechanism when established.
XIII. 911/E911
Transport Per section II. above
Data Entry and Maintenance No Charge
XIV. Poles Conduits & ROW Per contract rates pursuant to 47 U.S.C. sec.
224
Illustrative:
Duct: $4.50/Foot/Year
Pole: $3.81/Attachment/Year
XV. Network Interface Device $.56/mo Not Applicable
XVI. Access to Telephone Numbers (NXX codes No Charge
issued per ICCF Code Administration Guidelines)
XVII. Local Dialing Parity No Charge
XVIII. Customized Routing
Customized Routing $.05939/Call $4.10*/Line
Customized Routing Transport Per section II above.
</TABLE>
17
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
XIX. Wholesale Discount for Resale of Retail Telecommunications Services(12)
Resale of retail telecommunications services 19.87%(13)
as per Commission Order in case 8731, dated
November 8, 1996. Assumes CLEC will
provide own operator and directory assistance
services.
</TABLE>
- --------------------------
(12) Excludes telecommunications services designed primarily for wholesale, such
as switched and special exchange access service, and, subject to Section 12 of
the Statement, the following additional arrangements that are not subject to
resale: limited duration (90 days or less) promotional offerings, public coin
telephone service, and technical and market trials. Taxes shall be collected and
remitted by the reseller and BA in accordance with legal requirements and as
agreed between the Parties. Surcharges (e.g., 911, telecommunications relay
service, universal service fund) shall be collected by the reseller and either
remitted to the recipient agency or NECA, or passed through to BA for remittance
to the recipient agency or NECA, as appropriate and agreed between the Parties.
End user common line charges shall be collected by the reseller and remitted to
BA.
(13) Pending establishment of mechanized billing procedures adapted to resale,
BA will apply the wholesale discount for resale as a "bottom-of-the-bill"
discount rate and will utilize a "true-up" process to correct possible
inadvertent application of the wholesale discount to the exclusions identified
herein and to reflect other adjustments as the Companies agree.
18
<PAGE>
APPENDIX 2
B. CLEC SERVICES, FACILITIES, AND ARRANGEMENTS:
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
I. Local Call Termination
Traffic Delivered at HarvardNet End Office $.00225/MOU Not Applicable
Traffic Delivered at HarvardNet Tandem $.0033/MOU Not Applicable
Switch
II. Number Portability
Interim (using RCF) Per Commission Order dated November 8,
1996, track and true-up until
interim funding mechanism
established.
Permanent Per permanent funding
mechanism when established.
III. Exchange Access Service
Interstate Per CLEC FCC exchange access Tariff.
Intrastate Per CLEC MD exchange access Tariff.
IV. All Other CLEC Services Available to BA for Available at CLEC's tariffed or otherwise
Purposes of Effectuating Local Exchange generally available rates, not to exceed BA
Competition rates for equivalent services available to
CLEC.
</TABLE>
19
<PAGE>
APPENDIX 2
14 Local Traffic Termination Rates
A. Charges by BA
(a) Traffic delivered to or BA Access Tandem: $.0033 per mou.
(b) Traffic delivered directly to terminating BA End Office: $.00225
per mou.
B. Charges by HarvardNet
1. Single-tiered interconnection structure:
HarvardNet's rates for the termination of BA's Local Traffic under the
single-tiered interconnection structure shall be recalculated once each
year on each anniversary of the Effective Date (the "Rate Determination
Date"). The methodology for recalculating the rates is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic
delivered by HarvardNet to the BA Access Tandem for most recent
billed quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by
HarvardNet directly to the terminating BA End Office for most recent
billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by
HarvardNet to BA for most recent billed quarter.
HarvardNet Charge at the HarvardNet-IP =
(Access Tandem Minutes x $.0033) + (End Office Minutes x $.00225)
-----------------------------------------------------------------
Total Minutes
For the first year after the Effective Date, the HarvardNet charge shall
be calculated based on the traffic data of the quarter immediately
preceding such Effective Date, or if no such traffic exists, on the
proportion of local call termination trunks to BA End Offices and to BA
Access Tandems.
2. Multiple-tiered interconnection structure (if offered by HarvardNet to
any carrier)
(a) Local Traffic delivered to HarvardNet Access Tandem: $.0033
(b) Local Traffic delivered to terminating HarvardNet End Office/node:
$.00225
C. Miscellaneous Notes
1. The HarvardNet termination rate under the single-tiered interconnection
structure set forth above is intended to be a Local Traffic termination rate for
Interconnection to the HarvardNet-IP within each LATA that is reciprocal and
equal to the actual rates that will be charged by BA to HarvardNet under the
two-tiered Local Traffic termination rate structure described above that will
apply after the first anniversary of the Effective Date. The single HarvardNet
termination rate is also intended to provide financial incentives to HarvardNet
to deliver traffic directly to BA's terminating End Offices once HarvardNet's
traffic volumes reach an appropriate threshold.
20
<PAGE>
APPENDIX 3
SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE FOR MARYLAND
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
===============================================================================
LATA in Maryland Milestone Date
- ---------------------
LATA ___ LATA Start Date TBD
----------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
----------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
----------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
----------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
----------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
----------------------------------------------------------
SS7 Certification Achieved;(1) TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements(2)
----------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
Call-through Testing Completed; TBD
"Interconnection Activation Date"
===============================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in Maryland when HARVARDNET has an
effective Tariff for business Telephone Exchange Service in Maryland and a
significant number of Telephone Exchange Service Customer lines in service for
business Telephone Exchange Service Customers in that LATA in Maryland that are
not affiliates or
- --------------------------
(1) SS7 certification scheduling depends on actual schedule availability at time
of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
(2) Intervals for IDLC collocation arrangements for VG ULL capability are 60
days for Virtual Collocation and 120 days for Physical Collocation from the date
the arrangement is applied for.
<PAGE>
APPENDIX 3
employees of either BA or HARVARDNET, and (ii) residential Telephone Exchange
Service shall be considered "fully operational" in a LATA in Maryland when
HARVARDNET has an effective Tariff for residential Telephone Exchange Service in
Maryland and has a significant number of Telephone Exchange Service Customer
lines in service for residential Telephone Exchange Service Customers in that
LATA in Maryland that are not affiliates or employees of either BA or
HARVARDNET.
<PAGE>
APPENDIX 3
SCHEDULE 4.0 Network Interconnection Schedule
LATA HARVARDNET-IP BA-IP Activation Date
TBD TBD TBD TBD
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of October 7, 1998
by and between
BELL ATLANTIC - MARYLAND, INC.
and
DIECA COMMUNICATIONS, INC.
1
<PAGE>
TABLE OF CONTENTS
Page
----
1.0 DEFINITIONS 2
2.0 INTERPRETATION AND CONSTRUCTION 11
3.0 INTERCONNECTION ACTIVATION DATES AND IMPLEMENTATION SCHEDULE 11
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) 12
4.1 Scope 12
4.2 Physical Architectures 14
4.3 Mid-Span Meets 15
4.4 Interconnection in Additional LATAs 16
4.5 Interconnection Points for Different Types of Traffic 17
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2) 17
5.1 Scope of Traffic 17
5.2 Trunk Group Connections and Ordering 17
5.3 Additional Switching System Hierarchy and Trunking Requirements 18
5.4 Signaling 18
5.5 Grades of Service 18
5.6 Measurement and Billing 18
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5) 19
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
251(c)(2) 20
6.1 Scope of Traffic 20
6.2 Trunk Group Architecture and Traffic Routing 20
6.3 Meet-Point Billing Arrangements 21
6.4 800/888 Traffic 24
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC 25
7.1 Information Services Traffic 25
7.2 LSV/VCI Traffic 26
7.3 Transit Service 27
7.4 911/E911 Arrangements 28
7.5 Ancillary Traffic Generally 30
8.0 NUMBER RESOURCES, RATE CENTERS, AND RATING POINTS 30
2
<PAGE>
9.0 NETWORK MAINTENANCE AND MANAGEMENT; OUTAGES 31
9.1 Interference or Impairment 31
9.2 Repeated or Willful Noncompliance 31
9.3 Outage Repair Standard 32
9.4 Notice of Changes -- Section 251(c)(5) 32
10.0 JOINT NETWORK IMPLEMENTATION AND GROOMING PROCESS; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR 32
10.1 Joint Network Implementation and Grooming Process 32
10.2 Installation, Maintenance, Testing and Repair 33
10.3 Forecasting Requirements for Trunk Provisioning 33
11.0 UNBUNDLED ACCESS -- SECTION 251(c)(3) 34
11.1 Available Network Elements 35
11.2 Unbundled Local Loop (ULL) Transmission Types 35
11.3 Network Interface Device 37
11.4 Unbundled Switching Elements 37
11.5 Interoffice Transmission Facilities 37
11.6 Operations Support Systems 37
11.7 Limitations on Unbundled Access 37
11.8 Availability of Other Network Elements on an Unbundled Basis 38
11.9 Provisioning of Unbundled Local Loops 39
11.10 Maintenance of Unbundled Local Loops 40
11.11 Rates and Charges 40
12.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1) 41
12.1 Availability of Retail Rates for Resale 41
12.2 Availability of Wholesale Rates for Resale 41
12.3 Availability of Support Services for Resale 41
12.4 Restrictions on Resale and Use of BA Services 41
13.0 COLLOCATION -- SECTION 251(c)(6) 42
14.0 NUMBER PORTABILITY -- SECTION 251(b)(2) 44
14.1 Scope 44
14.2 Procedures for Providing INP Through Remote Call Forwarding 44
14.3 Procedures for Providing INP Through Direct Inward Dial Trunks
(Flex-DID) 46
14.4 Procedures for Providing LTNP Through Full NXX Code Migration 46
14.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers 46
14.6 Recovery of INP Costs Pursuant to FCC Order and Rulemaking 47
15.0 DIALING PARITY -- SECTION 251(b)(3) 47
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 48
3
<PAGE>
17.0 DATABASES AND SIGNALING 48
18.0 COORDINATED SERVICE ARRANGEMENTS 50
18.1 Intercept and Referral Announcements 50
18.2 Coordinated Repair Calls 50
18.3 Customer Authorization 50
19.0 DIRECTORY SERVICES ARRANGEMENTS 51
19.1 Directory Listings and Directory Distributions 51
19.2 Yellow Pages Maintenance 53
19.3 Service Information Pages 53
19.4 Directory Assistance (DA); Call Completion 54
20.0 COORDINATION WITH TARIFF TERMS 54
21.0 INSURANCE 55
22.0 TERM AND TERMINATION 55
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 56
24.0 CANCELLATION CHARGES 56
25.0 INDEMNIFICATION 57
26.0 LIMITATION OF LIABILITY 57
27.0 PERFORMANCE STANDARDS FOR SPECIFIED ACTIVITIES 58
27.1 Performance Standards 58
27.2 Performance Monitoring Reports, Standards and Remedies 58
27.3 Performance Measurement, Standard and Remedy for xDSL-Compatible ULLs 59
28.0 COMPLIANCE WITH LAWS; REGULATORY APPROVAL 59
29.0 MISCELLANEOUS 60
29.1 Authorization 60
29.2 Independent Contractor 60
29.3 Force Majeure 61
29.4 Confidentiality 61
29.5 Choice of Law 62
29.6 Taxes 62
29.7 Assignment 65
29.8 Billing and Payment; Disputed Amounts 65
29.9 Dispute Resolution 66
29.10 Notices 66
4
<PAGE>
29.11 Section 252(i) Obligations 67
29.12 Joint Work Product 68
29.13 No Third Party Beneficiaries; Disclaimer of Agency 68
29.14 No License 69
29.15 Technology Upgrades 69
29.16 Survival 69
29.17 Entire Agreement 70
29.18 Counterparts 70
29.19 Modification, Amendment, Supplement or Waiver 70
29.20 Successors and Assigns 70
29.21 Publicity and Use of Trademarks or Service Marks 70
29.22 Integrity of BELL ATLANTIC Network 70
29.23 Merger Conditions 70
LIST OF SCHEDULES AND EXHIBITS
Schedules
Schedule 1.0 Certain Terms As Defined in the Act, As of Effective Date
Schedule 3.0 Initial Network Implementation Schedule
Schedule 4.0 Interconnection Points in LATA
Schedule 4.5 Interconnection Points for Different Types of Traffic
Schedule 6.3 Rate Elements Under Meet Point Billing
Schedule 11.3 Access to Network Interface Device
Schedule 11.4 Unbundled Switching Elements
Schedule 12.3 Support Services for Resale
Schedule 13.4 Collocation: Shared Cage Arrangement
Schedule 27.2 Performance Monitoring Reports, Standards and Remedies
Exhibits
Exhibit A Detailed Schedule of Itemized Charges
Exhibit B Network Element Bona Fide Request
Exhibit C Directory Assistance and Call Completion Services Agreement
Exhibit D IntraLATA Telecommunications Services Settlement Agreement
5
<PAGE>
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, is effective as of the 7th day of October, 1998
(the "Effective Date"), by and between Bell Atlantic - Maryland, Inc. Inc.
("BA"), a Maryland corporation with offices at 1 East Pratt Street, Baltimore,
Maryland 21202, and DIECA Communications, Inc. (referred to in this Agreement as
"Covad"), a Virginia corporation with offices at 6849 Old Dominion Drive, Suite
220, McLean, Virginia 22101.
WHEREAS, the Parties want to interconnect their networks at mutually
agreed upon points of interconnection to provide Telephone Exchange Services,
Switched Exchange Access Services, and other Telecommunications Services (all as
defined below) to their respective customers;
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 Act (as defined below) and additional services as set forth
herein; and
WHEREAS, Sections 251, 252, and 271 of the Telecommunications Act of 1996
have specific requirements for interconnection, unbundling, and service resale,
commonly referred to as the "Checklist", and the Parties intend that this
Agreement address those Checklist requirements.
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, Covad and BA hereby agree as follows:
This Agreement sets forth the terms, conditions and pricing under which BA
and Covad (individually, a "Party" and collectively, the "Parties") will offer
and provide to each other network Interconnection, access to Network Elements,
ancillary services, and wholesale Telecommunications Services available for
resale within each LATA in which they both operate within Maryland. As such,
this Agreement is an integrated package that reflects a balancing of interests
critical to the Parties. It will be submitted to the Maryland Public Service
Commission, and the Parties will specifically request that the Commission
refrain from taking any action to change, suspend or otherwise delay
implementation of the Agreement. So long as the Agreement remains in effect,
neither Party shall advocate before any legislative, regulatory, or other public
forum that any term of this Agreement be modified or eliminated, unless mutually
agreed to by the Parties.
1.0 DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
specified below in
6
<PAGE>
this Section 1. For convenience of reference only, the definitions of certain
terms that are As Defined in the Act (as defined below) are set forth on
Schedule 1.0.
1.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et. seq.),
as amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or the
Commission.
1.2 "ADSL" or "Asymmetrical Digital Subscriber Line" is a digital loop
transmission technology which typically permits the transmission of up to 6 Mbps
downstream (from the CO to the end-user customer) and up to 640 kbps digital
signal upstream (from the end-user customer to the CO).
1.2.A "Affiliate" is As Defined in the Act.
1.3 "Agreement" means this Interconnection Agreement under Sections 251
and 252 of the Act and all Exhibits, Schedules, addenda, and attachments
referenced herein and/or appended hereto.
1.4 "Ancillary Traffic," means all traffic that is destined for ancillary
services, or that may have special billing requirements, including but not
limited to the following: LSV/VCI, Directory Assistance, 911/E911, Operator
Services (IntraLATA call completion), IntraLATA third party, collect and calling
card, 800/888 database query, LIDB, and information services requiring special
billing.
1.5 "Applicable Laws" or "Applicable Law" or "Law" means all laws,
regulations, and orders applicable to each Party's performance of its
obligations hereunder.
1.6 "As Defined in the Act" means as specifically defined by the Act and
as from time to time interpreted in the duly authorized rules and regulations of
the FCC or the Commission.
1.7 "As Described in the Act" means as described in or required by the Act
and as from time to time interpreted in the duly authorized rules and
regulations of the FCC or the Commission.
1.8 "Automatic Number Identification" or "ANI" means a signaling parameter
which refers to the number transmitted through a network identifying the billing
number of the calling party.
1.8.A "Bona Fide Request" or "BFR" means the process described on Exhibit
B that prescribes the terms and conditions relating to a Party's request that
the other Party provide a BFR Item (as defined in Exhibit B) not otherwise
provided by the terms of this Agreement.
1.9 "Calling Party Number" or "CPN" is a Common Channel Signaling ("CCIS")
parameter which refers to the number transmitted through a network identifying
the calling Party.
7
<PAGE>
1.10 "Central Office Switch" means a switch used to provide
Telecommunications Services, including, but not limited to:
(a) "End Office Switch" or "End Office" is a switching entity that
is used to terminate Customer station Loops for the purpose of interconnection
to each other and to trunks; and
(b) "Tandem Switch" or "Tandem Office" or "Tandem" is a switching
entity that has billing and recording capabilities and is used to connect and
switch trunk circuits between and among End Office Switches and between and
among End Office Switches and carriers' aggregation points, points of
termination, or points of presence, and to provide Switched Exchange Access
Services.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
1.11 "CLASS Features" means certain CCIS-based features available to
Customers including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification, and future CCIS-based offerings.
1.12 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in equipment necessary for
Interconnection or for access to Network Elements offered by the second Party on
an unbundled basis that has been installed and maintained at the premises of a
second Party (the "Housing Party"). For purposes of Collocation, the "premises"
of a Housing Party is limited to a Housing Party Wire Center, other mutually
agreed-upon locations of the Housing Party, or any other location for which
Collocation has been ordered by the FCC or Commission. 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 owns, installs, and maintains equipment
dedicated to use by the Collocating Party in the Housing Party's premises. BA
currently provides Collocation under terms, rates, and conditions as described
in tariffs on file or soon to be filed with the FCC and the Commission. For
purposes of this Agreement, Collocation also includes alternative Collocation
arrangements required by Applicable Law or agreed to by the Parties purusant to
Section 13 below.
1.13 "Commission" means the Maryland Public Service Commission Commission.
1.14 "Common Channel Interoffice Signaling" or "CCIS" means a method of
transmitting call set-up and network control data over a digital signaling
network separate from the public switched telephone network facilities that
carry the actual voice or data traffic of the call. "SS7" means the common
channel out of band signaling protocol developed by the Consultative Committee
for International Telephone and Telegraph ("CCITT") and the American National
Standards Institute ("ANSI"). BA and Covad currently utilize this out-of-band
signaling protocol. "CCSAC" or "CCSAS" means the common channel signaling access
connection or service, respectively, which connects one Party's signaling point
of interconnection ("SPOI") to
8
<PAGE>
the other Party's STP for the exchange of SS7 messages.
1.15 "Competitive Local Exchange Carrier" or "CLEC" means any Local
Exchange Carrier other than BA, operating as such in BA's certificated territory
in Maryland. Covad is a CLEC.
1.16 "Cross Connection" means a jumper cable or similar connection
provided pursuant to Collocation at the digital signal cross connect, Main
Distribution Frame or other suitable frame or panel between (i) the Collocating
Party's equipment and (ii) the equipment or facilities of the Housing Party.
1.17 "Customer" means a third-party residence or business end-user
subscriber to Telecommunications Services provided by either of the Parties.
1.17.A "Customer Proprietary Network Information" or "CPNI" is As Defined
in the Act.
1.18 "Dialing Parity" is As Defined in the Act.
1.19 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.20 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.21 "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.
1.22 "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.
1.23 "Exchange Access" is As Defined in the Act.
1.24 "Exchange Message Record" or "EMR" means the standard used for
exchange of telecommunications message information among Local Exchange Carriers
for billable, non-billable, sample, settlement, and study data. EMR format is
contained in BR-010-200-010 CRIS Exchange Message Record, a Bell Communications
Research, Inc. ("Bellcore") document that defines industry standards for
Exchange Message Records.
1.25 "FCC" means the Federal Communications Commission.
1.26 "FCC Regulations" means Title 47 of the Code of Federal Regulations,
including but not limited to the amendments adopted in, and the additional
requirements of, the First Report and Order In the Matter of Implementation of
the Local Competition Provisions in the
9
<PAGE>
Telecommunications Act of 1996 and Interconnection between Local Exchange and
Commercial Mobile Radio Service Providers, CC Docket Nos. 96-98 and 95-185,
adopted on August 1, 1996 and released on August 8, 1996, the Second Report and
Order and Memorandum Opinion and Order, CC Docket Nos. 96-98, 95-185, and
92-237, adopted and released on August 8, 1996, and any and all rules or
regulations that are issued from Deployment of Wireline Services Offering
Advanced Telecommunications Capability, CC Docket No. 98-147 et al., Memorandum
Opinion and Order and Notice of Proposed Rulemaking, FCC 98-188, released on
August 7, 1998, as each may be amended, stayed, voided, repealed, or
supplemented from time to time.
1.27 "HDSL" or "High-Bit Rate Digital Subscriber Line" means a
transmission technology which transmits up to 784 kbps simultaneously in both
directions on a two-wire channel using a 2 Binary / 1 Quartenary ("2B1Q") line
code.
1.28 "Incumbent Local Exchange Carrier" or "ILEC" is As Defined in the
Act. For purposes of this Agreement, BA is an Incumbent Local Exchange Carrier.
1.29 "Independent Telephone Company" or "ITC" means any entity other than
BA which, with respect to its operations within the State of Maryland, is an
Incumbent Local Exchange Carrier.
1.30 "Information Service Traffic" means Local Traffic or IntraLATA Toll
Traffic which originates on a Telephone Exchange Service line and which is
addressed to an information service provided over a Party's information services
platform (e.g., 976).
1.30.A "Inside Wire" or "Inside Wiring" means all wire, cable, terminals,
hardware, and other equipment or materials on the Customer's side of the Rate
Demarcation Point.
1.31 "Integrated Digital Loop Carrier" or "IDLC" means a subscriber loop
carrier system which integrates within the switch at a DS1 level that is
twenty-four (24) loop transmission paths combined into a 1.544 Mbps digital
signal.
1.32 "Integrated Services Digital Network" or "ISDN" means a switched
network service providing end-to-end digital connectivity for the simultaneous
transmission of voice and data. Basic Rate Interface-ISDN ("BRI-ISDN") provides
for digital transmission of two 64 kbps bearer channels and one 16 kbps data and
signaling channel (2B+D). Primary Rate Interface-ISDN ("PRI-ISDN") provides for
digital transmission of twenty three (23) 64 kbps bearer channels and one (1) 64
kbps data and signaling channel (23 B+D).
1.33 "Interconnection" is As Described in the Act, and means the
connection of equipment or facilities of one carrier with the equipment or
facilities of another carrier for the purpose of transmission and routing of
Telephone Exchange Service traffic and Exchange Access traffic.
1.34 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or
10
<PAGE>
indirectly, interLATA or intraLATA Telephone Toll Services.
1.35 "Interim Number Portability" or "INP" means the use of existing and
available call routing, forwarding, and addressing capabilities (e.g. remote
call forwarding) to enable a Customer to receive Telephone Exchange Service
provided by any Local Exchange Carrier operating within the exchange area with
which the Customer's telephone number(s) is associated, without having to change
the telephone number presently assigned to the Customer and regardless of
whether the Customer's chosen Local Exchange Carrier is the carrier that
originally assigned the number to the Customer.
1.36 "InterLATA" is As Defined in the Act.
1.37 "IntraLATA Toll Traffic" means those intraLATA calls that are not
defined as Local Traffic in this Agreement.
1.38 Reserved.
1.39 "Line Status Verification" or "LSV" means an operator request for a
status check on the line of a called party. The request is made by one Party's
operator to an operator of the other Party. The verification of the status check
is provided to the requesting operator.
1.40 "Local Access and Transport Area" or "LATA" is As Defined in the Act.
1.41 "Local Exchange Carrier" or "LEC" is As Defined in the Act. The
Parties to this Agreement are or will shortly become Local Exchange Carriers.
1.42 Reserved.
1.43 "Local Telephone Number Portability" or "LTNP" means "number
portability" As Defined in the Act.
1.44 "Local Traffic," unless otherwise defined by Applicable Law, is
traffic that is originated by a Customer of one Party on that Party's network
and terminates to a Customer of the other Party on that other Party's network,
within a given local calling area, or expanded area service ("EAS") area, as
defined in BA's effective Customer tariffs, or, if the Commission has defined
local calling areas applicable to all LECs, then as so defined by the
Commission.
1.45 "Main Distribution Frame" or "MDF" means the primary point at which
outside plant facilities terminate within a Wire Center, for interconnection to
other telecommunications facilities within the Wire Center.
1.46 "MECAB" means 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
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Bellcore as Special Report SR-BDS-000983, contains the recommended guidelines
for the billing of an Exchange Access service provided by two or more LECs, or
by one LEC in two or more states, within a single LATA.
1.47 "MECOD" means 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 OBF. The
MECOD document, published by Bellcore as Special Report SR-STS-002643,
establishes methods for processing orders for Exchange Access service which is
to be provided by two or more LECs.
1.48 "Meet-Point Billing" or "MPB" means an arrangement whereby two or
more LECs jointly provide to a third party the transport element of a Switched
Exchange Access Service to one of the LECs' End Office Switches, with each LEC
receiving an appropriate share of the transport element revenues as defined by
their effective Exchange Access tariffs. "Meet-Point Billing Traffic" means
traffic that is subject to an effective Meet-Point Billing arrangement.
1.49 "Mid-Span Meet" means an Interconnection architecture whereby two
carriers' transmission facilities meet at a mutually agreed-upon point of
Interconnection utilizing a fiber hand-off and, at the delivering carrier's
option, may interface with such carrier's collocated equipment to gain access to
unbundled elements.
1.50 "Multiple Bill/Single Tariff" or "Multiple Bill/Multiple Tariff"
means the MPB method whereby each LEC prepares and renders its own meet point
bill in accordance with its own Tariff(s) for the portion of the
jointly-provided Switched Exchange Access Service which the LEC provides.
1.51 "Network Element" is As Defined in the Act.
1.52 "Network Interface Device" or "NID" means the BA-provided interface
terminating BA's telecommunications network on the property where the Customer's
service is located at a point determined by BA.
1.53 "North American Numbering Plan" or "NANP" means the numbering plan
used in the United States that also serves Canada, Bermuda, Puerto Rico and
certain Caribbean Islands. The NANP format is a 10-digit number that consists of
a 3-digit NPA code (commonly referred to as the area code), followed by a
3-digit NXX code and 4-digit line number.
1.54. "Numbering Plan Area" or "NPA" is also sometimes referred to as an
area code. There are two general categories of NPAs, "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, 500 and 888 are examples of Non-Geographic NPAs.
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1.55 "NXX," "NXX Code," or "End Office Code" means the three digit switch
entity indicator (i.e. the first three digits of a seven digit telephone
number).
1.56 "Permanent Number Portability" or "PNP" means the use of a database
or other technical solution that comports with regulations issued by the FCC to
provide LTNP for all customers and service providers.
1.57 "Port Element" or "Port" means a termination on a Central Office
Switch that permits Customers to send or receive Telecommunications over the
public switched network, but does not include switch features or switching
functionality.
1.57.A "POT Bay" or "Point of Termination Bay" means the intermediate
distributing frame system which serves as the point of demarcation for
collocated Interconnection.
1.58 "Rate Center Area" or "Rate Center" or "Exchange Area" means the
geographic area that has been identified by a given LEC as being associated with
a particular NPA-NXX code assigned to the LEC for its provision of Telephone
Exchange Services. The Rate Center Area is the exclusive geographic area which
the LEC has identified as the area within which it will provide Telephone
Exchange Services bearing the particular NPA-NXX designation associated with the
specific Rate Center Area. A "Rate Center Point" is a specific geographic point,
defined by a V&H coordinate, located within the Rate Center Area and used to
measure distance for the purpose of billing Customers for distance-sensitive
Telephone Exchange Services and Toll Traffic. Rate Centers will be identical for
each Party until such time as Covad is permitted by an appropriate regulatory
body to create its own Rate Centers within an area.
1.59 "Rate Demarcation Point" means the point where network access
recurring charges and BA responsibility stop and beyond which Customer
responsibility begins, determined in accordance with FCC rules and BA standard
operating practices.
1.60 "Rating Point" or "Routing Point" means a specific geographic point
identified by a specific V&H coordinate. The Rating Point is used to route
inbound traffic to specified NPA-NXXs and to calculate mileage measurements for
distance-sensitive transport charges of switched access services. Pursuant to
Bellcore Practice BR-795-100-100, the Rating 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 be any alphanumeric A-Z or 0-9. The Rating Point/Routing Point
must be located within the LATA in which the corresponding NPA-NXX is located.
However, the Rating Point/Routing Point associated with each NPA-NXX need not be
the same as the corresponding Rate Center Point, nor must it be located within
the corresponding Rate Center Area, nor must there be a unique and separate
Rating Point corresponding to each unique and separate Rate Center.
1.61 "Reciprocal Compensation" is As Described in the Act, and refers to
the payment arrangements that recover costs incurred for the transport and
termination of Reciprocal Compensation Traffic originating on one Party's
network and terminating on the other Party's
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network.
1.62 "Service Control Point" or "SCP" means the node in the Common Channel
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 a service switching point and via a Signaling
Transfer Point, performs subscriber or application-specific service logic, and
then sends instructions back to the SSP on how to continue call processing.
1.63 "Signaling Transfer Point" or "STP" means a specialized switch that
provides SS7 network access and performs SS7 message routing and screening.
1.63.A "Strapping" means the act of installing a permanent connection
between a Point of Termination bay and a collocated interconnector's physical
Collocation node.
1.64 "Switched Access Detail Usage Data" means a category 1101XX record as
defined in the EMR Bellcore Practice BR-010-200-010.
1.65 "Switched Access Summary Usage Data" means a category 1150XX record
as defined in the EMR Bellcore Practice BR-010-200-010.
1.66 "Switched Exchange Access Service" means the offering of transmission
and switching services to Telecommunications Carriers for the purpose of the
origination or termination of Toll Traffic. Switched Exchange Access Services
include but may not be limited to: Feature Group A, Feature Group B, Feature
Group D, 700 access, 800 access, 888 access, and 900 access and functionally
equivalent Switched Exchange Access services that may be offered in the future.
1.67 "Switching Element" is the unbundled Network Element that provides a
CLEC the ability to use switching functionality in a BA End Office switch,
including all vertical services that are available on that switch, to provide
Telecommunications Services, including Telephone Exchange Service, to its end
user customer(s). The Switching Element will be provisioned with a Port Element,
which provides line side access to the Switching Element.
1.68 "Tariff" means any applicable federal or state tariff of a Party, or
standard agreement or other document that sets forth the generally available
terms and conditions, each as may be amended by the Party from time to time,
under which a Party offers a particular service, facility, or arrangement. A
Tariff shall not include BA's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary Services
and Resale of Telecommunications Services" which has been approved or is pending
approval by the Commission pursuant to Section 252(f) of the Communications Act
of 1934, 47 U.S.C. ss. 252(f).
1.69 "Technically Feasible Point" is As Described in the Act.
1.70 "Telecommunications" is As Defined in the Act.
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1.71 "Telecommunications Act" means the Telecommunications Act of 1996 and
any rules and regulations promulgated thereunder.
1.72 "Telecommunications Carrier" is As Defined in the Act.
1.73 "Telecommunications Service" is As Defined in the Act.
1.74 "Telephone Exchange Service," sometimes also referred to as "Exchange
Service," is As Defined in the Act. Telephone Exchange Service generally
provides the Customer with a telephonic connection to, and a unique telephone
number address on, the public switched telecommunications network, and enables
such Customer to place or receive calls to all other stations on the public
switched telecommunications network.
1.75 [Reserved]
1.76 "Toll Traffic" means traffic that is originated by a Customer of one
Party on that Party's network and terminates to a Customer of the other Party on
that Party's network and is not Local Traffic or Ancillary Traffic. Toll Traffic
may be either "IntraLATA Toll Traffic" or "InterLATA Toll Traffic," depending on
whether the originating and terminating points are within the same LATA.
1.77 "Transit Traffic" means any traffic that originates from or
terminates at Covad's network, "transits" BA's network substantially unchanged,
and terminates to or originates from a third carrier's network, as the case may
be. "Transit Traffic Service" provides Covad with the ability to use its
connection to a BA Tandem for the delivery of calls which originate or terminate
with Covad and terminate to or originate from a carrier other than BA, such as
another CLEC, a LEC other than BA, or a wireless carrier. In these cases,
neither the originating nor terminating Customer is a Customer of BA. This
service is provided through BA's Tandems and applies only where the terminating
End Office of the third carrier subtends the BA Tandem. "Transit Traffic" and
"Transit Traffic Service" do not include or apply to traffic that is subject to
an effective Meet-Point Billing arrangement.
1.78 "Trunk Side" means a Central Office Switch connection that is capable
of, and has been programmed to treat the circuit as, connecting to another
switching entity (e.g. another carrier's network). Trunk Side connections offer
those transmission and signaling features appropriate for the connection of
switching entities.
1.79 "Unbundled Local Loop Element" or "ULL" means a transmission path
that extends from a Main Distribution Frame, DSX-panel, or functionally
comparable piece of equipment in the Customer's serving End Office to the Rate
Demarcation Point (or network interface device (NID) if installed) in or at a
Customer's premises. The actual loop transmission facilities used to provide an
ULL may utilize any of several technologies.
1.80 "Verification with Call Interruption" or "VCI" means a service that
may be
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requested and provided when Line Status Verification has determined that a line
is busy due to an ongoing call. VCI is an operator interruption of that ongoing
call to inform the called party that a calling party is seeking to complete his
or her call to the called party.
1.81 "Voice Grade" means either an analog signal of 300 to 3000 Hz or a
digital signal of 56/64 kilobits per second. When referring to digital voice
grade service (a 56/64 kbps channel), the terms "DS-0" or "sub-DS-1" may also be
used.
1.82 "Wire Center" means a building or portion thereof which serves as a
Routing Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION.
2.1 All references to Sections, Exhibits and Schedules shall be deemed to
be references to Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. The headings used in this Agreement
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning of this Agreement. Unless the context shall
otherwise require, any reference to any agreement, other instrument (including
BA or other third party offerings, guides or practices), statute, regulation,
rule or tariff is to such agreement, instrument, statute, regulation, or rule or
tariff as amended and supplemented from time to time (and, in the case of a
statute, regulation, rule or tariff, to any successor provision).
2.2 Subject to the terms set forth in Section 20 regarding rates and
charges, each Party hereby incorporates by reference those provisions of its
tariffs that govern the provision of any of the services or facilities provided
hereunder. If any provision of this Agreement and an applicable tariff cannot be
reasonably construed or interpreted to avoid conflict, the provision contained
in this Agreement shall prevail, provided that in all cases the more specific
shall prevail over the more general. If any provision contained in this main
body of the Agreement and any Schedule or Exhibit hereto cannot be reasonably
construed or interpreted to avoid conflict, the provision contained in this main
body of the Agreement shall prevail. The fact that a condition, right,
obligation, or other term appears in this Agreement but not in any such tariff
shall not be interpreted as, or be deemed grounds for finding, a conflict for
purposes of this Section 2.
3.0 INTERCONNECTION ACTIVATION DATES AND IMPLEMENTATION SCHEDULE.
Subject to the terms and conditions of this Agreement, each Party shall
exercise its best efforts to adhere to the Interconnection Activation Dates and
Network Implementation Schedule set forth in Schedule 3.0, and to provide fully
operational service predominantly over its own Telephone Exchange Service
facilities to business and residential Customers as soon as reasonably
practicable following the achievement of the milestones in said Schedule for
each listed LATA in Maryland. Schedule 3.0 may be revised and supplemented from
time to time upon the mutual agreement of the Parties to reflect the intention
of the Parties to interconnect in additional LATAs
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pursuant to subsection 4.4 by attaching one or more supplementary schedules to
Schedule 3.0. The Parties agree that this Agreement addresses BA's obligation to
provide Interconnection under Section 251 of the Act, and the requirements of
the Competitive Checklist, under Section 271 of the Act. Covad represents that
it is, or intends to become, a provider of Telecommunications Service to
residential and business subscribers offered exclusively over its own
Telecommunications Service facilities or predominantly over its own
Telecommunications 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.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
The types of Traffic to be exchanged under this Agreement shall be Local
Traffic, IntraLATA Toll (and InterLATA Toll, as applicable) Traffic, Transit
Traffic, Meet Point Billing Traffic, and Ancillary Traffic. Subject to the terms
and conditions of this Agreement, Interconnection of the Parties facilities and
equipment for the transmission and routing of Local Traffic and Toll Traffic
pursuant to this Section 4 shall be established on or before the corresponding
"Interconnection Activation Date" shown for each such LATA within Maryland on
Schedule 3.0 and in accordance with the standards set forth in subsection 10.2.
Both Schedule 3.0 and Schedule 4.0 may be revised and supplemented from time to
time upon the mutual agreement of the Parties to reflect additional or changed
Interconnection Points in Maryland by attaching one or more supplementary
addenda to such Schedule.
4.1 Scope
4.1.1 Section 4 describes the architecture for Interconnection of
the Parties' facilities and equipment over which the Parties shall configure the
following separate and distinct trunk groups:
Traffic Exchange Trunks for the transmission and routing of
terminating Local Traffic, Transit Traffic, translated LEC IntraLATA
800/888 traffic, IntraLATA Toll Traffic, and, where agreed to
between the Parties and as set forth in subsection 4.2.8 below,
InterLATA Toll Traffic between their respective Telephone Exchange
Service customers pursuant to Section 251 (c)(2) of the Act, in
accordance with Section 5 below;
Access Toll Connecting Trunks for the transmission and routing of
Exchange Access traffic, including translated InterLATA 800/888
traffic, between Covad Telephone Exchange Service customers and
purchasers of Switched Exchange Access Service via a BA Tandem,
pursuant to Section 251(c)(2) of the Act, in accordance with Section
6 below;
Information Services Trunks for the transmission and routing of
terminating Information Services Traffic in accordance with Section
7 below;
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LSV/VCI Trunks for the transmission and routing of terminating
LSV/VCI traffic, in accordance with Section 7 below;
911/E911 Trunks for the transmission and routing of terminating
E911/911 traffic, in accordance with Section 7 below;
Directory Assistance Trunks for the transmission and routing of
terminating directory assistance traffic, in accordance with
subsection 19.4 below; and
Operator Services (IntraLATA call completion) Trunks for the
transmission and routing of terminating IntraLATA call completion
traffic, in accordance with subsection 19.4 below;
Choke Trunks for traffic congestion and testing; and
Others as may be requested and agreed to by the Parties.
4.1.2 To the extent required by Section 251 of the Act, this
Agreement provides for Interconnection to each other's networks at any
technically feasible point. For the purposes of this Agreement, the Parties
agree that Interconnection for the transport and termination of traffic may take
place, in the case of BA, at a terminating End Office, a Tandem, and/or other
points as specified herein, and, in the case of Covad, at a Central Office
and/or other points as specified herein, and, in the case of both Parties, any
mutually agreed-upon Mid-Span Meet arrangement as provided in Section 4.3 below.
For purposes of Interconnection, if Covad delivers traffic to BA at a BA End
Office or Tandem point of Interconnection other than the terminating End Office
or Tandem subtended by the terminating End Office, then such point of
Interconnection shall be deemed to be a serving Wire Center. In such instances
and whenever Covad utilizes a serving Wire Center as point of Interconnection,
Covad shall designate that such traffic be transported via a separate trunk
group to the BA Tandem that is subtended by the applicable terminating End
Office. In such cases, the BA Tandem subtended by the terminating End Office
will serve as the BA-IP (as defined below).
4.1.3 The Parties shall establish interconnection points
(collectively, the "Interconnection Points" or "IPs") at the available locations
designated in Schedule 4.0. The mutually agreed-upon IPs on the Covad network at
which Covad will provide transport and termination of traffic shall be
designated as the Covad Interconnection Points ("Covad-IPs"); the mutually
agreed-upon IPs on the BA network shall be designated as the BA Interconnection
Points ("BA-IPs") and shall be either a BA terminating End Office or Tandem.
4.1.4 In the event either Party fails to make available a
geographically relevant End Office or functional equivalent as an IP on its
network to the other Party, the other Party may, at any time, request that the
first Party establish such additional technically feasible IP(s). Such requests
shall be made as a part of the Joint Process established pursuant to subsection
10.1; provided, however, that the Parties shall commence negotiations to
determine the technically feasible and geographically relevant location(s) of
the additional IP(s) as soon as reasonably
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practicable following a Party's request therefor. If, after sixty (60) days
following said request, the Parties have been unable to reach agreement on the
additional Interconnection Points, then either Party may file a complaint with
the Commission to resolve such impasse or pursue with any other remedy available
under law or equity. For purposes of this subsection 4.1.4, a "geographically
relevant" IP shall mean an IP that is located within the BA local calling area
of equivalent BA end user customers, but no greater than twenty five (25) miles
from the BA Rate Center Point of the BA NXX serving the equivalent relevant end
user customers, or, with the mutual agreement of the Parties, an existing and
currently utilized IP within the LATA but outside the foregoing BA local calling
area and/or twenty five (25) mile radius. "Equivalent" customers shall mean
customers served by either Party at the same physical location.
4.1.5 In recognition of the large number and variety of BA-IPs
available for use by Covad, Covad's ability to select from among those points to
minimize the amount of transport it needs to provide or purchase, and the fewer
number of Covad-IPs available to BA to select from for similar purposes, and as
an express condition of BA's making its Wire Centers available to Covad as
points of Interconnection pursuant to subsection 4.1.2 above, Covad shall charge
BA no more than Covad's Tariffed non-distance sensitive entrance facility charge
for the transport of traffic from a BA-IP to a Covad-IP in any given LATA. The
Parties may by mutual agreement establish additional Interconnection Points at
any technically feasible points consistent with the Act.
4.1.6 The Parties shall configure separate trunk groups (as
described in subsection 4.1.1 above) for traffic from Covad to BA, and for
traffic from BA to Covad, respectively; however, the trunk groups shall be
equipped as two-way trunks for testing purposes. As provided in Section 10
below, the Parties agree to consider as part of the Joint Process the
feasibility of combining any of the separate trunk groups into a single two-way
trunk group.
4.2 Physical Architectures
4.2.1 In each LATA identified in Schedule 4.0, the Parties shall
utilize the Covad-IP(s) and BA-IP(s) designated in such Schedule as the points
from which each Party will provide the transport and termination of traffic.
4.2.2 Covad shall have the sole right and discretion to specify any
of the following methods for interconnection at any of the BA-IPs:
(a) a Physical or Virtual Collocation facility Covad establishes at
the BA-IP;
(b) a Physical or Virtual Collocation facility established
separately at the BA-IP by a third party with whom Covad has
contracted for such purposes; and/or
(c) an entrance facility and transport (where applicable) leased
from BA (and any necessary multiplexing), where such facility
extends to the BA-IP from a mutually agreed to point on Covad's
network.
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4.2.3 Covad shall provide its own facilities or purchase necessary
transport for the delivery of traffic to any Collocation arrangement it
establishes at a BA-IP pursuant to Section 13. BA shall provide the transport
and termination of the traffic beyond the BA-IP.
4.2.4 Covad may order from BA any of the Interconnection methods
specified above in accordance with the order intervals and other terms and
conditions, including, without limitation, rates and charges, set forth in this
Agreement, in any applicable Tariff(s), or as may be subsequently agreed to
between the Parties.
4.2.5 BA shall have the sole right and discretion to specify any one
of the following methods for Interconnection at any of the Covad-IPs:
(a) upon reasonable notice to Covad, a Physical Collocation facility
BA establishes at the Covad-IP;
(b) a Physical or Virtual Collocation facility established
separately at the Covad-IP by a third party with whom BA has
contracted for such purposes; and/or
(c) an entrance facility leased from Covad (and any necessary
multiplexing), where such facility extends to the Covad-IP from a
mutually agreed upon point on BA's network.
4.2.6 BA shall provide its own facilities or purchase necessary
transport for the delivery of traffic to any Collocation arrangement it
establishes at an Covad-IP pursuant to Section 13. Covad shall provide the
transport and termination of the traffic beyond the Covad-IP.
4.2.7 BA may order from Covad any of the Interconnection methods
specified above in accordance with the order intervals and other terms and
conditions, including, without limitation, rates and charges, set forth in this
Agreement, in any applicable Tariff(s), or as may be subsequently agreed to
between the Parties.
4.2.8 Under any of the architectures described in this subsection
4.2, either Party may utilize the Traffic Exchange Trunks for the termination of
InterLATA Toll Traffic in accordance with the terms contained in Section 5 below
and pursuant to the other Party's Switched Exchange Access Service tariffs. The
other Party's Switched Exchange Access Service rates shall apply to such
Traffic.
4.3 Mid-Span Meets
4.3.1 In addition to the foregoing methods of Interconnection, the
Parties may agree, at either Party's request at any time, to establish (i) a
Mid-Span Meet arrangement in accordance with the terms of this subsection 4.3
that utilizes either wireless or wireline transmission facilities, or a
combination of both, or (ii) a SONET backbone with an electrical interface at
the DS-3 level where and on the same terms BA offers such SONET services to
other carriers. In the event the Parties agree to adopt a Mid-Span Meet
arrangement that utilizes both
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wireless and wireline facilities, Covad agrees to bear all expenses associated
with the purchase of equipment, materials, or services necessary to facilitate a
wireless to wireline meet up to and including the optical to electrical
multiplexer necessary to effect a fiber hand-off to BA.
4.3.2 The establishment of any Mid-Span Meet arrangement is
expressly conditioned upon the Parties' reaching prior agreement on appropriate
sizing and forecasting, equipment, ordering, provisioning, maintenance, repair,
testing, augment, and compensation procedures and arrangements, reasonable
distance limitations, and on any other arrangements necessary to implement the
Mid-Span Meet arrangement. Any Mid-Span Meet arrangement requested at a
third-party premises is expressly conditioned on the Parties' having sufficient
capacity at the requested location to meet such request, on unrestricted 24-hour
access for both Parties to the requested location, on other appropriate
protections as deemed necessary by either Party, and on an appropriate
commitment that such access and other arrangements may not be restricted for a
reasonable period.
4.3.3 Mid-Span Meet arrangements shall be used only for the
termination of Local Traffic and IntraLATA Toll Traffic unless and until such
time as the Parties have agreed to appropriate compensation arrangements
relating to the exchange of other types of traffic over such Mid-Span Meet, and
only where facilities are available. Any agreement to access unbundled Network
Elements via a Mid-Span Meet arrangement shall be conditioned on the resolution
of the technical and other issues described in this subsection 4.3, resolution
by the joint operations team of additional issues (such as inventory and testing
procedures unique to the provision of unbundled Network Elements via a Mid-Span
Meet), and, as necessary, completion of a joint operational and technical test.
In addition, access to unbundled Network Elements via a Mid-Span Meet
arrangement for access to such Elements, shall be limited to that which is
required by Applicable Laws, and shall be subject to full compensation of all
relevant costs (as defined in the FCC Regulations) by the requesting Party to
the other Party.
4.4 Interconnection in Additional LATAs
4.4.1 If Covad determines to offer Telephone Exchange Services in
any LATA not listed in Schedule 3.0 in which BA also offers Telephone Exchange
Services, Covad shall provide written notice to BA of the need to establish
Interconnection in such LATA pursuant to this Agreement.
4.4.2 The notice provided in subsection 4.4.1 shall include (i) the
initial Routing Point Covad has designated in the new LATA; (ii) Covad's
requested Interconnection Activation Date (and related milestone dates in
accordance with the format in Schedule 3.0); and (iii) a non-binding forecast of
Covad's trunking requirements.
4.4.3 Unless otherwise agreed to by the Parties, the Parties shall
designate the Wire Center(s) Covad has identified as its initial Routing
Point(s) in the LATA as the Covad-IP(s) in that LATA and shall designate
mutually agreed upon BA Wire Center(s) that houses a Tandem Office within the
LATA nearest to the Covad-IP (as measured in airline miles utilizing the V&H
coordinates method) as the BA-IP(s) in that LATA, provided that, for the purpose
of charging for
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the transport of traffic from the BA-IP to the Covad-IP, the Covad-IP shall be
no further than an entrance facility away from the BA-IP.
4.4.4 The Parties shall agree upon an addendum to Schedule 3.0 to
reflect the schedule applicable to each new LATA requested by Covad; provided,
however, that unless agreed by the Parties, the Interconnection Activation Date
in a new LATA shall not be earlier than forty-five (45) days after receipt by BA
of all complete and accurate trunk orders and routing information. Within ten
(10) business days of BA's receipt of Covad's notice, BA and Covad shall confirm
the BA-IP, the Covad-IP and the Interconnection Activation Date for the new LATA
by attaching an addendum to Schedule 3.0.
4.5 Interconnection Points for Different Types of Traffic
Each Party shall make available Interconnection Points and facilities for
routing of traffic from those Interconnection Points as designated in Schedule
4.5. Any additional traffic that is not covered in Schedule 4.5 shall be subject
to separate negotiations between the Parties, except that (i) either Party may
deliver traffic of any type or character to the other Party for termination as
long as the delivering Party pays the receiving Party's then current Switched
Exchange Access rates for such traffic, and (ii) upon a bona fide request from
either Party, the Parties will exercise all reasonable efforts to conclude an
agreement covering the exchange of such traffic.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
Section 5 prescribes parameters for trunk groups (the "Traffic Exchange
Trunks") to be effected over the Interconnections specified in Section 4 for the
transmission and routing of Local Traffic, Transit Traffic, translated LEC
IntraLATA 800/888 traffic, InterLATA Toll Traffic (to the extent applicable),
and IntraLATA Toll Traffic between the Parties' respective Telephone Exchange
Service Customers.
5.2 Trunk Group Connections and Ordering
5.2.1 Traffic Exchange Trunk group connections will be made at a
DS-1 level or higher. Higher speed connections shall be made, when and where
available, in accordance with the Joint Implementation and Grooming Process
prescribed in Section 10. Ancillary Traffic trunk groups may be made below a
DS-1 level, as may be agreed to by the Parties.
5.2.2 Each Party will identify its Carrier Identification Code, a
three or four digit numeric obtained from Bellcore, to the other Party when
ordering a trunk group.
5.3 Additional Switching System Hierarchy and Trunking Requirements
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For purposes of routing Covad traffic to BA, the subtending arrangements
between BA Tandem Switches and BA End Office Switches shall be the same as the
Tandem/End Office subtending arrangements BA maintains for the routing of its
own or other carriers' traffic. For purposes of routing BA traffic to Covad, the
subtending arrangements between Covad Tandem Switches (or functional equivalent)
and Covad End Office Switches (or functional equivalent) shall be the same as
the Tandem/End Office subtending arrangements (or functional equivalent) which
Covad maintains for the routing of its own or other carriers' traffic.
5.4 Signaling
Each Party will provide the other Party with access to its databases and
associated signaling necessary for the routing and completion of the other
Party's traffic in accordance with the provisions contained in Section 17 below.
5.5 Grades of Service
The Parties shall initially engineer and shall jointly monitor and enhance
all trunk groups consistent with the Joint Implementation and Grooming Process
as set forth in Section 10.
5.6 Measurement and Billing
5.6.1 For billing purposes, each Party shall pass Calling Party Number
("CPN") information on each call carried over the Traffic Exchange Trunks at
such time as the originating switch is equipped for SS7 and from all switches no
later than December 31, 1998. At such time as either Party has the ability, as
the Party receiving the traffic, to use such CPN information to classify on an
automated basis traffic delivered by the other Party as either Local Traffic or
Toll Traffic, such receiving Party shall bill the originating Party the Local
Traffic termination rates, Intrastate Exchange Access rates, or Interstate
Exchange Access rates applicable to each minute of Traffic for which CPN is
passed, as provided in Exhibit A and applicable Tariffs.
5.6.2 If, under the circumstances set forth in subsection 5.6.1, the
originating Party does not pass CPN on up to ten percent (10%) of calls, the
receiving Party shall bill the originating Party the Local Traffic termination
rates, Intrastate Exchange Access rates, Intrastate/Interstate Transit Traffic
rates, or Interstate Exchange Access rates applicable to each minute of traffic,
as provided in Exhibit A and applicable Tariffs, for which CPN is passed. For
the remaining up to ten percent (10%) of calls without CPN information, the
receiving Party shall bill the originating Party for such traffic as Local
Traffic termination rates, Intrastate Exchange Access rates,
Intrastate/Interstate Transit Traffic rates, or Interstate Exchange Access rates
applicable to each minute of traffic, as provided in Exhibit A and applicable
Tariffs, in direct proportion to the minutes of use of calls passed with CPN
information.
5.6.3 If the originating Party does not pass CPN on more than ten
percent (10%) of calls, or if the receiving Party lacks the ability to use CPN
information to classify on an automated basis traffic delivered by the other
Party as either Local Traffic or Toll Traffic, and the originating Party chooses
to combine Local and Toll Traffic on the same trunk group, it will supply an
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auditable Percent Local Use ("PLU") report quarterly, based on the previous
three months' traffic, and applicable to the following three months. If the
originating Party also chooses to combine Interstate and Intrastate Toll Traffic
on the same trunk group, it will supply an auditable Percent Interstate Use
("PIU") report quarterly, based on the previous three months' terminating
traffic, and applicable to the following three months. In lieu of the foregoing
PLU and/or PIU reports, the Parties may agree to provide and accept reasonable
surrogate measures for an agreed-upon interim period.
5.6.4 Measurement of billing minutes for purposes of determining
terminating compensation shall be in conversation seconds.
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5)
Reciprocal Compensation arrangements address the transport and termination
of Local Traffic. BA's delivery of Traffic to Covad that originated with a third
carrier is addressed in subsection 7.3. Where Covad delivers Traffic (other than
Local Traffic) to BA, except as may be set forth herein or subsequently agreed
to by the Parties, Covad shall pay BA the same amount that such carrier would
have paid BA for termination of that Traffic at the location the Traffic is
delivered to BA by Covad. Compensation for the transport and termination of
traffic not specifically addressed in this subsection 5.7 shall be as provided
elsewhere in this Agreement, or if not so provided, as required by the Tariffs
of the Party transporting and/or terminating the traffic. BA shall provide
notice to Covad of any BA filing to the Commission that would alter the
classification of particular traffic as Local or IntraLATA Toll Traffic.
5.7.1 Nothing in this Agreement shall be construed to limit either
Party's ability to designate the areas within which that Party's Customers may
make calls which that Party rates as "local" in its Customer Tariffs.
5.7.2 The Parties shall compensate each other for the transport and
termination of Local Traffic in an equal and symmetrical manner at the rates
provided in the Detailed Schedule of Itemized Charges (Exhibit A hereto), as may
be amended from time to time in accordance with Exhibit A and subsection 20.1.2
below or, if not set forth therein, in the applicable Tariff(s) of the
terminating Party, as the case may be. These rates are to be applied at the
Covad-IP for traffic delivered by BA, and at the BA-IP for traffic delivered by
Covad. No additional charges, including port or transport charges, shall apply
for the termination of Local Traffic delivered to the BA-IP or the Covad-IP,
except as set forth in Exhibit A. When Local Traffic is terminated over the same
trunks as Toll Traffic, any port or transport or other applicable access charges
related to the Toll Traffic shall be prorated to be applied only to the Toll
Traffic.
5.7.3 The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access Service. All Switched
Exchange Access Service and all Toll Traffic shall continue to be governed by
the terms and conditions of the applicable federal and state Tariffs. Similarly,
the Parties agree that the reciprocal compensation arrangements contained in
this subsection 5.7 shall not apply to traffic handed off from one Party to the
other Party, within a BA local calling area, for delivery to an Internet Service
Provider ("ISP") for
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carriage over the Internet.
5.7.4 Compensation for transport and termination of all Traffic
which has been subject to performance of INP by one Party for the other Party
pursuant to Section 14 shall be as specified in subsection 14.5.
5.7.5 The designation of Traffic as Local or non-Local for purposes
of compensation shall be based on the actual originating and terminating points
of the complete end-to-end call, regardless of the entities involved in carrying
any segment of the call.
5.7.6 Each Party reserves the right to measure and audit all
Traffic, up to a maximum of two audits per calendar year, to ensure that proper
rates are being applied appropriately, provided, however, that either Party
shall have the right to conduct additional audit(s) if the preceding audit
disclosed material errors or discrepancies. Each Party agrees to provide the
necessary Traffic data or permit the other Party's recording equipment to be
installed for sampling purposes in conjunction with any such audit.
5.7.7 The Parties will engage in settlements of intraLATA intrastate
alternate-billed calls (e.g. collect, calling card, and third-party billed
calls) originated or authorized by their respective Customers in Maryland in
accordance with the terms of an appropriate IntraLATA Telecommunications
Services Settlement Agreement between the Parties substantially in the form
appended hereto as Exhibit D.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO 251(c)(2)
6.1 Scope of Traffic
Section 6 prescribes parameters for certain trunks to be established over
the Interconnections specified in Section 4 for the transmission and routing of
traffic between Covad Telephone Exchange Service Customers and Interexchange
Carriers ("Access Toll Connecting Trunks"), in any case where Covad elects to
have its End Office Switch subtend a BA Tandem. This includes casually-dialed
(10XXX and 101XXXX) traffic.
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 Covad shall establish Access Toll Connecting Trunks by which
it will provide tandem-transported Switched Exchange Access Services to
Interexchange Carriers to enable such Interexchange Carriers to originate and
terminate traffic to and from Covad's Customers.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Exchange Access to allow Covad's Customers to
connect to or be connected to the interexchange trunks of any Interexchange
Carrier which is connected to a BA Tandem.
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6.2.3 The Access Toll Connecting Trunks shall be two-way trunks
connecting an End Office Switch Covad utilizes to provide Telephone Exchange
Service and Switched Exchange Access in a given LATA to a Tandem BA utilizes to
provide Exchange Access in such LATA.
6.2.4 The Parties shall jointly determine which BA Tandem(s) will be
subtended by each Covad End Office Switch. Covad's End Office switch shall
subtend the BA Tandem that would have served the same rate center on BA's
network. Alternative configurations will be discussed as part of the Joint
Implementation and Grooming Process.
6.3 Meet-Point Billing Arrangements
6.3.1 Covad and BA will establish Meet-Point Billing arrangements in
order to provide a common transport option to Switched Access Services Customers
via a Tandem Switch in accordance with the Meet-Point Billing guidelines
contained in the OBF's MECAB and MECOD documents, except as modified herein, and
BA's Maryland Tariff Number 217, Section 2.4.8. The arrangements described in
this Section 6 are intended to be used to provide Switched Exchange Access
Service that originates and/or terminates on a Telephone Exchange Service that
is provided by either Party, where the transport component of the Switched
Exchange Access Service is routed through a Tandem Switch that is provided by
BA.
6.3.2 In each LATA, the Parties shall establish MPB arrangements
between the applicable Rating Point/BA Wire Center combinations.
6.3.3 Interconnection for the MPB arrangement shall occur at the
BA-IP in the LATA, unless otherwise agreed to by the Parties.
6.3.4 Covad and BA will use reasonable efforts, individually and
collectively, to maintain provisions in their respective state access tariffs,
and/or provisions within the National Exchange Carrier Association ("NECA")
tariff No. 4, or any successor Tariff sufficient to reflect the MPB arrangements
established pursuant to this Agreement.
6.3.5 Each Party shall implement the "Multiple Bill/Single Tariff"
or "Multiple Bill/Multiple Tariff" option, as appropriate, in order to bill an
IXC for the portion of the jointly provided telecommunications service provided
by that Party.
6.3.6 The rate elements to be billed by each Party are as set forth
in Schedule 6.3. The actual rate values for each Party's affected access service
rate element shall be the rates contained in that Party's own effective federal
and state access tariffs, or other document that contains the terms under which
that Party's access services are offered. The MPB billing percentages for each
Rating Point/BA Wire Center combination shall be calculated in accordance with
the formula set forth in subsection 6.3.17 below.
6.3.7 Each Party shall provide the other Party with the billing
name, billing address, and Carrier Identification Code ("CIC") of the IXC, and
identification of the IXC's serving Wire Center in order to comply with the MPB
notification process as outlined in the
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MECAB document via facsimile or such other media as the Parties may agree to.
6.3.8 BA shall provide Covad with the Switched Access Detail Usage
Data (category 1101XX records) on magnetic tape or via such other media as the
Parties may agree to, no later than ten (10) business days after the date the
usage occurred.
6.3.9 Covad shall provide BA with the Switched Access Summary Usage
Data (category 1150XX records) on magnetic tape or via such other media as the
Parties may agree, no later than ten (10) business days after the date of its
rendering of the bill to the relevant IXC, which bill shall be rendered no less
frequently than monthly.
6.3.10 All usage data to be provided pursuant to subsections 6.3.8
and 6.3.9 above shall be sent to the following addresses:
To Covad: Covad to notify BA of Covad address.
To BA: Bell Atlantic
Tape Library
1500 Tech Center Drive
Monroeville, PA 15146
Either Party may change its address for receiving usage data by notifying the
other Party in writing.
6.3.11 Each Party shall coordinate and exchange the billing account
reference ("BAR") and billing account cross reference ("BACR") numbers or
Operating Company Number ("OCN"), as appropriate, for the MPB 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, or if the OCN changes.
6.3.12 Errors may be discovered by Covad, the IXC or BA. Each Party
agrees to provide the other Party with notification of any errors it discovers
within two (2) business days of the date of such discovery. In the event of a
loss of data, both Parties shall cooperate to reconstruct the lost data and, if
such reconstruction is not possible, shall accept a reasonable estimate of the
lost data based upon prior usage data.
6.3.13 Either Party may request a review or audit of the various
components of access recording up to a maximum of two (2) audits per calendar
year. All costs associated with each review and audit shall be borne by the
requesting Party. Such review or audit shall be conducted subject to
confidentiality protection and during regular business hours. A Party may
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conduct additional audits, at its expense, upon the other Party's consent, which
consent shall not be unreasonably withheld.
6.3.14 Nothing contained in this subsection 6.3 shall create any
liability for damages, losses, claims, costs, injuries, expenses or other
liabilities whatsoever on the part of either Party (other than as may be set
forth in MECAB or in any applicable Tariff).
6.3.15 The Parties shall not charge one another for the services
rendered or information provided pursuant to this subsection 6.3.
6.3.16 MPB will apply for all traffic bearing the 500, 900, 800/888
(to the extent provided by an IXC) or any other non-geographic NPA which may be
likewise designated for such traffic in the future.
6.3.17 In the event Covad determines to offer Telephone Exchange
Services in another LATA in which BA operates a Tandem Switch, BA shall permit
and enable Covad to subtend the BA Tandem Switch(es) designated for the BA End
Offices in the area where the Covad Rating Point(s) associated with the
NPA-NXX(s) to/from which the Switched Exchange Access Services are homed. The
MPB billing percentages for each new Rating Point/BA Wire Center combination
shall be calculated according to the following formula:
a / (a + b) = Covad Billing Percentage
and
b / (a + b) = BA Billing Percentage
where:
a = the airline mileage between the Rating Point and the
actual point of interconnection for the MPB arrangement; and
b = the airline mileage between the BA Wire Center and the
actual point of interconnection for the MPB arrangement.
Covad shall inform BA of the LATA in which it intends to offer Telephone
Exchange Services and its calculation of the billing percentages which should
apply for such arrangement, as part of the notice required by subsection 4.4.1
above. Within ten (10) business days of Covad's delivery of notice to BA, BA and
Covad shall confirm the new Rating Point/BA Wire Center combination and billing
percentages. Nothing in this subsection 6.3.17 shall be construed to limit
Covad's ability to select to interconnect with BA in additional LATAs by means
of Interconnection at a Wire Center, to the extent that such Interconnection is
permitted under this Agreement.
6.3.18 Within thirty (30) days of a request by Covad, BA agrees to
notify all switched access users with a Carrier Identification Code in a LATA in
which the Parties have newly established Interconnection arrangements pursuant
to this Agreement that BA and Covad have entered in a Meet Point Billing
arrangement.
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6.4 800/888 Traffic
The following terms shall apply when either Party delivers 800/888 calls
to the other Party for completion.
6.4.1 When Covad delivers translated 800/888 calls to BA for
completion
(a) to an IXC, Covad shall:
(i) Provide a MPB record in an industry standard format to BA;
and
(ii) Bill the IXC the appropriate Covad query charge
associated with the call.
(b) as an IntraLATA call to BA or another LEC in the LATA, Covad
shall:
(i) Provide a copy record in an industry standard format to BA
or the terminating LEC;
(ii) Submit the call records to ITORP for payment by BA or the
LEC that is the 800/888 service provider of Covad's and any
intermediate LEC's Tariffed Exchange Access charges and query
charges.
6.4.2 When BA delivers translated 800/888 calls originated by BA's
or another LEC's Customers to Covad for completion
(a) to Covad in its capacity as an IXC, BA shall:
(i) Bill Covad the appropriate BA query charge associated with
the call; and
(ii) Bill Covad the appropriate FGD Exchange Access charges
associated with the call.
(b) as an IntraLATA call to Covad in its capacity as a LEC,
(i) the originating LEC shall submit the appropriate call
records to BA for processing under the IntraLATA Toll Originating
Responsibility Plan ("ITORP") for payment by Covad of BA's (and
another LEC's, if appropriate) tariffed Exchange Access charges; and
(ii) Covad shall pay the originating LEC's appropriate query
charge associated with the call.
6.4.3 The settlement of all IntraLATA 800/888 calls exchanged
pursuant to this subsection 6.4 shall be in accordance with the terms of an
appropriate IntraLATA
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Telecommunications Services Settlement Agreement between the Parties
substantially in the form appended hereto as Exhibit D.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Services Traffic
The following provisions shall apply only to Covad-originated Information
Services Traffic directed to an information services platform connected to BA's
network. At such time as Covad connects Information Services platforms to its
network, the Parties shall agree upon a comparable arrangement for BA-originated
Information Services Traffic.
7.1.1 Covad shall have the option to route Information Services
Traffic that originates on its own network to the appropriate information
services platform(s) connected to BA's network. In the event Covad exercises
such option, Covad will establish a dedicated trunk group to the BA information
services serving switch. This trunk group will be utilized to allow Covad to
route information service traffic originated on its network to BA.
7.1.2 Covad shall provide an electronic file transfer or monthly
magnetic tape containing recorded call detail information to BA.
7.1.3 BA shall provide to Covad via electronic file transfer or
magnetic tape or other means as available all necessary information to rate the
Information Services Traffic to Covad's Customers pursuant to the BA's
agreements with each information services provider. Information shall be
provided in as timely a fashion as practical in order to facilitate record
review and reflect actual prices set by the individual information services
providers.
7.1.4 Covad shall bill and collect such information services
provider charges and remit the amounts collected to BA less:
(a) The Information Services Billing and Collection fee set forth in
Exhibit A; and
(b) An uncollectibles reserve calculated based on the uncollectibles
reserve in BA's billing and collection agreement with the applicable
information services provider; and
(c) Customer adjustments provided by Covad.
Covad shall provide to BA sufficient information regarding uncollectibles
and Customer adjustments to allow BA to pass through the adjustments to the
information services provider, and BA shall pass through such adjustments.
However, if the information services provider disputes such adjustments and
refuses to accept such adjustments, Covad shall reimburse BA for all such
disputed adjustments. Final resolution regarding all disputed adjustments shall
be solely
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between Covad and the information services provider.
7.1.5 Nothing in this Agreement shall restrict either Party from
offering, or obviate either Party's obligations, if any, under Applicable Laws
to offer, to its Telephone Exchange Service Customers the ability to block the
completion of Information Service Traffic or from establishing such blocking as
the default and requiring that such Customers make an affirmative request to
remove the blocking.
7.1.6 To the extent either Party offers variable rated (e.g. 976,
554, and/or 915, as applicable) information services, the Parties may agree to
separate arrangements for the billing and compensation of such services.
7.1.7 The Information Services Traffic addressed herein does not
include 555 traffic or similar traffic with AIN service interfaces, which
traffic shall be subject to separate arrangements between the Parties.
7.2 LSV/VCI Traffic
7.2.1 If Party A decides or is required by a regulatory body of
competent jurisdiction to offer LSV and VCI services to enable its Customers to
verify and/or interrupt calls of Party B's Customers, Party B shall accept and
respond to LSV and VCI requests from the operator bureau of the Party A. Each
Party shall compensate the other Party for LSV and VCI inquiries in accordance
with the other Party's Tariffed rates, the terms of the Directory Assistance and
Call Completion Agreement appended hereto as Exhibit C, or as may be agreed to
by the Parties.
7.2.2 The Party B operator shall only verify the status of the line
(LSV) or interrupt the line to inform the called party that there is a call
waiting. The Party B operator will not complete the telephone call of the
Customer initiating the LSV/VCI request. The Party B operator will only make one
LSV/VCI attempt per Customer operator bureau telephone call, and the applicable
charges apply whether or not the called party releases the line.
7.2.3 Each Party's operator bureau shall accept LSV and VCI
inquiries from the operator bureau of the other Party in order to allow
transparent provision of LSV/VCI Traffic between the Parties' networks.
7.2.4 Each Party shall route LSV/VCI Traffic inquiries over separate
direct trunks (and not the Local/IntraLATA/InterLATA Trunks) established between
the Parties' respective operator bureaus. Each Party shall offer interconnection
for LSV/VCI traffic at its operator services Tandem Office, or other mutually
agreed point in the LATA. Separate LSV/VCI trunks will be directed to the
operator services Tandem Office designated by Party B. Unless otherwise mutually
agreed, the Parties shall configure LSV/VCI trunks over the Interconnection
architectures in accordance with the terms of Section 4, consistent with the
Joint Implementation and Grooming Process. Party A shall outpulse the
appropriate NPA, ATC Code, and Routing Code (operator code) to Party B.
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7.3 Transit Service
7.3.1 Each Party shall exercise all reasonable efforts to enter into
a reciprocal local traffic exchange arrangement (either via written agreement or
mutual tariffs) with any wireless carrier, ITC, CLEC, or other LEC to which it
sends, or from which it receives, local traffic that transits the other Party's
facilities over Traffic Exchange Trunks. If either Party fails to enter into
such an arrangement as quickly as commercially reasonable following the
Effective Date and to provide written notification of such Agreement, including
the relevant rates therein, to the other Party, but continues to utilize the
other Party's Transit Service for the exchange of local traffic with such
wireless carrier, ITC, CLEC, or other LEC, then the Party utilizing the Transit
Service shall, in addition to paying the rate set forth in Exhibit A for said
Transit Service, pay the other Party any charges or costs such terminating third
party carrier imposes or levies on the other Party for the delivery or
termination of such Traffic, including, where not prohibited by Applicable Law,
any switched access charges, plus all reasonable expenses incurred by the other
Party in delivering or terminating such Traffic and/or resulting from the
utilizing Party's failure to secure said reciprocal local traffic exchange
arrangement. Each Party will, upon request, provide the other Party with all
reasonable cooperation and assistance in obtaining such arrangements. In
addition, neither Party shall take any actions to prevent the other Party from
entering into a direct and reciprocal local traffic exchange arrangement (either
via written agreement or mutual tariffs) with any wireless carrier, ITC, CLEC,
or other LEC to which it sends, or from which it receives, local traffic that
does not utilize the Transit Service of the first Party. The Parties agree to
work cooperatively in appropriate industry fora to promote the adoption of
reasonable industry guidelines relating to Transit Traffic.
7.3.2 Transit Traffic that is originated by an ITC or wireless
carrier shall be settled in accordance with the terms of an appropriate
IntraLATA Telecommunications Services Settlement Agreement between the Parties
substantially in the form appended hereto as Exhibit D. Meet-Point Billing
compensation arrangements as described in subsection 6.3 shall be utilized for
compensation for the joint handling of Toll Traffic.
7.3.3 BA expects that most networks involved in Transit Traffic will
deliver each call to each involved network with CCIS and the appropriate
Transactional Capabilities Application Part ("TCAP") message to facilitate full
interoperability of those services supported by BA and billing functions. In all
cases, each Party shall follow the Exchange Message Record ("EMR") standard and
exchange records between the Parties and with the terminating carrier to
facilitate the billing process to the originating network.
7.3.4 Transit Traffic shall be routed over the Traffic Exchange
Trunks described in Section 5 above.
7.4 911/E911 Arrangements
7.4.1 Covad may, at its option, interconnect to the BA 911/E911
selective routers or 911 Tandem Offices, as appropriate, that serve the areas in
which Covad provides Telephone
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Exchange Services, for the provision of 911/E911 services and for access to all
subtending Public Safety Answering Points ("PSAP"). In such situations, BA will
provide Covad with the appropriate CLLI codes and specifications of the Tandem
Office serving area. In areas where E911 is not available, Covad and BA will
negotiate arrangements to connect Covad to the 911 service.
7.4.2 Path and route diverse interconnections for 911/E911 shall be
made at the Covad-IP, the BA-IP, or other points as necessary and mutually
agreed, and as required by law or regulation.
7.4.3 Within thirty (30) days of its receipt of a request from Covad
and to the extent authorized by the relevant federal, state, and local
authorities, BA will provide Covad with the following at no charge:
(a) a file on diskette or other mutually agreed upon medium
containing the Master Street Address Guide ("MSAG") for each county within the
LATA(s) specified in this Agreement, which MSAG shall be updated no more
frequently than monthly and a complete copy of which shall be made available on
an annual basis;
(b) a list of the address, CLLI code, and an associated NXX of each
911/E911 selective router or 911 Tandem office(s) in the area in which Covad
plans to offer Telephone Exchange Service;
(c) a list of the address, CLLI code, associated NXX, contact name
and phone number of each PSAP in each county in the area in which Covad plans to
offer Telephone Exchange Service;
(d) a list of BA personnel who currently have responsibility for
each county's 911 requirements;
(e) the ten-digit subscriber number for each PSAP or the "main" PSAP
that subtends each BA 911/E911 selective router or 911 Tandem to which Covad is
interconnected for the transfer of "0-" calls to the PSAP;
(f) any special 911 trunking requirements for each 911/E911
selective router or 911 Tandem;
(g) an electronic interface, when available, through which Covad
shall input and provide a daily update of 911/E911 database information related
to appropriate Covad Customers. Until such time as an electronic interface is
available, Covad shall provide BA with all appropriate 911 information such as
name, address, and telephone number in writing for BA's entry into the 911
database system. Any 911-related data exchanged between the Parties prior to the
availability of an electronic interface shall conform to BA standards, whereas
911-related data exchanged electronically shall conform to the National
Emergency Number Association standards;
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(h) return of any Covad E911 data entry files containing errors, so
that Covad may ensure the accuracy of the Customer records; and
(i) a Design Layout Record ("DLR") of a 911 (CAMA) trunk, if
applicable.
7.4.4 In cases where a Customer of one Party elects to discontinue
its service and become the Customer of the other Party ("Party B") but desires
to retain its original telephone number pursuant to an INP arrangement, Party B
will outpulse the telephone number to which the call has been forwarded (i.e.
the Customer's ANI) to the 911 Tandem Office. Party B will also provide the 911
database with both the forwarded number and the directory number, as well as the
appropriate address information of the Customer.
7.4.5 BA and Covad will use their best efforts to facilitate the
prompt, robust, reliable and efficient interconnection of Covad systems to the
911/E911 platforms.
7.4.6 BA and Covad will work cooperatively to arrange meetings with
PSAPs to answer any technical questions the PSAPs, or county or municipal
coordinators may have regarding the 911/E911 arrangements.
7.4.7 The Parties acknowledge that the provision of INP, until PNP
with full 911 compatibility is available, creates a special need to have the
Automatic Location Identification ("ALI") screen reflect two number: the "old"
number and the "new" number assigned by Covad. The Parties acknowledge further
the objective of including the five character Telephone Company Identification
("TCI") of the company that provides service to the calling line as part of the
ALI display. Until such time as TCI is operational, however, BA and Covad agree
to supply and use the three-letter Access Carrier Name Abbreviation ("ACNA") as
the carrier identifier.
7.4.8 Covad will compensate BA for connections to its 911/E911
pursuant to Exhibit A.
7.4.9 Covad will comply with all applicable rules and regulations
pertaining to the provision of 911/E911 services in Maryland.
7.5 Ancillary Traffic Generally
Ancillary Traffic that may be terminated at a BA Wire Center pursuant to
subsection 4.5 above shall be subject to a separate transport charge for
transport from the Wire Center to the appropriate Tandem Office, as set forth in
Exhibit A.
8.0 NUMBER RESOURCES, RATE CENTERS AND RATING POINTS
8.1 Nothing in this Agreement shall be construed to limit or otherwise
adversely affect in any manner either Party's right to employ or to request and
be assigned any Central Office (NXX) Codes pursuant to the Central Office Code
Assignment Guidelines, as may be amended
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from time to time, or to establish, by Tariff or otherwise, Rate Centers and
Rating Points corresponding to such NXX codes. Until such time as number
administration is provided by a third party, BA shall provide Covad access to
telephone numbers by assigning NXX codes to Covad in accordance with such
Assignment Guidelines.
8.2 It shall be the responsibility of each Party to program and update its
own switches and network systems in accordance with the Local Exchange Routing
Guide ("LERG") in order 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, except as expressly set forth
in this Agreement.
8.3 Unless mandated otherwise by a Commission order, the Rate Center Areas
will be the same for each Party. During the term of this Agreement, Covad shall
adopt the Rate Center Areas and Rate Center Points that the Commission has
approved for BA, in all areas where BA and Covad service areas overlap, and
Covad shall assign whole NPA-NXX codes to each Rate Center unless the LEC
industry adopts alternative methods of utilizing NXXs in the manner adopted by
the NANP.
8.4 Covad will also designate a Routing Point for each assigned NXX code.
Covad shall designate one location for each Rate Center Area as the Routing
Point for the NPA-NXXs associated with that Area, and such Routing Point shall
be within the same LATA as the Rate Center Area but not necessarily within the
Rate Center Area itself.
8.5 Notwithstanding anything to the contrary contained herein, nothing in
this Agreement is intended to, and nothing in this Agreement shall be construed
to, in any way constrain Covad's choices regarding the size of the local calling
area(s) that Covad may establish for its Customers, which local calling areas
may be larger than, smaller than, or identical to, BA's local calling areas.
9.0 NETWORK MAINTENANCE AND MANAGEMENT; OUTAGES
9.1 The Parties will work cooperatively to install and maintain a reliable
network. Covad and BA will exchange appropriate information (e.g., maintenance
contact numbers, escalation procedures, network information, information
required to comply with law enforcement and other security agencies of the
Government) to achieve this desired reliability. In addition, the Parties will
work cooperatively to apply sound network management principles to alleviate or
to prevent congestion. BA and Covad agree to work cooperatively to implement
technical guidelines to prevent degradation or other impairments to the quality
or reliability of either Party's network.
9.2 Each Party recognizes a responsibility to follow the standards that
may be agreed to between the Parties and to employ characteristics and methods
of operation that will not interfere with or impair the service or any
facilities of the other or any third parties connected with or involved directly
in the network of the other.
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9.3 Interference or Impairment
If BA reasonably determines that the use of an unbundled Network Element
or network service by Covad is interfering with or impairing BA's provision of
services, BA shall have the right to discontinue service to the degree
reasonably necessary to resolve the interference or impairment, subject,
however, to the following:
9.3.1 BA shall have given Covad at least ten (10) days' prior
written notice of the interference or impairment and the need to correct the
condition within said time period.
9.3.2 BA shall have concurrently provided a copy of the notice
provided to Covad under subsection 9.3.1 above to the appropriate federal and/or
state regulatory bodies.
9.3.3 Notice in accord with subsections 9.3.1 and 9.3.2 above shall
not be required in emergencies and BA may immediately discontinue service if
reasonably necessary to avoid interference with or impairment of BA's network or
services. In such case, however, BA shall use all reasonable means to notify
Covad and the appropriate federal and/or state regulatory bodies.
9.3.4 Upon correction of the interference or impairment, which may
include relocation at appropriate rates and charges, BA will promptly renew
service to Covad. During such period of discontinuance, there will be no
compensation or credit allowance by BA to Covad for interruptions.
9.3.5 The provisions of this Section 9.3 shall not apply to ADSL-2W,
HDSL-2W, and HDSL-4W ULLs provided to Covad by BA pursuant to Section 11.2 of
this Agreement, so long as Covad conforms to the applicable technical references
in its use of such Loops.
9.3.6 If Bell Atlantic reasonably determines that (i) Covad's use of an
unbundled Network Element or a service provided by BA or (ii) the
characteristics and methods of operation used by Covad will or may interfere
with or impair BA's provision of services, BA shall give Covad at least twenty
(20) days' prior written notice of the potential interference or impairment and
the need to correct the condition within said time period. If Covad fails to
correct the condition within said time period, BA may take any action permitted
by Applicable Law, including, but not limited to, filing a complaint with or
seeking other relief from the FCC or the Department.
9.4 Repeated or Willful Noncompliance
The Interconnection, unbundled Network Elements, and services provided
hereunder may be discontinued by either Party upon thirty (30) days written
notice to the other for repeated or willful violation of and/or a refusal to
comply with this Agreement in any material respect. The Party discontinuing will
notify the appropriate federal and/or state regulatory bodies concurrently with
the notice to the other Party of the prospective discontinuance.
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9.5 Outage Repair Standard
In the event of an outage or trouble in any arrangement, facility, or
service being provided by a Party hereunder, the providing Party will follow
procedures for isolating and clearing the outage or trouble that are no less
favorable than those that apply to comparable arrangements, facilities, or
services being provided by the providing Party to itself or any other carrier
whose network is connected to that of the providing Party. Covad and BA may
agree to modify those procedures from time to time based on their experience
with comparable Interconnection arrangements with other carriers.
9.6 Notice of Changes -- Section 251(c)(5)
If a Party makes a change in the information necessary for the
transmission and routing of services using that Party's network, or any other
change in its network which it believes will materially affect the
inter-operability of its network with the other Party's network, the Party
making the change shall provide at least ninety (90) days advance written notice
of such change to the other Party. In addition to all other disclosure rules
required by Applicable Law, the Parties will comply with the Network Disclosure
rules adopted by the FCC in CC Docket No. 86-79 and those promulgated pursuant
to Section 251(c)(5) of the Act as may be amended from time to time.
9.7 Fraud
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.
10. JOINT NETWORK IMPLEMENTATION AND GROOMING PROCESS; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR
10.1 Joint Network Implementation and Grooming Process
Upon request of either Party, the Parties shall jointly develop an
implementation and grooming process (the "Joint Grooming Process" or "Joint
Process") which may define and detail, inter alia,
(a) agreement on Physical Architecture consistent with the
guidelines defined in Section 4.0;
(b) standards to ensure that Interconnection trunk groups experience
a grade of service, availability and quality which is comparable to that
achieved on interoffice trunks within BA's network and in accord with all
appropriate relevant industry-accepted quality, reliability and
availability standards;
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(c) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of the trunk groups,
including, but not limited to, standards and procedures for notification
and discoveries of trunk disconnects;
(d) disaster recovery provision escalations;
(e) additional technically feasible and geographically relevant
IP(s) in a LATA as provided in Section 4.0 above; and
(f) such other matters as the Parties may agree, including, e.g.,
End Office to End Office high usage trunks as good engineering practices
may dictate.
Nothing in this subsection 10.1 shall affect either Party's obligations to
meet the milestone dates set forth in Schedule 3.0 hereof.
10.2 Installation, Maintenance, Testing and Repair
Unless otherwise agreed to by the Parties, Interconnection shall be
provided at parity. For purposes of this Agreement, a Party's obligation to
provide parity shall be in accordance with Applicable Laws, including relevant
Tariffs or service standards, regarding the establishment of Interconnectin
arrangements. If either Party is unable to fulfill its obligations under this
subsection 10.2, it shall notify the other Party of its inability to do so and
will negotiate alternative intervals in good faith. The Parties agree that the
standards to be used by each Party for isolating and clearing any disconnections
and/or other outages or troubles shall be at parity.
10.3 Forecasting Requirements for Trunk Provisioning
Within ninety (90) days of executing this Agreement, Covad shall provide
BA a one (1) year traffic forecast. This initial forecast will provide the
amount of traffic to be delivered to BA over each of the Traffic Exchange Trunk
groups over the next four (4) quarters. The forecast shall be updated and
provided to BA on an as-needed but no less frequently than quarterly basis. All
forecasts shall include Access Carrier Terminal Location (ACTL), traffic type
(local/toll, operator services, 911, etc.), code (identifies trunk group), A
location/Z location (CLLI codes for Covad-IPs and BA-IPs), interface type (e.g.,
DS1), and trunks in service each year (cumulative).
10.3.1 Initial Forecasts/Trunking Requirements Because BA's trunking
requirements will, at least during an initial period, be dependent on the
customer segments and service segments within customer segments to whom Covad
decides to market its services, BA will be largely dependent on Covad to provide
accurate trunk forecasts for both inbound (from BA) and outbound (from Covad)
traffic. BA will, as an initial matter and upon request, provide the same number
of trunks to terminate local traffic to Covad as Covad provides to terminate
local traffic to BA, unless Covad expressly identifies particular situations
that are expected to produce traffic that is substantially skewed in either the
inbound or outbound direction, in which case BA will provide the number of
trunks Covad suggests; provided, however, that in all cases BA's provision of
the forecasted number of trunks to Covad is conditioned on the following: that
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such forecast is based on reasonable engineering criteria, there are no capacity
constraints, and Covad's previous forecasts have proven to be reliable and
accurate.
10.3.2 Monitoring and Adjusting Forecasts BA will, for ninety (90)
days, monitor traffic on each trunk group that it establishes at Covad's
suggestion or request pursuant to the procedures identified in subsection 10.3.1
above. At the end of such ninety (90) day period, BA may disconnect trunks that,
based on reasonable engineering criteria and capacity constraints, are not
warranted by the actual traffic volume experienced. If, after such initial
ninety (90) day period for a trunk group, BA determines that any trunks in the
trunk group in excess of four (4) DS-1s are not warranted by actual traffic
volumes (considering engineering criteria for busy hour CCIS and blocking
percentages), then BA may hold Covad financially responsible for the excess
facilities. In subsequent periods, BA may also monitor traffic for ninety (90)
days on additional trunk groups that Covad suggests or requests BA to establish.
If, after any such (90) day period, BA determines that any trunks in the trunk
group are not warranted by actual traffic volumes (considering engineering
criteria for busy hour CCIS and blocking percentages), then BA may hold Covad
financially responsible for the excess facilities. At any time during the
relevant ninety (90) day period, Covad may request that BA disconnect trunks to
meet a revised forecast. In such instances, BA may hold Covad financially
responsible for the disconnected trunks retroactive to the start of the ninety
(90) day period through the date such trunks are disconnected.
10.3.3 Reciprocal Responsibility To the extent that BA requires
Covad to install trunks for delivery of traffic to BA, Covad may apply the same
procedures with respect to BA's trunking requirements.
10.3.4 Future Forecasts/Trunking Requirement The Parties agree to
determine and develop reciprocal forecast requirements at the end of two (2)
years following the Service Activation Date (as set forth in Schedule 3.0).
10.4 Demand Management Forecasts
10.4.1 Covad will furnish BA with good faith demand management
forecasts to enable BA to effectively plan its network infrastructure and work
force levels to accomodate anticipated Covad demand for BA services and
products. Such forecasts will describe Covad's expected needs for service
volumes, and timeframes for service deployment, by wire center. Covad agrees to
provide such forecasts to BA thirty (30) days following the Effective Date, with
updates to follow every six months thereafter. BA agrees that such forecasts
shall be subject to the confidentiality provisions defined in subsection 29.4
below, and that such information will only be used by BA to provide
Interconnection, unbundled Network Elements and other services pursuant to this
Agreement.
11.0 UNBUNDLED ACCESS -- SECTION 251(c)(3)
To the extent required of each Party by Section 251 of the Act, each Party
shall offer to the other Party nondiscriminatory access to Network Elements on
an unbundled basis at any
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technically feasible point. BA shall unbundle and separately price and offer
Network Elements such that Covad will be able to lease and interconnect to
whichever of the Network Elements Covad requires, and to allow Covad to combine
the BA-provided elements with any facilities and services that Covad may itself
provide, subject to Applicable Law. To the extent permitted by Applicable Law,
Covad may use one or more unbundled Network Elements to provide to itself, its
affiliates or its customers any feature, function or service option that (1)
such unbundled Network Element is presently capable or becomes capable of
providing in the BA network, (2) is described in the applicable Bellcore and
other industry standard technical references identified herein and which the BA
network has the capability of providing on the Effective Date of this Agreement
or becomes capable of providing during the Term of this Agreement, or (3) may
otherwise be agreed to by the Parties. Unless otherwise required by Applicable
Law, any combination by Covad of unbundled Network Elements purchased from BA
shall be through a Collocation arrangement pursuant to Section 13.0 or
applicable Tariff.
The unbundled Network Elements and rates specified in this Agreement shall
be made available by BA to Covad purusant to and to the extent required by
Applicable Law. Unless otherwise provided in this Agreement, the unbundled
Network Elements specified in this Agreement shall be made available by BA to
Covad for ordering and provisioning on the Effective Date. To the extent
required by Applicable Law, and notwithstanding anything to the contrary in this
Section, BA will offer Covad nondiscriminatory access to ADSL-2W, HDSL-2W, and
HDSL-4W ULLs to the extent that BA offers such ULLs to any Telecommunications
Carrier in the state of Maryland. Nothing in the preceding sentence or elsewhere
in this Section is intended to obligate Bell Atlantic to provide ADSL-2W,
HDSL-2W and HDSL-4W ULLs as of a specific date (other than as may be required by
Applicable Law) or to constitute a waiver of any right Covad may have to obtain
such Loops. In the event that a change in Applicable Law requires Bell Atlantic
to provide ADSL-2W, HDSL-2W and HDSL-4W ULLs or other types of DSL-compatible
Loops, the Parties will negotiate in good faith a non-discriminatory,
commercially reasonable schedule for the availability of each such type of Loop
consistent with Applicable Law.
Covad and BA agree that the unbundled Network Elements identified in this
Section 11 are not exclusive and that pursuant to the BFR Process Covad may
identify and request that BA furnish additional or revised unbundled Network
Elements to the extent required under the Act. Additionally, if BA provides any
unbundled Network Element that is not identified in this Agreement to a
requesting Telecommunications Carrier, including a BA Affiliate, without
requiring such carrier to utilize the BFR process, then BA will make available
the same unbundled Network Element to Covad without Covad being required to use
the BFR Process.
At the time Covad provides BA with an order for a particular unbundled
Network Element other than the standard interfaces provided under this
Agreement, Covad may request any technically feasible network interface. Any
such requested network interface shall be subject to the approval of BA, which
approval shall not be unreasonably withheld or delayed. If Covad's request is
denied, BA shall provide Covad with written notice of said denial, including, if
applicable, a specific description of why it is technically infeasible for BA to
comply with Covad's request.
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For each appropriate unbundled Network Element, BA shall identify a
demarcation point and, if necessary and appropriate, access to such demarcation
point.
11.1 Available Network Elements
At the request of Covad, BA shall provide Covad access to the following
unbundled Network Elements in accordance with the requirements of the FCC
Regulations and Applicable Law:
11.1.1 Local Loops, as set forth in subsection 11.2;
11.1.2 The Network Interface Device, as set forth in subsection
11.3;
11.1.3 Switching Capability, as set forth in subsection 11.4;
11.1.4 Interoffice Transmission Facilities, as set forth in
subsection 11.5;
11.1.5 Signaling Links and Call-Related Databases, as set forth in
Section 17;
11.1.6 Operations Support Systems, as set forth in subsection 11.6;
11.1.7 Operator Services and Directory Assistance, as set forth in
subsection 19.4; and
11.1.8 such other Network Elements in accordance with subsection
11.8 below.
11.2 Unbundled Local Loop ("ULL") Transmission Types
Subject to subsection 11.7, BA shall allow Covad to access the following
unbundled Local Loop ("ULL") types unbundled from local switching and local
transport in accordance with the terms and conditions set forth in this
subsection 11.2.
11.2.1 "2-Wire Analog Voice Grade ULL" or "Analog 2W" which supports
analog transmission of 300-3000 Hz, loop start, loop reverse battery, ground
start, and no signaling and terminates at both the Central Office MDF (or
equivalent) and the Customer premises, in accordance with BA TR72565 and
TR72570.
11.2.2 "4-Wire Analog Voice Grade ULL" or "Analog 4W" provides an
effective 4-wire channel with 4-wire interfaces at each end that is suitable for
the transport of analog voice grade (nominal 300 to 3000 Hz) signals. The
service will operate with one of the following signaling types that may be
specified when the service is ordered: loop-start, ground-start,
loop-reverse-battery, duplex, and no signaling. The service is more fully
described in Bell Atlantic TR-72570.
11.2.3 "2-Wire ISDN Digital Grade ULL" or "BRI ISDN" (Premium Link)
which
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supports digital transmission of two 64 kbps bearer channels and one 16 kbps
data channel ("2B+D") in accordance with BA TR72575. BRI ISDN is a 2B+D Basic
Rate Interface-Integrated Services Digital Network (BRI-ISDN) Loop which will
support equipment that meets national ISDN standards and conforms to ANSI
T1.601-1992 & T1E1.4 90-004R3.
11.2.4 "2-Wire ADSL-Compatible ULL" or "ADSL 2W" is a 2-wire,
non-loaded, twisted copper pair that meets revised resistance design or carrier
serving area design guidelines. An ADSL-2W is a transmission path that is
suitable for the transmission of up to a 6 mpbs digital signal downstream
(toward the Customer) and up to a 640 kbps digital signal upstream (away from
the Customer) while simultaneously carrying an analog voice signal, although
Covad is not restricted to those bandwidth specificaitons in providing its
services, provided that Covad complies with appropriate industry ADSL standards
and BA technical reference TR72575. An ADSL 2W terminates in a 2-wire electrical
interface at the Customer premises and at the Bell Atlantic Central Office
frame. 2-wire ADSL-compatible local loops are only available where existing
facilities can meet the non-loaded revised resistance design or carrier serving
area design guidelines. The upstream and downstream ADSL power spectral density
masks and dc line power limits referenced in BA TR 72575 must be met. 2-Wire
ADSL-compatible Local Loops are subject to availability.
11.2.5 "2-Wire HDSL-Compatible ULL" or "HDSL 2W" consisits of a
single 2-wire, non-loaded, twisted copper pair that meets the carrier serving
area design criteria. The HDSL power spectral density mask and dc line power
limits referenced in BA TR 72575 must be met. 2-Wire HDSL-compatible Local Loops
are subject to availability.
11.2.6 "4-Wire HDSL-Compatible ULL" or "HDSL 4W" consists of two
2-wire, non-loaded, twisted copper pairs that meet the carrier serving area
design criteria. The HDSL power spectral density mask and dc line power limits
referenced in BA TR 72575 must be met. 4-Wire HDSL-compatible Local Loops are
subject to availability.
11.2.7 "4-Wire DS1-compatible ULL" (Digital Grade Loop) is a
transmission path that supports the transmission of digital signals of up to a
maximum binary information rate of 1.544 mbps and terminates in a 4-Wire
electrical interface at the Customer premises and a Covad Collocation node at a
BA Central Office. A DS-1 digital Grade Loop is capable of operating in a full
duplex, time division (digital) multiplexing mode and provides transmission
capacity equivalent to 24 voice grade channels with associated signaling,
twenty-four 56 kbps digital channels when in band signaling is provided or
twenty-four 64 kbps channels with the selection of the Clear Channel signaling
option, as described in BA TR 72575. .
11.2.8 ULLs will be offered on the terms and conditions specified
herein and on such other terms in applicable Tariffs that are not inconsistent
with the terms and conditions set forth herein. BA shall make ULLs available to
Covad at the rates specified by the Commission, as amended from time to time,
subject to the provisions of subsection 11.2.8.1 below.
11.2.8.1 BA will make Analog 2-Wire ULLs, BRI ISDN ULLs, Analog 4W
ULLs, and 4-Wire DS-1-compatible ULLs available for purchase by Covad at any
time after the
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Effective Date.
11.2.9 Special Provisions Regarding ADSL and HDSL ULLs
At Covad's request, BA will provide the ADSL-2W, HDSL-2W and HDSL-4W
ULLs described in Sections 11.2.4, 11.2.5 and 11.2.6 of this Agreement after
successful completion of a Technical Trial, if necessary, and an Operational
Trial for each ULL type. A Technical Trial is required prior to an Operational
Trial; however, the Technical and/or Operational Trial may or may not involve
Covad and will not take place in Maryland. Upon Covad's request, BA will advise
Covad as to the status of any technical and/or operational trial(s) being
conducted or already completed by BA in any state. BA may also waive the need
for the Operational Trial, and BA will then provide Covad, and Covad may
utilize, such ULL types, subject to the provisions of Section
11.2.9.3-11.2.9.3.5 below.
BA shall exercise its best efforts to utilize all technical data available
to it to satisfy its requirement to conduct a Technical Trial. BA shall share
with Covad, upon Covad's written request, the technical trial results related to
potential interference issues of any ADSL or HDSL technical trial that BA has
undertaken with another Telecommunications Carrier in its service territory, to
the extent that the information is not proprietary to the other
Telecommunications Carrier.
At any time prior to its making ADSL Loops generally available in
Maryland, BA may request that Covad engage in an Operational or Technical Trial
and Covad will negotiate in good faith to reach agreement on the parameters of
such a trial. Covad shall be deemed to have satisfied its good faith obligation
under this section, inter alia, if it (a) reasonably determines that it lacks
sufficient resources to engage in the requested trial at the time of the
request, or (b) is or has been engaged in a BA user group or Commission
collaborative process that is addressing or has successfully addressed the issue
proposed to be resolved by the requested test.
11.2.9.2 Rates
The ADSL-2W and HDSL-2W rates and any other charges specified in Exhibit A
as applicable to such ULLs shall apply during the Operational Trial and
thereafter on an interim basis for ADSL-2W and HDSL-2W ULLs. The HDSL-4W rate
and other charges specified in Exhibit A as applicable to such ULLs shall apply
during the Operational Trial and on an interim basis thereafter for HDSL-4W
ULLs. The interim rates identified in this subsection shall only apply until
such time as the Commission approves rates for ADSL and HDSL-compatible ULLs
that comply with Section 252(d)(1) of the Act.
11.2.9.3 Interference and Impairment for ADSL-2W, HDSL-2W and HDSL-4W
ULLs.
After the successful completion of the Operational Trial and subject to
the BA published technical references and guidelines:
11.2.9.3.1 Covad shall be able to order and BA shall provision ADSL-2W,
HDSL-2W and HDSL-4W ULL(s).
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11.2.9.3.2. In its use of ADSL-2W, HDSL-2W and HDSL-4W ULLs, Covad shall
conform to the BA references and guidelines such that its provision of services
to its customers does not degrade or otherwise adversely affect the quality or
reliability of service to BA's customers, provided that BA is in compliance with
the provisions of this Section.
11.2.9.3.3 BA shall conform to its references and guidelines and shall not
introduce services on its network that would degrade or otherwise adversely
affect the quality or reliability of service to Covad's Customers, provided that
Covad is in compliance with the provisions of this Section.
11.2.9.3.4. If Covad determines that BA is deploying xDSL technology in a
manner that will or may interfere with Covad's provision of its services, Covad
shall notify BA in a reasonable manner and time frame. If BA determines that
Covad is using an ADSL or HDSL Compatible ULL in a manner that will or may
interfere with or impair BA's provision of its services, BA shall notify Covad
in a reasonable manner and time frame.
11.2.9.3.5. The Parties agree to work cooperatively to resolve
interference or other impairment issues. In the event a cooprative resolution
cannot be reached, the Dispute Resolution procedures for this Agreement shall
apply.
11.3 Network Interface Device
At the request of Covad, BA shall permit Covad to connect a carrier's loop
to the Inside Wiring of a Customer's premises through BA's NID in the manner set
forth in Schedule 11.3. Covad must establish the connection to BA's NID through
an adjoining NID deployed by Covad. The Customer shall be responsible for
resolving any conflicts between service providers for access to Customer's
premises and Inside Wire.
11.4 Unbundled Switching Elements
BA shall make available to Covad the local Switching Element and tandem
Switching Element unbundled from transport, local loop transmission, or other
services, as more fully described in Schedule 11.4, in accordance with the terms
and conditions of and at the rates specified in BA's applicable Tariff as
amended from time to time. In the event that there is no applicable Tariff in
Maryland, the Parties agree to negotiate the terms, conditions, and rates for
the provision of unbundled switching elements upon Covad's request.
11.5 Interoffice Transmission Facilities
11.5.1 BA will provide Covad access to unbundled interoffice transmission
facilities as set forth herein between its Central Offices.
11.5.2 BA will provide Covad access to unbundled shared IOF transport in
conjunction with Covad's purchase of unbundled local switching. Unbundled shared
IOF transport provides
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Covad access to BA's inter-office transport facilities (i.e. existing route(s)
that are used within the Bell Atlantic network) which carry transmission from
several different carriers, including BA.
11.5.3 BA will provide Covad access to unbundled dedicated IOF transport.
"Dedicated Transport" is an interoffice transmission path of fixed capacity
between designated locations to which Covad is granted exclusive use. Access to
Dedicated Transport is from Covad's switching office or from its Collocation
arrangement established at BA's Central Office.
11.5.4 Dedicated Transport will be paid for by Covad at rates set forth in
Exhibit A.
11.5.5 BA will provide access to unbundled dedicated IOF transport
between: 1) Telecommunications Carrier switching office, 2) CLEC Collocation
Arrangements, and 3) a CLEC Collocation arrangement and a Telecommunications
Carrier switching office. When unbundled dedicated IOF transport terminates at a
Bell Atlantic Central Office, it must terminate at a CLEC Collocation
arrangement.
11.5.6 BA will provide unbundled dedicated IOF transport at the following
transmission speeds: DS-1 and DS-3. For other transmission speed requests (i.e.
OC-n) Covad shall submit a Bona Fide Request (BFR).
11.5.7 In addition to its obligations purusant to this Section 11.4, BA
shall provide Covad unbundled IOF Transport, unbundled from switching, and other
services as required by Applicable Law, at the rates, terms and conditions set
forth in applicable Tariffs, as amended from time to time.
11.6 Operations Support Systems
BA shall provide Covad with nondiscriminatory access to OSS functions for
pre-ordering, ordering, provisioning, maintenance and repair, and billing as
soon as required by Applicable Law. Once BA has developed a pre-order loop
qualification database for xDSL-compatible ULLs in Maryland, and either (i)
makes the database available to other Telecommunications Carriers, or (ii)
utilizes the database in its own retail operations on a routine basis, it shall
provide Covad nondiscriminatory access to such database, at rates and charges to
be determined. Nothing in this subsection shall restrict Covad's ability to
obtain access to any operational support systems ("OSS") that BA makes generally
available to any other Telecommunications Carrier in the state.
11.7 Limitations on Unbundled Access
11.7.1 BA shall only be required to provide ULLs and Ports where
such Loops and Ports are available.
11.7.2 Covad shall access BA's unbundled Network Elements
specifically identified in this Agreement via Collocation in accordance with
Section 13 at the BA Wire Center where those elements exist or other mutually
agreed upon means of Interconnection, and each ULL or Port shall, in the case of
Collocation, be delivered to Covad's Collocation by means of a
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Cross Connection or Strapping, at the rates set forth in Exhibit A, or via such
other alternative arrangement(s) as the Parties may mutually agree, to the
extent required by Applicable Law.
11.7.3 BA shall provide Covad access to its Unbundled Local Loops at
each of BA's Wire Centers for loops terminating in that Wire Center. In
addition, if Covad orders one or more ULL provisioned via Integrated Digital
Loop Carrier or Remote Switching technology deployed as a ULL concentrator, BA
shall, where available and in accordance with applicable technical references,
move the requested ULL(s) to a spare, existing physical ULL at no additional
charge to Covad. If, however, no spare physical ULL is available, BA shall
within three (3) business days of Covad's request notify Covad of the lack of
available facilities. In such event, BA shall offer Covad other options as may
be available, which shall, where feasible, include the placement of a suitable
digital line card at the remote terminal, provided that Covad shall agree to pay
the additional costs incurred by BA in making such other options available to
Covad. The additional cost of such other specific option, and the basis for
allocating such additional cost, will be determined at the time the option is
made available. Covad may also, at its discretion, make a Network Element Bona
Fide Request to BA to provide the unbundled Local Loop through the
demultiplexing of the integrated digitized ULL(s). Covad may also make a Network
Element Bona fide Request for access to Unbundled Local Loops at the ULL
concentration site point. Alternatively, Covad may choose to avail itself of
BA's Special Construction services, as set forth in Exhibit A, for the
provisioning of such ULL(s). Notwithstanding anything to the contrary in this
Agreement, standard provisioning intervals shall not apply to ULL provided under
this subsection 11.7.3.
11.7.4 If Covad orders a ULL type and the distance requested on such
ULL exceeds the transmission characteristics in applicable technical references,
as specified below, distance extensions may be required and additional rates and
charges shall apply as set forth in Exhibit A or applicable Tariffs.
Loop Type Technical Reference/Limitation
ISDN Bellcore TA-NWT-000393
HDSL 2W T1E1 Technical Report Number 28
HDSL 4W T1E1 Technical Report Number 28
ADSL 2W ANSI T1.413 1995 Specification
11.7.5 BA will exercise all reasonable efforts to ensure that the
service intervals that apply to ULLs and unbundled Ports are comparable to the
(i) repair intervals that apply to the bundled dial tone line service, and (ii)
installation intervals that apply to other BA-coordinated services, except as
provided in Section 27. Although BA will make commercially reasonable efforts to
ensure that ULLs and unbundled ports meet specified or agreed-upon technical
standards, BA makes no warranty that the ULLs or unbundled Ports supplied by BA
hereunder will be compatible with the services Covad may offer to its Customers
if they are used in a manner not contemplated by the Parties.
11.8 Availability of Other Network Elements on an Unbundled Basis
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11.8.1 BA shall, upon request of Covad and to the extent required by
Applicable Law, provide to Covad nondiscriminatory access to its Network
Elements on an unbundled basis for the provision of Covad's Telecommunications
Service. Any request by Covad for access to an BA Network Element that is not
already available shall be treated as a Network Element Bona Fide Request. Covad
shall provide BA access to its Network Elements as mutually agreed by the
Parties or as required by Applicable Laws.
11.8.2 A Network Element obtained by one Party from the other Party
under this subsection 11.8 may be used in combination with the facilities of the
requesting Party only to provide a Telecommunications Service, including
obtaining billing and collection, transmission, and routing of the
Telecommunications Service.
11.8.3 Notwithstanding anything to the contrary in this subsection
11.8, a Party shall not be required to provide a proprietary Network Element to
the other Party under this subsection 11.8 except as required by the Commission
or FCC.
11.8.4 BA will, on a semi-annual basis, notify Covad of the
availability of new unbundled Network Elements.
11.9 Provisioning of Unbundled Local Loops
The following coordination procedures shall apply for conversions of
"live" Telephone Exchange Services to ULLs. These and other mutually agreed-upon
procedures shall apply reciprocally for the "live" cutover of Customers from BA
to Covad and from Covad to BA.
11.9.1 Upon request by Covad, BA will apply the following
coordination procedures to conversions of live Telephone Exchange Services to
ULLs. Coordinated cutover charges will apply to any such arrangement. If Covad
elects not to request coordinated cutover, BA will process Covad's request in
the normal course and subject to the normal installation intervals.
11.9.2 Covad shall request ULLs from BA by delivering to BA a valid
electronic transmittal service order (when available) or another mutually
agreed-upon type of service order such as a Loop/NID Time and Material form.
Such service order shall be provided in accordance with industry format and
specifications or such format and specifications as may be agreed to by the
Parties. Within forty-eight (48) hours of BA's receipt of such valid service
order, BA shall provide Covad the firm order commitment date according to the
Performance Interval Dates set forth in Schedule 27 by which the ULLs covered by
such service order will be installed.
11.9.3 On each ULL order in a Wire Center, Covad and BA will agree
on a cutover time at least forty eight (48) hours before that cutover time. The
cutover time will be defined as a 15-30 minute window within which both the
Covad and BA personnel will make telephone contact to complete the cutover.
11.9.4 Within the appointed 15-30 minute cutover time, the BA person
will call
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the Covad person designated to coordinate cutover work.
11.9.5 If Covad requires a change in scheduling, it must contact BA
to issue a supplement to the original order. The negotiations process to
determine the date and time of cutover will then be reinitiated as usual.
11.9.6 If the Covad person is not ready within the appointed
interval and if Covad had not called to reschedule the work at least two (2)
hours prior to the start of the interval, Covad shall be liable for the
non-recurring charge for the unbundled elements scheduled for the missed
appointment. In addition, non-recurring charges for the rescheduled appointment
will apply.
11.9.7 If BA is not available or not ready at any time during the
appointed 15-30 minute interval, Covad and BA will reschedule and BA will waive
the non-recurring charge for the unbundled elements originally scheduled for
that interval, whenever those unbundled elements are actually cut over pursuant
to an agreed-upon rescheduling.
11.9.8 The standard time expected from disconnection of a live
Telephone Exchange Service to the connection of the unbundled element to the
Covad Collocation Arrangement is fifteen (15) minutes per voice grade circuit
for all orders consisting of twenty (20) ULLs or less. Orders involving more
than twenty (20) ULLs will require a negotiated interval.
11.9.9 If unusual or unexpected circumstances prolong or extend the
time required to accomplish the coordinated cutover, the Party responsible for
such circumstances is responsible for the reasonable labor charges of the other
Party. Delays caused by the Customer are the responsibility of Covad.
11.9.10 If Covad has ordered INP as part of an ULL installation, BA
will coordinate implementation of INP with the ULL installation. BA's provision
of unbundled elements shall in all cases be subject to the availability of
suitable facilities, to the extent permitted by Section 251 of the Act.
11.9.11 If Covad requests or approves a BA technician to perform
services on the network side of the Rate Demarcation Point beyond normal
installation of the ULLs covered by the service order, BA may charge Covad for
any additional and reasonable labor charges to perform such services. BA may
also charge Covad its normal overtime rates for services Covad requests to be
performed outside of BA's normal business hours (M-F, 9 am to 5 pm, E.S.T.).
11.10 Maintenance of Unbundled Local Loops
BA has the obligation to maintain and repair unbundled Network Elements
provided to Covad on a nondiscriminatory basis and at parity with the
maintenance and repair services it provides to itself and other carriers. If (i)
Covad reports to BA a Customer trouble, (ii) Covad requests a dispatch, (iii) BA
dispatches a technician, and (iv) such trouble was not caused by BA facilities
or equipment in whole or in part, then Covad shall pay BA a charge set forth in
Exhibit A
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for time associated with said dispatch. In addition, this charge also applies
when the Customer contact as designated by Covad is not available at the
appointed time. Covad accepts responsibility for initial trouble isolation and
providing BA with appropriate dispatch information based on its test results.
If, as the result of Covad instructions, BA is erroneously requested to dispatch
within a BA Central Office or to a POT Bay ("dispatch in"), BA may levy on Covad
an appropriate charge. If, as the result of Covad instructions, BA is
erroneously requested to dispatch outside a BA Central Office or to a POT Bay
("dispatch out"), BA may levy on Covad an appropriate charge. BA agrees to
respond to Covad trouble reports on a non-discriminatory basis consistent with
the manner in which it provides service to its own retail customers or to any
other similarly situated Telecommunications Carrier.However, if BA imposes any
charge on Covad under this subsection 11.8 and the same trouble recurs and the
cause in both instances is determined to be in BA's facilities, then BA shall
refund to Covad all charges applicable to that trouble that were erroneously
levied on and paid by Covad to BA plus interest at the rate applicable to
refunds of overpayments pursuant to BA's Tariffs.
11.11 Other Terms and Conditions Including Rates and Charges
11.11.1 ULLs and other Network Elements will be offered on the terms and
conditions, including rates and charges, specified herein and on such other
terms as stated in applicable Tariffs, as amended from time to time, that are
not inconsistent with the terms and conditions set forth herein.
11.11.2 In the event that the Commission has not adopted permanent rates
for services, ULLs, and other Network Elements consistent with the requirements
of the FCC regulations, BA shall charge the non-recurring and monthly recurring
rates for ULLs and other Network Elements set forth in Exhibit A as interim
rates until such time as the Department adopts permanent rates consistent with
the requirements of the FCC Regulations. Such permanent rates shall be applied
in the manner described in Exhibit A and subsection 20.1.2 below.
11.11.3 Monthly ULL Charges.
11.11.3.1 "Current Monthly Rates" for ULLs are set forth in Exhibit
A.
11.11.3.2 Nothing in this Agreement shall be construed to imply that
Covad agrees that the Current Monthly Rate referenced in Section 11.11.3.1 is a
reasonable or appropriate charge for ULLs.
12.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
12.1 Availability of Retail Rates for Resale
Each Party shall make available its Telecommunications Services for resale
at the retail rates set forth in its Tariffs to the other Party in accordance
with Section 251(b)(1) of the Act. In addition, BA and Covad shall each allow
the resale by the other of all Telecommunications Services that are offered
primarily or entirely to other Telecommunications Carriers (e.g.,
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Switched and special Exchange Access Services) at the rates already applicable
to such services. BA shall also allow the resale by Covad of such other
non-Telecommunications Services as BA, in its sole discretion, determines to
provide for resale under terms and conditions to be agreed to by the Parties.
12.2 Availability of Wholesale Rates for Resale
BA shall make available to Covad for resale all Telecommunications
Services that BA provides at retail to Customers that are not Telecommunications
Carriers at the retail prices set forth in BA's Tariffs less the wholesale
discount set forth in Exhibit A in accordance with Section 251(c)(4) of the Act.
Such services shall be provided in accordance with the terms of the applicable
retail services Tariff(s), including, without limitation, user or user group
restrictions, as the case may be, subject to the requirement that such
restrictions shall in all cases comply with the requirements of Section 251 of
the Act and the FCC Regulations regarding restrictions on resale. The Parties
may also agree to negotiate term and/or volume discounts for resold services.
12.3 Availability of Support Services and Branding for Resale
BA shall make available to Covad the various support services for resale
described in Schedule 12.3 hereto in accordance with the terms set forth
therein. In addition, to the extent required by Applicable Law, upon request by
Covad and at prices, terms and conditions to be negotiated by Covad and BA, BA
shall provide BA Retail Telecommunications Services (as defined in Schedule
12.3) that are identified by Covad's trade name, or that are not identified by
trade name, trademark or service mark.
12.4 Additional Terms Governing Resale and Use of BA Services
12.4.1 Covad shall comply with the provisions of this Agreement
(including, but not limited to, all applicable BA Tariffs) regarding resale or
use of BA services. In addition, Covad shall undertake in good faith to ensure
that its Customers comply with the provisions of BA's Tariffs applicable to
their use of BA's Telecommunications Services.
12.4.2 Without in any way limiting subsection 12.4.1, Covad shall
not resell (a) residential service to business or other nonresidential Customers
of Covad, (b) Lifeline or other means-tested service offerings, or grandfathered
service offerings, to persons not eligible to subscribe to such service
offerings from BA, or (c) any other BA service in violation of any user or user
group restriction that may be contained in the BA Tariff applicable to such
service to the extent such restriction is not prohibited by Applicable Laws. In
addition, Covad shall be subject to the same limitations that BA's own retail
Customers may be subject to with respect to any Telecommunications Service that
BA may, in its discretion and to the extent not prohibited by Applicable Law,
discontinue offering.
12.4.3 BA shall not be obligated to offer to Covad at a wholesale
discount Telecommunications Services that BA offers at a special promotional
rate if such promotions are for a limited duration of ninety (90) days or less.
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12.4.4 Upon request by BA, Covad shall provide to BA adequate
assurance of payment of charges due to BA in connection with Covad's purchase of
BA services for resale. Assurance of payment of charges may be requested by BA:
if Covad (a) in BA's reasonable judgment, at the Effective Date or at any time
thereafter, is unable to show itself to be creditworthy; (b) in BA's reasonable
judgment, at the Effective Date or at any time thereafter, is not creditworthy;
or, (c) fails to timely pay a bill rendered to Covad by BA. Unless otherwise
agreed by the Parties, the assurance of payment shall be in the form of a cash
deposit and shall be in an amount equal to the charges for BA services that
Covad may reasonably be expected to incur during a period of two (2) months. BA
may at any time use the deposit or other assurance of payment to pay amounts due
from Covad.
12.4.5 Covad shall not be eligible to participate in any BA plan or
program under which BA end user retail Customers may obtain products or
merchandise, or services which are not Bell Atlantic Retail Telecommunications
Services, in return for trying, agreeing to purchase, purchasing, or using Bell
Atlantic Retail Telecommunications Services.
12.4.6 BA may impose additional restrictions on Covad's resale of
BA's retail Telecommunications Services to the extent permitted by Applicable
Laws.
13.0 COLLOCATION -- SECTION 251(c)(6)
13.1 BA shall offer to Covad Physical or Virtual Collocation of equipment
necessary for Interconnection (pursuant to Section 4.0) or for access to
unbundled Network Elements (pursuant to Section 11.0), pursuant to the terms and
conditions in this Section and BA's approved Tariffs on file with the FCC and
the Commission, except that BA may offer only Virtual Collocation if BA
demonstrates to the Commission that Physical Collocation as described in this
Agreement is not practical for technical reasons or because of space
limitations, as provided in Section 251(c)(6) of the Act. BA shall provide
Collocation solely for the purpose of Interconnection with facilities or
services of BA or access to unbundled Network Elements of BA, except as
otherwise mutually agreed to in writing by the Parties or as required by the FCC
or the Commission, subject to applicable federal and state Tariffs and license
agreements.
13.2 BA shall offer, upon request by Covad and to the extent technically
feasible, Physical Collocation arrangements where the dedicated space may be a
minimum of approximately twenty-five (25) square feet, at the appropriate cost.
In the event there is no existing Tariff for this arrangement, the Parties shall
expeditiously and in good faith negotiate interim terms for this type of
physical Collocation. Such arrangements will be made pursuant to applicable
Tariff(s) when such Tariff(s) are approved.
13.3 BA will provide Covad with Physical Collocation as specified in
Sections 13.1 and 13.2 above; provided however, that upon written request by
Covad, Bell Atlantic will not enclose by a cage or other means Covad's equipment
that is placed within the secured and physically separated area set aside by
Bell Atlantic within a Central Office for the purposes of Collocation
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set forth in 13.1 above and pursuant to any applicable BA Collocation Tariff(s).
In the event that there is no existing Tariff for this entire arrangement, the
Parties shall expeditiously and in good faith negotiate interim terms for this
type of physical Collocation. This entire arrangement will be made pursuant to
applicable Tariff(s) when such Tariff(s) are approved.
13.4 Collocation shall be made available to Covad on BA Premises as
required by Applicable Law and in a manner that is at parity to the priorities
that BA provides to persons who are permitted to collocate, including BA's
Affiliates that are required to collocate. Pursuant to applicable Tariff, or to
Schedule 13.4 until such time as an approved Tariff is effective, BA will
provide Covad with shared cage Collocation, in which Covad can collocate
equipment in another collocating entity's physical Collocation arrangement. Upon
request by Covad for shared cage Collocation, the Parties will negotiate
expeditiously and in good faith to resolve any operational, provisioning and
billing issues that are not covered by an applicable Tariff or Schedule 13.4.
Notwithstanding any other provision of this Agreement, BA will provide Covad
with alternative Collocation arrangements (including "cage-less" physical
Collocation) to the extent that such arrangements are required by Applicable
Law, and may consider other alternative arrangements proposed by Covad. BA shall
provide Collocation at additional locations for placement of equipment necessary
for Interconnection or for access to unbundled Network Elementsto the extent
required by Applicable Law.
13.5 In comport with Applicable Law, Covad reserves the right to have
Covad's dedicated (but not common) Collocation space constructed by a third
party sub-contractor in accordance with BA engineering specifications utilizing
a BA-approved sub-contractor. Request by Covad for approval of additional
sub-contractors will bot be unreasonably withheld.
13.6 Covad may collocate Digital Subscriber Line Access Multiplexers
("DSLAM"s) in its collocated space, subject to the requirements of this Section.
Covad may install any equipment allowed by Law, including Remote Switching
Modules ("RSM"s) and DSLAMs in its Collocation space unless and until the FCC,
the Commission, or a court of competent jurisdiction determines that incumbent
LECs need not permit Collocation of such equipment, in which event BA must allow
Covad a reasonable transition period for removing, replacing or modifying such
equipment, or for otherwise negotiating a mutually satisfactory alternative
arrangement with BA. Covad agrees that any such equipment must comply with
National Equipment Building System ("NEBS") Level III. Covad agrees that such
RSM or DSLAM equipment as may be collocated at BA premises will not be used to
provide switching functionality unless such use is specifically approved by the
Commission.
BA will permit Covad to install, maintain, repair and use ATM
cross-connect equipment in BA Premises where Covad has established a physical
Collocation arrangement, provided that such equipment will be used to support
pre-defined point-to-point Private Virtual Connections ("PVC"s) between the
Premises-collocated equipment and other points off BA's network. The ATM
cross-connect equipment shall be used exclusively for aggregating and
transporting traffic and will not under any circumstances be used for dynamic
routing or switching of traffic. BA shall have the right at its own expense to
audit Covad's use of such collocated equipment, and if it finds that Covad is
using the equipment for switching of Local Traffic or
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other uses prohibited hereunder, BA may either invoke the dispute resolution
provisions of this Agreement, or notify Covad in writing and Covad shall then
remove such equipment from BA's Premises.
13.7 Covad agrees to offer to BA Collocation of equipment for purposes of
Interconnection (pursuant to Section 4.0) on a non-discriminatory basis and at
comparable rates, terms and conditions as Covad may provide to other third
parties. Covad shall provide such Collocation subject to applicable Tariffs.
13.8 In the course of implementation of Collocation project, BA shall:
(a) identify the Collocation project manager assigned to the project;
(b) develop a written comprehensive "critical tasks" timeline detailing
the work (and relative sequence thereof) that is to be performed by each Party
or jointly by both Parties; and
(c) provide Covad with the relevant engineering requirements.
13.9 The Collocating Party shall purchase Cross Connection to services or
facilities as described in applicable Tariffs or this Agreement. Transport
facilities may be leased from BA under terms and conditions set forth in this
Agreement or applicable Tariffs.
13.10 Except in the event that Covad changes its Application for
Collocation requirements after they have been accepted by BA and such changes
would, in the reasonable judgement of BA, cause a construction or other delay
which would affect the delivery of collocated space, or in the event of "Special
Circumstances" detailed by BA for Covad, and subject to the circumstances
contemplated by Section 29.3 of this Agreement, the collocated space shall be
constructed, made ready, and delivered by BA to Covad within the interval
specified in the applicable Tariff following the date of receipt by BA of
Covad's Application for Collocation and the applicable BA Tariff fee(s).
Covad and BA also agree that a three (3) week extension will apply when
"Special Circumstances" are identified at the time of a "space walk-through" or
later in the Collocation process, provided that BA notifies Covad within two (2)
business days of the discovery of such "Special Circumstances". For the purposes
of this Section 13.0, the term "Special Circumstances" shall mean special,
unusual, or unanticipated conditions or circumstances arising out of or required
by Covad's Application for Collocation (excluding changes made by Covad to such
Application after such Application has been accepted by BA) which could, in the
reasonable judgement of BA, cause a construction or other delay in the delivery
of collocated space, including, by way of illustration and without limitation,
major construction obstacles, asbestos abatement procedures or uncustomary
modifications to the Collocation premises.
In those instances where Covad changes its requirements which will affect
the delivery of collocated space, or where otherwise extraordinary circumstances
exist, the interval for construction and delivery of the collocated space shall
be extended to reflect those changes upon
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mutual agreement of the Parties.
13.11 Collocation shall occur under the terms of each Party's applicable
and available Tariffs, subject to the provisons of this Section 13, and pursuant
to Applicable Law.
13.12 Cage-to-Cage Interconnection
13.12.1 Cage-to-Cage Interconnection provides for the dedicated
connection between a Covad Collocation arrangement established pursuant to
applicable Tariffs and/or license agreements at a BA Premises and the
Collocation arrangement of a third party carrier that maintains a Collocation
arrangement at the same premises, so long as the collocated equipment of both
Collocation arrangements is used for Interconnection with BA or access to BA's
unbundled Network Elements. Covad shall purchase Cage-to-Cage Interconnection
using Collocation Cross Connections to services and facilities as described in
applicable Tariffs.
13.12.2 The carrier that requests the Collocation Cross Connections
shall be the customer of record for both ends of the service in terms of
ordering, provisioning, maintenance, and billing. Alternative arrangements may
be utilized if agreed upon by all three parties. Rates and charges for
Collocation Cross Connections are stated in Exhibit A.
SECTION 251(b) PROVISIONS
14.0 NUMBER PORTABILITY -- SECTION 251(b)(2)
14.1 Scope
14.1.1 The Parties shall provide Local Telephone Number Portability
("LTNP") on a reciprocal basis to each other to the extent technically feasible,
and in accordance with rules and regulations as from time to time prescribed by
the FCC and/or the Commission.
14.1.2 Until Permanent Number Portability is implemented by the
industry pursuant to regulations issued by the FCC and/or the Commission, the
Parties agree to reciprocally provide Interim Number Portability to each other
at the prices listed in Exhibit A. Such agreed-upon prices for INP are not
intended to reflect either Party's views on the cost recovery mechanisms being
considered by the FCC in its current proceeding on number portability issues.
14.1.3 Upon the agreement of the Parties or issuance of applicable
FCC and/or Commission order(s) or regulations mandating the adoption of a
Permanent Number Portability ("PNP") arrangement, BA and Covad will commence
migration from INP to the agreed-upon or mandated PNP arrangement as quickly as
practically possible while minimizing interruption or degradation of service to
their respective Customers. Once PNP is implemented, either Party may withdraw,
at any time and at its sole discretion, its INP offerings, subject to advance
notice to the other Party and coordination to allow the seamless and transparent
conversion of INP Customer
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numbers to PNP. Upon implementation of PNP pursuant to FCC or Commission
regulation, both Parties agree to conform and provide such PNP. To the extent
PNP rates or cost recovery mechanisms are not established by the applicable FCC
or Commission order or regulation mandating the adoption of PNP, the Parties
will negotiate in good faith the charges or cost recovery mechanism for PNP
service at such time as a PNP arrangement is adopted by the Parties.
14.1.4 Under either an INP or PNP arrangement, Covad and BA will
implement a process to coordinate LTNP cutovers with ULL conversions (as
described in Section 11 of this Agreement).
14.2 Procedures for Providing INP Through Remote Call Forwarding
Covad and BA will provide INP through Remote Call Forwarding as follows:
14.2.1 A Customer of one Party ("Party A") elects to become a
Customer of the other Party ("Party B"). The Customer elects to utilize the
original telephone number(s) corresponding to the Telephone Exchange Service(s)
it previously received from Party A, in conjunction with the Telephone Exchange
Service(s) it will now receive from Party B. Upon receipt of a service order
from Party B requesting assignment of the number(s) to Party B, Party A will
implement an arrangement whereby all calls to the original telephone number(s)
will be forwarded to a new telephone number(s) designated by Party B, only
within the same Exchange Area as the original telephone number(s). Party A will
route the forwarded traffic to Party B over the appropriate traffic exchange
trunk groups.
14.2.2 Party B will become the customer of record for the original
Party A telephone number(s) subject to the INP arrangements. Upon the execution
of an appropriate billing services agreement or such other mutually agreed-upon
arrangement between the Parties, Party A shall use its reasonable efforts to
consolidate into as few billing statements as possible collect, calling card,
and third-number billed calls associated with the number(s), with sub-account
detail by retained number.
14.2.3 Party A will update its Line Information Database ("LIDB")
listings for retained numbers, and load calling card information associated with
those forwarded numbers as directed by Party B. In addition, Party A will update
the retained numbers in the LIDB with the screening options provided by Party B
on a per order basis. Party B shall determine which of the screening options
offered by Party A should apply to the Party B Customer account.
14.2.4 Party B will outpulse the telephone number to which the call
has been forwarded to the 911 Tandem Office. Party B will also provide the 911
database with both the forwarded number and the directory number, as well as the
appropriate address information of the Customer.
14.2.5 Party A shall be permitted to cancel INP arrangements and
reassign the telephone number(s) upon (i) receipt of notification from Party B
or a third party that is authorized to act on behalf of the Customer or (ii)
authorization from the Customer itself. The
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Parties agree to work cooperatively to develop procedures or adopt industry
standards or practices concerning the initiation and termination of INP service
in a multi-carrier environment.
14.2.6 The INP service offered herein shall not initially apply to
NXX Codes 555, 915, 950 (as applicable), or 976, or for Feature Group A or coin
telephone service. Upon request of either Party, provision of INP to these
services will be mutually negotiated between the parties and provided to the
extent feasible under negotiated rates, terms and conditions. INP shall not
apply for any arrangement that would render the forwarded call Toll Traffic.
14.2.7 The ordering of INP arrangements and the exchange of
screening information shall be made in accordance with industry-accepted (e.g.
OBF developed) format and specifications to the extent they have been
implemented by the Parties.
14.3 Other Interim Number Portability Options
14.3.1 Procedures for Providing INP Through Direct Inward Dial
Trunks (Flex-DID). Either Party may also request INP through Direct Inward Dial
Trunks pursuant to any applicable Tariffs.
14.3.2 Procedures for Providing INP Through Route Indexing. Upon
mutual agreement, BA will deploy a Route Index arrangement which combines direct
trunks, provisioned between BA's and Covad's End Offices, with Trunk Side
routing translations and full functionality for those CLASS services deployed in
the specific BA switch. Under this arrangement, inbound calls to a ported number
will be pointed at a route index that sends the call to a dedicated trunk group,
built as a direct final, for the sole purpose of facilitating completion of
calls to a ported bumber. BA will coordinate with Covad to provide this solution
in a mutually agreeable an administratively manageable manner (e.g. NXX level)
so as to minimize switch resource utilization for both Parties.
14.4 Procedures for Providing LTNP Through Full NXX Code Migration
Where either Party has activated an entire NXX for a single Customer, or
activated at least eighty percent (80%) of an NXX for a single Customer, with
the remaining numbers in that NXX either reserved for future use by that
Customer or otherwise unused, if such Customer chooses to receive Telephone
Exchange 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 be accomplished with appropriate coordination
between the Parties and subject to appropriate industry lead-times for movements
of NXXs from one switch to another. Neither Party shall charge the other in
connection with this coordinated transfer.
14.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers
The Parties agree in principle that, under the INP arrangements described
in subsections 14.2 and 14.3 above, terminating compensation on calls to INP'ed
numbers should be received by
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each Customer's chosen LEC as if each call to the Customer had been originally
addressed by the caller to a telephone number bearing an NPA-NXX directly
assigned to the Customer's chosen LEC. In order to accomplish this objective
where INP is employed, the Parties shall utilize the process set forth in this
subsection 14.5 whereby terminating compensation on calls subject to INP will be
passed from the Party (the "Performing Party") which performs the INP to the
other Party (the "Receiving Party") for whose Customer the INP is provided.
14.5.1 The Parties shall individually and collectively make best
efforts to track and quantify INP traffic between their networks based on the
CPN of each call by identifying CPNs which are INP'ed numbers. The Receiving
Party shall charge the Performing Party for each minute of INP traffic at the
INP Traffic Rate specified in subsection 14.5.3 in lieu of any other
compensation charges for terminating such traffic, except as provided in
subsection 14.5.2.
14.5.2 By the Interconnection Activation Date in each LATA, the
Parties shall jointly estimate for the prospective six months, based on historic
data of all traffic in the LATA, the percentages of such traffic that, if dialed
to telephone numbers bearing NPA-NXXs directly assigned to a Receiving Party (as
opposed to the INP'ed number), would have been subject to (i) Reciprocal
Compensation ("Recip Traffic"), (ii) appropriate intrastate FGD charges ("Intra
Traffic"), (iii) interstate FGD charges ("Inter Traffic"), or (iv) handling as
Transit Traffic. On the date which is six (6) months after the Interconnection
Activation Date, and thereafter on each succeeding six month anniversary of such
Interconnection Activation Date, the Parties shall establish new INP traffic
percentages to be applied in the prospective six (6) month period, based on the
Performing Party's choice of actual INP traffic percentages from the preceding
six (6) month period or historic data of all traffic in the LATA.
14.5.3 The INP Traffic Rate shall be equal to the sum of:
(Recip Traffic percentage times the Reciprocal
Compensation Rate set forth in Exhibit A)
plus
(Intra Traffic percentage times Receiving Party's
effective intrastate FGD rates)
plus
(Inter Traffic percentage times Receiving Party's
effective interstate FGD rates).
The Receiving Party shall compensate the Performing Party for its billing
and collection of charges for the intrastate and interstate FGD access services
provided by the Receiving Party to a third party through the greater of (i) the
difference between the intrastate and interstate FGD rates of the Receiving
Party and the Performing Party, or (ii) three percent (3%) of the Performing
Party's intrastate and interstate FGD revenues for INP'ed numbers. Under no
circumstances shall the Performing Party, in performing the billing and
collections service on behalf of the Receiving Party, be obligated to pass
through more than ninety seven percent (97%) of its FGD access charge to the
Receiving Party in connection with any given INP'ed call.
14.6 Recovery of INP Costs Pursuant to FCC Order and Rulemaking
Notwithstanding anything to the contrary contained in this Section 14, in
light of the
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FCC's First Report and Order and Further Notice of Proposed Rulemaking, adopted
June 27, 1996, in CC Docket 95-116 (the "Order"), the Parties stipulate and
agree as follows:
14.6.1 The rates listed in Exhibit A for the provision of INP are
appropriate amounts that each Party providing INP service should recover for the
provision of those INP functionalities in BA's operating territory on an interim
basis until the Commission mandates an alternative cost recovery mechanism for
the provision of INP. For the INP functions it provides, each Party should be
allowed to recover these amounts in a manner consistent with any final FCC
and/or Commission order on INP cost recovery (such as a state-wide fund
contributed to by all telecommunications carriers).
14.6.2 The Parties agree that neither Party waives its rights to
advocate its views that are consistent with this subsection 14.6 on the
appropriate INP cost recovery mechanism, or to present such views before any
relevant regulatory body or other agency as they relate to FCC or Commission
actions on INP cost recovery.
15.0 DIALING PARITY -- SECTION 251(b)(3)
BA and Covad shall each provide the other with nondiscriminatory access to
such services and information as are necessary to allow the other Party to
implement dialing parity for Telephone Exchange Service, operator services,
directory assistance, and directory listing information with no unreasonable
dialing delays, as required under Section 251(b)(3) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
16.1 Each Party ("Licensor") shall provide the other Party ("Licensee")
within a reasonable time period access to the poles, ducts, rights-of-way and
conduits it owns or controls, to the extent permitted by Law and as required by
Section 224 of the Act or any FCC or Commission order or practice, on terms,
conditions and prices comparable to those offered to any other entity purusant
to each Party's applicable standard agreements with such entities.
17.0 DATABASES AND SIGNALING
17.1 Each Party shall provide the other Party with access to databases,
including LIDB and toll-free service access codes (i.e. 800/888), and associated
signaling necessary for call routing and completion of Covad's traffic through
the provision of SS7 Common Channel Signaling (CCIS) under its applicable
tariffs. Alternatively, either Party may secure CCS Interconnection from a
commercial SS7 hub provider, and in that case the other Party will permit the
purchasing Party to access the same databases as would have been accessible if
the purchasing party had connected directly to the other Party's CCIS network.
17.2 The Parties will provide CCIS Signaling to each other, where and as
available, in
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conjunction with all Local Traffic, Toll Traffic, Meet Point Billing Traffic,
and Transit Traffic. The Parties will cooperate on the exchange of TCAP messages
to facilitate interoperability of CCIS-based features between their respective
networks, including all CLASS features and functions, to the extent each Party
offers such features and functions to its Customers. All CCIS Signaling
parameters will be provided upon request (where available), including called
party number, calling party number, originating line information, calling party
category, and charge number. All privacy indicators will be honored. The Parties
will follow all Ordering and Billing Forum-adopted standards pertaining to
CIC/OZZ codes. Where CCIS Signaling is not available, in-band multi-frequency
(MF) wink start signaling will be provided. Any such MF arrangement will require
a separate local trunk circuit between the Parties' respective switches in those
instances where the Parties have established End Office to End Office high usage
trunk groups. In such an arrangement, each Party will outpulse the full
ten-digit telephone number of the called party to the other Party.
17.3 Each Party shall provide trunk groups, where available and upon
reasonable request, that are configured utilizing the B8ZS ESF protocol for 64
kbps clear channel transmission to allow for ISDN interoperability between the
Parties' respective networks.
17.4 The following publications describe the practices, procedures and
specifications generally utilized by BA for signaling purposes and is listed
herein to assist the Parties in meeting their respective Interconnection
responsibilities related to Signaling:
(a) Bellcore Generic Requirements, GR-905-CORE, Issue 1, March,
1995, and subsequent issues and amendments; and
(b) Bell Atlantic Supplement Common Channel Signaling Network
Interface Specification (BA-905).
17.5 Each Party shall charge the other Party mutual and reciprocal rates
for any usage-based charges for CCIS Signaling, 800/888 database access, LIDB
access, and access to other necessary databases, as follows: BA shall charge
Covad in accordance with Exhibit A hereto and applicable Tariffs; Covad shall
charge BA rates equal to the rates BA charges Covad, unless Covad's Tariffs for
CCIS signaling provide for lower generally available rates, in which case Covad
shall charge BA such lower rates; except to the extent a Party uses a third
party vendor for the provision of CCIS Signaling, in which case such charges
shall apply only to the third party vendor.
18.0 COORDINATED SERVICE ARRANGEMENTS
18.1 Intercept and Referral Announcements
When a Customer changes its service provider from BA to Covad, or from
Covad to BA, and does not retain its original telephone number, the Party
formerly providing service to such Customer shall provide a referral
announcement ("Referral Announcement") on the abandoned
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telephone number which provides details on the Customer's new number or provide
other appropriate information to the extent known. Referral Announcements shall
be provided reciprocally, free of charge to either the other Party or the
Customer to the extent the providing Party does not charge its own customers for
such service, for a period of not less than four (4) months after the date the
Customer changes its telephone number in the case of business Customers and not
less than sixty (60) days after the date the Customer changes its telephone
number in the case of residential Customers. However, if either Party provides
Referral Announcements for different periods than the above respective periods
when its Customers change their telephone numbers, such Party shall provide the
same level of service to Customers of the other Party.
18.2 Coordinated Repair Calls
Covad and BA will employ the following procedures for handling misdirected
repair calls:
18.2.1 Covad and BA will educate their respective Customers as to
the correct telephone numbers to call in order to access their respective repair
bureaus.
18.2.2 To the extent Party A is identifiable as the correct provider
of service to Customers that make misdirected repair calls to Party B, Party B
will immediately refer the Customers to the telephone number provided by Party
A, or to an information source that can provide the telephone number of Party A,
in a courteous manner and at no charge. In responding to misdirected repair
calls, neither Party shall make disparaging remarks about the other Party, its
services, rates, or service quality.
18.2.3 Covad and BA will provide their respective repair contact
numbers to one another on a reciprocal basis.
18.3 Customer Authorization
18.3.1 Without in any way limiting either Party's obligations under
subsection 28.1, each Party shall comply with Applicable Laws with regard to
Customer selection of a primary Telephone Exchange Service provider. Until the
Commission and/or FCC adopts regulations and/or orders applicable to Customer
selection of a primary Telephone Exchange Service provider, each Party shall
adhere to the rules and procedures set forth in Section 64.1100 of the FCC
Rules, 47 CFR ss. 64.1100, in effect on the Effective Date hereof when ordering,
terminating, or otherwise changing Telephone Exchange Service on behalf of the
other Party's or another carrier's Customers.
18.3.2 In the event either Party requests that the other Party
install, provide, change, or terminate a Customer's Telecommunications Service
(including, but not limited to, a Customer's selection of a primary Telephone
Exchange Service Provider) and (a) fails to provide documentary evidence of the
Customer's primary Telephone Exchange Service Provider selection upon request,
or (b) without having obtained authorization from the Customer for such
installation, provision, selection, change or termination in accordance with
Applicable Laws (or as
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provided in subsection 18.3.1 above), the requesting Party shall be liable to
the other Party for all charges that would be applicable to the Customer for the
initial change in the Customer's Telecommunications Service and any charges for
restoring the Customer's Telecommunications Service to its Customer-authorized
condition, including to the appropriate primary Telephone Exchange Service
provider.
18.3.3 Without in any way limiting Covad's obligations under
subsection 28.1, Covad shall comply with Applicable Laws with regard to Customer
Proprietary Network Information, including, but not limited to, 47 U.S.C. ss.
222. Covad shall not access (including, but not limited to, through BA OSS
Services and BA Pre-OSS Services), use, or disclose Customer Proprietary Network
Information made available to Covad by BA pursuant to this Agreement unless
Covad has obtained the appropriate Customer authorization for such access, use
and/or disclosure required by Applicable Laws. By accessing, using or disclosing
Customer Proprietary Network Information, Covad represents and warrants that it
has obtained authorization for such action from the applicable Customer in the
manner required by Applicable Laws and this Agreement. Covad shall, upon request
by BA, provide proof of such authorization (including a copy of any written
authorization).
18.3.4 BA shall have the right to monitor and/or audit Covad's
access to and use and/or disclosure of Customer Proprietary Network Information
that is made available by BA to Covad pursuant to this Agreement to ascertain
whether Covad is complying with the requirements of Applicable Laws and this
Agreement with regard to such access, use, and/or disclosure. To the extent
permitted by Applicable Laws, the foregoing right shall include, but not be
limited to, the right to electronically monitor Covad's access to and use of
Customer Proprietary Network Information that is made available by BA to Covad
pursuant to this Agreement.
19.0 DIRECTORY SERVICES ARRANGEMENTS
19.1 Directory Listings and Directory Distributions
In this subsection 19.1, references to a Covad Customer's "primary
listing" shall mean such Customer's primary name, address, and telephone number,
which number falls within the NXX codes directly assigned to Covad or is
retained by Covad on the Customer's behalf pursuant to LTNP arrangements with BA
or any other carrier within the geographic area covered in the relevant BA
directory. BA will, upon request, provide the following directory services to
Covad in accordance with the terms set forth herein.
19.1.1 BA will include the Covad Customer's primary listing in its
"White Pages" directory (residence and business listings) and "Yellow Pages"
directory (business listings) that cover the address of the Customer. Listings
of Covad's Customers will be interfiled with listings of BA's Customers and the
Customers of other LECs included in the BA directories. Covad will pay BA a
non-recurring charge as set forth in Exhibit A for providing such service for
each Covad Customer's primary listing. Covad will also pay BA's Tariffed
charges, as the case may be, for additional and foreign white page listings and
other white pages services for Covad's Customers.
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BA will not require a minimum number of listings per order.
19.1.2 BA will also include the Covad Customer's primary listing in
BA's directory assistance database on the same basis that BA's own Customers are
included, as well as in any electronic directories in which BA's Customers are
ordinarily included, for no charge other than the charges identified in
subsection 19.1.1.
19.1.3 BA will distribute to Covad Customers copies of their primary
white pages and yellow pages directories at the same time and on the same basis
that BA distributes primary directories to its own Customers. BA will also
deliver a reasonable number of such directories to Covad. These distributions
will be made for no additional charge. Covad and its Customers may request
additional directories from BA's Directory Fulfillment Centers, which Centers
will provide such additional directories for the same charges applicable to
comparable requests by BA Customers.
19.1.4 Upon request by Covad, BA will provide Covad with a directory
list of relevant NXX codes, the close dates, publishing data, and call guide
close dates on the same basis as such information is provided to BA's own
business offices.
19.1.5 Covad shall provide BA with daily listing information on all
new Covad Customers in the format required by BA or a mutually-agreed upon
industry standard format. The information shall include the Customer's name,
address, telephone number, the delivery address and number of directories to be
delivered, and, in the case of a business listing, the primary business heading
under which the business Customer desires to be placed, and any other
information necessary for the publication and delivery of directories. Covad
will also provide BA with daily listing information showing Customers that have
disconnected or terminated their service with Covad. BA will provide Covad with
confirmation of listing order activity within forty eight (48) hours.
19.1.6 BA will accord Covad's directory listing information the same
level of confidentiality which BA accords its own directory listing information,
and BA shall ensure that access to Covad's directory listing information will be
used solely for the purpose of providing directory services; provided, however,
that BA may use or license information contained in its directory listings for
direct marketing purposes so long as the Covad Customers are not separately
identified as such; and provided further that Covad may identify those of its
Customers that request that their names not be sold for direct marketing
purposes, and BA will honor such requests to the same extent as it does for its
own Customers.
19.1.7 Both Parties shall use their best efforts to ensure the
accurate listing of Covad Customer listings. BA will also provide Covad, upon
request, a copy of the BA listings standards and specifications manual. In
addition, BA will provide Covad with a listing of Yellow Pages headings and
directory close schedules on an ongoing basis.
19.1.8 Covad will adhere to all practices, standards, and ethical
requirements of BA with regard to listings, and, by providing BA with listing
information, warrants to BA that
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Covad has the right to place such listings on behalf of its Customers. Covad
agrees that it will undertake commercially practicable and reasonable steps to
attempt to ensure that any business or person to be listed is authorized and has
the right (i) to provide the product or service offered, and (ii) to use any
personal or corporate name, trade name or language used in the listing. In
addition, Covad agrees to release, defend, hold harmless and indemnify BA from
and against any and all claims, losses, damages, suits, or other actions, or any
liability whatsoever, suffered, made, instituted, or asserted by any person
arising out of BA's listing of the listing information provided by Covad
hereunder.
19.1.9 BA's liability to Covad in the event of a BA error in or
omission of a listing shall not exceed the amount of charges actually paid by
Covad for such listing. In addition, Covad agrees to take, with respect to its
own Customers, all reasonable steps to ensure that its and BA's liability to
Covad's Customers in the event of a BA error in or omission of a listing shall
be subject to the same limitations that BA's liability to its own Customers are
subject to.
19.1.10 Within thirty (30) business days of the Effective Date, BA
agrees to meet with Covad and, if appropriate, arrange a meeting with a BA
authorized Yellow Pages agent, to address issues regarding Covad customer
referrals or questions pertaining to Yellow Pages listings.
19.2 Yellow Pages Maintenance
The Parties agree to work cooperatively to ensure that Yellow Page
advertisements purchased by Customers that switch their service to Covad
(including Customers utilizing Covad-assigned telephone numbers and Covad
Customers utilizing LTNP) are maintained without interruption. BA will offer
Yellow Pages services to Covad Customers on the same basis as they are offered
to BA Customers.
19.3 Service Information Pages
BA will include all Covad NXX codes associated with the areas to which
each directory pertains, along with BA's own NXX codes, in any lists of such
codes which are contained in the general reference portions of the directories.
Covad's NXX codes shall appear in such lists in the same manner as BA's NXX
information. In addition, BA will include in the "Customer Guide" or comparable
section of the applicable white pages directories listings provided by Covad for
Covad's installation, repair and customer service and other essential service
oriented information, as agreed by the Parties, including appropriate
identifying logo. Such listings shall appear in the manner agreed to by the
Parties. BA shall not charge Covad for inclusion of this essential
service-oriented information, but reserves the right to impose charges on other
information Covad may elect to submit and BA may elect to accept for inclusion
in BA's white pages directories. BA will provide Covad with the annual directory
close dates and reasonable notice of any changes in said dates.
19.4 Directory Assistance (DA); Call Completion
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19.4.1 Upon request, BA will provide Covad with directory
assistance, connect request, and/or IntraLATA call completion services in
accordance with the terms set forth in the Directory Assistance and Call
Completion Services Agreement appended hereto as Exhibit C.
19.4.2 Also upon request, BA will provide to Covad operator services
trunk groups, utilizing Feature Group D type signaling, with ANI, minus OZZ,
when interconnecting to the BA operator services network.
19.4.3 BA agrees to utilize existing trunking arrangements, at no
facility charge to Covad, to transfer Covad's operator calls handled by a BA
operator to the appropriate 911/E911 PSAP. The ALI information passed to the
PSAP shall be consistent with the information that BA passes on its own
operator-handled calls.
19.4.4 At the request of Covad, BA will provide Covad with "Direct
Access" service to the same directory assistance ("DA") database that is used by
BA to provide directory assistance to BA Customers. Direct Access will enable
Covad's operator bureau, if Covad elects to provide its own DA services, to
obtain direct electronic access to the DA database for the purpose of providing
intraLATA directory assistance to Covad Customers. Covad may search and read DA
database information at the per query rates specified in Exhibit A. BA will
furnish ports for connection and termination of Covad facilities to the DA
database system. The type of ports and associated charges will be based on the
type of access configuration required by Covad for termination of its
facilities. The number of ports provided at the database will be based on
Covad's annual forecast of "Busy Hour" queries. At the request of Covad, BA will
also accept electronic transmission of Covad Customer DA information for
inclusion in the DA database.
20.0 COORDINATION WITH TARIFF TERMS
20.1 The Parties acknowledge that some of the services, facilities, and
arrangements described herein are or will be available under and subject to the
terms of the federal or state Tariffs of the other Party applicable to such
services, facilities, and arrangements. To the extent a Tariff of the providing
Party applies to any service, facility, and arrangement described herein, the
Parties agree as follows:
20.1.1 Those rates and charges set forth in Exhibit A for the
services, facilities, and arrangements described herein that reference or are
identical to a rate contained in an existing Tariff of the providing Party,
shall conform with those contained in the then-prevailing Tariff and vary in
accordance with any changes that may be made to the Tariff rates and charges
subsequent to the Effective Date.
20.1.2 As applied to wholesale discount rates, unbundled Network
Elements or call transport and/or termination of Local Traffic purchased for the
provision of Telephone Exchange Service or Exchange Access, the rates and
charges set forth in Exhibit A shall apply until such time as they are replaced
by new rates as may be approved by the Commission from time to time pursuant to
the FCC Regulations, subject to a stay or other order issued by any court
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of competent jurisdiction. At such time(s) as such new rates have been approved
by the Commission, the Parties shall amend Exhibit A to reflect the new approved
rates.
20.2 Except with respect to the rates and charges described in subsection
20.1 above, all other terms contained in an applicable Tariff of the providing
Party shall apply in connection with its provision of the particular service,
facility, and arrangement purusant to that Tariff. . The availability of
particular services pursuant to this Agreement that are similar to those
provided for in any applicable Tariff shall not affect the ability of a Party to
obtain those services pursuant to this Agreement.
21.0 INSURANCE
21.1 Covad shall maintain, during the term of this Agreement, all
insurance and/or bonds required by law and necessary to satisfy its obligations
under this Agreement, including, without limitation, its obligations set forth
in Section 25 hereof. At a minimum and without limiting the foregoing covenant,
Covad shall maintain the following insurance:
(a) Commercial General Liability Insurance, on an occurrence basis,
including but not limited to, premises-operations, broad form property
damage, products/completed operations, contractual liability, independent
contractors, and personal injury, with limits of at least $2,000,000
combined single limit for each occurrence.
(b) Automobile Liability, Comprehensive Form, with limits of at
least $500,000 combined single limit for each occurrence.
(c) Excess Liability, in the umbrella form, with limits of at least
$10,000,000 combined single limit for each occurrence.
(d) Worker's Compensation Insurance as required by law and
Employer's Liability Insurance with limits of not less than $1,000,000 per
occurrence.
21.2 Covad shall name BA as an additional insured on the foregoing
insurance.
21.3 Covad shall, within two (2) weeks of the date hereof and on a
semi-annual basis thereafter, furnish certificates or other adequate proof of
the foregoing insurance. The certificates or other proof of the foregoing
insurance shall be sent to: Bell Atlantic, Insurance Administration Group, 1320
N. Court House Road, 4th Floor, Arlington, Virginia, 22201. In addition, Covad
shall require its agents, representatives, or contractors, if any, that may
enter upon the premises of BA or BA's affiliated companies to maintain similar
and appropriate insurance and, if requested, to furnish BA certificates or other
adequate proof of such insurance. Certificates furnished by Covad or Covad's
agents, representatives, or contractors shall contain a clause stating: "Bell
Atlantic - Maryland, Inc. shall be notified in writing at least thirty (30) days
prior to cancellation of, or any material change in, the insurance."
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22.0 TERM AND TERMINATION.
22.1 This Agreement shall be effective as of the date first above written
and continue in effect until March 15, 2001, and thereafter the Agreement shall
continue in force and effect unless and until terminated as provided herein.
Upon the expiration of the initial term, either Party may terminate this
Agreement by providing written notice of termination to the other Party, such
written notice to be provided at least ninety (90) days in advance of the date
of termination. In the event of such termination, those service arrangements
made available under this Agreement and existing at the time of termination
shall continue without interruption under (a) a new agreement executed by the
Parties, (b) standard Interconnection terms and conditions approved and made
generally effective by the Commission, (c) Tariff terms and conditions generally
available to CLECs, or (d) if none of the above is available, under the terms of
this Agreement on a month-to-month basis until such time as (a), (b), or (c)
becomes available.
22.2 For service arrangements made available under this Agreement and
existing at the time of termination, if the standard Interconnection terms and
conditions or Tariff terms and conditions result in the non-terminating Party
physically rearranging facilities or incurring programming expense, the
non-terminating Party shall be entitled to recover such rearrangement or
programming costs from the terminating Party.
22.3 If either Party defaults in the payment of any amount due hereunder,
or if either Party violates any other provision of this Agreement, and such
default or violation shall continue for sixty (60) days after written notice
thereof, the other Party may terminate this Agreement and services hereunder by
written notice; provided the other Party has provided the defaulting Party and
the appropriate federal and/or state regulatory bodies with written notice at
least twenty five (25) days' prior to terminating service. Notice shall be
posted by overnight mail, return receipt requested. If the defaulting Party
cures the default or violation within the twenty-five (25) day period, the other
Party will not terminate service or this Agreement but shall be entitled to
recover all costs, if any, incurred by it in connection with the default or
violation, including, without limitation, costs incurred to prepare for the
termination of service.
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NEITHER PARTY MAKES 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.
24.0 CANCELLATION CHARGES
Except as provided in this Agreement or as otherwise provided in any
applicable Tariff, no
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cancellation charges shall apply.
25.0 INDEMNIFICATION
25.1 Each Party agrees to release, indemnify, defend and hold harmless the
other Party from and against all losses, claims, demands, damages, expenses,
suits or other actions, or any liability whatsoever, including, but not limited
to, costs and attorneys' fees (collectively, a "Loss"), (a) whether suffered,
made, instituted, or asserted by any other party or person, relating to personal
injury to or death of any person, or for loss, damage to, or destruction of real
and/or personal property, whether or not owned by others, arising from
transactions or activities relating to this Agreement and to the extent
proximately caused by the negligent or willful acts or omissions of the
indemnifying Party, regardless of the form of action, or (b) suffered, made,
instituted, or asserted by its own customer(s) against the other Party arising
out of the other Party's provision of services to the indemnifying Party under
this Agreement. Notwithstanding the foregoing indemnification, nothing in this
Section 25.0 shall affect or limit any claims, remedies, or other actions the
indemnifying Party may have against the indemnified Party under this Agreement,
any other contract, or any applicable Tariff(s), regulations or laws for the
indemnified Party's provision of said services.
25.2 The indemnification provided herein shall be conditioned upon:
(a) The indemnified Party shall promptly notify the indemnifying
Party of any action, claim, lawsuit or demand taken against the
indemnified Party relating to the indemnification.
(b) The indemnifying Party shall have sole authority to defend any
such action, claim, lawsuit or demand including the selection of legal
counsel, and the indemnified Party may engage separate legal counsel only
at its sole cost and expense. The Indemnifying Party shall keep the
Indemnified Party reasonably and timely apprised of the status of the
action, claim, demand or lawsuit. The Indemnifying Party will not be
liable under this Section for settlements or compromises by the
Indemnified party of any action, claim, demand or lawsuit unless the
Indemnifying Party has approved the settlement or compromise in advance or
unless the defense of the action, claim, demand or lawsuit has been
tendered to the Indemnifying Party in writing and the Indemnifying Party
has failed to promptly undertake the defense.
(c) In no event shall the indemnifying Party settle or consent to
any judgment pertaining to any such action without the prior written
consent of the indemnified Party, which consent shall not be unreasonably
withheld. However, in the event the settlement or judgment requires a
contribution from or affects the rights of the Indemnified Party, the
Indemnified Party shall have the right to refuse such settlement or
judgment and, at its own cost and expense, take over the defense against
such Loss, provided that in such event the indemnifying Party shall not be
responsible for, nor shall it be obligated to indemnify the indemnified
Party against, the Loss for any amount in excess of such refused
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settlement or judgment.
(d) The indemnified Party shall, in all cases, assert any and all
provisions in its Tariffs that limit liability to third parties as a bar
to any recovery by the third party claimant in excess of such limitation
of liability.
(e) The indemnified Party shall offer the indemnifying Party all
reasonable cooperation and assistance in the defense of any such action,
demand or lawsuit.
26.0 LIMITATION OF LIABILITY
26.1 The liability of either Party to the other Party for damages arising
out of failure to comply with a direction to install, restore or terminate
facilities; or out of failures, mistakes, omissions, interruptions, delays,
errors, or defects (collectively, "Errors") occurring in the course of
furnishing any services, arrangements, or facilities hereunder shall be
determined in accordance with the terms of the applicable tariff(s) of the
providing Party. In the event no tariff(s) apply, the providing Party's
liability for such Errors shall not exceed an amount equal to the pro rata
monthly charge for the period in which such failures, mistakes, omissions,
interruptions, delays, errors or defects occur. Except as otherwise provided in
Section 25, Section 26.2, Section 27 and Section 29.4, recovery of said amount
shall be the injured Party's sole and exclusive remedy against the providing
Party for Errors, provided however that Errors shall not include grossly
negligent or willful conduct.
26.2 Except as provided in Section 25, Section 27, and Section 29.4, or in
instances of gross negligence or willful misconduct, neither Party shall be
liable to the other in connection with the provision or use of services offered
under this Agreement for indirect, incidental, consequential, reliance or
special damages, including (without limitation) damages for lost profits
(collectively, "Consequential Damages"), regardless of the form of action,
whether in contract, warranty, strict liability, or tort, including, without
limitation, negligence of any kind, 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 Section 25.
26.3 The Parties agree that neither Party shall be liable to the customers
of the other Party in connection with its provision of services to the other
Party under this Agreement. Nothing in this Agreement shall be deemed to create
a third party beneficiary relationship between the Party providing the service
and the customers of the Party purchasing the service. In the event of a dispute
involving both Parties with a customer of one Party, both Parties shall assert
the applicability of any limitations on liability to customers that may be
contained in either Party's applicable Tariff(s).
27.0 PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
27.1 Performance Standards
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BA shall provide the Interconnection and unbundled Network Elements
contemplated hereunder in accordance with the performance standards set forth in
Section 251(c) of the Act and the FCC Regulations, including without limitation
the rules set forth in 47 Code of Federal Regulations ss.ss. 51.305(a)(3),
51.311(a), and 51.311(b).
27.2 Performance Monitoring Reports, Standards and Remedies
Schedule 27.2, "Performance Monitoring Reports, Standards and Remedies,"
is made a part of this Agreement and incorporated herein in its entirety.
27.3 Performance Measurement, Standard and Remedy for
xDSL-Compatible ULLs
Upon request by either Party, at such time as BA provides to Covad, as a
generally available offering, pursuant to Section 11.2, 2-Wire ADSL-Compatible
ULLs, 2-Wire HDSL-Compatible ULLs, and 4-Wire HDSL-Compatible ULLs, the Parties
will negotiate in good faith for insertion into Schedule 27.2 a missed
installation appointment performance measurement, standard and remedy, for such
ULLs. Unless otherwise agreed by the Parties, such measurement, standard and
remedy, will be a consolidated measurement, standard and remedy, that covers
missed installation appointments for all three types of ULLs.
28.0 COMPLIANCE WITH LAWS; REGULATORY APPROVAL
28.1 Each Party shall promptly notify the other Party in writing of any
governmental action that suspends, cancels, withdraws, limits, or otherwise
materially affects its ability to perform its obligations hereunder.
28.2 The Parties understand and agree that this Agreement will be filed
with the Commission and may thereafter be filed with the FCC as an integral part
of BA's application pursuant to Section 271(d) of the Act. The Parties covenant
and agree that this Agreement is satisfactory to them as an agreement under
Section 251 of the Act. 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. The Parties, however, reserve the right to seek
regulatory relief and otherwise seek redress from each other regarding
performance and implementation of this Agreement, including, without limitation,
the conformance of this Agreement to the FCC Regulations as provided in
subsection 28.3 below.
28.3 The Parties recognize that the FCC has issued and may continue to
issue the FCC Regulations implementing Sections 251, 252, and 271 and other
Sections of the Act that affect certain terms contained in this Agreement. In
the event that any one or more of the provisions contained herein is
inconsistent with any applicable rule contained in such FCC Regulations or as
may be enacted by the Commission, or imposed by a court in the exercise of its
lawful jurisdiction, or which, in BA's reasonable determination, affects BA's
application pursuant to Section 271(d)
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of the Act, the Parties agree to negotiate in good faith the revisions necessary
to eliminate the inconsistency or amend the application-affecting provision(s).
Such revisions need not be considered material, and need not require further
Commission approval beyond any Commission approval required under Section 252(e)
of the Act. If, however, any such change in Applicable Law or amendment to this
Agreement would necessitate a change that would affect the interconnectin of
network facilities or Covad's ability to use any BA service or Network Element,
Covad shall have a reasonable time to modify or re-deploy its network or
operations to reflect such change.
28.4 In the event any Applicable Law other than the FCC Regulations
requires modification of any material term(s) contained in this Agreement,
either Party may require a renegotiation of the term(s) that require direct
modification as well as of any term(s) that are reasonably affected thereby. If
neither Party requests a renegotiation or if an Applicable Law requires
modification of any non-material term(s), the remaining provisions of this
Agreement shall remain in full force and effect. For purposes of this subsection
28.4 and without limitation of any other modifications required by Applicable
Laws, the Parties agree that any modification required by Applicable Laws (i) to
the two-tier Reciprocal Call Termination compensation structure for the
transport and termination of Local Traffic described in Exhibit A, or (ii) that
affects either Party's receipt of Reciprocal Compensation for the transport and
termination of Local Traffic, shall be deemed to be a modification of a material
term that requires immediate good faith renegotiation between the Parties.
28.5 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA"). Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with CALEA. Each Party shall indemnify and hold the other Party harmless from
any and all penalties imposed upon the other Party for such non-compliance 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.
29.0 MISCELLANEOUS
29.1 Authorization
29.1.1 Bell Atlantic-Maryland, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the State of Maryland
and has full power and authority to execute and deliver this Agreement and to
perform the obligations hereunder.
29.1.2 DIECA Communications, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Virginia, and has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder.
29.2 Independent Contractor
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Each Party shall perform services hereunder as an independent contractor
and nothing herein shall be construed as creating any other relationship between
the Parties. 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 their
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.
29.3 Force Majeure
Neither Party shall be responsible for delays or failures in performance
resulting from acts or occurrences beyond the reasonable control of such Party,
regardless of whether such delays or failures in performance were foreseen or
foreseeable as of the date of this Agreement, including, without limitation:
adverse weather conditions, fire, explosion, power failure, acts of God, war,
revolution, civil commotion, or acts of public enemies; any law, order,
regulation, ordinance or requirement of any government or legal body; or labor
unrest, including, without limitation, strikes, slowdowns, picketing or
boycotts; or delays caused by the other Party or by other service or equipment
vendors; or any other circumstances beyond the Party's reasonable control. In
such event, the affected Party 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 interferences (and the other Party shall likewise be excused from
performance of its obligations on a day-to-day basis to the extent such Party's
obligations relate to the performance so interfered with). The affected Party
shall use its best efforts to avoid or remove the cause(s) of non-performance
and both Parties shall proceed to perform with dispatch once the cause(s) are
removed or cease.
29.4 Confidentiality
29.4.1 All information, including but not limited to specification,
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 to the other
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, 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, and by written notice given to the
receiving Party within ten (10) days after delivery, to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary Information"), shall
remain the property of the disclosing Party.
29.4.2 Each Party shall keep all of the other Party's Proprietary
Information confidential in the same manner it holds its own Proprietary
Information confidential (which in all cases shall be no less than reasonable)
and shall use the other Party's Proprietary Information only for performing the
covenants contained in this Agreement. 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. All Proprietary
Information (i) shall be held
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in confidence by each receiving Party; (ii) shall be disclosed on a confidential
basis to only those persons who have a need for it in connectin with the
provision of services required to fulfill this Agreement and shall be used only
for such purposes; and (iii) may be used for other purposes only upon such terms
and conditions as may be mutually agreed to in advance of use in writing by the
Parties.
29.4.3 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this 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 it confidential as evidenced by
written records prepared prior to delivery by the disclosing Party; or
(b) is or becomes publicly known through no wrongful act of the
receiving Party; or
(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; or
(d) is independently developed by an employee, agent, or contractor
of the receiving Party that is not involved in any manner with the
provision of services pursuant to this Agreement and does not have any
direct or indirect access to the Proprietary Information; or
(e) is approved for release by written authorization of the
disclosing Party; or
(f) is required to be made public by the receiving Party pursuant to
applicable law or regulation, provided that the receiving Party shall give
sufficient notice of the requirement to the disclosing Party to enable the
disclosing Party to seek protective orders. In such event, the receiving
Party shall provide the disclosing Party with written notice of such
requirement, to the extent permitted by Law, as soon as possible and,
where possible, prior to such disclosure. The disclosing Party may then
seek appropriate protective relief from all or part of such requirement,
and the receiving Party shall use reasonable efforts to cooperate with the
disclosing Party in attempting to obtain any protective relief which such
disclosing Party chooses to obtain.
29.4.4 Upon request by the disclosing Party, the receiving Party
shall return all tangible copies of Proprietary Information, whether written,
graphic, electromagnetic or otherwise.
29.4.5 Notwithstanding any other provision of this Agreement, the
provisions of this subsection 29.4 shall apply to all Proprietary Information
furnished by either Party to the other in furtherance of the purpose of this
Agreement, even if furnished before the Effective Date.
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29.4.6 Except as otherwise expressly provided elsewhere in this
Agreement, no license is hereby granted under any patent, trademark, or
copyright, nor is any license implied, solely by virtue of the disclosure of any
Proprietary Information.
29.5 Choice of Law
The construction, interpretation and performance of this Agreement shall
be governed by and construed in accordance with the laws of the state in which
this Agreement is to be performed, except for its conflicts of laws provisions.
In addition, insofar as and to the extent federal law may apply, federal law
will control.
29.6 Taxes
29.6.1 In General. With respect to any purchase hereunder of
services, facilities or arrangements, if any federal, state or local tax, fee,
surcharge or other tax-like charge (a "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 properly bill the purchasing Party for such
Tax, (ii) the purchasing Party shall timely remit such Tax to the providing
Party and (iii) the providing Party shall timely remit such collected Tax to the
applicable taxing authority.
29.6.2 Taxes Imposed on the Providing Party With respect to any
purchase hereunder of services, facilities or arrangements, if any federal,
state or local Tax is imposed by Applicable Law on the receipts of the providing
Party, which Law permits the providing Party to exclude certain receipts
received from sales for resale to a public utility, distributor, telephone
company, local exchange carrier, telecommunications company or other
communications company ("Telecommunications Company"), such exclusion being
based solely on the fact that the purchasing Party is also subject to a tax
based upon receipts ("Receipts Tax"), then the purchasing Party (i) shall
provide the providing Party with notice in writing in accordance with subsection
29.6.6 of this Agreement of its intent to pay the Receipts Tax and (ii) shall
timely pay the Receipts Tax to the applicable tax authority.
29.6.3 Taxes Imposed on Customers With respect to any purchase
hereunder of services, facilities or arrangements that are resold to a third
party, if any federal, state or local Tax is imposed by Applicable Law on the
subscriber, end-user, Customer or ultimate consumer ("Subscriber") in connection
with any such purchase, which a Telecommunications Company is required to impose
and/or collect from a Subscriber, then the purchasing Party (i) shall be
required to impose and/or collect such Tax from the Subscriber and (ii) shall
timely remit such Tax to the applicable taxing authority.
29.6.4 Liability for Uncollected Tax, Interest and Penalty If the
providing Party has not received an exemption certificate and fails to collect
any Tax as required by subsection 29.6.1, 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 interest
assessed thereon and any penalty assessed with respect to such uncollected Tax
by such
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authority. If the providing Party properly bills the purchasing Party for any
Tax but the purchasing Party fails to remit such Tax to the providing Party as
required by subsection 29.6.1, then, as between the providing Party and the
purchasing Party, the purchasing Party shall be liable for such uncollected Tax
and any interest assessed thereon, as well as any penalty assessed with respect
to such uncollected Tax by the applicable taxing authority. If the providing
Party does not collect any Tax as required by subsection 29.6.1 because the
purchasing Party has provided such providing Party with an exemption certificate
that is later found to be inadequate by a taxing authority, then, as between the
providing Party and the purchasing Party, the purchasing Party shall be liable
for such uncollected Tax and any interest assessed thereon, as well as any
penalty assessed with respect to such uncollected Tax by the applicable taxing
authority. If the purchasing Party fails to pay the Receipts Tax as required by
subsection 29.6.2, then, as between the providing Party and the purchasing
Party, (x) the providing Party shall be liable for any Tax imposed on its
receipts and (y) the purchasing Party shall be liable for any interest assessed
thereon and any penalty assessed upon the providing Party with respect to such
Tax by such authority. If the purchasing Party fails to impose and/or collect
any Tax from Subscribers as required by subsection 29.6.3, then, as between the
providing Party and the purchasing Party, the purchasing Party shall remain
liable for such uncollected Tax and any interest assessed thereon, as well as
any penalty assessed with respect to such uncollected Tax by the applicable
taxing authority. With respect to any Tax that the purchasing Party has agreed
to pay, or is required to impose on and/or collect from Subscribers, the
purchasing Party agrees to indemnify and hold the providing Party harmless 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 recover the Tax from the
providing Party due to the failure of the purchasing Party to timely pay, or
collect and timely remit, such Tax to such authority. In the event either Party
is audited by a taxing authority, the other Party agrees to cooperate fully with
the Party being audited in order to respond to any audit inquiries in a proper
and timely manner so that the audit and/or any resulting controversy may be
resolved expeditiously.
29.6.5 Tax Exemptions and Exemption Certificates If Applicable Law
clearly exempts a purchase hereunder from a Tax, and if such Law also provides
an exemption procedure, such as an exemption-certificate requirement, then, if
the purchasing Party complies with such procedure, the providing Party shall not
collect such Tax during the effective period of such exemption. Such exemption
shall be effective upon receipt of the exemption certificate or affidavit in
accordance with the terms set forth in subsection 29.6.6. If Applicable Law
clearly exempts a purchase hereunder from a Tax, but does not also provide an
exemption procedure, then the providing Party shall not collect such Tax if the
purchasing Party (i) furnishes the providing Party with a letter signed by an
officer requesting such an exemption and citing the provision in the Law which
clearly allows such exemption and (ii) supplies the providing Party with an
indemnification agreement, reasonably acceptable to the providing Party (e.g.,
an agreement commonly used in the industry), which holds the providing Party
harmless on an after-tax basis with respect to its forbearing to collect such
Tax.
29.6.6 If any discount or portion of a discount in price provided to
Covad under this Agreement (including, but not limited to, a wholesale discount
provided for in Exhibit A) is based on anticipated Tax savings to BA because it
was anticipated that receipts from sales of BA
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services that would otherwise be subject to a Tax on such receipts could be
excluded from such Tax under Applicable Law because the BA services would be
sold to Covad for resale, and BA is, in fact, required by Applicable Law to pay
such Tax on receipts from sales of BA services to Covad, then, as between BA and
Covad, Covad shall be liable for, and shall indemnify and hold harmless BA
against (on an after-tax basis), any such Tax and any interest and/or penalty
assessed by the applicable taxing authority on either Covad or BA with respect
to the Tax on BA's receipts.
29.6.7 All notices, affidavits, exemption-certificates or other
communications required or permitted to be given by either Party to the other,
for purposes of this subsection 29.6, shall be made in writing and shall be
delivered in person or sent by certified mail, return receipt requested, or
registered mail, or a courier service providing proof of service, and sent to
the addressees set forth in subsection 29.10 as well as to the following:
To Bell Atlantic: Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, NY 10036
To Covad: Tax Administration
DIECA Communications, Inc.
2330 Central Expressway
Santa Clara, CA 95050-2516
Either Party may from time to time designate another address or other addressees
by giving notice is accordance with the terms of this subsection 29.6. Any
notice or other communication shall be deemed to be given when received.
29.7 Assignment
Neither Party may assign or transfer (whether by operation of Law or
otherwise) this Agreement or any of its rights or obligations hereunder to a
third partywithout the other Party's prior written consent, which consent shall
not be unreasonably withheld or delayed; provided , however, 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 prior written notice to the other Party of such assignment or
transfer, together with a properly executed acceptance of the assigning Party's
obligations and duties hereunder. Any attempted assignment or transfer that is
not permitted shall be void ab initio. All obligations and duties of any Party
shall be binding on all successors in interest and assigns of such Party.
29.8 Billing and Payment; Disputed Amounts
29.8.1 Except as may otherwise be provided in this Agreement, each
Party shall submit on a monthly basis an itemized statement of charges incurred
by the other Party during the
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preceding month(s) for services rendered hereunder. Payment of billed amounts
under this Agreement, whether billed on a monthly basis or as otherwise provided
herein, shall be due, in immediately available U.S. funds, within thirty (30)
days of the date of such statement.
29.8.2 Although it is the intent of both Parties to submit timely
and accurate statements of charges, failure by either Party to present
statements to the other Party in a timely manner shall not constitute a breach
or default, or a waiver of the right to payment of the incurred charges, by the
billing Party under this Agreement, and the billed Party shall not be entitled
to dispute the billing Party's statement(s) based on such Party's failure to
submit them in a timely fashion.
29.8.3 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) the Disputed Amount up to the higher of $10,000 or 50% of the
Disputed Amount into an interest bearing escrow account with a third party
escrow agent mutually agreed upon by the Parties. The remaining balance of the
Disputed Amount not placed into escrow shall thereafter be paid, if appropriate,
upon final determination of such dispute.
29.8.4 If the Parties are unable to resolve the issues related to
the Disputed Amounts in the normal course of business within ninety (90) 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.
29.8.5 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 subsection 29.8.4, or if either Party
fails to appoint a designated representative within forty five (45) days, 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.
29.8.6 The Parties agree that all negotiations pursuant to this
subsection 29.8 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.
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29.8.7 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.
29.9 Dispute Resolution
Any dispute between the Parties regarding the interpretation or
enforcement of this Agreement or any of its terms shall be addressed by good
faith negotiation between the Parties, in the first instance. Should such
negotiations fail to resolve the dispute in a reasonable time, either Party may
initiate an appropriate action in any regulatory or judicial forum of competent
jurisdiction.
29.10 Notices
Except as otherwise provided in this Agreement, notices given by one Party
to the other Party under this Agreement shall be in writing and shall be (a)
delivered personally, (b) delivered by express delivery service, (c) mailed,
certified mail or first class U.S. mail postage prepaid, return receipt
requested, or (d) delivered by telecopy to the following addresses of the
Parties:
To Covad:
DIECA Communications, Inc.
2330 Central Expressway
Santa Clara, CA 95050-2516
Attn: Vice President and General Counsel
Facsimile: (408) 490-4507
with a copy to:
DIECA Communications, Inc.
6849 Old Dominion Drive, Suite 220
McLean, VA 22101
Att: Assistant General Counsel
Facsimile: (703) 734-5474
To BA:
Bell Atlantic
Telecom Industry Services
1095 Avenue of the Americas
40th Floor
New York, NY 10036
Facsimile: (212) 597-2585
with a copy to:
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General Attorney
Bell Atlantic
1320 N. Courthouse Road
8th Floor
Arlington, VA 22201
Facsimile: (703) 974-0744
or to such other address as either Party shall designate by proper notice.
Notices will be deemed given as of the earlier of (i) the date of actual
receipt, (ii) the next business day when notice is sent via express mail or
personal delivery, (iii) three (3) days after mailing in the case of first class
or certified U.S. mail, or (iv) on the date set forth on the confirmation in the
case of telecopy.
29.11 Section 252(i) Obligations
29.11.1 To the extent required under Applicable Law, BA shall make
available without unreasonable delay to Covad any individual interconnection,
service or network element contained in any agreement to which it is a party
that is approved by the Commission pursuant to Section 252 of the Act, upon the
same rates, terms, and conditions as those provided in the agreement.
29.11.2 To the extent the exercise of the foregoing options requires
a rearrangement of facilities by the providing Party, the opting Party shall be
liable for the non-recurring charges associated therewith.
29.11.3 The Party electing to exercise such option shall do so by
delivering written notice to the first Party. Upon receipt of said notice by the
first Party, the Parties shall amend this Agreement to provide the same rates,
terms and conditions to the notifying Party for the remaining term of this
Agreement; provided, however, that the Party exercising its option under this
subsection 29.11 must continue to provide the same services or arrangements to
the first Party as required by this Agreement, subject either to the rates,
terms, and conditions applicable to the first Party in its agreement with the
third party or to the rates, terms, and conditions of this Agreement, whichever
is more favorable to the first Party in its sole determination.
29.12 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.
29.13 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
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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.
29.14 No License
29.14.1 Except as may be expressly provided herein, nothing in this
Agreement shall be construed as the grant of a license with respect to any
patent, copyright, trademark, trade name, trade secret or any other proprietary
or intellectual property now or hereafter owned, controlled or licensable by
either Party. Neither Party may use any patent, copyrightable materials,
trademark, trade name, trade secret or other intellectual property right of the
other Party except in accordance with the terms of a separate license agreement
between the Parties granting such rights.
29.14.2 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 Party or its customers
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 of any facilities by either Party under this Agreement, alone or in
combination with that of the other Party, constitutes direct, vicarious or
contributory infringement or inducement to infringe, misuse or misappropriation
of any patent, copyright, trademark, trade secret, or any other proprietary or
intellectual property right of any Party or third party. Each Party, however,
shall offer to the other reasonable cooperation and assistance in the defense of
any such claim.
29.14.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES NOT EXIST, ANY
WARRANTY, EXPRESS OR IMPLIED, THAT THE USE BY THE PARTIES OF THE OTHER'S
FACILITIES, ARRANGEMENTS, OR SERVICES PROVIDED UNDER THIS AGREEMENT SHALL NOT
GIVE RISE TO A CLAIM BY ANY THIRD PARTY OF INFRINGEMENT, MISUSE, OR
MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT OF SUCH THIRD PARTY.
29.15 Technology Upgrades
Nothing in this Agreement shall limit BA's ability to upgrade its network
through the incorporation of new equipment, new software or otherwise. BA shall
provide Covad written notice at least ninety (90) days prior to the
incorporation of any such upgrades in BA's network that will materially affect
Covad's service, and shall exercise reasonable efforts to provide at least one
hundred eighty (180) days notice where practicable. In addition, BA shall comply
with the
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FCC Network Disclosure rules, promulgated purusant to Title II of the Act and,
in particular, Section 251(c)(5) of the Act, set forth in the FCC Regulations to
the extent applicable. Covad shall be solely responsible for the cost and effort
of accommodating such changes in its own network.
29.16 Survival
The Parties' obligations under this Agreement which by their nature are
intended to continue beyond the termination or expiration of this Agreement,
including but not limited to Section 29.4, shall survive the termination or
expiration of this Agreement.
29.17 Entire Agreement
The terms contained in this Agreement and any Schedules, Exhibits, 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.
29.18 Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
29.19 Modification, Amendment, Supplement, or Waiver
No modification, amendment, supplement to, or waiver of the Agreement or
any of its provisions shall be effective and binding upon the Parties unless it
is made in writing and duly signed by the Parties. A failure or delay of either
Party to enforce any of the provisions hereof, to exercise any option which is
herein provided, or to require performance of any of the provisions hereof shall
in no way be construed to be a waiver of such provisions or options.
29.20 Successors and Assigns
This Agreement shall be binding on and inure to the benefit of the Parties
and their respective legal successors and permitted assigns.
29.21 Publicity and Use of Trademarks or Service Marks
Neither Party nor its subcontractors or agents shall use the other Party's
trademarks, service marks, logos or other proprietary trade dress in any
advertising, press releases, publicity matters or other promotional materials
without such Party's prior written consent.
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29.22 Integrity of BELL ATLANTIC Network
The Parties acknowledge that BA, at its election, may deploy fiber
throughout its network and that such fiber deployment may inhibit or facilitate
Covad's ability to provide service using certain technologies. Notwithstanding
any other provision of this Agreement, BA shall have the right to deploy,
upgrade, migrate and maintain its network at its discretion pursuant to Section
29.15 of this Agreement.
29.23 Merger Conditions
Nothing in this Agreement shall constitute a waiver by Covad of any
rights it may have under the FCC Order in the Application of Bell Atlantic
Corporation, Transferee, For Consent to Transfer control of Bell Atlantic
Corporation and its Subsidiaries, NSD-L-96-10, Memorandum Opinion and Order
(August 14, 1997) ("the FCC Merger Order"). Any such rights under the FCC Merger
Order shall supplement Covad's rights under this Agreement. Upon Covad's
request, Bell Atlantic will provide Covad with the then current Installment
Payment Option outlined in the FCC Merger Order.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this 7th day of October, 1998.
DIECA COMMUNICATIONS, INC. BELL ATLANTIC - MARYLAND, INC.
By: By:
------------------------------- ------------------------------------
Printed: Dhruv Khanna Printed: Jeffrey A. Masoner
------------------------- ------------------------------
Title: Vice President and General Title: Vice President - Interconnection
Counsel Services Policy & Planning
-------------------------- --------------------------------
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SCHEDULE 1.0
CERTAIN TERMS AS DEFINED IN THE ACT AS OF EFFECTIVE DATE
"Affiliate" means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or the equivalent thereof) of more than ten percent (10%).
"Customer Proprietary Network Information" 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; except that such
term does not include subscriber list information.
"Dialing Parity" means that a person that is not an affiliate of a local
exchange carrier is able to provide Telecommunications Services in such a manner
that Customers have the ability to route automatically, without the use of any
access code, their Telecommunications to the Telecommunications Services
provider of the customer's designation from among two (2) or more
Telecommunications Services providers (including such LEC).
"Exchange Access" means the offering of access to Telephone Exchange
Services or facilities for the purpose of the origination or termination of
Telephone Toll Services.
"Incumbent Local Exchange Carrier" means, with respect to an area, the
Local Exchange Carrier, that (A) on the date of enactment of the
Telecommunications Act, provided Telephone Exchange Service in such area, and
(B)(i) on such date of enactment, was deemed to be a member of the exchange
carrier association pursuant to Section 69.601(b) of the FCC's regulations (47
C.F.R. 69.601(b)), or (ii) is a person or entity that, on or after such date of
enactment, became a successor or assign of a member described in clause (i).
"InterLATA" means Telecommunications between a point located in a local
access and transport area and a point located outside such area.
"Local Access and Transport Area" or "LATA" means a contiguous geographic
area: (a) established before the date of enactment of the Act by a Bell
operating company such that no Exchange Area includes points within more than
one (1) metropolitan statistical area, consolidated metropolitan statistical
area, or State, except as expressly permitted under the AT&T Consent Decree; or
(b) established or modified by a Bell operating company after such date of
enactment and approved by the FCC.
"Local Exchange Carrier" means any person that is engaged in the provision
of Telephone
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Exchange Service or Exchange Access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial mobile service under
Section 332(c) of the Act, except to the extent that the FCC finds that such
service should be included in the definition of such term.
"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 and collection or used in the transmission, routing, or other provision
of a Telecommunications Service.
"Number Portability" means the ability of end 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.
"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.
"Telecommunications Carrier" means any provider of Telecommunications
Services, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Communications
Act).
"Telecommunications Service" 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.
"Telephone Exchange Service" means (a) service within a telephone exchange
or within a connected system of telephone exchanges within the same exchange
area operated to furnish subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the exchange
service charge, or (b) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
"Telephone Toll Service" means telephone service between stations in
different exchange areas for which there is made a separate charge not included
in contracts with subscribers for exchange service.
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SCHEDULE 4.5
INTERCONNECTION POINTS FOR DIFFERENT TYPES OF TRAFFIC
Each Party shall provide the other Party with Interconnection to its
network at the following points for transmission, routing and termination. Each
Party shall make available at its Interconnection Points facilities to route the
traffic it receives to the appropriate final destination. Compensation for such
facilities will be as set forth in Exhibit A or as provided elsewhere herein.
1. For the termination of Local Traffic or Toll Traffic originated by one
Party's Customer and terminated to the other Party's Customer, at the points set
forth in subsections 4.2 and/or 4.3 of the main body of the Agreement.
2. For the termination of Meet Point Billing Traffic from an IXC to:
(a) Covad, at the Covad-IP in LATA in which the Traffic is to
terminate.
(b) BA, at the BA-IP in LATA in which the Traffic is to terminate.
3. For the termination of Transit Traffic from an ITC, wireless carrier,
or other CLEC to:
(a) Covad, at the Covad-IP in which the Traffic is to terminate.
(b) BA, at the BA-IP in LATA in which the Traffic is to terminate.
4. For 911/E911 traffic originated on Covad's network, at the PSAP in
areas where only Basic 911 service is available, or at the BA 911 Tandem Office
serving the area in which the Covad Customer is located, in accordance with
applicable state laws and regulations and PSAP requirements.
5. For Directory Assistance (411 or NPA-555-1212) traffic, at the
applicable BA Wire Center or the BA operator services Tandem Office subtended by
such Wire Center.
6. For Operator Services (call completion) traffic, at the applicable BA
Wire Center or the BA operator services Tandem Office subtended by such Wire
Center.
7. For LSV/VCI traffic, at the terminating Party's Wire Center or operator
services Tandem Office subtended by such Wire Center.
8. For SS7 signaling originated by:
(a) Covad, at mutually agreed-upon Signaling Point of
Interconnection(s) ("SPOI") in the LATA in which the Local or Toll Traffic
originates, over CCSAC links provisioned in accordance with Bellcore GR-905 and
Bell Atlantic Supplement Common Channel
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Signaling Network Interface Specification (BA_905).
(b) BA, at mutually agreed-upon SPOIs in the LATA in which the Local
or Toll Traffic originates, over a CCSAC links provisioned in accordance with
Bellcore GR-905 and BA-905.
Alternatively, either Party may elect to interconnect for SS7 signaling through
a commercial SS7 hub provider.
9. For 800/888 database inquiry traffic, at any BA Signaling Transfer
Point in the LATA in which the originating Covad Wire Center is located, over a
CCSAC link. Alternatively, Covad may elect to interconnect through a commercial
SS7 hub provider.
10. For Line Information Database ("LIDB") inquiry traffic, at any BA
Signaling Transfer Point in the LATA in which the LIDB is located, over a CCSAC
link. Alternatively, Covad may elect to interconnect through a commercial SS7
hub provider.
11. For any other type of traffic, at reasonable points to be agreed upon
by the Parties, based on the network architecture of the terminating Party's
network.
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SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE FOR MARYLAND
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
===============================================================================
LATA in Milestone Date
MARYLAND
- -------------------------------------------------------------------------------
LATA ___ LATA Start Date TBD
----------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
----------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
----------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
----------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
----------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
----------------------------------------------------------
SS7 Certification Achieved;(1) TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements
----------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
----------------------------------------------------------
Call-through Testing Completed; TBD
"Interconnection Activation Date"
===============================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in Maryland when Covad has an
effective Tariff for business Telephone Exchange Service in Maryland and a
significant number of Telephone Exchange Service Customer lines in service for
business Telephone Exchange Service Customers in that LATA in Maryland that are
not affiliates or employees of either BA or Covad, and (ii) residential
Telephone Exchange Service shall be considered "fully operational" in a LATA in
Maryland when Covad has an effective Tariff for residential
- --------------------------
(1) SS7 certification scheduling depends on actual schedule availability at time
of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
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Telephone Exchange Service in Maryland and has a significant number of Telephone
Exchange Service Customer lines in service for residential Telephone Exchange
Service Customers in that LATA in Maryland that are not affiliates or employees
of either BA or Covad.
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SCHEDULE 4.0
MARYLAND
COVAD IPs BA IPs
- --------- ------
TBD TBD
<PAGE>
SCHEDULE 6.3
RATE ELEMENTS UNDER MEET POINT BILLING
Interstate Access - Terminating to or originating from COVAD Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
Intrastate Access - Terminating to or originating from COVAD Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
<PAGE>
SCHEDULE 11.3
ACCESS TO NETWORK INTERFACE DEVICE
1. Due to the wide variety of NIDs utilized by BA (based on Customer size
and environmental considerations), Covad may access the Customer's Inside Wire
by any of the following means:
(a) Where an adequate length of Inside Wire is present and
environmental conditions permit, Requesting Carrier may remove the Inside Wire
from BA's NID and connect that wire to Covad's NID;
(b) Enter the Customer access chamber or "side" of "dual chamber"
NID enclosures for the purpose of extending a connecterized or spliced jumper
wire from the Inside Wire through a suitable "punch-out" hole of such NID
enclosures;
(c) Request BA to make other rearrangements to the Inside Wire
terminations or terminal enclosure on a time and materials cost basis to be
charged to the requesting party (i.e., Covad, its agent, the building owner or
the Customer).
2. If Covad accesses the Customer's Inside Wire as described in Paragraph
1(c) above, the Tariffed time and materials charges will be billed to the
requesting party (i.e., Covad, the building owner or the Customer).
3. In no case shall Covad remove or disconnect BA's loop facilities from
BA's NIDs, enclosures, or protectors.
4. In no case shall Covad remove or disconnect ground wires from BA's
NIDs, enclosures, or protectors.
5. In no case shall Covad remove or disconnect NID modules, protectors, or
terminals from BA's NID enclosures.
6. Maintenance and control of premises wiring (Inside Wire) is the
responsibility of the Customer. Any conflicts between service providers for
access to the Customer's Inside Wire must be resolved by the Customer.
7. Due to the wide variety of NID enclosures and outside plant
environments, BA will work with Covad to develop specific procedures to
establish the most effective means of implementing this Schedule 11.3.
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SCHEDULE 11.4
UNBUNDLED SWITCHING ELEMENTS
Local Switching
The unbundled local Switching Elements include line side and trunk side
facilities (e.g. line and trunk side Ports such as analog and ISDN line side
Ports and DS1 trunk side Ports) plus the features, functions, and capabilities
of the switch. It consists of the line-side Port (including connection between a
loop termination and a switch line card, telephone number assignment, basic
intercept, one primary directory listing, presubscription, and access to 911,
operator services, and directory assistance), line and line group features
(including all vertical features and line blocking options that the switch and
its associated deployed switch software is capable of providing and are
currently offered to BA's local exchange customers), usage (including the
connection of lines to lines, lines to trunks, trunks to lines, and trunks to
trunks), and trunk features (including the connection between the trunk
termination and a trunk card).
BA shall offer, as an optional chargeable feature, daily usage tapes.
Covad may request activation or deactivation of features on a per-port basis at
any time, and shall compensate BA for the non-recurring charges associated with
processing the order. Covad may submit a Bona Fide Request for other switch
features and functions that the switch is capable of providing, but which BA
does not currently provide, or for customized routing of traffic other than
operator services and/or directory assistance traffic. BA shall develop and
provide these requested services where technically feasible with the agreement
of Covad to pay the recurring and non-recurring costs of developing, installing,
updating, providing and maintaining these services.
Tandem Switching
The unbundled tandem Switching Element includes trunk-connect facilities,
the basic switching function of connecting trunks to trunks, and the functions
that are centralized in Tandem Switches. Unbundled tandem switching creates a
temporary transmission path between interoffice trunks that are interconnected
at a BA Access Tandem for the purpose of routing a call or calls.
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SCHEDULE 12.3
SUPPORT SERVICES FOR RESALE
1. BA OSS SERVICES
1.1 Definitions
As used in the Schedule 12.3, the following terms shall have the meanings
stated below:
1.1.1 "BA Operations Support Systems" means BA systems for pre-ordering,
ordering, provisioning, maintenance and repair, and billing.
1.1.2 "BA OSS Services" means access to BA Operations Support Systems
functions. The term "BA OSS Services" includes, but is not limited to: (a)
BA's provision of Covad Usage Information to Covad pursuant to Section 1.3
below; and, (b) "BA OSS Information", as defined in Section 1.1.4 below.
1.1.3 "BA OSS Facilities" means any gateways, interfaces, databases,
facilities, equipment, software, or systems, used by BA to provide BA OSS
Services to Covad.
1.1.4 "BA OSS Information" means any information accessed by, or disclosed
or provided to, Covad through or as a part of BA OSS Services. The term
"BA OSS Information" includes, but is not limited to: (a) any Customer
Information related to a BA Customer or a Covad Customer accessed by, or
disclosed or provided to, Covad through or as a part of BA OSS Services;
and, (b) any Covad Usage Information (as defined in Section 1.1.6 below)
accessed by, or disclosed or provided to, Covad.
1.1.5 "BA Retail Telecommunications Service" means any Telecommunications
Service that Bell Atlantic provides at retail to subscribers that are not
Telecommunications Carriers. The term "BA Retail Telecommunications
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. ss. 153(16)) provided by BA.
1.1.6 "Covad Usage Information" means the usage information for a BA
Retail Telecommunications Service purchased by Covad under this Agreement
that BA would record if BA was furnishing such BA Retail
Telecommunications Service to a BA end-user retail Customer.
1.1.7 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
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1.2 BA OSS Services
1.2.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), BA OSS Services.
1.2.2 Subject to the requirements of Applicable Law, BA Operations Support
Systems, BA Operations Support Systems functions, BA OSS Facilities, BA
OSS Information, and the BA OSS Services that will be offered by BA, shall
be as determined by BA. Subject to the requirements of Applicable Law, BA
shall have the right to change BA Operations Support Systems, BA
Operations Support Systems functions, BA OSS Facilities, BA OSS
Information, and the BA OSS Services, from time-to-time, without the
consent of Covad.
1.3 Covad Usage Information
1.3.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), Covad Usage
Information.
1.3.2 Covad Usage Information will be available to Covad through the
following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
1.3.3.1 Covad Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Section 1.3.2(a)
above will be issued each day, Monday through Friday, except holidays
observed by BA.
1.3.4 Except as stated in this Section 1.3, subject to the requirements of
Applicable Law, the manner in which, and the frequency with which, Covad
Usage Information will be provided to Covad shall be determined by BA.
1.5 Access to and Use of BA OSS Facilities
1.5.1 BA OSS Facilities may be accessed and used by Covad only to the
extent necessary for Covad's access to and use of BA OSS Services pursuant
to the Agreement.
1.5.2 BA OSS Facilities may be accessed and used by Covad only to provide
Telecommunications Services to Covad Customers.
1.5.3 Covad shall restrict access to and use of BA OSS Facilities to
Covad. This Schedule 12.3 does not grant to Covad any right or license to
grant sublicenses to other
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persons, or permission to other persons (except Covad's employees, agents
and contractors, in accordance with Section 1.5.7 below), to access or use
BA OSS Facilities.
1.5.4 Covad shall not (a) alter, modify or damage the BA OSS Facilities
(including, but not limited to, BA software), (b) copy, remove, derive,
reverse engineer, or decompile, software from the BA OSS Facilities, or
(c) obtain access through BA OSS Facilities to BA databases, facilities,
equipment, software, or systems, which are not offered for Covad's use
under this Schedule 12.3.
1.5.5 Covad shall comply with all practices and procedures established by
BA for access to and use of BA OSS Facilities (including, but not limited
to, BA practices and procedures with regard to security and use of access
and user identification codes).
1.5.6 All practices and procedures for access to and use of BA OSS
Facilities, and all access and user identification codes for BA OSS
Facilities: (a) shall remain the property of BA; (b) shall be used by
Covad only in connection with Covad's use of BA OSS Facilities permitted
by this Schedule 12.3; (c) shall be treated by Covad as Confidential
Information of BA pursuant to subsection 29.4 of the Agreement; and, (d)
shall be destroyed or returned by Covad to BA upon the earlier of request
by BA or the expiration or termination of the Agreement.
1.5.7 Covad's employees, agents and contractors may access and use BA OSS
Facilities only to the extent necessary for Covad's access to and use of
the BA OSS Facilities permitted by this Agreement. Any access to or use of
BA OSS Facilities by Covad's employees, agents, or contractors, shall be
subject to the provisions of the Agreement, including, but not limited to,
subsection 29.4 thereof and Sections 1.5.6 and 1.6.3.3 of this Schedule
12.3.
1.6 BA OSS Information
1.6.1 Subject to the provisions of this Schedule 12.3 and Applicable Law,
BA grants to Covad a non-exclusive license to use BA OSS Information.
1.6.2 All BA OSS Information shall at all times remain the property of BA.
Except as expressly stated in this Schedule 12.3, Covad shall acquire no
rights in or to any BA OSS Information.
1.6.3.1 The provisions of this Section 1.6.3 shall apply to all BA OSS
Information, except (a) Covad Usage Information, (b) CPNI of Covad, and
(c) CPNI of a BA Customer or a Covad Customer, to the extent the Customer
has authorized Covad to use the Customer Information.
1.6.3.2 BA OSS Information may be accessed and used by Covad only to
provide Telecommunications Services to Covad Customers.
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1.6.3.3 Covad shall treat BA OSS Information that is designated by BA,
through written or electronic notice (including, but not limited to,
through the BA OSS Services), as "Confidential" or "Proprietary" as
Confidential Information of BA pursuant to subsection 29.4 of the
Agreement.
1.6.3.4 Except as expressly stated in this Schedule 12.3, this Agreement
does not grant to Covad any right or license to grant sublicenses to other
persons, or permission to other persons (except Covad's employees, agents
or contractors, in accordance with Section 1.6.3.5 below, to access, use
or disclose BA OSS Information.
1.6.3.5 Covad's employees, agents and contractors may access, use and
disclose BA OSS Information only to the extent necessary for Covad's
access to, and use and disclosure of, BA OSS Information permitted by this
Schedule 12.3. Any access to, or use or disclosure of, BA OSS Information
by Covad's employees, agents or contractors, shall be subject to the
provisions of this Agreement, including, but not limited to, subsection
29.4 of the Agreement and Section 1.6.3.3 above.
1.6.3.6 Covad's license to use BA OSS Information shall expire upon the
earliest of: (a) the time when the BA OSS Information is no longer needed
by Covad to provide Telecommunications Services to Covad Customers; (b)
termination of the license in accordance with this Schedule 12.3; or (c)
expiration or termination of the Agreement.
1.6.3.7 All BA OSS Information received by Covad shall be destroyed or
returned by Covad to BA, upon expiration, suspension or termination of the
license to use such BA OSS Information.
1.6.4 Unless sooner terminated or suspended in accordance with the
Agreement or this Schedule 12.3 (including, but not limited to, subsection
22.3 of the Agreement and Section 1.7.1 above), Covad's access to BA OSS
Information through BA OSS Services shall terminate upon the expiration or
termination of the Agreement.
1.6.5.1 Without in any way limiting subsection 18.3 of the Agreement, BA
shall have the right (but not the obligation) to audit Covad to ascertain
whether Covad is complying with the requirements of Applicable Law and
this Agreement with regard to Covad's access to, and use and disclosure
of, BA OSS Information.
1.6.5.2 Without in any way limiting any other rights BA may have under the
Agreement or Applicable Law, BA shall have the right (but not the
obligation) to monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad pursuant to this Agreement, to
ascertain whether Covad is complying with the requirements of Applicable
Law and this Agreement, with regard to Covad's access to, and use and
disclosure of, such BA OSS Information. The foregoing right shall include,
but not be limited to, the right (but not the obligation) to
electronically monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad through BA OSS Facilities.
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1.6.5.3 Information obtained by BA pursuant to this Section 1.6.5 shall be
treated by BA as Confidential Information of Covad pursuant to subsection
29.4 of the Agreement; provided that, BA shall have the right (but not the
obligation) to use and disclose information obtained by BA pursuant to
this Section 1.6.5 to enforce BA's rights under the Agreement or
Applicable Law.
1.6.6 Covad acknowledges that the BA OSS Information, by its nature, is
updated and corrected on a continuous basis by BA, and therefore that BA
OSS Information is subject to change from time to time.
1.7 Liabilities and Remedies
1.7.1 Any breach by Covad, or Covad's employees, agents or contractors, of
the provisions of Sections 1.5 or 1.6 above shall be deemed a material
breach of the Agreement. In addition, if Covad or an employee, agent or
contractor of Covad at any time breaches a provision of Sections 1.5 or
1.6 above and such breach continues for more than ten (10) days after
written notice thereof from BA, then, except as otherwise required by
Applicable Law, BA shall have the right, upon notice to Covad, to suspend
the license to use BA OSS Information granted by Section 1.6.1 above
and/or the provision of BA OSS Services, in whole or in part.
1.7.2 Covad agrees that BA would be irreparably injured by a breach of
Sections 1.5 or 1.6 above by Covad or the employees, agents or contractors
of Covad, and that BA shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of any
such breach. Such remedies shall not be deemed to be the exclusive
remedies for any such breach, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
1.8 Relation to Applicable Law
The provisions of Sections 1.5, 1.6 and 1.7 above shall be in addition to
and not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. ss. 222, and are not intended to constitute a
waiver by BA of any right with regard to protection of the confidentiality
of the information of BA or BA Customers provided by Applicable Law.
1.9 Cooperation
Covad, at Covad's expense, shall reasonably cooperate with BA in using BA
OSS Services. Such cooperation shall include, but not be limited to, the
following:
1.9.1 Upon request by BA, Covad shall by no later than the fifteenth
(15th) day of each calendar month submit to BA reasonable, good faith
estimates (by central office or other BA office or geographic area
designated by BA) of the volume of each BA Retail
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Telecommunications Service for which Covad anticipates submitting orders
in each week of the next calendar month.
1.9.2 Upon request by BA, Covad shall submit to BA reasonable, good faith
estimates of other types of transactions or use of BA OSS Services that
Covad anticipates.
1.9.3 Covad shall reasonably cooperate with BA in submitting orders for BA
Retail Telecommunications Services and otherwise using the BA OSS
Services, in order to avoid exceeding the capacity or capabilities of such
BA OSS Services.
1.9.4 Covad shall participate in cooperative testing of BA OSS Services
and shall provide assistance to BA in identifying and correcting mistakes,
omissions, interruptions, delays, errors, defects, faults, failures, or
other deficiencies, in BA OSS Services.
1.10 BA Access to Information Related to Covad Customers
1.10.1 BA shall have the right to access, use and disclose information
related to Covad Customers that is in BA's possession (including, but not
limited to, in BA OSS Facilities) to the extent such access, use and/or
disclosure has been authorized by the Covad Customer in the manner
required by Applicable Law.
1.10.2 Upon request by BA, Covad shall negotiate in good faith and enter
into a contract with BA, pursuant to which BA may obtain access to Covad's
operations support systems (including, systems for pre-ordering, ordering,
provisioning, maintenance and repair, and billing) and information
contained in such systems, to permit BA to obtain information related to
Covad Customers (as authorized by the applicable Covad Customer), to
permit Customers to transfer service from one Telecommunications Carrier
to another, and for such other purposes as may be permitted by Applicable
Law.
2. BELL ATLANTIC PRE-OSS SERVICES
2.1 As used in this Schedule 12.3, "BA Pre-OSS Service" means a service
which allows the performance of an activity which is comparable to an
activity to be performed through a BA OSS Service and which BA offers to
provide to Covad prior to, or in lieu of, BA's provision of the BA OSS
Service to Covad. The term "BA Pre-OSS Service" includes, but is not
limited to, the activity of placing orders for BA Retail
Telecommunications Services through a telephone facsimile communication.
2.2 Subject to the requirements of Applicable Law, the BA Pre-OSS Services
that will be offered by BA shall be as determined by BA and BA shall have
the right to change BA Pre-OSS Services, from time-to-time, without the
consent of Covad.
2.3 Subject to the requirements of Applicable Law, the prices for BA
Pre-OSS Services shall be as determined by BA and shall be subject to
change by BA from time-to-time.
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2.4 The provisions of Sections 1.5 through 1.9 above shall also apply to
BA Pre-OSS Services. For the purposes of this Section 2.4: (a) references
in Sections 1.5 through 1.9 above to BA OSS Services shall be deemed to
include BA Pre-OSS Services; and, (b) references in Sections 1.5 through
1.9 above to BA OSS Information shall be deemed to include information
made available to Covad through BA Pre-OSS Services.
3. RATES AND CHARGES
The prices for the foregoing services shall be as set forth in BA's
Tariffs or, in the absence of an applicable BA Tariff price, in Exhibit A
or, if not set forth in either, as may be determined by BA from time to
time. If BA at any time offers another resale support service the prices
for which are not stated in BA's Tariffs or Exhibit A, BA shall have the
right to revise Exhibit A to add such prices.
7
<PAGE>
SCHEDULE 13.4
COLLOCATION: SHARED CAGE ARRANGEMENT
1. Service Description
(A) Shared Cages provide an additional option to Covad for
Interconnection and access to unbundled Network Elements. Shared
Cages refers to an arrangement in which a Collocation node is shared
by two CLECs purusant to terms and conditions agreed to by those
CLECs.
(B) For established collocation nodes, the initial CLEC is the
"Collocator of Record" ("COR"), or "host" collocator; the other
collocator participating in the sharing arrangement is referred to
in this Agreement as the "guest". When two collocators request
establishment of a new Collocation node, to be used as a Shared
Cage, one of the participating CLECs must agree to be the COR and
the other to be the guest. The host collocator is BA's customer, and
has all of the rights and obligations applicable under this
Agreement and the applicable Tariff to CLECs purchasing
Collocation-related services, including, without limitation, the
obligation to pay all applicable charges, whether or not the COR is
reimbursed for all or any portion of such charges by the guest.
Neither this Agreement, nor any actions taken by BA or the COR in
compliance with this Agreement or the applicable Tariff, shall
create a contractual, agency, or any other type of relationship
between BA and the guest collocator in a sharing arrangement; and BA
does not assume any liability or obligation to the guest for any
actions of the COR. The two involved collocators are solely
responsible for determining whether to share a cage, and if so upon
what terms and conditions.
2. Shared Cage Arrangement
(A) The host CLEC must notify BA in writing of its intention to share
its cage space and provide BA with a certificate of insurance from
the guest before the guest occupies the cage.
(B) All orders for Telecommunications Services or unbundled Network
Elements must be placed by or on behalf of the COR. The host and
guest may agree that such orders may be placed by the guest on
behalf of the host, but in such case BA must be provided with an
acceptable Letter of Authorization explicitly authorizing the guest
to place such orders. Where an order is placed by the guest in
conformity with this section BA will send bills for the ordered
services to the guest, and will accept payments from the guest on
the COR's account. Notwithstanding such ordering and billing
arrangements, the obligation to pay BA for such services
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remains exclusively with the COR, regardless of whether the guest
complies with its obligations under its contract with the COR to
make payments to the COR or to BA. BA may pursue any available
rights and remedies against the COR in the event of non-payment,
without first seeking payment from the guest, regardless of whether
the services for which payment is due are being used by the COR or
by the guest.
(C) All terms and conditions for Physical Collocation as described in
applicable Tariffs and in Section 13.0 of this Agreement will apply.
In addition, the following terms and conditions will apply to shared
cages:
(1) The guest must be a CLEC.
(2) The host and guest must each be collocating for the purpose of
interconnecting to BA or accessing BA's unbundled Network
Elements.
(3) In its use of a Shared Cage, the guest must comply with the
same BA rules and regulations and municipal/zoning regulations
as are applicable to the COR.
(4) The COR assumes the responsibility for the guest's violation
of all Tariff regulations and other requirements related to a
Shared Cage arrangement, and will be liable for any damage or
injury to BA caused by the conduct of the guest, to the same
extent as the COR would be liable if it had engaged in such
conduct itself. The COR will also indemnify BA against any
third-party claims resulting from the guest's conduct, to the
same extent as it would be responsible for such
indemnification if it had engaged in such conduct itself.
(5) The host and guest will participate in Method of Procedure
(MOP) meetings detailing the installation work to be performed
by the guest. This shall be completed for all Physical
Collocation equipment installation. The host shall prominently
display the signed MOP at the multiplexing node while any
installation functions are performed.
(6) The host must provide BA's designated representative(s) with a
list of the names of all technicians who will need access to
the Shared Cage for support, maintenance and repair purposes.
The host is responsible for supplying such representative(s)
with the required completed non-employee ID badge application
forms and all appropriate indentification material for its
employees/agents as well as those of the guest.
(7) BA will issue only one identifying cage and POT Bay CLLI code
and provide it to the host. The host will assume connecting
facility assignment (CFA) responsibilities.
(8) All occupancy and specific cage construction communications
(e.g., cage
2
<PAGE>
augments, cage access or deployment requirements) will be
between the host and BA as specified in this Agreement.
(9) The host will remain responsible for all costs associated with
the cage (e.g., cage construction, POT Bay installation). BA
will not split bill any of the rate elements associated with
the Collocation cage between the host and its tenant (e.g.,
recurring square foot charges, power, cable racking).
3
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SCHEDULE 27.2
PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
1. Performance Monitoring Reports
1.1. Subject to the provisions of this Schedule 27.2, BA shall provide to Covad
performance monitoring reports ("Performance Monitoring Reports") for services
and facilities provided by BA. Subject to the provisions of Appendix 1, the
Performance Monitoring Reports will include the measurements set forth in
subsections (a) through (d) of this Section 1.1, to the extent the measurements
set forth in a subsection are applicable to the services set forth in such
subsection: (a) for services provided to BA's retail customers, in the
aggregate, the measurements stated in Appendix 1, Section 6, "Retail"; (b) for
services and facilities provided to any BA local exchange affiliate purchasing
Interconnection,(1) if BA decides to operate a wholesale carrier, the
measurements stated in Appendix 1, Section 2, "Unbundled Network Elements",
Section 3, "Resale", and Section 4, "Network Interconnection Trunks"; (c) for
services and facilities provided to carriers purchasing Interconnection, in the
aggregate, the measurements stated in Appendix 1, Section 1, "OSS", Section 2,
"Unbundled Network Elements", Section 3, "Resale", Section 4, "Network
Interconnection Trunks", and Section 5, "CLEC Billing"; and, (d) for services
and facilities provided to Covad, the measurements stated in Appendix 1, Section
2, "Unbundled Network Elements", Section 3, "Resale", and Section 4, "Network
Interconnection Trunks".(2)
- ----------
(1) As used in this Schedule 27.2, Section 1.1, "Interconnection" includes
interconnection, transport and termination, services for resale, and/or access
to unbundled network elements, under Section 251 of the Act, as amended.
(2) The measurements listed in subsections (b) and (d) do not include Section 2,
"Unbundled Network Elements", Measurement 7, "% Flow Through Orders", and
Section 3, "Resale", Measurement 7, "% Flow Through Orders".
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1.2 The Performance Monitoring Reports shall be provided on a calendar quarter
basis (January through March, April through June, July through September,
October through December) with monthly information detail. The Performance
Monitoring Reports shall be provided within forty-five (45) days after the
completion of each calendar quarter. The first Performance Monitoring Reports
shall cover the calendar quarter of [?], 1998.
2. Performance Metrics, Standards and Remedies
2.1 Appendix 2 sets out performance standards for 21 service quality measurement
items ("Performance Metrics") listed in the Performance Monitoring Reports. BA
shall measure on a calendar quarter basis BA's performance for each Performance
Metric for service provided to Covad.
2.2 If for any calendar quarter BA fails to meet the standard for a Performance
Metric for service provided to Covad, BA will conduct an investigation with
regard to the failure. The investigation will review the validity of the
measurement for the Performance Metric, and, if the measurement is concluded to
be valid, identify the cause of the failure. After identifying the cause of the
failure, BA will take commercially reasonable action to correct the failure
resulting from such cause. Covad shall provide all information and support
reasonably requested by BA in order to enable BA to conduct the investigation
and to correct any failure.
2.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2, above, to the extent the failure to meet the standard
for a Performance Metric is caused by a Delaying Event. As used in this Schedule
27.2, "Delaying Event" means: (a) a failure by Covad to perform any of its
obligations set forth in this Agreement; (b) any delay, act or failure to act by
Covad or a customer, end-user, agent, affiliate, representative, vendor, or
contractor of Covad; (c) any Force Majeure Event
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as defined in Section 28.3; (d) any event, delay, act or failure to act, beyond
the reasonable control of BA; or, (e) such other event, delay, act or failure to
act upon which the Parties may agree. In calculating a Performance Metric, BA
may adjust the performance data to exclude any negative effect upon BA's meeting
the standard for the Performance Metric caused by a Delaying Event. If, pursuant
to this Section 2.3.1, BA adjusts performance data to exclude a negative effect
upon BA's meeting the standard for a Performance Metric caused by a Delaying
Event, BA shall provide to Covad a reasonably detailed description of the
adjustment. If Covad disputes the appropriateness of the adjustment, either
Party may seek resolution of the dispute in accordance with Section 28.11 of the
Agreement.
2.3.2 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric that shows a failure to meet
a performance standard if BA can reasonably show that (a) the measurement for
the Performance Metric does not have a statistically valid basis, or (b) the
data measured for service provided to Covad cannot be validly compared to the
measurement to which Appendix 2 specifies such data is to be compared (e.g., the
measurement for service provided to BA retail customers). If, pursuant to the
preceding sentence of this Section 2.3.2, BA excludes from action under Section
2.2 any Performance Metric, BA shall provide to Covad a reasonably detailed
explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
2.3.3 BA may exclude from consideration in calculating Performance Metrics any
activities where Covad has requested a date due or other performance interval
different from (greater or less than) that which BA provides for its own retail
customers or its other telecommunications carrier customers.
2.3.4 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric where the data for two or
more months in a calendar quarter have been
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<PAGE>
excluded from consideration pursuant to the provisions of this Agreement.
2.4 For each Performance Metric related to UNE or Resale Services that requires
calculation of a percentage, a minimum of 200 items per calendar quarter for the
denominator shall be a prerequisite (e.g., a/200 x 100 = b%). Lack of the
minimum 200 items will result in BA being deemed to have met the standard for
that Performance Metric. For each Performance Metric related to Interconnection
Trunks that requires calculation of a percentage, a minimum of 50 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/50 x 100 =
b%). Lack of the minimum 50 items will result in BA being deemed to have met the
standard for that Performance Metric.
2.5 As used in Appendix 2 for those Performance Metrics where "Parity" is the
standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
3. Performance Measurements, Standards and Remedies
3.1 Appendix 3 sets forth nine (9) performance categories ("Performance
Categories"). Each Performance Category is composed of one or more performance
measurements, which are listed in the left-hand column of each Performance
Category matrix ("Performance Measurements"). Each Performance Category
point-score, when calculated, will be the sum of the point-scores of the
Performance Measurements composing that Performance Category, and may be "0", a
positive number (+1 or higher), or a negative number (-1 or less).
3.2 BA shall measure on a calendar quarter basis BA's performance for each
Performance Measurement for service provided to Covad. No later than sixty (60)
days after the completion of each calendar quarter, BA shall forward to Covad a
statement showing BA's performance for each Performance Measurement for service
provided to Covad and a calculation of each Performance
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<PAGE>
Category point-score ("Performance Statement").
3.3 If for any calendar quarter BA fails to obtain a point-score of "0" or
higher for a Performance Measurement for service provided to Covad, BA will
conduct an investigation with regard to the failure. The investigation will
review the validity of the measurement for the Performance Measurement, and, if
the measurement is concluded to be valid, identify the cause of the failure.
After identifying the cause of the failure, BA will take commercially reasonable
action to correct the failure resulting from such cause. Covad shall provide all
information and support reasonably requested by BA in order to enable BA to
conduct this investigation and to correct any failure to obtain a point-score of
"0" or higher for the Performance Measurement.
3.4.1 Subject to the provisions of this Schedule 27.2 and other applicable
provisions of this Agreement, if the point-score for a Performance Category for
service provided to Covad is a negative number (-1 or less) for two (2)
consecutive calendar quarters, BA shall give a billing credit to Covad in the
amount provided for in Appendix 3 ("Performance Credit"). A Performance Credit
shall be given for the second consecutive calendar quarter and for each
subsequent consecutive calendar quarter for which the point-score for the
Performance Category is a negative number (-1 or less). Each Performance
Statement shall include a statement showing any Performance Credit due to Covad.
Each Performance Credit which is due shall be applied to an appropriate Covad
bill no later than thirty (30) days after the Performance Statement stating that
the Performance Credit is due is delivered to Covad.
3.4.2 If the point-score for a Performance Category for service provided to
Covad is a positive number (+1 or more), BA may use the positive point-score for
that Performance Category to off-set a negative point-score for that Performance
Category for the next calendar quarter.
3.4.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 3.3, or
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to pay a Performance Credit, to the extent the negative point-score for a
Performance Measurement or Performance Category is caused by a Delaying Event,
as defined in Section 2.3.1, above. In calculating a Performance Measurement, BA
may adjust the performance data to exclude any negative effect on BA's meeting
the performance standard for the Performance Measurement caused by a Delaying
Event. If, pursuant to this Section 3.4.3.1, BA adjusts performance data to
exclude a negative effect on BA's meeting the performance standard for a
Performance Measurement caused by a Delaying Event, BA shall provide to Covad a
reasonably detailed description of the adjustment. If Covad disputes the
appropriateness of the adjustment, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.2 BA may exclude from consideration in calculating Performance Category
Point Scores and Performance Credits, and shall not be obligated to take
investigative or corrective action pursuant to Section 3.3 with regard to, any
Performance Measurement that shows a failure to meet a performance standard if
BA can reasonably show that (a) the measurement for the Performance Measurement
does not have a statistically valid basis, or (b) the data measured for service
provided to Covad cannot be validly compared to the measurement to which
Appendix 3 specifies such data is to be compared (e.g., the measurement for
service provided to BA retail customers). If, pursuant to the preceding sentence
of this Section 3.4.3.2, BA excludes from consideration in calculating
Performance Category Point Scores and Performance Credits and from action under
Section 3.3 any Performance Measurement, BA shall provide to Covad a reasonably
detailed explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.3 BA may exclude from consideration in calculating Performance
Measurements any activities
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where Covad has requested a date due or other performance interval different
from (greater or less than) that which BA provides for its own retail customers
or its other telecommunications carrier customers.
3.4.3.4 BA may also exclude from consideration in calculating Performance
Category point-scores and Performance Credits, and shall not be obligated to
take investigative or corrective action pursuant to Section 3.3 with regard to,
any Performance Measurement where the data for two or more months in a calendar
quarter have been excluded from consideration pursuant to the provisions of this
Agreement.
3.4.4 For each Performance Measurement related to OSS, UNE, Resale Services or
Billing, that requires calculation of a percentage, a minimum of 200 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/200 x 100
= b%). Lack of the minimum 200 items will result in BA receiving a "0 Points"
score for that Performance Measurement. For each Performance Measurement related
to Interconnection Trunks that requires calculation of a percentage, a minimum
of 50 items per calendar quarter for the denominator shall be a prerequisite
(e.g., a/50 x 100 = b%). Lack of the minimum 50 items will result in BA
receiving a "0 Points" score for that Performance Measurement.
3.4.5 As used in Appendix 3 for those Performance Measurements where "Parity" is
the standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
4. Notwithstanding anything in this Agreement to the contrary, the Performance
Metrics, Performance Metrics standards, Performance Measurements, Performance
Measurements standards, Performance Categories, and Performance Credits,
provided for in this Schedule 27.2 shall also apply to Covad with regard to OSS,
UNE, Resale Services, Interconnection Trunks,
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and other services and arrangements, purchased by BA from Covad. Covad shall for
OSS, UNE, Resale Services, Interconnection Trunks, and other services and
arrangements, purchased by BA from Covad, provide to BA Performance Monitoring
Reports and Performance Statements similar to those to be provided by BA to
Covad. If Covad fails to meet a standard for a Performance Metric or a
Performance Measurement or incurs a negative point-score on a Performance
Category, Covad shall (a) undertake correction of the failure, to the same
extent as BA would be required to undertake correction of the failure under this
Schedule 27.2, and (b) give Performance Credits to BA, to the same extent as BA
would be required to give Performance Credits to Covad under this Schedule 27.2.
5. Appendix 1 sets out definitions for terms that are used in this Schedule
27.2. Except as clearly stated otherwise in a particular instance, these
definitions apply throughout this Schedule 27.2.
6. Covad agrees that the information contained in the Performance Reports and
the information contained in the Performance Statements is confidential and
proprietary to BA, and shall be used by Covad solely for internal performance
assessment purposes, for purposes of joint Covad and BA assessments of service
performance, and for reporting to the Commission, the FCC, or courts of
competent jurisdiction, under cover of an agreed-upon protective order, for the
sole purpose of enforcing BA's obligations under this Agreement. Covad shall not
otherwise disclose the information contained in the Performance Reports or
Performance Statements to third-persons.
7. BA shall provide Covad with access to the available data and information
necessary for Covad to verify the accuracy of the Performance Monitoring Reports
provided by BA to Covad. Covad agrees that such data and information is
confidential and proprietary to BA and shall be used by Covad solely for the
purpose of verifying the accuracy of the Performance Monitoring Reports. Covad
shall not disclose such data and information to third-persons. BA shall be
obligated to retain data and information for access by Covad under this Section
7 only for the period of time required by Applicable
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Laws.
8. In providing Performance Reports to Covad, providing Performance Statements
to Covad, providing Covad with access to data and information pursuant to
Section 7, above, and otherwise performing its obligations under this Schedule
27.2, BA shall not be obligated, and may decline, to disclose to Covad any
individually identifiable information pertaining to a person other than Covad,
including, but not limited to, any other carrier customer of BA or any retail
customer of BA.
9. The Parties acknowledge that this Schedule 27.2 is intended to implement
obligations of BA under the FCC's Memorandum Opinion and Order in "In the
Applications of NYNEX Corporation, Transferor, and Bell Atlantic Corporation,
Transferee, For Consent to Transfer Control of NYNEX Corporation and Its
Subsidiaries", File No. NSD-L-96-10, Released August 14, 1997. This Schedule
27.2 shall be interpreted and construed in a manner consistent with the FCC's
Memorandum Opinion and Order.
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SCHEDULE 27.2
APPENDIX 1
PERFORMANCE MONITORING REPORTS
1. OSS
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
OSS:
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time: Not Carrier Specific
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and
reservation
- --------------------------------------------------------------------------------
2. Availability of BA interface to OSS access: Not Carrier Specific
- --------------------------------------------------------------------------------
o % Interface Uptime(3)
- --------------------------------------------------------------------------------
- ----------
(3) This Schedule contemplates that measurements will be conducted in connection
with the use and/or operations of various BA systems (including, but not limited
to, ECG, EDI, WebGUI, and BA systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing). The Parties, through good faith
negotiation, shall amend this Schedule from time-to-time as necessary to conform
the Schedule to changes in, discontinuance of, or replacement of, BA systems.
Nothing in this Schedule shall be deemed to prevent BA from changing,
discontinuing or replacing any BA system or any version, issue or edition of a
BA system.
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2. UNBUNDLED NETWORK ELEMENTS ("UNE"):
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
- --------------------------------------------------------------------------------
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
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2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. - Dispatch
o % Missed Installation Appt. - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appt.
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
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2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Trouble Report Rate - Dispatch
o Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt - Dispatch
o % Missed Repair Appt - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Dispatch (Run
Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
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3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials
o Average Response Time - Rejects
o Mechanized (Flow Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
% Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
14
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed -No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
15
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) -
Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair (Run Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
16
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
17
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o a. Average Response Time: Firm Order
Confirmation
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
4. Reject Timeliness Manual Tracking
- --------------------------------------------------------------------------------
o a. Average Response Time: Rejects
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion Manual Tracking
(Requires Serial Number)
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
18
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Network Performance
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Blockage
- --------------------------------------------------------------------------------
19
<PAGE>
5. CLEC BILLING (All Services, Interconnection, UNE and Resale):
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Usage Feed
- --------------------------------------------------------------------------------
o Timeliness of Usage Information
o % Usage in 3 business days
- --------------------------------------------------------------------------------
o % Usage in 4 business days
o % Usage in 5 business days
o % Usage in 8 business days
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Bill Not Carrier Specific
- --------------------------------------------------------------------------------
20
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time:
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and reservation
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
21
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines):
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) - Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate - Total
o Network Trouble Report Rate - Dispatch
o Network Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Total (Run Clock)
o Mean Time to Repair - Dispatch (Run Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
22
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Trunks
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered FGD
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed FGD
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons) FGD
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities FGD
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days FGD
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate FGD
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock) FGD
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours FGD
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days FGD
- --------------------------------------------------------------------------------
19. % Common Final Trunk Blockage
- --------------------------------------------------------------------------------
23
<PAGE>
DEFINITIONS
The following definitions apply to the terms used in this Schedule 27.2.
Product Definitions:
- --------------------------------------------------------------------------------
Products: Definition:
- --------------------------------------------------------------------------------
o POTS services Retail and Resale POTS includes all non-designed
lines/circuits that originate at a customer's
premise and terminate on an OE (switch Office
Equipment). All others are considered specials.
POTS includes Centrex, Basic ISDN and PBX trunks.
- --------------------------------------------------------------------------------
UNE POTS includes Basic 2-Wire Analog Loop,
Customer specified signaling loops, Analog Line
Port, and Interim Number Portability. Includes
both new loops and "coordinated cutover" loop
orders. "Coordinated cutover" loops are orders
where a live customer is converted to a CLEC
re-using the outside plant facilities.
Coordination of all parties is necessary to
minimize disruption of service to the end user.
- --------------------------------------------------------------------------------
o Special Services Special Services ("Specials") are services or
elements that require design intervention. These
include such services/elements as: high capacity
services (DS1 or DS3), Primary rate ISDN, digital
services, private lines, multiplexing, and
Interoffice Facilities.
- --------------------------------------------------------------------------------
o Interconnection Trunks Includes switched local interconnection (message)
trunks carrying traffic between BA and CLEC
offices. Includes End Office and Tandem trunks.
- --------------------------------------------------------------------------------
o Number of Installation Total number of "N", "T", or "C" type orders.
Orders These orders include new orders, orders where the
service is moving to a different location, or
changes for existing service.
- --------------------------------------------------------------------------------
24
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Pre-Ordering: .
- --------------------------------------------------------------------------------
1. Response Time: Note: All Pre-Order measures are reported on an
aggregated basis and are not CLEC specific. Where
BA uses an access platform and Operations Support
System (OSS) that serve multiple states, BA may
combine measurement data from those states for
this measurement.
"Response time" is defined as the time, in
seconds, that elapses from issuance of a query
request to receipt of a response. For CLECs, this
performance is measured at the ECG access
platform. For BA, this performance is measured
directly to and from the Operations Support System
(OSS). (This measurement does not apply to the
WebGUI interface.)
Methodology: BA to sample ten (10) transactions
per hour per transaction type, for each interface,
from Monday to Friday, 8 a.m. to 5 p.m., via
Sentinel system. Sentinel will replicate the
transaction of a BA service representative going
directly to the OSS as well as a CLEC
representative going to the OSS through ECG.
- --------------------------------------------------------------------------------
o Customer Service Record Customer Service Records can range from 1 to about
200 pages.
BA may combine measurement data for PA and DE for
this measurement.
BA may combine measurement data for DC, MD, VA and
WV for this measurement.
- --------------------------------------------------------------------------------
o Other Pre-Order Includes the average response time for the
aggregate performance of the following: (1) due
date availability; (2) address validation; (3)
product & service availability; and, (4) telephone
number availability/reservation.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, WV) for this
measurement.
- --------------------------------------------------------------------------------
25
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
2. OSS Interface Note: All Pre-Order measures are reported on an
Availability aggregated basis and are not CLEC specific. Where
BA uses an access platform that serves multiple
states, BA may combine measurement data from those
states for this measurement.
Measures the percentage of time the OSS interface
is available compared to scheduled availability.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, (%) WV) for this
measurement.
- --------------------------------------------------------------------------------
Ordering:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Mechanized WebGUI4 receipt of a valid order request to EDI or
Orders WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that
flow-through to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Manual Orders WebGUI receipt of a valid order request to EDI or
WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of a
valid Access Service Request ("ASR") to
distribution of a Firm Order Confirmation ("FOC").
Hours exclude weekends and holidays. Includes
orders for less than 96 trunks for which
facilities are available. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
- ----------
(4) As of the effective date of this Agreement, BA's WebGUI may not be fully
available for use in the BA-South states (DE, DC, MD, NJ, PA, VA, WV).
Accordingly, references in this Schedule 27.2 to BA's WebGUI are to BA's WebGUI
when and to the extent it is available for use by [CLEC].
26
<PAGE>
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the Firm
Order Confirmations are sent more than ten (10)
days after receipt of a valid ASR. Days exclude
weekends and holidays. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
27
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
4. Reject Notice Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Mechanized WebGUI receipt of an order request to EDI or
WebGUI distribution of reject or query. Hours
exclude weekends and holidays. Includes orders
received via EDI or WebGUI that flow-through to
legacy OSS ordering and provisioning systems. Does
not include orders with negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Manual WebGUI receipt of a service request to EDI or
WebGUI distribution of reject or query. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of an
Access Service Request ("ASR") to distribution of
a reject or query. Hours exclude weekends and
holidays. Includes orders for less than 96 trunks
for which facilities are available. All ASRs must
be electronically transmitted for measurement to
apply. Does not include orders with negotiated
intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the
reject or query is sent more than 10 days after
receipt of an ASR. Days exclude weekends and
holidays. All ASRs must be electronically
transmitted for measurement to apply. Does not
include orders with negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
28
<PAGE>
- --------------------------------------------------------------------------------
5. % Rejects The percent of total orders received that are
rejected or queried by BA.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
6. Timeliness of Completion The average interval (in days) from work
Notification completion to the distribution of the order
completion notification. Under the current
process: UNE non-loop and Resale order completion
notifications are transmitted either
electronically via EDI or WebGUI or via FAX; for
UNE loop orders, measurement is from the turnover
of the loop to telephonic acceptance by the CLEC;
and, for Interconnection Trunks, measurement is
from work completion to telephonic acceptance by
the CLEC at turn-up. Does not include orders with
negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
7. % Flow Through Orders The percentage of valid orders received via EDI or
WebGUI and processed directly to legacy service
order processor without manual intervention.
Flow-Through measurements are reported on an
aggregated basis and not on a CLEC specific basis.
Where BA uses an access platform and OSS that
serve multiple states, BA may combine measurement
data from those states for this measurement.
- --------------------------------------------------------------------------------
Provisioning:
- --------------------------------------------------------------------------------
8. Average Interval - Average number of business days between order
Offered application date and committed due date. The
application date is the date that a valid service
request is received. For orders received after 12
Noon Eastern Time the next business day is
considered the application date. Includes "W"
coded orders only. Does not include an order with
a due date that is beyond the standard available
appointment interval. Does not include coordinated
cut-over orders.
- --------------------------------------------------------------------------------
29
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
9. Average Interval - Average number of business days between order
Completed application date and actual work completion date.
The application date is the date that a valid
service request is received. Completion date is
the field completion date noted on the Service
Order. Includes "W" coded orders only. Orders
completed late due to a CLEC or CLEC end user
caused delay are excluded from this performance
measure. Does not include an order with a due date
that is beyond the standard available appointment
interval.
- --------------------------------------------------------------------------------
10. % Completed within For POTS orders of 1 to 5 lines. The percentage of
5 business days - Total orders completed in 5 business days between order
application date and actual work completion date.
The application date is the date that a valid
service request is received. Includes "W" coded
orders only. Orders completed late due to a CLEC
or CLEC end user caused delay are excluded from
this performance measure. Does not include an
order with a due date that is beyond the standard
available appointment interval. Does not include
coordinated cut-over orders, such as loop or
number portability orders.
- --------------------------------------------------------------------------------
11. % Missed Installation Percentage of all orders completed for which there
Appointment - BA - Total was a missed installation appointment caused by
BA. Excludes missed installation appointments
caused by CLEC or end user, including required
access not available during appointment interval.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require the
Appointment - Dispatch assignment of loop facilities, switching
office equipment, or both.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require
Appointment - No switching translations work only. These
Dispatch are primarily "feature orders".
- --------------------------------------------------------------------------------
12. % Missed Installation Percentage of all orders completed for which there
Appointment - Facilities was a missed installation appointment due to lack
of BA facilities.
- --------------------------------------------------------------------------------
30
<PAGE>
- --------------------------------------------------------------------------------
13. % Installation Troubles Percentage of lines/circuits/trunks ordered for
within 30 Days which a Network Trouble (Disposition Codes, 3, 4
and 5) is reported and found within 30 days of
order completion. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), and troubles closed due to
customer action. Trouble reports on unregulated
services, such as Voice Messaging, are excluded.
- --------------------------------------------------------------------------------
31
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Maintenance:
- --------------------------------------------------------------------------------
14. Network Trouble Report Total Initial Customer direct or referred Troubles
Rate reported on services by customer, where the
trouble disposition was found to be a network
problem (Disposition Codes 3, 4 and 5), per 100
lines/circuits/trunks in service. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Codes 3 (Drop Wire) and
Dispatch 4 (Outside Plant) only. Troubles found to be in
the Outside Plant facilities.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Code 5 (Central Office)
No Dispatch only. Troubles found to be within the Central
Office, including translation troubles.
- --------------------------------------------------------------------------------
15. % Missed Repair The percentage of Initial Network Trouble Reports
Appointments (Disposition Codes 3, 4 and 5) that are not
repaired and cleared by the time committed.
Excludes subsequent reports (additional customer
calls while the trouble is pending), Customer
Provided Equipment (CPE) troubles, troubles
reported but not found (Found OK and Test OK), and
troubles closed due to customer action. Also
excludes missed repair appointments caused by CLEC
or end user, including required access not
available during appointment interval. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch was
Appointment - Dispatch required outside of the BA Central Office and the
trouble was found in Outside Plant (Disposition
Codes 3 and 4). Troubles where there was both an
inside and an outside dispatch are included if the
final resolution was a loop trouble.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch may
Appointment - No have been required outside of the BA Central
Dispatch Office, but the trouble was resolved within the
Central Office. Includes translation type troubles
as well as Central Office type troubles.
- --------------------------------------------------------------------------------
32
<PAGE>
- --------------------------------------------------------------------------------
16. Mean Time to Repair For Initial Customer Trouble Reports found to be
network troubles (Disposition Codes 3, 4 and 5),
the average duration time from trouble receipt to
trouble clearance. Running clock for POTS
troubles. Stop Clock for Specials troubles and
Interconnection Trunk troubles. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
17. % Out of Service Network troubles (Disposition Codes 3, 4 and 5)
[greater than] 24 Hours out of service, repaired and cleared more than 24
hours after receipt of a customer trouble report,
as a percentage of total network troubles
(Disposition Codes 3, 4 and 5) out of service. Out
of Service means that there is no dial tone, the
customer cannot call out, or the customer cannot
be called. The Out of Service period commences
when the trouble is entered into BA's designated
trouble reporting interface either directly by the
CLEC or by a BA representative upon notification
by the CLEC. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), troubles closed due to customer
action, and troubles not out of service. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
Key Service Quality Measurement Definitions:
33
<PAGE>
- --------------------------------------------------------------------------------
18. % Repeat Trouble The percentage of network troubles (Disposition
Reports within 30 days Codes 3, 4 and 5) cleared that have an additional
trouble within thirty (30) days for which a
network trouble (Disposition Codes 3, 4 and 5) is
found. A "Repeat Trouble Report" is a trouble on
the same line/circuit/trunk as a previous trouble
reported within the last thirty (30) calendar
days. A trouble report is not treated as a "Repeat
Trouble Report" where the original trouble report
was: trouble that had an originating disposition
code of CPE (customer premises
equipment--disposition codes 12 and 13); trouble
that had an originating disposition code of
Customer Action (disposition code 6); or, trouble
that originally closed as a Front End Close-Out. A
trouble report is also not treated as a "Repeat
Trouble Report" where the repeat report is: a
subsequent report (an additional customer call
while the trouble is pending); customer provided
equipment (CPE) trouble; trouble reported but not
found (Found OK and Test OK); or, trouble closed
due to customer action.
- --------------------------------------------------------------------------------
Network Performance:
- --------------------------------------------------------------------------------
19. % Common Final Trunk Measures the percentage of BA Common Final Trunk
Blockage Groups that exceed the applicable blocking design
threshold (either B.01 or B.005).
Common Final Trunks: Common Final Trunks carry
local traffic between BA end offices and the BA
Tandem and between BA end offices.
Does not include Common Final Trunks carrying only
IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA trunk
groups exceeding the applicable blocking design
threshold (either B.01 or B.005) will be reported.
For B.01 design, this is trunk groups exceeding a
threshold of about 3% blocking. For B.005 design,
this is trunk groups exceeding a threshold of
about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
- --------------------------------------------------------------------------------
34
<PAGE>
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Measures the percentage of BA Dedicated Final
Blockage Trunk Groups that exceed the applicable blocking
design threshold (either B.01 or B.005).
Dedicated Final Trunks: Dedicated final trunk
groups carry local traffic from a BA Access Tandem
to a CLEC switch. A dedicated final trunk group
does not overflow.
Does not include IXC dedicated trunks or Dedicated
Final Trunks carrying only IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA to CLEC
dedicated final trunk groups exceeding the
applicable blocking design (either B.01 or B.005)
will be reported. For B.01 design, this is trunk
groups exceeding a threshold of about 3% blocking.
For B.005 design, this is trunk groups exceeding a
threshold of about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
35
<PAGE>
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Measures the number of business days from the
Usage Feed creation of the message to the date that the usage
information is made available to the CLEC on the
daily usage feed. Measured in percentage of usage
records available for transmission in 3, 4, 5, and
8 business days. The measurement includes both UNE
and Resale.
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Measures the percentage of carrier bills ready for
Bill distribution to the carriers within 10 business
days of the bill date. Includes mechanized and
paper carrier CABS bills for both carrier access
and CLECs. Does not include summary bills sent
from CRIS. This is an aggregate measurement and
not CLEC specific.
- --------------------------------------------------------------------------------
36
<PAGE>
SCHEDULE 27.2
APPENDIX 2
PERFORMANCE METRICS, STANDARDS AND REMEDIES
A. Unbundled Network Elements
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(UNE KSQM 13)(5) Parity
- ----------
(5) "(UNE KSQM 13)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Metric.
37
<PAGE>
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(UNE KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair - Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair - No Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
B. Resale Services
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - No Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (Specials)
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - No Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
38
<PAGE>
- --------------------------------------------------------------------------------
Average Interval Completed (Specials)
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair (POTS)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
C. Interconnection Trunks
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
FOC Timeliness [greater than or equal
(Network Interconnection Trunks {"IT"} KSQM 3.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Rejects Timeliness [greater than or equal
(IT KSQM 4.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Average Interval Offered
(IT KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed
(IT KSQM 9) Parity
- --------------------------------------------------------------------------------
D. Network Performance
1. Final Trunk Group Blocking
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Dedicated Final Trunk Group Blockage (CLEC Trunks) Standard, as
(IT KSQM 20) applicable)
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Common Final Trunk Group Blockage (Retail Trunks) Standard, as
(IT KSQM 19) applicable)
- --------------------------------------------------------------------------------
39
<PAGE>
Parity
"Parity" will be determined in accordance with the statistical methodology set
forth in Appendix 4, "Statistical Methodology for Determining 'Parity' Range".
"Parity" for UNE and Resale Services will be based upon a comparison of BA's
performance for the above Performance Metrics with BA's performance for the
appropriate corresponding Retail measurements set forth in Appendix 1, or, in
the absence of appropriate corresponding Retail measurements set forth in
Appendix 1, Retail measurements as reasonably determined and provided by BA.
Definitions, Conditions, Requirements & Exclusions for Appendix 2
See, "UNE Definitions, Conditions, Requirements & Exclusions", "Resale
Definitions, Conditions, Requirements & Exclusions", "Interconnection Trunk
Definitions, Conditions, Requirements & Exclusions", and "Billing Definitions,
Conditions, Requirements & Exclusions", in Appendix 3, which are incorporated
here by reference. As used in this Appendix 2, references to Performance
Measurements in "UNE Definitions, Conditions, Requirements & Exclusions",
"Resale Definitions, Conditions, Requirements & Exclusions", "Interconnection
Trunk Definitions, Conditions, Requirements & Exclusions", and "Billing
Definitions, Conditions, Requirements & Exclusions", in Appendix 3, shall be
deemed to be references to Performance Metrics.
Resale Services
1. Ordering and Provisioning. Average Interval Offered and Average Interval
Completed Performance Measurements do not include orders with negotiated
intervals.
Interconnection Trunks
1. FOC and Rejects measurements apply only to electronically received ASRs.
2. FOC and Rejects measurements apply only to additions to existing trunk
groups, adding less than 96 trunks, with no routing or translations changes.
3. Average Interval Offered measurement comparison is to IXC Feature Group D
switched access trunks provided by BA to IXCs.
4. Average Interval Offered measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
5. Average Interval Completed comparison is to IXC Feature Group D switched
access trunks provided by BA to IXCs.
6. Average Interval Completed measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
40
<PAGE>
SCHEDULE 27.2
APPENDIX 3
PERFORMANCE MEASURMENTS, STANDARDS AND REMEDIES
A. Operational Support Systems
1. Performance Category 1 -- OSS Pre-Order Response Time and Availability
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Customer Service [greater than] 7.0 to 8.5 [less than]
Records 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.a)(6) difference difference difference
- -------------------------------------------------------------------------------------
</TABLE>
- ----------
(6) "(OSS KSQM 1)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Measurement.
41
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Aggregated Other [greater than] 7.0 to 8.5 [less than]
Pre-Order Transactions 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.b) difference difference difference
- -------------------------------------------------------------------------------------
Access Platform Availability (1) [less than] 99 % [greater than
(OSS KSQM 2) Availability or equal to] 99%
Availability
- -------------------------------------------------------------------------------------
</TABLE>
(1) Excludes (a) scheduled maintenance and (b) unavailability of Operations
Support Systems (e.g., BOSS, Livewire) other than the access platform.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 to -2 points = 1 % of OSS Charges for the Measured Calendar Quarter
-3 points = 2 % of OSS Charges for the Measured Calendar Quarter
42
<PAGE>
OSS Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Response Time:
1. Performance Measurements and Performance Credits apply only to use of the ECG
gateway or such successor OSS gateway as shall be implemented and designated for
measurement under this Performance Category by BA.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
3. Performance Measurements apply only to CSR Retrieval and Aggregated Other
Pre-Order Transactions. Aggregated Other Pre-Order Transactions will initially
include Telephone Number Availability and Reservation, and Address Validation.
Product & Service Availability Information and Due Date Availability will be
added in the future.
4. Covad shall provide to BA forecasts of volumes at least six (6) months prior
to the commencement of the measured calendar quarter. Forecasts for UNE and
Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. Forecasts for Interconnection Trunk volumes (including both number of
orders to be submitted and number of items of service to be ordered) shall be
submitted by Covad either (a) for each month or (b) for each quarter, in which
case the quarterly volume will be pro-rated to a monthly volume. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in timely submitted forecasts by more than 15%
(plus or minus), BA may exclude that month from consideration in calculating
Performance Measurements and Performance Credits and determining whether BA is
obligated to take investigative or corrective action under Section 3.3. If Covad
fails to timely provide the forecasts of volumes to BA, BA may exclude
Performance Category 1 and the Performance Measurements in Category 1 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(7)
- ----------
(7) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
43
<PAGE>
all transactions for that day will be deemed to have at least met "Equals
Standard" ("O" Points).
6. These Performance Measurements are not carrier specific.
Access Platform Availability:
1. This Performance Measurement is not carrier specific. This Performance
Measurement measures the overall availability performance of the OSS access
platform and is not service or function specific.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
44
<PAGE>
B. Unbundled Network Elements:
1. Performance Category 2 - UNE Ordering and Provisioning: (8)
- ----------
(8) "Performance Category 2 - UNE Ordering and Provisioning" does not include
measurement of Provisioning (measurement of Missed Installation Appointments)
for new 2 - Wire ISDN Digital Grade ULLs (BRI ISDN).
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order confirmation
(1) Orders received after 12:00 Noon Eastern Time shall have the "clock" start
at 8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 to -3 points = 5 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -4 to -5 points = 10 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -6 to -7 points = 15 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
45
<PAGE>
(1) Missed Installation Factor = (Missed Installation Appointments for UNE POTS
and Specials provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for UNE POTS and Specials provided by BA
to Covad for the measured calendar quarter) - (Missed Installation Appointments
for POTS and Specials provided by BA to BA retail customers for the measured
calendar quarter as a percentage of Installation Appointments for POTS and
Specials provided by BA to BA retail customers for the measured calendar
quarter).
If more than 10% of Covad's orders are rejected or queried by BA, (9) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
- ----------
(9) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
46
<PAGE>
2. Category 3 - Provisioning of 2-Wire ISDN Digital Grade ULLs (BRI ISDN) (10)
This section applies to missed installation appointments for orders of new(11)
2-Wire ISDN Digital Grade ULLs (BRI ISDN) as described in Section 11.2.3 of this
Agreement.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - No Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding BA
retail measurements for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN).
- ----------
(10) BA is currently developing the means to perform the Performance
Measurements listed in this Category 3. BA will take commercially reasonable
efforts to implement performance of these Performance Measurements within a
reasonable period of time. Until BA has implemented its performance of the
Performance Measurements listed in this Performance Category 3, Performance
Category 3 will not apply and BA will not have an obligation to take
investigative or corrective action pursuant to Section 3.3 with regard to the
Performance Measurements listed in Category 3 or to calculate or provide
Performance Credits pursuant to Category 3.
(11) This section does not apply to the cutover of existing 2-Wire ISDN Digital
Grade loops from BA to Covad.
47
<PAGE>
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 point = 2.5 % of Non-Recurring Charges for orders of new 2-Wire
ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
-2 = 5 % of Non-Recurring Charges for orders of new 2-Wire ISDN
Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for orders of
new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter as a percentage of Installation Appointments for
orders of new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad
for the measured calendar quarter) - (Missed Installation Appointments for
orders of new 2-Wire ISDN Digital Grade lines (BRI ISDN) provided by BA to BA
retail customers for the measured calendar quarter as a percentage of
Installation Appointments for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN) provided by BA to BA retail customers for the measured calendar quarter).
48
<PAGE>
3. Performance Category 4 - UNE Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(UNE KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 2 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-2 points = 4 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-3 points = 6 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
(1) Lines Out of Service Factor = (Percentage of Covad UNE POTS and Specials
lines network troubles out of service [greater than] 24 hours - Percentage of BA
retail customer POTS and Specials lines network troubles out of service [greater
than] 24 hours) x (Covad UNE POTS and Specials lines with network troubles out
of service [greater than] 24 hours, as a percentage of the measured calendar
quarter average total Covad UNE POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair/maintenance function, mutual responsibilities exist. The
responsibility for testing unbundled loops and the identification of a required
dispatch for UNE reside with Covad. Reductions
49
<PAGE>
will be made in the Performance Credit if necessary access is not available, or
if a dispatch is made and no trouble is found,(12) or if trouble is found to be
on the Covad customer's side of the network demarcation point (e.g., in premises
wiring or customer premises equipment), at a statistically higher rate than BA
experiences for BA's own retail customers.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
% No Access Moderate to Parity (1) Moderate to
High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
% Found OK or Trouble Found on Moderate to Parity (1) Moderate to
Customer Premises High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(12) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
50
<PAGE>
UNE Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Unbundled Switching Network Elements are included for measurement after the
establishment of unbundled switching in the switch through the joint
planning/services establishment process.
2. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all UNE
ordering which can be performed via EDI; or, (b) BA's WebGUI is in place and
being used by Covad for all UNE ordering which can be performed via BA's WebGUI.
Covad must implement later specifications of EDI and later versions of WebGUI
within 90 days (or such other shorter period as may be required by this
Agreement) after BA has made them available for Covad's use.
3. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
4. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(13) all
transactions for that day will be deemed to have at least met "Equals Standard"
("O" Points).
- ----------
(13) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
51
<PAGE>
5. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(14) or Covad's customers (including, but not limited to, inability to
access customer interfaces and terminals).
2. If the Expedited Due Dates(15) for UNEs covered by Performance Category 2 for
any one month in a measured calendar quarter exceed 10% of the total
appointments for such UNEs for that month, BA will not be obligated to calculate
Performance Category 2 for that month, or the Performance Measurements in
Performance Category 2 for that month, and may exclude Performance Category 2
for that month, and the Performance Measurements in Performance Category 2 for
that month, from calculation of Performance Credits and from taking
investigative and corrective action under Section 3.3.
If the Expedited Due Dates for UNEs covered by Performance Category 3 for any
one month in a measured calendar quarter exceed 10% of the total appointments
for such UNEs for that month, BA will not be obligated to calculate Performance
Category 3 for that month, or the Performance Measurements in Performance
Category 3 for that month, and may exclude Performance Category 3 for that
month, and the Performance Measurements in Performance Category 3 for that
month, from calculation of Performance Credits and from taking investigative and
corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
a. Loop Orders:
(i) ANI to Covad telephone number, verification successful from
DEMARC by BA field technician.
(ii) All order information submitted by Covad was valid, accurate
and complete (e.g., street address, end user local contact (LCON),
floor/unit number, appropriate Covad transmission equipment
assignment information).
(iii) Covad and Covad's customer were available and ready for
service at appointed date and time.
(iv) Verifiable Covad dial tone and correct Covad telephone number
at POT bay testable by BA technician, by 8:00 a.m. on the date due
minus one (1) day.
- ----------
(14) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(15) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
52
<PAGE>
(v) Accurate account and end user information was submitted on the
service request.
(vi) Orders were completed as submitted without cancellation after
Order Confirmation.
(vii) Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
(viii) For ISDN loops, copper ISDN loops are available that, without
conditioning, meet BA's technical specifications for ISDN loops.
4. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude the
Missed Installation Appointments Performance Measurements for that month from
the calculation of calendar quarter Performance Measurements and Performance
Credits.
6. Performance Measurement calculations for provisioning will exclude UNEs
provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. UNE loops that meet the standards identified in appropriate BA unbundled loop
Technical References will not be treated as Out of Service.
4. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
53
<PAGE>
5. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
54
<PAGE>
C. Resale Services:
1. Performance Category 5 - Resale Services Ordering and Provisioning:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order Confirmation
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- -1 to -3 points = 5 % of Resale Services Non-Recurring Charges for Covad for the
measured calendar quarter multiplied by the Missed Installation Factor(1)
-4 to -5 points = 10 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
55
<PAGE>
-6 to -7 points = 15 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for Resale
Services provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for Resale Services provided by BA to
Covad for the measured calendar quarter) - (Missed Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter as a percentage of Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter).
If more than 10% of Covad's orders are rejected or queried by BA,(16) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
2. Performance Category 6 - Resale Services Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(Resale KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding
Retail measurements set forth in Appendix 1, or, in the absence of appropriate
corresponding Retail measurements set forth in Appendix 1, Retail measurements
to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- ----------
(16) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
56
<PAGE>
-1 point = 2 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -2 points = 4 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -3 points = 6 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
(1) Lines Out of Service Factor = (Percentage of Covad Resale Services POTS and
Specials lines network troubles out of service [greater than] 24 hours -
Percentage of BA retail customer POTS and Specials lines network troubles out of
service [greater than] 24 hours) x (Covad Resale Services POTS and Specials
lines with network troubles out of service [greater than] 24 hours, as a
percentage of the measured calendar quarter average total Covad Resale Services
POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair function, mutual responsibilities exist. The responsibility for
authorizing a dispatch resides with Covad. Reductions will be made in the
Performance Credit if necessary access is not available, or if a dispatch is
made and no trouble is found,17 or if trouble is found to be on the Covad
customer's side of the network demarcation point (e.g., in premises wiring or
customer premises equipment), at a statistically higher rate than the same
performance that BA experiences for BA's own retail customers.
- --------------------------------------------------------------------------------
Equals
Measurement Misses Standard Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
% No Access Rate Moderate to High Parity (1) Moderate to High
probability less than probability better
Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
% Found OK or Trouble Moderate to High Parity (1) Moderate to High
Found on Customer probability less than probability better
Premises Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(17) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
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<PAGE>
Resale Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all Resale
Services ordering which can be performed via EDI; or, (b) BA's WebGUI is in
place and being used by Covad for all Resale Services ordering which can be
performed via BA's WebGUI. Covad must implement later specifications of EDI and
later versions of WebGUI within 90 days (or such other shorter period as may be
required by this Agreement) after BA has made them available for Covad's use.
2. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
3. When Covad submitted work load for any one hour in a day is more than twice
(2x) the daily average hour Covad submitted work load,(18) all transactions for
that day will be deemed to have at least met "Equals Standard" ("O" Points).
4. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
- ----------
(18) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
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<PAGE>
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(19) or Covad's customers (including, but not limited to, inability to
access interfaces and terminals).
2. If the Expedited Due Dates(20) for any one month in a measured calendar
quarter exceed 10% of the total appointments for that month, BA will not be
obligated to calculate Performance Category 5 for that month, or the Performance
Measurements in Performance Category 5 for that month, and may exclude
Performance Category 5 for that month, and the Performance Measurements in
Performance Category 5 for that month, from calculation of Performance Credits
and from taking investigative or corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
(a) All order information submitted by Covad was valid (e.g., street
address, end user local contact (LCON), Floor/unit number).
(b) Covad and Covad's customer were available and ready for service at the
appointed date and time. Access to Terminal Equipment was available.
(c) Accurate account and customer information was submitted by Covad.
(d) Orders were completed as submitted without cancellation after Order
Confirmation.
(e) Covad and Covad's customer were available for testing and cooperative
coordination as requested by BA.
4. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude
Missed Installation Appointment Performance Measurements for that month from the
calculation of calendar quarter Performance Measurements and Performance
Credits.
- ----------
(19) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(20) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
59
<PAGE>
6. Performance Measurement calculations for provisioning will exclude Resale
Services provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
4. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
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<PAGE>
D. Interconnection Trunks
1. Performance Category 7 - Interconnection Trunk Provisioning
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
-1 Point 0 Points + 1 Point
- --------------------------------------------------------------------------------
Provisioning - Missed Moderate to Parity(2) Moderate to
Installation Appointments(1) High High
(IT KSQM 11) probability probability
less than better than
Parity(2) Parity(2)
- --------------------------------------------------------------------------------
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score Credit Applied to
----- ------ ----------
0 or greater No Performance Credits
-1 point 10 % Trunk Non-Recurring Charges for
Covad for the measured calendar
quarter
multiplied by the Missed
Installation Factor(3)
(3) Missed Installation Factor = (Missed Covad Trunk Installation Appointments
for the measured calendar quarter as a percentage of Covad Trunk Installation
Appointments for the measured calendar quarter) - (Missed Installation
Appointments for BA IXC Feature Group D Trunks for the measured calendar quarter
as a percentage of BA IXC Feature Group D Trunk Installation Appointments for
the measured calendar quarter).
Adjustment of Performance Credit:
In the provisioning function, mutual responsibilities exist. In addition to
trunks provided by BA to Covad, Covad will provide trunks to BA. If the
percentage of Missed Appointments for trunks ordered by BA from Covad exceeds
the percentage of missed appointments for trunks ordered by Covad from BA
performance, the Performance Credit will be reduced as stated below. (The
percentage missed appointment calculation comparison requires a minimum sample
size of 50 trunks on both sides to be valid.) Covad shall maintain due date
intervals for trunks to be provided by Covad to BA that are no
61
<PAGE>
longer than BA's due date intervals for comparable trunks.
Trunks Ordered by BA from Covad
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Measurement 100% reduction in Credit 50% Reduction in Credit
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Provisioning of Trunks for BA by Covad - Missed [greater than] 5 percentage points [greater than] 2 but [less than
Installation Appointments: worse than BA Performance or equal to] 5 percentage points
worse than BA Performance
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
2. Performance Category 8 - Interconnection Trunk Maintenance and Repair
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Performance Misses Standard Equals Standard Exceeds Standard
Measurement - 1 point 0 points + 1 point
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Out of Service [greater than] 24 Hours Moderate to High Parity(1) Moderate to High
(IT KSQM 17) probability less than probability better
Parity(1) than Parity(1)
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score % Credit Applied to
----- -------- ----------
0 or greater No Performance Credits
-1 point $ 1.00 Per DS1 Trunk per Day out Lines Out of Service Factor
of service
(1) Lines Out of Service Factor = (Percentage of Covad Interconnection Trunks
network troubles out of service [greater than] 24 hours - Percentage of BA IXC
Feature Group D Trunks network troubles out of service [greater than] 24 hours)
x (Covad Interconnection Trunks with network troubles out of service [greater
than] 24 hours, as a percentage of the measured calendar quarter average total
Covad Interconnection Trunks in service).
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<PAGE>
Interconnection Trunk Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Provisioning:
1. Performance Measurement calculations for provisioning will be performed only
if for the measured calendar quarter a minimum of 50 trunks was installed by BA
for Covad and a minimum of 100 IXC Feature Group D trunks was installed by BA
for IXCs.
2. Orders must be received electronically, using a BA supported version of BA's
electronic Access Service Request System.
3. Performance Measurement calculations for provisioning will exclude trunks
provided pursuant to negotiated installation intervals.
4. Performance Measurement calculations for provisioning will be based on
comparisons by trunk type (e.g., DS0 with DS0, DS1 with DS1).
5. Covad shall provide to BA forecasts of Interconnection Trunk volumes at least
six (6) months prior to the commencement of the measured calendar quarter.
Forecasts for Interconnection Trunk volumes (including both number of orders to
be submitted and number of items of service to be ordered) shall be submitted by
Covad either (a) for each month or (b) for each quarter, in which case the
quarterly volume will be pro-rated to a monthly volume. If submission volumes
for any one month in a measured calendar quarter vary from forecasted volumes
for such month stated in submitted forecasts by more than 15% (plus or minus),
BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide the forecasts of volumes to BA, BA may exclude Performance
Category 7 and the Performance Measurements in Category 7 from calculation of
Performance Credits and from taking investigative or corrective action under
Section 3.3.
6. Covad Missed Installation Appointments do not include:
a. Installation Appointments missed or rescheduled due to the delay,
act or omission of Covad, Covad's contractors or vendors,(21) or
Covad's customers.
b. Missed Installation Appointments for Covad installations being made
to rehome trunks or for network grooming.
- ----------
(21) For the purposes of Paragraph 6, above, the phrase "Covad's contractors or
vendors" does not include BA.
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<PAGE>
7. Covad Missed Installation Appointments will be included in the computation
only if they result in a blockage of traffic that is in excess of standard
design blocking thresholds and that is identified and reported to BA by Covad.
8. Covad Missed Installation Appointments will be included in the computation
only if:
a. All order information submitted by Covad was valid.
b. Covad was prepared to accept the installation of service at the
scheduled time.
c. Orders were completed as submitted without cancellation after order
confirmation.
d. Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
9. Covad Missed Installation Appointments include only missed installation
appointments for interconnection trunks used one-way.
Maintenance:
1. This Performance Category will be measured no earlier than completion of the
WFA inventory for Covad and BA trunks and validation of applicable field
procedures.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 04 (Outside Plant) and 05 (Inside Central Office).
3. Applies only to trunks used as per applicable technical specifications.
4. Covad trunks will be included in the computation only if Covad was available
for testing and cooperative coordination if requested by BA.
5. Applies only to trunks where blockage exceeding standard design blocking
thresholds has been identified and reported by Covad.
6. Applies only to interconnection trunks used one-way.
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<PAGE>
E. Billing
1. Performance Category 9 - Timeliness of Daily Usage Feed ("DUF") for UNE
Switching and Resale Services
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Timeliness of Daily [less than] 90% of 90% to 95% of [greater than] 95% of
Usage Feed recorded call events recorded call events recorded call events
(CLEC Billing KSQM 21) in 5 Business Days in 5 Business Days in 5 Business Days
- ---------------------------------------------------------------------------------------------------
</TABLE>
Calculation of Performance Credit
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 0.25 % of DUF Charges (for UNE Switching and Resale Services)
for Covad for the measured calendar quarter.
Billing Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
1. UNE usage (Daily Usage Feed) information is limited to only Unbundled
Switching. Measurement with regard to Unbundled Switching will begin no earlier
than 4/1/98.
2. Excluded are delays or failures to provide information provided by third
parties.
3. Excluded are delays or failures to provide information where the cause of the
delay or failure also affects BA's ability to collect and utilize information
for itself.
4. Measurement will be made for lines that have been equipped at Covad's request
to collect daily usage feed information.
65
<PAGE>
SCHEDULE 27.2
APPENDIX 4
STATISTICAL METHODOLOGY FOR DETERMINING "PARITY" RANGE
1. For Performance measures where the measure is a yes or no on each measured
item: (e.g., % met or not met):
Measurement Objective:
To determine if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
The following methodology applies to service in which in each instance of its
provision, the outcome can be categorized as a success or a failure (e.g., was
the appointment missed, was a customer's line out of service for more than 24
hours, etc.).
Now, let xij = the ith customers score on service; where
xij = 0 if the outcome is categorized as a success
xij = 1 if the outcome is categorized as a failure
More specifically, let
(SIGMA) x1ij = the number of Covad customers' instances of service
categorized as a failure
The standard of service against which the instances of service to Covad's
customers will be compared is the average of that provided by BA to its own
customers, viz.
P0j = (SIGMA) x0ij where N0j is the number of instances of provision
------------ of service j to BA's customers
N0j
The service index calculated for Covad for service j and which will be compared
against the service standard Poj is given by:
P1j = (SIGMA) x1ij where N1j is the number of instances of provision
------------ of service j to Covad's customers
N1j
It is assumed that N0j will be large relative to N1j ; and that N1j may in fact,
for certain j, be small.
The assumption can be made that the N1j constitutes a sample taken from a larger
population comprised
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<PAGE>
of N0j ; i.e., instances of service provision like those provided to BA
customers. In this case the N1j are not technically a subset (i.e., sample) of
N0j. But for the purposes of the model we assume that if Covad customers are
being treated the same as BA customers, then the distribution of the x0ij and
the x1ij; should be identical, hence our viewing N1j as a sample of N0j.
If such an assumption is correct then the value P1j should be similar to the
value P0j. If it is not correct, then the two values would be expected to be
different with the magnitude of the difference reflecting how different the two
populations are, and by implication, how different the service level to each.
The question that arises is how close must P1j and P0j be to conclude that the
two populations received similar levels of service and how different must they
be to conclude they did not.
If we assume N1j is a sample taken from a universe identical to the BA universe,
then it is possible to derive the distribution of possible values of P1j that
could occur when drawing a sample of size N1j from such a universe. If N1j is
adequately large, (viz., if N1j is greater than 30) these values will follow a
normal distribution and have:
Expected value = E (x) = N1j x P0j
and
the Variance = Var (x) = N1j x P0j (1-P0j)
If the CLEC population is in fact identical (or very nearly so) to the BA
population, then most values of P1j would lie close to P0j, and if the
populations were not identical than most values of P1j would lie further from
P0j with the magnitude of the differences reflecting how different the two
underlying populations are and, by implication, how different the level of
service provided the two populations.
It is possible to evaluate how likely it is that the N0j and the N1j instances
of service are, on average, the same by evaluating how likely it would be by
chance alone to observe a difference as large as the one in fact observed, viz.
P0j - P1j.
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<PAGE>
The procedure for performing this evaluation is as follows:
1. Calculate the BA service standard for service j as follows:
P0j = (SIGMA) x0ij
------------
N0j
2. Calculate the level of service provided to Covad as follows:
P1j = (SIGMA) x1ij
------------
N1j
3. Calculate an index of service level comparability, z, as follows:
z = (P0j-P1j)/[square root](P0j(1-P0j)/N1j)
4. Evaluate the probability of similar or dissimilar services for BA and CLEC
customers as follows:
[less than] -0.83 o Probability is moderate to high that Covad customers are
("Misses more poorly served than BA customers.
Standard")
- -0.83 to 0.83 o Probability is weak that Covad customers are more poorly
("Parity") served than BA customers, or the probability is high
that Covad customers are served the same as BA
("Equals customers, or the probability is weak that Covad
Standard") customers are better served than BA customers.
[greater than] 0.83 o Probability is moderate to high that Covad customers are
("Exceeds better served than BA customers.
Standard")
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 1 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 1 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses
68
<PAGE>
Standard") if the result is [less than] -0.83 ("Probability is moderate to high
that Covad customers are more poorly served than BA customers"); (b) to have
equaled or met the "Parity" standard ("Equals Standard") if the result is -0.83
to 0.83 (i.e., "Probability is weak that Covad customers are more poorly served
than BA customers, or the probability is high that Covad customers are served
the same as BA customers, or the probability is weak that Covad customers are
better served than BA customers"); or, (c) to have exceeded the "Parity"
standard ("Exceeds Standard") if the result is [greater than] 0.83 ("Probability
is moderate to high that Covad customers are better served than BA customers").
69
<PAGE>
2. For Performance measures where the measure is a variable measure: (e.g.,
cycle time):
Measurement Objective:
To determine, for those services for which performance level is measured as an
elapsed time, if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
Methodology:
The following methodology applies to service in which in each instance of its
provision, the outcome is represented as a measurement of an interval of time
(e.g., 10 minutes, 2.5 hours, 3.5 days, etc.). For example, "time to restore
service."
Define the variable X, as duration of interval being measured (e.g., time to
restore service in hours)
Now, let Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
xij = BA's ith customer's score on service j i = 1,2,3...Nj
x'ij = Covad's ith customer's score on service j i = 1,2,3...nj
1. Calculate the average duration for service j for all Bell Atlantic customers
as follows:
Average duration of BA customers = [GRAPHIC OMITTED]
2. Calculate the standard deviation of the duration scores on service j for all
BA customers as follows:
Standard deviation of BA customer's scores = [GRAPHIC OMITTED]
70
<PAGE>
3. Calculate the average duration for service j for all Covad customers as
follows:
Average duration of Covad customers = [GRAPHIC OMITTED]
4. Calculate an Index of parity:
Having determined the following values:
Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
[GRAPHIC OMITTED] = the average duration for all BA customers
[GRAPHIC OMITTED] = the standard deviation of duration scores for all BA
customers
[GRAPHIC OMITTED] = the average duration for all Covad customers
Derive an index of parity as follows:
Index of Parity = [GRAPHIC OMITTED]
where values of the index less than 0.0 indicate Covad customers are being
serviced on average with less delay (i.e., better) than BA customers, values of
the index greater than 0.0 indicate Covad customers are being serviced on
average with more delay (i.e., worse) than BA customers,
and
where greater absolute values of the index, t, indicate increasingly less
likelihood that the observed differences between Covad and BA customers' is due
to chance variation, or what is called sampling error, and greater likelihood
the difference is due to other than chance factors.
5. Interpret the Index of Parity by referring to the Parity Translation Table
and following these steps:
a. Note the value of nj as determined previously, and calculate the
value nj-1
b. Locate the value of nj-1 in the first column of the parity index
translation table
c. Inspect the ranges of values of t in the row of the table
corresponding to your value of nj-1, locating the range containing
the value of t corresponding to the one you calculated.
d. Look at the top of the column containing the value of t
corresponding to the one you
71
<PAGE>
calculated and read the interpretation of the calculated index.
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 2 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 2 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses Standard") if the result as shown on the Parity Translation
Table is "Probability that CLEC customers Serviced worse than BA's Customers is
High" or "Probability that CLEC customers Serviced worse than BA's Customers is
Moderate"; (b) to have equaled or met the "Parity" standard ("Equals Standard")
if the result as shown on the Parity Translation Table is "Probability that CLEC
customers Serviced worse than BA's Customers is Weak", "Probability CLEC & BA
Customers Serviced the Same is High", or "Probability that CLEC Customers
Serviced Better than BA's Customers is Weak"; or, (c) to have exceeded the
"Parity" standard ("Exceeds Standard") if the result as shown on the Parity
Translation Table is "Probability CLEC Customers Serviced Better than BA's
Customers is Moderate" or "Probability that CLEC Customers Serviced Better than
BA's Customers is High").
72
<PAGE>
Parity Translation Table
73
<PAGE>
EXHIBIT B
BONA FIDE REQUEST PROCEDURES
1. The following procedures shall apply to any Bona Fide Request submitted by
Covad to BA for: (a) an Interconnection or access to an unbundled Network
Element not otherwise provided hereunder at the time of such request, (b)
an Interconnection or connection to a Network Element that is different in
quality to that which BA provides to itself at the time of such request,
(c) Collocation at a location other than a BA Central Office, and (d) such
other arrangement, service, or Network Element for which a BFR is required
under the Agreement. Items (a) through (d) above may be referred to
individually as a "BFR Item." The BFR procedures set forth herein do not
apply to those services requested pursuant to Report & Order and Notice of
Proposed Rulemaking 91-141 (rel. October 19, 1992), Paragraph 259 and
Footnote 603 or subsequent orders.
2. A BFR shall be submitted in writing and shall include a technical
description of each requested BFR Item, and a forecast (e.g. volume
requested, locations, dates) for such Item.
3. Covad may cancel a BFR at any time, but shall pay BA's reasonable and
demonstrable costs of processing, implementing the BFR, and/or developing
the BFR Item up to the date of cancellation, and any wind-up costs
resulting therefrom.
4. Within fifteen (15) business days of receipt of the BFR, BA will respond
in one of the following ways:
(a) provide confirmation that the BFR is technically feasible and the
date BA will deliver a price proposal, including a service
description, pricing and an estimated schedule for availability;
(b) request a face-to-face meeting between technical representatives of
both Parties to further explain the request;
(c) inform Covad that BA must do laboratory testing (at Covad's expense)
to determine whether the request is technically feasible;
(d) inform Covad that BA must do field testing (at Covad's expense) to
determine whether the request is technically feasible;
(e) inform Covad that it is necessary for the Parties to undertake a
joint technical/operational field test (at Covad's expense) in order
to determine both technical feasibility and operational cost
impacts; or
(f) provide a written explanation that it is not technically feasible to
comply with the request and/or the BFR Item does not qualify as one
that is required to be provided under the Act.
1
<PAGE>
5. Within ten (10) business days of receiving BA's response from Step 4(c),
4(d), or 4(e), Covad shall:
(a) negotiate a mutually agreeable schedule for BA's testing and agree
to pay BA for the testing costs, in the case of Steps 4(c) or (d);
or
(b) negotiate a mutually agreeable schedule for joint
technical/operational field testing, and agree to pay BA the costs,
in the case of Step 4(e).
6. Within ten (10) days of receiving BA's confirmation (from Step 4(a)),
Covad shall:
(a) accept BA's price proposal date and agree to pay BA the cost of
developing the proposal;
(b) negotiate a different date for BA to deliver the price proposal, and
agree to pay BA the cost of developing the proposal; or
(c) abandon the request.
7. Unless the Parties have agreed to another date, BA will deliver the BFR
Item price proposal to Covad in response to Step 5 or Step 6 as soon as
reasonably practicable, but no later than ninety (90) days from the date
BA provided the price proposal date, unless such delivery is technically
unreasonable given the nature of the BFR. The price proposal shall include
a service description of the BFR Item, the costs, including costs
associated with the development of the BFR Item, and an estimated
availability schedule.
8. Covad accepts BA's price proposal or negotiates mutually acceptable
changes.
9. BA makes the BFR Item available in accordance with Step 7.
10. Unless the Parties otherwise agree, all prices shall be consistent with
the pricing principles of the Act and any applicable FCC or Commission
rules, regulations, or orders.
11. If a Party to a BFR believes that the other Party is not requesting, or
negotiating or processing the BFR in good faith, or disputes a
determination, or price or cost quote, or is failing to act in accordance
with Section 251 of the Act, such Party may seek mediation or arbitration
by the Commission pursuant to Section 252 of the Act.
2
<PAGE>
EXHIBIT C
DIRECTORY ASSISTANCE AND INTRALATA
CALL COMPLETION SERVICES AGREEMENT
THIS AGREEMENT is made, effective this _____ day of _____________ 19___,
by and between Bell Atlantic - __________________, Inc., (hereinafter referred
to as "Bell Atlantic"), a __________________________ corporation, with offices
at _____________________________________, and _______________________________,
hereinafter referred to as "Carrier", a ______________________ corporation with
offices at _______________________________________.
1. SCOPE AND TERM OF AGREEMENT
1.1 Scope This Agreement sets forth the terms and conditions which shall govern
the use of and payment for Directory Assistance (DA) Service and IntraLATA Call
Completion Service (hereinafter collectively referred to as "Services") to be
provided by Bell Atlantic, or its affiliated companies, to Carrier. Carrier
shall subscribe to and pay for Services for Carrier's local exchange customers
in the ___________ LATA(s).
1.2 Term The initial term of this Agreement shall be one (1) year and commence
as of 12:01 a.m. on the date first written above. At the end of this initial
term, or any subsequent renewal term, this Agreement shall automatically renew
for an additional period of one (1) year unless either party provides written
notice to the other of its intent to terminate at least three (3) months prior
to the expiration of the then current term.
2. DESCRIPTION OF SERVICES
2.1 Directory Assistance (DA) Service
a) Directory Assistance Service shall consist of 1) directory transport by
Bell Atlantic from the point of Bell Atlantic's interconnection with Carrier's
trunks to Bell Atlantic's designated DA locations, and 2) the provision of
telephone number listings by Bell Atlantic operators in response to calls from
Carrier's local exchange customers located in the LATA(s) designated in Section
1.1.
b) A maximum of two requests for telephone numbers will be accepted per DA
call. A "DA call" as used in this Agreement shall mean a call answered by or
forwarded to Bell Atlantic, regardless of whether a telephone number is
requested, provided, or available. The listings that will be available to
Carrier's customers are those telephone numbers that are listed in Bell
Atlantic's DA records for the LATA(s) designated in Section 1.1.
2.2 IntraLATA Call Completion Service IntraLATA Call Completion Service
<PAGE>
consists of the live and automated local and toll call completion services
specified in Appendix B, including the completion of collect, card and
bill-to-third party calls; busy line verification; customer requested interrupt;
and other assistance to Carrier's local exchange customers located in the
LATA(s) designated in Section 1.1.
2.3 Branding Branding is a service that permits the Carrier to deliver a
customized announcement to its callers, identifying the Carrier as the customer
service provider. Carrier shall provide the information required by Bell
Atlantic to create this announcement. Branding also requires that the Carrier
maintain dedicated trunking arrangements to the designated Bell Atlantic DA or
operator switch locations.
2.4 End User Billing Bell Atlantic will provide Carrier with unrated EMR records
for use in the billing of Carrier's end users for Services. The rating, billing,
and settlement of end-user charges for the calls are the responsibility of
Carrier.
2.5 Service Methods Bell Atlantic agrees to provide Services in accordance with
Bell Atlantic's service standards and methods. Bell Atlantic will notify Carrier
in writing of any significant policy changes to operator services or directory
assistance standards and methods prior to implementation.
2.6 Customized Service Features and Options Carrier may request custom-designed
service features or optional services to be provided in conjunction with the
Services hereunder. Upon mutual agreement of the parties, such features and
options will be provided pursuant to this Agreement. Bell Atlantic, if
requested, shall provide Carrier with an estimate of the charges for such
custom-designed supplements, changes, or options prior to implementation.
3. COMMENCEMENT AND IMPLEMENTATION OF SERVICE
3.1 Required Information Each party shall make good-faith efforts to carry out
its respective responsibilities in meeting a jointly established schedule for
implementation. All records and other required information specified in Appendix
C, as well as a completed Technical Questionnaire, will be furnished by Carrier
at least ninety (90) days prior to the commencement of Services (i.e., the
Cutover Date described in Section 3.2.) Notices of any changes, additions, or
deletions to such records and information shall be provided promptly in writing
by Carrier to Bell Atlantic. Bell Atlantic will review these change requests and
determine any potential impact on the cutover date. Written confirmation of any
impact will be provided to Carrier.
3.2 Cutover Date The Cutover Date for Service(s) provided under this Agreement
shall be the date on which the Service(s) shall be available to all of Carrier's
local exchange customers in the LATA(s) designated in Section 1.1.
3.3 Service Review Meetings Bell Atlantic will meet and confer with Carrier
during the term of this Agreement to review and discuss the Services provided
under this
<PAGE>
Agreement. The times for meetings will be established by mutual agreement of the
parties.
4. EQUIPMENT AND FACILITIES
4.1 Bell Atlantic will establish and maintain such access equipment and related
facilities as may be necessary to perform the Services under this Agreement,
provided that Carrier furnishes Bell Atlantic the information specified in
Appendix C, and any changes in such information, in a timely and accurate
manner. Any additional services that Carrier seeks during the term of this
Agreement will be subject to mutual agreement and the availability of facilities
and equipment.
4.2 Carrier will provide and maintain such equipment within its premises as is
necessary to permit Bell Atlantic to perform the agreed-upon Services in
accordance with Bell Atlantic standard equipment operation and traffic operation
procedures.
4.3 Carrier Transport and Switched Access Connection
a) Carrier shall, at its expense, arrange for and establish the trunking
and other transport, interface, and signaling arrangements required by Bell
Atlantic to provide Services to Carrier. Separate dedicated trunks for each NPA
or LATA may be required. Any trunks or other transport and access that Carrier
obtains from Bell Atlantic to deliver Carrier's calls to Bell Atlantic shall be
provided pursuant to the applicable tariffs or other contractual arrangements,
and not under this Agreement. Bell Atlantic agrees to coordinate the scheduling
of Services to be provided under this Agreement with the scheduling of any
trunking or related services provisioned by Bell Atlantic under such tariffs or
other contractual arrangements.
b) Carrier shall specify the number of trunks required for Services.
Carrier must provide trunks with operator services signaling directly to the
locations designated by Bell Atlantic. Bell Atlantic shall provide Carrier at
least three (3) months advance notice in the event of any change in a designated
location.
5. PAYMENT FOR SERVICES
5.1 Rates Carrier agrees to subscribe to and pay for the Services and options
selected in Appendix A. Carrier shall pay the rates set forth in Appendix A,
subject to such obligations as Bell Atlantic may have under the
Telecommunications Act of 1996, and the FCC and state regulations and decisions
thereunder, to set cost-based rates for unbundled network elements.
Specifically, when a regulatory body of competent jurisdiction has duly approved
the rates under which Bell Atlantic is required to provide Services to
competitive local exchange carriers (hereinafter referred to as "CLEC rates"),
Bell Atlantic shall charge, and Carrier shall pay, such CLEC rates for the
applicable Services.
5.2 Settlements Carrier shall render payment to Bell Atlantic net thirty (30)
calendar days from the date of delivery of the Services or from the date of
billing for the Services,
<PAGE>
whichever occurs later. Carrier shall pay interest on any amount overdue at the
rate specified for late payments in the Interconnection Agreement between Bell
Atlantic and Carrier.
5.3 Billing Disagreements
a) Carrier may, in good faith, dispute part or all of an invoice provided
by Bell Atlantic. To dispute an invoice, Carrier must provide Bell Atlantic with
a written explanation of the questioned charges for consideration within thirty
(30) days of receipt of the invoice. Bell Atlantic will respond to Carrier's
claim within thirty (30) days of receipt of the explanation.
b) The parties agree to negotiate any dispute in good faith to reach a
satisfactory resolution of the dispute no later than ninety (90) days after
Carrier's receipt of the invoice. Carrier shall have no obligation to pay
interest on a disputed amount while a resolution is being negotiated during this
period. In the event that the dispute is not resolved at the account manager
level within forty five (45) days after receipt of Carrier's claim, the parties
agree to submit the dispute to an Intercompany Review Board for resolution. The
Intercompany Review Board shall consist of two representatives from each party
who are authorized to resolve the dispute on behalf of their respective
companies. The Intercompany Review Board shall conduct a joint conference to
review the parties' respective positions and to resolve the dispute.
c) Upon the resolution of the dispute, an appropriate adjustment of
billing shall be made by Bell Atlantic. Bell Atlantic shall apply any reductions
in the invoiced amount as a credit. Carrier shall promptly pay any amounts the
parties agree are due with interest thereon under Section 5.2 retroactive to the
date of the original invoice. If no resolution is reached within the specified
90-day period, either party may pursue such other remedies and recourse as are
otherwise available under law or this Agreement.
5.4 Taxes The rates specified in this Agreement are exclusive of all taxes,
duties, or similar charges imposed by law. Carrier shall be liable for and shall
reimburse Bell Atlantic for any sales, use, excise, or other taxes applicable to
the Services performed under this Agreement.
5.5 Carrier's Customers Carrier shall be responsible for all contacts and
arrangements with its customers concerning the provision and maintenance, and
the billing and collection, of charges for Services furnished to Carrier's
customers.
6. DEFAULTS AND REMEDIES
6.1 Defaults If Carrier defaults in the payment of any amount due hereunder, or
if Bell Atlantic materially fails to provide Services as agreed hereunder, and
such default or failure shall continue for thirty (30) days after written notice
thereof, the other party may terminate this Agreement with thirty (30) days
written notice.
<PAGE>
6.2 Carrier Remedies In the event that Bell Atlantic, through negligence or
willful misconduct, fails to provide the Services selected and contracted for
under this Agreement, Bell Atlantic shall pay Carrier for Carrier's direct
damages resulting from such failure, up to an amount not to exceed the charges
payable under this Agreement for the Services affected.
6.3 Discontinuance by Carrier In the event that Carrier discontinues using
Services, either in part or in whole, prior to expiration of the then current
term and such discontinuance is not due to Bell Atlantic's material failure to
provide Services, Carrier shall pay Bell Atlantic an amount equal to the average
monthly charges for the six-month period immediately preceding the
discontinuance multiplied by the number of months remaining in the then-current
term. If Services have been provided for a period of less than six months,
Carrier shall pay the charges for the month with the highest usage multiplied by
the number of months remaining in the then-current one year term. If Carrier
terminates this Agreement prior to the Cutover Date, Carrier shall pay Bell
Atlantic the greater of the following: (i) all reasonable and necessary costs
already incurred by Bell Atlantic in preparation for the commencement of
services, or (ii) the sum of fifty thousand dollars ($50,000).
6.4 Other Remedies THE EXTENT OF LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE
LIMITED AS DESCRIBED IN SECTIONS 6.1, 6.2 AND 6.3 ABOVE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY OTHER LOSS, COST, CLAIM, INJURY, LIABILITY, OR
EXPENSE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY INCIDENTAL, SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT,
WHETHER RECOVERY IS SOUGHT IN TORT, CONTRACT, OR OTHERWISE, EVEN IF EITHER PARTY
HAD NOTICE OF SUCH DAMAGES.
7. CONFIDENTIAL INFORMATION
7.1 Confidentiality The parties agree that all confidential and proprietary
information that is marked as specified in Section 7.2 and that is disclosed by
either party to the other party for the purposes of this Agreement, including
rates and terms, shall be treated as confidential unless a) such information was
previously or becomes known to the receiving party free of any obligation to
keep it confidential, b) has been or is subsequently made public by the
disclosing party, or c) is required to be disclosed by law. The receiving party
shall not, except in the performance of the Services under this Agreement or
with the express prior written consent of the other party, disclose or permit
access to any confidential information to any other parties. The parties agree
to advise their respective employees, agents, and representatives to take such
action as may be advisable to preserve and protect the confidentiality of such
information.
<PAGE>
7.2 Marking of Confidential Information All information the disclosing party
considers proprietary or confidential, if in writing or other tangible form,
shall be conspicuously labeled or marked as "Proprietary" and/or "Confidential"
and, if oral, shall be identified as proprietary at the time of disclosure and
promptly confirmed in writing. Either party shall have the right to correct any
inadvertent failure to designate information as proprietary by written
notification within ten (10) days following disclosure.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractors Bell Atlantic and Carrier shall be independent
contractors under this Agreement, and all services under this Agreement shall be
performed by Bell Atlantic as an independent contractor and not as an agent of
Carrier.
8.2 Responsibility for Employees and Agents All persons furnished by Bell
Atlantic shall be considered solely Bell Atlantic's employees or agents, and
Bell Atlantic shall be responsible for compliance with all laws, rules, and
regulations relating to such persons including, but not limited to, hours of
labor, working conditions, workers' compensation, payment of wages, benefits,
unemployment, social security and other payroll taxes. Each party's employees
and agents, while on premises of the other, shall comply with all rules and
regulations, including any applicable security procedures and safeguarding of
confidential data.
9. GENERAL CONDITIONS
9.1 Assignment Neither party may assign or delegate its rights and obligations
under this Agreement without the prior written consent of the other party,
except that either party may assign this Agreement, without such consent, to its
parent, affiliate or subsidiary, provided that the assignee has the resources,
legal authority, and ability to perform all terms of this Agreement. Thirty (30)
days advance notice of such assignment shall be provided to the other party.
9.2 Choice of Law The validity, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware.
9.3 Compliance with Laws Each party shall comply with all applicable federal,
state, county and local laws, ordinances, regulation, rules and codes in the
performance of this Agreement. Neither party shall be liable to the other for
termination of this Agreement or any services to be provided hereunder
necessitated by compliance with any law, rule, regulation or court order of a
duly authorized governmental body.
9.4 Contingency Neither party shall be held responsible or liable to the other
for any delay or failure in performance caused by fires, strikes, embargoes,
requirements imposed by Government regulation, civil or military authorities,
act of God or by the public enemy, or other causes beyond the control of Carrier
or Bell Atlantic. If such a contingency occurs, the party injured by the other's
inability to perform may: a) terminate the affected
<PAGE>
services or part thereof not already rendered; or b) suspend the affected
services or part thereof for the duration of the delaying cause and resume
performance once the delaying causes cease.
9.5 Licenses No licenses, expressed or implied, under any patents, copyrights,
trademarks or other intellectual property rights are granted by Bell Atlantic to
Carrier under this Agreement.
9.6 Notices Except as otherwise specified in this Agreement, any notice required
or permitted under this Agreement shall be in writing and shall be given to the
other party at the address designated below by hand delivery, registered
return-receipt requested mail, or nationally recognized courier service:
For Bell Atlantic: ____________________________________
____________________________________
____________________________________
____________________________________
For Carrier: ____________________________________
____________________________________
____________________________________
____________________________________
The above addresses may be changed by giving thirty (30) calendar days prior
written notice as prescribed above. Notice shall be deemed to have been given or
made on the date of delivery if received by hand, or express courier, and three
days after delivery to the U.S. Postal Service, if mailed.
9.7 Publicity Bell Atlantic and Carrier agree not to publish any advertising,
sales promotions, or press releases that promote or otherwise relate to the
services provided under this Agreement and include the other party's name,
logos, trademarks, or service marks, unless it obtains the other party's prior
written consent, except that either party may disclose the fact that Bell
Atlantic provides directory assistance and/or operator services to Carrier
without such prior review or approval.
9.8 Severability If any provision of this Agreement or the application of any
provision shall be held by a tribunal of competent jurisdiction to be contrary
to law or unenforceable, the remaining provisions of this Agreement shall
continue in full force and effect.
9.9 Survival All obligations hereunder, incurred by either Bell Atlantic or
Carrier prior to the cancellation, termination, or expiration of this Agreement
shall survive such
<PAGE>
cancellation, termination or expiration.
9.10 Captions and Section Headings The captions and section headings in this
Agreement are for convenience only and do not affect the meaning or
interpretation of this Agreement.
9.11 Duplicate Originals This Agreement may be executed separately by the
parties in one or more counterparts. Each duplicate executed shall be deemed an
original, and all together shall constitute one and the same document.
9.12 Entire Agreement The terms and conditions of this Agreement, including the
Appendices attached to this Agreement, constitute the entire Agreement between
Bell Atlantic and Carrier relating to the subject matter of this Agreement, and
supersede any and all prior or contemporaneous understandings, promises or
representations, whether written or oral, between the parties relating to the
subject matter of this Agreement. Any waiver, modification or amendment of any
provision of this Agreement, or of any right or remedy hereunder, shall not be
effective unless made in writing and signed by both parties.
IN WITNESS WHEREOF, the parties agree that the effective date of this Agreement
is the date first written above, and each party warrants that it has caused this
Agreement to be signed and delivered by its duly authorized representative.
FOR BELL ATLANTIC - FOR CARRIER
________________________, INC.
Name: _________________________ Name: _________________________
Title: ________________________ Title: ________________________
Signature: ____________________ Signature: ____________________
Date: _________________________ Date: _________________________
<PAGE>
APPENDIX A
BELL ATLANTIC
CARRIER SERVICE SELECTION FORM
Please select desired services.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
MINIMUM SERVICE
SERVICE SERVICE CHARGE SELECTION
PERIOD
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Directory Assistance 12 months $______/call (Directory Transport Yes No
(ADAS) charges below)
- ------------------------------------------------------------------------------------------
IntraLATA Call 12 months Live: $______/op work second Yes No
Completion Operator Automated: $______/auto wk sec
Services LIDB: $______/query
- ------------------------------------------------------------------------------------------
Directory Assistance non- $_________ per switch Yes No
Branding recurring fee
- ------------------------------------------------------------------------------------------
Operator Services non- $_________ per switch Branding is
Branding recurring fee required for OS
- ------------------------------------------------------------------------------------------
</TABLE>
Directory Transport charges are as follows. (Call miles are measured from the BA
Wire Center serving Carrier's premises to the Directory Assistance location.)
Rate Per Directory Assistance Call
----------------------------------
Tandem-Switched Transport
Fixed ...................................... $________
Per mile ................................... $________
Tandem Switching ................................. $________
Note: Trunking, daily usage file, and switched access costs are not included in
the above rates.
<PAGE>
APPENDIX B
INTRALATA CALL COMPLETION OPERATOR SERVICES CALL TYPES
IntraLATA Call Completion Operator Services may include the following:
a. Calling Card
(i) Live: Bell Atlantic operator keys the calling card number and call
details into the system, secures validation, and releases the call to the
network.
(ii) Automated: Caller keys the calling number and call details in
response to automated prompts. Bell Atlantic secures validation and
releases the call to the network.
b. Collect
(i) Live: Bell Atlantic operator obtains the calling party's name, keys
the call details if necessary, announces the call to the called party,
waits for acceptance, and releases the call to the network.
(ii) Automated: Caller provides name and call details. Bell Atlantic's
automated system obtains called party's consent and releases the call to
the network.
c. Billed To A Third Party
(i) Live: Bell Atlantic operator requests the calling party's name, keys
the call details if necessary, calls the third party to verify acceptance
of billing, and upon acceptance, releases the call to the network.
(ii) Automated: Caller provides name, call details, and billing number.
Bell Atlantic's automated system verifies billed number and releases the
call to the network.
d. Person-to-Person
Bell Atlantic operator requests the person or department the calling party
has specified, ensures the appropriate party has been reached (person or
department), and releases the call to the network.
e. Coin Sent Paid
Bell Atlantic operator keys the call details if necessary, requests the
initial deposit, and upon deposit, releases the call to the network.
<PAGE>
f. Miscellaneous Call Assistance (Live)
(i) 0- Calls: Bell Atlantic operator provides caller with dialing
instructions or assistance, transfers emergency calls, or refers questions
to the business office or repair service.
(ii) Dialing Assistance & Intervention: Bell Atlantic operator dials a
number for a caller who is unwilling to dial directly or is encountering
trouble (such as wrong number, poor transmission, or cutoff), and who
requests a credit or reconnection.
(iii) Time and Charges: Bell Atlantic operator provides caller with time
and charges at the end of conversation, if requested.
(iv) Individuals with Disabilities: Bell Atlantic operator assists a
caller requiring dialing assistance due to a disability.
g. Busy-Line Verification
Bell Atlantic operator determines if the number specified by the customer
is in use, idle, or out of order. Appropriate facilities and equipment may
be required from the Carrier to enable verification of Carrier's lines.
h. Customer-Requested Interrupt
At the caller's request, Bell Atlantic operator interrupts conversation in
progress on a line that is in use, as verified through Busy-Line
Verification.
i. Operator Number Identification (ONI) Requests
Bell Atlantic operator requests the calling telephone number, keys the
number into the system for identification, and releases the call for
processing.
j. Automated Coin Toll Service (ACTS)
Bell Atlantic will provide automated messages for intraLATA toll calls
that originate from coin phones. The messages will prompt callers for the
correct change and record the change upon deposit. If a caller fails to
deposit the correct amount within the time threshold (set by Bell
Atlantic), the call will default to a live operator.
k. Validation Services
Bell Atlantic will launch queries for the validation of all calling card
calls, collect calls, and billed-to-third number calls to a Line
Information Data Base (LIDB). The validation costs for queries of LIDB are
separate from the individual call rates. Bell Atlantic will also launch
queries for validations to another company's LIDB if that company has a
card honoring agreement with Bell Atlantic.
<PAGE>
APPENDIX C
REQUIRED INFORMATION
Carrier shall furnish Bell Atlantic all information required by Bell Atlantic to
establish and maintain the Services to be provided to Carrier, including a
completed Technical Questionnaire. Such required information includes, but is
not limited to, the following:
1. Central office exchange names
2. Usage forecasts
3. Local central office characteristics
4. Trunking arrangements and trunk group types
5. Emergency reporting system and procedures
6. Business office information
7. Repair service information
8. Name and address request information
9. Tariffs and rate information
10. Customer dialing capabilities
11. Access to EMR records
12. Desired branding announcement (if applicable)
13. Carrier's estimated start date of Services
14. Access Service Requests (ASRs) for trunking and translations
Note: ASRs are not to be submitted by Carrier until Carrier and Bell Atlantic
have reviewed the Technical Questionnaire.
<PAGE>
APPENDIX D
OPTIONAL SERVICE SELECTION FORM
- --------------------------------------------------------------------------------
MINIMUM SERVICE
SERVICE SERVICE PERIOD CHARGE SELECTION
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Directory Assistance Call Completion 6 months $___/call Yes No
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT D
INTRALATA TELECOMMUNICATIONS SERVICES SETTLEMENT AGREEMENT
This Agreement is entered into as of _______________ , 1997, by and between Bell
Atlantic - _______________, Inc., a ___________ corporation, with principal
offices located at ______________________________ ("BA-__"), and
___________________________, a ______________ corporation, with principal
offices located at _____________________________________________________________
_______________ ("Carrier").
SECTION I
SCOPE
This Agreement sets forth the terms and conditions for the following:
(a) administering and processing messages in the intraLATA Toll
Originating Responsibility Plan ("ITORP"); and
(b) the settlement of compensation for the following telecommunications
traffic within a BA-__ LATA:
(1) intrastate and interstate intraLATA traffic terminated to
Carrier and originated by an Independent Telephone Company or
wireless carriers that transits the facilities of BA-__ within a
BA-__ LATA, including Message Telecommunications Service and Local
Exchange Service (the "ITORP Transit Service Traffic");
(2) intrastate and interstate intraLATA Message Telecommunications
Service and Local Exchange Service traffic which originates from a
Certified Local Exchange Carrier or Carrier, transits BA-PA's
network and terminates to Carrier, or a wireless carrier or an
Exchange Carrier other than BA-__, which traffic is subject to a
Meet-Point Billing arrangement (the "Meet-Point Transit Service
Traffic");
(3) intraLATA 800/888 Service Traffic; and
(4) intraLATA Alternately Billed Calls billed to a line-based
telephone number within the state where the call is originated.
By way of clarification, this Agreement does not cover the following: (x)
traffic that does not use BA-__ facilities; (y) interLATA traffic; and (z) any
statewide services (whether interLATA or intraLATA) provided entirely by an
Interexchange Carrier such as statewide WATS.
<PAGE>
EXHIBIT D
SECTION II
DEFINITIONS
For purposes of this Agreement, the terms set forth below shall have the
following meaning:
A. 800/888 Number Database shall mean the call management service
database that provides POTS telephone number translation or routing
information or both for a given 800/888 telephone number.
B. 800/888 Service Traffic means a toll free call originating with the
Originating Company and billed to the Terminating Company's end
user. 800/888 service MOUs are recorded by the Originating Company
and provided to the Terminating Company so that it can bill its end
user(s).
C. Access Tandem shall mean a switching entity that is used to
connect and switch trunk circuits between and among End Offices and
between and among End Office switches and carriers' aggregation
points, points of termination, or points of presence, which entity
has billing and recording capabilities that are used to provide
switched Exchange Access services.
D. Alternately Billed Calls shall mean all intraLATA land-line
Collect Calls, Calling Card Calls and Third-Number Calls that
originate and terminate in the _________ of _____________ and are
billed to a line-based number within the jurisdiction of the
__________ of _____________ serviced by the Billing Company.
Alternately Billed Calls are identified in ITORP reports as
"Received Collect/Sent Collect Calls".
E. Basic 800/888 Number Query shall mean routing information
obtained from an 800/888 Number Database for originating 800/888
calls.
F. Billing Company shall mean the Local Exchange Carrier that
provides the local telephone exchange service for the number to
which an Alternately Billed Call is to be billed.
G. Calling Card Call shall mean a call billed to a pre-assigned end
user line-based billing number, including calls dialed or serviced
by an operator system.
H. Carrier Common Line Facilities means the facilities from the end
user's premises to the End Office used to originate or terminate
Transit Service Traffic and 800/888 Service Traffic. Such carrier
common line facilities are as specified in each party's Exchange
Access Tariff.
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EXHIBIT D
I. Category 01 shall mean the EMR/billing record for usage charges
applicable to the terminating 800/888 number service subscriber.
J. Category 08 shall mean the EMR/copy record containing the
information necessary for Carrier to bill/settle intraLATA
terminating charges with other carriers.
K. Category 11 shall mean the EMR/access record containing
information necessary for Carrier to bill/settle interexchange
access charges.
L. CCS/SS7 shall mean the Common Channel Signaling/Signaling System
7, which refers to the packet-switched communication, out-of-band
signaling architecture that allows signaling and voice to be carried
on separate facilities, and thus is a signaling network that is
common to many voice channels. There are two modes of operation
defined for CCS/SS7: database query mode, and trunk signaling mode.
M. Centralized Message Distribution System (CMDS) shall mean the
message processing system which handles the distribution of Message
Records from the Earning Company to the Billing Company.
N. Certified Local Exchange Carrier (CLEC) means a carrier certified by
the ____________ ____________to provide Local Exchange Access
services within the BA-__ operating territory in that state.
O. Collect Call shall mean a non-sent paid call that is billed to
the number receiving the call, including calls dialed or serviced by
an operator system.
P. Discounted Toll Services means services in which the originating end
user is charged a rate less than would normally be assessed for
calls placed to similar points outside the end user's local calling
area.
Q. Earning Company shall mean the Local Exchange Carrier that
provides local telephone exchange service for the number from which
an Alternately Billed Call originates.
R. End Office means the end office switching and end user line
termination facilities used to originate or terminate switched
intraLATA telecommunications services traffic.
S. Exchange means a geographic area established for the furnishing of
local telephone service under a local tariff. It usually embraces a
city, town or village and its
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EXHIBIT D
environs. It consists of one or more wire centers together with the
associated facilities used in furnishing communications service
within the area.
T. Exchange Access means the facilities and services used for the
purpose of originating or terminating interexchange
telecommunications in accordance with the schedule of charges,
regulations and conditions specified in lawfully established
Exchange Access Tariffs.
U. Exchange Access Tariffs means the tariffs lawfully established with
the Federal Communications Commission or the _____________
___________________ by an Exchange Carrier for the provision of
Exchange Access facilities and services.
V. Exchange Carrier shall mean a carrier licensed to provide
telecommunications services between points located in the same
Exchange area.
W. Exchange Message Record (EMR) shall mean the standard used for
exchange of telecommunications message information among Local
Exchange Carriers for billable, non-billable, sample, settlement and
study data. EMR format is described in BR-010-200-010 CRIS Exchange
Message Record, a Bell Communications Research, Inc. document that
defines industry standards for Exchange Message Records, which is
hereby incorporated by reference.
X. ITORP Transit Service Traffic shall have the meaning set forth in
Section I above titled "Scope".
Y. Independent Telephone Company shall mean any entity other than BA-__
which, with respect to its operations within the ___________ of
__________________, is an incumbent Local Exchange Carrier.
Z. Inter-Company Net Billing Statement shall mean the separate monthly
financial reports issued by BA-__ under ITORP to the Exchange
Carriers for settlement of amounts owed.
AA. IntraLATA Toll Originating Responsibility Plan (ITORP) shall mean
the information system owned and administered by BA-__ for
calculating charges between BA-__ and Local Exchange Carriers for
termination of intraLATA calls.
BB. Interexchange Carrier (IXC) means a carrier that provides, directly
or indirectly, interLATA or intraLATA telephone toll services.
CC. Local Access and Transport Area (LATA) means a contiguous
geographic area: (1) established before the date of enactment of
the Telecommunications Act of 1996 by BA-__ such that no Exchange
area includes points within more than one
4
<PAGE>
EXHIBIT D
metropolitan statistical area, consolidated metropolitan statistical
area, or state, except as expressly permitted under the AT&T Consent
Decree; or (2) established or modified by BA-__ after such date of
enactment and approved by the Federal Communications Commission.
DD. Local Exchange Carrier (LEC) means any person that is engaged in the
provision of Local Exchange Service or Exchange Access. Such term
does not include a person insofar as such person is engaged in the
provision of a commercial mobile service under Section 332 (c) of
the Telecommunications Act of 1996, except to the extent that the
Federal Communications Commission finds that such service should be
included in the definition of such term.
EE. Local Exchange Service means telecommunications services provided
between points located in the same LATA.
FF. Meet -Point Billing (MPB) means an arrangement whereby two or more
LECs jointly provide to a third party the transport element of a
switched access Local Exchange Service to one of the LECs' End
Office switches, with each LEC receiving an appropriate share of the
transport element revenues as defined by their effective Exchange
Access tariffs.
GG. Meet-Point Transit Service Traffic shall have the meaning set forth
in Section 1, "Scope".
HH. Message Records shall mean the message billing record in Exchange
Message Record format.
II. Message Telecommunications Service (MTS) means message toll
telephone communications, including Discounted Toll Services,
between end users in different Exchange areas, but within the same
LATA, provided in accordance with the schedules of charges,
regulations and conditions specified in lawfully applicable tariffs.
JJ. Minutes of Use (MOU) means the elapsed time in minutes used in the
recording of Transit Service Traffic and 800/888 Service Traffic.
KK. Multiple Bill/Single Tariff means the MPB method whereby each LEC
prepares and renders its own Meet Point Bill in accordance with its
own tariff(s) for the portion of the jointly-provided Exchange
Access service which the LEC provides.
LL. Multiple Exchange Carrier Access Billing (MECAB) means the document
prepared by the Billing Committee of the Ordering and Billing Forum,
which functions under the auspices of the Carrier Liaison Committee
of the Alliance for
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<PAGE>
EXHIBIT D
Telecommunications Industry Solutions, and published by Bellcore as
Special Report SR-BDS-000983, which document contains the
recommended guidelines for the billing of an Exchange Access service
provided by two or more LECs, or by one LEC in two or more states,
within a single LATA, and is incorporated herein by reference.
MM. Originating Company means the company which originates intraLATA
MTS or Local Exchange Service on its system. (For compensation
purposes, the Originating Company shall be considered the
Terminating Company for 800/888 Service Traffic.)
NN. Terminating Company means the company which terminates intraLATA
MTS or Local Exchange Service on its system where the charges for
such services are collected by the Originating (or Billing) Company.
(For compensation purposes, the Terminating Company shall be
considered the Originating Company for 800/888
Service Traffic.)
OO. Third-Number Call shall mean a call billed to a subscriber's
line-based billing number which is not the number to which the call
either terminates or originates.
PP. Transit Traffic shall refer to both ITORP Transit Service Traffic
and Meet-Point Transit Service Traffic.
QQ. Transiting Company shall mean a Local Exchange Carrier which
transports intraLATA telecommunications traffic on its system
between an Originating Company and a Terminating Company.
RR. Transport Facilities means the facilities from the End Office to a
tandem switching facility used to originate or terminate switched
intraLATA telecommunication services traffic.
SECTION III
SETTLEMENT OF TRANSIT SERVICES
(a) ITORP Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ will route
ITORP Transit Service Traffic over the combined local and toll trunk groups
between BA-__ and Carrier. BA-__
6
<PAGE>
EXHIBIT D
and Carrier agree to designate the points of interconnection for the purpose of
terminating ITORP Transit Service Traffic which originates from an Independent
Telephone Company or wireless carrier and terminates to Carrier. Both parties
further agree to develop and file mutually agreed to billing percentages
applicable to ITORP Transit Service Traffic in the National Exchange Carrier
Association F.C.C. Tariff No. 4, which billing percentages shall be calculated
in accordance with ITORP guidelines.
(2) Exchange of Billing Data. The Originating Company will provide to
BA-__ all billing data relating to ITORP Transit Service Traffic for processing
in ITORP within fourteen (14) days from the date the usage occurs (to the extent
usage occurs on any given day) for traffic originating from an Independent
Telephone Company or wireless carrier, which traffic transits BA-PA's facilities
and terminates to Carrier.
(3) Billing. BA-__ will, on behalf of Carrier, bill Exchange Carriers for
intraLATA ITORP Transit Service Traffic, and collect compensation due Carrier
based on Carrier's established and legally-approved tariffed or negotiated rates
utilizing ITORP. The charges set forth in Attachment A, attached hereto and
incorporated herein by reference, shall apply to the billing and collection
services provided by BA-__ to Carrier hereunder. Carrier will record the ITORP
Transit Service Traffic usage at its switch, and shall bill BA-__ for this
traffic in accordance with the rates set forth in the Interconnection Agreement
under Section 251 and 252 of the Telecommunications Act of 1996, dated as of
September __, 1996, by and between BA-__ and Carrier.
(b) Meet-Point Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ and Carrier
will route their respective Meet-Point Transit Service Traffic over the combined
local and toll trunk groups between them. BA-__ and Carrier agree to designate
the points of interconnection for the purpose of terminating Meet-Point Transit
Service Traffic which originates from a CLEC and terminates to Carrier, or
originates from Carrier and terminates to a CLEC, Independent Telephone Company,
or a wireless carrier. Both parties further agree to develop and file mutually
agreed to billing percentages applicable to Meet-Point Transit Service Traffic
in the National Exchange Carrier Association F.C.C. Tariff No. 4, which billing
percentages shall be calculated in accordance with MECAB guidelines.
(i) End Offices Subtending BA-__ Access Tandem. Meet-Point Transit Service
Traffic will be routed over the local and toll interconnection facilities
used to terminate similar traffic directly between BA-__ and Carrier when
the Originating and Terminating Company's End Office switches subtend
BA-PA's Access Tandem. BA-__ will record this traffic at the BA-__ Access
Tandem, and forward the terminating call records to the Terminating
Company for purposes of Meet-Point Billing.
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EXHIBIT D
(ii) End Offices That Do Not Subtend a BA-__ Access Tandem. When the
Originating and/or the Terminating Company's End Office switches do not
subtend BA-PA's Access Tandem, the Meet-Point Transit Service Traffic must
be routed over interconnection facilities other than those used to
terminate intraLATA MTS or Local Exchange Service to BA-PA's end users The
Terminating Company will record this traffic at its Access Tandem and
forward the terminating call records to BA-__ for Meet-Point Billing
purposes.
(iii) Special Access. Upon request, any Meet-Point Service Transit Traffic
may be routed over special access interconnection facilities between
Carrier, on the one hand, and a CLEC, an Independent Telephone Company, or
a wireless carrier, on the other.
(2) Exchange of Billing Data. All billing data exchanged hereunder will be
exchanged on magnetic tape or via electronic data transfer, to be delivered at
the addresses set forth below, using the Electronic Message Record format. BA-__
will provide to Carrier the switched-access detail usage data (category 1101XX
records) on magnetic tape within fourteen (14) days from the date the usage
occurs (to the extent usage occurs on any given day) for traffic originating
from a CLEC, transiting BA-PA's facilities and terminating to Carrier, and
Carrier will provide to BA-__ the switched access summary usage data (category
1150XX records) on a magnetic tape on a monthly basis within fourteen (14) days
of receipt from BA-__ of the switched access detail usage data referenced above.
(3) Billing. BA-__ and Carrier will submit to CLECs separate bills under
their respective tariffs for their portion of jointly-provided Meet-Point
Transit Service Traffic. With respect to Meet-Point Transit Service Traffic,
BA-__ and Carrier will exchange billing data and render bills under Multiple
Bill/Single Tariff arrangements in accordance with the applicable terms and
conditions set forth in MECAB.
(4) Addresses. Magnetic tapes to be sent hereunder to Carrier will be sent
to the following address (which address Carrier may change upon prior written
notice to BA-__):
Magnetic tapes to be sent hereunder to BA-__ will be sent to the following
address(es), as appropriate (which address(es) BA-__ may change upon prior
written notice to Carrier):
Bell Atlantic
Tape Library
8
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EXHIBIT D
1500 Tech Center Drive
Monroeville, PA 15146
SECTION V
800/888 SERVICE
800/888 Service Traffic will be exchanged among BA-__, Carrier,
Independent Telephone Companies, CLECs and wireless carriers via CCS/SS7 trunks,
and all will deliver/route these calls as appropriate and provide EMRs to the
Terminating Company to enable it to bill its 800/888 service subscriber. These
EMRs will, per industry standards, include the following: Category 01 (800/888
number subscriber billing), Category 08 (copy record/local exchange charges),
and Category 11 (interexchange carriers access records).
(a) Delivery of Translated 800/888 Number Queries and calls over CCS/SS7
links and trunks. BA-__ and Carrier will launch their own Basic 800/888 Number
Query for 800/888 Service Traffic originated in their networks, and route this
traffic to each other, as appropriate, utilizing existing local and toll
interconnection facilities.
(b) Exchange of Records; Compensation. All 800/888 Service Traffic
hereunder shall be subject to the appropriate access charges, as set forth in
the applicable tariffs. In addition, for jointly provided intraLATA 800/888
Service Traffic between two Local Exchange Carriers, the Originating Company is
responsible for billing its tariffed Basic 800/888 Number Query charge to the
Terminating Company. Carrier, when acting as an Originating Company, must submit
to BA-__, via magnetic tape(s) in EMR format, (i) the information necessary to
bill/settle intraLATA charges (EMR Category 110125), and (ii) the usage charges
applicable to the terminating 800/888-number service subscriber (EMR Category
010125). In the event any of these records are lost or destroyed, BA-__ and
Carrier will jointly estimate the terminating access charges due to either party
hereunder as follows:
(1) Total the terminating traffic compensation paid with respect to
800/888 Service Traffic to each party hereunder for the most recent
six (6) months period preceding the month covered by the lost or
destroyed tapes.
(2) Divide the total determined in (1) preceding, by 180 days.
(3) Multiply the terminating traffic compensation per day determined in
(2) preceding, by the number of days covered by the lost or
destroyed tapes. The calculated amount will be included as an
adjustment for lost or destroyed tapes in the next Inter-Company Net
Billing Statement.
BA-__ shall have no liability whatsoever with respect to any lost, damaged
or destroyed
9
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EXHIBIT D
records submitted hereunder by Carrier.
(c) Settlement. EMR records submitted by Carrier hereunder acting as an
Originating Company, as contemplated in Paragraph (b) above, will be processed
in accordance with ITORP. For purposes of calculating the access charges due
Local Exchange Carriers with respect to 800/888 Service Traffic, the Originating
Company shall be deemed the Terminating Company. Access charges payable
hereunder shall be calculated in accordance with Section VII of this Agreement,
as applicable.
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EXHIBIT D
SECTION VI
ALTERNATELY BILLED CALLS
(a) Responsibilities of the Billing Company. The Billing Company agrees to
provide the Earning Company with billing services, as specified below, with
respect to Alternately Billed Calls.
(1) Billing. Upon receipt of the appropriate Message Record from CMDS, the
Billing Company shall include this record in the bill to be issued to the end
user responsible for payment. The Billing Company shall also submit copies of
these Message Records to BA-__, at least once a month, in order to determine
monthly settlement amounts for both the Billing Company and the Earning Company
which will be reflected in the Inter-Company Net Billing Statement. These
amounts will reflect any and all applicable charges due the Billing Company for
performing billing services hereunder. In addition, as applicable, the
Inter-Company Net Billing Statement will reflect any amounts owed by Carrier to
BA-__ for administering and processing ITORP.
(2) Payment of Amounts Outstanding. Upon receipt of the Inter-Company Net
Billing Statement from BA-__, Carrier shall, within thirty (30) days of invoice,
remit to BA-__ full payment of amounts owed under the Inter-Company Net Billing
Statement.
(b) Responsibilities of the Earning Company. In connection with
Alternately Billed Calls, the Earning Company shall provide Message Records to
the Billing Company on a daily basis to the extent that any usage has been
recorded. These Message Records will be delivered by the Earning Company to the
Billing Company via the CMDS system, unless otherwise agreed to by the parties
hereto.
(c) Fees for Settlement of Alternately Billed Calls. The billing services
provided by the Billing Company to the Earning Company with respect to
Alternately Billed Calls shall be subject to the applicable charges set forth in
Attachment A, which charges will be reflected in the Inter-Company Net Billing
Statement. These charges may be revised upon mutual written agreement of the
parties hereto.
SECTION VII
CALCULATION OF COMPENSATION
BA-__ and Carrier agree to compensate each other with respect to Transit
Services Traffic and 800/888 Service Traffic in accordance with the terms
established below, and the rate elements set forth in Attachments A and B,
attached hereto and incorporated herein by reference.
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EXHIBIT D
(a) Compensation due to the Terminating/Transiting Company. Compensation
due to the Terminating Company/Transiting Company will be determined separately
for each month as follows:
(1) For Carrier Common Line Facilities provided by the Terminating
Company, an amount calculated as specified for Carrier Common Line Facilities
in the Terminating Company's Exchange Access Tariff. Compensation will be
determined by multiplying a) the Terminating Company's Carrier Common Line
rate, times b) the MOU.
(2) For End Office facilities provided by the Terminating Company, an
amount calculated as specified for End Office facilities in the Terminating
Company's Exchange Access Tariff. Compensation will be determined by multiplying
a) the Terminating Company's appropriate Exchange Access End Office rate
elements, times b) the MOU.
(3) For Transport Facilities, where these facilities are provided by the
Terminating Company, or a Transiting and Terminating Company, an amount
calculated in accordance with the following steps:
(i) Determine the Terminating Company's airline miles from the
End Office which serves the Terminating Company's end user
to either the Terminating Company's Access Tandem switching
facility or the interconnection point with the Transiting
Company(ies).
(ii) Determine the Transiting Company's airlines miles from the
Transiting Company(ies) Access Tandem switching facility to
the interconnection point with the Terminating Company.
(iii) Determine the sum of the total airline miles by adding (i)
and (ii) above.
(iv) Divide the Terminating Company's airline miles determined in
(i) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Terminating Company.
(v) Divide the Transiting Company's airline miles determined in
(ii) preceding by the total airline miles determined in
(iii) preceding, to determine the ratio of local transport
miles provided by the Transiting Company.
(vi) Identify the rates set forth in the Exchange Access Tariff
for either the Terminating Company or Transiting Companies,
or both, as appropriate, which rates are applicable to
Transport Facilities.
(vii) Multiply the ratio determined in (iv) preceding, times the
rate calculated in
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(vi) preceding, times the MOU, and add the amount set forth
in (ix) below to determine the amount due the Terminating
Company.
(viii) Multiply the ratio determined in (v) preceding, times the
rate calculated in (vi) preceding, times the MOU, and add
the amount set forth in (ix) below to determine the amount
due the Transiting Company.
(ix) To the extent the Exchange Access Tariffs of the Terminating
or Transiting Company, or both, provide for the payment of a
fixed transport charge to be assessed with respect to a
terminating location (End Office or toll switch), multiply
this charge times the chargeable MOU.
SECTION VIII
ITORP ADMINISTRATION AND RESPONSIBILITIES
(a) Responsibilities of BA-__. BA-__ shall:
1. Operate and maintain the ITORP system.
2. Provide the requirements and standards for ITORP records and
tapes (ITORP User Guide).
3. Inform Carrier of any proposed change in tape creation or
distribution process at least sixty (60) days prior to the
actual implementation of the change.
4. Develop and implement all system enhancements required to
maintain the integrity of BA-PA's ITORP system.
5. Process ITORP tapes received from Carrier, or its agent,
during the next available billing cycle.
6. Review and analyze daily pre-edit reports to determine if a
tape is acceptable for ITORP processing; provided, however,
that Carrier is not absolved, as the Originating Company, from
its responsibility to conform to ITORP input requirements.
7. Communicate with Carrier, or its agent, to resolve the
problems with tapes which are identified as being unacceptable
for ITORP processing.
8. Create and/or maintain all ITORP tables.
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EXHIBIT D
9. Include the monthly compensation due to and from Carrier as
identified by ITORP on the Inter-Company Net Billing
Statement. The compensation includes 800/888 Service Traffic
and Alternately Billed Services traffic.
10. Settle with all local Exchange Carriers, via the Inter-Company
Net Billing Statement, for 800/888 Service Traffic and
Alternately Billed Services traffic originating from and/or
terminating to Carrier.
11. Distribute monthly ITORP reports.
(b) Responsibilities of Carrier. Carrier shall:
1. Compensate BA-__ for the administration and processing of
ITORP as specified in Attachment A.
2. Notify BA-__ Exchange Carrier Services staff in writing of any
changes in its rates affecting ITORP tables, as specified in
Attachment A, thirty (30) days prior to the effective date of
any such changes.
3. Notify BA-__ Exchange Carrier Services staff in writing of any
network changes, such as changes in traffic routing, sixty
(60) days prior to the implementation of the change in the
network.
4. Conform to BA-__'s ITORP record requirements and standards.
5. Carrier or its designated agent will forward the Exchange
Message Records to BA-__, in a timely manner for processing.
6. Inform the BA-__ Exchange Carrier Services staff in writing of
any proposed changes in the Exchange Message Record creation
or distribution process at least sixty (60) days prior to the
actual implementation of the change.
7. Reimburse BA-__ for compensating other local Exchange Carriers
on behalf of Carrier, as reflected in the Inter-Company Net
Billing Statement.
(c) Fees. Compensation for the administration and processing of ITORP will
be due BA-__ on a monthly basis, based on the number of messages processed in
ITORP for Carrier at an average total cost per message. The processing and
administrative fees applicable on a per message basis are set forth in
Attachment A. These fees may be revised by BA-__, at its discretion and upon
notice to Carrier, based on annual studies conducted by BA-__, and Carrier
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EXHIBIT D
hereby agrees to be bound by such revised rates. A minimum monthly fee, as
specified in Attachment A, will be assessed when Carrier's monthly ITORP
processing charges are below the stated minimum monthly charge.
SECTION IX
LIABILITIES
In the event of an error on the part of BA-__ in calculating or settling
any compensation amounts hereunder, Carrier's sole remedy and BA-PA's only
obligation shall be to re-calculate the compensation amount, and to the extent
any amounts are owed to or owed by Carrier, such amounts will be reflected as an
adjustment in the next Inter-Company Net Billing Statement. In addition and to
the extent applicable, BA-PA's liability under this Agreement and/or in
connection with the settlement, payment and/or calculation of any amounts due
hereunder shall be limited as set forth in the applicable tariffs. BA-__ shall
have no obligation or liability with respect to any billing, settlement or
calculation-of-compensation errors or omissions, including without limitation
the duty to re-calculate any compensation amounts reflected in the Inter-Company
Net Billing Statement, if such error or omission occurred more than two (2)
years prior to the time in which it is brought to BA-PA's attention in writing.
Without limiting the foregoing, in no event shall either party hereto be liable
for consequential, incidental, special or indirect damages (including without
limitation loss of profit or business) hereunder whether such damages are based
in tort (including, without limitation, under any theory of negligence),
contract breach or otherwise, and even if said party knew or should have known
of the possibility thereof.
SECTION X
RELATIONSHIP OF THE PARTIES
Nothing herein contained will be deemed to constitute a partnership or
agency relationship between the parties. Each party agrees that it will perform
its obligations hereunder as an independent contractor and not as the agent,
employee or servant of the other party. Neither party nor any personnel
furnished by such party will be deemed employees or agents of the other party or
entitled to any benefits available under any plans for such other party's
employees. Each party has and hereby retains the right to exercise full control
of and supervision over its own performance of the obligations under this
Agreement, and retains full control over the employment, direction, compensation
and discharge of all employees assisting in the performance of such obligations,
including without limitation all matters relating to payment of such employees,
including compliance with social security taxes, withholding taxes and all other
regulations governing such matters. In addition, each party will be responsible
for its own acts and those of its own subordinates, employees, agents and
subcontractors during the performance of that party's obligations hereunder.
15
<PAGE>
EXHIBIT D
SECTION XI
TERM AND TERMINATION
(a) Term - Upon execution by all parties hereto, this Agreement shall
become effective as of the date first shown on Page 1 of this Agreement, and
shall remain in effect until terminated by either party in accordance with
paragraphs (b), (c), (d), or (e) below.
(b) Termination for Breach - Either party may, upon prior written notice
to the other party, terminate this Agreement in the event the other party is in
default or breach of this Agreement and such breach or default is not corrected
within thirty (30) days after the breaching party has been notified of same.
(c) Termination for Convenience - Upon six (6) months written advance
notice to the other party, either party may terminate this Agreement.
(d) Acts of Insolvency - Either party may terminate this Agreement or any
portion thereof, effective immediately, by written notice to the other party, if
said other party (1) applies for or consents to the appointment of or the taking
of possession by receiver, custodian, trustee, or liquidator of itself or of all
or a substantial part of its property; (2) becomes insolvent; (3) makes a
general assignment for the benefit of creditors; (4) suffers or permits the
appointment of a receiver for its business or assets; (5) becomes subject to any
proceeding under any bankruptcy or insolvency law whether domestic or foreign,
voluntarily or otherwise; or (6) fails to contest in a timely or appropriate
manner, or acquiesces in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code or any application for the
appointment of a receiver, custodian, trustee, or liquidation of itself or of
all or a substantial part of its property, or its reorganization, or
dissolution.
(e) Termination of Interconnection Agreement. Unless otherwise agreed to
by the parties hereto in writing, in the event that the Interconnection
Agreement under Sections 251 and 252 of the Telecommunications Act of 1996,
dated as of December __, 1996, by and between BA-__ and Carrier expires without
being renewed, or expires or is terminated and no other interconnection
agreement has been entered into by BA-__ and Carrier, then this Agreement shall
be deemed terminated effective on the date the aforesaid Interconnection
Agreement expires or is terminated.
SECTION XII
NETWORK CONFIGURATION
Each party shall provide six (6) months advance written notice to the
other party of any network configuration that may affect any of the services or
compensation contemplated under this Agreement, and the parties hereto agree to
use reasonable efforts to avoid service
change.
16
<PAGE>
EXHIBIT D
interruptions during any such network
SECTION XIII
CONSTRUCTION AND EFFECT
All services contemplated under this Agreement are provided in accordance
with any and all applicable regulatory requirements and effective tariffs filed
with and approved by the appropriate federal and/or state regulatory bodies, as
these tariffs and requirements may be modified from time to time. To the extent
there is a conflict between the terms of any said tariff or regulatory
requirement and this Agreement, the terms of the tariff or the regulatory
requirement shall prevail. However, to the extent not in conflict with the
provisions of the applicable tariffs or regulatory requirements, this Agreement
shall supplement the tariffs or regulatory requirements, and it shall be
construed to the fullest extent possible in harmony with such tariffs or
regulatory requirements.
SECTION XIII
MISCELLANEOUS
(a) Headings. Headings used in this Agreement are for reference only, do
not constitute part of this Agreement, and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
(b) Notices. All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing, shall be deemed delivered
(1) on the date of delivery when delivered by hand, (2) on the date of
transmission when sent by electronic mail or facsimile transmission during
normal business hours with telephone confirmation of receipt, (3) one (1) day
after dispatch when sent by overnight courier maintaining records of receipt, or
(4) three (3) days after dispatch when sent by registered mail, postage prepaid,
return-receipt requested, all addressed as follows (or at such other addresses
as shall be given in writing by either party to their other):
If to BA-__: Address: 1320 N. Court House Road, 9th Floor
Arlington, VA 22201
Attn.: Manager-Local Interconnection
Facsimile: 703 974 2188
Telephone: 704 974 4614
If to Carrier: Address:
Attn:
17
<PAGE>
EXHIBIT D
Facsimile:
Telephone:
(c) Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, and nothing herein shall be
construed to create any rights enforceable by any other person or third party.
This Agreement may not be assigned by either party (except by BA-__ to an
affiliate or successor in interest) without the prior written consent of the
other party, which consent shall not be unreasonably withheld.
(d) Waiver. No waiver of any right or term hereof shall be effective
unless in a writing executed by the waiving party. No waiver of any right or
privilege hereunder shall operate as a waiver of any subsequent or similar right
or privilege.
(e) Modifications. This Agreement may be modified or amended only by a
written agreement executed by the parties hereto.
(f) Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed an original.
(g) Severability. If any term, provision, paragraph or clause of this
Agreement or any application thereof shall be held invalid or unenforceable in
any particular jurisdiction, the remainder of this Agreement and any other
application of such term, provision, paragraph or clause shall not be affected
thereby in such jurisdiction (where such remainder or application shall be
construed as if such invalid or unenforceable term, provision, paragraph or
clause has not been inserted), and this Agreement and such application of such
term, provision, paragraph or clause shall not be affected in any other
jurisdiction.
(h) Contingency. Neither party will be held liable for any delay or
failure in performance of this Agreement from any cause beyond its control and
without its fault or negligence including but not limited to acts of God, acts
of civil or military authority, government regulations, embargoes, epidemics,
wars, terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, floods, strikes, power blackouts, other major environmental
disturbances, unusually sever weather conditions, inability to secure products
or services of other persons or transportation facilities, or acts or omissions
of transportation common carriers.
(i) Governing Law. Except as otherwise expressly provided herein, this
Agreement shall be interpreted, construed and governed by the laws of the State
of ____________, without regard to conflict of law provisions.
(j) Confidentiality. Unless by mutual agreement, or except to the extent
directed by a court of competent jurisdiction, neither party shall disclose this
Agreement or the terms hereof to any person other than such party's affiliates
or such party's officers, employees and consultants,
18
<PAGE>
EXHIBIT D
who are similarly bound hereby. This paragraph shall not prevent the filing of
this Agreement with a state or federal commission having jurisdiction over the
parties hereto if such filing is required by rule or order of that commission;
provided, however, that the parties hereto shall jointly request that the
Agreement be treated as confidential by that commission to the extent permitted
under the commission's regulations and procedures. Each party hereto must
maintain the confidentiality of all message, billing, traffic, and call records,
traffic volumes and all other material information and data pertaining to the
traffic covered by this Agreement and the carriers and end users associated with
such traffic.
(k) Remedies under Law. All remedies available to the parties hereto under
the terms of this Agreement shall be in addition to, and not by way of
limitation of, any other rights that said parties may have at law or equity,
none of which are hereby waived.
(l) Entire Agreement. This Agreement, including all Attachments and
Schedules attached hereto, contains the entire agreement, and supersedes and
voids any prior understanding, between BA-__ and Carrier regarding the subject
matter hereof.
19
<PAGE>
EXHIBIT D
In witness whereof, the undersigned parties have caused this Agreement to
be executed on their behalf this _________ day of _________, 19__.
Witness: [Carrier]
By:
- ---------------------------------- ------------------------------------
Witness: Bell Atlantic - _______________, Inc.
By:
- ---------------------------------- ------------------------------------
20
<PAGE>
EXHIBIT D
ATTACHMENT A
BASIS OF COMPENSATION
CHARGES FOR ADMINISTRATION OF ITORP AND ITORP PROCESSING
A. Bell Atlantic - _____________, Inc. charges the following rates for
providing ITORP services:
Rate Per Message/ Month
1. Administrative Charge $
2. Processing Charge Elements:
a. Terminating Traffic $
b. Minute/Message $
c. 800/888 Message $
d. Net Compensation $
e. Collected Revenue Processing Charge $
3. Minimum Monthly Fee $
4. Alternately Billed Calls $
21
<PAGE>
EXHIBIT D
ATTACHMENT B
I.
Message Telecommunications Service - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Carrier
End Office Carrier
Transport based on negotiated billing percentages (BIPs)
II.
800/888 - Terminating to or originating from Carrier Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Originating Company
End Office Originating Company
Transport based on negotiated billing percentages (BIPs)
Query Originating Company
III.
Local Exchange - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Local E.O. Termination Charge Carrier
Transport based on negotiated billing percentages (BIPs)
22
<PAGE>
EXHIBIT A
BELL ATLANTIC - MARYLAND, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES
A. BA SERVICES, FACILITIES, AND ARRANGEMENTS: (1)
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
I. Local Call Termination(2)
Traffic Delivered at BA End Office $.00225/MOU Not Applicable
Traffic Delivered at BA Tandem
$.0033/MOU Not Applicable
II. Unbundled Transport
A. Dedicated Transport
Voice Grade/DS-0 $8.54/Month & All:
$.018/Mile/Month $6.70* (3) /Service Order
plus installation
DS-1 $30.61/Month & charges for each
$.375/Mile/Month initial and additional
facility purchased at
DS-3 $414.74/Month & the time of order
$10.45/Mile/Month
$315.00*/Initial Facility
DDS $8.70/Mile & & $21.28*/Additional
$.02/Mile/Month Facility
</TABLE>
- --------------------------
(1) Unless a citation is provided to a generally applicable BA tariff, all
listed rates and services are available only to COVAD when purchasing these
services for use in the provision of Telephone Exchange Service, and apply only
to Local Traffic and local Ancillary Traffic. BA rates and services for use by
COVAD in the carriage of Toll Traffic shall be subject to BA's tariffs for
Exchange Access Service. Adherence to these limitations is subject to a
reasonable periodic audit by BA.
As applied to wholesale discount rates, unbundled Network Elements or call
transport and/or termination of Local Traffic purchased for the provision of
Telephone Exchange Service or Exchange Access, the rates and charges set forth
in Exhibit A shall apply until such time as they are replaced by new rates as
may be approved or allowed into effect by the Commission from time to time
pursuant to the FCC Regulations, subject to a stay or other order issued by any
court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend
Exhibit A to reflect the new approved rates.
(2) See note 14 regarding measurement and calculation of local traffic
termination charges.
(3) Rates accompanied by an asterisk indicate interim rates which will be
replaced by new rates at such time when established by the Maryland PSC in case
No. 8786.
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
B. Common Transport
Tandem Switching $.000695/MOU Not Applicable
Tandem-Switched Transport $.000353/MOU Not Applicable
C. Entrance Facilities
All:
$6.70*/Service Order
plus installation
charges for each
initial and additional
facility purchased at
the time of order:
2-Wire Voice Grade Channel $11.02/Month $296.00*/Initial &
Termination $171.44*/Additional
4-Wire Voice Grade Channel $17.63/Month $382.37*/Initial &
Termination $221.67*/Additional
DS-1 to Voice Grade Multiplexing $63.20/Month $366.56*/Initial &
$366.56*/Additional
DS-1 Channel Termination $125.32/Month $422.32*/Initial &
$205.89*/Additional
DS-3 to DS-1 Multiplexing $216.05/Month $366.56*/Initial &
$366.56*/Additional
DS-3 Channel Termination $918.37/Month $422.32*/Initial &
$205.89*/Additional
D. Digital Cross-Connect System
Service Establishment Not Applicable $2,062.75*
Database Modification Not Applicable $159.75*/Modification
Request
Reconfiguration by BA Personnel Not Applicable $35.77*/Programming
Charge/Half Hour
DS-0 Cross-Connect $17.03/Port/Month $29.28*/Port
DS-1 Cross-Connect $59.54/Port/Month $36.59*/Port
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
E. Mid-Span Meet Arrangements To be charged in accordance with the
requirements of Section 4.3 of the Agreement
F. Transit Arrangements (for
Interconnections between COVAD and
Carriers other than BA)
Tandem Switching $.000695/MOU Not Applicable
Tandem-Switched Transport $.000353/MOU Not Applicable
III. Unbundled Switching(4)
A. Local Switching Ports
POTS/PBX/Centrex $1.895/Port/Month $6.70*/Service Order
$9.97*/Installation
/Port
ISDN (BRI) $10.545/Port/Month $6.70*/Service Order
$9.97*/Installation
/Port
ISDN (PRI) $113.315/Port/Month $6.70*/Service Order
$105.06*/Installation
/Port
Public/Semi-Public $2.695/Port/Month $6.70*/Service Order
$9.97*/Installation
/Port
DID $5.325/Port/Month $6.70*/Service Order
$631.03*/Installation
/Port
Coordinated Port Cutover Not Applicable $7.81*/Port
B. Tandem Switching Usage $.000695/MOU Not Applicable
</TABLE>
- --------------------------
(4) In addition to the recurring and non-recurring rates set forth herein for
unbundled switching elements, BA may levy upon a purchaser of such elements any
access charges (or portion thereof) permitted by Applicable Laws.
3
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
III. Unbundled Switching (Continued)
C. Local Switching Usage
POTS Originating With Vertical Features $.0038/MOU Not Applicable
POTS Terminating With Vertical Features $.0038/MOU Not Applicable
ISDN Originating Digital Circuit $.002670/MOU Not Applicable*
Switched Voice
ISDN Terminating Digital Circuit $.001532/MOU Not Applicable*
Switched Voice
ISDN Originating Digital Circuit $.001664/MOU Not Applicable*
Switched Data
ISDN Terminating Digital Circuit $.001532/MOU Not Applicable*
Switched Data
D. POTS Features
PBX $.000918/MOU Both:
$4.24*/Service Order
Multi-Line Hunting $.0000013/MOU $.10*/Installation
E. Centrex Features
UCD $.001098/MOU All:
$4.24*/Service Order
Hunting $.000123/MOU $.10*/Installation
Queuing $.000426/MOU
Intercom & Features $.018648/MOU
Attendant $.019499/MOU
Attendant Console $.021134/MOU
Centralized Attendant Services $.196392/MOU
Attendant Access Code Dialing $.044330/MOU
Automatic Route Selection $.000269/MOU
Electronic Tandem Switching $.000997/MOU
F. ISDN Centrex Feature $.007571/MOU $4.24*/Service Order
$.10*/Installation
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
IV. Unbundled Loops
2 Wire Analog Loops (POTS Loops) Rate Group: Service Order:
----------
A1 - $12.11/mo. $6.70*
Installation:
A2(5) - $12.85/mo. If premises visit
not required,
B1 - $25.96/mo. initial & each
additional loop -
B2 - $18.40/mo. $9.52*
If premises visit
required, initial
loop - $67.72*
If premises visit
required, additional
loop - $29.96*
4 Wire Loops Rate Group: Service Order: $6.70*
----------
A1 - $24.74/mo.
. Installation:
A2(6) - $26.45/mo. If premises visit not
required, initial &
B1 - $52.45/mo. each additional loop
- $48.41*
B2 - $37.38/mo.
If premises visit
required, initial
loop - $117.21*
If premises visit
required, additional
loop - $79.45*
</TABLE>
- --------------------------
(5) Rate Group A2 is modified to include the Hagerstown, Cumberland, and
Salisbury exchanges.
(6) See note 5
5
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
IV. Unbundled Loops (continued)
ISDN Loops Service Order: $9.52*
Rate Group
. A1-$13.63 Installation:
A2(7)-$14.37 If premises visit not
B1-$27.40 required, initial &
B2-$19.90 each additional loop
- $17.73*
If premises visit
required, initial
loop - $75.92*
If premises visit
required, additional
loop - $38.16*
DS-1Loops Rate Groups: Service Order:
A1-$133.03 $6.70*
. A2(8)-$114.64 Installation:
B1-$152.72 If premises visit
B2-$133.10 not required,
initial & each
additional loop -
$48.41*
If premises visit
required, initial
loop - $117.21*
If premises visit
required, additional
loop - $79.45*
</TABLE>
- --------------------------
(7) See note 5
(8) See note 5
6
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
IV. Unbundled Loops (continued)
Customer Specified Signaling - 2-Wire Rate Groups: Service Order:
A1-$12.11 $6.70*
A2(9)-$12.85 Installation:
B1-$25.96 If premises visit
B2-$18.40 not required,
initial & each
additional loop -
$48.41*
If premises visit
required, initial
loop - $117.21*
If premises visit
required, additional
loop - $79.45*
Customer Specified Signaling - 4-Wire Rate Groups: Service Order:
. A1-$24.74 $6.70*
A2(10)-$26.45 Installation:
B1-$52.45 If premises visit
B2-$37.38 not required,
initial & each
additional loop -
$48.41*
If premises visit
required, initial
loop - $117.21*
If premises visit
required, additional
loop - $79.45*
2 Wire ADSL Loops TBD TBD
2 Wire & 4 Wire HDSL Loops TBD TBD
Distance Extensions for various ULL types TBD TBD
for distances exceeding transmission
characteristics in applicable technical
references.
</TABLE>
- --------------------------
(9) See note 5
(10) See note 5
7
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
Coordinated Cutover If premises visit not
required,
$7.80*/Loop
If premises visit
required,
$18.40*/Loop
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
V. Collocation Cross-Connection(11)
A. Voice Grade Loop
Physical DS0 CO side to equipment Per interstate [BA Not Applicable
Virtual DS0 with RFT CO side MDF to FCC 1 sec. 19]access Not Applicable
equipment tariffs; intrastate
Virtual DS1 with EDSX (1DS1 + 24 DS0s access tariffs (BA- Both:
with IDLC) MD 217); BA-MD $6.70/Service Order
Virtual DS1 with CFA (24DS0s with IDLC) 216 sec 8 tariff. $312.13/Initial
Installation &
$109.16/Additional
Installations
B. Other
Physical DS3 or DS1 Cable Rack Per interstate [BA Not Applicable
Physical DS3 FCC 1 sec. 19]access All:
tariffs; intrastate $6.70/Service Order
Physical DS1 access tariffs (BA-MD $269.62/Initial
217); BA-MD 216 sec 8 Installation &
Virtual DS3 tariff. $98.53/Additional
Installations
Virtual DS1
VI. Time and Materials
Special Construction As applicable per BA-MD tariff 203 sec. 2
Service Technician (service work on Not Applicable $1.20*/Service Order
unbundled loops outside of the Central $25.18*/Premises
Office) Visit
$10.61* Labor
Charge/ Quarter Hour
After First Quarter
Hour
Central Office Technician Not Applicable $1.20*/Service Order
$10.33* Labor
Charge/ Quarter Hour
</TABLE>
- --------------------------
(11) Collocation Cross-Connection rates are interim rates which will be replaced
by new rates at such time when established by the Maryland PSC in case No. 8766
9
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
VII. Signaling and Databases
A. STP Port
SS7 Interconnection Per interstate [BA Per interstate [BA
FCC 1 sec. 6.9.1.L] FCC 1 sec. 6.9.1.G]
and intrastate [BA-MD and intrastate
217 sec. 6.9.1.M] [BA-MD 217 sec.
tariff 6.9.1.M] tariff
Illustrative:
Interstate:
STP ports,
$900.00 /mo.
STP access,
$3.50/mile/mo.
Intrastate:
STP ports,
$932.58/mo.;
STP access,
$2.38/mile/mo.
B. 800/888 Database
Basic Query $.00082/Query Not Applicable
Vertical Query $.000291/Query Not Applicable
C. LIDB Validation
LIDB Point Codes Not Applicable $88.46*/Point Code
Calling Card $.016352/Query Not Applicable
Billed Number Screening $.016352/Query Not Applicable
Storage of COVAD'S Data in LIDB Database Not Applicable $1,514.69* Service
Establishment
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
VII. Signaling and Databases (Continued)
D. AIN Service Creation (ASC) Service
1. Developmental Charges
Service Establishment Not Applicable $911.12*
Service Creation Access Port $105.78/Port/Month Not Applicable
Service Creation Usage
a. Remote Access $1,148.50 /Day Not Applicable
b. On-Premise $1,148.50/Day Not Applicable
Certification & Testing $79.35/Hour Not Applicable
Help Desk Support $ 83.98/Hour Not Applicable
2. Service Charges
Subscription Charge $3.29/Month Not Applicable
Database Queries
a. Network Query $.0006/Query Not Applicable
b. COVAD Network Query $.0006/Query Not Applicable
c. COVAD Switch Query $.0006/Query Not Applicable
Trigger Charge
a. Line Based $.00063/Query Not Applicable
b. Office Based $.00063/Query Not Applicable
Utilization Element $.00025/ACU Not Applicable
Service Activation Charge
a. Network Service Activation Not Applicable .$13.19*/Service
Activated/Line
b. COVAD Network Service Not Applicable $13.19*/Service
Activation Activated/Line
c. COVAD Switch Service Not Applicable $13.19*/Service
Activation Activated /Line
Service Modification
DTMF Update $.07/Occurrence Not Applicable
Switch Based Announcement $.003/ Announcement Not Applicable
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
VIII. Directory Listings & Books
White pages directory listings Per tariff MD 216 sec. 5.C & Order 73010 in
case 8731.
$.29/mo./primary listing or a $5.00 one time
charge/primary listing, at COVAD's option
Additional Tariffed Listing Services Per Retail rates less wholesale discount. For
Commission Order No. 73010 Dated November 8, retail rates see BA-MD tariff No. 203 sec. 4.
1996
Books & delivery (annual home area No charge for normal numbers of books
directories only) delivered to end users; bulk deliveries to
COVAD per separate arrangement
IX. Operator Services/Directory Assistance
Direct Access $.0265/Query $31,049.76*/Link
Service Establishment Not Applicable $15,669.92*
Directory Assistance Residential: Not Applicable
$.25/Call
Business:
.3205/Call
Directory Transport
Tandem Switching $.000577/Call Not Applicable
Tandem Switched Transport $.000099/Call & Not Applicable
$.000001/Mile/Call
Operator call completion Per separate contract; branding available.
Operator Services - Live $.011369/Operator Not Applicable
Work Second
Operator Services - Automated $.007396/Automated Not Applicable
Work Second
Branding for Directory Assistance and/or Not Applicable $1,401.12*/Customer
Operator Services Message
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
X. Access to Operation Support Systems
A. Pre-Ordering $.26*/Query Not Applicable
B. Ordering $4.22*/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.26*/Query Not Applicable
2. EB/OSI Access $1.20*/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $254.11*/CD-ROM /Month Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000267*/Message Not Applicable
b. Delivery of DUF
Data Tape $21.46*/Tape $63.27*/Programming
Hour
Network Data Mover $.000096*/Message Not Applicable
CMDS $.00100*/Message $63.27*/Programming
Hour
c. DUF Transport
9.6 kb Communications Port $10.56*/Month $7,416.65*/Port
56 kb Communications Port $29.15*/Month $30,717.61*/Port
256 kb Communications Port $29.15*/Month $51,094.01*/Port
T1 Communications Port $370.26*/Month $182,318.17*/Port
Line Installation Not Applicable $63.27*/Programming
Hour
Port Set-up Not Applicable $10.16*/Port
Network Control Programming Coding Not Applicable $63.27*/Programming
Hour
XI. Exchange Access Service
Interstate Per BA-FCC tariff number 1
Intrastate Per BA- MD tariff number 217
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
XII. Number Portability
Interim (using RCF) Per Commission Order dated November 8, 1996,
track and true-up until interim funding
mechanism established.
Permanent Per permanent funding mechanism when
established.
XIII. 911/E911
Transport Per section II. above
Data Entry and Maintenance No Charge
XIV. Poles Conduits & ROW Per contract rates pursuant to 47 U.S.C. sec.
224
Illustrative:
Duct: $4.50/Foot/Year
Pole: $3.81/Attachment/Year
XV. Network Interface Device $.56/mo Not Applicable
XVI. Access to Telephone Numbers (NXX codes No Charge
issued per ICCF Code Administration Guidelines)
XVII. Local Dialing Parity No Charge
XVIII. Customized Routing
Customized Routing $.05939/Call $4.10*/Line
Customized Routing Transport Per section II above.
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
XIX. Wholesale Discount for Resale of Retail Telecommunications Services(12)
Resale of retail services as per Commission 19.87%(13)
Order in case 8731, dated November 8, 1996.
Assumes COVAD will provide own operator and
directory assistance services.
</TABLE>
- --------------------------
(12) Excludes telecommunications services designed primarily for wholesale, such
as switched and special exchange access service, and, subject to Section 12 of
the Statement, the following additional arrangements that are not subject to
resale: limited duration (90 days or less) promotional offerings, public coin
telephone service, and technical and market trials. Taxes shall be collected and
remitted by the reseller and BA in accordance with legal requirements and as
agreed between the Parties. Surcharges (e.g., 911, telecommunications relay
service, universal service fund) shall be collected by the reseller and either
remitted to the recipient agency or NECA, or passed through to BA for remittance
to the recipient agency or NECA, as appropriate and agreed between the Parties.
End user common line charges shall be collected by the reseller and remitted to
BA.
(13) Pending establishment of mechanized billing procedures adapted to resale,
BA will apply the wholesale discount for resale as a "bottom-of-the-bill"
discount rate and will utilize a "true-up" process to correct possible
inadvertent application of the wholesale discount to the exclusions identified
herein and to reflect other adjustments as the Companies agree.
15
<PAGE>
B. COVAD SERVICES, FACILITIES, AND ARRANGEMENTS:
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charges:
- ------------------------------- ------------------ ----------------------
<S> <C> <C>
I. Local Call Termination
Traffic Delivered at Switch Serving End $.00225/MOU Not Applicable
Office Area
Traffic Delivered at Switch Serving Tandem $.0033/MOU Not Applicable
Area
II. Number Portability
Interim (using RCF) Per Commission Order dated November 8, 1996,
track and true-up until interim funding
mechanism established.
Permanent Per permanent funding mechanism when
established.
III. Exchange Access Service
Interstate Per COVAD FCC exchange access tariff.
Intrastate Per COVAD MD tariff exchange access tariff.
IV. All Other COVAD Services Available to BA Available at COVAD's tariffed or otherwise
for Purposes of Effectuating Local Exchange generally available rates, not to exceed BA
Competition rates for equivalent services available to
COVAD.
</TABLE>
<PAGE>
14 Local Traffic Termination Rates
A. Charges by BA
(a) Traffic delivered to or BA Access Tandem: $.0033 per mou.
(b) Traffic delivered directly to terminating BA End Office: $.00225
per mou.
B. Charges by COVAD
1. Single-tiered interconnection structure:
COVAD's rates for the termination of BA's Local Traffic under the
single-tiered interconnection structure shall be recalculated once each
year on each anniversary of the Effective Date (the "Rate Determination
Date"). The methodology for recalculating the rates is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic
delivered by COVAD to the BA Access Tandem for most recent billed
quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by
COVAD directly to the terminating BA End Office for most recent
billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by
COVAD to BA for most recent billed quarter.
COVAD Charge at the COVAD-IP =
(Access Tandem Minutes x $.0033) + (End Office Minutes x $.00225)
-----------------------------------------------------------------
Total Minutes
For the first year after the Effective Date, the COVAD charge shall be
calculated based on the traffic data of the quarter immediately
preceding such Effective Date, or if no such traffic exists, on the
proportion of local call termination trunks to BA End Offices and to BA
Access Tandems.
2. Multiple-tiered interconnection structure (if offered by COVAD to any
carrier)
(a) Local Traffic delivered to COVAD Access Tandem: $.0033 (b)
Local Traffic delivered to terminating COVAD End Office/node: $.00225
C. Miscellaneous Notes
1. The COVAD termination rate under the single-tiered interconnection structure
set forth above is intended to be a Local Traffic termination rate for
Interconnection to the COVAD-IP within each LATA that is reciprocal and equal to
the actual rates that will be charged by BA to COVAD under the two-tiered Local
Traffic termination rate structure described above that will apply after the
first anniversary of the Effective Date. The single COVAD termination rate is
also intended to provide financial incentives to COVAD to deliver traffic
directly to BA's terminating End Offices once COVAD's traffic volumes reach an
appropriate threshold.
17
<PAGE>
Exhibit 10.16
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of May 26, 1999
by and between
BELL ATLANTIC -- WASHINGTON D.C., INC.
and
HARVARD NET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
26th day of May, 1999 (the "Effective Date"), by and between Bell Atlantic
- -Washington D.C., Inc. ("BA"), a District of Columbia corporation with offices
at 1710 H Street N.W., Washington, D.C. 20006, and Harvard Net, Inc.
("HarvardNet"), a Delaware, corporation with offices at 500 Rutherford Avenue,
Charlestown, Massachusetts, 02129 (each a "Party" and, collectively, the
"Parties").
WHEREAS, Harvardnet has requested, pursuant to Section 252(i) of the Act,
that BA make available to Harvardnet Interconnection, services and unbundled
Network Elements upon the same terms and conditions as provided in the
Interconnection Agreement (and amendments thereto) between Dieca Communications,
Inc. and BA, dated as of October 7, 1998, for Washington, D.C. , approved by the
Commission under Section 252 of the Act copies of which agreement and amendments
are attached hereto as Appendix 1 (the "Separate Agreement"); and
WHEREAS, BA has agreed, subject to the terms and conditions set forth
below, to make available to Harvardnet hereby Interconnection, services and
unbundled Network Elements upon the terms and conditions of the Separate
Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Harvardnet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement, as it is in effect the date hereof after giving effect to
operation of law, and of the Appendices hereto, are incorporated by reference in
their entirety herein and form an integral part of this Agreement.
1.2 References in the Separate Agreement to Dieca Communications, Inc. or
to Covad shall for purposes of this Agreement be deemed to refer to Harvardnet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of the Separate Agreement, this Agreement shall
continue in effect until March 15, 2001, unless extended pursuant to Section
22.1 of the Separate Agreement. If the parties to the Separate Agreement
terminate that agreement prior to the above date, such termination shall have no
impact on the term or effectiveness of this Agreement.
<PAGE>
1.4 All references in the Separate Agreement to "800/888" shall be deleted
in their entirety and replaced with the following: "800/888/877" and other such
toll free numbers.
1.5 All usage data to be provided pursuant to Sections 6.10 of the
Separate Agreement shall be sent to the following address on behalf of
Harvardnet:
Harvard Net, Inc.
Attn: James Newman
Vice President of Operations
500 Rutherford Avenue
Charlestown, MA 02129
1.6 All certificates or other proof of insurance to be sent to BA under
Section 21.3 of the Separate Agreement shall be sent to the following address:
Director - Interconnection Services
Bell Atlantic - Telecom Industry Services
Room 1423
1095 Avenue of the Americas
New York, New York 10036
1.7 All notices, affidavits, exemption-certificates or other
communications to Harvardnet under Section 29.6.7 of the Separate Agreement
shall be sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (800) 772-6771 (Ext. 607)
Facsimile: (617) 242-6991
1.8 All notices, affidavits, exemption-certificates or other
communications to BA under Section 29.6.7 of the Separate Agreement shall be
sent to the following address:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
Telephone: (212) 395-1280
Facsimile: (212) 597-2915
1.9 Notices to Harvardnet under Section 29.10 of the Separate Agreement
shall be
<PAGE>
sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (617) 242-1700
Facsimile: (617) 242-6991
1.10 Notices to BA under Section 29.10 of the Separate Agreement shall be
sent to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
Bell Atlantic - Washington D.C., Inc.
Attn: General Counsel
11th Floor
1710 H Street, N.W.
Washington, D.C. 20006
1.11 Schedules 3.0 and 4.0 set forth at Appendix 2 hereto shall replace
and supersede in their entirety Schedules 3.0 and 4.0 of the Separate Agreement.
2.0 Clarifications
2.1 The entry into, filing and performance by the Parties of this
Agreement does not in any way constitute a waiver by either Party of any of the
rights and remedies it may have to seek
<PAGE>
review of any of the provisions of the Separate Agreement, or to petition the
Commission, other administrative body or court for reconsideration or reversal
of any determination made by any of them, or to seek review in any way of any
portion of this Agreement in connection with Harvardnet's election under Section
252(i) of the Act.
2.2 Notwithstanding any other provisions of this Agreement, where the
state so mandates, BA shall have no obligation to perform under this Agreement
until such time as Harvardnet has obtained a Certificate of Public Convenience
and Necessity ("CPCN") or such other Commission authorization as may be required
by law as a condition for conducting business in the District of Columbia as a
local exchange carrier, provided that, this restriction does not apply to BA's
obligation to provide Collocation or any other tariffed service to Harvardnet
irrespective of Harvardnet's CPCN status.
2.3 The Parties shall meet within thirty (30) days of the Effective Date,
or at such other time to which the Parties mutually agree, to exchange
information and to discuss in good faith the implementation issues addressed in
Section 10.1 (Joint Network Implementation and Grooming Process).
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 26th day of May, 1999.
HARVARD NET, INC BELL ATLANTIC - WASHINGTON D.C., INC.
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
--------------------------- -------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
---------------------- --------------------------
Title: President and Chief Title: Vice-President - Interconnection
Executive Officer Services Policy & Planning
------------------------ --------------------------------
<PAGE>
APPENDIX 2
SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE FOR WASHINGTON D.C.
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
===============================================================================
LATA in
Washington D.C. Milestone Date
- -------------------------------------------------------------------------------
LATA ___ LATA Start Date TBD
----------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
----------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
----------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
----------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
----------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
----------------------------------------------------------
SS7 Certification Achieved; (1) TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements(2)
----------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
Call-through Testing Completed; TBD
"Interconnection Activation Date"
===============================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in Washington D.C. when HARVARDNET
has an effective Tariff for business Telephone Exchange Service in Washington
D.C. and a
- ----------
(1) SS7 certification scheduling depends on actual schedule availability
at time of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
(2) Intervals for IDLC collocation arrangements for VG ULL capability are
60 days for Virtual Collocation and 120 days for Physical Collocation from the
date the arrangement is applied for.
<PAGE>
APPENDIX 2
significant number of Telephone Exchange Service Customer lines in service for
business Telephone Exchange Service Customers in that LATA in Washington D.C.
that are not affiliates or employees of either BA or HARVARDNET, and (ii)
residential Telephone Exchange Service shall be considered "fully operational"
in a LATA in Washington D.C. when HARVARDNET has an effective Tariff for
residential Telephone Exchange Service in Washington D.C. and has a significant
number of Telephone Exchange Service Customer lines in service for residential
Telephone Exchange Service Customers in that LATA in Washington D.C. that are
not affiliates or employees of either BA or HARVARDNET.
<PAGE>
APPENDIX 2
SCHEDULE 4.0 Network Interconnection Schedule
LATA HARVARDNET-IP BA-IP Activation Date
TBD TBD TBD TBD
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of October 7, 1998
by and between
BELL ATLANTIC - WASHINGTON D.C. INC.
and
DIECA COMMUNICATIONS, INC.
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
1.0 DEFINITIONS 2
2.0 INTERPRETATION AND CONSTRUCTION 11
3.0 INTERCONNECTION ACTIVATION DATES AND IMPLEMENTATION
SCHEDULE 11
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) 12
4.1 Scope 12
4.2 Physical Architectures 14
4.3 Mid-Span Meets 15
4.4 Interconnection in Additional LATAs 16
4.5 Interconnection Points for Different Types of Traffic 17
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE
TRAFFIC PURSUANT TO SECTION 251(c)(2) 17
5.1 Scope of Traffic 17
5.2 Trunk Group Connections and Ordering 17
5.3 Additional Switching System Hierarchy and Trunking Requirements 18
5.4 Signaling 18
5.5 Grades of Service 18
5.6 Measurement and Billing 18
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5) 19
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC
PURSUANT TO 251(c)(2) 20
6.1 Scope of Traffic 20
6.2 Trunk Group Architecture and Traffic Routing 20
6.3 Meet-Point Billing Arrangements 21
6.4 800/888 Traffic 24
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC 25
7.1 Information Services Traffic 25
7.2 LSV/VCI Traffic 26
7.3 Transit Service 27
7.4 911/E911 Arrangements 28
7.5 Ancillary Traffic Generally 30
8.0 NUMBER RESOURCES, RATE CENTERS, AND RATING POINTS 30
2
<PAGE>
9.0 NETWORK MAINTENANCE AND MANAGEMENT; OUTAGES 31
9.1 Interference or Impairment 31
9.2 Repeated or Willful Noncompliance 31
9.3 Outage Repair Standard 32
9.4 Notice of Changes -- Section 251(c)(5) 32
10.0 JOINT NETWORK IMPLEMENTATION AND GROOMING PROCESS;
INSTALLATION, MAINTENANCE, TESTING AND REPAIR 32
10.1 Joint Network Implementation and Grooming Process 32
10.2 Installation, Maintenance, Testing and Repair 33
10.3 Forecasting Requirements for Trunk Provisioning 33
11.0 UNBUNDLED ACCESS -- SECTION 251(c)(3) 34
11.1 Available Network Elements 35
11.2 Unbundled Local Loop (ULL) Transmission Types 35
11.3 Network Interface Device 37
11.4 Unbundled Switching Elements 37
11.5 Interoffice Transmission Facilities 37
11.6 Operations Support Systems 37
11.7 Limitations on Unbundled Access 37
11.8 Availability of Other Network Elements on an Unbundled Basis 38
11.9 Provisioning of Unbundled Local Loops 39
11.10 Maintenance of Unbundled Local Loops 40
11.11 Rates and Charges 40
12.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1) 41
12.1 Availability of Retail Rates for Resale 41
12.2 Availability of Wholesale Rates for Resale 41
12.3 Availability of Support Services for Resale 41
12.4 Restrictions on Resale and Use of BA Services 41
13.0 COLLOCATION -- SECTION 251(c)(6) 42
14.0 NUMBER PORTABILITY -- SECTION 251(b)(2) 44
14.1 Scope 44
14.2 Procedures for Providing INP Through Remote Call Forwarding 44
14.3 Procedures for Providing INP Through Direct Inward Dial Trunks
(Flex-DID) 46
14.4 Procedures for Providing LTNP Through Full NXX Code Migration 46
14.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers 46
14.6 Recovery of INP Costs Pursuant to FCC Order and Rulemaking 47
15.0 DIALING PARITY -- SECTION 251(b)(3) 47
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 48
3
<PAGE>
17.0 DATABASES AND SIGNALING 48
18.0 COORDINATED SERVICE ARRANGEMENTS 50
18.1 Intercept and Referral Announcements 50
18.2 Coordinated Repair Calls 50
18.3 Customer Authorization 50
19.0 DIRECTORY SERVICES ARRANGEMENTS 51
19.1 Directory Listings and Directory Distributions 51
19.2 Yellow Pages Maintenance 53
19.3 Service Information Pages 53
19.4 Directory Assistance (DA); Call Completion 54
20.0 COORDINATION WITH TARIFF TERMS 54
21.0 INSURANCE 55
22.0 TERM AND TERMINATION 55
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 56
24.0 CANCELLATION CHARGES 56
25.0 INDEMNIFICATION 57
26.0 LIMITATION OF LIABILITY 57
27.0 PERFORMANCE STANDARDS FOR SPECIFIED ACTIVITIES 58
27.1 Performance Standards 58
27.2 Performance Monitoring Reports, Standards and Remedies 58
27.3 Performance Measurement, Standard and Remedy for
xDSL-Compatible ULLs 59
28.0 COMPLIANCE WITH LAWS; REGULATORY APPROVAL 59
29.0 MISCELLANEOUS 60
29.1 Authorization 60
29.2 Independent Contractor 60
29.3 Force Majeure 61
29.4 Confidentiality 61
29.5 Choice of Law 62
29.6 Taxes 62
29.7 Assignment 65
29.8 Billing and Payment; Disputed Amounts 65
29.9 Dispute Resolution 66
29.10 Notices 66
4
<PAGE>
29.11 Section 252(i) Obligations 67
29.12 Joint Work Product 68
29.13 No Third Party Beneficiaries; Disclaimer of Agency 68
29.14 No License 69
29.15 Technology Upgrades 69
29.16 Survival 69
29.17 Entire Agreement 70
29.18 Counterparts 70
29.19 Modification, Amendment, Supplement or Waiver 70
29.20 Successors and Assigns 70
29.21 Publicity and Use of Trademarks or Service Marks 70
29.22 Integrity of BELL ATLANTIC Network 70
29.23 Merger Conditions 70
LIST OF SCHEDULES AND EXHIBITS
------------------------------
Schedules
Schedule 1.0 Certain Terms As Defined in the Act, As of Effective Date
Schedule 3.0 Initial Network Implementation Schedule
Schedule 4.0 Interconnection Points in LATA
Schedule 4.5 Interconnection Points for Different Types of Traffic
Schedule 6.3 Rate Elements Under Meet Point Billing
Schedule 11.3 Access to Network Interface Device
Schedule 11.4 Unbundled Switching Elements
Schedule 12.3 Support Services for Resale
Schedule 13.4 Collocation: Shared Cage Arrangement
Schedule 27.2 Performance Monitoring Reports, Standards and Remedies
Exhibits
Exhibit A Detailed Schedule of Itemized Charges
Exhibit B Network Element Bona Fide Request
Exhibit C Directory Assistance and Call Completion Services Agreement
Exhibit D IntraLATA Telecommunications Services Settlement Agreement
5
<PAGE>
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, is effective as of the 7th day of October, 1998
(the "Effective Date"), by and between Bell Atlantic - Washington D.C. Inc.
("BA"), a New York corporation with offices at 1710 H Street N.W., Washington,
D.C. 20006, and DIECA Communications, Inc. (referred to in this Agreement as
"Covad"), a Virginia corporation with offices at 6849 Old Dominion Drive, Suite
220, McLean, VA 22101.
WHEREAS, the Parties want to interconnect their networks at mutually
agreed upon points of interconnection to provide Telephone Exchange Services,
Switched Exchange Access Services, and other Telecommunications Services (all as
defined below) to their respective customers;
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 Act (as defined below) and additional services as set forth
herein; and
WHEREAS, Sections 251, 252, and 271 of the Telecommunications Act of 1996
have specific requirements for interconnection, unbundling, and service resale,
commonly referred to as the "Checklist", and the Parties intend that this
Agreement address those Checklist requirements.
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, Covad and BA hereby agree as follows:
This Agreement sets forth the terms, conditions and pricing under which BA
and Covad (individually, a "Party" and collectively, the "Parties") will offer
and provide to each other network Interconnection, access to Network Elements,
ancillary services, and wholesale Telecommunications Services available for
resale within each LATA in which they both operate within the District of
Columbia. As such, this Agreement is an integrated package that reflects a
balancing of interests critical to the Parties. It will be submitted to the
District of Columbia Public Service Commisssion, and the Parties will
specifically request that the Commission refrain from taking any action to
change, suspend or otherwise delay implementation of the Agreement. So long as
the Agreement remains in effect, neither Party shall advocate before any
legislative, regulatory, or other public forum that any term of this Agreement
be modified or eliminated, unless mutually agreed to by the Parties.
1.0 DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
specified below in
6
<PAGE>
this Section 1. For convenience of reference only, the definitions of certain
terms that are As Defined in the Act (as defined below) are set forth on
Schedule 1.0.
1.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et. seq.),
as amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or the
Commission.
1.2 "ADSL" or "Asymmetrical Digital Subscriber Line" is a digital loop
transmission technology which typically permits the transmission of up to 6 Mbps
downstream (from the CO to the end-user customer) and up to 640 kbps digital
signal upstream (from the end-user customer to the CO).
1.2.A "Affiliate" is As Defined in the Act.
1.3 "Agreement" means this Interconnection Agreement under Sections 251
and 252 of the Act and all Exhibits, Schedules, addenda, and attachments
referenced herein and/or appended hereto.
1.4 "Ancillary Traffic," means all traffic that is destined for ancillary
services, or that may have special billing requirements, including but not
limited to the following: LSV/VCI, Directory Assistance, 911/E911, Operator
Services (IntraLATA call completion), IntraLATA third party, collect and calling
card, 800/888 database query, LIDB, and information services requiring special
billing.
1.5 "Applicable Laws" or "Applicable Law" or "Law" means all laws,
regulations, and orders applicable to each Party's performance of its
obligations hereunder.
1.6 "As Defined in the Act" means as specifically defined by the Act and
as from time to time interpreted in the duly authorized rules and regulations of
the FCC or the Commission.
1.7 "As Described in the Act" means as described in or required by the Act
and as from time to time interpreted in the duly authorized rules and
regulations of the FCC or the Commission.
1.8 "Automatic Number Identification" or "ANI" means a signaling parameter
which refers to the number transmitted through a network identifying the billing
number of the calling party.
1.8.A "Bona Fide Request" or "BFR" means the process described on Exhibit
B that prescribes the terms and conditions relating to a Party's request that
the other Party provide a BFR Item (as defined in Exhibit B) not otherwise
provided by the terms of this Agreement.
1.9 "Calling Party Number" or "CPN" is a Common Channel Signaling ("CCIS")
parameter which refers to the number transmitted through a network identifying
the calling Party.
7
<PAGE>
1.10 "Central Office Switch" means a switch used to provide
Telecommunications Services, including, but not limited to:
(a) "End Office Switch" or "End Office" is a switching entity that
is used to terminate Customer station Loops for the purpose of interconnection
to each other and to trunks; and
(b) "Tandem Switch" or "Tandem Office" or "Tandem" is a switching
entity that has billing and recording capabilities and is used to connect and
switch trunk circuits between and among End Office Switches and between and
among End Office Switches and carriers' aggregation points, points of
termination, or points of presence, and to provide Switched Exchange Access
Services.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
1.11 "CLASS Features" means certain CCIS-based features available to
Customers including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification, and future CCIS-based offerings.
1.12 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in equipment necessary for
Interconnection or for access to Network Elements offered by the second Party on
an unbundled basis that has been installed and maintained at the premises of a
second Party (the "Housing Party"). For purposes of Collocation, the "premises"
of a Housing Party is limited to a Housing Party Wire Center, other mutually
agreed-upon locations of the Housing Party, or any other location for which
Collocation has been ordered by the FCC or Commission. 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 owns, installs, and maintains equipment
dedicated to use by the Collocating Party in the Housing Party's premises. BA
currently provides Collocation under terms, rates, and conditions as described
in tariffs on file or soon to be filed with the FCC and the Commission. For
purposes of this Agreement, Collocation also includes alternative Collocation
arrangements required by Applicable Law or agreed to by the Parties purusant to
Section 13 below.
1.13 "Commission" means the District of Columbia Public Service Commission
Commission.
1.14 "Common Channel Interoffice Signaling" or "CCIS" means a method of
transmitting call set-up and network control data over a digital signaling
network separate from the public switched telephone network facilities that
carry the actual voice or data traffic of the call. "SS7" means the common
channel out of band signaling protocol developed by the Consultative Committee
for International Telephone and Telegraph ("CCITT") and the American National
Standards Institute ("ANSI"). BA and Covad currently utilize this out-of-band
signaling protocol. "CCSAC" or "CCSAS" means the common channel signaling access
connection or
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service, respectively, which connects one Party's signaling point of
interconnection ("SPOI") to the other Party's STP for the exchange of SS7
messages.
1.15 "Competitive Local Exchange Carrier" or "CLEC" means any Local
Exchange Carrier other than BA, operating as such in BA's certificated territory
in the District of Columbia. Covad is a CLEC.
1.16 "Cross Connection" means a jumper cable or similar connection
provided pursuant to Collocation at the digital signal cross connect, Main
Distribution Frame or other suitable frame or panel between (i) the Collocating
Party's equipment and (ii) the equipment or facilities of the Housing Party.
1.17 "Customer" means a third-party residence or business end-user
subscriber to Telecommunications Services provided by either of the Parties.
1.17.A "Customer Proprietary Network Information" or "CPNI" is As Defined
in the Act.
1.18 "Dialing Parity" is As Defined in the Act.
1.19 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.20 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.21 "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.
1.22 "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.
1.23 "Exchange Access" is As Defined in the Act.
1.24 "Exchange Message Record" or "EMR" means the standard used for
exchange of telecommunications message information among Local Exchange Carriers
for billable, non-billable, sample, settlement, and study data. EMR format is
contained in BR-010-200-010 CRIS Exchange Message Record, a Bell Communications
Research, Inc. ("Bellcore") document that defines industry standards for
Exchange Message Records.
1.25 "FCC" means the Federal Communications Commission.
1.26 "FCC Regulations" means Title 47 of the Code of Federal Regulations,
including but not limited to the amendments adopted in, and the additional
requirements of, the First Report
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and Order In the Matter of Implementation of the Local Competition Provisions in
the Telecommunications Act of 1996 and Interconnection between Local Exchange
and Commercial Mobile Radio Service Providers, CC Docket Nos. 96-98 and 95-185,
adopted on August 1, 1996 and released on August 8, 1996, the Second Report and
Order and Memorandum Opinion and Order, CC Docket Nos. 96-98, 95-185, and
92-237, adopted and released on August 8, 1996, and any and all rules or
regulations that are issued from Deployment of Wireline Services Offering
Advanced Telecommunications Capability, CC Docket No. 98-147 et al., Memorandum
Opinion and Order and Notice of Proposed Rulemaking, FCC 98-188, released on
August 7, 1998, as each may be amended, stayed, voided, repealed, or
supplemented from time to time.
1.27 "HDSL" or "High-Bit Rate Digital Subscriber Line" means a
transmission technology which transmits up to 784 kbps simultaneously in both
directions on a two-wire channel using a 2 Binary / 1 Quartenary ("2B1Q") line
code.
1.28 "Incumbent Local Exchange Carrier" or "ILEC" is As Defined in the
Act. For purposes of this Agreement, BA is an Incumbent Local Exchange Carrier.
1.29 "Independent Telephone Company" or "ITC" means any entity other than
BA which, with respect to its operations within the District of Columbia, is an
Incumbent Local Exchange Carrier.
1.30 "Information Service Traffic" means Local Traffic or IntraLATA Toll
Traffic which originates on a Telephone Exchange Service line and which is
addressed to an information service provided over a Party's information services
platform (e.g., 976).
1.30.A "Inside Wire" or "Inside Wiring" means all wire, cable, terminals,
hardware, and other equipment or materials on the Customer's side of the Rate
Demarcation Point.
1.31 "Integrated Digital Loop Carrier" or "IDLC" means a subscriber loop
carrier system which integrates within the switch at a DS1 level that is
twenty-four (24) loop transmission paths combined into a 1.544 Mbps digital
signal.
1.32. "Integrated Services Digital Network" or "ISDN" means a switched
network service providing end-to-end digital connectivity for the simultaneous
transmission of voice and data. Basic Rate Interface-ISDN ("BRI-ISDN") provides
for digital transmission of two 64 kbps bearer channels and one 16 kbps data and
signaling channel (2B+D). Primary Rate Interface-ISDN ("PRI-ISDN") provides for
digital transmission of twenty three (23) 64 kbps bearer channels and one (1) 64
kbps data and signaling channel (23 B+D).
1.33 "Interconnection" is As Described in the Act, and means the
connection of equipment or facilities of one carrier with the equipment or
facilities of another carrier for the purpose of transmission and routing of
Telephone Exchange Service traffic and Exchange Access traffic.
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1.34 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll Services.
1.35 "Interim Number Portability" or "INP" means the use of existing and
available call routing, forwarding, and addressing capabilities (e.g. remote
call forwarding) to enable a Customer to receive Telephone Exchange Service
provided by any Local Exchange Carrier operating within the exchange area with
which the Customer's telephone number(s) is associated, without having to change
the telephone number presently assigned to the Customer and regardless of
whether the Customer's chosen Local Exchange Carrier is the carrier that
originally assigned the number to the Customer.
1.36 "InterLATA" is As Defined in the Act.
1.37 "IntraLATA Toll Traffic" means those intraLATA calls that are not
defined as Local Traffic in this Agreement.
1.38 Reserved.
1.39 "Line Status Verification" or "LSV" means an operator request for a
status check on the line of a called party. The request is made by one Party's
operator to an operator of the other Party. The verification of the status check
is provided to the requesting operator.
1.40 "Local Access and Transport Area" or "LATA" is As Defined in the Act.
1.41 "Local Exchange Carrier" or "LEC" is As Defined in the Act. The
Parties to this Agreement are or will shortly become Local Exchange Carriers.
1.42 Reserved.
1.43 "Local Telephone Number Portability" or "LTNP" means "number
portability" As Defined in the Act.
1.44 "Local Traffic," unless otherwise defined by Applicable Law, is
traffic that is originated by a Customer of one Party on that Party's network
and terminates to a Customer of the other Party on that other Party's network,
within a given local calling area, or expanded area service ("EAS") area, as
defined in BA's effective Customer tariffs, or, if the Commission has defined
local calling areas applicable to all LECs, then as so defined by the
Commission.
1.45 "Main Distribution Frame" or "MDF" means the primary point at which
outside plant facilities terminate within a Wire Center, for interconnection to
other telecommunications facilities within the Wire Center.
1.46 "MECAB" means the Multiple Exchange Carrier Access Billing (MECAB)
document prepared by the Billing Committee of the Ordering and Billing Forum
("OBF"), which functions under the auspices of the Carrier Liaison Committee
("CLC") of the Alliance for
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Telecommunications Industry Solutions ("ATIS"). The MECAB document, published by
Bellcore as Special Report SR-BDS-000983, contains the recommended guidelines
for the billing of an Exchange Access service provided by two or more LECs, or
by one LEC in two or more states, within a single LATA.
1.47 "MECOD" means 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 OBF. The
MECOD document, published by Bellcore as Special Report SR-STS-002643,
establishes methods for processing orders for Exchange Access service which is
to be provided by two or more LECs.
1.48 "Meet-Point Billing" or "MPB" means an arrangement whereby two or
more LECs jointly provide to a third party the transport element of a Switched
Exchange Access Service to one of the LECs' End Office Switches, with each LEC
receiving an appropriate share of the transport element revenues as defined by
their effective Exchange Access tariffs. "Meet-Point Billing Traffic" means
traffic that is subject to an effective Meet-Point Billing arrangement.
1.49 "Mid-Span Meet" means an Interconnection architecture whereby two
carriers' transmission facilities meet at a mutually agreed-upon point of
Interconnection utilizing a fiber hand-off and, at the delivering carrier's
option, may interface with such carrier's collocated equipment to gain access to
unbundled elements.
1.50 "Multiple Bill/Single Tariff" or "Multiple Bill/Multiple Tariff"
means the MPB method whereby each LEC prepares and renders its own meet point
bill in accordance with its own Tariff(s) for the portion of the
jointly-provided Switched Exchange Access Service which the LEC provides.
1.51 "Network Element" is As Defined in the Act.
1.52 "Network Interface Device" or "NID" means the BA-provided interface
terminating BA's telecommunications network on the property where the Customer's
service is located at a point determined by BA.
1.53 "North American Numbering Plan" or "NANP" means the numbering plan
used in the United States that also serves Canada, Bermuda, Puerto Rico and
certain Caribbean Islands. The NANP format is a 10-digit number that consists of
a 3-digit NPA code (commonly referred to as the area code), followed by a
3-digit NXX code and 4-digit line number.
1.54. "Numbering Plan Area" or "NPA" is also sometimes referred to as an
area code. There are two general categories of NPAs, "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, 500 and 888 are examples of Non-Geographic NPAs.
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1.55 "NXX," "NXX Code," or "End Office Code" means the three digit switch
entity indicator (i.e. the first three digits of a seven digit telephone
number).
1.56 "Permanent Number Portability" or "PNP" means the use of a database
or other technical solution that comports with regulations issued by the FCC to
provide LTNP for all customers and service providers.
1.57 "Port Element" or "Port" means a termination on a Central Office
Switch that permits Customers to send or receive Telecommunications over the
public switched network, but does not include switch features or switching
functionality.
1.57.A "POT Bay" or "Point of Termination Bay" means the intermediate
distributing frame system which serves as the point of demarcation for
collocated Interconnection.
1.58 "Rate Center Area" or "Rate Center" or "Exchange Area" means the
geographic area that has been identified by a given LEC as being associated with
a particular NPA-NXX code assigned to the LEC for its provision of Telephone
Exchange Services. The Rate Center Area is the exclusive geographic area which
the LEC has identified as the area within which it will provide Telephone
Exchange Services bearing the particular NPA-NXX designation associated with the
specific Rate Center Area. A "Rate Center Point" is a specific geographic point,
defined by a V&H coordinate, located within the Rate Center Area and used to
measure distance for the purpose of billing Customers for distance-sensitive
Telephone Exchange Services and Toll Traffic. Rate Centers will be identical for
each Party until such time as Covad is permitted by an appropriate regulatory
body to create its own Rate Centers within an area.
1.59 "Rate Demarcation Point" means the point where network access
recurring charges and BA responsibility stop and beyond which Customer
responsibility begins, determined in accordance with FCC rules and BA standard
operating practices.
1.60 "Rating Point" or "Routing Point" means a specific geographic point
identified by a specific V&H coordinate. The Rating Point is used to route
inbound traffic to specified NPA-NXXs and to calculate mileage measurements for
distance-sensitive transport charges of switched access services. Pursuant to
Bellcore Practice BR-795-100-100, the Rating 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 be any alphanumeric A-Z or 0-9. The Rating Point/Routing Point
must be located within the LATA in which the corresponding NPA-NXX is located.
However, the Rating Point/Routing Point associated with each NPA-NXX need not be
the same as the corresponding Rate Center Point, nor must it be located within
the corresponding Rate Center Area, nor must there be a unique and separate
Rating Point corresponding to each unique and separate Rate Center.
1.61 "Reciprocal Compensation" is As Described in the Act, and refers to
the payment arrangements that recover costs incurred for the transport and
termination of Reciprocal
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Compensation Traffic originating on one Party's network and terminating on the
other Party's network.
1.62 "Service Control Point" or "SCP" means the node in the Common Channel
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 a service switching point and via a Signaling
Transfer Point, performs subscriber or application-specific service logic, and
then sends instructions back to the SSP on how to continue call processing.
1.63 "Signaling Transfer Point" or "STP" means a specialized switch that
provides SS7 network access and performs SS7 message routing and screening.
1.63.A "Strapping" means the act of installing a permanent connection
between a Point of Termination bay and a collocated interconnector's physical
Collocation node.
1.64 "Switched Access Detail Usage Data" means a category 1101XX record as
defined in the EMR Bellcore Practice BR-010-200-010.
1.65 "Switched Access Summary Usage Data" means a category 1150XX record
as defined in the EMR Bellcore Practice BR-010-200-010.
1.66 "Switched Exchange Access Service" means the offering of transmission
and switching services to Telecommunications Carriers for the purpose of the
origination or termination of Toll Traffic. Switched Exchange Access Services
include but may not be limited to: Feature Group A, Feature Group B, Feature
Group D, 700 access, 800 access, 888 access, and 900 access and functionally
equivalent Switched Exchange Access services that may be offered in the future.
1.67 "Switching Element" is the unbundled Network Element that provides a
CLEC the ability to use switching functionality in a BA End Office switch,
including all vertical services that are available on that switch, to provide
Telecommunications Services, including Telephone Exchange Service, to its end
user customer(s). The Switching Element will be provisioned with a Port Element,
which provides line side access to the Switching Element.
1.68 "Tariff" means any applicable federal or state tariff of a Party, or
standard agreement or other document that sets forth the generally available
terms and conditions, each as may be amended by the Party from time to time,
under which a Party offers a particular service, facility, or arrangement. A
Tariff shall not include BA's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary Services
and Resale of Telecommunications Services" which has been approved or is pending
approval by the Commission pursuant to Section 252(f) of the Communications Act
of 1934, 47 U.S.C. ss. 252(f).
1.69 "Technically Feasible Point" is As Described in the Act.
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1.70 "Telecommunications" is As Defined in the Act.
1.71 "Telecommunications Act" means the Telecommunications Act of 1996 and
any rules and regulations promulgated thereunder.
1.72 "Telecommunications Carrier" is As Defined in the Act.
1.73 "Telecommunications Service" is As Defined in the Act.
1.74 "Telephone Exchange Service," sometimes also referred to as "Exchange
Service," is As Defined in the Act. Telephone Exchange Service generally
provides the Customer with a telephonic connection to, and a unique telephone
number address on, the public switched telecommunications network, and enables
such Customer to place or receive calls to all other stations on the public
switched telecommunications network.
1.75 [Reserved]
1.76 "Toll Traffic" means traffic that is originated by a Customer of one
Party on that Party's network and terminates to a Customer of the other Party on
that Party's network and is not Local Traffic or Ancillary Traffic. Toll Traffic
may be either "IntraLATA Toll Traffic" or "InterLATA Toll Traffic," depending on
whether the originating and terminating points are within the same LATA.
1.77 "Transit Traffic" means any traffic that originates from or
terminates at Covad's network, "transits" BA's network substantially unchanged,
and terminates to or originates from a third carrier's network, as the case may
be. "Transit Traffic Service" provides Covad with the ability to use its
connection to a BA Tandem for the delivery of calls which originate or terminate
with Covad and terminate to or originate from a carrier other than BA, such as
another CLEC, a LEC other than BA, or a wireless carrier. In these cases,
neither the originating nor terminating Customer is a Customer of BA. This
service is provided through BA's Tandems and applies only where the terminating
End Office of the third carrier subtends the BA Tandem. "Transit Traffic" and
"Transit Traffic Service" do not include or apply to traffic that is subject to
an effective Meet-Point Billing arrangement.
1.78 "Trunk Side" means a Central Office Switch connection that is capable
of, and has been programmed to treat the circuit as, connecting to another
switching entity (e.g. another carrier's network). Trunk Side connections offer
those transmission and signaling features appropriate for the connection of
switching entities.
1.79 "Unbundled Local Loop Element" or "ULL" means a transmission path
that extends from a Main Distribution Frame, DSX-panel, or functionally
comparable piece of equipment in the Customer's serving End Office to the Rate
Demarcation Point (or network interface device (NID) if installed) in or at a
Customer's premises. The actual loop transmission facilities used to provide an
ULL may utilize any of several technologies.
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1.80 "Verification with Call Interruption" or "VCI" means a service that
may be requested and provided when Line Status Verification has determined that
a line is busy due to an ongoing call. VCI is an operator interruption of that
ongoing call to inform the called party that a calling party is seeking to
complete his or her call to the called party.
1.81 "Voice Grade" means either an analog signal of 300 to 3000 Hz or a
digital signal of 56/64 kilobits per second. When referring to digital voice
grade service (a 56/64 kbps channel), the terms "DS-0" or "sub-DS-1" may also be
used.
1.82 "Wire Center" means a building or portion thereof which serves as a
Routing Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION.
2.1 All references to Sections, Exhibits and Schedules shall be deemed to
be references to Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. The headings used in this Agreement
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning of this Agreement. Unless the context shall
otherwise require, any reference to any agreement, other instrument (including
BA or other third party offerings, guides or practices), statute, regulation,
rule or tariff is to such agreement, instrument, statute, regulation, or rule or
tariff as amended and supplemented from time to time (and, in the case of a
statute, regulation, rule or tariff, to any successor provision).
2.2 Subject to the terms set forth in Section 20 regarding rates and
charges, each Party hereby incorporates by reference those provisions of its
tariffs that govern the provision of any of the services or facilities provided
hereunder. If any provision of this Agreement and an applicable tariff cannot be
reasonably construed or interpreted to avoid conflict, the provision contained
in this Agreement shall prevail, provided that in all cases the more specific
shall prevail over the more general. If any provision contained in this main
body of the Agreement and any Schedule or Exhibit hereto cannot be reasonably
construed or interpreted to avoid conflict, the provision contained in this main
body of the Agreement shall prevail. The fact that a condition, right,
obligation, or other term appears in this Agreement but not in any such tariff
shall not be interpreted as, or be deemed grounds for finding, a conflict for
purposes of this Section 2.
3.0 INTERCONNECTION ACTIVATION DATES AND IMPLEMENTATION SCHEDULE.
Subject to the terms and conditions of this Agreement, each Party shall
exercise its best efforts to adhere to the Interconnection Activation Dates and
Network Implementation Schedule set forth in Schedule 3.0, and to provide fully
operational service predominantly over its own Telephone Exchange Service
facilities to business and residential Customers as soon as reasonably
practicable following the achievement of the milestones in said Schedule for
each listed LATA in the District of Columbia. Schedule 3.0 may be revised and
supplemented from time to time upon
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the mutual agreement of the Parties to reflect the intention of the Parties to
interconnect in additional LATAs pursuant to subsection 4.4 by attaching one or
more supplementary schedules to Schedule 3.0. The Parties agree that this
Agreement addresses BA's obligation to provide Interconnection under Section 251
of the Act, and the requirements of the Competitive Checklist, under Section 271
of the Act. Covad represents that it is, or intends to become, a provider of
Telecommunications Service to residential and business subscribers offered
exclusively over its own Telecommunications Service facilities or predominantly
over its own Telecommunications 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.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
The types of Traffic to be exchanged under this Agreement shall be Local
Traffic, IntraLATA Toll (and InterLATA Toll, as applicable) Traffic, Transit
Traffic, Meet Point Billing Traffic, and Ancillary Traffic. Subject to the terms
and conditions of this Agreement, Interconnection of the Parties facilities and
equipment for the transmission and routing of Local Traffic and Toll Traffic
pursuant to this Section 4 shall be established on or before the corresponding
"Interconnection Activation Date" shown for each such LATA within the District
of Columbia on Schedule 3.0 and in accordance with the standards set forth in
subsection 10.2. Both Schedule 3.0 and Schedule 4.0 may be revised and
supplemented from time to time upon the mutual agreement of the Parties to
reflect additional or changed Interconnection Points in the District of Columbia
by attaching one or more supplementary addenda to such Schedule.
4.1 Scope
4.1.1 Section 4 describes the architecture for Interconnection of
the Parties' facilities and equipment over which the Parties shall configure the
following separate and distinct trunk groups:
Traffic Exchange Trunks for the transmission and routing of
terminating Local Traffic, Transit Traffic, translated LEC IntraLATA
800/888 traffic, IntraLATA Toll Traffic, and, where agreed to
between the Parties and as set forth in subsection 4.2.8 below,
InterLATA Toll Traffic between their respective Telephone Exchange
Service customers pursuant to Section 251 (c)(2) of the Act, in
accordance with Section 5 below;
Access Toll Connecting Trunks for the transmission and routing of
Exchange Access traffic, including translated InterLATA 800/888
traffic, between Covad Telephone Exchange Service customers and
purchasers of Switched Exchange Access Service via a BA Tandem,
pursuant to Section 251(c)(2) of the Act, in accordance with Section
6 below;
Information Services Trunks for the transmission and routing of
terminating Information Services Traffic in accordance with Section
7 below;
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LSV/VCI Trunks for the transmission and routing of terminating
LSV/VCI traffic, in accordance with Section 7 below;
911/E911 Trunks for the transmission and routing of terminating
E911/911 traffic, in accordance with Section 7 below;
Directory Assistance Trunks for the transmission and routing of
terminating directory assistance traffic, in accordance with
subsection 19.4 below; and
Operator Services (IntraLATA call completion) Trunks for the
transmission and routing of terminating IntraLATA call completion
traffic, in accordance with subsection 19.4 below;
Choke Trunks for traffic congestion and testing; and
Others as may be requested and agreed to by the Parties.
4.1.2 To the extent required by Section 251 of the Act, this
Agreement provides for Interconnection to each other's networks at any
technically feasible point. For the purposes of this Agreement, the Parties
agree that Interconnection for the transport and termination of traffic may take
place, in the case of BA, at a terminating End Office, a Tandem, and/or other
points as specified herein, and, in the case of Covad, at a Central Office
and/or other points as specified herein, and, in the case of both Parties, any
mutually agreed-upon Mid-Span Meet arrangement as provided in Section 4.3 below.
For purposes of Interconnection, if Covad delivers traffic to BA at a BA End
Office or Tandem point of Interconnection other than the terminating End Office
or Tandem subtended by the terminating End Office, then such point of
Interconnection shall be deemed to be a serving Wire Center. In such instances
and whenever Covad utilizes a serving Wire Center as point of Interconnection,
Covad shall designate that such traffic be transported via a separate trunk
group to the BA Tandem that is subtended by the applicable terminating End
Office. In such cases, the BA Tandem subtended by the terminating End Office
will serve as the BA-IP (as defined below).
4.1.3 The Parties shall establish interconnection points
(collectively, the "Interconnection Points" or "IPs") at the available locations
designated in Schedule 4.0. The mutually agreed-upon IPs on the Covad network at
which Covad will provide transport and termination of traffic shall be
designated as the Covad Interconnection Points ("Covad-IPs"); the mutually
agreed-upon IPs on the BA network shall be designated as the BA Interconnection
Points ("BA-IPs") and shall be either a BA terminating End Office or Tandem.
4.1.4 In the event either Party fails to make available a
geographically relevant End Office or functional equivalent as an IP on its
network to the other Party, the other Party may, at any time, request that the
first Party establish such additional technically feasible IP(s). Such requests
shall be made as a part of the Joint Process established pursuant to subsection
10.1; provided, however, that the Parties shall commence negotiations to
determine the technically
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feasible and geographically relevant location(s) of the additional IP(s) as soon
as reasonably practicable following a Party's request therefor. If, after sixty
(60) days following said request, the Parties have been unable to reach
agreement on the additional Interconnection Points, then either Party may file a
complaint with the Commission to resolve such impasse or pursue with any other
remedy available under law or equity. For purposes of this subsection 4.1.4, a
"geographically relevant" IP shall mean an IP that is located within the BA
local calling area of equivalent BA end user customers, but no greater than
twenty five (25) miles from the BA Rate Center Point of the BA NXX serving the
equivalent relevant end user customers, or, with the mutual agreement of the
Parties, an existing and currently utilized IP within the LATA but outside the
foregoing BA local calling area and/or twenty five (25) mile radius.
"Equivalent" customers shall mean customers served by either Party at the same
physical location.
4.1.5 In recognition of the large number and variety of BA-IPs
available for use by Covad, Covad's ability to select from among those points to
minimize the amount of transport it needs to provide or purchase, and the fewer
number of Covad-IPs available to BA to select from for similar purposes, and as
an express condition of BA's making its Wire Centerss available to Covad as
points of Interconnection pursuant to subsection 4.1.2 above, Covad shall charge
BA no more than Covad's Tariffed non-distance sensitive entrance facility charge
for the transport of traffic from a BA-IP to a Covad-IP in any given LATA. The
Parties may by mutual agreement establish additional Interconnection Points at
any technically feasible points consistent with the Act.
4.1.6 The Parties shall configure separate trunk groups (as
described in subsection 4.1.1 above) for traffic from Covad to BA, and for
traffic from BA to Covad, respectively; however, the trunk groups shall be
equipped as two-way trunks for testing purposes. As provided in Section 10
below, the Parties agree to consider as part of the Joint Process the
feasibility of combining any of the separate trunk groups into a single two-way
trunk group.
4.2 Physical Architectures
4.2.1 In each LATA identified in Schedule 4.0, the Parties shall
utilize the Covad-IP(s) and BA-IP(s) designated in such Schedule as the points
from which each Party will provide the transport and termination of traffic.
4.2.2 Covad shall have the sole right and discretion to specify any
of the following methods for interconnection at any of the BA-IPs:
(a) a Physical or Virtual Collocation facility Covad establishes at
the BA-IP;
(b) a Physical or Virtual Collocation facility established
separately at the BA-IP by a third party with whom Covad has
contracted for such purposes; and/or
(c) an entrance facility and transport (where applicable) leased
from BA (and any necessary multiplexing), where such facility
extends to the BA-IP from a mutually agreed to point on Covad's
network.
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4.2.3 Covad shall provide its own facilities or purchase necessary
transport for the delivery of traffic to any Collocation arrangement it
establishes at a BA-IP pursuant to Section 13. BA shall provide the transport
and termination of the traffic beyond the BA-IP.
4.2.4 Covad may order from BA any of the Interconnection methods
specified above in accordance with the order intervals and other terms and
conditions, including, without limitation, rates and charges, set forth in this
Agreement, in any applicable Tariff(s), or as may be subsequently agreed to
between the Parties.
4.2.5 BA shall have the sole right and discretion to specify any one
of the following methods for Interconnection at any of the Covad-IPs:
(a) upon reasonable notice to Covad, a Physical Collocation facility
BA establishes at the Covad-IP;
(b) a Physical or Virtual Collocation facility established
separately at the Covad-IP by a third party with whom BA has
contracted for such purposes; and/or
(c) an entrance facility leased from Covad (and any necessary
multiplexing), where such facility extends to the Covad-IP from a
mutually agreed upon point on BA's network.
4.2.6 BA shall provide its own facilities or purchase necessary
transport for the delivery of traffic to any Collocation arrangement it
establishes at an Covad-IP pursuant to Section 13. Covad shall provide the
transport and termination of the traffic beyond the Covad-IP.
4.2.7 BA may order from Covad any of the Interconnection methods
specified above in accordance with the order intervals and other terms and
conditions, including, without limitation, rates and charges, set forth in this
Agreement, in any applicable Tariff(s), or as may be subsequently agreed to
between the Parties.
4.2.8 Under any of the architectures described in this subsection
4.2, either Party may utilize the Traffic Exchange Trunks for the termination of
InterLATA Toll Traffic in accordance with the terms contained in Section 5 below
and pursuant to the other Party's Switched Exchange Access Service tariffs. The
other Party's Switched Exchange Access Service rates shall apply to such
Traffic.
4.3 Mid-Span Meets
4.3.1 In addition to the foregoing methods of Interconnection, the
Parties may agree, at either Party's request at any time, to establish (i) a
Mid-Span Meet arrangement in accordance with the terms of this subsection 4.3
that utilizes either wireless or wireline transmission facilities, or a
combination of both, or (ii) a SONET backbone with an electrical interface at
the DS-3 level where and on the same terms BA offers such SONET services to
other
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carriers. In the event the Parties agree to adopt a Mid-Span Meet arrangement
that utilizes both wireless and wireline facilities, Covad agrees to bear all
expenses associated with the purchase of equipment, materials, or services
necessary to facilitate a wireless to wireline meet up to and including the
optical to electrical multiplexer necessary to effect a fiber hand-off to BA.
4.3.2 The establishment of any Mid-Span Meet arrangement is
expressly conditioned upon the Parties' reaching prior agreement on appropriate
sizing and forecasting, equipment, ordering, provisioning, maintenance, repair,
testing, augment, and compensation procedures and arrangements, reasonable
distance limitations, and on any other arrangements necessary to implement the
Mid-Span Meet arrangement. Any Mid-Span Meet arrangement requested at a
third-party premises is expressly conditioned on the Parties' having sufficient
capacity at the requested location to meet such request, on unrestricted 24-hour
access for both Parties to the requested location, on other appropriate
protections as deemed necessary by either Party, and on an appropriate
commitment that such access and other arrangements may not be restricted for a
reasonable period.
4.3.3 Mid-Span Meet arrangements shall be used only for the
termination of Local Traffic and IntraLATA Toll Traffic unless and until such
time as the Parties have agreed to appropriate compensation arrangements
relating to the exchange of other types of traffic over such Mid-Span Meet, and
only where facilities are available. Any agreement to access unbundled Network
Elements via a Mid-Span Meet arrangement shall be conditioned on the resolution
of the technical and other issues described in this subsection 4.3, resolution
by the joint operations team of additional issues (such as inventory and testing
procedures unique to the provision of unbundled Network Elements via a Mid-Span
Meet), and, as necessary, completion of a joint operational and technical test.
In addition, access to unbundled Network Elements via a Mid-Span Meet
arrangement for access to such Elements, shall be limited to that which is
required by Applicable Laws, and shall be subject to full compensation of all
relevant costs (as defined in the FCC Regulations) by the requesting Party to
the other Party.
4.4 Interconnection in Additional LATAs
4.4.1 If Covad determines to offer Telephone Exchange Services in
any LATA not listed in Schedule 3.0 in which BA also offers Telephone Exchange
Services, Covad shall provide written notice to BA of the need to establish
Interconnection in such LATA pursuant to this Agreement.
4.4.2 The notice provided in subsection 4.4.1 shall include (i) the
initial Routing Point Covad has designated in the new LATA; (ii) Covad's
requested Interconnection Activation Date (and related milestone dates in
accordance with the format in Schedule 3.0); and (iii) a non-binding forecast of
Covad's trunking requirements.
4.4.3 Unless otherwise agreed to by the Parties, the Parties shall
designate the Wire Center(s) Covad has identified as its initial Routing
Point(s) in the LATA as the Covad-IP(s) in that LATA and shall designate
mutually agreed upon BA Wire Center(s) that houses a Tandem Office within the
LATA nearest to the Covad-IP (as measured in airline miles utilizing the V&H
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coordinates method) as the BA-IP(s) in that LATA, provided that, for the purpose
of charging for the transport of traffic from the BA-IP to the Covad-IP, the
Covad-IP shall be no further than an entrance facility away from the BA-IP.
4.4.4 The Parties shall agree upon an addendum to Schedule 3.0 to
reflect the schedule applicable to each new LATA requested by Covad; provided,
however, that unless agreed by the Parties, the Interconnection Activation Date
in a new LATA shall not be earlier than forty-five (45) days after receipt by BA
of all complete and accurate trunk orders and routing information. Within ten
(10) business days of BA's receipt of Covad's notice, BA and Covad shall confirm
the BA-IP, the Covad-IP and the Interconnection Activation Date for the new LATA
by attaching an addendum to Schedule 3.0.
4.5 Interconnection Points for Different Types of Traffic
Each Party shall make available Interconnection Points and facilities for
routing of traffic from those Interconnection Points as designated in Schedule
4.5. Any additional traffic that is not covered in Schedule 4.5 shall be subject
to separate negotiations between the Parties, except that (i) either Party may
deliver traffic of any type or character to the other Party for termination as
long as the delivering Party pays the receiving Party's then current Switched
Exchange Access rates for such traffic, and (ii) upon a bona fide request from
either Party, the Parties will exercise all reasonable efforts to conclude an
agreement covering the exchange of such traffic.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
Section 5 prescribes parameters for trunk groups (the "Traffic Exchange
Trunks") to be effected over the Interconnections specified in Section 4 for the
transmission and routing of Local Traffic, Transit Traffic, translated LEC
IntraLATA 800/888 traffic, InterLATA Toll Traffic (to the extent applicable),
and IntraLATA Toll Traffic between the Parties' respective Telephone Exchange
Service Customers.
5.2 Trunk Group Connections and Ordering
5.2.1 Traffic Exchange Trunk group connections will be made at a
DS-1 level or higher. Higher speed connections shall be made, when and where
available, in accordance with the Joint Implementation and Grooming Process
prescribed in Section 10. Ancillary Traffic trunk groups may be made below a
DS-1 level, as may be agreed to by the Parties.
5.2.2 Each Party will identify its Carrier Identification Code, a
three or four digit numeric obtained from Bellcore, to the other Party when
ordering a trunk group.
5.3 Additional Switching System Hierarchy and Trunking Requirements
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For purposes of routing Covad traffic to BA, the subtending arrangements
between BA Tandem Switches and BA End Office Switches shall be the same as the
Tandem/End Office subtending arrangements BA maintains for the routing of its
own or other carriers' traffic. For purposes of routing BA traffic to Covad, the
subtending arrangements between Covad Tandem Switches (or functional equivalent)
and Covad End Office Switches (or functional equivalent) shall be the same as
the Tandem/End Office subtending arrangements (or functional equivalent) which
Covad maintains for the routing of its own or other carriers' traffic.
5.4 Signaling
Each Party will provide the other Party with access to its databases and
associated signaling necessary for the routing and completion of the other
Party's traffic in accordance with the provisions contained in Section 17 below.
5.5 Grades of Service
The Parties shall initially engineer and shall jointly monitor and enhance
all trunk groups consistent with the Joint Implementation and Grooming Process
as set forth in Section 10.
5.6 Measurement and Billing
5.6.1 For billing purposes, each Party shall pass Calling Party Number
("CPN") information on each call carried over the Traffic Exchange Trunks at
such time as the originating switch is equipped for SS7 and from all switches no
later than December 31, 1998. At such time as either Party has the ability, as
the Party receiving the traffic, to use such CPN information to classify on an
automated basis traffic delivered by the other Party as either Local Traffic or
Toll Traffic, such receiving Party shall bill the originating Party the Local
Traffic termination rates, Intrastate Exchange Access rates, or Interstate
Exchange Access rates applicable to each minute of Traffic for which CPN is
passed, as provided in Exhibit A and applicable Tariffs.
5.6.2 If, under the circumstances set forth in subsection 5.6.1, the
originating Party does not pass CPN on up to ten percent (10%) of calls, the
receiving Party shall bill the originating Party the Local Traffic termination
rates, Intrastate Exchange Access rates, Intrastate/Interstate Transit Traffic
rates, or Interstate Exchange Access rates applicable to each minute of traffic,
as provided in Exhibit A and applicable Tariffs, for which CPN is passed. For
the remaining up to ten percent (10%) of calls without CPN information, the
receiving Party shall bill the originating Party for such traffic as Local
Traffic termination rates, Intrastate Exchange Access rates,
Intrastate/Interstate Transit Traffic rates, or Interstate Exchange Access rates
applicable to each minute of traffic, as provided in Exhibit A and applicable
Tariffs, in direct proportion to the minutes of use of calls passed with CPN
information.
5.6.3 If the originating Party does not pass CPN on more than ten
percent (10%) of calls, or if the receiving Party lacks the ability to use CPN
information to classify on an automated basis traffic delivered by the other
Party as either Local Traffic or Toll Traffic, and the originating
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Party chooses to combine Local and Toll Traffic on the same trunk group, it will
supply an auditable Percent Local Use ("PLU") report quarterly, based on the
previous three months' traffic, and applicable to the following three months. If
the originating Party also chooses to combine Interstate and Intrastate Toll
Traffic on the same trunk group, it will supply an auditable Percent Interstate
Use ("PIU") report quarterly, based on the previous three months' terminating
traffic, and applicable to the following three months. In lieu of the foregoing
PLU and/or PIU reports, the Parties may agree to provide and accept reasonable
surrogate measures for an agreed-upon interim period.
5.6.4 Measurement of billing minutes for purposes of determining
terminating compensation shall be in conversation seconds.
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5)
Reciprocal Compensation arrangements address the transport and termination
of Local Traffic. BA's delivery of Traffic to Covad that originated with a third
carrier is addressed in subsection 7.3. Where Covad delivers Traffic (other than
Local Traffic) to BA, except as may be set forth herein or subsequently agreed
to by the Parties, Covad shall pay BA the same amount that such carrier would
have paid BA for termination of that Traffic at the location the Traffic is
delivered to BA by Covad. Compensation for the transport and termination of
traffic not specifically addressed in this subsection 5.7 shall be as provided
elsewhere in this Agreement, or if not so provided, as required by the Tariffs
of the Party transporting and/or terminating the traffic. BA shall provide
notice to Covad of any BA filing to the Commission that would alter the
classification of particular traffic as Local or IntraLATA Toll Traffic.
5.7.1 Nothing in this Agreement shall be construed to limit either
Party's ability to designate the areas within which that Party's Customers may
make calls which that Party rates as "local" in its Customer Tariffs.
5.7.2 The Parties shall compensate each other for the transport and
termination of Local Traffic in an equal and symmetrical manner at the rates
provided in the Detailed Schedule of Itemized Charges (Exhibit A hereto), as may
be amended from time to time in accordance with Exhibit A and subsection 20.1.2
below or, if not set forth therein, in the applicable Tariff(s) of the
terminating Party, as the case may be. These rates are to be applied at the
Covad-IP for traffic delivered by BA, and at the BA-IP for traffic delivered by
Covad. No additional charges, including port or transport charges, shall apply
for the termination of Local Traffic delivered to the BA-IP or the Covad-IP,
except as set forth in Exhibit A. When Local Traffic is terminated over the same
trunks as Toll Traffic, any port or transport or other applicable access charges
related to the Toll Traffic shall be prorated to be applied only to the Toll
Traffic.
5.7.3 The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access Service. All Switched
Exchange Access Service and all Toll Traffic shall continue to be governed by
the terms and conditions of the applicable federal and state Tariffs. Similarly,
the Parties agree that the Reciprocal Compensation arrangements contained in
this subsection 5.7 shall not apply to traffic handed off from one Party to the
other
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Party, within a BA local calling area, for delivery to an Internet Service
Provider ("ISP") for carriage over the Internet.
5.7.4 Compensation for transport and termination of all Traffic
which has been subject to performance of INP by one Party for the other Party
pursuant to Section 14 shall be as specified in subsection 14.5.
5.7.5 The designation of Traffic as Local or non-Local for purposes
of compensation shall be based on the actual originating and terminating points
of the complete end-to-end call, regardless of the entities involved in carrying
any segment of the call.
5.7.6 Each Party reserves the right to measure and audit all
Traffic, up to a maximum of two audits per calendar year, to ensure that proper
rates are being applied appropriately, provided, however, that either Party
shall have the right to conduct additional audit(s) if the preceding audit
disclosed material errors or discrepancies. Each Party agrees to provide the
necessary Traffic data or permit the other Party's recording equipment to be
installed for sampling purposes in conjunction with any such audit.
5.7.7 The Parties will engage in settlements of intraLATA intrastate
alternate-billed calls (e.g. collect, calling card, and third-party billed
calls) originated or authorized by their respective Customers in the District of
Columbia in accordance with the terms of an appropriate IntraLATA
Telecommunications Services Settlement Agreement between the Parties
substantially in the form appended hereto as Exhibit D.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO 251(c)(2)
6.1 Scope of Traffic
Section 6 prescribes parameters for certain trunks to be established over
the Interconnections specified in Section 4 for the transmission and routing of
traffic between Covad Telephone Exchange Service Customers and Interexchange
Carriers ("Access Toll Connecting Trunks"), in any case where Covad elects to
have its End Office Switch subtend a BA Tandem. This includes casually-dialed
(10XXX and 101XXXX) traffic.
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 Covad shall establish Access Toll Connecting Trunks by which
it will provide tandem-transported Switched Exchange Access Services to
Interexchange Carriers to enable such Interexchange Carriers to originate and
terminate traffic to and from Covad's Customers.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Exchange Access to allow Covad's Customers to
connect to or be connected to the interexchange trunks of any Interexchange
Carrier which is connected to a BA Tandem.
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6.2.3 The Access Toll Connecting Trunks shall be two-way trunks
connecting an End Office Switch Covad utilizes to provide Telephone Exchange
Service and Switched Exchange Access in a given LATA to a Tandem BA utilizes to
provide Exchange Access in such LATA.
6.2.4 The Parties shall jointly determine which BA Tandem(s) will be
subtended by each Covad End Office Switch. Covad's End Office switch shall
subtend the BA Tandem that would have served the same rate center on BA's
network. Alternative configurations will be discussed as part of the Joint
Implementation and Grooming Process.
6.3 Meet-Point Billing Arrangements
6.3.1 Covad and BA will establish Meet-Point Billing arrangements in
order to provide a common transport option to Switched Access Services Customers
via a Tandem Switch in accordance with the Meet-Point Billing guidelines
contained in the OBF's MECAB and MECOD documents, except as modified herein, and
BA's District of Columbia Interstate Tariff Number 1,, Section 2.4.7. The
arrangements described in this Section 6 are intended to be used to provide
Switched Exchange Access Service that originates and/or terminates on a
Telephone Exchange Service that is provided by either Party, where the transport
component of the Switched Exchange Access Service is routed through a Tandem
Switch that is provided by BA.
6.3.2 In each LATA, the Parties shall establish MPB arrangements
between the applicable Rating Point/BA Wire Center combinations.
6.3.3 Interconnection for the MPB arrangement shall occur at the
BA-IP in the LATA, unless otherwise agreed to by the Parties.
6.3.4 Covad and BA will use reasonable efforts, individually and
collectively, to maintain provisions in their respective state access tariffs,
and/or provisions within the National Exchange Carrier Association ("NECA")
tariff No. 4, or any successor Tariff sufficient to reflect the MPB arrangements
established pursuant to this Agreement.
6.3.5 Each Party shall implement the "Multiple Bill/Single Tariff"
or "Multiple Bill/Multiple Tariff" option, as appropriate, in order to bill an
IXC for the portion of the jointly provided telecommunications service provided
by that Party.
6.3.6 The rate elements to be billed by each Party are as set forth
in Schedule 6.3. The actual rate values for each Party's affected access service
rate element shall be the rates contained in that Party's own effective federal
and state access tariffs, or other document that contains the terms under which
that Party's access services are offered. The MPB billing percentages for each
Rating Point/BA Wire Center combination shall be calculated in accordance with
the formula set forth in subsection 6.3.17 below.
6.3.7 Each Party shall provide the other Party with the billing
name, billing address, and Carrier Identification Code ("CIC") of the IXC, and
identification of the IXC's
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serving Wire Center in order to comply with the MPB notification process as
outlined in the MECAB document via facsimile or such other media as the Parties
may agree to.
6.3.8 BA shall provide Covad with the Switched Access Detail Usage
Data (category 1101XX records) on magnetic tape or via such other media as the
Parties may agree to, no later than ten (10) business days after the date the
usage occurred.
6.3.9 Covad shall provide BA with the Switched Access Summary Usage
Data (category 1150XX records) on magnetic tape or via such other media as the
Parties may agree, no later than ten (10) business days after the date of its
rendering of the bill to the relevant IXC, which bill shall be rendered no less
frequently than monthly.
6.3.10 All usage data to be provided pursuant to subsections 6.3.8
and 6.3.9 above shall be sent to the following addresses:
To Covad: Covad to notify BA of Covad address.
To BA: Bell Atlantic
Tape Library
1500 Tech Center Drive
Monroeville, PA 15146
Either Party may change its address for receiving usage data by notifying the
other Party in writing.
6.3.11 Each Party shall coordinate and exchange the billing account
reference ("BAR") and billing account cross reference ("BACR") numbers or
Operating Company Number ("OCN"), as appropriate, for the MPB 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, or if the OCN changes.
6.3.12 Errors may be discovered by Covad, the IXC or BA. Each Party
agrees to provide the other Party with notification of any errors it discovers
within two (2) business days of the date of such discovery. In the event of a
loss of data, both Parties shall cooperate to reconstruct the lost data and, if
such reconstruction is not possible, shall accept a reasonable estimate of the
lost data based upon prior usage data.
6.3.13 Either Party may request a review or audit of the various
components of access recording up to a maximum of two (2) audits per calendar
year. All costs associated with each review and audit shall be borne by the
requesting Party. Such review or audit shall be
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conducted subject to confidentiality protection and during regular business
hours. A Party may conduct additional audits, at its expense, upon the other
Party's consent, which consent shall not be unreasonably withheld.
6.3.14 Nothing contained in this subsection 6.3 shall create any
liability for damages, losses, claims, costs, injuries, expenses or other
liabilities whatsoever on the part of either Party (other than as may be set
forth in MECAB or in any applicable Tariff).
6.3.15 The Parties shall not charge one another for the services
rendered or information provided pursuant to this subsection 6.3.
6.3.16 MPB will apply for all traffic bearing the 500, 900, 800/888
(to the extent provided by an IXC) or any other non-geographic NPA which may be
likewise designated for such traffic in the future.
6.3.17 In the event Covad determines to offer Telephone Exchange
Services in another LATA in which BA operates a Tandem Switch, BA shall permit
and enable Covad to subtend the BA Tandem Switch(es) designated for the BA End
Offices in the area where the Covad Rating Point(s) associated with the
NPA-NXX(s) to/from which the Switched Exchange Access Services are homed. The
MPB billing percentages for each new Rating Point/BA Wire Center combination
shall be calculated according to the following formula:
a / (a + b) = Covad Billing Percentage
and
b / (a + b) = BA Billing Percentage
where:
a = the airline mileage between the Rating Point and the
actual point of interconnection for the MPB arrangement; and
b = the airline mileage between the BA Wire Center and the
actual point of interconnection for the MPB arrangement.
Covad shall inform BA of the LATA in which it intends to offer Telephone
Exchange Services and its calculation of the billing percentages which should
apply for such arrangement, as part of the notice required by subsection 4.4.1
above. Within ten (10) business days of Covad's delivery of notice to BA, BA and
Covad shall confirm the new Rating Point/BA Wire Center combination and billing
percentages. Nothing in this subsection 6.3.17 shall be construed to limit
Covad's ability to select to interconnect with BA in additional LATAs by means
of Interconnection at a Wire Center, to the extent that such Interconnection is
permitted under this Agreement.
6.3.18 Within thirty (30) days of a request by Covad, BA agrees to
notify all switched access users with a Carrier Identification Code in a LATA in
which the Parties have newly established Interconnection arrangements pursuant
to this Agreement that BA and Covad
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have entered in a Meet Point Billing arrangement.
6.4 800/888 Traffic
The following terms shall apply when either Party delivers 800/888 calls
to the other Party for completion.
6.4.1 When Covad delivers translated 800/888 calls to BA for
completion
(a) to an IXC, Covad shall:
(i) Provide a MPB record in an industry standard format to BA; and
(ii) Bill the IXC the appropriate Covad query charge associated
with the call.
(b) as an IntraLATA call to BA or another LEC in the LATA, Covad shall:
(i) Provide a copy record in an industry standard format to BA or
the terminating LEC;
(ii) Submit the call records to ITORP for payment by BA or the LEC
that is the 800/888 service provider of Covad's and any
intermediate LEC's Tariffed Exchange Access charges and query
charges.
6.4.2 When BA delivers translated 800/888 calls originated by BA's
or another LEC's Customers to Covad for completion
(a) to Covad in its capacity as an IXC, BA shall:
(i) Bill Covad the appropriate BA query charge associated with the
call; and
(ii) Bill Covad the appropriate FGD Exchange Access charges
associated with the call.
(b) as an IntraLATA call to Covad in its capacity as a LEC,
(i) the originating LEC shall submit the appropriate call records
to BA for processing under the IntraLATA Toll Originating
Responsibility Plan ("ITORP") for payment by Covad of BA's
(and another LEC's, if appropriate) tariffed Exchange Access
charges; and
(ii) Covad shall pay the originating LEC's appropriate query charge
associated with the call.
6.4.3 The settlement of all IntraLATA 800/888 calls exchanged
pursuant to this
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subsection 6.4 shall be in accordance with the terms of an appropriate IntraLATA
Telecommunications Services Settlement Agreement between the Parties
substantially in the form appended hereto as Exhibit D.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Services Traffic
The following provisions shall apply only to Covad-originated Information
Services Traffic directed to an information services platform connected to BA's
network. At such time as Covad connects Information Services platforms to its
network, the Parties shall agree upon a comparable arrangement for BA-originated
Information Services Traffic.
7.1.1 Covad shall have the option to route Information Services
Traffic that originates on its own network to the appropriate information
services platform(s) connected to BA's network. In the event Covad exercises
such option, Covad will establish a dedicated trunk group to the BA information
services serving switch. This trunk group will be utilized to allow Covad to
route information service traffic originated on its network to BA.
7.1.2 Covad shall provide an electronic file transfer or monthly
magnetic tape containing recorded call detail information to BA.
7.1.3 BA shall provide to Covad via electronic file transfer or
magnetic tape or other means as available all necessary information to rate the
Information Services Traffic to Covad's Customers pursuant to the BA's
agreements with each information services provider. Information shall be
provided in as timely a fashion as practical in order to facilitate record
review and reflect actual prices set by the individual information services
providers.
7.1.4 Covad shall bill and collect such information services
provider charges and remit the amounts collected to BA less:
(a) The Information Services Billing and Collection fee set forth in
Exhibit A; and
(b) An uncollectibles reserve calculated based on the uncollectibles
reserve in BA's billing and collection agreement with the applicable
information services provider; and
(c) Customer adjustments provided by Covad.
Covad shall provide to BA sufficient information regarding uncollectibles
and Customer adjustments to allow BA to pass through the adjustments to the
information services provider, and BA shall pass through such adjustments.
However, if the information services provider disputes such adjustments and
refuses to accept such adjustments, Covad shall reimburse BA for
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all such disputed adjustments. Final resolution regarding all disputed
adjustments shall be solely between Covad and the information services provider.
7.1.5 Nothing in this Agreement shall restrict either Party from
offering, or obviate either Party's obligations, if any, under Applicable Laws
to offer, to its Telephone Exchange Service Customers the ability to block the
completion of Information Service Traffic or from establishing such blocking as
the default and requiring that such Customers make an affirmative request to
remove the blocking.
7.1.6 To the extent either Party offers variable rated (e.g. 976,
554, and/or 915, as applicable) information services, the Parties may agree to
separate arrangements for the billing and compensation of such services.
7.1.7 The Information Services Traffic addressed herein does not
include 555 traffic or similar traffic with AIN service interfaces, which
traffic shall be subject to separate arrangements between the Parties.
7.2 LSV/VCI Traffic
7.2.1 If Party A decides or is required by a regulatory body of
competent jurisdiction to offer LSV and VCI services to enable its Customers to
verify and/or interrupt calls of Party B's Customers, Party B shall accept and
respond to LSV and VCI requests from the operator bureau of the Party A. Each
Party shall compensate the other Party for LSV and VCI inquiries in accordance
with the other Party's Tariffed rates, the terms of the Directory Assistance and
Call Completion Agreement appended hereto as Exhibit C, or as may be agreed to
by the Parties.
7.2.2 The Party B operator shall only verify the status of the line
(LSV) or interrupt the line to inform the called party that there is a call
waiting. The Party B operator will not complete the telephone call of the
Customer initiating the LSV/VCI request. The Party B operator will only make one
LSV/VCI attempt per Customer operator bureau telephone call, and the applicable
charges apply whether or not the called party releases the line.
7.2.3 Each Party's operator bureau shall accept LSV and VCI
inquiries from the operator bureau of the other Party in order to allow
transparent provision of LSV/VCI Traffic between the Parties' networks.
7.2.4 Each Party shall route LSV/VCI Traffic inquiries over separate
direct trunks (and not the Local/IntraLATA/InterLATA Trunks) established between
the Parties' respective operator bureaus. Each Party shall offer interconnection
for LSV/VCI traffic at its operator services Tandem Office , or other mutually
agreed point in the LATA. Separate LSV/VCI trunks will be directed to the
operator services Tandem Office designated by Party B. Unless otherwise mutually
agreed, the Parties shall configure LSV/VCI trunks over the Interconnection
architectures in accordance with the terms of Section 4, consistent with the
Joint Implementation and Grooming Process. Party A shall outpulse the
appropriate NPA, ATC Code,
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and Routing Code (operator code) to Party B.
7.3 Transit Service
7.3.1 Each Party shall exercise all reasonable efforts to enter into
a reciprocal local traffic exchange arrangement (either via written agreement or
mutual tariffs) with any wireless carrier, ITC, CLEC, or other LEC to which it
sends, or from which it receives, local traffic that transits the other Party's
facilities over Traffic Exchange Trunks. If either Party fails to enter into
such an arrangement as quickly as commercially reasonable following the
Effective Date and to provide written notification of such Agreement, including
the relevant rates therein, to the other Party, but continues to utilize the
other Party's Transit Service for the exchange of local traffic with such
wireless carrier, ITC, CLEC, or other LEC, then the Party utilizing the Transit
Service shall, in addition to paying the rate set forth in Exhibit A for said
Transit Service, pay the other Party any charges or costs such terminating third
party carrier imposes or levies on the other Party for the delivery or
termination of such Traffic, including, where not prohibited by Applicable Law,
any switched access charges, plus all reasonable expenses incurred by the other
Party in delivering or terminating such Traffic and/or resulting from the
utilizing Party's failure to secure said reciprocal local traffic exchange
arrangement. Each Party will, upon request, provide the other Party with all
reasonable cooperation and assistance in obtaining such arrangements. In
addition, neither Party shall take any actions to prevent the other Party from
entering into a direct and reciprocal local traffic exchange arrangement (either
via written agreement or mutual tariffs) with any wireless carrier, ITC, CLEC,
or other LEC to which it sends, or from which it receives, local traffic that
does not utilize the Transit Service of the first Party. The Parties agree to
work cooperatively in appropriate industry fora to promote the adoption of
reasonable industry guidelines relating to Transit Traffic.
7.3.2 Transit Traffic that is originated by an ITC or wireless
carrier shall be settled in accordance with the terms of an appropriate
IntraLATA Telecommunications Services Settlement Agreement between the Parties
substantially in the form appended hereto as Exhibit D. Meet-Point Billing
compensation arrangements as described in subsection 6.3 shall be utilized for
compensation for the joint handling of Toll Traffic.
7.3.3 BA expects that most networks involved in Transit Traffic will
deliver each call to each involved network with CCIS and the appropriate
Transactional Capabilities Application Part ("TCAP") message to facilitate full
interoperability of those services supported by BA and billing functions. In all
cases, each Party shall follow the Exchange Message Record ("EMR") standard and
exchange records between the Parties and with the terminating carrier to
facilitate the billing process to the originating network.
7.3.4 Transit Traffic shall be routed over the Traffic Exchange
Trunks described in Section 5 above.
7.4 911/E911 Arrangements
7.4.1 Covad may, at its option, interconnect to the BA 911/E911
selective routers
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or 911 Tandem Offices, as appropriate, that serve the areas in which Covad
provides Telephone Exchange Services, for the provision of 911/E911 services and
for access to all subtending Public Safety Answering Points ("PSAP"). In such
situations, BA will provide Covad with the appropriate CLLI codes and
specifications of the Tandem Office serving area. In areas where E911 is not
available, Covad and BA will negotiate arrangements to connect Covad to the 911
service.
7.4.2 Path and route diverse interconnections for 911/E911 shall be
made at the Covad-IP, the BA-IP, or other points as necessary and mutually
agreed, and as required by law or regulation.
7.4.3 Within thirty (30) days of its receipt of a request from Covad
and to the extent authorized by the relevant federal, state, and local
authorities, BA will provide Covad with the following at no charge:
(a) a file on diskette or other mutually agreed upon medium
containing the Master Street Address Guide ("MSAG") for each county within the
LATA(s) specified in this Agreement, which MSAG shall be updated no more
frequently than monthly and a complete copy of which shall be made available on
an annual basis;
(b) a list of the address, CLLI code, and an associated NXX of each
911/E911 selective router or 911 Tandem office(s) in the area in which Covad
plans to offer Telephone Exchange Service;
(c) a list of the address, CLLI code, associated NXX, contact name
and phone number of each PSAP in each county in the area in which Covad plans to
offer Telephone Exchange Service;
(d) a list of BA personnel who currently have responsibility for
each county's 911 requirements;
(e) the ten-digit subscriber number for each PSAP or the "main" PSAP
that subtends each BA 911/E911 selective router or 911 Tandem to which Covad is
interconnected for the transfer of "0-" calls to the PSAP;
(f) any special 911 trunking requirements for each 911/E911
selective router or 911 Tandem;
(g) an electronic interface, when available, through which Covad
shall input and provide a daily update of 911/E911 database information related
to appropriate Covad Customers. Until such time as an electronic interface is
available, Covad shall provide BA with all appropriate 911 information such as
name, address, and telephone number in writing for BA's entry into the 911
database system. Any 911-related data exchanged between the Parties prior to the
availability of an electronic interface shall conform to BA standards, whereas
911-related data exchanged electronically shall conform to the National
Emergency Number Association standards;
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(h) return of any Covad E911 data entry files containing errors, so
that Covad may ensure the accuracy of the Customer records; and
(i) a Design Layout Record ("DLR") of a 911 (CAMA) trunk, if
applicable.
7.4.4 In cases where a Customer of one Party elects to discontinue
its service and become the Customer of the other Party ("Party B") but desires
to retain its original telephone number pursuant to an INP arrangement, Party B
will outpulse the telephone number to which the call has been forwarded (i.e.
the Customer's ANI) to the 911 Tandem Office. Party B will also provide the 911
database with both the forwarded number and the directory number, as well as the
appropriate address information of the Customer.
7.4.5 BA and Covad will use their best efforts to facilitate the
prompt, robust, reliable and efficient interconnection of Covad systems to the
911/E911 platforms.
7.4.6 BA and Covad will work cooperatively to arrange meetings with
PSAPs to answer any technical questions the PSAPs, or county or municipal
coordinators may have regarding the 911/E911 arrangements.
7.4.7 The Parties acknowledge that the provision of INP, until PNP
with full 911 compatibility is available, creates a special need to have the
Automatic Location Identification ("ALI") screen reflect two number: the "old"
number and the "new" number assigned by Covad. The Parties acknowledge further
the objective of including the five character Telephone Company Identification
("TCI") of the company that provides service to the calling line as part of the
ALI display. Until such time as TCI is operational, however, BA and Covad agree
to supply and use the three-letter Access Carrier Name Abbreviation ("ACNA") as
the carrier identifier.
7.4.8 Covad will compensate BA for connections to its 911/E911
pursuant to Exhibit A.
7.4.9 Covad will comply with all applicable rules and regulations
pertaining to the provision of 911/E911 services in the District of Columbia.
7.5 Ancillary Traffic Generally
Ancillary Traffic that may be terminated at a BA Wire Center pursuant to
subsection 4.5 above shall be subject to a separate transport charge for
transport from the Wire Center to the appropriate Tandem Office, as set forth in
Exhibit A.
8.0 NUMBER RESOURCES, RATE CENTERS AND RATING POINTS
8.1 Nothing in this Agreement shall be construed to limit or otherwise
adversely affect in any manner either Party's right to employ or to request and
be assigned any Central Office
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(NXX) Codes pursuant to the Central Office Code Assignment Guidelines, as may be
amended from time to time, or to establish, by Tariff or otherwise, Rate Centers
and Rating Points corresponding to such NXX codes. Until such time as number
administration is provided by a third party, BA shall provide Covad access to
telephone numbers by assigning NXX codes to Covad in accordance with such
Assignment Guidelines.
8.2 It shall be the responsibility of each Party to program and update its
own switches and network systems in accordance with the Local Exchange Routing
Guide ("LERG") in order 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, except as expressly set forth
in this Agreement.
8.3 Unless mandated otherwise by a Commission order, the Rate Center Areas
will be the same for each Party. During the term of this Agreement, Covad shall
adopt the Rate Center Areas and Rate Center Points that the Commission has
approved for BA, in all areas where BA and Covad service areas overlap, and
Covad shall assign whole NPA-NXX codes to each Rate Center unless the LEC
industry adopts alternative methods of utilizing NXXs in the manner adopted by
the NANP.
8.4 Covad will also designate a Routing Point for each assigned NXX code.
Covad shall designate one location for each Rate Center Area as the Routing
Point for the NPA-NXXs associated with that Area, and such Routing Point shall
be within the same LATA as the Rate Center Area but not necessarily within the
Rate Center Area itself.
8.5 Notwithstanding anything to the contrary contained herein, nothing in
this Agreement is intended to, and nothing in this Agreement shall be construed
to, in any way constrain Covad's choices regarding the size of the local calling
area(s) that Covad may establish for its Customers, which local calling areas
may be larger than, smaller than, or identical to, BA's local calling areas.
9.0 NETWORK MAINTENANCE AND MANAGEMENT; OUTAGES
9.1 The Parties will work cooperatively to install and maintain a reliable
network. Covad and BA will exchange appropriate information (e.g., maintenance
contact numbers, escalation procedures, network information, information
required to comply with law enforcement and other security agencies of the
Government) to achieve this desired reliability. In addition, the Parties will
work cooperatively to apply sound network management principles to alleviate or
to prevent congestion. BA and Covad agree to work cooperatively to implement
technical guidelines to prevent degradation or other impairments to the quality
or reliability of either Party's network.
9.2 Each Party recognizes a responsibility to follow the standards that
may be agreed to between the Parties and to employ characteristics and methods
of operation that will not interfere with or impair the service or any
facilities of the other or any third parties connected with
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or involved directly in the network of the other.
9.3 Interference or Impairment
If BA reasonably determines that the use of an unbundled Network Element
or network service by Covad is interfering with or impairing BA's provision of
services, BA shall have the right to discontinue service to the degree
reasonably necessary to resolve the interference or impairment, subject,
however, to the following: :
9.3.1 BA shall have given Covad at least ten (10) days' prior
written notice of the interference or impairment and the need to correct the
condition within said time period.
9.3.2 BA shall have concurrently provided a copy of the notice
provided to Covad under subsection 9.3.1 above to the appropriate federal and/or
state regulatory bodies.
9.3.3 Notice in accord with subsections 9.3.1 and 9.3.2 above shall
not be required in emergencies and BA may immediately discontinue service if
reasonably necessary to avoid interference with or impairment of BA's network or
services.. In such case, however, BA shall use all reasonable means to notify
Covad and the appropriate federal and/or state regulatory bodies.
9.3.4 Upon correction of the interference or impairment, which may
include relocation at appropriate rates and charges, BA will promptly renew
service to Covad. During such period of discontinuance, there will be no
compensation or credit allowance by BA to Covad for interruptions.
9.3.5 The provisions of this Section 9.3 shall not apply to ADSL-2W,
HDSL-2W, and HDSL-4W ULLs provided to Covad by BA pursuant to Section 11.2 of
this Agreement, so long as Covad conforms to the applicable technical references
in its use of such Loops.
9.3.6 If Bell Atlantic reasonably determines that (i) Covad's use of
an unbundled Network Element or a service provided by BA or (ii) the
characteristics and methods of operation used by Covad will or may interfere
with or impair BA's provision of services, BA shall give Covad at least twenty
(20) days' prior written notice of the potential interference or impairment and
the need to correct the condition within said time period. If Covad fails to
correct the condition within said time period, BA may take any action permitted
by Applicable Law, including, but not limited to, filing a complaint with or
seeking other relief from the FCC or the Department.
9.4 Repeated or Willful Noncompliance
The Interconnection, unbundled Network Elements, and services provided
hereunder may be discontinued by either Party upon thirty (30) days written
notice to the other for repeated or willful violation of and/or a refusal to
comply with this Agreement in any material respect. The Party discontinuing will
notify the appropriate federal and/or state regulatory bodies concurrently
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with the notice to the other Party of the prospective discontinuance.
9.5 Outage Repair Standard
In the event of an outage or trouble in any arrangement, facility, or
service being provided by a Party hereunder, the providing Party will follow
procedures for isolating and clearing the outage or trouble that are no less
favorable than those that apply to comparable arrangements, facilities, or
services being provided by the providing Party to itself or any other carrier
whose network is connected to that of the providing Party. Covad and BA may
agree to modify those procedures from time to time based on their experience
with comparable Interconnection arrangements with other carriers.
9.6 Notice of Changes -- Section 251(c)(5)
If a Party makes a change in the information necessary for the
transmission and routing of services using that Party's network, or any other
change in its network which it believes will materially affect the
inter-operability of its network with the other Party's network, the Party
making the change shall provide at least ninety (90) days advance written notice
of such change to the other Party. In addition to all other disclosure rules
required by Applicable Law, the Parties will comply with the Network Disclosure
rules adopted by the FCC in CC Docket No. 86-79 and those promulgated pursuant
to Section 251(c)(5) of the Act as may be amended from time to time.
9.7 Fraud
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.
10. JOINT NETWORK IMPLEMENTATION AND GROOMING PROCESS; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR
10.1 Joint Network Implementation and Grooming Process
Upon request of either Party, the Parties shall jointly develop an
implementation and grooming process (the "Joint Grooming Process" or "Joint
Process") which may define and detail, inter alia,
(a) agreement on Physical Architecture consistent with the
guidelines defined in Section 4.0;
(b) standards to ensure that Interconnection trunk groups experience
a grade of service, availability and quality which is comparable to that
achieved on interoffice trunks within BA's network and in accord with all
appropriate relevant industry-accepted quality, reliability and
availability standards;
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(c) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of the trunk groups,
including, but not limited to, standards and procedures for notification
and discoveries of trunk disconnects;
(d) disaster recovery provision escalations;
(e) additional technically feasible and geographically relevant
IP(s) in a LATA as provided in Section 4.0 above; and
(f) such other matters as the Parties may agree, including, e.g.,
End Office to End Office high usage trunks as good engineering practices
may dictate.
Nothing in this subsection 10.1 shall affect either Party's obligations to
meet the milestone dates set forth in Schedule 3.0 hereof.
10.2 Installation, Maintenance, Testing and Repair
Unless otherwise agreed to by the Parties, Interconnection shall be
provided at parity. For purposes of this Agreement, a Party's obligation to
provide parity shall be in accordance with Applicable Laws, including relevant
Tariffs or service standards, regarding the establishment of Interconnectin
arrangements. . If either Party is unable to fulfill its obligations under this
subsection 10.2, it shall notify the other Party of its inability to do so and
will negotiate alternative intervals in good faith. The Parties agree that the
standards to be used by each Party for isolating and clearing any disconnections
and/or other outages or troubles shall be at parity.
10.3 Forecasting Requirements for Trunk Provisioning
Within ninety (90) days of executing this Agreement, Covad shall provide
BA a one (1) year traffic forecast. This initial forecast will provide the
amount of traffic to be delivered to BA over each of the Traffic Exchange Trunk
groups over the next four (4) quarters. The forecast shall be updated and
provided to BA on an as-needed but no less frequently than quarterly basis. All
forecasts shall include Access Carrier Terminal Location (ACTL), traffic type
(local/toll, operator services, 911, etc.), code (identifies trunk group), A
location/Z location (CLLI codes for Covad-IPs and BA-IPs), interface type (e.g.,
DS1), and trunks in service each year (cumulative).
10.3.1 Initial Forecasts/Trunking Requirements Because BA's
trunking requirements will, at least during an initial period, be dependent on
the customer segments and service segments within customer segments to whom
Covad decides to market its services, BA will be largely dependent on Covad to
provide accurate trunk forecasts for both inbound (from BA) and outbound (from
Covad) traffic. BA will, as an initial matter and upon request, provide the same
number of trunks to terminate local traffic to Covad as Covad provides to
terminate local traffic to BA, unless Covad expressly identifies particular
situations that are expected to produce traffic that is substantially skewed in
either the inbound or outbound direction, in which case BA will provide the
number of trunks Covad suggests; provided, however, that in all cases
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BA's provision of the forecasted number of trunks to Covad is conditioned on the
following: that such forecast is based on reasonable engineering criteria, there
are no capacity constraints, and Covad's previous forecasts have proven to be
reliable and accurate.
10.3.2 Monitoring and Adjusting Forecasts BA will, for ninety (90)
days, monitor traffic on each trunk group that it establishes at Covad's
suggestion or request pursuant to the procedures identified in subsection 10.3.1
above. At the end of such ninety (90) day period, BA may disconnect trunks that,
based on reasonable engineering criteria and capacity constraints, are not
warranted by the actual traffic volume experienced. If, after such initial
ninety (90) day period for a trunk group, BA determines that any trunks in the
trunk group in excess of four (4) DS-1s are not warranted by actual traffic
volumes (considering engineering criteria for busy hour CCIS and blocking
percentages), then BA may hold Covad financially responsible for the excess
facilities. In subsequent periods, BA may also monitor traffic for ninety (90)
days on additional trunk groups that Covad suggests or requests BA to establish.
If, after any such (90) day period, BA determines that any trunks in the trunk
group are not warranted by actual traffic volumes (considering engineering
criteria for busy hour CCIS and blocking percentages), then BA may hold Covad
financially responsible for the excess facilities. At any time during the
relevant ninety (90) day period, Covad may request that BA disconnect trunks to
meet a revised forecast. In such instances, BA may hold Covad financially
responsible for the disconnected trunks retroactive to the start of the ninety
(90) day period through the date such trunks are disconnected.
10.3.3 Reciprocal Responsibility To the extent that BA requires
Covad to install trunks for delivery of traffic to BA, Covad may apply the same
procedures with respect to BA's trunking requirements.
10.3.4 Future Forecasts/Trunking Requirement The Parties agree to
determine and develop reciprocal forecast requirements at the end of two (2)
years following the Service Activation Date (as set forth in Schedule 3.0).
10.4 Demand Management Forecasts
10.4.1 Covad will furnish BA with good faith demand management
forecasts to enable BA to effectively plan its network infrastructure and work
force levels to accomodate anticipated Covad demand for BA services and
products. Such forecasts will describe Covad's expected needs for service
volumes, and timeframes for service deployment, by wire center. Covad agrees to
provide such forecasts to BA thirty (30) days following the Effective Date, with
updates to follow every six months thereafter. BA agrees that such forecasts
shall be subject to the confidentiality provisions defined in subsection 29.4
below, and that such information will only be used by BA to provide
Interconnection, unbundled Network Elements and other services pursuant to this
Agreement.
11.0 UNBUNDLED ACCESS -- SECTION 251(c)(3)
To the extent required of each Party by Section 251 of the Act, each Party
shall offer to
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the other Party nondiscriminatory access to Network Elements on an unbundled
basis at any technically feasible point. BA shall unbundle and separately price
and offer Network Elements such that Covad will be able to lease and
interconnect to whichever of the Network Elements Covad requires, and to allow
Covad to combine the BA-provided elements with any facilities and services that
Covad may itself provide, subject to Applicable Law. To the extent permitted by
Applicable Law, Covad may use one or more unbundled Network Elements to provide
to itself, its affiliates or its customers any feature, function or service
option that (1) such unbundled Network Element is presently capable or becomes
capable of providing in the BA network, (2) is described in the applicable
Bellcore and other industry standard technical references identified herein and
which the BA network has the capability of providing on the Effective Date of
this Agreement or becomes capable of providing during the Term of this
Agreement, or (3) may otherwise be agreed to by the Parties. Unless otherwise
required by Applicable Law, any combination by Covad of unbundled Network
Elements purchased from BA shall be through a Collocation arrangement pursuant
to Section 13.0 or applicable Tariff.
The unbundled Network Elements and rates specified in this Agreement shall
be made available by BA to Covad purusant to and to the extent required by
Applicable Law. Unless otherwise provided in this Agreement, the unbundled
Network Elements specified in this Agreement shall be made available by BA to
Covad for ordering and provisioning on the Effective Date. To the extent
required by Applicable Law, and notwithstanding anything to the contrary in this
Section, BA will offer Covad nondiscriminatory access to ADSL-2W, HDSL-2W, and
HDSL-4W ULLs to the extent that BA offers such ULLs to any Telecommunications
Carrier in the District of Columbia. Nothing in the preceding sentence or
elsewhere in this Section is intended to obligate Bell Atlantic to provide
ADSL-2W, HDSL-2W and HDSL-4W ULLs as of a specific date (other than as may be
required by Applicable Law) or to constitute a waiver of any right Covad may
have to obtain such Loops. In the event that a change in Applicable Law requires
Bell Atlantic to provide ADSL-2W, HDSL-2W and HDSL-4W ULLs or other types of
DSL-compatible Loops, the Parties will negotiate in good faith a
non-discriminatory, commercially reasonable schedule for the availability of
each such type of Loop consistent with Applicable Law.
Covad and BA agree that the unbundled Network Elements identified in this
Section 11 are not exclusive and that pursuant to the BFR Process Covad may
identify and request that BA furnish additional or revised unbundled Network
Elements to the extent required under the Act. Additionally, if BA provides any
unbundled Network Element that is not identified in this Agreement to a
requesting Telecommunications Carrier, including a BA Affiliate, without
requiring such carrier to utilize the BFR process, then BA will make available
the same unbundled Network Element to Covad without Covad being required to use
the BFR Process.
At the time Covad provides BA with an order for a particular unbundled
Network Element other than the standard interfaces provided under this
Agreement, Covad may request any technically feasible network interface. Any
such requested network interface shall be subject to the approval of BA, which
approval shall not be unreasonably withheld or delayed. If Covad's request is
denied, BA shall provide Covad with written notice of said denial, including, if
applicable, a specific description of why it is technically infeasible for BA to
comply with Covad's
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request.
For each appropriate unbundled Network Element, BA shall identify a
demarcation point and, if necessary and appropriate, access to such demarcation
point.
11.1 Available Network Elements
At the request of Covad, BA shall provide Covad access to the following
unbundled Network Elements in accordance with the requirements of the FCC
Regulations and Applicable Law:
11.1.1 Local Loops, as set forth in subsection 11.2;
11.1.2 The Network Interface Device, as set forth in subsection
11.3;
11.1.3 Switching Capability, as set forth in subsection 11.4;
11.1.4 Interoffice Transmission Facilities, as set forth in
subsection 11.5;
11.1.5 Signaling Links and Call-Related Databases, as set forth in
Section 17;
11.1.6 Operations Support Systems, as set forth in subsection 11.6;
11.1.7 Operator Services and Directory Assistance, as set forth in
subsection 19.4; and
11.1.8 such other Network Elements in accordance with subsection
11.8 below.
11.2 Unbundled Local Loop ("ULL") Transmission Types
Subject to subsection 11.7, BA shall allow Covad to access the following
unbundled Local Loop ("ULL") types unbundled from local switching and local
transport in accordance with the terms and conditions set forth in this
subsection 11.2.
11.2.1 "2-Wire Analog Voice Grade ULL" or "Analog 2W" which supports
analog transmission of 300-3000 Hz, loop start, loop reverse battery, ground
start, and no signaling and terminates at both the Central Office MDF (or
equivalent) and the Customer premises, in accordance with BA TR72565 and
TR72570.
11.2.2 "4-Wire Analog Voice Grade ULL" or "Analog 4W" provides an
effective 4-wire channel with 4-wire interfaces at each end that is suitable for
the transport of analog voice grade (nominal 300 to 3000 Hz) signals. The
service will operate with one of the following signaling types that may be
specified when the service is ordered: loop-start, ground-start,
loop-reverse-battery, duplex, and no signaling. The service is more fully
described in Bell Atlantic TR-72570.
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11.2.3 "2-Wire ISDN Digital Grade ULL" or "BRI ISDN" (Premium Link)
which supports digital transmission of two 64 kbps bearer channels and one 16
kbps data channel ("2B+D") in accordance with BA TR72575. BRI ISDN is a 2B+D
Basic Rate Interface-Integrated Services Digital Network (BRI-ISDN) Loop which
will support equipment that meets national ISDN standards and conforms to ANSI
T1.601-1992 & T1E1.4 90-004R3.
11.2.4 "2-Wire ADSL-Compatible ULL" or "ADSL 2W" is a 2-wire,
non-loaded, twisted copper pair that meets revised resistance design or carrier
serving area design guidelines. An ADSL-2W is a transmission path that is
suitable for the transmission of up to a 6 mpbs digital signal downstream
(toward the Customer) and up to a 640 kbps digital signal upstream (away from
the Customer) while simultaneously carrying an analog voice signal, although
Covad is not restricted to those bandwidth specificaitons in providing its
services, provided that Covad complies with appropriate industry ADSL standards
and BA technical reference TR72575. An ADSL 2W terminates in a 2-wire electrical
interface at the Customer premises and at the Bell Atlantic Central Office
frame. 2-wire ADSL-compatible local loops are only available where existing
facilities can meet the non-loaded revised resistance design or carrier serving
area design guidelines. The upstream and downstream ADSL power spectral density
masks and dc line power limits referenced in BA TR 72575 must be met. 2-Wire
ADSL-compatible Local Loops are subject to availability.
11.2.5 "2-Wire HDSL-Compatible ULL" or "HDSL 2W" consisits of a
single 2-wire, non-loaded, twisted copper pair that meets the carrier serving
area design criteria. The HDSL power spectral density mask and dc line power
limits referenced in BA TR 72575 must be met. 2-Wire HDSL-compatible Local Loops
are subject to availability.
11.2.6 "4-Wire HDSL-Compatible ULL" or "HDSL 4W" consists of two
2-wire, non-loaded, twisted copper pairs that meet the carrier serving area
design criteria. The HDSL power spectral density mask and dc line power limits
referenced in BA TR 72575 must be met. 4-Wire HDSL-compatible Local Loops are
subject to availability.
11.2.7 "4-Wire DS1-compatible ULL" (Digital Grade Loop) is a
transmission path that supports the transmission of digital signals of up to a
maximum binary information rate of 1.544 mbps and terminates in a 4-Wire
electrical interface at the Customer premises and a Covad Collocation node at a
BA Central Office. A DS-1 digital Grade Loop is capable of operating in a full
duplex, time division (digital) multiplexing mode and provides transmission
capacity equivalent to 24 voice grade channels with associated signaling,
twenty-four 56 kbps digital channels when in band signaling is provided or
twenty-four 64 kbps channels with the selection of the Clear Channel signaling
option, as described in BA TR 72575. .
11.2.8 ULLs will be offered on the terms and conditions specified
herein and on such other terms in applicable Tariffs that are not inconsistent
with the terms and conditions set forth herein. BA shall make ULLs available to
Covad at the rates specified by the Commission, as amended from time to time,
subject to the provisions of subsection 11.2.8.1 below.
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11.2.8.1 BA will make Analog 2-Wire ULLs, BRI ISDN ULLs, Analog 4W
ULLs, and 4-Wire DS-1-compatible ULLs available for purchase by Covad at any
time after the Effective Date.
11.2.9 Special Provisions Regarding ADSL and HDSL ULLs
At Covad's request, BA will provide the ADSL-2W, HDSL-2W and HDSL-4W ULLs
described in Sections 11.2.4, 11.2.5 and 11.2.6 of this Agreement after
successful completion of a Technical Trial, if necessary, and an Operational
Trial for each ULL type. A Technical Trial is required prior to an Operational
Trial; however, the Technical and/or Operational Trial may or may not involve
Covad and will not take place in the District of Columbia. Upon Covad's request,
BA will advise Covad as to the status of any technical and/or operational
trial(s) being conducted or already completed by BA in any state. BA may also
waive the need for the Operational Trial, and BA will then provide Covad, and
Covad may utilize, such ULL types, subject to the provisions of Section
11.2.9.3-11.2.9.3.5 below.
BA shall exercise its best efforts to utilize all technical data available
to it to satisfy its requirement to conduct a Technical Trial. BA shall share
with Covad, upon Covad's written request, the technical trial results related to
potential interference issues of any ADSL or HDSL technical trial that BA has
undertaken with another Telecommunications Carrier in its service territory, to
the extent that the information is not proprietary to the other
Telecommunications Carrier.
At any time prior to its making ADSL Loops generally available in the
District of Columbia, BA may request that Covad engage in an Operational or
Technical Trial and Covad will negotiate in good faith to reach agreement on the
parameters of such a trial. Covad shall be deemed to have satisfied its good
faith obligation under this section, inter alia, if it (a) reasonably determines
that it lacks sufficient resources to engage in the requested trial at the time
of the request, or (b) is or has been engaged in a BA user group or Commission
collaborative process that is addressing or has successfully addressed the issue
proposed to be resolved by the requested test.
11.2.9.2 Rates
The ADSL-2W and HDSL-2W rates and any other charges specified in
Exhibit A as applicable to such ULLs shall apply during the Operational Trial
and thereafter on an interim basis for ADSL-2W and HDSL-2W ULLs. The HDSL-4W
rate and other charges specified in Exhibit A as applicable to such ULLs shall
apply during the Operational Trial and on an interim basis thereafter for
HDSL-4W ULLs. The interim rates identified in this subsection shall only apply
until such time as the Department approves rates for ADSL and HDSL-compatible
ULLs that comply with Section 252(d)(1) of the Act.
11.2.9.3 Interference and Impairment for ADSL-2W, HDSL-2W and
HDSL-4W ULLs.
After the successful completion of the Operational Trial and subject to
the BA published technical references and guidelines:
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11.2.9.3.1 Covad shall be able to order and BA shall provision
ADSL-2W, HDSL-2W and HDSL-4W ULL(s).
11.2.9.3.2. In its use of ADSL-2W, HDSL-2W and HDSL-4W ULLs, Covad
shall conform to the BA references and guidelines such that its provision of
services to its customers does not degrade or otherwise adversely affect the
quality or reliability of service to BA's customers, provided that BA is in
compliance with the provisions of this Section.
11.2.9.3.3 BA shall conform to its references and guidelines and
shall not introduce services on its network that would degrade or otherwise
adversely affect the quality or reliability of service to Covad's Customers,
provided that Covad is in compliance with the provisions of this Section.
11.2.9.3.4. If Covad determines that BA is deploying xDSL technology
in a manner that will or may interfere with Covad's provision of its services,
Covad shall notify BA in a reasonable manner and time frame. If BA determines
that Covad is using an ADSL or HDSL Compatible ULL in a manner that will or may
interfere with or impair BA's provision of its services, BA shall notify Covad
in a reasonable manner and time frame.
11.2.9.3.5. The Parties agree to work cooperatively to resolve
interference or other impairment issues. In the event a cooprative resolution
cannot be reached, the Dispute Resolution procedures for this Agreement shall
apply.
11.3 Network Interface Device
At the request of Covad, BA shall permit Covad to connect a carrier's loop
to the Inside Wiring of a Customer's premises through BA's NID in the manner set
forth in Schedule 11.3. Covad must establish the connection to BA's NID through
an adjoining NID deployed by Covad. The Customer shall be responsible for
resolving any conflicts between service providers for access to Customer's
premises and Inside Wire.
11.4 Unbundled Switching Elements
BA shall make available to Covad the local Switching Element and tandem
Switching Element unbundled from transport, local loop transmission, or other
services, as more fully described in Schedule 11.4, in accordance with the terms
and conditions of and at the rates specified in BA's applicable Tariff as
amended from time to time. In the event that there is no applicable Tariff in
the District of Columbia, the Parties agree to negotiate the terms, conditions,
and rates for the provision of unbundled switching elements upon Covad's
request..
11.5 Interoffice Transmission Facilities
11.5.1 BA will provide Covad access to unbundled interoffice
transmission facilities as set forth herein between its Central Offices.
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11.5.2 BA will provide Covad access to unbundled shared IOF
transport in conjunction with Covad's purchase of unbundled local switching.
Unbundled shared IOF transport provides Covad access to BA's inter-office
transport facilities (i.e. existing route(s) that are used within the Bell
Atlantic network) which carry transmission from several different carriers,
including BA.
11.5.3 BA will provide Covad access to unbundled dedicated IOF
transport. "Dedicated Transport" is an interoffice transmission path of fixed
capacity between designated locations to which Covad is granted exclusive use.
Access to Dedicated Transport is from Covad's switching office or from its
Collocation arrangement established at BA's Central Office.
11.5.4 Dedicated Transport will be paid for by Covad at rates set
forth in Exhibit A.
11.5.5 BA will provide access to unbundled dedicated IOF transport
between: 1) Telecommunications Carrier switching office, 2) CLEC Collocation
Arrangements, and 3) a CLEC Collocation arrangement and a Telecommunications
Carrier switching office. When unbundled dedicated IOF transport terminates at a
Bell Atlantic Central Office, it must terminate at a CLEC Collocation
arrangement.
11.5.6 BA will provide unbundled dedicated IOF transport at the
following transmission speeds: DS-1 and DS-3. For other transmission speed
requests (i.e. OC-n) Covad shall submit a Bona Fide Request (BFR).
11.5.7 In addition to its obligations purusant to this Section 11.4,
BA shall provide Covad unbundled IOF Transport, unbundled from switching, and
other services as required by Applicable Law, at the rates, terms and conditions
set forth in applicable Tariffs, as amended from time to time.
11.6 Operations Support Systems
BA shall provide Covad with nondiscriminatory access to OSS functions for
pre-ordering, ordering, provisioning, maintenance and repair, and billing as
soon as required by Applicable Law. Once BA has developed a pre-order loop
qualification database for xDSL-compatible ULLs in the District of Columbia, and
either (i) makes the database available to other Telecommunications Carriers, or
(ii) utilizes the database in its own retail operations on a routine basis, it
shall provide Covad nondiscriminatory access to such database, at rates and
charges to be determined. Nothing in this subsection shall restrict Covad's
ability to obtain access to any operational support systems ("OSS") that BA
makes generally available to any other Telecommunications Carrier in the state.
11.7 Limitations on Unbundled Access
11.7.1 BA shall only be required to provide ULLs and Ports where
such Loops and Ports are available.
11.7.2 Covad shall access BA's unbundled Network Elements
specifically
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identified in this Agreement via Collocation in accordance with Section 13 at
the BA Wire Center where those elements exist or other mutually agreed upon
means of Interconnection, and each ULL or Port shall, in the case of
Collocation, be delivered to Covad's Collocation by means of a Cross Connection
or Strapping, at the rates set forth in Exhibit A, or via such other alternative
arrangement(s) as the Parties may mutually agree, to the extent required by
Applicable Law.
11.7.3 BA shall provide Covad access to its Unbundled Local Loops at
each of BA's Wire Centers for loops terminating in that Wire Center. In
addition, if Covad orders one or more ULL provisioned via Integrated Digital
Loop Carrier or Remote Switching technology deployed as a ULL concentrator, BA
shall, where available and in accordance with applicable technical references,
move the requested ULL(s) to a spare, existing physical ULL at no additional
charge to Covad. If, however, no spare physical ULL is available, BA shall
within three (3) business days of Covad's request notify Covad of the lack of
available facilities. In such event, BA shall offer Covad other options as may
be available, which shall, where feasible, include the placement of a suitable
digital line card at the remote terminal, provided that Covad shall agree to pay
the additional costs incurred by BA in making such other options available to
Covad. The additional cost of such other specific option, and the basis for
allocating such additional cost, will be determined at the time the option is
made available. Covad may also, at its discretion, make a Network Element Bona
Fide Request to BA to provide the unbundled Local Loop through the
demultiplexing of the integrated digitized ULL(s). Covad may also make a Network
Element Bona fide Request for access to Unbundled Local Loops at the ULL
concentration site point. Alternatively, Covad may choose to avail itself of
BA's Special Construction services, as set forth in Exhibit A, for the
provisioning of such ULL(s). Notwithstanding anything to the contrary in this
Agreement, standard provisioning intervals shall not apply to ULL provided under
this subsection 11.7.3.
11.7.4 If Covad orders a ULL type and the distance requested on such
ULL exceeds the transmission characteristics in applicable technical references,
as specified below, distance extensions may be required and additional rates and
charges shall apply as set forth in Exhibit A or applicable Tariffs.
Loop Type Technical Reference/Limitation
ISDN Bellcore TA-NWT-000393
HDSL 2W T1E1 Technical Report Number 28
HDSL 4W T1E1 Technical Report Number 28
ADSL 2W ANSI T1.413 1995 Specification
11.7.5 BA will exercise all reasonable efforts to ensure that the
service intervals that apply to ULLs and unbundled Ports are comparable to the
(i) repair intervals that apply to the bundled dial tone line service, and (ii)
installation intervals that apply to other BA-coordinated services, except as
provided in Section 27. Although BA will make commercially reasonable efforts to
ensure that ULLs and unbundled ports meet specified or agreed-upon technical
standards, BA makes no warranty that the ULLs or unbundled Ports supplied by BA
hereunder will be compatible with the services Covad may offer to its Customers
if they are used in a manner not contemplated by the Parties.
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11.8 Availability of Other Network Elements on an Unbundled Basis
11.8.1 BA shall, upon request of Covad and to the extent required by
Applicable Law, provide to Covad nondiscriminatory access to its Network
Elements on an unbundled basis for the provision of Covad's Telecommunications
Service. Any request by Covad for access to an BA Network Element that is not
already available shall be treated as a Network Element Bona Fide Request. Covad
shall provide BA access to its Network Elements as mutually agreed by the
Parties or as required by Applicable Laws.
11.8.2 A Network Element obtained by one Party from the other Party
under this subsection 11.8 may be used in combination with the facilities of the
requesting Party only to provide a Telecommunications Service, including
obtaining billing and collection, transmission, and routing of the
Telecommunications Service.
11.8.3 Notwithstanding anything to the contrary in this subsection
11.8, a Party shall not be required to provide a proprietary Network Element to
the other Party under this subsection 11.8 except as required by the Commission
or FCC.
11.8.4 BA will, on a semi-annual basis, notify Covad of the
availability of new unbundled Network Elements.
11.9 Provisioning of Unbundled Local Loops
The following coordination procedures shall apply for conversions of
"live" Telephone Exchange Services to ULLs. These and other mutually agreed-upon
procedures shall apply reciprocally for the "live" cutover of Customers from BA
to Covad and from Covad to BA.
11.9.1 Upon request by Covad, BA will apply the following
coordination procedures to conversions of live Telephone Exchange Services to
ULLs. Coordinated cutover charges will apply to any such arrangement. If Covad
elects not to request coordinated cutover, BA will process Covad's request in
the normal course and subject to the normal installation intervals.
11.9.2 Covad shall request ULLs from BA by delivering to BA a valid
electronic transmittal service order (when available) or another mutually
agreed-upon type of service order such as a Loop/NID Time and Material form.
Such service order shall be provided in accordance with industry format and
specifications or such format and specifications as may be agreed to by the
Parties. Within forty-eight (48) hours of BA's receipt of such valid service
order, BA shall provide Covad the firm order commitment date according to the
Performance Interval Dates set forth in Schedule 27 by which the ULLs covered by
such service order will be installed.
11.9.3 On each ULL order in a Wire Center, Covad and BA will agree
on a cutover time at least forty eight (48) hours before that cutover time. The
cutover time will be defined as a 15-30 minute window within which both the
Covad and BA personnel will make
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telephone contact to complete the cutover.
11.9.4 Within the appointed 15-30 minute cutover time, the BA person
will call the Covad person designated to coordinate cutover work.
11.9.5 If Covad requires a change in scheduling, it must contact BA
to issue a supplement to the original order. The negotiations process to
determine the date and time of cutover will then be reinitiated as usual.
11.9.6 If the Covad person is not ready within the appointed
interval and if Covad had not called to reschedule the work at least two (2)
hours prior to the start of the interval, Covad shall be liable for the
non-recurring charge for the unbundled elements scheduled for the missed
appointment. In addition, non-recurring charges for the rescheduled appointment
will apply.
11.9.7 If BA is not available or not ready at any time during the
appointed 15-30 minute interval, Covad and BA will reschedule and BA will waive
the non-recurring charge for the unbundled elements originally scheduled for
that interval, whenever those unbundled elements are actually cut over pursuant
to an agreed-upon rescheduling.
11.9.8 The standard time expected from disconnection of a live
Telephone Exchange Service to the connection of the unbundled element to the
Covad Collocation Arrangement is fifteen (15) minutes per voice grade circuit
for all orders consisting of twenty (20) ULLs or less. Orders involving more
than twenty (20) ULLs will require a negotiated interval.
11.9.9 If unusual or unexpected circumstances prolong or extend the
time required to accomplish the coordinated cutover, the Party responsible for
such circumstances is responsible for the reasonable labor charges of the other
Party. Delays caused by the Customer are the responsibility of Covad.
11.9.10 If Covad has ordered INP as part of an ULL installation, BA
will coordinate implementation of INP with the ULL installation. BA's provision
of unbundled elements shall in all cases be subject to the availability of
suitable facilities, to the extent permitted by Section 251 of the Act.
11.9.11 If Covad requests or approves a BA technician to perform
services on the network side of the Rate Demarcation Point beyond normal
installation of the ULLs covered by the service order, BA may charge Covad for
any additional and reasonable labor charges to perform such services. BA may
also charge Covad its normal overtime rates for services Covad requests to be
performed outside of BA's normal business hours (M-F, 9 am to 5 pm, E.S.T.).
11.10 Maintenance of Unbundled Local Loops
BA has the obligation to maintain and repair unbundled Network Elements
provided to Covad on a nondiscriminatory basis and at parity with the
maintenance and repair services it
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provides to itself and other carriers. If (i) Covad reports to BA a Customer
trouble, (ii) Covad requests a dispatch, (iii) BA dispatches a technician, and
(iv) such trouble was not caused by BA facilities or equipment in whole or in
part, then Covad shall pay BA a charge set forth in Exhibit A for time
associated with said dispatch.. In addition, this charge also applies when the
Customer contact as designated by Covad is not available at the appointed time.
Covad accepts responsibility for initial trouble isolation and providing BA with
appropriate dispatch information based on its test results. If, as the result of
Covad instructions, BA is erroneously requested to dispatch within a BA Central
Office or to a POT Bay ("dispatch in"), BA may levy on Covad an appropriate
charge. If, as the result of Covad instructions, BA is erroneously requested to
dispatch outside a BA Central Office or to a POT Bay ("dispatch out"), BA may
levy on Covad an appropriate charge. BA agrees to respond to Covad trouble
reports on a non-discriminatory basis consistent with the manner in which it
provides service to its own retail customers or to any other similarly situated
Telecommunications Carrier.However, if BA imposes any charge on Covad under this
subsection 11.8 and the same trouble recurs and the cause in both instances is
determined to be in BA's facilities, then BA shall refund to Covad all charges
applicable to that trouble that were erroneously levied on and paid by Covad to
BA plus interest at the rate applicable to refunds of overpayments pursuant to
BA's Tariffs.
11.11 Other Terms and Conditions Including Rates and Charges
11.11.1 ULLs and other Network Elements will be offered on the terms and
conditions, including rates and charges, specified herein and on such other
terms as stated in applicable Tariffs, as amended from time to time, that are
not inconsistent with the terms and conditions set forth herein.
11.11.2 In the event that the Commission has not adopted permanent rates
for services, ULLs, and other Network Elements consistent with the requirements
of the FCC regulations, BA shall charge the non-recurring and monthly recurring
rates for ULLs and other Network Elements set forth in Exhibit A as interim
rates until such time as the Department adopts permanent rates consistent with
the requirements of the FCC Regulations. Such permanent rates shall be applied
in the manner described in Exhibit A and subsection 20.1.2 below.
11.11.3 Monthly ULL Charges.
11.11.3.1 "Current Monthly Rates" for ULLs are set forth in Exhibit
A.
11.11.3.2 Nothing in this Agreement shall be construed to imply that
Covad agrees that the Current Monthly Rate referenced in Section 11.11.3.1 is a
reasonable or appropriate charge for ULLs.
12.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
12.1 Availability of Retail Rates for Resale
Each Party shall make available its Telecommunications Services for resale
at the retail
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rates set forth in its Tariffs to the other Party in accordance with Section
251(b)(1) of the Act. In addition, BA and Covad shall each allow the resale by
the other of all Telecommunications Services that are offered primarily or
entirely to other Telecommunications Carriers (e.g., Switched and special
Exchange Access Services) at the rates already applicable to such services. BA
shall also allow the resale by Covad of such other non-Telecommunications
Services as BA, in its sole discretion, determines to provide for resale under
terms and conditions to be agreed to by the Parties.
12.2 Availability of Wholesale Rates for Resale
BA shall make available to Covad for resale all Telecommunications
Services that BA provides at retail to Customers that are not Telecommunications
Carriers at the retail prices set forth in BA's Tariffs less the wholesale
discount set forth in Exhibit A in accordance with Section 251(c)(4) of the Act.
Such services shall be provided in accordance with the terms of the applicable
retail services Tariff(s), including, without limitation, user or user group
restrictions, as the case may be, subject to the requirement that such
restrictions shall in all cases comply with the requirements of Section 251 of
the Act and the FCC Regulations regarding restrictions on resale. The Parties
may also agree to negotiate term and/or volume discounts for resold services.
12.3 Availability of Support Services and Branding for Resale
BA shall make available to Covad the various support services for resale
described in Schedule 12.3 hereto in accordance with the terms set forth
therein. In addition, to the extent required by Applicable Law, upon request by
Covad and at prices, terms and conditions to be negotiated by Covad and BA, BA
shall provide BA Retail Telecommunications Services (as defined in Schedule
12.3) that are identified by Covad's trade name, or that are not identified by
trade name, trademark or service mark.
12.4 Additional Terms Governing Resale and Use of BA Services
12.4.1 Covad shall comply with the provisions of this Agreement
(including, but not limited to, all applicable BA Tariffs) regarding resale or
use of BA services. In addition, Covad shall undertake in good faith to ensure
that its Customers comply with the provisions of BA's Tariffs applicable to
their use of BA's Telecommunications Services.
12.4.2 Without in any way limiting subsection 12.4.1, Covad shall
not resell (a) residential service to business or other nonresidential Customers
of Covad, (b) Lifeline or other means-tested service offerings, or grandfathered
service offerings, to persons not eligible to subscribe to such service
offerings from BA, or (c) any other BA service in violation of any user or user
group restriction that may be contained in the BA Tariff applicable to such
service to the extent such restriction is not prohibited by Applicable Laws. In
addition, Covad shall be subject to the same limitations that BA's own retail
Customers may be subject to with respect to any Telecommunications Service that
BA may, in its discretion and to the extent not prohibited by Applicable Law,
discontinue offering.
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12.4.3 BA shall not be obligated to offer to Covad at a wholesale
discount Telecommunications Services that BA offers at a special promotional
rate if such promotions are for a limited duration of ninety (90) days or less.
12.4.4 Upon request by BA, Covad shall provide to BA adequate
assurance of payment of charges due to BA in connection with Covad's purchase of
BA services for resale. Assurance of payment of charges may be requested by BA:
if Covad (a) in BA's reasonable judgment, at the Effective Date or at any time
thereafter, is unable to show itself to be creditworthy; (b) in BA's reasonable
judgment, at the Effective Date or at any time thereafter, is not creditworthy;
or, (c) fails to timely pay a bill rendered to Covad by BA. Unless otherwise
agreed by the Parties, the assurance of payment shall be in the form of a cash
deposit and shall be in an amount equal to the charges for BA services that
Covad may reasonably be expected to incur during a period of two (2) months. BA
may at any time use the deposit or other assurance of payment to pay amounts due
from Covad.
12.4.5 Covad shall not be eligible to participate in any BA plan or
program under which BA end user retail Customers may obtain products or
merchandise, or services which are not Bell Atlantic Retail Telecommunications
Services, in return for trying, agreeing to purchase, purchasing, or using Bell
Atlantic Retail Telecommunications Services.
12.4.6 BA may impose additional restrictions on Covad's resale of
BA's retail Telecommunications Services to the extent permitted by Applicable
Laws.
13.0 COLLOCATION -- SECTION 251(c)(6)
13.1 BA shall offer to Covad Physical or Virtual Collocation of equipment
necessary for Interconnection (pursuant to Section 4.0) or for access to
unbundled Network Elements (pursuant to Section 11.0), pursuant to the terms and
conditions in this Section and BA's approved Tariffs on file with the FCC and
the Commission, except that BA may offer only Virtual Collocation if BA
demonstrates to the Commission that Physical Collocation as described in this
Agreement is not practical for technical reasons or because of space
limitations, as provided in Section 251(c)(6) of the Act. BA shall provide
Collocation solely for the purpose of Interconnection with facilities or
services of BA or access to unbundled Network Elements of BA, except as
otherwise mutually agreed to in writing by the Parties or as required by the FCC
or the Commission, subject to applicable federal and state Tariffs and license
agreements.
13.2 BA shall offer, upon request by Covad and to the extent technically
feasible, Physical Collocation arrangements where the dedicated space may be a
minimum of approximately twenty-five (25) square feet, at the appropriate cost.
In the event there is no existing Tariff for this arrangement, the Parties shall
expeditiously and in good faith negotiate interim terms for this type of
physical Collocation. Such arrangements will be made pursuant to applicable
Tariff(s) when such Tariff(s) are approved.
13.3 BA will provide Covad with Physical Collocation as specified in
Sections 13.1
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and 13.2 above; provided however, that upon written request by Covad, Bell
Atlantic will not enclose by a cage or other means Covad's equipment that is
placed within the secured and physically separated area set aside by Bell
Atlantic within a Central Office for the purposes of Collocation set forth in
13.1 above and pursuant to any applicable BA Collocation Tariff(s). In the event
that there is no existing Tariff for this entire arrangement, the Parties shall
expeditiously and in good faith negotiate interim terms for this type of
physical Collocation. This entire arrangement will be made pursuant to
applicable Tariff(s) when such Tariff(s) are approved.
13.4 Collocation shall be made available to Covad on BA Premises as
required by Applicable Law and in a manner that is at parity to the priorities
that BA provides to persons who are permitted to collocate, including BA's
Affiliates that are required to collocate. Pursuant to applicable Tariff, or to
Schedule 13.4 until such time as an approved Tariff is effective, BA will
provide Covad with shared cage Collocation, in which Covad can collocate
equipment in another collocating entity's physical Collocation arrangement. Upon
request by Covad for shared cage Collocation, the Parties will negotiate
expeditiously and in good faith to resolve any operational, provisioning and
billing issues that are not covered by an applicable Tariff or Schedule 13.4.
Notwithstanding any other provision of this Agreement, BA will provide Covad
with alternative Collocation arrangements (including "cage-less" physical
Collocation) to the extent that such arrangements are required by Applicable
Law, and may consider other alternative arrangements proposed by Covad. BA shall
provide Collocation at additional locations for placement of equipment necessary
for Interconnection or for access to unbundled Network Elementsto the extent
required by Applicable Law.
13.5 In comport with Applicable Law, Covad reserves the right to have
Covad's dedicated (but not common) Collocation space constructed by a third
party sub-contractor in accordance with BA engineering specifications utilizing
a BA-approved sub-contractor. Request by Covad for approval of additional
sub-contractors will bot be unreasonably withheld.
13.6 Covad may collocate Digital Subscriber Line Access Multiplexers
("DSLAM"s) in its collocated space, subject to the requirements of this Section.
Covad may install any equipment allowed by Law, including Remote Switching
Modules ("RSM"s) and DSLAMs in its Collocation space unless and until the FCC,
the Commission, or a court of competent jurisdiction determines that incumbent
LECs need not permit Collocation of such equipment, in which event BA must allow
Covad a reasonable transition period for removing, replacing or modifying such
equipment, or for otherwise negotiating a mutually satisfactory alternative
arrangement with BA. Covad agrees that any such equipment must comply with
National Equipment Building System ("NEBS") Level III. Covad agrees that such
RSM or DSLAM equipment as may be collocated at BA premises will not be used to
provide switching functionality unless such use is specifically approved by the
Commission..
BA will permit Covad to install, maintain, repair and use ATM
cross-connect equipment in BA Premises where Covad has established a physical
Collocation arrangement, provided that such equipment will be used to support
pre-defined point-to-point Private Virtual Connections ("PVC"s) between the
Premises-collocated equipment and other points off BA's network. The ATM
cross-connect equipment shall be used exclusively for aggregating and
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transporting traffic and will not under any circumstances be used for dynamic
routing or switching of traffic. BA shall have the right at its own expense to
audit Covad's use of such collocated equipment, and if it finds that Covad is
using the equipment for switching of Local Traffic or other uses prohibited
hereunder, BA may either invoke the dispute resolution provisions of this
Agreement, or notify Covad in writing and Covad shall then remove such equipment
from BA's Premises.
13.7 Covad agrees to offer to BA Collocation of equipment for purposes of
Interconnection (pursuant to Section 4.0) on a non-discriminatory basis and at
comparable rates, terms and conditions as Covad may provide to other third
parties. Covad shall provide such Collocation subject to applicable Tariffs.
13.8 In the course of implementation of Collocation project, BA shall::
(a) identify the Collocation project manager assigned to the project;
(b) develop a written comprehensive "critical tasks" timeline detailing
the work (and relative sequence thereof) that is to be performed by each Party
or jointly by both Parties; and
(c) provide Covad with the relevant engineering requirements.
13.9 The Collocating Party shall purchase Cross Connection to services or
facilities as described in applicable Tariffs or this Agreement. Transport
facilities may be leased from BA under terms and conditions set forth in this
Agreement or applicable Tariffs.
13.10 Except in the event that Covad changes its Application for
Collocation requirements after they have been accepted by BA and such changes
would, in the reasonable judgement of BA, cause a construction or other delay
which would affect the delivery of collocated space, or in the event of "Special
Circumstances" detailed by BA for Covad, and subject to the circumstances
contemplated by Section 29.3 of this Agreement, the collocated space shall be
constructed, made ready, and delivered by BA to Covad within the interval
specified in the applicable Tariff following the date of receipt by BA of
Covad's Application for Collocation and the applicable BA Tariff fee(s).
Covad and BA also agree that a three (3) week extension will apply when
"Special Circumstances" are identified at the time of a "space walk-through" or
later in the Collocation process, provided that BA notifies Covad within two (2)
business days of the discovery of such "Special Circumstances". For the purposes
of this Section 13.0, the term "Special Circumstances" shall mean special,
unusual, or unanticipated conditions or circumstances arising out of or required
by Covad's Application for Collocation (excluding changes made by Covad to such
Application after such Application has been accepted by BA) which could, in the
reasonable judgement of BA, cause a construction or other delay in the delivery
of collocated space, including, by way of illustration and without limitation,
major construction obstacles, asbestos abatement procedures or uncustomary
modifications to the Collocation premises.
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In those instances where Covad changes its requirements which will affect
the delivery of collocated space, or where otherwise extraordinary circumstances
exist, the interval for construction and delivery of the collocated space shall
be extended to reflect those changes upon mutual agreement of the Parties.
13.11 Collocation shall occur under the terms of each Party's applicable
and available Tariffs, subject to the provisons of this Section 13, and pursuant
to Applicable Law.
13.12 Cage-to-Cage Interconnection
13.12.1 Cage-to-Cage Interconnection provides for the dedicated
connection between a Covad Collocation arrangement established pursuant to
applicable Tariffs and/or license agreements at a BA Premises and the
Collocation arrangement of a third party carrier that maintains a Collocation
arrangement at the same premises, so long as the collocated equipment of both
Collocation arrangements is used for Interconnection with BA or access to BA's
unbundled Network Elements. Covad shall purchase Cage-to-Cage Interconnection
using Collocation Cross Connections to services and facilities as described in
applicable Tariffs.
13.12.2 The carrier that requests the Collocation Cross Connections
shall be the customer of record for both ends of the service in terms of
ordering, provisioning, maintenance, and billing. Alternative arrangements may
be utilized if agreed upon by all three parties. Rates and charges for
Collocation Cross Connections are stated in Exhibit A.
SECTION 251(b) PROVISIONS
14.0 NUMBER PORTABILITY -- SECTION 251(b)(2)
14.1 Scope
14.1.1 The Parties shall provide Local Telephone Number Portability
("LTNP") on a reciprocal basis to each other to the extent technically feasible,
and in accordance with rules and regulations as from time to time prescribed by
the FCC and/or the Commission.
14.1.2 Until Permanent Number Portability is implemented by the
industry pursuant to regulations issued by the FCC and/or the Commission, the
Parties agree to reciprocally provide Interim Number Portability to each other
at the prices listed in Exhibit A. Such agreed-upon prices for INP are not
intended to reflect either Party's views on the cost recovery mechanisms being
considered by the FCC in its current proceeding on number portability issues.
14.1.3 Upon the agreement of the Parties or issuance of applicable
FCC and/or Commission order(s) or regulations mandating the adoption of a
Permanent Number Portability ("PNP") arrangement, BA and Covad will commence
migration from INP to the agreed-upon or mandated PNP arrangement as quickly as
practically possible while minimizing interruption or
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degradation of service to their respective Customers. Once PNP is implemented,
either Party may withdraw, at any time and at its sole discretion, its INP
offerings, subject to advance notice to the other Party and coordination to
allow the seamless and transparent conversion of INP Customer numbers to PNP.
Upon implementation of PNP pursuant to FCC or Commission regulation, both
Parties agree to conform and provide such PNP. To the extent PNP rates or cost
recovery mechanisms are not established by the applicable FCC or Commission
order or regulation mandating the adoption of PNP, the Parties will negotiate in
good faith the charges or cost recovery mechanism for PNP service at such time
as a PNP arrangement is adopted by the Parties.
14.1.4 Under either an INP or PNP arrangement, Covad and BA will
implement a process to coordinate LTNP cutovers with ULL conversions (as
described in Section 11 of this Agreement).
14.2 Procedures for Providing INP Through Remote Call Forwarding
Covad and BA will provide INP through Remote Call Forwarding as follows:
14.2.1 A Customer of one Party ("Party A") elects to become a
Customer of the other Party ("Party B"). The Customer elects to utilize the
original telephone number(s) corresponding to the Telephone Exchange Service(s)
it previously received from Party A, in conjunction with the Telephone Exchange
Service(s) it will now receive from Party B. Upon receipt of a service order
from Party B requesting assignment of the number(s) to Party B, Party A will
implement an arrangement whereby all calls to the original telephone number(s)
will be forwarded to a new telephone number(s) designated by Party B, only
within the same Exchange Area as the original telephone number(s). Party A will
route the forwarded traffic to Party B over the appropriate traffic exchange
trunk groups.
14.2.2 Party B will become the customer of record for the original
Party A telephone number(s) subject to the INP arrangements. Upon the execution
of an appropriate billing services agreement or such other mutually agreed-upon
arrangement between the Parties, Party A shall use its reasonable efforts to
consolidate into as few billing statements as possible collect, calling card,
and third-number billed calls associated with the number(s), with sub-account
detail by retained number.
14.2.3 Party A will update its Line Information Database ("LIDB")
listings for retained numbers, and load calling card information associated with
those forwarded numbers as directed by Party B. In addition, Party A will update
the retained numbers in the LIDB with the screening options provided by Party B
on a per order basis. Party B shall determine which of the screening options
offered by Party A should apply to the Party B Customer account.
14.2.4 Party B will outpulse the telephone number to which the call
has been forwarded to the 911 Tandem Office. Party B will also provide the 911
database with both the forwarded number and the directory number, as well as the
appropriate address information of the Customer.
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14.2.5 Party A shall be permitted to cancel INP arrangements and
reassign the telephone number(s) upon (i) receipt of notification from Party B
or a third party that is authorized to act on behalf of the Customer or (ii)
authorization from the Customer itself. The Parties agree to work cooperatively
to develop procedures or adopt industry standards or practices concerning the
initiation and termination of INP service in a multi-carrier environment.
14.2.6 The INP service offered herein shall not initially apply to
NXX Codes 555, 915, 950 (as applicable), or 976, or for Feature Group A or coin
telephone service. Upon request of either Party, provision of INP to these
services will be mutually negotiated between the parties and provided to the
extent feasible under negotiated rates, terms and conditions. INP shall not
apply for any arrangement that would render the forwarded call Toll Traffic.
14.2.7 The ordering of INP arrangements and the exchange of
screening information shall be made in accordance with industry-accepted (e.g.
OBF developed) format and specifications to the extent they have been
implemented by the Parties.
14.3 Other Interim Number Portability Options
14.3.1 Procedures for Providing INP Through Direct Inward Dial
Trunks (Flex-DID). Either Party may also request INP through Direct Inward Dial
Trunks pursuant to any applicable Tariffs.
14.3.2 Procedures for Providing INP Through Route Indexing. Upon
mutual agreement, BA will deploy a Route Index arrangement which combines direct
trunks, provisioned between BA's and Covad's End Offices, with Trunk Side
routing translations and full functionality for those CLASS services deployed in
the specific BA switch. Under this arrangement, inbound calls to a ported number
will be pointed at a route index that sends the call to a dedicated trunk group,
built as a direct final, for the sole purpose of facilitating completion of
calls to a ported bumber. BA will coordinate with Covad to provide this solution
in a mutually agreeable an administratively manageable manner (e.g. NXX level)
so as to minimize switch resource utilization for both Parties.
14.4 Procedures for Providing LTNP Through Full NXX Code Migration
Where either Party has activated an entire NXX for a single Customer, or
activated at least eighty percent (80%) of an NXX for a single Customer, with
the remaining numbers in that NXX either reserved for future use by that
Customer or otherwise unused, if such Customer chooses to receive Telephone
Exchange 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 be accomplished with appropriate coordination
between the Parties and subject to appropriate industry lead-times for movements
of NXXs from one switch to another. Neither Party shall charge the other in
connection with this coordinated transfer.
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14.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers
The Parties agree in principle that, under the INP arrangements described
in subsections 14.2 and 14.3 above, terminating compensation on calls to INP'ed
numbers should be received by each Customer's chosen LEC as if each call to the
Customer had been originally addressed by the caller to a telephone number
bearing an NPA-NXX directly assigned to the Customer's chosen LEC. In order to
accomplish this objective where INP is employed, the Parties shall utilize the
process set forth in this subsection 14.5 whereby terminating compensation on
calls subject to INP will be passed from the Party (the "Performing Party")
which performs the INP to the other Party (the "Receiving Party") for whose
Customer the INP is provided.
14.5.1 The Parties shall individually and collectively make best
efforts to track and quantify INP traffic between their networks based on the
CPN of each call by identifying CPNs which are INP'ed numbers. The Receiving
Party shall charge the Performing Party for each minute of INP traffic at the
INP Traffic Rate specified in subsection 14.5.3 in lieu of any other
compensation charges for terminating such traffic, except as provided in
subsection 14.5.2.
14.5.2 By the Interconnection Activation Date in each LATA, the
Parties shall jointly estimate for the prospective six months, based on historic
data of all traffic in the LATA, the percentages of such traffic that, if dialed
to telephone numbers bearing NPA-NXXs directly assigned to a Receiving Party (as
opposed to the INP'ed number), would have been subject to (i) Reciprocal
Compensation ("Recip Traffic"), (ii) appropriate intrastate FGD charges ("Intra
Traffic"), (iii) interstate FGD charges ("Inter Traffic"), or (iv) handling as
Transit Traffic. On the date which is six (6) months after the Interconnection
Activation Date, and thereafter on each succeeding six month anniversary of such
Interconnection Activation Date, the Parties shall establish new INP traffic
percentages to be applied in the prospective six (6) month period, based on the
Performing Party's choice of actual INP traffic percentages from the preceding
six (6) month period or historic data of all traffic in the LATA.
14.5.3 The INP Traffic Rate shall be equal to the sum of:
(Recip Traffic percentage times the Reciprocal Compensation Rate set forth
in Exhibit A)
plus
(Intra Traffic percentage times Receiving Party's effective intrastate FGD
rates)
plus
(Inter Traffic percentage times Receiving Party's effective interstate FGD
rates).
The Receiving Party shall compensate the Performing Party for its billing
and collection of charges for the intrastate and interstate FGD access services
provided by the Receiving Party to a third party through the greater of (i) the
difference between the intrastate and interstate FGD rates of the Receiving
Party and the Performing Party, or (ii) three percent (3%) of the Performing
Party's intrastate and interstate FGD revenues for INP'ed numbers. Under no
circumstances shall the Performing Party, in performing the billing and
collections service on behalf of the Receiving Party, be obligated to pass
through more than ninety seven percent (97%) of its FGD access charge to the
Receiving Party in connection with any given INP'ed call.
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14.6 Recovery of INP Costs Pursuant to FCC Order and Rulemaking
Notwithstanding anything to the contrary contained in this Section 14, in
light of the FCC's First Report and Order and Further Notice of Proposed
Rulemaking, adopted June 27, 1996, in CC Docket 95-116 (the "Order"), the
Parties stipulate and agree as follows:
14.6.1 The rates listed in Exhibit A for the provision of INP are
appropriate amounts that each Party providing INP service should recover for the
provision of those INP functionalities in BA's operating territory on an interim
basis until the Commission mandates an alternative cost recovery mechanism for
the provision of INP. For the INP functions it provides, each Party should be
allowed to recover these amounts in a manner consistent with any final FCC
and/or Commission order on INP cost recovery (such as a state-wide fund
contributed to by all telecommunications carriers).
14.6.2 The Parties agree that neither Party waives its rights to
advocate its views that are consistent with this subsection 14.6 on the
appropriate INP cost recovery mechanism, or to present such views before any
relevant regulatory body or other agency as they relate to FCC or Commission
actions on INP cost recovery.
15.0 DIALING PARITY -- SECTION 251(b)(3)
BA and Covad shall each provide the other with nondiscriminatory access to
such services and information as are necessary to allow the other Party to
implement dialing parity for Telephone Exchange Service, operator services,
directory assistance, and directory listing information with no unreasonable
dialing delays, as required under Section 251(b)(3) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
16.1 Each Party ("Licensor") shall provide the other Party ("Licensee")
within a reasonable time period access to the poles, ducts, rights-of-way and
conduits it owns or controls, to the extent permitted by Law and as required by
Section 224 of the Act or any FCC or Commission order or practice, on terms,
conditions and prices comparable to those offered to any other entity purusant
to each Party's applicable standard agreements with such entities.
17.0 DATABASES AND SIGNALING
17.1 Each Party shall provide the other Party with access to databases,
including LIDB and toll-free service access codes (i.e. 800/888), and associated
signaling necessary for call routing and completion of Covad's traffic through
the provision of SS7 Common Channel Signaling (CCIS) under its applicable
tariffs. Alternatively, either Party may secure CCS Interconnection from a
commercial SS7 hub provider, and in that case the other Party will permit
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the purchasing Party to access the same databases as would have been accessible
if the purchasing party had connected directly to the other Party's CCISnetwork.
17.2 The Parties will provide CCIS Signaling to each other, where and as
available, in conjunction with all Local Traffic, Toll Traffic, Meet Point
Billing Traffic, and Transit Traffic. The Parties will cooperate on the exchange
of TCAP messages to facilitate interoperability of CCIS-based features between
their respective networks, including all CLASS features and functions, to the
extent each Party offers such features and functions to its Customers. All CCIS
Signaling parameters will be provided upon request (where available), including
called party number, calling party number, originating line information, calling
party category, and charge number. All privacy indicators will be honored. The
Parties will follow all Ordering and Billing Forum-adopted standards pertaining
to CIC/OZZ codes. Where CCIS Signaling is not available, in-band multi-frequency
(MF) wink start signaling will be provided. Any such MF arrangement will require
a separate local trunk circuit between the Parties' respective switches in those
instances where the Parties have established End Office to End Office high usage
trunk groups. In such an arrangement, each Party will outpulse the full
ten-digit telephone number of the called party to the other Party.
17.3 Each Party shall provide trunk groups, where available and upon
reasonable request, that are configured utilizing the B8ZS ESF protocol for 64
kbps clear channel transmission to allow for ISDN interoperability between the
Parties' respective networks.
17.4 The following publications describe the practices, procedures and
specifications generally utilized by BA for signaling purposes and is listed
herein to assist the Parties in meeting their respective Interconnection
responsibilities related to Signaling:
(a) Bellcore Generic Requirements, GR-905-CORE, Issue 1, March,
1995, and subsequent issues and amendments; and
(b) Bell Atlantic Supplement Common Channel Signaling Network
Interface Specification (BA-905).
17.5 Each Party shall charge the other Party mutual and reciprocal rates
for any usage-based charges for CCIS Signaling, 800/888 database access, LIDB
access, and access to other necessary databases, as follows: BA shall charge
Covad in accordance with Exhibit A hereto and applicable Tariffs; Covad shall
charge BA rates equal to the rates BA charges Covad, unless Covad's Tariffs for
CCIS signaling provide for lower generally available rates, in which case Covad
shall charge BA such lower rates; except to the extent a Party uses a third
party vendor for the provision of CCIS Signaling, in which case such charges
shall apply only to the third party vendor.
18.0 COORDINATED SERVICE ARRANGEMENTS
18.1 Intercept and Referral Announcements
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When a Customer changes its service provider from BA to Covad, or from
Covad to BA, and does not retain its original telephone number, the Party
formerly providing service to such Customer shall provide a referral
announcement ("Referral Announcement") on the abandoned telephone number which
provides details on the Customer's new number or provide other appropriate
information to the extent known. Referral Announcements shall be provided
reciprocally, free of charge to either the other Party or the Customer to the
extent the providing Party does not charge its own customers for such service,
for a period of not less than four (4) months after the date the Customer
changes its telephone number in the case of business Customers and not less than
sixty (60) days after the date the Customer changes its telephone number in the
case of residential Customers. However, if either Party provides Referral
Announcements for different periods than the above respective periods when its
Customers change their telephone numbers, such Party shall provide the same
level of service to Customers of the other Party.
18.2 Coordinated Repair Calls
Covad and BA will employ the following procedures for handling misdirected
repair calls:
18.2.1 Covad and BA will educate their respective Customers as to
the correct telephone numbers to call in order to access their respective repair
bureaus.
18.2.2 To the extent Party A is identifiable as the correct provider
of service to Customers that make misdirected repair calls to Party B, Party B
will immediately refer the Customers to the telephone number provided by Party
A, or to an information source that can provide the telephone number of Party A,
in a courteous manner and at no charge. In responding to misdirected repair
calls, neither Party shall make disparaging remarks about the other Party, its
services, rates, or service quality.
18.2.3 Covad and BA will provide their respective repair contact
numbers to one another on a reciprocal basis.
18.3 Customer Authorization
18.3.1 Without in any way limiting either Party's obligations under
subsection 28.1, each Party shall comply with Applicable Laws with regard to
Customer selection of a primary Telephone Exchange Service provider. Until the
Commission and/or FCC adopts regulations and/or orders applicable to Customer
selection of a primary Telephone Exchange Service provider, each Party shall
adhere to the rules and procedures set forth in Section 64.1100 of the FCC
Rules, 47 CFR ss. 64.1100, in effect on the Effective Date hereof when ordering,
terminating, or otherwise changing Telephone Exchange Service on behalf of the
other Party's or another carrier's Customers.
18.3.2 In the event either Party requests that the other Party
install, provide, change, or terminate a Customer's Telecommunications Service
(including, but not limited to, a
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Customer's selection of a primary Telephone Exchange Service Provider) and (a)
fails to provide documentary evidence of the Customer's primary Telephone
Exchange Service Provider selection upon request, or (b) without having obtained
authorization from the Customer for such installation, provision, selection,
change or termination in accordance with Applicable Laws (or as provided in
subsection 18.3.1 above), the requesting Party shall be liable to the other
Party for all charges that would be applicable to the Customer for the initial
change in the Customer's Telecommunications Service and any charges for
restoring the Customer's Telecommunications Service to its Customer-authorized
condition, including to the appropriate primary Telephone Exchange Service
provider.
18.3.3 Without in any way limiting Covad's obligations under
subsection 28.1, Covad shall comply with Applicable Laws with regard to Customer
Proprietary Network Information, including, but not limited to, 47 U.S.C. ss.
222. Covad shall not access (including, but not limited to, through BA OSS
Services and BA Pre-OSS Services), use, or disclose Customer Proprietary Network
Information made available to Covad by BA pursuant to this Agreement unless
Covad has obtained the appropriate Customer authorization for such access, use
and/or disclosure required by Applicable Laws. By accessing, using or disclosing
Customer Proprietary Network Information, Covad represents and warrants that it
has obtained authorization for such action from the applicable Customer in the
manner required by Applicable Laws and this Agreement. Covad shall, upon request
by BA, provide proof of such authorization (including a copy of any written
authorization).
18.3.4 BA shall have the right to monitor and/or audit Covad's
access to and use and/or disclosure of Customer Proprietary Network Information
that is made available by BA to Covad pursuant to this Agreement to ascertain
whether Covad is complying with the requirements of Applicable Laws and this
Agreement with regard to such access, use, and/or disclosure. To the extent
permitted by Applicable Laws, the foregoing right shall include, but not be
limited to, the right to electronically monitor Covad's access to and use of
Customer Proprietary Network Information that is made available by BA to Covad
pursuant to this Agreement.
19.0 DIRECTORY SERVICES ARRANGEMENTS
19.1 Directory Listings and Directory Distributions
In this subsection 19.1, references to a Covad Customer's "primary
listing" shall mean such Customer's primary name, address, and telephone number,
which number falls within the NXX codes directly assigned to Covad or is
retained by Covad on the Customer's behalf pursuant to LTNP arrangements with BA
or any other carrier within the geographic area covered in the relevant BA
directory. BA will, upon request, provide the following directory services to
Covad in accordance with the terms set forth herein.
19.1.1 BA will include the Covad Customer's primary listing in its
"White Pages" directory (residence and business listings) and "Yellow Pages"
directory (business listings) that cover the address of the Customer. Listings
of Covad's Customers will be interfiled with listings
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of BA's Customers and the Customers of other LECs included in the BA
directories. Covad will pay BA a non-recurring charge as set forth in Exhibit A
for providing such service for each Covad Customer's primary listing. Covad will
also pay BA's Tariffed charges, as the case may be, for additional and foreign
white page listings and other white pages services for Covad's Customers. BA
will not require a minimum number of listings per order.
19.1.2 BA will also include the Covad Customer's primary listing in
BA's directory assistance database on the same basis that BA's own Customers are
included, as well as in any electronic directories in which BA's Customers are
ordinarily included, for no charge other than the charges identified in
subsection 19.1.1.
19.1.3 BA will distribute to Covad Customers copies of their primary
white pages and yellow pages directories at the same time and on the same basis
that BA distributes primary directories to its own Customers. BA will also
deliver a reasonable number of such directories to Covad. These distributions
will be made for no additional charge. Covad and its Customers may request
additional directories from BA's Directory Fulfillment Centers, which Centers
will provide such additional directories for the same charges applicable to
comparable requests by BA Customers.
19.1.4 Upon request by Covad, BA will provide Covad with a directory
list of relevant NXX codes, the close dates, publishing data, and call guide
close dates on the same basis as such information is provided to BA's own
business offices.
19.1.5 Covad shall provide BA with daily listing information on all
new Covad Customers in the format required by BA or a mutually-agreed upon
industry standard format. The information shall include the Customer's name,
address, telephone number, the delivery address and number of directories to be
delivered, and, in the case of a business listing, the primary business heading
under which the business Customer desires to be placed, and any other
information necessary for the publication and delivery of directories. Covad
will also provide BA with daily listing information showing Customers that have
disconnected or terminated their service with Covad. BA will provide Covad with
confirmation of listing order activity within forty eight (48) hours.
19.1.6 BA will accord Covad's directory listing information the same
level of confidentiality which BA accords its own directory listing information,
and BA shall ensure that access to Covad's directory listing information will be
used solely for the purpose of providing directory services; provided, however,
that BA may use or license information contained in its directory listings for
direct marketing purposes so long as the Covad Customers are not separately
identified as such; and provided further that Covad may identify those of its
Customers that request that their names not be sold for direct marketing
purposes, and BA will honor such requests to the same extent as it does for its
own Customers.
19.1.7 Both Parties shall use their best efforts to ensure the
accurate listing of Covad Customer listings. BA will also provide Covad, upon
request, a copy of the BA listings standards and specifications manual. In
addition, BA will provide Covad with a listing of Yellow
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Pages headings and directory close schedules on an ongoing basis.
19.1.8 Covad will adhere to all practices, standards, and ethical
requirements of BA with regard to listings, and, by providing BA with listing
information, warrants to BA that Covad has the right to place such listings on
behalf of its Customers. Covad agrees that it will undertake commercially
practicable and reasonable steps to attempt to ensure that any business or
person to be listed is authorized and has the right (i) to provide the product
or service offered, and (ii) to use any personal or corporate name, trade name
or language used in the listing. In addition, Covad agrees to release, defend,
hold harmless and indemnify BA from and against any and all claims, losses,
damages, suits, or other actions, or any liability whatsoever, suffered, made,
instituted, or asserted by any person arising out of BA's listing of the listing
information provided by Covad hereunder.
19.1.9 BA's liability to Covad in the event of a BA error in or
omission of a listing shall not exceed the amount of charges actually paid by
Covad for such listing. In addition, Covad agrees to take, with respect to its
own Customers, all reasonable steps to ensure that its and BA's liability to
Covad's Customers in the event of a BA error in or omission of a listing shall
be subject to the same limitations that BA's liability to its own Customers are
subject to.
19.1.10 Within thirty (30) business days of the Effective Date, BA
agrees to meet with Covad and, if appropriate, arrange a meeting with a BA
authorized Yellow Pages agent, to address issues regarding Covad customer
referrals or questions pertaining to Yellow Pages listings.
19.2 Yellow Pages Maintenance
The Parties agree to work cooperatively to ensure that Yellow Page
advertisements purchased by Customers that switch their service to Covad
(including Customers utilizing Covad-assigned telephone numbers and Covad
Customers utilizing LTNP) are maintained without interruption. BA will offer
Yellow Pages services to Covad Customers on the same basis as they are offered
to BA Customers.
19.3 Service Information Pages
BA will include all Covad NXX codes associated with the areas to which
each directory pertains, along with BA's own NXX codes, in any lists of such
codes which are contained in the general reference portions of the directories.
Covad's NXX codes shall appear in such lists in the same manner as BA's NXX
information. In addition, BA will include in the "Customer Guide" or comparable
section of the applicable white pages directories listings provided by Covad for
Covad's installation, repair and customer service and other essential service
oriented information, as agreed by the Parties, including appropriate
identifying logo. Such listings shall appear in the manner agreed to by the
Parties. BA shall not charge Covad for inclusion of this essential
service-oriented information, but reserves the right to impose charges on other
information Covad may elect to submit and BA may elect to accept for inclusion
in BA's white pages directories. BA will provide Covad with the annual directory
close dates and reasonable notice of any changes in said
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dates.
19.4 Directory Assistance (DA); Call Completion
19.4.1 Upon request, BA will provide Covad with directory
assistance, connect request, and/or IntraLATA call completion services in
accordance with the terms set forth in the Directory Assistance and Call
Completion Services Agreement appended hereto as Exhibit C.
19.4.2 Also upon request, BA will provide to Covad operator services
trunk groups, utilizing Feature Group D type signaling, with ANI, minus OZZ,
when interconnecting to the BA operator services network.
19.4.3 BA agrees to utilize existing trunking arrangements, at no
facility charge to Covad, to transfer Covad's operator calls handled by a BA
operator to the appropriate 911/E911 PSAP. The ALI information passed to the
PSAP shall be consistent with the information that BA passes on its own
operator-handled calls.
19.4.4 At the request of Covad, BA will provide Covad with "Direct
Access" service to the same directory assistance ("DA") database that is used by
BA to provide directory assistance to BA Customers. Direct Access will enable
Covad's operator bureau, if Covad elects to provide its own DA services, to
obtain direct electronic access to the DA database for the purpose of providing
intraLATA directory assistance to Covad Customers. Covad may search and read DA
database information at the per query rates specified in Exhibit A. BA will
furnish ports for connection and termination of Covad facilities to the DA
database system. The type of ports and associated charges will be based on the
type of access configuration required by Covad for termination of its
facilities. The number of ports provided at the database will be based on
Covad's annual forecast of "Busy Hour" queries. At the request of Covad, BA will
also accept electronic transmission of Covad Customer DA information for
inclusion in the DA database.
20.0 COORDINATION WITH TARIFF TERMS
20.1 The Parties acknowledge that some of the services, facilities, and
arrangements described herein are or will be available under and subject to the
terms of the federal or state Tariffs of the other Party applicable to such
services, facilities, and arrangements. To the extent a Tariff of the providing
Party applies to any service, facility, and arrangement described herein, the
Parties agree as follows:
20.1.1 Those rates and charges set forth in Exhibit A for the
services, facilities, and arrangements described herein that reference or are
identical to a rate contained in an existing Tariff of the providing Party,
shall conform with those contained in the then-prevailing Tariff and vary in
accordance with any changes that may be made to the Tariff rates and charges
subsequent to the Effective Date.
20.1.2 As applied to wholesale discount rates, unbundled Network
Elements or
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call transport and/or termination of Local Traffic purchased for the provision
of Telephone Exchange Service or Exchange Access, the rates and charges set
forth in Exhibit A shall apply until such time as they are replaced by new rates
as may be approved by the Commission from time to time pursuant to the FCC
Regulations, subject to a stay or other order issued by any court of competent
jurisdiction. At such time(s) as such new rates have been approved by the
Commission, the Parties shall amend Exhibit A to reflect the new approved rates.
20.2 Except with respect to the rates and charges described in subsection
20.1 above, all other terms contained in an applicable Tariff of the providing
Party shall apply in connection with its provision of the particular service,
facility, and arrangement purusant to that Tariff. . The availability of
particular services pursuant to this Agreement that are similar to those
provided for in any applicable Tariff shall not affect the ability of a Party to
obtain those services pursuant to this Agreement.
21.0 INSURANCE
21.1 Covad shall maintain, during the term of this Agreement, all
insurance and/or bonds required by law and necessary to satisfy its obligations
under this Agreement, including, without limitation, its obligations set forth
in Section 25 hereof. At a minimum and without limiting the foregoing covenant,
Covad shall maintain the following insurance:
(a) Commercial General Liability Insurance, on an occurrence basis,
including but not limited to, premises-operations, broad form property
damage, products/completed operations, contractual liability, independent
contractors, and personal injury, with limits of at least $2,000,000
combined single limit for each occurrence.
(b) Automobile Liability, Comprehensive Form, with limits of at
least $500,000 combined single limit for each occurrence.
(c) Excess Liability, in the umbrella form, with limits of at least
$10,000,000 combined single limit for each occurrence.
(d) Worker's Compensation Insurance as required by law and
Employer's Liability Insurance with limits of not less than $1,000,000 per
occurrence.
21.2 Covad shall name BA as an additional insured on the foregoing
insurance.
21.3 Covad shall, within two (2) weeks of the date hereof and on a
semi-annual basis thereafter, furnish certificates or other adequate proof of
the foregoing insurance. The certificates or other proof of the foregoing
insurance shall be sent to: Bell Atlantic, Insurance Administration Group, 1320
N. Court House Road, 4th Floor, Arlington, Virginia, 22201. In addition, Covad
shall require its agents, representatives, or contractors, if any, that may
enter upon the premises of BA or BA's affiliated companies to maintain similar
and appropriate insurance and, if requested, to furnish BA certificates or other
adequate proof of such insurance. Certificates furnished by
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Covad or Covad's agents, representatives, or contractors shall contain a clause
stating: "Bell Atlantic - Washington D.C. Inc. shall be notified in writing at
least thirty (30) days prior to cancellation of, or any material change in, the
insurance."
22.0 TERM AND TERMINATION.
22.1 This Agreement shall be effective as of the date first above written
and continue in effect until March 15, 2001, and thereafter the Agreement shall
continue in force and effect unless and until terminated as provided herein.
Upon the expiration of the initial term, either Party may terminate this
Agreement by providing written notice of termination to the other Party, such
written notice to be provided at least ninety (90) days in advance of the date
of termination. In the event of such termination, those service arrangements
made available under this Agreement and existing at the time of termination
shall continue without interruption under (a) a new agreement executed by the
Parties, (b) standard Interconnection terms and conditions approved and made
generally effective by the Commission, (c) Tariff terms and conditions generally
available to CLECs, or (d) if none of the above is available, under the terms of
this Agreement on a month-to-month basis until such time as (a), (b), or (c)
becomes available.
22.2 For service arrangements made available under this Agreement and
existing at the time of termination, if the standard Interconnection terms and
conditions or Tariff terms and conditions result in the non-terminating Party
physically rearranging facilities or incurring programming expense, the
non-terminating Party shall be entitled to recover such rearrangement or
programming costs from the terminating Party.
22.3 If either Party defaults in the payment of any amount due hereunder,
or if either Party violates any other provision of this Agreement, and such
default or violation shall continue for sixty (60) days after written notice
thereof, the other Party may terminate this Agreement and services hereunder by
written notice; provided the other Party has provided the defaulting Party and
the appropriate federal and/or state regulatory bodies with written notice at
least twenty five (25) days' prior to terminating service. Notice shall be
posted by overnight mail, return receipt requested. If the defaulting Party
cures the default or violation within the twenty-five (25) day period, the other
Party will not terminate service or this Agreement but shall be entitled to
recover all costs, if any, incurred by it in connection with the default or
violation, including, without limitation, costs incurred to prepare for the
termination of service.
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NEITHER PARTY MAKES 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.
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24.0 CANCELLATION CHARGES
Except as provided in this Agreement or as otherwise provided in any
applicable Tariff, no cancellation charges shall apply.
25.0 INDEMNIFICATION
25.1 Each Party agrees to release, indemnify, defend and hold harmless the
other Party from and against all losses, claims, demands, damages, expenses,
suits or other actions, or any liability whatsoever, including, but not limited
to, costs and attorneys' fees (collectively, a "Loss"), (a) whether suffered,
made, instituted, or asserted by any other party or person, relating to personal
injury to or death of any person, or for loss, damage to, or destruction of real
and/or personal property, whether or not owned by others, arising from
transactions or activities relating to this Agreement and to the extent
proximately caused by the negligent or willful acts or omissions of the
indemnifying Party, regardless of the form of action, or (b) suffered, made,
instituted, or asserted by its own customer(s) against the other Party arising
out of the other Party's provision of services to the indemnifying Party under
this Agreement. Notwithstanding the foregoing indemnification, nothing in this
Section 25.0 shall affect or limit any claims, remedies, or other actions the
indemnifying Party may have against the indemnified Party under this Agreement,
any other contract, or any applicable Tariff(s), regulations or laws for the
indemnified Party's provision of said services.
25.2 The indemnification provided herein shall be conditioned upon:
(a) The indemnified Party shall promptly notify the indemnifying
Party of any action, claim, lawsuit or demand taken against the
indemnified Party relating to the indemnification.
(b) The indemnifying Party shall have sole authority to defend any
such action, claim, lawsuit or demand including the selection of legal
counsel, and the indemnified Party may engage separate legal counsel only
at its sole cost and expense. The Indemnifying Party shall keep the
Indemnified Party reasonably and timely apprised of the status of the
action, claim, demand or lawsuit. The Indemnifying Party will not be
liable under this Section for settlements or compromises by the
Indemnified party of any action, claim, demand or lawsuit unless the
Indemnifying Party has approved the settlement or compromise in advance or
unless the defense of the action, claim, demand or lawsuit has been
tendered to the Indemnifying Party in writing and the Indemnifying Party
has failed to promptly undertake the defense.
(c) In no event shall the indemnifying Party settle or consent to
any judgment pertaining to any such action without the prior written
consent of the indemnified Party, which consent shall not be unreasonably
withheld. However, in the event the settlement or judgment requires a
contribution from or affects the rights of the Indemnified Party, the
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Indemnified Party shall have the right to refuse such settlement or
judgment and, at its own cost and expense, take over the defense against
such Loss, provided that in such event the indemnifying Party shall not be
responsible for, nor shall it be obligated to indemnify the indemnified
Party against, the Loss for any amount in excess of such refused
settlement or judgment.
(d) The indemnified Party shall, in all cases, assert any and all
provisions in its Tariffs that limit liability to third parties as a bar
to any recovery by the third party claimant in excess of such limitation
of liability.
(e) The indemnified Party shall offer the indemnifying Party all
reasonable cooperation and assistance in the defense of any such action,
demand or lawsuit.
26.0 LIMITATION OF LIABILITY
26.1 The liability of either Party to the other Party for damages arising
out of failure to comply with a direction to install, restore or terminate
facilities; or out of failures, mistakes, omissions, interruptions, delays,
errors, or defects (collectively, "Errors") occurring in the course of
furnishing any services, arrangements, or facilities hereunder shall be
determined in accordance with the terms of the applicable tariff(s) of the
providing Party. In the event no tariff(s) apply, the providing Party's
liability for such Errors shall not exceed an amount equal to the pro rata
monthly charge for the period in which such failures, mistakes, omissions,
interruptions, delays, errors or defects occur. Except as otherwise provided in
Section 25, Section 26.2, Section 27 and Section 29.4, recovery of said amount
shall be the injured Party's sole and exclusive remedy against the providing
Party for Errors, provided however that Errors shall not include grossly
negligent or willful conduct..
26.2 Except as provided in Section 25, Section 27, and Section 29.4, or in
instances of gross negligence or willful misconduct, neither Party shall be
liable to the other in connection with the provision or use of services offered
under this Agreement for indirect, incidental, consequential, reliance or
special damages, including (without limitation) damages for lost profits
(collectively, "Consequential Damages"), regardless of the form of action,
whether in contract, warranty, strict liability, or tort, including, without
limitation, negligence of any kind, 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 Section 25.
26.3 The Parties agree that neither Party shall be liable to the customers
of the other Party in connection with its provision of services to the other
Party under this Agreement. Nothing in this Agreement shall be deemed to create
a third party beneficiary relationship between the Party providing the service
and the customers of the Party purchasing the service. In the event of a dispute
involving both Parties with a customer of one Party, both Parties shall assert
the applicability of any limitations on liability to customers that may be
contained in either Party's applicable Tariff(s).
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27.0 PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
27.1 Performance Standards
BA shall provide the Interconnection and unbundled Network Elements
contemplated hereunder in accordance with the performance standards set forth in
Section 251(c) of the Act and the FCC Regulations, including without limitation
the rules set forth in 47 Code of Federal Regulations ss.ss. 51.305(a)(3),
51.311(a), and 51.311(b).
27.2 Performance Monitoring Reports, Standards and Remedies
Schedule 27.2, "Performance Monitoring Reports, Standards and Remedies,"
is made a part of this Agreement and incorporated herein in its entirety.
27.3 Performance Measurement, Standard and Remedy for XDSL-Compatible ULLs
Upon request by either Party, at such time as BA provides to Covad, as a
generally available offering, pursuant to Section 11.2, 2-Wire ADSL-Compatible
ULLs, 2-Wire HDSL-Compatible ULLs, and 4-Wire HDSL-Compatible ULLs, the Parties
will negotiate in good faith for insertion into Schedule 27.2 a missed
installation appointment performance measurement, standard and remedy, for such
ULLs. Unless otherwise agreed by the Parties, such measurement, standard and
remedy, will be a consolidated measurement, standard and remedy, that covers
missed installation appointments for all three types of ULLs.
28.0 COMPLIANCE WITH LAWS; REGULATORY APPROVAL
28.1 Each Party shall promptly notify the other Party in writing of any
governmental action that suspends, cancels, withdraws, limits, or otherwise
materially affects its ability to perform its obligations hereunder.
28.2 The Parties understand and agree that this Agreement will be filed
with the Commission and may thereafter be filed with the FCC as an integral part
of BA's application pursuant to Section 271(d) of the Act. The Parties covenant
and agree that this Agreement is satisfactory to them as an agreement under
Section 251 of the Act. 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. The Parties, however, reserve the right to seek
regulatory relief and otherwise seek redress from each other regarding
performance and implementation of this Agreement, including, without limitation,
the conformance of this Agreement to the FCC Regulations as provided in
subsection 28.3 below.
28.3 The Parties recognize that the FCC has issued and may continue to
issue the FCC Regulations implementing Sections 251, 252, and 271 and other
Sections of the Act that affect
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certain terms contained in this Agreement. In the event that any one or more of
the provisions contained herein is inconsistent with any applicable rule
contained in such FCC Regulations or as may be enacted by the Commission, or
imposed by a court in the exercise of its lawful jurisdiction, or which, in BA's
reasonable determination, affects BA's application pursuant to Section 271(d) of
the Act, the Parties agree to negotiate in good faith the revisions necessary to
eliminate the inconsistency or amend the application-affecting provision(s).
Such revisions need not be considered material, and need not require further
Commission approval beyond any Commission approval required under Section 252(e)
of the Act. If, however, any such change in Applicable Law or amendment to this
Agreement would necessitate a change that would affect the interconnectin of
network facilities or Covad's ability to use any BA service or Network Element,
Covad shall have a reasonable time to modify or re-deploy its network or
operations to reflect such change.
28.4 In the event any Applicable Law other than the FCC Regulations
requires modification of any material term(s) contained in this Agreement,
either Party may require a renegotiation of the term(s) that require direct
modification as well as of any term(s) that are reasonably affected thereby. If
neither Party requests a renegotiation or if an Applicable Law requires
modification of any non-material term(s), the remaining provisions of this
Agreement shall remain in full force and effect. For purposes of this subsection
28.4 and without limitation of any other modifications required by Applicable
Laws, the Parties agree that any modification required by Applicable Laws (i) to
the two-tier Reciprocal Call Termination compensation structure for the
transport and termination of Local Traffic described in Exhibit A, or (ii) that
affects either Party's receipt of Reciprocal Compensation for the transport and
termination of Local Traffic, shall be deemed to be a modification of a material
term that requires immediate good faith renegotiation between the Parties.
28.5 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA"). Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with CALEA. Each Party shall indemnify and hold the other Party harmless from
any and all penalties imposed upon the other Party for such non-compliance 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.
29.0 MISCELLANEOUS
29.1 Authorization
29.1.1 Bell Atlantic-Washington D.C. Inc. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York and has full power and authority to execute and deliver this Agreement
and to perform the obligations hereunder.
29.1.2 DIECA Communications, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Virginia, and has full power and authority to execute and deliver this Agreement
and to perform its obligations
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hereunder.
29.2 Independent Contractor
Each Party shall perform services hereunder as an independent contractor
and nothing herein shall be construed as creating any other relationship between
the Parties. 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 their
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.
29.3 Force Majeure
Neither Party shall be responsible for delays or failures in performance
resulting from acts or occurrences beyond the reasonable control of such Party,
regardless of whether such delays or failures in performance were foreseen or
foreseeable as of the date of this Agreement, including, without limitation:
adverse weather conditions, fire, explosion, power failure, acts of God, war,
revolution, civil commotion, or acts of public enemies; any law, order,
regulation, ordinance or requirement of any government or legal body; or labor
unrest, including, without limitation, strikes, slowdowns, picketing or
boycotts; or delays caused by the other Party or by other service or equipment
vendors; or any other circumstances beyond the Party's reasonable control. In
such event, the affected Party 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 interferences (and the other Party shall likewise be excused from
performance of its obligations on a day-to-day basis to the extent such Party's
obligations relate to the performance so interfered with). The affected Party
shall use its best efforts to avoid or remove the cause(s) of non-performance
and both Parties shall proceed to perform with dispatch once the cause(s) are
removed or cease.
29.4 Confidentiality
29.4.1 All information, including but not limited to specification,
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 to the other
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, 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, and by written notice given to the
receiving Party within ten (10) days after delivery, to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary Information"), shall
remain the property of the disclosing Party.
29.4.2 Each Party shall keep all of the other Party's Proprietary
Information confidential in the same manner it holds its own Proprietary
Information confidential (which in all
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cases shall be no less than reasonable) and shall use the other Party's
Proprietary Information only for performing the covenants contained in this
Agreement. 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. All Proprietary Information (i) shall be held in
confidence by each receiving Party; (ii) shall be disclosed on a confidential
basis to only those persons who have a need for it in connectin with the
provision of services required to fulfill this Agreement and shall be used only
for such purposes; and (iii) may be used for other purposes only upon such terms
and conditions as may be mutually agreed to in advance of use in writing by the
Parties.
29.4.3 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this 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 it confidential as evidenced by
written records prepared prior to delivery by the disclosing Party; or
(b) is or becomes publicly known through no wrongful act of the
receiving Party; or
(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; or
(d) is independently developed by an employee, agent, or contractor
of the receiving Party that is not involved in any manner with the
provision of services pursuant to this Agreement and does not have any
direct or indirect access to the Proprietary Information; or
(e) is approved for release by written authorization of the
disclosing Party; or
(f) is required to be made public by the receiving Party pursuant to
applicable law or regulation, provided that the receiving Party shall give
sufficient notice of the requirement to the disclosing Party to enable the
disclosing Party to seek protective orders. In such event, the receiving
Party shall provide the disclosing Party with written notice of such
requirement, to the extent permitted by Law, as soon as possible and,
where possible, prior to such disclosure. The disclosing Party may then
seek appropriate protective relief from all or part of such requirement,
and the receiving Party shall use reasonable efforts to cooperate with the
disclosing Party in attempting to obtain any protective relief which such
disclosing Party chooses to obtain.
29.4.4 Upon request by the disclosing Party, the receiving Party
shall return all tangible copies of Proprietary Information, whether written,
graphic, electromagnetic or otherwise.
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29.4.5 Notwithstanding any other provision of this Agreement, the
provisions of this subsection 29.4 shall apply to all Proprietary Information
furnished by either Party to the other in furtherance of the purpose of this
Agreement, even if furnished before the Effective Date.
29.4.6 Except as otherwise expressly provided elsewhere in this
Agreement, no license is hereby granted under any patent, trademark, or
copyright, nor is any license implied, solely by virtue of the disclosure of any
Proprietary Information.
29.5 Choice of Law
The construction, interpretation and performance of this Agreement shall
be governed by and construed in accordance with the laws of the state in which
this Agreement is to be performed, except for its conflicts of laws provisions.
In addition, insofar as and to the extent federal law may apply, federal law
will control.
29.6 Taxes
29.6.1 In General. With respect to any purchase hereunder of
services, facilities or arrangements, if any federal, state or local tax, fee,
surcharge or other tax-like charge (a "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 properly bill the purchasing Party for such
Tax, (ii) the purchasing Party shall timely remit such Tax to the providing
Party and (iii) the providing Party shall timely remit such collected Tax to the
applicable taxing authority.
29.6.2 Taxes Imposed on the Providing Party With respect to any
purchase hereunder of services, facilities or arrangements, if any federal,
state or local Tax is imposed by Applicable Law on the receipts of the providing
Party, which Law permits the providing Party to exclude certain receipts
received from sales for resale to a public utility, distributor, telephone
company, local exchange carrier, telecommunications company or other
communications company ("Telecommunications Company"), such exclusion being
based solely on the fact that the purchasing Party is also subject to a tax
based upon receipts ("Receipts Tax"), then the purchasing Party (i) shall
provide the providing Party with notice in writing in accordance with subsection
29.6.6 of this Agreement of its intent to pay the Receipts Tax and (ii) shall
timely pay the Receipts Tax to the applicable tax authority.
29.6.3 Taxes Imposed on Customers With respect to any purchase
hereunder of services, facilities or arrangements that are resold to a third
party, if any federal, state or local Tax is imposed by Applicable Law on the
subscriber, end-user, Customer or ultimate consumer ("Subscriber") in connection
with any such purchase, which a Telecommunications Company is required to impose
and/or collect from a Subscriber, then the purchasing Party (i) shall be
required to impose and/or collect such Tax from the Subscriber and (ii) shall
timely remit such Tax to the applicable taxing authority.
29.6.4 Liability for Uncollected Tax, Interest and Penalty If the
providing Party
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has not received an exemption certificate and fails to collect any Tax as
required by subsection 29.6.1, 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 interest
assessed thereon and any penalty assessed with respect to such uncollected Tax
by such authority. If the providing Party properly bills the purchasing Party
for any Tax but the purchasing Party fails to remit such Tax to the providing
Party as required by subsection 29.6.1, then, as between the providing Party and
the purchasing Party, the purchasing Party shall be liable for such uncollected
Tax and any interest assessed thereon, as well as any penalty assessed with
respect to such uncollected Tax by the applicable taxing authority. If the
providing Party does not collect any Tax as required by subsection 29.6.1
because the purchasing Party has provided such providing Party with an exemption
certificate that is later found to be inadequate by a taxing authority, then, as
between the providing Party and the purchasing Party, the purchasing Party shall
be liable for such uncollected Tax and any interest assessed thereon, as well as
any penalty assessed with respect to such uncollected Tax by the applicable
taxing authority. If the purchasing Party fails to pay the Receipts Tax as
required by subsection 29.6.2, then, as between the providing Party and the
purchasing Party, (x) the providing Party shall be liable for any Tax imposed on
its receipts and (y) the purchasing Party shall be liable for any interest
assessed thereon and any penalty assessed upon the providing Party with respect
to such Tax by such authority. If the purchasing Party fails to impose and/or
collect any Tax from Subscribers as required by subsection 29.6.3, then, as
between the providing Party and the purchasing Party, the purchasing Party shall
remain liable for such uncollected Tax and any interest assessed thereon, as
well as any penalty assessed with respect to such uncollected Tax by the
applicable taxing authority. With respect to any Tax that the purchasing Party
has agreed to pay, or is required to impose on and/or collect from Subscribers,
the purchasing Party agrees to indemnify and hold the providing Party harmless
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 recover the Tax from the
providing Party due to the failure of the purchasing Party to timely pay, or
collect and timely remit, such Tax to such authority. In the event either Party
is audited by a taxing authority, the other Party agrees to cooperate fully with
the Party being audited in order to respond to any audit inquiries in a proper
and timely manner so that the audit and/or any resulting controversy may be
resolved expeditiously.
29.6.5 Tax Exemptions and Exemption Certificates If Applicable Law
clearly exempts a purchase hereunder from a Tax, and if such Law also provides
an exemption procedure, such as an exemption-certificate requirement, then, if
the purchasing Party complies with such procedure, the providing Party shall not
collect such Tax during the effective period of such exemption. Such exemption
shall be effective upon receipt of the exemption certificate or affidavit in
accordance with the terms set forth in subsection 29.6.6. If Applicable Law
clearly exempts a purchase hereunder from a Tax, but does not also provide an
exemption procedure, then the providing Party shall not collect such Tax if the
purchasing Party (i) furnishes the providing Party with a letter signed by an
officer requesting such an exemption and citing the provision in the Law which
clearly allows such exemption and (ii) supplies the providing Party with an
indemnification agreement, reasonably acceptable to the providing Party (e.g.,
an agreement commonly used in the industry), which holds the providing Party
harmless on an after-tax basis with respect to its forbearing to collect such
Tax.
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29.6.6 If any discount or portion of a discount in price provided to
Covad under this Agreement (including, but not limited to, a wholesale discount
provided for in Exhibit A) is based on anticipated Tax savings to BA because it
was anticipated that receipts from sales of BA services that would otherwise be
subject to a Tax on such receipts could be excluded from such Tax under
Applicable Law because the BA services would be sold to Covad for resale, and BA
is, in fact, required by Applicable Law to pay such Tax on receipts from sales
of BA services to Covad, then, as between BA and Covad, Covad shall be liable
for, and shall indemnify and hold harmless BA against (on an after-tax basis),
any such Tax and any interest and/or penalty assessed by the applicable taxing
authority on either Covad or BA with respect to the Tax on BA's receipts.
29.6.7 All notices, affidavits, exemption-certificates or other
communications required or permitted to be given by either Party to the other,
for purposes of this subsection 29.6, shall be made in writing and shall be
delivered in person or sent by certified mail, return receipt requested, or
registered mail, or a courier service providing proof of service, and sent to
the addressees set forth in subsection 29.10 as well as to the following:
To Bell Atlantic: Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, NY 10036
To Covad: Tax Administration
DIECA Communications, Inc.
2330 Central Expressway
Santa Clara, CA 95050-2516
Either Party may from time to time designate another address or other addressees
by giving notice is accordance with the terms of this subsection 29.6. Any
notice or other communication shall be deemed to be given when received.
29.7 Assignment
Neither Party may assign or transfer (whether by operation of Law or
otherwise) this Agreement or any of its rights or obligations hereunder to a
third partywithout the other Party's prior written consent, which consent shall
not be unreasonably withheld or delayed; provided , however, 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 prior written notice to the other Party of such assignment or
transfer, together with a properly executed acceptance of the assigning Party's
obligations and duties hereunder. Any attempted assignment or transfer that is
not permitted shall be void ab initio. All obligations and duties of any Party
shall be binding on all successors in interest and assigns of such Party.
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29.8 Billing and Payment; Disputed Amounts
29.8.1 Except as may otherwise be provided in this Agreement, each
Party shall submit on a monthly basis an itemized statement of charges incurred
by the other Party during the preceding month(s) for services rendered
hereunder. Payment of billed amounts under this Agreement, whether billed on a
monthly basis or as otherwise provided herein, shall be due, in immediately
available U.S. funds, within thirty (30) days of the date of such statement.
29.8.2 Although it is the intent of both Parties to submit timely
and accurate statements of charges, failure by either Party to present
statements to the other Party in a timely manner shall not constitute a breach
or default, or a waiver of the right to payment of the incurred charges, by the
billing Party under this Agreement, and the billed Party shall not be entitled
to dispute the billing Party's statement(s) based on such Party's failure to
submit them in a timely fashion.
29.8.3 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) the Disputed Amount up to the higher of $10,000 or 50% of the
Disputed Amount into an interest bearing escrow account with a third party
escrow agent mutually agreed upon by the Parties. The remaining balance of the
Disputed Amount not placed into escrow shall thereafter be paid, if appropriate,
upon final determination of such dispute.
29.8.4 If the Parties are unable to resolve the issues related to
the Disputed Amounts in the normal course of business within ninety (90) 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.
29.8.5 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 subsection 29.8.4, or if either Party
fails to appoint a designated representative within forty five (45) days, 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.
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29.8.6 The Parties agree that all negotiations pursuant to this
subsection 29.8 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.
29.8.7 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.
29.9 Dispute Resolution
Any dispute between the Parties regarding the interpretation or
enforcement of this Agreement or any of its terms shall be addressed by good
faith negotiation between the Parties, in the first instance. Should such
negotiations fail to resolve the dispute in a reasonable time, either Party may
initiate an appropriate action in any regulatory or judicial forum of competent
jurisdiction.
29.10 Notices
Except as otherwise provided in this Agreement, notices given by one Party
to the other Party under this Agreement shall be in writing and shall be (a)
delivered personally, (b) delivered by express delivery service, (c) mailed,
certified mail or first class U.S. mail postage prepaid, return receipt
requested, or (d) delivered by telecopy to the following addresses of the
Parties:
To Covad:
DIECA Communications, Inc.
2330 Central Expressway
Santa Clara, CA 95050-2516
Attn: Vice President and General Counsel
Facsimile: (408) 490-4507
with a copy to:
DIECA Communications, Inc.
6849 Old Dominion Drive, Suite 220
McLean, VA 22101
Att: Assistant General Counsel
Facsimile: (703) 734-5474
To BA:
Bell Atlantic
Telecom Industry Services
1095 Avenue of the Americas
40th Floor
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New York, NY 10036
Facsimile: (212) 597-2585
with a copy to:
General Attorney
Bell Atlantic
1320 N. Courthouse Road
8th Floor
Arlington, VA 22201
Facsimile: (703) 974-0744
or to such other address as either Party shall designate by proper notice.
Notices will be deemed given as of the earlier of (i) the date of actual
receipt, (ii) the next business day when notice is sent via express mail or
personal delivery, (iii) three (3) days after mailing in the case of first class
or certified U.S. mail, or (iv) on the date set forth on the confirmation in the
case of telecopy.
29.11 Section 252(i) Obligations
29.11.1 To the extent required under Applicable Law, BA shall make
available without unreasonable delay to Covad any individual interconnection,
service or network element contained in any agreement to which it is a party
that is approved by the Commission pursuant to Section 252 of the Act, upon the
same rates, terms, and conditions as those provided in the agreement.
29.11.2 To the extent the exercise of the foregoing options requires
a rearrangement of facilities by the providing Party, the opting Party shall be
liable for the non-recurring charges associated therewith.
29.11.3 The Party electing to exercise such option shall do so by
delivering written notice to the first Party. Upon receipt of said notice by the
first Party, the Parties shall amend this Agreement to provide the same rates,
terms and conditions to the notifying Party for the remaining term of this
Agreement; provided, however, that the Party exercising its option under this
subsection 29.11 must continue to provide the same services or arrangements to
the first Party as required by this Agreement, subject either to the rates,
terms, and conditions applicable to the first Party in its agreement with the
third party or to the rates, terms, and conditions of this Agreement, whichever
is more favorable to the first Party in its sole determination.
29.12 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.
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29.13 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.
29.14 No License
29.14.1 Except as may be expressly provided herein, nothing in this
Agreement shall be construed as the grant of a license with respect to any
patent, copyright, trademark, trade name, trade secret or any other proprietary
or intellectual property now or hereafter owned, controlled or licensable by
either Party. Neither Party may use any patent, copyrightable materials,
trademark, trade name, trade secret or other intellectual property right of the
other Party except in accordance with the terms of a separate license agreement
between the Parties granting such rights.
29.14.2 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 Party or its customers
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 of any facilities by either Party under this Agreement, alone or in
combination with that of the other Party, constitutes direct, vicarious or
contributory infringement or inducement to infringe, misuse or misappropriation
of any patent, copyright, trademark, trade secret, or any other proprietary or
intellectual property right of any Party or third party. Each Party, however,
shall offer to the other reasonable cooperation and assistance in the defense of
any such claim.
29.14.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES NOT EXIST, ANY
WARRANTY, EXPRESS OR IMPLIED, THAT THE USE BY THE PARTIES OF THE OTHER'S
FACILITIES, ARRANGEMENTS, OR SERVICES PROVIDED UNDER THIS AGREEMENT SHALL NOT
GIVE RISE TO A CLAIM BY ANY THIRD PARTY OF INFRINGEMENT, MISUSE, OR
MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT OF SUCH THIRD PARTY.
29.15 Technology Upgrades
Nothing in this Agreement shall limit BA's ability to upgrade its network
through the
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incorporation of new equipment, new software or otherwise. BA shall provide
Covad written notice at least ninety (90) days prior to the incorporation of any
such upgrades in BA's network that will materially affect Covad's service, and
shall exercise reasonable efforts to provide at least one hundred eighty (180)
days notice where practicable. In addition, BA shall comply with the FCC Network
Disclosure rules, promulgated purusant to Title II of the Act and, in
particular, Section 251(c)(5) of the Act, set forth in the FCC Regulations to
the extent applicable. Covad shall be solely responsible for the cost and effort
of accommodating such changes in its own network.
29.16 Survival
The Parties' obligations under this Agreement which by their nature are
intended to continue beyond the termination or expiration of this Agreement,
including but not limited to Section 29.4, shall survive the termination or
expiration of this Agreement.
29.17 Entire Agreement
The terms contained in this Agreement and any Schedules, Exhibits, 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.
29.18 Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
29.19 Modification, Amendment, Supplement, or Waiver
No modification, amendment, supplement to, or waiver of the Agreement or
any of its provisions shall be effective and binding upon the Parties unless it
is made in writing and duly signed by the Parties. A failure or delay of either
Party to enforce any of the provisions hereof, to exercise any option which is
herein provided, or to require performance of any of the provisions hereof shall
in no way be construed to be a waiver of such provisions or options.
29.20 Successors and Assigns
This Agreement shall be binding on and inure to the benefit of the Parties
and their respective legal successors and permitted assigns.
29.21 Publicity and Use of Trademarks or Service Marks
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Neither Party nor its subcontractors or agents shall use the other Party's
trademarks, service marks, logos or other proprietary trade dress in any
advertising, press releases, publicity matters or other promotional materials
without such Party's prior written consent.
29.22 Integrity of BELL ATLANTIC Network
The Parties acknowledge that BA, at its election, may deploy fiber
throughout its network and that such fiber deployment may inhibit or facilitate
Covad's ability to provide service using certain technologies. Notwithstanding
any other provision of this Agreement, BA shall have the right to deploy,
upgrade, migrate and maintain its network at its discretion pursuant to Section
29.15 of this Agreement.
29.23 Merger Conditions
Nothing in this Agreement shall constitute a waiver by Covad of any rights
it may have under the FCC Order in the Application of Bell Atlantic Corporation,
Transferee, For Consent to Transfer control of Bell Atlantic Corporation and its
Subsidiaries, NSD-L-96-10, Memorandum Opinion and Order (August 14, 1997) ("the
FCC Merger Order"). Any such rights under the FCC Merger Order shall supplement
Covad's rights under this Agreement. Upon Covad's request, Bell Atlantic will
provide Covad with the then current Installment Payment Option outlined in the
FCC Merger Order.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this 7th day of October, 1998.
DIECA COMMUNICATIONS, INC. BELL ATLANTIC-
WASHINGTON D.C. INC.
By: By:
------------------------------ -------------------------------
Printed: Dhruv Khanna Printed: Jeffrey A. Masoner
------------------------- --------------------------
Title: Vice President and General Counsel Title: Vice President -
---------------------------------- Interconnection Services
Policy & Planning
----------------------------
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SCHEDULE 1.0
CERTAIN TERMS AS DEFINED IN THE ACT AS OF EFFECTIVE DATE
"Affiliate" means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or the equivalent thereof) of more than ten percent (10%).
"Customer Proprietary Network Information" 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; except that such
term does not include subscriber list information.
"Dialing Parity" means that a person that is not an affiliate of a local
exchange carrier is able to provide Telecommunications Services in such a manner
that Customers have the ability to route automatically, without the use of any
access code, their Telecommunications to the Telecommunications Services
provider of the customer's designation from among two (2) or more
Telecommunications Services providers (including such LEC).
"Exchange Access" means the offering of access to Telephone Exchange
Services or facilities for the purpose of the origination or termination of
Telephone Toll Services.
"Incumbent Local Exchange Carrier" means, with respect to an area, the
Local Exchange Carrier, that (A) on the date of enactment of the
Telecommunications Act, provided Telephone Exchange Service in such area, and
(B)(i) on such date of enactment, was deemed to be a member of the exchange
carrier association pursuant to Section 69.601(b) of the FCC's regulations (47
C.F.R. 69.601(b)), or (ii) is a person or entity that, on or after such date of
enactment, became a successor or assign of a member described in clause (i).
"InterLATA" means Telecommunications between a point located in a local
access and transport area and a point located outside such area.
"Local Access and Transport Area" or "LATA" means a contiguous geographic
area: (a) established before the date of enactment of the Act by a Bell
operating company such that no Exchange Area includes points within more than
one (1) metropolitan statistical area, consolidated metropolitan statistical
area, or State, except as expressly permitted under the AT&T Consent Decree; or
(b) established or modified by a Bell operating company after such date of
enactment and approved by the FCC.
"Local Exchange Carrier" means any person that is engaged in the provision
of Telephone
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Exchange Service or Exchange Access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial mobile service under
Section 332(c) of the Act, except to the extent that the FCC finds that such
service should be included in the definition of such term.
"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 and collection or used in the transmission, routing, or other provision
of a Telecommunications Service.
"Number Portability" means the ability of end 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.
"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.
"Telecommunications Carrier" means any provider of Telecommunications
Services, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Communications
Act).
"Telecommunications Service" 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.
"Telephone Exchange Service" means (a) service within a telephone exchange
or within a connected system of telephone exchanges within the same exchange
area operated to furnish subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the exchange
service charge, or (b) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
"Telephone Toll Service" means telephone service between stations in
different exchange areas for which there is made a separate charge not included
in contracts with subscribers for exchange service.
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SCHEDULE 4.5
INTERCONNECTION POINTS FOR DIFFERENT TYPES OF TRAFFIC
Each Party shall provide the other Party with Interconnection to its
network at the following points for transmission, routing and termination. Each
Party shall make available at its Interconnection Points facilities to route the
traffic it receives to the appropriate final destination. Compensation for such
facilities will be as set forth in Exhibit A or as provided elsewhere herein.
1. For the termination of Local Traffic or Toll Traffic originated by one
Party's Customer and terminated to the other Party's Customer, at the points set
forth in subsections 4.2 and/or 4.3 of the main body of the Agreement.
2. For the termination of Meet Point Billing Traffic from an IXC to:
(a) Covad, at the Covad-IP in LATA in which the Traffic is to
terminate.
(b) BA, at the BA-IP in LATA in which the Traffic is to terminate.
3. For the termination of Transit Traffic from an ITC, wireless carrier,
or other CLEC to:
(a) Covad, at the Covad-IP in which the Traffic is to terminate.
(b) BA, at the BA-IP in LATA in which the Traffic is to terminate.
4. For 911/E911 traffic originated on Covad's network, at the PSAP in
areas where only Basic 911 service is available, or at the BA 911 Tandem Office
serving the area in which the Covad Customer is located, in accordance with
applicable state laws and regulations and PSAP requirements.
5. For Directory Assistance (411 or NPA-555-1212) traffic, at the
applicable BA Wire Center or the BA operator services Tandem Office subtended by
such Wire Center.
6. For Operator Services (call completion) traffic, at the applicable BA
Wire Center or the BA operator services Tandem Office subtended by such Wire
Center.
7. For LSV/VCI traffic, at the terminating Party's Wire Center or operator
services Tandem Office subtended by such Wire Center.
8. For SS7 signaling originated by:
(a) Covad, at mutually agreed-upon Signaling Point of
Interconnection(s) ("SPOI") in the LATA in which the Local or Toll Traffic
originates, over CCSAC links provisioned in accordance with Bellcore GR-905 and
Bell Atlantic Supplement Common Channel
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Signaling Network Interface Specification (BA_905).
(b) BA, at mutually agreed-upon SPOIs in the LATA in which the Local
or Toll Traffic originates, over a CCSAC links provisioned in accordance with
Bellcore GR-905 and BA-905.
Alternatively, either Party may elect to interconnect for SS7 signaling through
a commercial SS7 hub provider.
9. For 800/888 database inquiry traffic, at any BA Signaling Transfer
Point in the LATA in which the originating Covad Wire Center is located, over a
CCSAC link. Alternatively, Covad may elect to interconnect through a commercial
SS7 hub provider.
10. For Line Information Database ("LIDB") inquiry traffic, at any BA
Signaling Transfer Point in the LATA in which the LIDB is located, over a CCSAC
link. Alternatively, Covad may elect to interconnect through a commercial SS7
hub provider.
11. For any other type of traffic, at reasonable points to be agreed upon
by the Parties, based on the network architecture of the terminating Party's
network.
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SCHEDULE 11.3
ACCESS TO NETWORK INTERFACE DEVICE
1. Due to the wide variety of NIDs utilized by BA (based on Customer size
and environmental considerations), Covad may access the Customer's Inside Wire
by any of the following means:
(a) Where an adequate length of Inside Wire is present and
environmental conditions permit, Requesting Carrier may remove the Inside Wire
from BA's NID and connect that wire to Covad's NID;
(b) Enter the Customer access chamber or "side" of "dual chamber"
NID enclosures for the purpose of extending a connecterized or spliced jumper
wire from the Inside Wire through a suitable "punch-out" hole of such NID
enclosures;
(c) Request BA to make other rearrangements to the Inside Wire
terminations or terminal enclosure on a time and materials cost basis to be
charged to the requesting party (i.e., Covad, its agent, the building owner or
the Customer).
2. If Covad accesses the Customer's Inside Wire as described in Paragraph
1(c) above, the Tariffed time and materials charges will be billed to the
requesting party (i.e., Covad, the building owner or the Customer).
3. In no case shall Covad remove or disconnect BA's loop facilities from
BA's NIDs, enclosures, or protectors.
4. In no case shall Covad remove or disconnect ground wires from BA's
NIDs, enclosures, or protectors.
5. In no case shall Covad remove or disconnect NID modules, protectors, or
terminals from BA's NID enclosures.
6. Maintenance and control of premises wiring (Inside Wire) is the
responsibility of the Customer. Any conflicts between service providers for
access to the Customer's Inside Wire must be resolved by the Customer.
7. Due to the wide variety of NID enclosures and outside plant
environments, BA will work with Covad to develop specific procedures to
establish the most effective means of implementing this Schedule 11.3.
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SCHEDULE 11.4
UNBUNDLED SWITCHING ELEMENTS
Local Switching
The unbundled local Switching Elements include line side and trunk side
facilities (e.g. line and trunk side Ports such as analog and ISDN line side
Ports and DS1 trunk side Ports) plus the features, functions, and capabilities
of the switch. It consists of the line-side Port (including connection between a
loop termination and a switch line card, telephone number assignment, basic
intercept, one primary directory listing, presubscription, and access to 911,
operator services, and directory assistance), line and line group features
(including all vertical features and line blocking options that the switch and
its associated deployed switch software is capable of providing and are
currently offered to BA's local exchange customers), usage (including the
connection of lines to lines, lines to trunks, trunks to lines, and trunks to
trunks), and trunk features (including the connection between the trunk
termination and a trunk card).
BA shall offer, as an optional chargeable feature, daily usage tapes.
Covad may request activation or deactivation of features on a per-port basis at
any time, and shall compensate BA for the non-recurring charges associated with
processing the order. Covad may submit a Bona Fide Request for other switch
features and functions that the switch is capable of providing, but which BA
does not currently provide, or for customized routing of traffic other than
operator services and/or directory assistance traffic. BA shall develop and
provide these requested services where technically feasible with the agreement
of Covad to pay the recurring and non-recurring costs of developing, installing,
updating, providing and maintaining these services.
Tandem Switching
The unbundled tandem Switching Element includes trunk-connect facilities,
the basic switching function of connecting trunks to trunks, and the functions
that are centralized in Tandem Switches. Unbundled tandem switching creates a
temporary transmission path between interoffice trunks that are interconnected
at a BA Access Tandem for the purpose of routing a call or calls.
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SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE
FOR DISTRICT OF COLUMBIA
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
================================================================================
LATA in Milestone Date
District of Columbia
- --------------------------------------------------------------------------------
LATA ___ LATA Start Date TBD
----------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
----------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
----------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
----------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
----------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
----------------------------------------------------------
SS7 Certification Achieved; (1) TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements
----------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
----------------------------------------------------------
Call-through Testing Completed; TBD
"Interconnection Activation Date"
================================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in District of Columbia when Covad
has an effective Tariff for business Telephone Exchange Service in District of
Columbia and a significant number of Telephone Exchange Service Customer lines
in service for business Telephone Exchange Service Customers in that LATA in
District of Columbia that are not affiliates or employees of either BA or Covad,
and (ii) residential Telephone Exchange
- ----------
(1) SS7 certification scheduling depends on actual schedule availability at time
of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
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Service shall be considered "fully operational" in a LATA in District of
Columbia when Covad has an effective Tariff for residential Telephone Exchange
Service in District of Columbia and has a significant number of Telephone
Exchange Service Customer lines in service for residential Telephone Exchange
Service Customers in that LATA in District of Columbia that are not affiliates
or employees of either BA or Covad.
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SCHEDULE 4.0
DISTRICT of COLUMBIA
COVAD IPs BA IPs
- --------- ------
TBD TBD
<PAGE>
SCHEDULE 12.3
SUPPORT SERVICES FOR RESALE
1. BA OSS SERVICES
1.1 Definitions
As used in the Schedule 12.3, the following terms shall have the meanings
stated below:
1.1.1 "BA Operations Support Systems" means BA systems for pre-ordering,
ordering, provisioning, maintenance and repair, and billing.
1.1.2 "BA OSS Services" means access to BA Operations Support Systems
functions. The term "BA OSS Services" includes, but is not limited to: (a)
BA's provision of Covad Usage Information to Covad pursuant to Section 1.3
below; and, (b) "BA OSS Information", as defined in Section 1.1.4 below.
1.1.3 "BA OSS Facilities" means any gateways, interfaces, databases,
facilities, equipment, software, or systems, used by BA to provide BA OSS
Services to Covad.
1.1.4 "BA OSS Information" means any information accessed by, or disclosed
or provided to, Covad through or as a part of BA OSS Services. The term
"BA OSS Information" includes, but is not limited to: (a) any Customer
Information related to a BA Customer or a Covad Customer accessed by, or
disclosed or provided to, Covad through or as a part of BA OSS Services;
and, (b) any Covad Usage Information (as defined in Section 1.1.6 below)
accessed by, or disclosed or provided to, Covad.
1.1.5 "BA Retail Telecommunications Service" means any Telecommunications
Service that Bell Atlantic provides at retail to subscribers that are not
Telecommunications Carriers. The term "BA Retail Telecommunications
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. ss. 153(16)) provided by BA.
1.1.6 "Covad Usage Information" means the usage information for a BA
Retail Telecommunications Service purchased by Covad under this Agreement
that BA would record if BA was furnishing such BA Retail
Telecommunications Service to a BA end-user retail Customer.
1.1.7 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
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1.2 BA OSS Services
1.2.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), BA OSS Services.
1.2.2 Subject to the requirements of Applicable Law, BA Operations Support
Systems, BA Operations Support Systems functions, BA OSS Facilities, BA
OSS Information, and the BA OSS Services that will be offered by BA, shall
be as determined by BA. Subject to the requirements of Applicable Law, BA
shall have the right to change BA Operations Support Systems, BA
Operations Support Systems functions, BA OSS Facilities, BA OSS
Information, and the BA OSS Services, from time-to-time, without the
consent of Covad.
1.3 Covad Usage Information
1.3.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), Covad Usage
Information.
1.3.2 Covad Usage Information will be available to Covad through the
following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
1.3.3.1 Covad Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Section 1.3.2(a)
above will be issued each day, Monday through Friday, except holidays
observed by BA.
1.3.4 Except as stated in this Section 1.3, subject to the requirements of
Applicable Law, the manner in which, and the frequency with which, Covad
Usage Information will be provided to Covad shall be determined by BA.
1.5 Access to and Use of BA OSS Facilities
1.5.1 BA OSS Facilities may be accessed and used by Covad only to the
extent necessary for Covad's access to and use of BA OSS Services pursuant
to the Agreement.
1.5.2 BA OSS Facilities may be accessed and used by Covad only to provide
Telecommunications Services to Covad Customers.
1.5.3 Covad shall restrict access to and use of BA OSS Facilities to
Covad. This Schedule 12.3 does not grant to Covad any right or license to
grant sublicenses to other
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persons, or permission to other persons (except Covad's employees, agents
and contractors, in accordance with Section 1.5.7 below), to access or use
BA OSS Facilities.
1.5.4 Covad shall not (a) alter, modify or damage the BA OSS Facilities
(including, but not limited to, BA software), (b) copy, remove, derive,
reverse engineer, or decompile, software from the BA OSS Facilities, or
(c) obtain access through BA OSS Facilities to BA databases, facilities,
equipment, software, or systems, which are not offered for Covad's use
under this Schedule 12.3.
1.5.5 Covad shall comply with all practices and procedures established by
BA for access to and use of BA OSS Facilities (including, but not limited
to, BA practices and procedures with regard to security and use of access
and user identification codes).
1.5.6 All practices and procedures for access to and use of BA OSS
Facilities, and all access and user identification codes for BA OSS
Facilities: (a) shall remain the property of BA; (b) shall be used by
Covad only in connection with Covad's use of BA OSS Facilities permitted
by this Schedule 12.3; (c) shall be treated by Covad as Confidential
Information of BA pursuant to subsection 29.4 of the Agreement; and, (d)
shall be destroyed or returned by Covad to BA upon the earlier of request
by BA or the expiration or termination of the Agreement.
1.5.7 Covad's employees, agents and contractors may access and use BA OSS
Facilities only to the extent necessary for Covad's access to and use of
the BA OSS Facilities permitted by this Agreement. Any access to or use of
BA OSS Facilities by Covad's employees, agents, or contractors, shall be
subject to the provisions of the Agreement, including, but not limited to,
subsection 29.4 thereof and Sections 1.5.6 and 1.6.3.3 of this Schedule
12.3.
1.6 BA OSS Information
1.6.1 Subject to the provisions of this Schedule 12.3 and Applicable Law,
BA grants to Covad a non-exclusive license to use BA OSS Information.
1.6.2 All BA OSS Information shall at all times remain the property of BA.
Except as expressly stated in this Schedule 12.3, Covad shall acquire no
rights in or to any BA OSS Information.
1.6.3.1 The provisions of this Section 1.6.3 shall apply to all BA OSS
Information, except (a) Covad Usage Information, (b) CPNI of Covad, and
(c) CPNI of a BA Customer or a Covad Customer, to the extent the Customer
has authorized Covad to use the Customer Information.
1.6.3.2 BA OSS Information may be accessed and used by Covad only to
provide Telecommunications Services to Covad Customers.
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1.6.3.3 Covad shall treat BA OSS Information that is designated by BA,
through written or electronic notice (including, but not limited to,
through the BA OSS Services), as "Confidential" or "Proprietary" as
Confidential Information of BA pursuant to subsection 29.4 of the
Agreement.
1.6.3.4 Except as expressly stated in this Schedule 12.3, this Agreement
does not grant to Covad any right or license to grant sublicenses to other
persons, or permission to other persons (except Covad's employees, agents
or contractors, in accordance with Section 1.6.3.5 below, to access, use
or disclose BA OSS Information.
1.6.3.5 Covad's employees, agents and contractors may access, use and
disclose BA OSS Information only to the extent necessary for Covad's
access to, and use and disclosure of, BA OSS Information permitted by this
Schedule 12.3. Any access to, or use or disclosure of, BA OSS Information
by Covad's employees, agents or contractors, shall be subject to the
provisions of this Agreement, including, but not limited to, subsection
29.4 of the Agreement and Section 1.6.3.3 above.
1.6.3.6 Covad's license to use BA OSS Information shall expire upon the
earliest of: (a) the time when the BA OSS Information is no longer needed
by Covad to provide Telecommunications Services to Covad Customers; (b)
termination of the license in accordance with this Schedule 12.3; or (c)
expiration or termination of the Agreement.
1.6.3.7 All BA OSS Information received by Covad shall be destroyed or
returned by Covad to BA, upon expiration, suspension or termination of the
license to use such BA OSS Information.
1.6.4 Unless sooner terminated or suspended in accordance with the
Agreement or this Schedule 12.3 (including, but not limited to, subsection
22.3 of the Agreement and Section 1.7.1 above), Covad's access to BA OSS
Information through BA OSS Services shall terminate upon the expiration or
termination of the Agreement.
1.6.5.1 Without in any way limiting subsection 18.3 of the Agreement, BA
shall have the right (but not the obligation) to audit Covad to ascertain
whether Covad is complying with the requirements of Applicable Law and
this Agreement with regard to Covad's access to, and use and disclosure
of, BA OSS Information.
1.6.5.2 Without in any way limiting any other rights BA may have under the
Agreement or Applicable Law, BA shall have the right (but not the
obligation) to monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad pursuant to this Agreement, to
ascertain whether Covad is complying with the requirements of Applicable
Law and this Agreement, with regard to Covad's access to, and use and
disclosure of, such BA OSS Information. The foregoing right shall include,
but not be limited to, the right (but not the obligation) to
electronically monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad through BA OSS Facilities.
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1.6.5.3 Information obtained by BA pursuant to this Section 1.6.5 shall be
treated by BA as Confidential Information of Covad pursuant to subsection
29.4 of the Agreement; provided that, BA shall have the right (but not the
obligation) to use and disclose information obtained by BA pursuant to
this Section 1.6.5 to enforce BA's rights under the Agreement or
Applicable Law.
1.6.6 Covad acknowledges that the BA OSS Information, by its nature, is
updated and corrected on a continuous basis by BA, and therefore that BA
OSS Information is subject to change from time to time.
1.7 Liabilities and Remedies
1.7.1 Any breach by Covad, or Covad's employees, agents or contractors, of
the provisions of Sections 1.5 or 1.6 above shall be deemed a material
breach of the Agreement. In addition, if Covad or an employee, agent or
contractor of Covad at any time breaches a provision of Sections 1.5 or
1.6 above and such breach continues for more than ten (10) days after
written notice thereof from BA, then, except as otherwise required by
Applicable Law, BA shall have the right, upon notice to Covad, to suspend
the license to use BA OSS Information granted by Section 1.6.1 above
and/or the provision of BA OSS Services, in whole or in part.
1.7.2 Covad agrees that BA would be irreparably injured by a breach of
Sections 1.5 or 1.6 above by Covad or the employees, agents or contractors
of Covad, and that BA shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of any
such breach. Such remedies shall not be deemed to be the exclusive
remedies for any such breach, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
1.8 Relation to Applicable Law
The provisions of Sections 1.5, 1.6 and 1.7 above shall be in addition to
and not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. ss. 222, and are not intended to constitute a
waiver by BA of any right with regard to protection of the confidentiality
of the information of BA or BA Customers provided by Applicable Law.
1.9 Cooperation
Covad, at Covad's expense, shall reasonably cooperate with BA in using BA
OSS Services. Such cooperation shall include, but not be limited to, the
following:
1.9.1 Upon request by BA, Covad shall by no later than the fifteenth
(15th) day of each calendar month submit to BA reasonable, good faith
estimates (by central office or other BA office or geographic area
designated by BA) of the volume of each BA Retail
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Telecommunications Service for which Covad anticipates submitting orders
in each week of the next calendar month.
1.9.2 Upon request by BA, Covad shall submit to BA reasonable, good faith
estimates of other types of transactions or use of BA OSS Services that
Covad anticipates.
1.9.3 Covad shall reasonably cooperate with BA in submitting orders for BA
Retail Telecommunications Services and otherwise using the BA OSS
Services, in order to avoid exceeding the capacity or capabilities of such
BA OSS Services.
1.9.4 Covad shall participate in cooperative testing of BA OSS Services
and shall provide assistance to BA in identifying and correcting mistakes,
omissions, interruptions, delays, errors, defects, faults, failures, or
other deficiencies, in BA OSS Services.
1.10 BA Access to Information Related to Covad Customers
1.10.1 BA shall have the right to access, use and disclose information
related to Covad Customers that is in BA's possession (including, but not
limited to, in BA OSS Facilities) to the extent such access, use and/or
disclosure has been authorized by the Covad Customer in the manner
required by Applicable Law.
1.10.2 Upon request by BA, Covad shall negotiate in good faith and enter
into a contract with BA, pursuant to which BA may obtain access to Covad's
operations support systems (including, systems for pre-ordering, ordering,
provisioning, maintenance and repair, and billing) and information
contained in such systems, to permit BA to obtain information related to
Covad Customers (as authorized by the applicable Covad Customer), to
permit Customers to transfer service from one Telecommunications Carrier
to another, and for such other purposes as may be permitted by Applicable
Law.
2. BELL ATLANTIC PRE-OSS SERVICES
2.1 As used in this Schedule 12.3, "BA Pre-OSS Service" means a service
which allows the performance of an activity which is comparable to an
activity to be performed through a BA OSS Service and which BA offers to
provide to Covad prior to, or in lieu of, BA's provision of the BA OSS
Service to Covad. The term "BA Pre-OSS Service" includes, but is not
limited to, the activity of placing orders for BA Retail
Telecommunications Services through a telephone facsimile communication.
2.2 Subject to the requirements of Applicable Law, the BA Pre-OSS Services
that will be offered by BA shall be as determined by BA and BA shall have
the right to change BA Pre-OSS Services, from time-to-time, without the
consent of Covad.
2.3 Subject to the requirements of Applicable Law, the prices for BA
Pre-OSS Services shall be as determined by BA and shall be subject to
change by BA from time-to-time.
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2.4 The provisions of Sections 1.5 through 1.9 above shall also apply to
BA Pre-OSS Services. For the purposes of this Section 2.4: (a) references
in Sections 1.5 through 1.9 above to BA OSS Services shall be deemed to
include BA Pre-OSS Services; and, (b) references in Sections 1.5 through
1.9 above to BA OSS Information shall be deemed to include information
made available to Covad through BA Pre-OSS Services.
3. RATES AND CHARGES
The prices for the foregoing services shall be as set forth in BA's
Tariffs or, in the absence of an applicable BA Tariff price, in Exhibit A
or, if not set forth in either, as may be determined by BA from time to
time. If BA at any time offers another resale support service the prices
for which are not stated in BA's Tariffs or Exhibit A, BA shall have the
right to revise Exhibit A to add such prices.
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SCHEDULE 13.4
COLLOCATION: SHARED CAGE ARRANGEMENT
1. Service Description
(A) Shared Cages provide an additional option to Covad for
Interconnection and access to unbundled Network Elements. Shared
Cages refers to an arrangement in which a Collocation node is shared
by two CLECs purusant to terms and conditions agreed to by those
CLECs.
(B) For established collocation nodes, the initial CLEC is the
"Collocator of Record" ("COR"), or "host" collocator; the other
collocator participating in the sharing arrangement is referred to
in this Agreement as the "guest". When two collocators request
establishment of a new Collocation node, to be used as a Shared
Cage, one of the participating CLECs must agree to be the COR and
the other to be the guest. The host collocator is BA's customer, and
has all of the rights and obligations applicable under this
Agreement and the applicable Tariff to CLECs purchasing
Collocation-related services, including, without limitation, the
obligation to pay all applicable charges, whether or not the COR is
reimbursed for all or any portion of such charges by the guest.
Neither this Agreement, nor any actions taken by BA or the COR in
compliance with this Agreement or the applicable Tariff, shall
create a contractual, agency, or any other type of relationship
between BA and the guest collocator in a sharing arrangement; and BA
does not assume any liability or obligation to the guest for any
actions of the COR. The two involved collocators are solely
responsible for determining whether to share a cage, and if so upon
what terms and conditions.
2. Shared Cage Arrangement
(A) The host CLEC must notify BA in writing of its intention to share
its cage space and provide BA with a certificate of insurance from
the guest before the guest occupies the cage.
(B) All orders for Telecommunications Services or unbundled Network
Elements must be placed by or on behalf of the COR. The host and
guest may agree that such orders may be placed by the guest on
behalf of the host, but in such case BA must be provided with an
acceptable Letter of Authorization explicitly authorizing the guest
to place such orders. Where an order is placed by the guest in
conformity with this section BA will send bills for the ordered
services to the guest, and will accept payments from the guest on
the COR's account. Notwithstanding such ordering and billing
arrangements, the obligation to pay BA for such services
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remains exclusively with the COR, regardless of whether the guest
complies with its obligations under its contract with the COR to
make payments to the COR or to BA. BA may pursue any available
rights and remedies against the COR in the event of non-payment,
without first seeking payment from the guest, regardless of whether
the services for which payment is due are being used by the COR or
by the guest.
(C) All terms and conditions for Physical Collocation as described in
applicable Tariffs and in Section 13.0 of this Agreement will apply.
In addition, the following terms and conditions will apply to shared
cages:
(1) The guest must be a CLEC.
(2) The host and guest must each be collocating for the purpose of
interconnecting to BA or accessing BA's unbundled Network
Elements.
(3) In its use of a Shared Cage, the guest must comply with the
same BA rules and regulations and municipal/zoning regulations
as are applicable to the COR.
(4) The COR assumes the responsibility for the guest's violation
of all Tariff regulations and other requirements related to a
Shared Cage arrangement, and will be liable for any damage or
injury to BA caused by the conduct of the guest, to the same
extent as the COR would be liable if it had engaged in such
conduct itself. The COR will also indemnify BA against any
third-party claims resulting from the guest's conduct, to the
same extent as it would be responsible for such
indemnification if it had engaged in such conduct itself.
(5) The host and guest will participate in Method of Procedure
(MOP) meetings detailing the installation work to be performed
by the guest. This shall be completed for all Physical
Collocation equipment installation. The host shall prominently
display the signed MOP at the multiplexing node while any
installation functions are performed.
(6) The host must provide BA's designated representative(s) with a
list of the names of all technicians who will need access to
the Shared Cage for support, maintenance and repair purposes.
The host is responsible for supplying such representative(s)
with the required completed non-employee ID badge application
forms and all appropriate indentification material for its
employees/agents as well as those of the guest.
(7) BA will issue only one identifying cage and POT Bay CLLI code
and provide it to the host. The host will assume connecting
facility assignment (CFA) responsibilities.
(8) All occupancy and specific cage construction communications
(e.g., cage
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augments, cage access or deployment requirements) will be
between the host and BA as specified in this Agreement.
(9) The host will remain responsible for all costs associated with
the cage (e.g., cage construction, POT Bay installation). BA
will not split bill any of the rate elements associated with
the Collocation cage between the host and its tenant (e.g.,
recurring square foot charges, power, cable racking).
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SCHEDULE 27.2
PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
1. Performance Monitoring Reports
1.1. Subject to the provisions of this Schedule 27.2, BA shall provide to Covad
performance monitoring reports ("Performance Monitoring Reports") for services
and facilities provided by BA. Subject to the provisions of Appendix 1, the
Performance Monitoring Reports will include the measurements set forth in
subsections (a) through (d) of this Section 1.1, to the extent the measurements
set forth in a subsection are applicable to the services set forth in such
subsection: (a) for services provided to BA's retail customers, in the
aggregate, the measurements stated in Appendix 1, Section 6, "Retail"; (b) for
services and facilities provided to any BA local exchange affiliate purchasing
Interconnection,(1) if BA decides to operate a wholesale carrier, the
measurements stated in Appendix 1, Section 2, "Unbundled Network Elements",
Section 3, "Resale", and Section 4, "Network Interconnection Trunks"; (c) for
services and facilities provided to carriers purchasing Interconnection, in the
aggregate, the measurements stated in Appendix 1, Section 1, "OSS", Section 2,
"Unbundled Network Elements", Section 3, "Resale", Section 4, "Network
Interconnection Trunks", and Section 5, "CLEC Billing"; and, (d) for services
and facilities provided to Covad, the measurements stated in Appendix 1, Section
2, "Unbundled Network Elements", Section 3, "Resale", and Section 4, "Network
Interconnection Trunks".(2)
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(1) As used in this Schedule 27.2, Section 1.1, "Interconnection" includes
interconnection, transport and termination, services for resale, and/or access
to unbundled network elements, under Section 251 of the Act, as amended.
(2) The measurements listed in subsections (b) and (d) do not include Section 2,
"Unbundled Network Elements", Measurement 7, "% Flow Through Orders", and
Section 3, "Resale", Measurement 7, "% Flow Through Orders".
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1.2 The Performance Monitoring Reports shall be provided on a calendar quarter
basis (January through March, April through June, July through September,
October through December) with monthly information detail. The Performance
Monitoring Reports shall be provided within forty-five (45) days after the
completion of each calendar quarter. The first Performance Monitoring Reports
shall cover the calendar quarter of [?], 1998.
2. Performance Metrics, Standards and Remedies
2.1 Appendix 2 sets out performance standards for 21 service quality measurement
items ("Performance Metrics") listed in the Performance Monitoring Reports. BA
shall measure on a calendar quarter basis BA's performance for each Performance
Metric for service provided to Covad.
2.2 If for any calendar quarter BA fails to meet the standard for a Performance
Metric for service provided to Covad, BA will conduct an investigation with
regard to the failure. The investigation will review the validity of the
measurement for the Performance Metric, and, if the measurement is concluded to
be valid, identify the cause of the failure. After identifying the cause of the
failure, BA will take commercially reasonable action to correct the failure
resulting from such cause. Covad shall provide all information and support
reasonably requested by BA in order to enable BA to conduct the investigation
and to correct any failure.
2.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2, above, to the extent the failure to meet the standard
for a Performance Metric is caused by a Delaying Event. As used in this Schedule
27.2, "Delaying Event" means: (a) a failure by Covad to perform any of its
obligations set forth in this Agreement; (b) any delay, act or failure to act by
Covad or a customer, end-user, agent, affiliate, representative, vendor, or
contractor of Covad; (c) any Force Majeure Event
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as defined in Section 28.3; (d) any event, delay, act or failure to act, beyond
the reasonable control of BA; or, (e) such other event, delay, act or failure to
act upon which the Parties may agree. In calculating a Performance Metric, BA
may adjust the performance data to exclude any negative effect upon BA's meeting
the standard for the Performance Metric caused by a Delaying Event. If, pursuant
to this Section 2.3.1, BA adjusts performance data to exclude a negative effect
upon BA's meeting the standard for a Performance Metric caused by a Delaying
Event, BA shall provide to Covad a reasonably detailed description of the
adjustment. If Covad disputes the appropriateness of the adjustment, either
Party may seek resolution of the dispute in accordance with Section 28.11 of the
Agreement.
2.3.2 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric that shows a failure to meet
a performance standard if BA can reasonably show that (a) the measurement for
the Performance Metric does not have a statistically valid basis, or (b) the
data measured for service provided to Covad cannot be validly compared to the
measurement to which Appendix 2 specifies such data is to be compared (e.g., the
measurement for service provided to BA retail customers). If, pursuant to the
preceding sentence of this Section 2.3.2, BA excludes from action under Section
2.2 any Performance Metric, BA shall provide to Covad a reasonably detailed
explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
2.3.3 BA may exclude from consideration in calculating Performance Metrics any
activities where Covad has requested a date due or other performance interval
different from (greater or less than) that which BA provides for its own retail
customers or its other telecommunications carrier customers.
2.3.4 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric where the data for two or
more months in a calendar quarter have been
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excluded from consideration pursuant to the provisions of this Agreement.
2.4 For each Performance Metric related to UNE or Resale Services that requires
calculation of a percentage, a minimum of 200 items per calendar quarter for the
denominator shall be a prerequisite (e.g., a/200 x 100 = b%). Lack of the
minimum 200 items will result in BA being deemed to have met the standard for
that Performance Metric. For each Performance Metric related to Interconnection
Trunks that requires calculation of a percentage, a minimum of 50 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/50 x 100 =
b%). Lack of the minimum 50 items will result in BA being deemed to have met the
standard for that Performance Metric.
2.5 As used in Appendix 2 for those Performance Metrics where "Parity" is the
standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
3. Performance Measurements, Standards and Remedies
3.1 Appendix 3 sets forth nine (9) performance categories ("Performance
Categories"). Each Performance Category is composed of one or more performance
measurements, which are listed in the left-hand column of each Performance
Category matrix ("Performance Measurements"). Each Performance Category
point-score, when calculated, will be the sum of the point-scores of the
Performance Measurements composing that Performance Category, and may be "0", a
positive number (+1 or higher), or a negative number (-1 or less).
3.2 BA shall measure on a calendar quarter basis BA's performance for each
Performance Measurement for service provided to Covad. No later than sixty (60)
days after the completion of each calendar quarter, BA shall forward to Covad a
statement showing BA's performance for each Performance Measurement for service
provided to Covad and a calculation of each Performance
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Category point-score ("Performance Statement").
3.3 If for any calendar quarter BA fails to obtain a point-score of "0" or
higher for a Performance Measurement for service provided to Covad, BA will
conduct an investigation with regard to the failure. The investigation will
review the validity of the measurement for the Performance Measurement, and, if
the measurement is concluded to be valid, identify the cause of the failure.
After identifying the cause of the failure, BA will take commercially reasonable
action to correct the failure resulting from such cause. Covad shall provide all
information and support reasonably requested by BA in order to enable BA to
conduct this investigation and to correct any failure to obtain a point-score of
"0" or higher for the Performance Measurement.
3.4.1 Subject to the provisions of this Schedule 27.2 and other applicable
provisions of this Agreement, if the point-score for a Performance Category for
service provided to Covad is a negative number (-1 or less) for two (2)
consecutive calendar quarters, BA shall give a billing credit to Covad in the
amount provided for in Appendix 3 ("Performance Credit"). A Performance Credit
shall be given for the second consecutive calendar quarter and for each
subsequent consecutive calendar quarter for which the point-score for the
Performance Category is a negative number (-1 or less). Each Performance
Statement shall include a statement showing any Performance Credit due to Covad.
Each Performance Credit which is due shall be applied to an appropriate Covad
bill no later than thirty (30) days after the Performance Statement stating that
the Performance Credit is due is delivered to Covad.
3.4.2 If the point-score for a Performance Category for service provided to
Covad is a positive number (+1 or more), BA may use the positive point-score for
that Performance Category to off-set a negative point-score for that Performance
Category for the next calendar quarter.
3.4.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 3.3, or
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to pay a Performance Credit, to the extent the negative point-score for a
Performance Measurement or Performance Category is caused by a Delaying Event,
as defined in Section 2.3.1, above. In calculating a Performance Measurement, BA
may adjust the performance data to exclude any negative effect on BA's meeting
the performance standard for the Performance Measurement caused by a Delaying
Event. If, pursuant to this Section 3.4.3.1, BA adjusts performance data to
exclude a negative effect on BA's meeting the performance standard for a
Performance Measurement caused by a Delaying Event, BA shall provide to Covad a
reasonably detailed description of the adjustment. If Covad disputes the
appropriateness of the adjustment, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.2 BA may exclude from consideration in calculating Performance Category
Point Scores and Performance Credits, and shall not be obligated to take
investigative or corrective action pursuant to Section 3.3 with regard to, any
Performance Measurement that shows a failure to meet a performance standard if
BA can reasonably show that (a) the measurement for the Performance Measurement
does not have a statistically valid basis, or (b) the data measured for service
provided to Covad cannot be validly compared to the measurement to which
Appendix 3 specifies such data is to be compared (e.g., the measurement for
service provided to BA retail customers). If, pursuant to the preceding sentence
of this Section 3.4.3.2, BA excludes from consideration in calculating
Performance Category Point Scores and Performance Credits and from action under
Section 3.3 any Performance Measurement, BA shall provide to Covad a reasonably
detailed explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.3 BA may exclude from consideration in calculating Performance
Measurements any activities
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where Covad has requested a date due or other performance interval different
from (greater or less than) that which BA provides for its own retail customers
or its other telecommunications carrier customers.
3.4.3.4 BA may also exclude from consideration in calculating Performance
Category point-scores and Performance Credits, and shall not be obligated to
take investigative or corrective action pursuant to Section 3.3 with regard to,
any Performance Measurement where the data for two or more months in a calendar
quarter have been excluded from consideration pursuant to the provisions of this
Agreement.
3.4.4 For each Performance Measurement related to OSS, UNE, Resale Services or
Billing, that requires calculation of a percentage, a minimum of 200 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/200 x 100
= b%). Lack of the minimum 200 items will result in BA receiving a "0 Points"
score for that Performance Measurement. For each Performance Measurement related
to Interconnection Trunks that requires calculation of a percentage, a minimum
of 50 items per calendar quarter for the denominator shall be a prerequisite
(e.g., a/50 x 100 = b%). Lack of the minimum 50 items will result in BA
receiving a "0 Points" score for that Performance Measurement.
3.4.5 As used in Appendix 3 for those Performance Measurements where "Parity" is
the standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
4. Notwithstanding anything in this Agreement to the contrary, the Performance
Metrics, Performance Metrics standards, Performance Measurements, Performance
Measurements standards, Performance Categories, and Performance Credits,
provided for in this Schedule 27.2 shall also apply to Covad with regard to OSS,
UNE, Resale Services, Interconnection Trunks,
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and other services and arrangements, purchased by BA from Covad. Covad shall for
OSS, UNE, Resale Services, Interconnection Trunks, and other services and
arrangements, purchased by BA from Covad, provide to BA Performance Monitoring
Reports and Performance Statements similar to those to be provided by BA to
Covad. If Covad fails to meet a standard for a Performance Metric or a
Performance Measurement or incurs a negative point-score on a Performance
Category, Covad shall (a) undertake correction of the failure, to the same
extent as BA would be required to undertake correction of the failure under this
Schedule 27.2, and (b) give Performance Credits to BA, to the same extent as BA
would be required to give Performance Credits to Covad under this Schedule 27.2.
5. Appendix 1 sets out definitions for terms that are used in this Schedule
27.2. Except as clearly stated otherwise in a particular instance, these
definitions apply throughout this Schedule 27.2.
6. Covad agrees that the information contained in the Performance Reports and
the information contained in the Performance Statements is confidential and
proprietary to BA, and shall be used by Covad solely for internal performance
assessment purposes, for purposes of joint Covad and BA assessments of service
performance, and for reporting to the Commission, the FCC, or courts of
competent jurisdiction, under cover of an agreed-upon protective order, for the
sole purpose of enforcing BA's obligations under this Agreement. Covad shall not
otherwise disclose the information contained in the Performance Reports or
Performance Statements to third-persons.
7. BA shall provide Covad with access to the available data and information
necessary for Covad to verify the accuracy of the Performance Monitoring Reports
provided by BA to Covad. Covad agrees that such data and information is
confidential and proprietary to BA and shall be used by Covad solely for the
purpose of verifying the accuracy of the Performance Monitoring Reports. Covad
shall not disclose such data and information to third-persons. BA shall be
obligated to retain data and information for access by Covad under this Section
7 only for the period of time required by Applicable
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Laws.
8. In providing Performance Reports to Covad, providing Performance Statements
to Covad, providing Covad with access to data and information pursuant to
Section 7, above, and otherwise performing its obligations under this Schedule
27.2, BA shall not be obligated, and may decline, to disclose to Covad any
individually identifiable information pertaining to a person other than Covad,
including, but not limited to, any other carrier customer of BA or any retail
customer of BA.
9. The Parties acknowledge that this Schedule 27.2 is intended to implement
obligations of BA under the FCC's Memorandum Opinion and Order in "In the
Applications of NYNEX Corporation, Transferor, and Bell Atlantic Corporation,
Transferee, For Consent to Transfer Control of NYNEX Corporation and Its
Subsidiaries", File No. NSD-L-96-10, Released August 14, 1997. This Schedule
27.2 shall be interpreted and construed in a manner consistent with the FCC's
Memorandum Opinion and Order.
9
<PAGE>
SCHEDULE 27.2
APPENDIX 1
PERFORMANCE MONITORING REPORTS
1. OSS
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
OSS:
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time: Not Carrier Specific
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and
reservation
- --------------------------------------------------------------------------------
2. Availability of BA interface to OSS access: Not Carrier Specific
- --------------------------------------------------------------------------------
o % Interface Uptime(3)
- --------------------------------------------------------------------------------
- ----------
(3) This Schedule contemplates that measurements will be conducted in connection
with the use and/or operations of various BA systems (including, but not limited
to, ECG, EDI, WebGUI, and BA systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing). The Parties, through good faith
negotiation, shall amend this Schedule from time-to-time as necessary to conform
the Schedule to changes in, discontinuance of, or replacement of, BA systems.
Nothing in this Schedule shall be deemed to prevent BA from changing,
discontinuing or replacing any BA system or any version, issue or edition of a
BA system.
10
<PAGE>
2. UNBUNDLED NETWORK ELEMENTS ("UNE"):
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
- --------------------------------------------------------------------------------
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
11
<PAGE>
2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. - Dispatch
o % Missed Installation Appt. - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appt.
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
12
<PAGE>
2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Trouble Report Rate - Dispatch
o Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt - Dispatch
o % Missed Repair Appt - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Dispatch (Run
Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
13
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials
o Average Response Time - Rejects
o Mechanized (Flow Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
% Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
14
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed -No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
15
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) -
Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair (Run Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
16
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
17
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o a. Average Response Time: Firm Order
Confirmation
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
4. Reject Timeliness Manual Tracking
- --------------------------------------------------------------------------------
o a. Average Response Time: Rejects
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion Manual Tracking
(Requires Serial Number)
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
18
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Network Performance
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Blockage
- --------------------------------------------------------------------------------
19
<PAGE>
5. CLEC BILLING (All Services, Interconnection, UNE and Resale):
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Usage Feed
- --------------------------------------------------------------------------------
o Timeliness of Usage Information
o % Usage in 3 business days
- --------------------------------------------------------------------------------
o % Usage in 4 business days
o % Usage in 5 business days
o % Usage in 8 business days
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Bill Not Carrier Specific
- --------------------------------------------------------------------------------
20
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time:
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and reservation
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
21
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines):
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) - Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate - Total
o Network Trouble Report Rate - Dispatch
o Network Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Total (Run Clock)
o Mean Time to Repair - Dispatch (Run Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
22
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Trunks
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered FGD
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed FGD
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons) FGD
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities FGD
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days FGD
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate FGD
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock) FGD
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours FGD
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days FGD
- --------------------------------------------------------------------------------
19. % Common Final Trunk Blockage
- --------------------------------------------------------------------------------
23
<PAGE>
DEFINITIONS
The following definitions apply to the terms used in this Schedule 27.2.
Product Definitions:
- --------------------------------------------------------------------------------
Products: Definition:
- --------------------------------------------------------------------------------
o POTS services Retail and Resale POTS includes all non-designed
lines/circuits that originate at a customer's
premise and terminate on an OE (switch Office
Equipment). All others are considered specials.
POTS includes Centrex, Basic ISDN and PBX trunks.
- --------------------------------------------------------------------------------
UNE POTS includes Basic 2-Wire Analog Loop,
Customer specified signaling loops, Analog Line
Port, and Interim Number Portability. Includes
both new loops and "coordinated cutover" loop
orders. "Coordinated cutover" loops are orders
where a live customer is converted to a CLEC
re-using the outside plant facilities.
Coordination of all parties is necessary to
minimize disruption of service to the end user.
- --------------------------------------------------------------------------------
o Special Services Special Services ("Specials") are services or
elements that require design intervention. These
include such services/elements as: high capacity
services (DS1 or DS3), Primary rate ISDN, digital
services, private lines, multiplexing, and
Interoffice Facilities.
- --------------------------------------------------------------------------------
o Interconnection Trunks Includes switched local interconnection (message)
trunks carrying traffic between BA and CLEC
offices. Includes End Office and Tandem trunks.
- --------------------------------------------------------------------------------
o Number of Installation Total number of "N", "T", or "C" type orders.
Orders These orders include new orders, orders where the
service is moving to a different location, or
changes for existing service.
- --------------------------------------------------------------------------------
24
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Pre-Ordering: .
- --------------------------------------------------------------------------------
1. Response Time: Note: All Pre-Order measures are reported on an
aggregated basis and are not CLEC specific. Where
BA uses an access platform and Operations Support
System (OSS) that serve multiple states, BA may
combine measurement data from those states for
this measurement.
"Response time" is defined as the time, in
seconds, that elapses from issuance of a query
request to receipt of a response. For CLECs, this
performance is measured at the ECG access
platform. For BA, this performance is measured
directly to and from the Operations Support System
(OSS). (This measurement does not apply to the
WebGUI interface.)
Methodology: BA to sample ten (10) transactions
per hour per transaction type, for each interface,
from Monday to Friday, 8 a.m. to 5 p.m., via
Sentinel system. Sentinel will replicate the
transaction of a BA service representative going
directly to the OSS as well as a CLEC
representative going to the OSS through ECG.
- --------------------------------------------------------------------------------
o Customer Service Record Customer Service Records can range from 1 to about
200 pages.
BA may combine measurement data for PA and DE for
this measurement.
BA may combine measurement data for DC, MD, VA and
WV for this measurement.
- --------------------------------------------------------------------------------
o Other Pre-Order Includes the average response time for the
aggregate performance of the following: (1) due
date availability; (2) address validation; (3)
product & service availability; and, (4) telephone
number availability/reservation.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, WV) for this
measurement.
- --------------------------------------------------------------------------------
25
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
2. OSS Interface Note: All Pre-Order measures are reported on an
Availability aggregated basis and are not CLEC specific. Where
BA uses an access platform that serves multiple
states, BA may combine measurement data from those
states for this measurement.
Measures the percentage of time the OSS interface
is available compared to scheduled availability.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, (%) WV) for this
measurement.
- --------------------------------------------------------------------------------
Ordering:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Mechanized WebGUI4 receipt of a valid order request to EDI or
Orders WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that
flow-through to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Manual Orders WebGUI receipt of a valid order request to EDI or
WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of a
valid Access Service Request ("ASR") to
distribution of a Firm Order Confirmation ("FOC").
Hours exclude weekends and holidays. Includes
orders for less than 96 trunks for which
facilities are available. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
- ----------
(4) As of the effective date of this Agreement, BA's WebGUI may not be fully
available for use in the BA-South states (DE, DC, MD, NJ, PA, VA, WV).
Accordingly, references in this Schedule 27.2 to BA's WebGUI are to BA's WebGUI
when and to the extent it is available for use by [CLEC].
26
<PAGE>
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the Firm
Order Confirmations are sent more than ten (10)
days after receipt of a valid ASR. Days exclude
weekends and holidays. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
27
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
4. Reject Notice Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Mechanized WebGUI receipt of an order request to EDI or
WebGUI distribution of reject or query. Hours
exclude weekends and holidays. Includes orders
received via EDI or WebGUI that flow-through to
legacy OSS ordering and provisioning systems. Does
not include orders with negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Manual WebGUI receipt of a service request to EDI or
WebGUI distribution of reject or query. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of an
Access Service Request ("ASR") to distribution of
a reject or query. Hours exclude weekends and
holidays. Includes orders for less than 96 trunks
for which facilities are available. All ASRs must
be electronically transmitted for measurement to
apply. Does not include orders with negotiated
intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the
reject or query is sent more than 10 days after
receipt of an ASR. Days exclude weekends and
holidays. All ASRs must be electronically
transmitted for measurement to apply. Does not
include orders with negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
28
<PAGE>
- --------------------------------------------------------------------------------
5. % Rejects The percent of total orders received that are
rejected or queried by BA.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
6. Timeliness of Completion The average interval (in days) from work
Notification completion to the distribution of the order
completion notification. Under the current
process: UNE non-loop and Resale order completion
notifications are transmitted either
electronically via EDI or WebGUI or via FAX; for
UNE loop orders, measurement is from the turnover
of the loop to telephonic acceptance by the CLEC;
and, for Interconnection Trunks, measurement is
from work completion to telephonic acceptance by
the CLEC at turn-up. Does not include orders with
negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
7. % Flow Through Orders The percentage of valid orders received via EDI or
WebGUI and processed directly to legacy service
order processor without manual intervention.
Flow-Through measurements are reported on an
aggregated basis and not on a CLEC specific basis.
Where BA uses an access platform and OSS that
serve multiple states, BA may combine measurement
data from those states for this measurement.
- --------------------------------------------------------------------------------
Provisioning:
- --------------------------------------------------------------------------------
8. Average Interval - Average number of business days between order
Offered application date and committed due date. The
application date is the date that a valid service
request is received. For orders received after 12
Noon Eastern Time the next business day is
considered the application date. Includes "W"
coded orders only. Does not include an order with
a due date that is beyond the standard available
appointment interval. Does not include coordinated
cut-over orders.
- --------------------------------------------------------------------------------
29
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
9. Average Interval - Average number of business days between order
Completed application date and actual work completion date.
The application date is the date that a valid
service request is received. Completion date is
the field completion date noted on the Service
Order. Includes "W" coded orders only. Orders
completed late due to a CLEC or CLEC end user
caused delay are excluded from this performance
measure. Does not include an order with a due date
that is beyond the standard available appointment
interval.
- --------------------------------------------------------------------------------
10. % Completed within For POTS orders of 1 to 5 lines. The percentage of
5 business days - Total orders completed in 5 business days between order
application date and actual work completion date.
The application date is the date that a valid
service request is received. Includes "W" coded
orders only. Orders completed late due to a CLEC
or CLEC end user caused delay are excluded from
this performance measure. Does not include an
order with a due date that is beyond the standard
available appointment interval. Does not include
coordinated cut-over orders, such as loop or
number portability orders.
- --------------------------------------------------------------------------------
11. % Missed Installation Percentage of all orders completed for which there
Appointment - BA - Total was a missed installation appointment caused by
BA. Excludes missed installation appointments
caused by CLEC or end user, including required
access not available during appointment interval.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require the
Appointment - Dispatch assignment of loop facilities, switching
office equipment, or both.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require
Appointment - No switching translations work only. These
Dispatch are primarily "feature orders".
- --------------------------------------------------------------------------------
12. % Missed Installation Percentage of all orders completed for which there
Appointment - Facilities was a missed installation appointment due to lack
of BA facilities.
- --------------------------------------------------------------------------------
30
<PAGE>
- --------------------------------------------------------------------------------
13. % Installation Troubles Percentage of lines/circuits/trunks ordered for
within 30 Days which a Network Trouble (Disposition Codes, 3, 4
and 5) is reported and found within 30 days of
order completion. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), and troubles closed due to
customer action. Trouble reports on unregulated
services, such as Voice Messaging, are excluded.
- --------------------------------------------------------------------------------
31
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Maintenance:
- --------------------------------------------------------------------------------
14. Network Trouble Report Total Initial Customer direct or referred Troubles
Rate reported on services by customer, where the
trouble disposition was found to be a network
problem (Disposition Codes 3, 4 and 5), per 100
lines/circuits/trunks in service. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Codes 3 (Drop Wire) and
Dispatch 4 (Outside Plant) only. Troubles found to be in
the Outside Plant facilities.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Code 5 (Central Office)
No Dispatch only. Troubles found to be within the Central
Office, including translation troubles.
- --------------------------------------------------------------------------------
15. % Missed Repair The percentage of Initial Network Trouble Reports
Appointments (Disposition Codes 3, 4 and 5) that are not
repaired and cleared by the time committed.
Excludes subsequent reports (additional customer
calls while the trouble is pending), Customer
Provided Equipment (CPE) troubles, troubles
reported but not found (Found OK and Test OK), and
troubles closed due to customer action. Also
excludes missed repair appointments caused by CLEC
or end user, including required access not
available during appointment interval. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch was
Appointment - Dispatch required outside of the BA Central Office and the
trouble was found in Outside Plant (Disposition
Codes 3 and 4). Troubles where there was both an
inside and an outside dispatch are included if the
final resolution was a loop trouble.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch may
Appointment - No have been required outside of the BA Central
Dispatch Office, but the trouble was resolved within the
Central Office. Includes translation type troubles
as well as Central Office type troubles.
- --------------------------------------------------------------------------------
32
<PAGE>
- --------------------------------------------------------------------------------
16. Mean Time to Repair For Initial Customer Trouble Reports found to be
network troubles (Disposition Codes 3, 4 and 5),
the average duration time from trouble receipt to
trouble clearance. Running clock for POTS
troubles. Stop Clock for Specials troubles and
Interconnection Trunk troubles. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
17. % Out of Service Network troubles (Disposition Codes 3, 4 and 5)
[greater than] 24 Hours out of service, repaired and cleared more than 24
hours after receipt of a customer trouble report,
as a percentage of total network troubles
(Disposition Codes 3, 4 and 5) out of service. Out
of Service means that there is no dial tone, the
customer cannot call out, or the customer cannot
be called. The Out of Service period commences
when the trouble is entered into BA's designated
trouble reporting interface either directly by the
CLEC or by a BA representative upon notification
by the CLEC. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), troubles closed due to customer
action, and troubles not out of service. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
Key Service Quality Measurement Definitions:
33
<PAGE>
- --------------------------------------------------------------------------------
18. % Repeat Trouble The percentage of network troubles (Disposition
Reports within 30 days Codes 3, 4 and 5) cleared that have an additional
trouble within thirty (30) days for which a
network trouble (Disposition Codes 3, 4 and 5) is
found. A "Repeat Trouble Report" is a trouble on
the same line/circuit/trunk as a previous trouble
reported within the last thirty (30) calendar
days. A trouble report is not treated as a "Repeat
Trouble Report" where the original trouble report
was: trouble that had an originating disposition
code of CPE (customer premises
equipment--disposition codes 12 and 13); trouble
that had an originating disposition code of
Customer Action (disposition code 6); or, trouble
that originally closed as a Front End Close-Out. A
trouble report is also not treated as a "Repeat
Trouble Report" where the repeat report is: a
subsequent report (an additional customer call
while the trouble is pending); customer provided
equipment (CPE) trouble; trouble reported but not
found (Found OK and Test OK); or, trouble closed
due to customer action.
- --------------------------------------------------------------------------------
Network Performance:
- --------------------------------------------------------------------------------
19. % Common Final Trunk Measures the percentage of BA Common Final Trunk
Blockage Groups that exceed the applicable blocking design
threshold (either B.01 or B.005).
Common Final Trunks: Common Final Trunks carry
local traffic between BA end offices and the BA
Tandem and between BA end offices.
Does not include Common Final Trunks carrying only
IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA trunk
groups exceeding the applicable blocking design
threshold (either B.01 or B.005) will be reported.
For B.01 design, this is trunk groups exceeding a
threshold of about 3% blocking. For B.005 design,
this is trunk groups exceeding a threshold of
about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
- --------------------------------------------------------------------------------
34
<PAGE>
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Measures the percentage of BA Dedicated Final
Blockage Trunk Groups that exceed the applicable blocking
design threshold (either B.01 or B.005).
Dedicated Final Trunks: Dedicated final trunk
groups carry local traffic from a BA Access Tandem
to a CLEC switch. A dedicated final trunk group
does not overflow.
Does not include IXC dedicated trunks or Dedicated
Final Trunks carrying only IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA to CLEC
dedicated final trunk groups exceeding the
applicable blocking design (either B.01 or B.005)
will be reported. For B.01 design, this is trunk
groups exceeding a threshold of about 3% blocking.
For B.005 design, this is trunk groups exceeding a
threshold of about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
35
<PAGE>
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Measures the number of business days from the
Usage Feed creation of the message to the date that the usage
information is made available to the CLEC on the
daily usage feed. Measured in percentage of usage
records available for transmission in 3, 4, 5, and
8 business days. The measurement includes both UNE
and Resale.
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Measures the percentage of carrier bills ready for
Bill distribution to the carriers within 10 business
days of the bill date. Includes mechanized and
paper carrier CABS bills for both carrier access
and CLECs. Does not include summary bills sent
from CRIS. This is an aggregate measurement and
not CLEC specific.
- --------------------------------------------------------------------------------
36
<PAGE>
SCHEDULE 27.2
APPENDIX 2
PERFORMANCE METRICS, STANDARDS AND REMEDIES
A. Unbundled Network Elements
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(UNE KSQM 13)(5) Parity
- ----------
(5) "(UNE KSQM 13)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Metric.
37
<PAGE>
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(UNE KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair - Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair - No Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
B. Resale Services
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - No Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (Specials)
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - No Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
38
<PAGE>
- --------------------------------------------------------------------------------
Average Interval Completed (Specials)
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair (POTS)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
C. Interconnection Trunks
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
FOC Timeliness [greater than or equal
(Network Interconnection Trunks {"IT"} KSQM 3.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Rejects Timeliness [greater than or equal
(IT KSQM 4.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Average Interval Offered
(IT KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed
(IT KSQM 9) Parity
- --------------------------------------------------------------------------------
D. Network Performance
1. Final Trunk Group Blocking
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Dedicated Final Trunk Group Blockage (CLEC Trunks) Standard, as
(IT KSQM 20) applicable)
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Common Final Trunk Group Blockage (Retail Trunks) Standard, as
(IT KSQM 19) applicable)
- --------------------------------------------------------------------------------
39
<PAGE>
Parity
"Parity" will be determined in accordance with the statistical methodology set
forth in Appendix 4, "Statistical Methodology for Determining 'Parity' Range".
"Parity" for UNE and Resale Services will be based upon a comparison of BA's
performance for the above Performance Metrics with BA's performance for the
appropriate corresponding Retail measurements set forth in Appendix 1, or, in
the absence of appropriate corresponding Retail measurements set forth in
Appendix 1, Retail measurements as reasonably determined and provided by BA.
Definitions, Conditions, Requirements & Exclusions for Appendix 2
See, "UNE Definitions, Conditions, Requirements & Exclusions", "Resale
Definitions, Conditions, Requirements & Exclusions", "Interconnection Trunk
Definitions, Conditions, Requirements & Exclusions", and "Billing Definitions,
Conditions, Requirements & Exclusions", in Appendix 3, which are incorporated
here by reference. As used in this Appendix 2, references to Performance
Measurements in "UNE Definitions, Conditions, Requirements & Exclusions",
"Resale Definitions, Conditions, Requirements & Exclusions", "Interconnection
Trunk Definitions, Conditions, Requirements & Exclusions", and "Billing
Definitions, Conditions, Requirements & Exclusions", in Appendix 3, shall be
deemed to be references to Performance Metrics.
Resale Services
1. Ordering and Provisioning. Average Interval Offered and Average Interval
Completed Performance Measurements do not include orders with negotiated
intervals.
Interconnection Trunks
1. FOC and Rejects measurements apply only to electronically received ASRs.
2. FOC and Rejects measurements apply only to additions to existing trunk
groups, adding less than 96 trunks, with no routing or translations changes.
3. Average Interval Offered measurement comparison is to IXC Feature Group D
switched access trunks provided by BA to IXCs.
4. Average Interval Offered measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
5. Average Interval Completed comparison is to IXC Feature Group D switched
access trunks provided by BA to IXCs.
6. Average Interval Completed measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
40
<PAGE>
SCHEDULE 27.2
APPENDIX 3
PERFORMANCE MEASURMENTS, STANDARDS AND REMEDIES
A. Operational Support Systems
1. Performance Category 1 -- OSS Pre-Order Response Time and Availability
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Customer Service [greater than] 7.0 to 8.5 [less than]
Records 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.a)(6) difference difference difference
- -------------------------------------------------------------------------------------
</TABLE>
- ----------
(6) "(OSS KSQM 1)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Measurement.
41
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Aggregated Other [greater than] 7.0 to 8.5 [less than]
Pre-Order Transactions 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.b) difference difference difference
- -------------------------------------------------------------------------------------
Access Platform Availability (1) [less than] 99 % [greater than
(OSS KSQM 2) Availability or equal to] 99%
Availability
- -------------------------------------------------------------------------------------
</TABLE>
(1) Excludes (a) scheduled maintenance and (b) unavailability of Operations
Support Systems (e.g., BOSS, Livewire) other than the access platform.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 to -2 points = 1 % of OSS Charges for the Measured Calendar Quarter
-3 points = 2 % of OSS Charges for the Measured Calendar Quarter
42
<PAGE>
OSS Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Response Time:
1. Performance Measurements and Performance Credits apply only to use of the ECG
gateway or such successor OSS gateway as shall be implemented and designated for
measurement under this Performance Category by BA.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
3. Performance Measurements apply only to CSR Retrieval and Aggregated Other
Pre-Order Transactions. Aggregated Other Pre-Order Transactions will initially
include Telephone Number Availability and Reservation, and Address Validation.
Product & Service Availability Information and Due Date Availability will be
added in the future.
4. Covad shall provide to BA forecasts of volumes at least six (6) months prior
to the commencement of the measured calendar quarter. Forecasts for UNE and
Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. Forecasts for Interconnection Trunk volumes (including both number of
orders to be submitted and number of items of service to be ordered) shall be
submitted by Covad either (a) for each month or (b) for each quarter, in which
case the quarterly volume will be pro-rated to a monthly volume. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in timely submitted forecasts by more than 15%
(plus or minus), BA may exclude that month from consideration in calculating
Performance Measurements and Performance Credits and determining whether BA is
obligated to take investigative or corrective action under Section 3.3. If Covad
fails to timely provide the forecasts of volumes to BA, BA may exclude
Performance Category 1 and the Performance Measurements in Category 1 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(7)
- ----------
(7) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
43
<PAGE>
all transactions for that day will be deemed to have at least met "Equals
Standard" ("O" Points).
6. These Performance Measurements are not carrier specific.
Access Platform Availability:
1. This Performance Measurement is not carrier specific. This Performance
Measurement measures the overall availability performance of the OSS access
platform and is not service or function specific.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
44
<PAGE>
B. Unbundled Network Elements:
1. Performance Category 2 - UNE Ordering and Provisioning: (8)
- ----------
(8) "Performance Category 2 - UNE Ordering and Provisioning" does not include
measurement of Provisioning (measurement of Missed Installation Appointments)
for new 2 - Wire ISDN Digital Grade ULLs (BRI ISDN).
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order confirmation
(1) Orders received after 12:00 Noon Eastern Time shall have the "clock" start
at 8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 to -3 points = 5 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -4 to -5 points = 10 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -6 to -7 points = 15 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
45
<PAGE>
(1) Missed Installation Factor = (Missed Installation Appointments for UNE POTS
and Specials provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for UNE POTS and Specials provided by BA
to Covad for the measured calendar quarter) - (Missed Installation Appointments
for POTS and Specials provided by BA to BA retail customers for the measured
calendar quarter as a percentage of Installation Appointments for POTS and
Specials provided by BA to BA retail customers for the measured calendar
quarter).
If more than 10% of Covad's orders are rejected or queried by BA, (9) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
- ----------
(9) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
46
<PAGE>
2. Category 3 - Provisioning of 2-Wire ISDN Digital Grade ULLs (BRI ISDN) (10)
This section applies to missed installation appointments for orders of new(11)
2-Wire ISDN Digital Grade ULLs (BRI ISDN) as described in Section 11.2.3 of this
Agreement.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - No Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding BA
retail measurements for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN).
- ----------
(10) BA is currently developing the means to perform the Performance
Measurements listed in this Category 3. BA will take commercially reasonable
efforts to implement performance of these Performance Measurements within a
reasonable period of time. Until BA has implemented its performance of the
Performance Measurements listed in this Performance Category 3, Performance
Category 3 will not apply and BA will not have an obligation to take
investigative or corrective action pursuant to Section 3.3 with regard to the
Performance Measurements listed in Category 3 or to calculate or provide
Performance Credits pursuant to Category 3.
(11) This section does not apply to the cutover of existing 2-Wire ISDN Digital
Grade loops from BA to Covad.
47
<PAGE>
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 point = 2.5 % of Non-Recurring Charges for orders of new 2-Wire
ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
-2 = 5 % of Non-Recurring Charges for orders of new 2-Wire ISDN
Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for orders of
new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter as a percentage of Installation Appointments for
orders of new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad
for the measured calendar quarter) - (Missed Installation Appointments for
orders of new 2-Wire ISDN Digital Grade lines (BRI ISDN) provided by BA to BA
retail customers for the measured calendar quarter as a percentage of
Installation Appointments for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN) provided by BA to BA retail customers for the measured calendar quarter).
48
<PAGE>
3. Performance Category 4 - UNE Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(UNE KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 2 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-2 points = 4 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-3 points = 6 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
(1) Lines Out of Service Factor = (Percentage of Covad UNE POTS and Specials
lines network troubles out of service [greater than] 24 hours - Percentage of BA
retail customer POTS and Specials lines network troubles out of service [greater
than] 24 hours) x (Covad UNE POTS and Specials lines with network troubles out
of service [greater than] 24 hours, as a percentage of the measured calendar
quarter average total Covad UNE POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair/maintenance function, mutual responsibilities exist. The
responsibility for testing unbundled loops and the identification of a required
dispatch for UNE reside with Covad. Reductions
49
<PAGE>
will be made in the Performance Credit if necessary access is not available, or
if a dispatch is made and no trouble is found,(12) or if trouble is found to be
on the Covad customer's side of the network demarcation point (e.g., in premises
wiring or customer premises equipment), at a statistically higher rate than BA
experiences for BA's own retail customers.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
% No Access Moderate to Parity (1) Moderate to
High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
% Found OK or Trouble Found on Moderate to Parity (1) Moderate to
Customer Premises High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(12) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
50
<PAGE>
UNE Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Unbundled Switching Network Elements are included for measurement after the
establishment of unbundled switching in the switch through the joint
planning/services establishment process.
2. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all UNE
ordering which can be performed via EDI; or, (b) BA's WebGUI is in place and
being used by Covad for all UNE ordering which can be performed via BA's WebGUI.
Covad must implement later specifications of EDI and later versions of WebGUI
within 90 days (or such other shorter period as may be required by this
Agreement) after BA has made them available for Covad's use.
3. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
4. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(13) all
transactions for that day will be deemed to have at least met "Equals Standard"
("O" Points).
- ----------
(13) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
51
<PAGE>
5. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(14) or Covad's customers (including, but not limited to, inability to
access customer interfaces and terminals).
2. If the Expedited Due Dates(15) for UNEs covered by Performance Category 2 for
any one month in a measured calendar quarter exceed 10% of the total
appointments for such UNEs for that month, BA will not be obligated to calculate
Performance Category 2 for that month, or the Performance Measurements in
Performance Category 2 for that month, and may exclude Performance Category 2
for that month, and the Performance Measurements in Performance Category 2 for
that month, from calculation of Performance Credits and from taking
investigative and corrective action under Section 3.3.
If the Expedited Due Dates for UNEs covered by Performance Category 3 for any
one month in a measured calendar quarter exceed 10% of the total appointments
for such UNEs for that month, BA will not be obligated to calculate Performance
Category 3 for that month, or the Performance Measurements in Performance
Category 3 for that month, and may exclude Performance Category 3 for that
month, and the Performance Measurements in Performance Category 3 for that
month, from calculation of Performance Credits and from taking investigative and
corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
a. Loop Orders:
(i) ANI to Covad telephone number, verification successful from
DEMARC by BA field technician.
(ii) All order information submitted by Covad was valid, accurate
and complete (e.g., street address, end user local contact (LCON),
floor/unit number, appropriate Covad transmission equipment
assignment information).
(iii) Covad and Covad's customer were available and ready for
service at appointed date and time.
(iv) Verifiable Covad dial tone and correct Covad telephone number
at POT bay testable by BA technician, by 8:00 a.m. on the date due
minus one (1) day.
- ----------
(14) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(15) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
52
<PAGE>
(v) Accurate account and end user information was submitted on the
service request.
(vi) Orders were completed as submitted without cancellation after
Order Confirmation.
(vii) Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
(viii) For ISDN loops, copper ISDN loops are available that, without
conditioning, meet BA's technical specifications for ISDN loops.
4. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude the
Missed Installation Appointments Performance Measurements for that month from
the calculation of calendar quarter Performance Measurements and Performance
Credits.
6. Performance Measurement calculations for provisioning will exclude UNEs
provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. UNE loops that meet the standards identified in appropriate BA unbundled loop
Technical References will not be treated as Out of Service.
4. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
53
<PAGE>
5. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
54
<PAGE>
C. Resale Services:
1. Performance Category 5 - Resale Services Ordering and Provisioning:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order Confirmation
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- -1 to -3 points = 5 % of Resale Services Non-Recurring Charges for Covad for the
measured calendar quarter multiplied by the Missed Installation Factor(1)
-4 to -5 points = 10 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
55
<PAGE>
-6 to -7 points = 15 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for Resale
Services provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for Resale Services provided by BA to
Covad for the measured calendar quarter) - (Missed Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter as a percentage of Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter).
If more than 10% of Covad's orders are rejected or queried by BA,(16) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
2. Performance Category 6 - Resale Services Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(Resale KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding
Retail measurements set forth in Appendix 1, or, in the absence of appropriate
corresponding Retail measurements set forth in Appendix 1, Retail measurements
to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- ----------
(16) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
56
<PAGE>
-1 point = 2 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -2 points = 4 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -3 points = 6 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
(1) Lines Out of Service Factor = (Percentage of Covad Resale Services POTS and
Specials lines network troubles out of service [greater than] 24 hours -
Percentage of BA retail customer POTS and Specials lines network troubles out of
service [greater than] 24 hours) x (Covad Resale Services POTS and Specials
lines with network troubles out of service [greater than] 24 hours, as a
percentage of the measured calendar quarter average total Covad Resale Services
POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair function, mutual responsibilities exist. The responsibility for
authorizing a dispatch resides with Covad. Reductions will be made in the
Performance Credit if necessary access is not available, or if a dispatch is
made and no trouble is found,17 or if trouble is found to be on the Covad
customer's side of the network demarcation point (e.g., in premises wiring or
customer premises equipment), at a statistically higher rate than the same
performance that BA experiences for BA's own retail customers.
- --------------------------------------------------------------------------------
Equals
Measurement Misses Standard Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
% No Access Rate Moderate to High Parity (1) Moderate to High
probability less than probability better
Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
% Found OK or Trouble Moderate to High Parity (1) Moderate to High
Found on Customer probability less than probability better
Premises Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(17) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
57
<PAGE>
Resale Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all Resale
Services ordering which can be performed via EDI; or, (b) BA's WebGUI is in
place and being used by Covad for all Resale Services ordering which can be
performed via BA's WebGUI. Covad must implement later specifications of EDI and
later versions of WebGUI within 90 days (or such other shorter period as may be
required by this Agreement) after BA has made them available for Covad's use.
2. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
3. When Covad submitted work load for any one hour in a day is more than twice
(2x) the daily average hour Covad submitted work load,(18) all transactions for
that day will be deemed to have at least met "Equals Standard" ("O" Points).
4. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
- ----------
(18) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
58
<PAGE>
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(19) or Covad's customers (including, but not limited to, inability to
access interfaces and terminals).
2. If the Expedited Due Dates(20) for any one month in a measured calendar
quarter exceed 10% of the total appointments for that month, BA will not be
obligated to calculate Performance Category 5 for that month, or the Performance
Measurements in Performance Category 5 for that month, and may exclude
Performance Category 5 for that month, and the Performance Measurements in
Performance Category 5 for that month, from calculation of Performance Credits
and from taking investigative or corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
(a) All order information submitted by Covad was valid (e.g., street
address, end user local contact (LCON), Floor/unit number).
(b) Covad and Covad's customer were available and ready for service at the
appointed date and time. Access to Terminal Equipment was available.
(c) Accurate account and customer information was submitted by Covad.
(d) Orders were completed as submitted without cancellation after Order
Confirmation.
(e) Covad and Covad's customer were available for testing and cooperative
coordination as requested by BA.
4. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude
Missed Installation Appointment Performance Measurements for that month from the
calculation of calendar quarter Performance Measurements and Performance
Credits.
- ----------
(19) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(20) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
59
<PAGE>
6. Performance Measurement calculations for provisioning will exclude Resale
Services provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
4. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
60
<PAGE>
D. Interconnection Trunks
1. Performance Category 7 - Interconnection Trunk Provisioning
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
-1 Point 0 Points + 1 Point
- --------------------------------------------------------------------------------
Provisioning - Missed Moderate to Parity(2) Moderate to
Installation Appointments(1) High High
(IT KSQM 11) probability probability
less than better than
Parity(2) Parity(2)
- --------------------------------------------------------------------------------
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score Credit Applied to
----- ------ ----------
0 or greater No Performance Credits
-1 point 10 % Trunk Non-Recurring Charges for
Covad for the measured calendar
quarter
multiplied by the Missed
Installation Factor(3)
(3) Missed Installation Factor = (Missed Covad Trunk Installation Appointments
for the measured calendar quarter as a percentage of Covad Trunk Installation
Appointments for the measured calendar quarter) - (Missed Installation
Appointments for BA IXC Feature Group D Trunks for the measured calendar quarter
as a percentage of BA IXC Feature Group D Trunk Installation Appointments for
the measured calendar quarter).
Adjustment of Performance Credit:
In the provisioning function, mutual responsibilities exist. In addition to
trunks provided by BA to Covad, Covad will provide trunks to BA. If the
percentage of Missed Appointments for trunks ordered by BA from Covad exceeds
the percentage of missed appointments for trunks ordered by Covad from BA
performance, the Performance Credit will be reduced as stated below. (The
percentage missed appointment calculation comparison requires a minimum sample
size of 50 trunks on both sides to be valid.) Covad shall maintain due date
intervals for trunks to be provided by Covad to BA that are no
61
<PAGE>
longer than BA's due date intervals for comparable trunks.
Trunks Ordered by BA from Covad
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Measurement 100% reduction in Credit 50% Reduction in Credit
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Provisioning of Trunks for BA by Covad - Missed [greater than] 5 percentage points [greater than] 2 but [less than
Installation Appointments: worse than BA Performance or equal to] 5 percentage points
worse than BA Performance
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
2. Performance Category 8 - Interconnection Trunk Maintenance and Repair
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Performance Misses Standard Equals Standard Exceeds Standard
Measurement - 1 point 0 points + 1 point
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Out of Service [greater than] 24 Hours Moderate to High Parity(1) Moderate to High
(IT KSQM 17) probability less than probability better
Parity(1) than Parity(1)
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score % Credit Applied to
----- -------- ----------
0 or greater No Performance Credits
-1 point $ 1.00 Per DS1 Trunk per Day out Lines Out of Service Factor
of service
(1) Lines Out of Service Factor = (Percentage of Covad Interconnection Trunks
network troubles out of service [greater than] 24 hours - Percentage of BA IXC
Feature Group D Trunks network troubles out of service [greater than] 24 hours)
x (Covad Interconnection Trunks with network troubles out of service [greater
than] 24 hours, as a percentage of the measured calendar quarter average total
Covad Interconnection Trunks in service).
62
<PAGE>
Interconnection Trunk Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Provisioning:
1. Performance Measurement calculations for provisioning will be performed only
if for the measured calendar quarter a minimum of 50 trunks was installed by BA
for Covad and a minimum of 100 IXC Feature Group D trunks was installed by BA
for IXCs.
2. Orders must be received electronically, using a BA supported version of BA's
electronic Access Service Request System.
3. Performance Measurement calculations for provisioning will exclude trunks
provided pursuant to negotiated installation intervals.
4. Performance Measurement calculations for provisioning will be based on
comparisons by trunk type (e.g., DS0 with DS0, DS1 with DS1).
5. Covad shall provide to BA forecasts of Interconnection Trunk volumes at least
six (6) months prior to the commencement of the measured calendar quarter.
Forecasts for Interconnection Trunk volumes (including both number of orders to
be submitted and number of items of service to be ordered) shall be submitted by
Covad either (a) for each month or (b) for each quarter, in which case the
quarterly volume will be pro-rated to a monthly volume. If submission volumes
for any one month in a measured calendar quarter vary from forecasted volumes
for such month stated in submitted forecasts by more than 15% (plus or minus),
BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide the forecasts of volumes to BA, BA may exclude Performance
Category 7 and the Performance Measurements in Category 7 from calculation of
Performance Credits and from taking investigative or corrective action under
Section 3.3.
6. Covad Missed Installation Appointments do not include:
a. Installation Appointments missed or rescheduled due to the delay,
act or omission of Covad, Covad's contractors or vendors,(21) or
Covad's customers.
b. Missed Installation Appointments for Covad installations being made
to rehome trunks or for network grooming.
- ----------
(21) For the purposes of Paragraph 6, above, the phrase "Covad's contractors or
vendors" does not include BA.
63
<PAGE>
7. Covad Missed Installation Appointments will be included in the computation
only if they result in a blockage of traffic that is in excess of standard
design blocking thresholds and that is identified and reported to BA by Covad.
8. Covad Missed Installation Appointments will be included in the computation
only if:
a. All order information submitted by Covad was valid.
b. Covad was prepared to accept the installation of service at the
scheduled time.
c. Orders were completed as submitted without cancellation after order
confirmation.
d. Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
9. Covad Missed Installation Appointments include only missed installation
appointments for interconnection trunks used one-way.
Maintenance:
1. This Performance Category will be measured no earlier than completion of the
WFA inventory for Covad and BA trunks and validation of applicable field
procedures.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 04 (Outside Plant) and 05 (Inside Central Office).
3. Applies only to trunks used as per applicable technical specifications.
4. Covad trunks will be included in the computation only if Covad was available
for testing and cooperative coordination if requested by BA.
5. Applies only to trunks where blockage exceeding standard design blocking
thresholds has been identified and reported by Covad.
6. Applies only to interconnection trunks used one-way.
64
<PAGE>
E. Billing
1. Performance Category 9 - Timeliness of Daily Usage Feed ("DUF") for UNE
Switching and Resale Services
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Timeliness of Daily [less than] 90% of 90% to 95% of [greater than] 95% of
Usage Feed recorded call events recorded call events recorded call events
(CLEC Billing KSQM 21) in 5 Business Days in 5 Business Days in 5 Business Days
- ---------------------------------------------------------------------------------------------------
</TABLE>
Calculation of Performance Credit
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 0.25 % of DUF Charges (for UNE Switching and Resale Services)
for Covad for the measured calendar quarter.
Billing Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
1. UNE usage (Daily Usage Feed) information is limited to only Unbundled
Switching. Measurement with regard to Unbundled Switching will begin no earlier
than 4/1/98.
2. Excluded are delays or failures to provide information provided by third
parties.
3. Excluded are delays or failures to provide information where the cause of the
delay or failure also affects BA's ability to collect and utilize information
for itself.
4. Measurement will be made for lines that have been equipped at Covad's request
to collect daily usage feed information.
65
<PAGE>
SCHEDULE 27.2
APPENDIX 4
STATISTICAL METHODOLOGY FOR DETERMINING "PARITY" RANGE
1. For Performance measures where the measure is a yes or no on each measured
item: (e.g., % met or not met):
Measurement Objective:
To determine if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
The following methodology applies to service in which in each instance of its
provision, the outcome can be categorized as a success or a failure (e.g., was
the appointment missed, was a customer's line out of service for more than 24
hours, etc.).
Now, let xij = the ith customers score on service; where
xij = 0 if the outcome is categorized as a success
xij = 1 if the outcome is categorized as a failure
More specifically, let
(SIGMA) x1ij = the number of Covad customers' instances of service
categorized as a failure
The standard of service against which the instances of service to Covad's
customers will be compared is the average of that provided by BA to its own
customers, viz.
P0j = (SIGMA) x0ij where N0j is the number of instances of provision
------------ of service j to BA's customers
N0j
The service index calculated for Covad for service j and which will be compared
against the service standard Poj is given by:
P1j = (SIGMA) x1ij where N1j is the number of instances of provision
------------ of service j to Covad's customers
N1j
It is assumed that N0j will be large relative to N1j ; and that N1j may in fact,
for certain j, be small.
The assumption can be made that the N1j constitutes a sample taken from a larger
population comprised
66
<PAGE>
of N0j ; i.e., instances of service provision like those provided to BA
customers. In this case the N1j are not technically a subset (i.e., sample) of
N0j. But for the purposes of the model we assume that if Covad customers are
being treated the same as BA customers, then the distribution of the x0ij and
the x1ij; should be identical, hence our viewing N1j as a sample of N0j.
If such an assumption is correct then the value P1j should be similar to the
value P0j. If it is not correct, then the two values would be expected to be
different with the magnitude of the difference reflecting how different the two
populations are, and by implication, how different the service level to each.
The question that arises is how close must P1j and P0j be to conclude that the
two populations received similar levels of service and how different must they
be to conclude they did not.
If we assume N1j is a sample taken from a universe identical to the BA universe,
then it is possible to derive the distribution of possible values of P1j that
could occur when drawing a sample of size N1j from such a universe. If N1j is
adequately large, (viz., if N1j is greater than 30) these values will follow a
normal distribution and have:
Expected value = E (x) = N1j x P0j
and
the Variance = Var (x) = N1j x P0j (1-P0j)
If the CLEC population is in fact identical (or very nearly so) to the BA
population, then most values of P1j would lie close to P0j, and if the
populations were not identical than most values of P1j would lie further from
P0j with the magnitude of the differences reflecting how different the two
underlying populations are and, by implication, how different the level of
service provided the two populations.
It is possible to evaluate how likely it is that the N0j and the N1j instances
of service are, on average, the same by evaluating how likely it would be by
chance alone to observe a difference as large as the one in fact observed, viz.
P0j - P1j.
67
<PAGE>
The procedure for performing this evaluation is as follows:
1. Calculate the BA service standard for service j as follows:
P0j = (SIGMA) x0ij
------------
N0j
2. Calculate the level of service provided to Covad as follows:
P1j = (SIGMA) x1ij
------------
N1j
3. Calculate an index of service level comparability, z, as follows:
z = (P0j-P1j)/[square root](P0j(1-P0j)/N1j)
4. Evaluate the probability of similar or dissimilar services for BA and CLEC
customers as follows:
[less than] -0.83 o Probability is moderate to high that Covad customers are
("Misses more poorly served than BA customers.
Standard")
- -0.83 to 0.83 o Probability is weak that Covad customers are more poorly
("Parity") served than BA customers, or the probability is high
that Covad customers are served the same as BA
("Equals customers, or the probability is weak that Covad
Standard") customers are better served than BA customers.
[greater than] 0.83 o Probability is moderate to high that Covad customers are
("Exceeds better served than BA customers.
Standard")
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 1 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 1 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses
68
<PAGE>
Standard") if the result is [less than] -0.83 ("Probability is moderate to high
that Covad customers are more poorly served than BA customers"); (b) to have
equaled or met the "Parity" standard ("Equals Standard") if the result is -0.83
to 0.83 (i.e., "Probability is weak that Covad customers are more poorly served
than BA customers, or the probability is high that Covad customers are served
the same as BA customers, or the probability is weak that Covad customers are
better served than BA customers"); or, (c) to have exceeded the "Parity"
standard ("Exceeds Standard") if the result is [greater than] 0.83 ("Probability
is moderate to high that Covad customers are better served than BA customers").
69
<PAGE>
2. For Performance measures where the measure is a variable measure: (e.g.,
cycle time):
Measurement Objective:
To determine, for those services for which performance level is measured as an
elapsed time, if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
Methodology:
The following methodology applies to service in which in each instance of its
provision, the outcome is represented as a measurement of an interval of time
(e.g., 10 minutes, 2.5 hours, 3.5 days, etc.). For example, "time to restore
service."
Define the variable X, as duration of interval being measured (e.g., time to
restore service in hours)
Now, let Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
xij = BA's ith customer's score on service j i = 1,2,3...Nj
x'ij = Covad's ith customer's score on service j i = 1,2,3...nj
1. Calculate the average duration for service j for all Bell Atlantic customers
as follows:
Average duration of BA customers = [GRAPHIC OMITTED]
2. Calculate the standard deviation of the duration scores on service j for all
BA customers as follows:
Standard deviation of BA customer's scores = [GRAPHIC OMITTED]
70
<PAGE>
3. Calculate the average duration for service j for all Covad customers as
follows:
Average duration of Covad customers = [GRAPHIC OMITTED]
4. Calculate an Index of parity:
Having determined the following values:
Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
[GRAPHIC OMITTED] = the average duration for all BA customers
[GRAPHIC OMITTED] = the standard deviation of duration scores for all BA
customers
[GRAPHIC OMITTED] = the average duration for all Covad customers
Derive an index of parity as follows:
Index of Parity = [GRAPHIC OMITTED]
where values of the index less than 0.0 indicate Covad customers are being
serviced on average with less delay (i.e., better) than BA customers, values of
the index greater than 0.0 indicate Covad customers are being serviced on
average with more delay (i.e., worse) than BA customers,
and
where greater absolute values of the index, t, indicate increasingly less
likelihood that the observed differences between Covad and BA customers' is due
to chance variation, or what is called sampling error, and greater likelihood
the difference is due to other than chance factors.
5. Interpret the Index of Parity by referring to the Parity Translation Table
and following these steps:
a. Note the value of nj as determined previously, and calculate the
value nj-1
b. Locate the value of nj-1 in the first column of the parity index
translation table
c. Inspect the ranges of values of t in the row of the table
corresponding to your value of nj-1, locating the range containing
the value of t corresponding to the one you calculated.
d. Look at the top of the column containing the value of t
corresponding to the one you
71
<PAGE>
calculated and read the interpretation of the calculated index.
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 2 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 2 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses Standard") if the result as shown on the Parity Translation
Table is "Probability that CLEC customers Serviced worse than BA's Customers is
High" or "Probability that CLEC customers Serviced worse than BA's Customers is
Moderate"; (b) to have equaled or met the "Parity" standard ("Equals Standard")
if the result as shown on the Parity Translation Table is "Probability that CLEC
customers Serviced worse than BA's Customers is Weak", "Probability CLEC & BA
Customers Serviced the Same is High", or "Probability that CLEC Customers
Serviced Better than BA's Customers is Weak"; or, (c) to have exceeded the
"Parity" standard ("Exceeds Standard") if the result as shown on the Parity
Translation Table is "Probability CLEC Customers Serviced Better than BA's
Customers is Moderate" or "Probability that CLEC Customers Serviced Better than
BA's Customers is High").
72
<PAGE>
Parity Translation Table
73
<PAGE>
Exhibit A
BELL ATLANTIC -WASHINGTON, D.C., INC. AND COVAD
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
<TABLE>
<CAPTION>
A. BA Services, Facilities, and Arrangements:
- -------------------------------------------------------------------------------------------------------------------------------
BA Service Non-Recurring Recurring
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1.a Entrance facilities, and transport, as appropriate, for Per interstate [BA FCC 1 Sec. 6.9.1.] access tariffs
Interconnection at BA End Office, Tandem Office, or for Feature Group D service
other Point of Interconnection
Illustrative:
Interstate non-recurring: $1, plus $1 switched access
connection charge per trunk; DS-1 entrance facility
$210-$212/mo.
- -------------------------------------------------------------------------------------------------------------------------------
1.b Collocation and related services for Interconnection at Per interstate [BA FCC 1 Sec. 19] access tariffs2
BA End Office, Tandem Office
- -------------------------------------------------------------------------------------------------------------------------------
1.c. Transit arrangements (for Interconnection between Covad Per tariffs cited in Per interstate [BA FCC 1
and carriers other than BA) sections 1.a. and 1.b. Sec. 6.9.1.B] for tandem
above, as applicable; switching and tandem
separate trunks switched transport
required for IXC
subtending trunks Illustrative:
Interstate tandem switching
$.000800/mou, tandem
switched transport
$.000279/mou plus
$.000030/mou/mile
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(1) All rates set forth herein, as applied to wholesale discount of retail
Telecommunications Services, unbundled Network Elements or call transport and/or
termination of Local Traffic purchased for the provision of Telephone Exchange
Service or Exchange Access, shall be interim rates. These interim rates shall be
replaced on a prospective basis by such permanent rates (applicable to unbundled
Network Elements or call transport and/or termination of Local Traffic purchased
for the provision of Telephone Exchange Service or Exchange Access) as may be
approved by the Commission. At such time as such permanent rates have been
approved by the Commission, the Parties shall append to this Exhibit an Exhibit
AA, setting forth such rates, which Exhibit AA the Parties shall update
periodically as necessary.
(2) Pending approval of the BA intrastate collocation tariff, all collocation
services shall be charged at rates found in BA FCC 1 sec. 19.
-1-
<PAGE>
Exhibit A
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
1.d. 911 Interconnection Per tariffs cited in 1.a., 1.b., and 1.c. above, as
applicable, for entrance facility plus applicable
transport, or Collection Arrangement at 911 tandem
- -------------------------------------------------------------------------------------------------------------------------------
1.e. Director assistance transport Per interstate access Per interstate access
tariff; BA FCC 1 Sec. tariff; BA FCC 1 Sec. 9.6.B
9.6.B
Illustrative:
Per call rate $.000082
fixed, $.000019 per mile,
$.000353 tandem switching,
$.002311 interconnection
- -------------------------------------------------------------------------------------------------------------------------------
1.f. Operator services (call completion) Transport Per contract attached hereto
- -------------------------------------------------------------------------------------------------------------------------------
2. Unbundled elements Available as listed herein and in interstate and
intrastate tariffs, and pursuant to Section 11 of the
Agreement
- -------------------------------------------------------------------------------------------------------------------------------
3. Poles, ducts, conduits, ROW Per contract rates pursuant to 47 U.S.C.ss.224
Illustrative:
Duct: $5.50/foot/yr.
Pole: $4.00/attachment/yr.
- -------------------------------------------------------------------------------------------------------------------------------
4.a Local loop transmission Interim rates as Interim rates as follows
follows until until Commission determines
Unbundled Local Loop Element and cross-connect to basic Commission determines permanent rates:
links permanent rates:
------------------------------------------------------------------------------------------------------------------
2 Wire Analog (POTS Loops) & 4 Wire Loops $5.00/Service Order $10.81/2 wire loop/month
Installation: $21.62 /4 wire loop/month
$28.00/ loop for cases
where end user not
previously a BA customer
$14.00/ loop for case
where end user already
served by a BA loop
</TABLE>
-2-
<PAGE>
Exhibit A
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
4.a (Cont.) ISDN Loops Service Order: $31.97 $17.52/Month
Installation:
If premises visit not
required, initial &
each additional loop -
$19.99
If premises visit
required, initial loop
- $101.79
If premises visit
required, additional
loop - $43.11
------------------------------------------------------------------------------------------------------------------
DS-1 Loops Service Order: $25.37 $187.18/Month
Installation:
If premises visit not
required, initial &
each additional loop -
$61.22
If premises visit
required, initial loop
- $157.27
If premises visit
required, additional
loop - $98.59
------------------------------------------------------------------------------------------------------------------
2 Wire ADSL Loops TBD TBD
------------------------------------------------------------------------------------------------------------------
2 Wire & 4 Wire HDSL Loops TBD TBD
------------------------------------------------------------------------------------------------------------------
Distance Extensions for various ULL types for distances TBD TBD
exceeding transmission characteristics in applicable
technical references.
------------------------------------------------------------------------------------------------------------------
Cross Connection to POTS loop No charge $1.04/month
------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
4.b. Special construction charges As applicable per BA-DC PSC 203 sec. 2
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-3-
<PAGE>
Exhibit A
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
4.c.1. Service Technician Charges (Maintenance Service Charges) Per BA Companies Administrative Guidelines
(service technician work on unbundled loops outside of (Deregulated Services) Sec. 2.D.2
the central office)
Illustrative:
Initial visit charge $42.00
Work charge (per quarter hour) $16.00
- -------------------------------------------------------------------------------------------------------------------------------
4.c.2 Central office technician charges (Maintenance Service Per interstate [BA FCC 1 Sec. 19.7.7] tariff.
Charges)
Normal Working Hours: First 1/2 hour or fraction
thereof $90.00/technician. Each Additional 1/2 hour or
fraction thereof $30.00/technician.
Overtime: First 1/2 hour or fraction thereof
$100.00/technician. Each Additional 1/2 hour or
fraction thereof $40.00/technician.
Premium Time: First 1/2 hour or fraction thereof
$120.00/technician. Each Additional 1/2 hour or
fraction thereof $50.00/technician.
- -------------------------------------------------------------------------------------------------------------------------------
5.a. Trunk Side local transport Per interstate [BA FCC 1 Sec. 6.9.1.C] tariffs
DS-1 transport Illustrative recurring:
Interstate $60/mo fixed, $17.70/mile/mo.
- -------------------------------------------------------------------------------------------------------------------------------
5.b. DS-3 transport Tariff reference see 5.a. above.
Illustrative recurring:
Interstate $900/mo. fixed, $180/mile/mo.
- -------------------------------------------------------------------------------------------------------------------------------
5.c. Mid-span meet arrangements To be charged in accordance with the requirements of
Section 4.3 of the Agreement
- -------------------------------------------------------------------------------------------------------------------------------
6. Local switching(3)
Unbundled Switching Element $6/service order per $0.003/mou of local switch
line to establish or usage
modify service
POTS switch Port $6/service order plus $1.55/mo.
$6/port
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------
(3) In addition to the recurring and non-recurring rates set forth herein for
unbundled switching elements, BA may levy upon a purchaser of such elements any
access charges (or portion thereof) permitted by Applicable Laws.
(4) These non-recurring rates shall apply only if BA is required to dispatch a
technician to the premises to effect a NID-to-NID access. The rates set forth in
4.c.1 shall apply for NID rearrangements.
-4-
<PAGE>
Exhibit A
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
7 Network Interface Device $11.61/Service Order4 $1.01/Month
$38.50/Premises Visit
$14.69 Labor
Charge/Quarter Hour
After First Quarter Hour
- -------------------------------------------------------------------------------------------------------------------------------
8.a. Operator Services No charge
911 service (data entry; database maintenance)
- -------------------------------------------------------------------------------------------------------------------------------
8.b. Directory assistance Per separate contract; branding available
Directory transport per section 1.e above
- -------------------------------------------------------------------------------------------------------------------------------
8.c. Operator call completion Per separate contract; branding available
- -------------------------------------------------------------------------------------------------------------------------------
9.a. White pages directory listings $5.00 per primary
listing per number
- -------------------------------------------------------------------------------------------------------------------------------
9.b. Books & delivery (annual home area directories only) No charge for normal numbers of books delivered to end
users; bulk deliveries to Covad per separate
arrangement
- -------------------------------------------------------------------------------------------------------------------------------
9.c. Additional listings, changes to listings, non-listed, Per BA-DC PSC 203 sec.3 Per BA-DC PSC 203 sec.4
non-published, and other extra services tariff tariff
Illustrative: Illustrative:
Change to listing: Additional listing:
$21.06 Residence $1.50/mo. residence or
$31.50 Business business
Non-list: $.43/mo.
residence or business
Non-published:
$.81/mo. residence or
business
- -------------------------------------------------------------------------------------------------------------------------------
10. Access to telephone numbers (NXX codes issued per ICCF No charge
Code Administration Guidelines)
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------
(4) These non-recurring rates shall apply only if BA is required to dispatch a
technician to the premises to effect a NID-to-NID access. The rates set forth in
4.c.1 shall apply for NID rearrangements.
-5-
<PAGE>
Exhibit A
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
11.a. SS7 Interconnection Per interstate [BA FCC Per interstate [BA FCC 1
1 Sec. 6.9.1.G] tariff Sec. 6.9.2.A] tariff
Illustrative:
Interstate: STP ports,
$900.00/mo. STP access,
$3.50/mile/mo.
- -------------------------------------------------------------------------------------------------------------------------------
11.b. LIDB Interconnection Per tariff [BA FCC 1 Per tariff [BA FCC 1 Sec.
Sec. 6.9.1M] 6.9.1M]
Illustrative: Illustrative:
Originating point code, Query validation:
$125 $.04/query
Query transport:
$.0002/query
- -------------------------------------------------------------------------------------------------------------------------------
11.c 800/888 data base Interconnection No separate charge Per interstate [BA FCC 1
(included in FGD trunk Sec. 6.9.1.N] tariff
and STP links)
Illustrative:
Interstate basic query,
$.003493/query; vertical
feature package,
$.000329/query
- -------------------------------------------------------------------------------------------------------------------------------
12.a. Interim number portability through co-carrier call Track & true-up until interim funding mechanism
forwarding established by Commission.
- -------------------------------------------------------------------------------------------------------------------------------
12.b. Access pass-through to number portability purchaser In accordance with Section 14.5 of Agreement
- -------------------------------------------------------------------------------------------------------------------------------
13. Local dialing parity No charge
- -------------------------------------------------------------------------------------------------------------------------------
14.a. Reciprocal call termination
Local Traffic delivered by Covad to BA Interconnection Not applicable $.003/mou End Office
Point Termination
$.005/mou Tandem Termination
Calculated in accordance
with note 9 below
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-6-
<PAGE>
Exhibit A
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
14.b. Access charges for termination of intrastate and Not applicable Per interstate access
interstate Toll Traffic tariffs (charged in
conjunction with Local
Traffic, using PLU and PIU,
as appropriate)
- -------------------------------------------------------------------------------------------------------------------------------
15.a Wholesale rates for resale of telecommunications Percentage discount from retail tariff6
services provided to end users(5)
- -------------------------------------------------------------------------------------------------------------------------------
15.b Resale of retail Telecommunications Services if Covad 24.70% or discount as determined by further
provides own Operator Services Commission Order(7)
- -------------------------------------------------------------------------------------------------------------------------------
15.c Resale of retail Telecommunications Services if Covad 16.57% or discount as determined by further
uses BA Operator Services Commission Order(8)
- -------------------------------------------------------------------------------------------------------------------------------
16.a Access to Pre-Ordering OSS $.27/Query
- -------------------------------------------------------------------------------------------------------------------------------
16.b Access to Ordering OSS $4.65/Transaction
- -------------------------------------------------------------------------------------------------------------------------------
16.c Access to Provisioning OSS Included in Ordering
- -------------------------------------------------------------------------------------------------------------------------------
16.d Access to Maintenance & Repair OSS
ECG Access $.27/Query
EB/OSI Access $1.26/Trouble Ticket
- -------------------------------------------------------------------------------------------------------------------------------
16.e.1 Access to Billing OSS; CD-ROM $267.85/CD-ROM
- -------------------------------------------------------------------------------------------------------------------------------
16.e.2 Access to Billing OSS; Daily Usage File
Existing Message Recording $.000281/Message
- -------------------------------------------------------------------------------------------------------------------------------
16.e.3 Access to Billing OSS; Daily Usage File Delivery
Data Tape $66.66/Programming Hour $20.64/Tape
Network Data Mover Not Applicable $.000101/Message
CMDS $66.66/ Programming Hour $.000101/Message
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------
(5) Excludes telecommunications services designed primarily for wholesale, such
as switched and special access, and, subject to Section 12 of the Agreement, the
following additional arrangements that are not subject to resale: limited
duration promotional offerings (90 days or less), public coin telephone service,
and technical and market trials. Taxes shall be collected and remitted by the
reseller and BA in accordance with legal requirements and as agreed between the
Parties. Surcharges (e.g., 911, telecommunications relay service, universal
service fund) shall be collected by the reseller and ether remitted to the
recipient agency or NECA, or passed through to BA for remittance to the
recipient agency or NECA, as appropriate and agreed between the Parties. End
user common line charges shall be collected by the reseller and remitted to BA.
(6) Pending establishment of mechanized billing procedures adapted to resale,
the Parties will agree upon a composite "bottom-of-the-bill" discount that
reflects the discounts and exclusions identified herein, and such other
adjustments as the Parties agree.
(7) Wholesale discount does not apply to telecommunications relay service charge
embedded in BA's retail rates.
(8) See note 7 above.
-7-
<PAGE>
Exhibit A
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
16.e.4 Access to Billing OSS; Daily Usage File Transport
9.6 kb Communications Port $8,552.71/Port $11.13/Month
56 kb Communications Port $35,394.48/Port $30.72/Month
256 kb Communications Port $58,920.86/Port $30.72/Month
T1 Communications Port $210,246.64/Port $390.10/Month
Line Installation $66.66/Programming Hour
Port Set-up $10.70/Port
Network Control Programming Coding $66.66/ Programming Hour
- -------------------------------------------------------------------------------------------------------------------------------
17 Customized Routing
To Reseller Platform $4.52/Line $.29513/Line/ Month
To BA Platform for Re-Branding $4.52/Line $.09838/Call
Customized Routing Transport See sections 1 &5 above. See sections 1 &5 above.
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-8-
<PAGE>
Exhibit A
B. Covad Services, Facilities and Arrangements:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Covad Service Non-recurring Recurring
------------- ------------- ---------
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
1.a. Interim Number Portability through co-carrier call Track & true-up until interim funding mechanism
forwarding established by Commission.
- -------------------------------------------------------------------------------------------------------------------------------
1.b. Access pass-through to number portability purchaser In accordance with Sec. 14.5 Agreement
- -------------------------------------------------------------------------------------------------------------------------------
2. Local dialing parity No charge
- -------------------------------------------------------------------------------------------------------------------------------
3.a. Reciprocal call termination
Local Traffic delivered to Covad Interconnection Point Not applicable $.003/mou End Office
Termination
$.005/mou Tandem
Termination Calculated in
accordance with note 9
below
- -------------------------------------------------------------------------------------------------------------------------------
3.b. Access charges for termination of intrastate and Not applicable Per Covad interstate and
interstate Toll Traffic intrastate access rates
(charged in conjunction
with Local Traffic, using
PLU and PIU, as
appropriate)
- -------------------------------------------------------------------------------------------------------------------------------
4. All other Covad services available to BA for purposes of Available at Covad tariffed or otherwise generally
effectuating local exchange competition available rates, not to exceed BA rates for
equivalent services available to Covad
- -------------------------------------------------------------------------------------------------------------------------------
5. Other Services To be negotiated if Covad elects to route BA
information services traffic
Information Service billing fee
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-9-
<PAGE>
Exhibit A
9 LOCAL TRAFFIC TERMINATION RATES
A. Charges by BA
(a) Traffic delivered to BA Tandem: $.005 per mou
(b) Traffic delivered directly to terminating BA End Office: $.003 per
mou
B. Charges by Covad
1. Single-tiered interconnection structure:
Covad's rate for the termination of BA's Local Traffic from a BA Tandem
under the single-tiered interconnection structure shall be recalculated once
each year on each anniversary of the Effective Date (the "Rate Determination
Date"). The methodology for recalculating the rate is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic delivered by
Covad to the BA Tandem for most recent billed quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by Covad
directly to the terminating BA End Office for most recent billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by Covad
to BA for most recent billed quarter.
Covad Charge at the Covad-IP =
(Tandem Minutes x $.005) + (End Office Minutes x $.003)/ Total Minutes
For the first year after the Effective Date, the Covad charge shall be
calculated based on the traffic data of the quarter immediately preceding such
Effective Date or, if no such data is available, at the average rate of $.004
per mou.
2. Multiple-tiered interconnection structure (if provided pursuant to
subsection 4.1.4 of the Agreement or offered by Covad to any carrier):
(a) Local Traffic delivered to Covad Tandem: $.005 per mou
(b) Local Traffic delivered to terminating Covad End Office/node: $.003
per mou
C. Miscellaneous Notes
1. The Covad termination rate under the single-tiered interconnection
structure set forth above is intended by the Parties to be a Local Traffic
termination rate for Interconnection to the Covad-IP within each LATA that is
reciprocal and equal to the actual rates that will be charged by BA to Covad
under the two-tiered Local Traffic termination rate structure described above.
Under this single-tiered interconnection structure, the Covad termination rate
for Local Traffic is also intended to provide financial incentives to Covad to
deliver traffic directly to BA's terminating End Offices once Covad's traffic
volumes reach an appropriate threshold. The Parties agree that the Reciprocal
Compensation rate(s) set forth herein recover a reasonable approximation of each
Party's additional costs of terminating calls that originate on the network
facilities of the other Party
-10-
<PAGE>
SCHEDULE 6.3
RATE ELEMENTS UNDER MEET POINT BILLING
Interstate Access - Terminating to or originating from COVAD Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
Intrastate Access - Terminating to or originating from COVAD Customers (Pre-LTR
tariff)
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Transport Based on negotiated billing
percentage (BIP)
Intrastate Access - Terminating to or originating from COVAD Customers (Post-LTR
tariff)
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
<PAGE>
EXHIBIT B
BONA FIDE REQUEST PROCEDURES
1. The following procedures shall apply to any Bona Fide Request submitted by
Covad to BA for: (a) an Interconnection or access to an unbundled Network
Element not otherwise provided hereunder at the time of such request, (b)
an Interconnection or connection to a Network Element that is different in
quality to that which BA provides to itself at the time of such request,
(c) Collocation at a location other than a BA Central Office, and (d) such
other arrangement, service, or Network Element for which a BFR is required
under the Agreement. Items (a) through (d) above may be referred to
individually as a "BFR Item." The BFR procedures set forth herein do not
apply to those services requested pursuant to Report & Order and Notice of
Proposed Rulemaking 91-141 (rel. October 19, 1992), Paragraph 259 and
Footnote 603 or subsequent orders.
2. A BFR shall be submitted in writing and shall include a technical
description of each requested BFR Item, and a forecast (e.g. volume
requested, locations, dates) for such Item.
3. Covad may cancel a BFR at any time, but shall pay BA's reasonable and
demonstrable costs of processing, implementing the BFR, and/or developing
the BFR Item up to the date of cancellation, and any wind-up costs
resulting therefrom.
4. Within fifteen (15) business days of receipt of the BFR, BA will respond
in one of the following ways:
(a) provide confirmation that the BFR is technically feasible and the
date BA will deliver a price proposal, including a service
description, pricing and an estimated schedule for availability;
(b) request a face-to-face meeting between technical representatives of
both Parties to further explain the request;
(c) inform Covad that BA must do laboratory testing (at Covad's expense)
to determine whether the request is technically feasible;
(d) inform Covad that BA must do field testing (at Covad's expense) to
determine whether the request is technically feasible;
(e) inform Covad that it is necessary for the Parties to undertake a
joint technical/operational field test (at Covad's expense) in order
to determine both technical feasibility and operational cost
impacts; or
(f) provide a written explanation that it is not technically feasible to
comply with the request and/or the BFR Item does not qualify as one
that is required to be
1
<PAGE>
provided under the Act.
5. Within ten (10) business days of receiving BA's response from Step 4(c),
4(d), or 4(e), Covad shall:
(a) negotiate a mutually agreeable schedule for BA's testing and agree
to pay BA for the testing costs, in the case of Steps 4(c) or (d);
or
(b) negotiate a mutually agreeable schedule for joint
technical/operational field testing, and agree to pay BA the costs,
in the case of Step 4(e).
6. Within ten (10) days of receiving BA's confirmation (from Step 4(a)),
Covad shall:
(a) accept BA's price proposal date and agree to pay BA the cost of
developing the proposal;
(b) negotiate a different date for BA to deliver the price proposal, and
agree to pay BA the cost of developing the proposal; or
(c) abandon the request.
7. Unless the Parties have agreed to another date, BA will deliver the BFR
Item price proposal to Covad in response to Step 5 or Step 6 as soon as
reasonably practicable, but no later than ninety (90) days from the date
BA provided the price proposal date, unless such delivery is technically
unreasonable given the nature of the BFR. The price proposal shall include
a service description of the BFR Item, the costs, including costs
associated with the development of the BFR Item, and an estimated
availability schedule.
8. Covad accepts BA's price proposal or negotiates mutually acceptable
changes.
9. BA makes the BFR Item available in accordance with Step 7.
10. Unless the Parties otherwise agree, all prices shall be consistent with
the pricing principles of the Act and any applicable FCC or Commission
rules, regulations, or orders.
11. If a Party to a BFR believes that the other Party is not requesting, or
negotiating or processing the BFR in good faith, or disputes a
determination, or price or cost quote, or is failing to act in accordance
with Section 251 of the Act, such Party may seek mediation or arbitration
by the Commission pursuant to Section 252 of the Act.
2
<PAGE>
EXHIBIT C
DIRECTORY ASSISTANCE AND INTRALATA
CALL COMPLETION SERVICES AGREEMENT
THIS AGREEMENT is made, effective this _____ day of _____________ 19___,
by and between Bell Atlantic - __________________, Inc., (hereinafter referred
to as "Bell Atlantic"), a __________________________ corporation, with offices
at _____________________________________, and _______________________________,
hereinafter referred to as "Carrier", a ______________________ corporation with
offices at _______________________________________.
1. SCOPE AND TERM OF AGREEMENT
1.1 Scope This Agreement sets forth the terms and conditions which shall govern
the use of and payment for Directory Assistance (DA) Service and IntraLATA Call
Completion Service (hereinafter collectively referred to as "Services") to be
provided by Bell Atlantic, or its affiliated companies, to Carrier. Carrier
shall subscribe to and pay for Services for Carrier's local exchange customers
in the ___________ LATA(s).
1.2 Term The initial term of this Agreement shall be one (1) year and commence
as of 12:01 a.m. on the date first written above. At the end of this initial
term, or any subsequent renewal term, this Agreement shall automatically renew
for an additional period of one (1) year unless either party provides written
notice to the other of its intent to terminate at least three (3) months prior
to the expiration of the then current term.
2. DESCRIPTION OF SERVICES
2.1 Directory Assistance (DA) Service
a) Directory Assistance Service shall consist of 1) directory transport by
Bell Atlantic from the point of Bell Atlantic's interconnection with Carrier's
trunks to Bell Atlantic's designated DA locations, and 2) the provision of
telephone number listings by Bell Atlantic operators in response to calls from
Carrier's local exchange customers located in the LATA(s) designated in Section
1.1.
b) A maximum of two requests for telephone numbers will be accepted per DA
call. A "DA call" as used in this Agreement shall mean a call answered by or
forwarded to Bell Atlantic, regardless of whether a telephone number is
requested, provided, or available. The listings that will be available to
Carrier's customers are those telephone numbers that are listed in Bell
Atlantic's DA records for the LATA(s) designated in Section 1.1.
2.2 IntraLATA Call Completion Service IntraLATA Call Completion Service
<PAGE>
consists of the live and automated local and toll call completion services
specified in Appendix B, including the completion of collect, card and
bill-to-third party calls; busy line verification; customer requested interrupt;
and other assistance to Carrier's local exchange customers located in the
LATA(s) designated in Section 1.1.
2.3 Branding Branding is a service that permits the Carrier to deliver a
customized announcement to its callers, identifying the Carrier as the customer
service provider. Carrier shall provide the information required by Bell
Atlantic to create this announcement. Branding also requires that the Carrier
maintain dedicated trunking arrangements to the designated Bell Atlantic DA or
operator switch locations.
2.4 End User Billing Bell Atlantic will provide Carrier with unrated EMR records
for use in the billing of Carrier's end users for Services. The rating, billing,
and settlement of end-user charges for the calls are the responsibility of
Carrier.
2.5 Service Methods Bell Atlantic agrees to provide Services in accordance with
Bell Atlantic's service standards and methods. Bell Atlantic will notify Carrier
in writing of any significant policy changes to operator services or directory
assistance standards and methods prior to implementation.
2.6 Customized Service Features and Options Carrier may request custom-designed
service features or optional services to be provided in conjunction with the
Services hereunder. Upon mutual agreement of the parties, such features and
options will be provided pursuant to this Agreement. Bell Atlantic, if
requested, shall provide Carrier with an estimate of the charges for such
custom-designed supplements, changes, or options prior to implementation.
3. COMMENCEMENT AND IMPLEMENTATION OF SERVICE
3.1 Required Information Each party shall make good-faith efforts to carry out
its respective responsibilities in meeting a jointly established schedule for
implementation. All records and other required information specified in Appendix
C, as well as a completed Technical Questionnaire, will be furnished by Carrier
at least ninety (90) days prior to the commencement of Services (i.e., the
Cutover Date described in Section 3.2.) Notices of any changes, additions, or
deletions to such records and information shall be provided promptly in writing
by Carrier to Bell Atlantic. Bell Atlantic will review these change requests and
determine any potential impact on the cutover date. Written confirmation of any
impact will be provided to Carrier.
3.2 Cutover Date The Cutover Date for Service(s) provided under this Agreement
shall be the date on which the Service(s) shall be available to all of Carrier's
local exchange customers in the LATA(s) designated in Section 1.1.
3.3 Service Review Meetings Bell Atlantic will meet and confer with Carrier
during the term of this Agreement to review and discuss the Services provided
under this
<PAGE>
Agreement. The times for meetings will be established by mutual agreement of the
parties.
4. EQUIPMENT AND FACILITIES
4.1 Bell Atlantic will establish and maintain such access equipment and related
facilities as may be necessary to perform the Services under this Agreement,
provided that Carrier furnishes Bell Atlantic the information specified in
Appendix C, and any changes in such information, in a timely and accurate
manner. Any additional services that Carrier seeks during the term of this
Agreement will be subject to mutual agreement and the availability of facilities
and equipment.
4.2 Carrier will provide and maintain such equipment within its premises as is
necessary to permit Bell Atlantic to perform the agreed-upon Services in
accordance with Bell Atlantic standard equipment operation and traffic operation
procedures.
4.3 Carrier Transport and Switched Access Connection
a) Carrier shall, at its expense, arrange for and establish the trunking
and other transport, interface, and signaling arrangements required by Bell
Atlantic to provide Services to Carrier. Separate dedicated trunks for each NPA
or LATA may be required. Any trunks or other transport and access that Carrier
obtains from Bell Atlantic to deliver Carrier's calls to Bell Atlantic shall be
provided pursuant to the applicable tariffs or other contractual arrangements,
and not under this Agreement. Bell Atlantic agrees to coordinate the scheduling
of Services to be provided under this Agreement with the scheduling of any
trunking or related services provisioned by Bell Atlantic under such tariffs or
other contractual arrangements.
b) Carrier shall specify the number of trunks required for Services.
Carrier must provide trunks with operator services signaling directly to the
locations designated by Bell Atlantic. Bell Atlantic shall provide Carrier at
least three (3) months advance notice in the event of any change in a designated
location.
5. PAYMENT FOR SERVICES
5.1 Rates Carrier agrees to subscribe to and pay for the Services and options
selected in Appendix A. Carrier shall pay the rates set forth in Appendix A,
subject to such obligations as Bell Atlantic may have under the
Telecommunications Act of 1996, and the FCC and state regulations and decisions
thereunder, to set cost-based rates for unbundled network elements.
Specifically, when a regulatory body of competent jurisdiction has duly approved
the rates under which Bell Atlantic is required to provide Services to
competitive local exchange carriers (hereinafter referred to as "CLEC rates"),
Bell Atlantic shall charge, and Carrier shall pay, such CLEC rates for the
applicable Services.
5.2 Settlements Carrier shall render payment to Bell Atlantic net thirty (30)
calendar days from the date of delivery of the Services or from the date of
billing for the Services,
<PAGE>
whichever occurs later. Carrier shall pay interest on any amount overdue at the
rate specified for late payments in the Interconnection Agreement between Bell
Atlantic and Carrier.
5.3 Billing Disagreements
a) Carrier may, in good faith, dispute part or all of an invoice provided
by Bell Atlantic. To dispute an invoice, Carrier must provide Bell Atlantic with
a written explanation of the questioned charges for consideration within thirty
(30) days of receipt of the invoice. Bell Atlantic will respond to Carrier's
claim within thirty (30) days of receipt of the explanation.
b) The parties agree to negotiate any dispute in good faith to reach a
satisfactory resolution of the dispute no later than ninety (90) days after
Carrier's receipt of the invoice. Carrier shall have no obligation to pay
interest on a disputed amount while a resolution is being negotiated during this
period. In the event that the dispute is not resolved at the account manager
level within forty five (45) days after receipt of Carrier's claim, the parties
agree to submit the dispute to an Intercompany Review Board for resolution. The
Intercompany Review Board shall consist of two representatives from each party
who are authorized to resolve the dispute on behalf of their respective
companies. The Intercompany Review Board shall conduct a joint conference to
review the parties' respective positions and to resolve the dispute.
c) Upon the resolution of the dispute, an appropriate adjustment of
billing shall be made by Bell Atlantic. Bell Atlantic shall apply any reductions
in the invoiced amount as a credit. Carrier shall promptly pay any amounts the
parties agree are due with interest thereon under Section 5.2 retroactive to the
date of the original invoice. If no resolution is reached within the specified
90-day period, either party may pursue such other remedies and recourse as are
otherwise available under law or this Agreement.
5.4 Taxes The rates specified in this Agreement are exclusive of all taxes,
duties, or similar charges imposed by law. Carrier shall be liable for and shall
reimburse Bell Atlantic for any sales, use, excise, or other taxes applicable to
the Services performed under this Agreement.
5.5 Carrier's Customers Carrier shall be responsible for all contacts and
arrangements with its customers concerning the provision and maintenance, and
the billing and collection, of charges for Services furnished to Carrier's
customers.
6. DEFAULTS AND REMEDIES
6.1 Defaults If Carrier defaults in the payment of any amount due hereunder, or
if Bell Atlantic materially fails to provide Services as agreed hereunder, and
such default or failure shall continue for thirty (30) days after written notice
thereof, the other party may terminate this Agreement with thirty (30) days
written notice.
<PAGE>
6.2 Carrier Remedies In the event that Bell Atlantic, through negligence or
willful misconduct, fails to provide the Services selected and contracted for
under this Agreement, Bell Atlantic shall pay Carrier for Carrier's direct
damages resulting from such failure, up to an amount not to exceed the charges
payable under this Agreement for the Services affected.
6.3 Discontinuance by Carrier In the event that Carrier discontinues using
Services, either in part or in whole, prior to expiration of the then current
term and such discontinuance is not due to Bell Atlantic's material failure to
provide Services, Carrier shall pay Bell Atlantic an amount equal to the average
monthly charges for the six-month period immediately preceding the
discontinuance multiplied by the number of months remaining in the then-current
term. If Services have been provided for a period of less than six months,
Carrier shall pay the charges for the month with the highest usage multiplied by
the number of months remaining in the then-current one year term. If Carrier
terminates this Agreement prior to the Cutover Date, Carrier shall pay Bell
Atlantic the greater of the following: (i) all reasonable and necessary costs
already incurred by Bell Atlantic in preparation for the commencement of
services, or (ii) the sum of fifty thousand dollars ($50,000).
6.4 Other Remedies THE EXTENT OF LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE
LIMITED AS DESCRIBED IN SECTIONS 6.1, 6.2 AND 6.3 ABOVE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY OTHER LOSS, COST, CLAIM, INJURY, LIABILITY, OR
EXPENSE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY INCIDENTAL, SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT,
WHETHER RECOVERY IS SOUGHT IN TORT, CONTRACT, OR OTHERWISE, EVEN IF EITHER PARTY
HAD NOTICE OF SUCH DAMAGES.
7. CONFIDENTIAL INFORMATION
7.1 Confidentiality The parties agree that all confidential and proprietary
information that is marked as specified in Section 7.2 and that is disclosed by
either party to the other party for the purposes of this Agreement, including
rates and terms, shall be treated as confidential unless a) such information was
previously or becomes known to the receiving party free of any obligation to
keep it confidential, b) has been or is subsequently made public by the
disclosing party, or c) is required to be disclosed by law. The receiving party
shall not, except in the performance of the Services under this Agreement or
with the express prior written consent of the other party, disclose or permit
access to any confidential information to any other parties. The parties agree
to advise their respective employees, agents, and representatives to take such
action as may be advisable to preserve and protect the confidentiality of such
information.
<PAGE>
7.2 Marking of Confidential Information All information the disclosing party
considers proprietary or confidential, if in writing or other tangible form,
shall be conspicuously labeled or marked as "Proprietary" and/or "Confidential"
and, if oral, shall be identified as proprietary at the time of disclosure and
promptly confirmed in writing. Either party shall have the right to correct any
inadvertent failure to designate information as proprietary by written
notification within ten (10) days following disclosure.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractors Bell Atlantic and Carrier shall be independent
contractors under this Agreement, and all services under this Agreement shall be
performed by Bell Atlantic as an independent contractor and not as an agent of
Carrier.
8.2 Responsibility for Employees and Agents All persons furnished by Bell
Atlantic shall be considered solely Bell Atlantic's employees or agents, and
Bell Atlantic shall be responsible for compliance with all laws, rules, and
regulations relating to such persons including, but not limited to, hours of
labor, working conditions, workers' compensation, payment of wages, benefits,
unemployment, social security and other payroll taxes. Each party's employees
and agents, while on premises of the other, shall comply with all rules and
regulations, including any applicable security procedures and safeguarding of
confidential data.
9. GENERAL CONDITIONS
9.1 Assignment Neither party may assign or delegate its rights and obligations
under this Agreement without the prior written consent of the other party,
except that either party may assign this Agreement, without such consent, to its
parent, affiliate or subsidiary, provided that the assignee has the resources,
legal authority, and ability to perform all terms of this Agreement. Thirty (30)
days advance notice of such assignment shall be provided to the other party.
9.2 Choice of Law The validity, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware.
9.3 Compliance with Laws Each party shall comply with all applicable federal,
state, county and local laws, ordinances, regulation, rules and codes in the
performance of this Agreement. Neither party shall be liable to the other for
termination of this Agreement or any services to be provided hereunder
necessitated by compliance with any law, rule, regulation or court order of a
duly authorized governmental body.
9.4 Contingency Neither party shall be held responsible or liable to the other
for any delay or failure in performance caused by fires, strikes, embargoes,
requirements imposed by Government regulation, civil or military authorities,
act of God or by the public enemy, or other causes beyond the control of Carrier
or Bell Atlantic. If such a contingency occurs, the party injured by the other's
inability to perform may: a) terminate the affected
<PAGE>
services or part thereof not already rendered; or b) suspend the affected
services or part thereof for the duration of the delaying cause and resume
performance once the delaying causes cease.
9.5 Licenses No licenses, expressed or implied, under any patents, copyrights,
trademarks or other intellectual property rights are granted by Bell Atlantic to
Carrier under this Agreement.
9.6 Notices Except as otherwise specified in this Agreement, any notice
required or permitted under this Agreement shall be in writing and shall be
given to the other party at the address designated below by hand delivery,
registered return-receipt requested mail, or nationally recognized courier
service:
For Bell Atlantic: ____________________________________
____________________________________
____________________________________
____________________________________
For Carrier: ____________________________________
____________________________________
____________________________________
____________________________________
The above addresses may be changed by giving thirty (30) calendar days prior
written notice as prescribed above. Notice shall be deemed to have been given or
made on the date of delivery if received by hand, or express courier, and three
days after delivery to the U.S. Postal Service, if mailed.
9.7 Publicity Bell Atlantic and Carrier agree not to publish any advertising,
sales promotions, or press releases that promote or otherwise relate to the
services provided under this Agreement and include the other party's name,
logos, trademarks, or service marks, unless it obtains the other party's prior
written consent, except that either party may disclose the fact that Bell
Atlantic provides directory assistance and/or operator services to Carrier
without such prior review or approval.
9.8 Severability If any provision of this Agreement or the application of any
provision shall be held by a tribunal of competent jurisdiction to be contrary
to law or unenforceable, the remaining provisions of this Agreement shall
continue in full force and effect.
9.9 Survival All obligations hereunder, incurred by either Bell Atlantic or
Carrier prior to the cancellation, termination, or expiration of this Agreement
shall survive such
<PAGE>
cancellation, termination or expiration.
9.10 Captions and Section Headings The captions and section headings in this
Agreement are for convenience only and do not affect the meaning or
interpretation of this Agreement.
9.11 Duplicate Originals This Agreement may be executed separately by the
parties in one or more counterparts. Each duplicate executed shall be deemed an
original, and all together shall constitute one and the same document.
9.12 Entire Agreement The terms and conditions of this Agreement, including
the Appendices attached to this Agreement, constitute the entire Agreement
between Bell Atlantic and Carrier relating to the subject matter of this
Agreement, and supersede any and all prior or contemporaneous understandings,
promises or representations, whether written or oral, between the parties
relating to the subject matter of this Agreement. Any waiver, modification or
amendment of any provision of this Agreement, or of any right or remedy
hereunder, shall not be effective unless made in writing and signed by both
parties.
IN WITNESS WHEREOF, the parties agree that the effective date of this Agreement
is the date first written above, and each party warrants that it has caused this
Agreement to be signed and delivered by its duly authorized representative.
FOR BELL ATLANTIC - FOR CARRIER
________________________, INC.
Name: _______________________ Name: _________________________
Title: ______________________ Title: ________________________
Signature: __________________ Signature: ____________________
Date: _______________________ Date: _________________________
<PAGE>
APPENDIX A
BELL ATLANTIC
CARRIER SERVICE SELECTION FORM
Please select desired services.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
MINIMUM SERVICE
SERVICE SERVICE CHARGE SELECTION
PERIOD
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Directory Assistance (ADAS) 12 months $______/call (Directory Transport Yes No
charges below)
- --------------------------------------------------------------------------------------------------------------
IntraLATA Call Completion 12 months Live: $______/op work second Yes No
Operator Services Automated: $______/auto wk sec
LIDB: $______/query
- --------------------------------------------------------------------------------------------------------------
Directory Assistance non- $_________ per switch Yes No
Branding recurring fee
- --------------------------------------------------------------------------------------------------------------
Operator Services Branding non- $_________ per switch Branding is
recurring fee required for OS
- --------------------------------------------------------------------------------------------------------------
</TABLE>
Directory Transport charges are as follows. (Call miles are measured from the BA
Wire Center serving Carrier's premises to the Directory Assistance location.)
<TABLE>
<CAPTION>
Rate Per Directory Assistance Call
----------------------------------
<S> <C>
Tandem-Switched Transport
Fixed ................................................. $________
Per mile .............................................. $________
Tandem Switching ............................................ $________
</TABLE>
Note: Trunking, daily usage file, and switched access costs are not included in
the above rates.
<PAGE>
APPENDIX B
INTRALATA CALL COMPLETION OPERATOR SERVICES CALL TYPES
IntraLATA Call Completion Operator Services may include the following:
a. Calling Card
(i) Live: Bell Atlantic operator keys the calling card number and call
details into the system, secures validation, and releases the call to the
network.
(ii) Automated: Caller keys the calling number and call details in
response to automated prompts. Bell Atlantic secures validation and
releases the call to the network.
b. Collect
(i) Live: Bell Atlantic operator obtains the calling party's name, keys
the call details if necessary, announces the call to the called party,
waits for acceptance, and releases the call to the network.
(ii) Automated: Caller provides name and call details. Bell Atlantic's
automated system obtains called party's consent and releases the call to
the network.
c. Billed To A Third Party
(i) Live: Bell Atlantic operator requests the calling party's name, keys
the call details if necessary, calls the third party to verify acceptance
of billing, and upon acceptance, releases the call to the network.
(ii) Automated: Caller provides name, call details, and billing number.
Bell Atlantic's automated system verifies billed number and releases the
call to the network.
d. Person-to-Person
Bell Atlantic operator requests the person or department the calling party
has specified, ensures the appropriate party has been reached (person or
department), and releases the call to the network.
e. Coin Sent Paid
Bell Atlantic operator keys the call details if necessary, requests the
initial deposit, and upon deposit, releases the call to the network.
<PAGE>
f. Miscellaneous Call Assistance (Live)
(i) 0- Calls: Bell Atlantic operator provides caller with dialing
instructions or assistance, transfers emergency calls, or refers questions
to the business office or repair service.
(ii) Dialing Assistance & Intervention: Bell Atlantic operator dials a
number for a caller who is unwilling to dial directly or is encountering
trouble (such as wrong number, poor transmission, or cutoff), and who
requests a credit or reconnection.
(iii) Time and Charges: Bell Atlantic operator provides caller with time
and charges at the end of conversation, if requested.
(iv) Individuals with Disabilities: Bell Atlantic operator assists a
caller requiring dialing assistance due to a disability.
g. Busy-Line Verification
Bell Atlantic operator determines if the number specified by the customer
is in use, idle, or out of order. Appropriate facilities and equipment may
be required from the Carrier to enable verification of Carrier's lines.
h. Customer-Requested Interrupt
At the caller's request, Bell Atlantic operator interrupts conversation in
progress on a line that is in use, as verified through Busy-Line
Verification.
i. Operator Number Identification (ONI) Requests
Bell Atlantic operator requests the calling telephone number, keys the
number into the system for identification, and releases the call for
processing.
j. Automated Coin Toll Service (ACTS)
Bell Atlantic will provide automated messages for intraLATA toll calls
that originate from coin phones. The messages will prompt callers for the
correct change and record the change upon deposit. If a caller fails to
deposit the correct amount within the time threshold (set by Bell
Atlantic), the call will default to a live operator.
k. Validation Services
Bell Atlantic will launch queries for the validation of all calling card
calls, collect calls, and billed-to-third number calls to a Line
Information Data Base (LIDB). The validation costs for queries of LIDB are
separate from the individual call rates. Bell Atlantic will also launch
queries for validations to another company's LIDB if that company has a
card honoring agreement with Bell Atlantic.
<PAGE>
APPENDIX C
REQUIRED INFORMATION
Carrier shall furnish Bell Atlantic all information required by Bell Atlantic to
establish and maintain the Services to be provided to Carrier, including a
completed Technical Questionnaire. Such required information includes, but is
not limited to, the following:
1. Central office exchange names
2. Usage forecasts
3. Local central office characteristics
4. Trunking arrangements and trunk group types
5. Emergency reporting system and procedures
6. Business office information
7. Repair service information
8. Name and address request information
9. Tariffs and rate information
10. Customer dialing capabilities
11. Access to EMR records
12. Desired branding announcement (if applicable)
13. Carrier's estimated start date of Services
14. Access Service Requests (ASRs) for trunking and translations
Note: ASRs are not to be submitted by Carrier until Carrier and Bell Atlantic
have reviewed the Technical Questionnaire.
<PAGE>
APPENDIX D
OPTIONAL SERVICE SELECTION FORM
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
MINIMUM SERVICE
SERVICE SERVICE CHARGE SELECTION
PERIOD
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Directory Assistance Call Completion 6 months $___/call Yes No
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT D
INTRALATA TELECOMMUNICATIONS SERVICES SETTLEMENT AGREEMENT
This Agreement is entered into as of _______________ , 1997, by and
between Bell Atlantic - _______________, Inc., a ___________ corporation, with
principal offices located at ______________________________ ("BA-__"), and
___________________________, a ______________ corporation, with principal
offices located at ________________________
____________________________________________________ ("Carrier").
SECTION I
SCOPE
This Agreement sets forth the terms and conditions for the following:
(a) administering and processing messages in the intraLATA Toll
Originating Responsibility Plan ("ITORP"); and
(b) the settlement of compensation for the following telecommunications
traffic within a BA-__ LATA:
(1) intrastate and interstate intraLATA traffic terminated to
Carrier and originated by an Independent Telephone Company or
wireless carriers that transits the facilities of BA-__ within a
BA-__ LATA, including Message Telecommunications Service and Local
Exchange Service (the "ITORP Transit Service Traffic");
(2) intrastate and interstate intraLATA Message Telecommunications
Service and Local Exchange Service traffic which originates from a
Certified Local Exchange Carrier or Carrier, transits BA-PA's
network and terminates to Carrier, or a wireless carrier or an
Exchange Carrier other than BA-__, which traffic is subject to a
Meet-Point Billing arrangement (the "Meet-Point Transit Service
Traffic");
(3) intraLATA 800/888 Service Traffic; and
(4) intraLATA Alternately Billed Calls billed to a line-based
telephone number within the state where the call is originated.
By way of clarification, this Agreement does not cover the following: (x)
traffic that does not use BA-__ facilities; (y) interLATA traffic; and (z) any
statewide services (whether interLATA or intraLATA) provided entirely by an
Interexchange Carrier such as statewide WATS.
<PAGE>
EXHIBIT D
SECTION II
DEFINITIONS
For purposes of this Agreement, the terms set forth below shall have the
following meaning:
A. 800/888 Number Database shall mean the call management service
database that provides POTS telephone number translation or routing
information or both for a given 800/888 telephone number.
B. 800/888 Service Traffic means a toll free call originating with
the Originating Company and billed to the Terminating Company's end
user. 800/888 service MOUs are recorded by the Originating Company
and provided to the Terminating Company so that it can bill its end
user(s).
C. Access Tandem shall mean a switching entity that is used to
connect and switch trunk circuits between and among End Offices and
between and among End Office switches and carriers' aggregation
points, points of termination, or points of presence, which entity
has billing and recording capabilities that are used to provide
switched Exchange Access services.
D. Alternately Billed Calls shall mean all intraLATA land-line
Collect Calls, Calling Card Calls and Third-Number Calls that
originate and terminate in the _________ of _____________ and are
billed to a line-based number within the jurisdiction of the
__________ of _____________ serviced by the Billing Company.
Alternately Billed Calls are identified in ITORP reports as
"Received Collect/Sent Collect Calls".
E. Basic 800/888 Number Query shall mean routing information
obtained from an 800/888 Number Database for originating 800/888
calls.
F. Billing Company shall mean the Local Exchange Carrier that
provides the local telephone exchange service for the number to
which an Alternately Billed Call is to be billed.
G. Calling Card Call shall mean a call billed to a pre-assigned end
user line-based billing number, including calls dialed or serviced
by an operator system.
H. Carrier Common Line Facilities means the facilities from the end
user's premises to the End Office used to originate or terminate
Transit Service Traffic and 800/888 Service Traffic. Such carrier
common line facilities are as specified in each party's Exchange
Access Tariff.
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EXHIBIT D
I. Category 01 shall mean the EMR/billing record for usage charges
applicable to the terminating 800/888 number service subscriber.
J. Category 08 shall mean the EMR/copy record containing the
information necessary for Carrier to bill/settle intraLATA
terminating charges with other carriers.
K. Category 11 shall mean the EMR/access record containing
information necessary for Carrier to bill/settle interexchange
access charges.
L. CCS/SS7 shall mean the Common Channel Signaling/Signaling System
7, which refers to the packet-switched communication, out-of-band
signaling architecture that allows signaling and voice to be carried
on separate facilities, and thus is a signaling network that is
common to many voice channels. There are two modes of operation
defined for CCS/SS7: database query mode, and trunk signaling mode.
M. Centralized Message Distribution System (CMDS) shall mean the
message processing system which handles the distribution of Message
Records from the Earning Company to the Billing Company.
N. Certified Local Exchange Carrier (CLEC) means a carrier certified
by the ____________ ____________to provide Local Exchange Access
services within the BA-__ operating territory in that state.
O. Collect Call shall mean a non-sent paid call that is billed to
the number receiving the call, including calls dialed or serviced by
an operator system.
P. Discounted Toll Services means services in which the originating
end user is charged a rate less than would normally be assessed for
calls placed to similar points outside the end user's local calling
area.
Q. Earning Company shall mean the Local Exchange Carrier that
provides local telephone exchange service for the number from which
an Alternately Billed Call originates.
R. End Office means the end office switching and end user line
termination facilities used to originate or terminate switched
intraLATA telecommunications services traffic.
S. Exchange means a geographic area established for the furnishing
of local telephone service under a local tariff. It usually embraces
a city, town or village and its
3
<PAGE>
EXHIBIT D
environs. It consists of one or more wire centers together with the
associated facilities used in furnishing communications service
within the area.
T. Exchange Access means the facilities and services used for the
purpose of originating or terminating interexchange
telecommunications in accordance with the schedule of charges,
regulations and conditions specified in lawfully established
Exchange Access Tariffs.
U. Exchange Access Tariffs means the tariffs lawfully established
with the Federal Communications Commission or the _____________
___________________ by an Exchange Carrier for the provision of
Exchange Access facilities and services.
V. Exchange Carrier shall mean a carrier licensed to provide
telecommunications services between points located in the same
Exchange area.
W. Exchange Message Record (EMR) shall mean the standard used for
exchange of telecommunications message information among Local
Exchange Carriers for billable, non-billable, sample, settlement and
study data. EMR format is described in BR-010-200-010 CRIS Exchange
Message Record, a Bell Communications Research, Inc. document that
defines industry standards for Exchange Message Records, which is
hereby incorporated by reference.
X. ITORP Transit Service Traffic shall have the meaning set forth in
Section I above titled "Scope".
Y. Independent Telephone Company shall mean any entity other than
BA-__ which, with respect to its operations within the ___________
of __________________, is an incumbent Local Exchange Carrier.
Z. Inter-Company Net Billing Statement shall mean the separate
monthly financial reports issued by BA-__ under ITORP to the
Exchange Carriers for settlement of amounts owed.
AA. IntraLATA Toll Originating Responsibility Plan (ITORP) shall
mean the information system owned and administered by BA-__ for
calculating charges between BA-__ and Local Exchange Carriers for
termination of intraLATA calls.
BB. Interexchange Carrier (IXC) means a carrier that provides,
directly or indirectly, interLATA or intraLATA telephone toll
services.
CC. Local Access and Transport Area (LATA) means a contiguous
geographic area: (1) established before the date of enactment of the
Telecommunications Act of 1996 by BA-__ such that no Exchange area
includes points within more than one
4
<PAGE>
EXHIBIT D
metropolitan statistical area, consolidated metropolitan statistical
area, or state, except as expressly permitted under the AT&T Consent
Decree; or (2) established or modified by BA-__ after such date of
enactment and approved by the Federal Communications Commission.
DD. Local Exchange Carrier (LEC) means any person that is engaged in
the provision of Local Exchange Service or Exchange Access. Such
term does not include a person insofar as such person is engaged in
the provision of a commercial mobile service under Section 332 (c)
of the Telecommunications Act of 1996, except to the extent that the
Federal Communications Commission finds that such service should be
included in the definition of such term.
EE. Local Exchange Service means telecommunications services
provided between points located in the same LATA.
FF. Meet-Point Billing (MPB) means an arrangement whereby two or
more LECs jointly provide to a third party the transport element of
a switched access Local Exchange Service to one of the LECs' End
Office switches, with each LEC receiving an appropriate share of the
transport element revenues as defined by their effective Exchange
Access tariffs.
GG. Meet-Point Transit Service Traffic shall have the meaning set
forth in Section 1, "Scope".
HH. Message Records shall mean the message billing record in
Exchange Message Record format.
II. Message Telecommunications Service (MTS) means message toll
telephone communications, including Discounted Toll Services,
between end users in different Exchange areas, but within the same
LATA, provided in accordance with the schedules of charges,
regulations and conditions specified in lawfully applicable tariffs.
JJ. Minutes of Use (MOU) means the elapsed time in minutes used in
the recording of Transit Service Traffic and 800/888 Service
Traffic.
KK. Multiple Bill/Single Tariff means the MPB method whereby each
LEC prepares and renders its own Meet Point Bill in accordance with
its own tariff(s) for the portion of the jointly-provided Exchange
Access service which the LEC provides.
LL. Multiple Exchange Carrier Access Billing (MECAB) means the
document prepared by the Billing Committee of the Ordering and
Billing Forum, which functions under the auspices of the Carrier
Liaison Committee of the Alliance for
5
<PAGE>
EXHIBIT D
Telecommunications Industry Solutions, and published by Bellcore as
Special Report SR-BDS-000983, which document contains the
recommended guidelines for the billing of an Exchange Access service
provided by two or more LECs, or by one LEC in two or more states,
within a single LATA, and is incorporated herein by reference.
MM. Originating Company means the company which originates intraLATA
MTS or Local Exchange Service on its system. (For compensation
purposes, the Originating Company shall be considered the
Terminating Company for 800/888 Service Traffic.)
NN. Terminating Company means the company which terminates intraLATA
MTS or Local Exchange Service on its system where the charges for
such services are collected by the Originating (or Billing) Company.
(For compensation purposes, the Terminating Company shall be
considered the Originating Company for 800/888
Service Traffic.)
OO. Third-Number Call shall mean a call billed to a subscriber's
line-based billing number which is not the number to which the call
either terminates or originates.
PP. Transit Traffic shall refer to both ITORP Transit Service
Traffic and Meet-Point Transit Service Traffic.
QQ. Transiting Company shall mean a Local Exchange Carrier which
transports intraLATA telecommunications traffic on its system
between an Originating Company and a Terminating Company.
RR. Transport Facilities means the facilities from the End Office to
a tandem switching facility used to originate or terminate switched
intraLATA telecommunication services traffic.
SECTION III
SETTLEMENT OF TRANSIT SERVICES
(a) ITORP Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ will route
ITORP Transit Service Traffic over the combined local and toll trunk groups
between BA-__ and Carrier. BA-__
6
<PAGE>
EXHIBIT D
and Carrier agree to designate the points of interconnection for the purpose of
terminating ITORP Transit Service Traffic which originates from an Independent
Telephone Company or wireless carrier and terminates to Carrier. Both parties
further agree to develop and file mutually agreed to billing percentages
applicable to ITORP Transit Service Traffic in the National Exchange Carrier
Association F.C.C. Tariff No. 4, which billing percentages shall be calculated
in accordance with ITORP guidelines.
(2) Exchange of Billing Data. The Originating Company will provide to
BA-__ all billing data relating to ITORP Transit Service Traffic for processing
in ITORP within fourteen (14) days from the date the usage occurs (to the extent
usage occurs on any given day) for traffic originating from an Independent
Telephone Company or wireless carrier, which traffic transits BA-PA's facilities
and terminates to Carrier.
(3) Billing. BA-__ will, on behalf of Carrier, bill Exchange Carriers for
intraLATA ITORP Transit Service Traffic, and collect compensation due Carrier
based on Carrier's established and legally-approved tariffed or negotiated rates
utilizing ITORP. The charges set forth in Attachment A, attached hereto and
incorporated herein by reference, shall apply to the billing and collection
services provided by BA-__ to Carrier hereunder. Carrier will record the ITORP
Transit Service Traffic usage at its switch, and shall bill BA-__ for this
traffic in accordance with the rates set forth in the Interconnection Agreement
under Section 251 and 252 of the Telecommunications Act of 1996, dated as of
September __, 1996, by and between BA-__ and Carrier.
(b) Meet-Point Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ and Carrier
will route their respective Meet-Point Transit Service Traffic over the combined
local and toll trunk groups between them. BA-__ and Carrier agree to designate
the points of interconnection for the purpose of terminating Meet-Point Transit
Service Traffic which originates from a CLEC and terminates to Carrier, or
originates from Carrier and terminates to a CLEC, Independent Telephone Company,
or a wireless carrier. Both parties further agree to develop and file mutually
agreed to billing percentages applicable to Meet-Point Transit Service Traffic
in the National Exchange Carrier Association F.C.C. Tariff No. 4, which billing
percentages shall be calculated in accordance with MECAB guidelines.
(i) End Offices Subtending BA-__ Access Tandem. Meet-Point Transit Service
Traffic will be routed over the local and toll interconnection facilities
used to terminate similar traffic directly between BA-__ and Carrier when
the Originating and Terminating Company's End Office switches subtend
BA-PA's Access Tandem. BA-__ will record this traffic at the BA-__ Access
Tandem, and forward the terminating call records to the Terminating
Company for purposes of Meet-Point Billing.
7
<PAGE>
EXHIBIT D
(ii) End Offices That Do Not Subtend a BA-__ Access Tandem. When the
Originating and/or the Terminating Company's End Office switches do not
subtend BA-PA's Access Tandem, the Meet-Point Transit Service Traffic must
be routed over interconnection facilities other than those used to
terminate intraLATA MTS or Local Exchange Service to BA-PA's end users The
Terminating Company will record this traffic at its Access Tandem and
forward the terminating call records to BA-__ for Meet-Point Billing
purposes.
(iii) Special Access. Upon request, any Meet-Point Service Transit Traffic
may be routed over special access interconnection facilities between
Carrier, on the one hand, and a CLEC, an Independent Telephone Company, or
a wireless carrier, on the other.
(2) Exchange of Billing Data. All billing data exchanged hereunder will be
exchanged on magnetic tape or via electronic data transfer, to be delivered at
the addresses set forth below, using the Electronic Message Record format. BA-__
will provide to Carrier the switched-access detail usage data (category 1101XX
records) on magnetic tape within fourteen (14) days from the date the usage
occurs (to the extent usage occurs on any given day) for traffic originating
from a CLEC, transiting BA-PA's facilities and terminating to Carrier, and
Carrier will provide to BA-__ the switched access summary usage data (category
1150XX records) on a magnetic tape on a monthly basis within fourteen (14) days
of receipt from BA-__ of the switched access detail usage data referenced above.
(3) Billing. BA-__ and Carrier will submit to CLECs separate bills under
their respective tariffs for their portion of jointly-provided Meet-Point
Transit Service Traffic. With respect to Meet-Point Transit Service Traffic,
BA-__ and Carrier will exchange billing data and render bills under Multiple
Bill/Single Tariff arrangements in accordance with the applicable terms and
conditions set forth in MECAB.
(4) Addresses. Magnetic tapes to be sent hereunder to Carrier will be sent
to the following address (which address Carrier may change upon prior written
notice to BA-__):
Magnetic tapes to be sent hereunder to BA-__ will be sent to the following
address(es), as appropriate (which address(es) BA-__ may change upon prior
written notice to Carrier):
Bell Atlantic
Tape Library
8
<PAGE>
EXHIBIT D
1500 Tech Center Drive
Monroeville, PA 15146
SECTION V
800/888 SERVICE
800/888 Service Traffic will be exchanged among BA-__, Carrier,
Independent Telephone Companies, CLECs and wireless carriers via CCS/SS7 trunks,
and all will deliver/route these calls as appropriate and provide EMRs to the
Terminating Company to enable it to bill its 800/888 service subscriber. These
EMRs will, per industry standards, include the following: Category 01 (800/888
number subscriber billing), Category 08 (copy record/local exchange charges),
and Category 11 (interexchange carriers access records).
(a) Delivery of Translated 800/888 Number Queries and calls over CCS/SS7
links and trunks. BA-__ and Carrier will launch their own Basic 800/888 Number
Query for 800/888 Service Traffic originated in their networks, and route this
traffic to each other, as appropriate, utilizing existing local and toll
interconnection facilities.
(b) Exchange of Records; Compensation. All 800/888 Service Traffic
hereunder shall be subject to the appropriate access charges, as set forth in
the applicable tariffs. In addition, for jointly provided intraLATA 800/888
Service Traffic between two Local Exchange Carriers, the Originating Company is
responsible for billing its tariffed Basic 800/888 Number Query charge to the
Terminating Company. Carrier, when acting as an Originating Company, must submit
to BA-__, via magnetic tape(s) in EMR format, (i) the information necessary to
bill/settle intraLATA charges (EMR Category 110125), and (ii) the usage charges
applicable to the terminating 800/888-number service subscriber (EMR Category
010125). In the event any of these records are lost or destroyed, BA-__ and
Carrier will jointly estimate the terminating access charges due to either party
hereunder as follows:
(1) Total the terminating traffic compensation paid with respect to
800/888 Service Traffic to each party hereunder for the most recent
six (6) months period preceding the month covered by the lost or
destroyed tapes.
(2) Divide the total determined in (1) preceding, by 180 days.
(3) Multiply the terminating traffic compensation per day determined in
(2) preceding, by the number of days covered by the lost or
destroyed tapes. The calculated amount will be included as an
adjustment for lost or destroyed tapes in the next Inter-Company Net
Billing Statement.
BA-__ shall have no liability whatsoever with respect to any lost, damaged
or destroyed
9
<PAGE>
EXHIBIT D
records submitted hereunder by Carrier.
(c) Settlement. EMR records submitted by Carrier hereunder acting as an
Originating Company, as contemplated in Paragraph (b) above, will be processed
in accordance with ITORP. For purposes of calculating the access charges due
Local Exchange Carriers with respect to 800/888 Service Traffic, the Originating
Company shall be deemed the Terminating Company. Access charges payable
hereunder shall be calculated in accordance with Section VII of this Agreement,
as applicable.
10
<PAGE>
EXHIBIT D
SECTION VI
ALTERNATELY BILLED CALLS
(a) Responsibilities of the Billing Company. The Billing Company agrees to
provide the Earning Company with billing services, as specified below, with
respect to Alternately Billed Calls.
(1) Billing. Upon receipt of the appropriate Message Record from CMDS, the
Billing Company shall include this record in the bill to be issued to the end
user responsible for payment. The Billing Company shall also submit copies of
these Message Records to BA-__, at least once a month, in order to determine
monthly settlement amounts for both the Billing Company and the Earning Company
which will be reflected in the Inter-Company Net Billing Statement. These
amounts will reflect any and all applicable charges due the Billing Company for
performing billing services hereunder. In addition, as applicable, the
Inter-Company Net Billing Statement will reflect any amounts owed by Carrier to
BA-__ for administering and processing ITORP.
(2) Payment of Amounts Outstanding. Upon receipt of the Inter-Company Net
Billing Statement from BA-__, Carrier shall, within thirty (30) days of invoice,
remit to BA-__ full payment of amounts owed under the Inter-Company Net Billing
Statement.
(b) Responsibilities of the Earning Company. In connection with
Alternately Billed Calls, the Earning Company shall provide Message Records to
the Billing Company on a daily basis to the extent that any usage has been
recorded. These Message Records will be delivered by the Earning Company to the
Billing Company via the CMDS system, unless otherwise agreed to by the parties
hereto.
(c) Fees for Settlement of Alternately Billed Calls. The billing services
provided by the Billing Company to the Earning Company with respect to
Alternately Billed Calls shall be subject to the applicable charges set forth in
Attachment A, which charges will be reflected in the Inter-Company Net Billing
Statement. These charges may be revised upon mutual written agreement of the
parties hereto.
SECTION VII
CALCULATION OF COMPENSATION
BA-__ and Carrier agree to compensate each other with respect to Transit
Services Traffic and 800/888 Service Traffic in accordance with the terms
established below, and the rate elements set forth in Attachments A and B,
attached hereto and incorporated herein by reference.
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<PAGE>
EXHIBIT D
(a) Compensation due to the Terminating/Transiting Company. Compensation
due to the Terminating Company/Transiting Company will be determined separately
for each month as follows:
(1) For Carrier Common Line Facilities provided by the Terminating
Company, an amount calculated as specified for Carrier Common Line Facilities
in the Terminating Company's Exchange Access Tariff. Compensation will be
determined by multiplying a) the Terminating Company's Carrier Common Line
rate, times b) the MOU.
(2) For End Office facilities provided by the Terminating Company, an
amount calculated as specified for End Office facilities in the Terminating
Company's Exchange Access Tariff. Compensation will be determined by multiplying
a) the Terminating Company's appropriate Exchange Access End Office rate
elements, times b) the MOU.
(3) For Transport Facilities, where these facilities are provided by the
Terminating Company, or a Transiting and Terminating Company, an amount
calculated in accordance with the following steps:
(i) Determine the Terminating Company's airline miles from the End
Office which serves the Terminating Company's end user to
either the Terminating Company's Access Tandem switching
facility or the interconnection point with the Transiting
Company(ies).
(ii) Determine the Transiting Company's airlines miles from the
Transiting Company(ies) Access Tandem switching facility to
the interconnection point with the Terminating Company.
(iii) Determine the sum of the total airline miles by adding (i) and
(ii) above.
(iv) Divide the Terminating Company's airline miles determined in
(i) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Terminating Company.
(v) Divide the Transiting Company's airline miles determined in
(ii) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Transiting Company.
(vi) Identify the rates set forth in the Exchange Access Tariff for
either the Terminating Company or Transiting Companies, or
both, as appropriate, which rates are applicable to Transport
Facilities.
(vii) Multiply the ratio determined in (iv) preceding, times the
rate calculated in
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<PAGE>
EXHIBIT D
(vi) preceding, times the MOU, and add the amount set forth in
(ix) below to determine the amount due the Terminating
Company.
(viii) Multiply the ratio determined in (v) preceding, times the
rate calculated in (vi) preceding, times the MOU, and add the
amount set forth in (ix) below to determine the amount due the
Transiting Company.
(ix) To the extent the Exchange Access Tariffs of the Terminating
or Transiting Company, or both, provide for the payment of a
fixed transport charge to be assessed with respect to a
terminating location (End Office or toll switch), multiply
this charge times the chargeable MOU.
SECTION VIII
ITORP ADMINISTRATION AND RESPONSIBILITIES
(a) Responsibilities of BA-__. BA-__ shall:
1. Operate and maintain the ITORP system.
2. Provide the requirements and standards for ITORP records and
tapes (ITORP User Guide).
3. Inform Carrier of any proposed change in tape creation or
distribution process at least sixty (60) days prior to the
actual implementation of the change.
4. Develop and implement all system enhancements required to
maintain the integrity of BA-PA's ITORP system.
5. Process ITORP tapes received from Carrier, or its agent,
during the next available billing cycle.
6. Review and analyze daily pre-edit reports to determine if a
tape is acceptable for ITORP processing; provided, however,
that Carrier is not absolved, as the Originating Company, from
its responsibility to conform to ITORP input requirements.
7. Communicate with Carrier, or its agent, to resolve the
problems with tapes which are identified as being unacceptable
for ITORP processing.
8. Create and/or maintain all ITORP tables.
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EXHIBIT D
9. Include the monthly compensation due to and from Carrier as
identified by ITORP on the Inter-Company Net Billing
Statement. The compensation includes 800/888 Service Traffic
and Alternately Billed Services traffic.
10. Settle with all local Exchange Carriers, via the Inter-Company
Net Billing Statement, for 800/888 Service Traffic and
Alternately Billed Services traffic originating from and/or
terminating to Carrier.
11. Distribute monthly ITORP reports.
(b) Responsibilities of Carrier. Carrier shall:
1. Compensate BA-__ for the administration and processing of
ITORP as specified in Attachment A.
2. Notify BA-__ Exchange Carrier Services staff in writing of any
changes in its rates affecting ITORP tables, as specified in
Attachment A, thirty (30) days prior to the effective date of
any such changes.
3. Notify BA-__ Exchange Carrier Services staff in writing of any
network changes, such as changes in traffic routing, sixty
(60) days prior to the implementation of the change in the
network.
4. Conform to BA-__'s ITORP record requirements and standards.
5. Carrier or its designated agent will forward the Exchange
Message Records to BA-__, in a timely manner for processing.
6. Inform the BA-__ Exchange Carrier Services staff in writing of
any proposed changes in the Exchange Message Record creation
or distribution process at least sixty (60) days prior to the
actual implementation of the change.
7. Reimburse BA-__ for compensating other local Exchange Carriers
on behalf of Carrier, as reflected in the Inter-Company Net
Billing Statement.
(c) Fees. Compensation for the administration and processing of ITORP will
be due BA-__ on a monthly basis, based on the number of messages processed in
ITORP for Carrier at an average total cost per message. The processing and
administrative fees applicable on a per message basis are set forth in
Attachment A. These fees may be revised by BA-__, at its discretion and upon
notice to Carrier, based on annual studies conducted by BA-__, and Carrier
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<PAGE>
EXHIBIT D
hereby agrees to be bound by such revised rates. A minimum monthly fee, as
specified in Attachment A, will be assessed when Carrier's monthly ITORP
processing charges are below the stated minimum monthly charge.
SECTION IX
LIABILITIES
In the event of an error on the part of BA-__ in calculating or settling
any compensation amounts hereunder, Carrier's sole remedy and BA-PA's only
obligation shall be to re-calculate the compensation amount, and to the extent
any amounts are owed to or owed by Carrier, such amounts will be reflected as an
adjustment in the next Inter-Company Net Billing Statement. In addition and to
the extent applicable, BA-PA's liability under this Agreement and/or in
connection with the settlement, payment and/or calculation of any amounts due
hereunder shall be limited as set forth in the applicable tariffs. BA-__ shall
have no obligation or liability with respect to any billing, settlement or
calculation-of-compensation errors or omissions, including without limitation
the duty to re-calculate any compensation amounts reflected in the Inter-Company
Net Billing Statement, if such error or omission occurred more than two (2)
years prior to the time in which it is brought to BA-PA's attention in writing.
Without limiting the foregoing, in no event shall either party hereto be liable
for consequential, incidental, special or indirect damages (including without
limitation loss of profit or business) hereunder whether such damages are based
in tort (including, without limitation, under any theory of negligence),
contract breach or otherwise, and even if said party knew or should have known
of the possibility thereof.
SECTION X
RELATIONSHIP OF THE PARTIES
Nothing herein contained will be deemed to constitute a partnership or
agency relationship between the parties. Each party agrees that it will perform
its obligations hereunder as an independent contractor and not as the agent,
employee or servant of the other party. Neither party nor any personnel
furnished by such party will be deemed employees or agents of the other party or
entitled to any benefits available under any plans for such other party's
employees. Each party has and hereby retains the right to exercise full control
of and supervision over its own performance of the obligations under this
Agreement, and retains full control over the employment, direction, compensation
and discharge of all employees assisting in the performance of such obligations,
including without limitation all matters relating to payment of such employees,
including compliance with social security taxes, withholding taxes and all other
regulations governing such matters. In addition, each party will be responsible
for its own acts and those of its own subordinates, employees, agents and
subcontractors during the performance of that party's obligations hereunder.
15
<PAGE>
EXHIBIT D
SECTION XI
TERM AND TERMINATION
(a) Term - Upon execution by all parties hereto, this Agreement shall
become effective as of the date first shown on Page 1 of this Agreement, and
shall remain in effect until terminated by either party in accordance with
paragraphs (b), (c), (d), or (e) below.
(b) Termination for Breach - Either party may, upon prior written notice
to the other party, terminate this Agreement in the event the other party is in
default or breach of this Agreement and such breach or default is not corrected
within thirty (30) days after the breaching party has been notified of same.
(c) Termination for Convenience - Upon six (6) months written advance
notice to the other party, either party may terminate this Agreement.
(d) Acts of Insolvency - Either party may terminate this Agreement or any
portion thereof, effective immediately, by written notice to the other party, if
said other party (1) applies for or consents to the appointment of or the taking
of possession by receiver, custodian, trustee, or liquidator of itself or of all
or a substantial part of its property; (2) becomes insolvent; (3) makes a
general assignment for the benefit of creditors; (4) suffers or permits the
appointment of a receiver for its business or assets; (5) becomes subject to any
proceeding under any bankruptcy or insolvency law whether domestic or foreign,
voluntarily or otherwise; or (6) fails to contest in a timely or appropriate
manner, or acquiesces in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code or any application for the
appointment of a receiver, custodian, trustee, or liquidation of itself or of
all or a substantial part of its property, or its reorganization, or
dissolution.
(e) Termination of Interconnection Agreement. Unless otherwise agreed to
by the parties hereto in writing, in the event that the Interconnection
Agreement under Sections 251 and 252 of the Telecommunications Act of 1996,
dated as of December __, 1996, by and between BA-__ and Carrier expires without
being renewed, or expires or is terminated and no other interconnection
agreement has been entered into by BA-__ and Carrier, then this Agreement shall
be deemed terminated effective on the date the aforesaid Interconnection
Agreement expires or is terminated.
SECTION XII
NETWORK CONFIGURATION
Each party shall provide six (6) months advance written notice to the
other party of any network configuration that may affect any of the services or
compensation contemplated under this Agreement, and the parties hereto agree to
use reasonable efforts to avoid service
16
<PAGE>
EXHIBIT D
interruptions during any such network change.
SECTION XIII
CONSTRUCTION AND EFFECT
All services contemplated under this Agreement are provided in accordance
with any and all applicable regulatory requirements and effective tariffs filed
with and approved by the appropriate federal and/or state regulatory bodies, as
these tariffs and requirements may be modified from time to time. To the extent
there is a conflict between the terms of any said tariff or regulatory
requirement and this Agreement, the terms of the tariff or the regulatory
requirement shall prevail. However, to the extent not in conflict with the
provisions of the applicable tariffs or regulatory requirements, this Agreement
shall supplement the tariffs or regulatory requirements, and it shall be
construed to the fullest extent possible in harmony with such tariffs or
regulatory requirements.
SECTION XIII
MISCELLANEOUS
(a) Headings. Headings used in this Agreement are for reference only, do
not constitute part of this Agreement, and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
(b) Notices. All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing, shall be deemed delivered
(1) on the date of delivery when delivered by hand, (2) on the date of
transmission when sent by electronic mail or facsimile transmission during
normal business hours with telephone confirmation of receipt, (3) one (1) day
after dispatch when sent by overnight courier maintaining records of receipt, or
(4) three (3) days after dispatch when sent by registered mail, postage prepaid,
return-receipt requested, all addressed as follows (or at such other addresses
as shall be given in writing by either party to their other):
If to BA-__: Address: 1320 N. Court House Road, 9th Floor
Arlington, VA 22201
Attn.: Manager-Local Interconnection
Facsimile: 703 974 2188
Telephone: 704 974 4614
If to Carrier: Address:
Attn:
17
<PAGE>
EXHIBIT D
Facsimile:
Telephone:
(c) Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, and nothing herein shall be
construed to create any rights enforceable by any other person or third party.
This Agreement may not be assigned by either party (except by BA-__ to an
affiliate or successor in interest) without the prior written consent of the
other party, which consent shall not be unreasonably withheld.
(d) Waiver. No waiver of any right or term hereof shall be effective
unless in a writing executed by the waiving party. No waiver of any right or
privilege hereunder shall operate as a waiver of any subsequent or similar right
or privilege.
(e) Modifications. This Agreement may be modified or amended only by a
written agreement executed by the parties hereto.
(f) Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed an original.
(g) Severability. If any term, provision, paragraph or clause of this
Agreement or any application thereof shall be held invalid or unenforceable in
any particular jurisdiction, the remainder of this Agreement and any other
application of such term, provision, paragraph or clause shall not be affected
thereby in such jurisdiction (where such remainder or application shall be
construed as if such invalid or unenforceable term, provision, paragraph or
clause has not been inserted), and this Agreement and such application of such
term, provision, paragraph or clause shall not be affected in any other
jurisdiction.
(h) Contingency. Neither party will be held liable for any delay or
failure in performance of this Agreement from any cause beyond its control and
without its fault or negligence including but not limited to acts of God, acts
of civil or military authority, government regulations, embargoes, epidemics,
wars, terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, floods, strikes, power blackouts, other major environmental
disturbances, unusually sever weather conditions, inability to secure products
or services of other persons or transportation facilities, or acts or omissions
of transportation common carriers.
(i) Governing Law. Except as otherwise expressly provided herein, this
Agreement shall be interpreted, construed and governed by the laws of the State
of ____________, without regard to conflict of law provisions.
(j) Confidentiality. Unless by mutual agreement, or except to the extent
directed by a court of competent jurisdiction, neither party shall disclose this
Agreement or the terms hereof to any person other than such party's affiliates
or such party's officers, employees and consultants,
18
<PAGE>
EXHIBIT D
who are similarly bound hereby. This paragraph shall not prevent the filing of
this Agreement with a state or federal commission having jurisdiction over the
parties hereto if such filing is required by rule or order of that commission;
provided, however, that the parties hereto shall jointly request that the
Agreement be treated as confidential by that commission to the extent permitted
under the commission's regulations and procedures. Each party hereto must
maintain the confidentiality of all message, billing, traffic, and call records,
traffic volumes and all other material information and data pertaining to the
traffic covered by this Agreement and the carriers and end users associated with
such traffic.
(k) Remedies under Law. All remedies available to the parties hereto under
the terms of this Agreement shall be in addition to, and not by way of
limitation of, any other rights that said parties may have at law or equity,
none of which are hereby waived.
(l) Entire Agreement. This Agreement, including all Attachments and
Schedules attached hereto, contains the entire agreement, and supersedes and
voids any prior understanding, between BA-__ and Carrier regarding the subject
matter hereof.
19
<PAGE>
EXHIBIT D
In witness whereof, the undersigned parties have caused this Agreement
to be executed on their behalf this __________ day of _______________, 19__.
Witness: [Carrier]
_________________________________ By:_____________________________________
Witness: Bell Atlantic - _______________, Inc.
_________________________________ By:_____________________________________
20
<PAGE>
EXHIBIT D
ATTACHMENT A
BASIS OF COMPENSATION
CHARGES FOR ADMINISTRATION OF ITORP AND ITORP PROCESSING
A. Bell Atlantic - _____________, Inc. charges the following rates for providing
ITORP services:
Rate Per Message/ Month
1. Administrative Charge $
2. Processing Charge Elements:
a. Terminating Traffic $
b. Minute/Message $
c. 800/888 Message $
d. Net Compensation $
e. Collected Revenue Processing Charge $
3. Minimum Monthly Fee $
4. Alternately Billed Calls $
21
<PAGE>
EXHIBIT D
ATTACHMENT B
I.
Message Telecommunications Service - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Carrier
End Office Carrier
Transport based on negotiated billing percentages (BIPs)
II.
800/888 - Terminating to or originating from Carrier Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Originating Company
End Office Originating Company
Transport based on negotiated billing percentages (BIPs)
Query Originating Company
III.
Local Exchange - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Local E.O. Termination Charge Carrier
Transport based on negotiated billing percentages (BIPs)
22
<PAGE>
EXHIBIT 10.17
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of May 26, 1999
by and between
BELL ATLANTIC - PENNSYLVANIA, INC.
and
HARVARD NET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE TELECOMMUNICATIONS
ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
26th day of May, 1999 (the "Effective Date"), by and between Bell Atlantic -
Pennsylvania, ("BA"), a Pennsylvania corporation with offices at 1717 Arch
Street, Philadelphia, Pennsylvania 19103, and Harvard Net, Inc. ("HarvardNet"),
a Delaware, corporation with offices at 500 Rutherford Avenue, Charlestown,
Massachusetts, 02129 (each a "Party" and, collectively, the "Parties").
WHEREAS, HarvardNet has requested, pursuant to Section 252(i) of the Act,
that BA make available to HarvardNet Interconnection service and unbundled
Network Elements upon the same terms and conditions as provided in the
Interconnection Agreement (and amendments thereto) between Dieca Communications,
Inc. and BA, dated as of October 7, 1998 for Pennsylvania, approved by the
Commission under Section 252 of the Act copies of which agreement and amendments
are attached hereto as Appendix 1 (the "Separate Agreement"); and
WHEREAS, BA has agreed, subject to the terms and conditions set forth
below, to make available to HarvardNet hereby Interconnection service and
unbundled Network Elements upon the terms and conditions of the Separate
Agreement.
NOW, THEREFORE, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, HarvardNet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement (as set forth in Appendix 1 hereto), as it is in effect on
the date hereof after giving effect to operation of law, and of the other
Appendices hereto, are incorporated by reference in their entirety herein and
form an integral part of this Agreement.
1.2 References in Appendix 1 hereto to Dieca Communications, Inc or to
Covad shall for purposes of this Agreement be deemed to refer to HarvardNet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of the Separate Agreement, this Agreement shall
continue in effect until March 15, 2001, unless extended pursuant to Section
22.1 of the Separate Agreement. If the parties to the Separate Agreement
terminate that agreement prior to the above date, such termination shall have no
impact on the term or effectiveness of this Agreement.
1.4 All references in Appendix 1 hereto to "800/888" shall be deleted in
their entirety
<PAGE>
and replaced with the following: "800/888/877" and other such toll free numbers.
1.5 All usage data to be provided pursuant to Sections 6.3.10 of Appendix
1 hereto shall be sent to the following address on behalf of HarvardNet:
Harvard Net, Inc.
Attn: James Newman
Vice President of Operations
500 Rutherford Avenue
Charlestown, MA 02129
1.6 All certificates or other proof of insurance to be sent to BA under
Section 21.3 of Appendix 1 hereto shall be sent to the following address:
Director - Interconnection Services
Bell Atlantic - Telecom Industry Services
Room 1423
1095 Avenue of the Americas
New York, New York 10036
1.7 All notices, affidavits, exemption-certificates or other
communications to HarvardNet under Section 29.6.7 of Appendix 1 hereto shall be
sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (800) 772-6771 (Ext. 607)
Facsimile: (617) 242-6991
1.8 All notices, affidavits, exemption-certificates or other
communications to BA under Section 29.6.7 of Appendix 1 hereto shall be sent to
the following address:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
Telephone: (212) 395-1280
Facsimile: (212) 597-2915
1.9 Notices to HarvardNet under Section 29.10 of Appendix 1 hereto shall
be sent to the following address:
<PAGE>
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (617) 242-1700
Facsimile: (617) 242-6991
1.10 Notices to BA under Section 29.10 of Appendix 1 hereto shall be sent
to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
Bell Atlantic - Pennsylvania, Inc.
Attn: General Counsel
37th Floor
1717 Arch Street
Philadelphia, Pennsylvania 19103
1.11 Schedules 3.0 and 4.0 set forth at Appendix 2 hereto shall replace
and supersede in their entirety Schedules 3.0 and 4.0 of Appendix 1 hereto.
1.12 The rates, charges and other terms set forth in Appendix 3 hereto
shall replace and supersede in their entirety the rates, charges and other terms
set forth in Exhibit A to the Separate Agreement
2.0 Clarifications
<PAGE>
2.1 The entry into, filing and performance by the Parties of this
Agreement does not in any way constitute a waiver by either Party of any of the
rights and remedies it may have to seek review of any of the provisions of the
Separate Agreement, or to petition the Commission, other administrative body or
court for reconsideration or reversal of any determination made by any of them,
or to seek review in any way of any portion of this Agreement in connection with
HarvardNet's election under Section 252(i) of the Act
2.2 Notwithstanding any other provisions of this Agreement, where the
state so mandates, BA shall have no obligation to perform under this Agreement
until such time as HarvardNet has obtained a Certificate of Public Convenience
and Necessity ("CPCN") or such other Commission authorization as may be required
by law as a condition for conducting business in the Commonwealth of
Pennsylvania as a local exchange carrier, provided that, this restriction does
not apply to BA's obligation to provide Collocation or any other tariffed
service to HarvardNet irrespective of HarvardNet's CPCN status.
2.3 The Parties shall meet within thirty (30) days of the Effective Date,
or at such other time to which the Parties mutually agree, to exchange
information and to discuss in good faith the implementation issues addressed in
Section 10.1 (Joint Network Implementation and Grooming Process).
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 26th day of May, 1999.
HARVARD NET, INC. BELL ATLANTIC - PENNSYLVANIA, INC.
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
---------------------------------- -----------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
----------------------------- --------------------------------
Title: President and Chief Executive Title: Vice-President - Interconnection
------------------------------- ----------------------------------
Officer Services Policy & Planning
------------------------------- ----------------------------------
<PAGE>
APPENDIX 3
EXHIBIT A
BELL ATLANTIC - PENNSYLVANIA, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES
<TABLE>
<CAPTION>
A. BA SERVICES, FACILITIES, AND ARRANGEMENTS:(1)
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
I. Local Call Termination(2)
Traffic Delivered at BA End Office $.001864/MOU Not Applicable
Traffic Delivered at BA Tandem
$.002902/MOU Not Applicable
</TABLE>
- ----------
(1) Unless a citation is provided to a generally applicable BA tariff, all
listed rates and services are available only to HarvardNet when purchasing these
services for use in the provision of Telephone Exchange Service, and apply only
to Local Traffic and local Ancillary Traffic. BA rates and services for use by
HarvardNet in the carriage of Toll Traffic shall be subject to BA's tariffs for
Exchange Access Service. Adherence to these limitations is subject to a
reasonable periodic audit by BA.
As applied to wholesale discount rates, unbundled Network Elements or call
transport and/or termination of Local Traffic purchased for the provision of
Telephone Exchange Service or Exchange Access, the rates and charges set forth
in Exhibit A shall apply until such time as they are replaced by new rates as
may be approved or allowed into effect by the Commission from time to time
pursuant to the FCC Regulations, subject to a stay or other order issued by any
court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend
Exhibit A to reflect the new approved rates.
(2) See note 6 regarding measurement and calculation of local traffic
termination charges.
1
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport
A. Dedicated Transport
Voice Grade/DS-0 $10.37/Month & Voice Grade/DS-0, DS-1,
$.03/Mile/Month DS-3 & DDS:
$1.05/Service Order,
DS-1 $37.66/Month & $353.70/Initial Facility &
$.66/Mile/Month $24.00/Additional Facility
(if purchased when initial
DS-3 $526.72/Month & facility ordered)
$18.66/Mile/Month
DDS $10.74/Month &
$.04/Mile /Month
B. Common Transport
Tandem Switching $.000836/MOU Not Applicable
Transport Fixed $.000152/MOU Not Applicable
Transport Per Mile $.000004/MOU Not Applicable
</TABLE>
2
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
C. Entrance Facilities
All:
$1.05/Service Order plus
installation charges for
each initial and
additional facility
purchased at the time of
order:
2Wire Voice Grade Channel Termination $16.78/Month $497.06/Initial &
$289.47/Additional
4Wire Voice Grade Channel Termination $33.76/Month $498.73/Initial &
$290.02/Additional
DS-1 to Voice Grade Multiplexing $77.83/Month $548.06/Initial &
$548.06/Additional
DS-1 Channel Termination $180.59/Month $668.37/Initial &
$331.87/Additional
DS-3 to DS-1 Multiplexing $257.61/Month $548.06/Initial &
$548.06/Additional
DS-3 Channel Termination $1059.65/Month $668.37/Initial &
$331.87/Additional
D. Digital Cross-Connect System
Service Establishment Not Applicable $1890.82
Database Modification Not Applicable $148.68/Modification
Request
Reconfiguration by BA personnel Not Applicable $31.98 Programming
Charge/Half Hour
DS-0 Cross-Connect $20.54/Port/Month $26.17/Port
DS-1 Cross-Connect $71.92/Port/Month $32.71/Port
</TABLE>
3
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
E. Mid-span meet arrangements To be charged in accordance with
the requirements of Section 4.3 of
the Agreement
F. Tandem Transit arrangements for
Local Traffic between HarvardNet
and carriers other than Bell
Atlantic that subtend a Bell
Atlantic Tandem Switch. (Not
applicable to Toll Traffic when
Meet Point Billing Arrangement
applies; Separate trunks required
for IXC subtending trunks)
Tandem Switching $.000836/MOU Per Section II. above and
V., as applicable
Switched Transport $.000152/MOU
$.000004/MOU/Mile
III. Unbundled Switching(3)
A. Local Switching Ports
POTS/PBX/Centrex $2.67/Port/Month $1.05/Service Order Per
Port: $2.97/Installation
$1.32/Disconnect
ISDN (BRI) $10.28/Port/Month $1.05/Service Order Per
Port: $2.97/Installation
$1.32/Disconnect
ISDN (PRI) $135.13/Port/Month $1.05/Service Order Per
Port: $113.36/Installation
$1.32/Disconnect
Public/Semi-Public $3.52/Port/Month $1.05/Service Order
Per Port:
$2.97/Installation
$1.32/Disconnect
</TABLE>
- ----------
(3) In addition to the recurring and non-recurring rates set forth herein for
unbundled switching elements, BA may levy upon purchaser of such elements any
access charges (or portion thereof) permitted by Applicable Laws.
4
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
DID $5.98/Port/Month $1.05/ Service Order
Per Port:
$692.07/Installation
$1.32/Disconnect
B. Tandem Switching Usage $.0008360/MOU Not Applicable
C. Local Switching Usage
Originating With Vertical Features $.011067/MOU Not Applicable
Terminating With Vertical Features $.006143/MOU Not Applicable
</TABLE>
5
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
</TABLE>
6
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops
POTS (Analog 2-Wire) Density Cell: Service Order: $1.05
1 - $11.52/Month Installation:
2 - $12.71/Month If premises visit not
3 - $16.12/Month required - $2.97 initial
4 - $23.11/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $66.85, initial loop;
$22.59, additional loop
Disconnect:
$1.32 per loop
ISDN Density Cell: Service Order: $1.05
1 - $13.16/Month Installation:
2 - $14.35/Month If premises visit not
3 - $17.75/Month required - $12.91 initial
4 - $24.74/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $76.78, initial loop;
$32.52, additional loop
Disconnect:
$1.32 per loop
</TABLE>
7
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
</TABLE>
8
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops (Continued)
Customer Specified Signaling - 2 Wire Density Cell: Service Order: $1.05
1 - $11.52/Month Installation:
2 - $12.71/Month If premises visit not
3 - $16.12/Month required - $2.97 initial
4 - $23.11/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $66.85, initial loop;
$22.59, additional loop
Disconnect:
$1.32 per loop
Coordinated Cutover:
If premises visit not
required - $3.24 per order
If premises visit required
- $12.10 per order
Designed Circuit:
$40.93 per order
</TABLE>
9
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
</TABLE>
10
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops (Continued)
Customer Specified Signaling - 4 Wire Density Cell: Service Order: $1.05
1 - $22.40/Month Installation:
2 - $26.36/Month If premises visit not
3 - $33.03/Month required - $2.97 initial
4 - $45.47/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $66.85, initial loop;
$22.59, additional loop
Disconnect:
$1.32 per loop
Coordinated Cutover:
If premises visit not
required - $3.24 per order
If premises visit required
- $12.10 per order
Designed Circuit:
$40.93 per order
</TABLE>
11
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
</TABLE>
12
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops (Continued)
DS1 Density Cell: Service Order: $1.05
1 - $132.51/Month Installation:
2 - $139.37/Month If premises visit not
3 - $168.59/Month required - $2.97 initial
4 - $252.46/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $66.85, initial loop;
$22.59, additional loop
Disconnect:
$1.32 per loop
Coordinated Cutover:
If premises visit not
required - $3.24 per order
If premises visit required
- $12.10 per order
Designed Circuit:
$40.93 per order
2 Wire ADSL Loops TBD TBD
2 Wire & 4 Wire HDSL Loops TBD TBD
Distance Extensions for various ULL TBD TBD
types for distances exceeding
transmission characteristics in
applicable technical references.
V. Collocation Cross-Connection
A. Voice Grade Loop
Physical DS0 CO side to equipment $.41/Month Not Applicable
Virtual DS0 with RFT CO side MDF to $1.20/Month Not Applicable
equipment
</TABLE>
13
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
Virtual DS1 with EDSX (1DS1 + 24 $60.21/Month Both:
DS0's with IDLC) $1.05/Service Order
$544.36/Initial
Virtual DS1 with CFA (24DS0s with $44.08/Month Installation &
IDLA) $210.46/Additional
Installations
</TABLE>
14
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
V. Collocation Cross-Connection (Continued)
B. Other
Physical DS3 $84.27/Month
All:
Physical DS1 $15.72/Month $1.05/Service Order
$481.36/Initial
Virtual DS3 $88.81/Month Installation &
$194.71/Additional
Virtual DS1 $16.12/Month Installations
VI. Time and Materials
Special Construction As applicable per BA-PA PUC 1 sec. 9
Service Technician (service work on Not Applicable $1.05/Service Order
unbundled loops outside of the Central $26.24/Premises Visit
Office) $12.10 Labor Charge/
Quarter Hour After
First Quarter Hour
Central Office Technician Not Applicable $1.05/Service Order
$10.42 Labor Charge/
Quarter Hour or
Fraction Thereof
VII. Signaling and Databases
A. STP Port
Termination $640.02/Month $94.15/Port
Access $.46/Mile/Month $1.05/Service Order
$274.06/Initial
Facility &
$24.00/Additional
Facility
$1.32/ Disconnect/
Link
B. 800/888/877 Database
Basic Query $.000835/Query Not Applicable
Vertical Query $.000343/Query Not Applicable
</TABLE>
15
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
VII. Signaling and Databases (Continued)
C. LIDB Validation
LIDB Point Codes Not Applicable $85.84/Point Code
Calling Card $.015542/Query Not Applicable
Billed Number Screening $.015542/Query Not Applicable
Storage of HarvardNet's Data in LIDB Not Applicable $1,469.92 Service
Database Establishment
D. AIN Service Creation (ASC) Service
1. Developmental Charges
Service Establishment Not Applicable $884.08
Service Creation Access Port $123.86/Port/Month Not Applicable
Service Creation Usage
a. Remote Access $1,328.47/Day Not Applicable
b. On-Premise $1,328.47/Day Not Applicable
Certification & Testing $76.99/Hour Not Applicable
Help Desk Support $81.48/Hour Not Applicable
2. Service Charges
Subscription Charge $5.44/Month Not Applicable
Database Queries
a. Network Query $.0007/Query Not Applicable
b. HarvardNet Network Query $.0007/Query Not Applicable
c. HarvardNet Switch Query $.0007/Query Not Applicable
Trigger Charge
a. Line Based $.0010/Query Not Applicable
b. Office Based $.0010/Query Not Applicable
Utilization Element $.0003/Query Not Applicable
Service Activation Charge
a. Network Service Activation Not Applicable $8.37/Service
Activated/Line
b. HarvardNet Network Service Not Applicable $8.37/Service
Activation Activated/Line
</TABLE>
16
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
c. HarvardNet Switch Service Not Applicable $8.37/Service
Activation Activated/Line
D. AIN Service Creation (ASC) Service (Continued)
Service Modification
DTMF Update $.1080/Occurrence Not Applicable
Switch Based Announcement $.005/Announcement Not Applicable
VIII. Directory Listings & Books
Primary Listing (on initial UNE service Not Applicable Not Applicable
order). For each residence telephone
number, two (2) listings in the White
Page directory are provided. For each
business telephone number listed (except
numbers of Centrex or Centrex-like
services or indialing service station
lines) one (1) listing is provided in
the White Page Directory and one (1)
listing in the Yellow Page directory of
the type provided to BA-PA end user
business customers for which no specific
charge applies.
Other Tariffed Listing Services (For Retail rates less wholesale discount. For
listings ordered in excess of the primary retail rates see BA-PA tariff No. 1 sec. 5.B.
listings provided or other listing
types, or listings ordered at a time
other than initial UNE service order, or
listings ordered not associated with a
UNE service order.)
Books & delivery (annual home area No charge for normal numbers of books
directories only) delivered to end users; bulk deliveries to
HarvardNet per separate arrangement
</TABLE>
17
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IX. Operator Services/Directory Assistance
Direct Access $.0342/Query $32,135.28/Link &
$15,206.81 Service
Establishment
Directory Assistance $.3664/Call Not Applicable
Directory Transport
Tandem Switching $.000730/Call Not Applicable
Tandem Switched Transport $.000132/Call & Not Applicable
$.000003/Mile/Call
Operator Services - Live $.01280/Operator Not Applicable
Work Second
Operator Services - Automated $.00158/Automated Not Applicable
Work Second
Branding for Directory Assistance and/or Not Applicable $1,358.62/Message
Operator Services
Carrier-to-Carrier LSV/VCI Requests $.01280/Operator Not Applicable
Work Second
</TABLE>
18
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
X. Access to Operation Support Systems
A. Pre-Ordering $.22/Query Not Applicable
B. Ordering $3.34/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.22/Query Not Applicable
2. EB/OSI Access $1.16/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $246.59/CD-ROM Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000258/Message Not Applicable
b. Delivery of DUF
Data Tape $17.18/Tape $61.39/Programming
Hour
Network Data Mover $.000094/Message Not Applicable
CMDS $.000094/Message $61.39/Programming
Hour
c. DUF Transport
9.6 kb Communications Port $10.24/Month $7,437.36/Port
56 kb Communications Port $28.29/Month $30,778.91/Port
256 kb Communications Port $28.29/Month $51,236.88/Port
T1 Communications Port $359.31/Month $182,827.99/Port
Line Installation Not Applicable $61.39/Programming
Hour/Port
Port Set-up Not Applicable $9.85/Port
Network Control Programming Not Applicable $61.39/Programming
Coding Hour/Port
XI. Exchange Access Service
Interstate Per BA-FCC tariff number 1
Intrastate Per BA-PA tariff number 302
</TABLE>
19
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
XII. Number Portability
Interim (using RCF) $1.50/Month/Ported $5.00/Service Order
Number $4.00/Installation/No.
at same location
Access pass-through to number In accordance with Section 14.5 of Agreement
portability purchaser
XIII. 911/E911
Transport Per section II above.
Data Entry and Maintenance No Charge
XIV. Poles Conduits & ROW Per contract rates pursuant to 47 U.S.C.
sec. 224
Illustrative:
Duct: $5.45/Foot/Year
Pole: $3.98/Attachment/Year
XV. Network Interface Device (NID) $.68/Month Not Applicable
XVI. Access to Telephone Numbers (NXX codes No Charge
issued per ICCF Code Administration
Guidelines)
XVII. Local Dialing Parity No Charge
XVIII. Customized Routing
To Reseller Platform $.142360/Line/Month $3.84/Line
To BA Platform for Re-Branding $.08330/Call $3.84/Line
Customized Routing Transport Per section II above.
</TABLE>
20
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
XIX. Wholesale Discount for Resale of Retail Telecommunications Services(4)
Resale of retail services if HarvardNet 20.69%
provides own operator services platform
Resale of retail services if HarvardNet 18.43%
uses Bell Atlantic operator services
platform
Pennsylvania Gross Receipts Tax Discount Discount as per BA-PA PUC 1 sec. 1.8.1
tariff.
</TABLE>
- ----------
(4) Excludes telecommunications services designed primarily for wholesale, such
as switched and special exchange access service, and, subject to Section 12 of
the Agreement, the following additional arrangements that are not subject to
resale: limited duration (90 days or less) promotional offerings, public coin
telephone service, and technical and market trials. Taxes shall be collected and
remitted by the reseller and BA in accordance with legal requirements and as
agreed between the Parties. Surcharges (e.g., 911, telecommunications relay
service, universal service fund) shall be collected by the reseller and either
remitted to the recipient agency or NECA, or passed through to BA for remittance
to the recipient agency or NECA, as appropriate and agreed between the Parties.
End user common line charges shall be collected by the reseller and remitted to
BA.
Pending establishment of mechanized billing procedures adapted to resale,
BA will apply the wholesale discount for resale as a "bottom-of-the-bill"
discount rate and will utilize a "true-up" process to correct possible
inadvertent application of the wholesale discount to the exclusions identified
herein and to reflect other adjustments as the Companies agree.
21
<PAGE>
APPENDIX 3
<TABLE>
<CAPTION>
B. HarvardNet SERVICES, FACILITIES, AND ARRANGEMENTS:
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
I. Local Call Termination(5)
Traffic Delivered at End Office $.001864/MOU Not Applicable
Traffic Delivered at Tandem
$.002902/MOU Not Applicable
II. Number Portability
Interim $1.50/Month/Ported $5.00/Service Order
Number $4.00/Installation/No.
at same location
Permanent Per permanent funding mechanism when
established.
Access pass-through to number portability In accordance with Section 14.5 of Agreement
purchaser
III. Exchange Access Service
Interstate Per HarvardNet FCC exchange access tariff.
Intrastate Per HarvardNet PA tariff exchange access
tariff.
IV. Local Dialing Parity No Charge
V. All Other HarvardNet Services Available Available at HarvardNet's tariffed or
to BA for Purposes of Effectuating Local otherwise generally available rates,
Exchange Competition not to exceed BA rates for equivalent
services available to HarvardNet.
VI. Other Services $.03/Call No Charge
Information Service Billing Fee
</TABLE>
- --------
(5) See note 6 regarding measurement and calculation of local traffic
termination charges.
22
<PAGE>
APPENDIX 3
6 LOCAL TRAFFIC TERMINATION RATES
A. Charges by BA
(a) Traffic delivered to BA Access Tandem: $.002902 per mou.
(b) Traffic delivered directly to terminating BA End Office: $.001864
per mou.
B. Charges by HarvardNet
1. Single-tiered interconnection structure:
HarvardNet's rates for the termination of BA's Local Traffic under the
single-tiered interconnection structure shall be recalculated once each
year on each anniversary of the Effective Date (the "Rate Determination
Date"). The methodology for recalculating the rates is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic
delivered by HarvardNet to BA Access Tandem for most recent billed
quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by
HarvardNet directly to the terminating BA End Office for most recent
billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by
HarvardNet to BA for most recent billed quarter.
HarvardNet Charge at the HarvardNet-IP =
(Access Tandem Minutes x $.002902) + (End Office Minutes x $.001864)
------------------------------------------------------------------
Total Minutes
For the first year after the Effective Date, the HarvardNet charge shall
be calculated based on the traffic data of the quarter immediately
preceding such Effective Date, or if no such traffic exists, on the
proportion of local call termination trunks to BA End Offices and to BA
Access Tandems.
2. Multiple-tiered interconnection structure (if offered by HarvardNet to any
carrier)
(a) Local Traffic delivered to HarvardNet Access Tandem: $.002902
(b) Local Traffic delivered to terminating HarvardNet End Office/node:
$.001864
C. Miscellaneous Notes
1. The HarvardNet termination rate under the single-tiered interconnection
structure set forth above is intended to be a Local Traffic termination rate for
Interconnection to the HarvardNet-IP within each LATA that is reciprocal and
equal to the actual rates that will be charged by BA to HarvardNet under the
two-tiered Local Traffic termination rate structure described above that will
apply after the first anniversary of the Effective Date. The single HarvardNet
termination rate is also intended to provide financial incentives to HarvardNet
to deliver traffic directly to BA's terminating End Offices once HarvardNet's
traffic volumes reach an appropriate threshold.
23
<PAGE>
SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE FOR PENNSYLVANIA
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
================================================================================
LATA in Milestone Date
PENNSYLVANIA
================================================================================
LATA ___ LATA Start Date TBD
- --------------------------------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
- --------------------------------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
- --------------------------------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
- --------------------------------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
- --------------------------------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
- --------------------------------------------------------------------------------
SS7 Certification Achieved;(1) TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements
- --------------------------------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
- --------------------------------------------------------------------------------
Call-through Testing Completed; TBD
"Interconnection Activation Date"
================================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in Pennsylvania when Covad has an
effective Tariff for business Telephone Exchange Service in Pennsylvania and a
significant number of Telephone Exchange Service Customer lines in service for
business Telephone Exchange Service Customers in that LATA in Pennsylvania that
are not affiliates or employees of either BA or Covad, and (ii) residential
Telephone Exchange Service shall be considered "fully operational" in a LATA in
Pennsylvania when Covad has an effective
- ----------
(1) SS7 certification scheduling depends on actual schedule availability at
time of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
1
<PAGE>
Tariff for residential Telephone Exchange Service in Pennsylvania and has a
significant number of Telephone Exchange Service Customer lines in service for
residential Telephone Exchange Service Customers in that LATA in Pennsylvania
that are not affiliates or employees of either BA or Covad.
2
<PAGE>
SCHEDULE 4.0
PENNSYLVANIA
COVAD IPs BA IPs
- --------- ------
TBD TBD
<PAGE>
SCHEDULE 6.3
RATE ELEMENTS UNDER MEET POINT BILLING
Interstate Access - Terminating to or originating from COVAD Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
Intrastate Access - Terminating to or originating from COVAD Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
<PAGE>
SCHEDULE 12.3
SUPPORT SERVICES FOR RESALE
1. BA OSS SERVICES
1.1 Definitions
As used in the Schedule 12.3, the following terms shall have the meanings
stated below:
1.1.1 "BA Operations Support Systems" means BA systems for pre-ordering,
ordering, provisioning, maintenance and repair, and billing.
1.1.2 "BA OSS Services" means access to BA Operations Support Systems
functions. The term "BA OSS Services" includes, but is not limited to: (a)
BA's provision of Covad Usage Information to Covad pursuant to Section 1.3
below; and, (b) "BA OSS Information", as defined in Section 1.1.4 below.
1.1.3 "BA OSS Facilities" means any gateways, interfaces, databases,
facilities, equipment, software, or systems, used by BA to provide BA OSS
Services to Covad.
1.1.4 "BA OSS Information" means any information accessed by, or disclosed
or provided to, Covad through or as a part of BA OSS Services. The term
"BA OSS Information" includes, but is not limited to: (a) any Customer
Information related to a BA Customer or a Covad Customer accessed by, or
disclosed or provided to, Covad through or as a part of BA OSS Services;
and, (b) any Covad Usage Information (as defined in Section 1.1.6 below)
accessed by, or disclosed or provided to, Covad.
1.1.5 "BA Retail Telecommunications Service" means any Telecommunications
Service that Bell Atlantic provides at retail to subscribers that are not
Telecommunications Carriers. The term "BA Retail Telecommunications
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. ss. 153(16)) provided by BA.
1.1.6 "Covad Usage Information" means the usage information for a BA
Retail Telecommunications Service purchased by Covad under this Agreement
that BA would record if BA was furnishing such BA Retail
Telecommunications Service to a BA end-user retail Customer.
1.1.7 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
1
<PAGE>
1.2 BA OSS Services
1.2.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), BA OSS Services.
1.2.2 Subject to the requirements of Applicable Law, BA Operations Support
Systems, BA Operations Support Systems functions, BA OSS Facilities, BA
OSS Information, and the BA OSS Services that will be offered by BA, shall
be as determined by BA. Subject to the requirements of Applicable Law, BA
shall have the right to change BA Operations Support Systems, BA
Operations Support Systems functions, BA OSS Facilities, BA OSS
Information, and the BA OSS Services, from time-to-time, without the
consent of Covad.
1.3 Covad Usage Information
1.3.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), Covad Usage
Information.
1.3.2 Covad Usage Information will be available to Covad through the
following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
1.3.3.1 Covad Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Section 1.3.2(a)
above will be issued each day, Monday through Friday, except holidays
observed by BA.
1.3.4 Except as stated in this Section 1.3, subject to the requirements of
Applicable Law, the manner in which, and the frequency with which, Covad
Usage Information will be provided to Covad shall be determined by BA.
1.5 Access to and Use of BA OSS Facilities
1.5.1 BA OSS Facilities may be accessed and used by Covad only to the
extent necessary for Covad's access to and use of BA OSS Services pursuant
to the Agreement.
1.5.2 BA OSS Facilities may be accessed and used by Covad only to provide
Telecommunications Services to Covad Customers.
1.5.3 Covad shall restrict access to and use of BA OSS Facilities to
Covad. This Schedule 12.3 does not grant to Covad any right or license to
grant sublicenses to other
2
<PAGE>
persons, or permission to other persons (except Covad's employees, agents
and contractors, in accordance with Section 1.5.7 below), to access or use
BA OSS Facilities.
1.5.4 Covad shall not (a) alter, modify or damage the BA OSS Facilities
(including, but not limited to, BA software), (b) copy, remove, derive,
reverse engineer, or decompile, software from the BA OSS Facilities, or
(c) obtain access through BA OSS Facilities to BA databases, facilities,
equipment, software, or systems, which are not offered for Covad's use
under this Schedule 12.3.
1.5.5 Covad shall comply with all practices and procedures established by
BA for access to and use of BA OSS Facilities (including, but not limited
to, BA practices and procedures with regard to security and use of access
and user identification codes).
1.5.6 All practices and procedures for access to and use of BA OSS
Facilities, and all access and user identification codes for BA OSS
Facilities: (a) shall remain the property of BA; (b) shall be used by
Covad only in connection with Covad's use of BA OSS Facilities permitted
by this Schedule 12.3; (c) shall be treated by Covad as Confidential
Information of BA pursuant to subsection 29.4 of the Agreement; and, (d)
shall be destroyed or returned by Covad to BA upon the earlier of request
by BA or the expiration or termination of the Agreement.
1.5.7 Covad's employees, agents and contractors may access and use BA OSS
Facilities only to the extent necessary for Covad's access to and use of
the BA OSS Facilities permitted by this Agreement. Any access to or use of
BA OSS Facilities by Covad's employees, agents, or contractors, shall be
subject to the provisions of the Agreement, including, but not limited to,
subsection 29.4 thereof and Sections 1.5.6 and 1.6.3.3 of this Schedule
12.3.
1.6 BA OSS Information
1.6.1 Subject to the provisions of this Schedule 12.3 and Applicable Law,
BA grants to Covad a non-exclusive license to use BA OSS Information.
1.6.2 All BA OSS Information shall at all times remain the property of BA.
Except as expressly stated in this Schedule 12.3, Covad shall acquire no
rights in or to any BA OSS Information.
1.6.3.1 The provisions of this Section 1.6.3 shall apply to all BA OSS
Information, except (a) Covad Usage Information, (b) CPNI of Covad, and
(c) CPNI of a BA Customer or a Covad Customer, to the extent the Customer
has authorized Covad to use the Customer Information.
1.6.3.2 BA OSS Information may be accessed and used by Covad only to
provide Telecommunications Services to Covad Customers.
3
<PAGE>
1.6.3.3 Covad shall treat BA OSS Information that is designated by BA,
through written or electronic notice (including, but not limited to,
through the BA OSS Services), as "Confidential" or "Proprietary" as
Confidential Information of BA pursuant to subsection 29.4 of the
Agreement.
1.6.3.4 Except as expressly stated in this Schedule 12.3, this Agreement
does not grant to Covad any right or license to grant sublicenses to other
persons, or permission to other persons (except Covad's employees, agents
or contractors, in accordance with Section 1.6.3.5 below, to access, use
or disclose BA OSS Information.
1.6.3.5 Covad's employees, agents and contractors may access, use and
disclose BA OSS Information only to the extent necessary for Covad's
access to, and use and disclosure of, BA OSS Information permitted by this
Schedule 12.3. Any access to, or use or disclosure of, BA OSS Information
by Covad's employees, agents or contractors, shall be subject to the
provisions of this Agreement, including, but not limited to, subsection
29.4 of the Agreement and Section 1.6.3.3 above.
1.6.3.6 Covad's license to use BA OSS Information shall expire upon the
earliest of: (a) the time when the BA OSS Information is no longer needed
by Covad to provide Telecommunications Services to Covad Customers; (b)
termination of the license in accordance with this Schedule 12.3; or (c)
expiration or termination of the Agreement.
1.6.3.7 All BA OSS Information received by Covad shall be destroyed or
returned by Covad to BA, upon expiration, suspension or termination of the
license to use such BA OSS Information.
1.6.4 Unless sooner terminated or suspended in accordance with the
Agreement or this Schedule 12.3 (including, but not limited to, subsection
22.3 of the Agreement and Section 1.7.1 above), Covad's access to BA OSS
Information through BA OSS Services shall terminate upon the expiration or
termination of the Agreement.
1.6.5.1 Without in any way limiting subsection 18.3 of the Agreement, BA
shall have the right (but not the obligation) to audit Covad to ascertain
whether Covad is complying with the requirements of Applicable Law and
this Agreement with regard to Covad's access to, and use and disclosure
of, BA OSS Information.
1.6.5.2 Without in any way limiting any other rights BA may have under the
Agreement or Applicable Law, BA shall have the right (but not the
obligation) to monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad pursuant to this Agreement, to
ascertain whether Covad is complying with the requirements of Applicable
Law and this Agreement, with regard to Covad's access to, and use and
disclosure of, such BA OSS Information. The foregoing right shall include,
but not be limited to, the right (but not the obligation) to
electronically monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad through BA OSS Facilities.
4
<PAGE>
1.6.5.3 Information obtained by BA pursuant to this Section 1.6.5 shall be
treated by BA as Confidential Information of Covad pursuant to subsection
29.4 of the Agreement; provided that, BA shall have the right (but not the
obligation) to use and disclose information obtained by BA pursuant to
this Section 1.6.5 to enforce BA's rights under the Agreement or
Applicable Law.
1.6.6 Covad acknowledges that the BA OSS Information, by its nature, is
updated and corrected on a continuous basis by BA, and therefore that BA
OSS Information is subject to change from time to time.
1.7 Liabilities and Remedies
1.7.1 Any breach by Covad, or Covad's employees, agents or contractors, of
the provisions of Sections 1.5 or 1.6 above shall be deemed a material
breach of the Agreement. In addition, if Covad or an employee, agent or
contractor of Covad at any time breaches a provision of Sections 1.5 or
1.6 above and such breach continues for more than ten (10) days after
written notice thereof from BA, then, except as otherwise required by
Applicable Law, BA shall have the right, upon notice to Covad, to suspend
the license to use BA OSS Information granted by Section 1.6.1 above
and/or the provision of BA OSS Services, in whole or in part.
1.7.2 Covad agrees that BA would be irreparably injured by a breach of
Sections 1.5 or 1.6 above by Covad or the employees, agents or contractors
of Covad, and that BA shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of any
such breach. Such remedies shall not be deemed to be the exclusive
remedies for any such breach, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
1.8 Relation to Applicable Law
The provisions of Sections 1.5, 1.6 and 1.7 above shall be in addition to
and not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. ss. 222, and are not intended to constitute a
waiver by BA of any right with regard to protection of the confidentiality
of the information of BA or BA Customers provided by Applicable Law.
1.9 Cooperation
Covad, at Covad's expense, shall reasonably cooperate with BA in using BA
OSS Services. Such cooperation shall include, but not be limited to, the
following:
1.9.1 Upon request by BA, Covad shall by no later than the fifteenth
(15th) day of each calendar month submit to BA reasonable, good faith
estimates (by central office or other BA office or geographic area
designated by BA) of the volume of each BA Retail
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Telecommunications Service for which Covad anticipates submitting orders
in each week of the next calendar month.
1.9.2 Upon request by BA, Covad shall submit to BA reasonable, good faith
estimates of other types of transactions or use of BA OSS Services that
Covad anticipates.
1.9.3 Covad shall reasonably cooperate with BA in submitting orders for BA
Retail Telecommunications Services and otherwise using the BA OSS
Services, in order to avoid exceeding the capacity or capabilities of such
BA OSS Services.
1.9.4 Covad shall participate in cooperative testing of BA OSS Services
and shall provide assistance to BA in identifying and correcting mistakes,
omissions, interruptions, delays, errors, defects, faults, failures, or
other deficiencies, in BA OSS Services.
1.10 BA Access to Information Related to Covad Customers
1.10.1 BA shall have the right to access, use and disclose information
related to Covad Customers that is in BA's possession (including, but not
limited to, in BA OSS Facilities) to the extent such access, use and/or
disclosure has been authorized by the Covad Customer in the manner
required by Applicable Law.
1.10.2 Upon request by BA, Covad shall negotiate in good faith and enter
into a contract with BA, pursuant to which BA may obtain access to Covad's
operations support systems (including, systems for pre-ordering, ordering,
provisioning, maintenance and repair, and billing) and information
contained in such systems, to permit BA to obtain information related to
Covad Customers (as authorized by the applicable Covad Customer), to
permit Customers to transfer service from one Telecommunications Carrier
to another, and for such other purposes as may be permitted by Applicable
Law.
2. BELL ATLANTIC PRE-OSS SERVICES
2.1 As used in this Schedule 12.3, "BA Pre-OSS Service" means a service
which allows the performance of an activity which is comparable to an
activity to be performed through a BA OSS Service and which BA offers to
provide to Covad prior to, or in lieu of, BA's provision of the BA OSS
Service to Covad. The term "BA Pre-OSS Service" includes, but is not
limited to, the activity of placing orders for BA Retail
Telecommunications Services through a telephone facsimile communication.
2.2 Subject to the requirements of Applicable Law, the BA Pre-OSS Services
that will be offered by BA shall be as determined by BA and BA shall have
the right to change BA Pre-OSS Services, from time-to-time, without the
consent of Covad.
2.3 Subject to the requirements of Applicable Law, the prices for BA
Pre-OSS Services shall be as determined by BA and shall be subject to
change by BA from time-to-time.
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2.4 The provisions of Sections 1.5 through 1.9 above shall also apply to
BA Pre-OSS Services. For the purposes of this Section 2.4: (a) references
in Sections 1.5 through 1.9 above to BA OSS Services shall be deemed to
include BA Pre-OSS Services; and, (b) references in Sections 1.5 through
1.9 above to BA OSS Information shall be deemed to include information
made available to Covad through BA Pre-OSS Services.
3. RATES AND CHARGES
The prices for the foregoing services shall be as set forth in BA's
Tariffs or, in the absence of an applicable BA Tariff price, in Exhibit A
or, if not set forth in either, as may be determined by BA from time to
time. If BA at any time offers another resale support service the prices
for which are not stated in BA's Tariffs or Exhibit A, BA shall have the
right to revise Exhibit A to add such prices.
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SCHEDULE 13.4
COLLOCATION: SHARED CAGE ARRANGEMENT
1. Service Description
(A) Shared Cages provide an additional option to Covad for
Interconnection and access to unbundled Network Elements. Shared
Cages refers to an arrangement in which a Collocation node is shared
by two CLECs purusant to terms and conditions agreed to by those
CLECs.
(B) For established collocation nodes, the initial CLEC is the
"Collocator of Record" ("COR"), or "host" collocator; the other
collocator participating in the sharing arrangement is referred to
in this Agreement as the "guest". When two collocators request
establishment of a new Collocation node, to be used as a Shared
Cage, one of the participating CLECs must agree to be the COR and
the other to be the guest. The host collocator is BA's customer, and
has all of the rights and obligations applicable under this
Agreement and the applicable Tariff to CLECs purchasing
Collocation-related services, including, without limitation, the
obligation to pay all applicable charges, whether or not the COR is
reimbursed for all or any portion of such charges by the guest.
Neither this Agreement, nor any actions taken by BA or the COR in
compliance with this Agreement or the applicable Tariff, shall
create a contractual, agency, or any other type of relationship
between BA and the guest collocator in a sharing arrangement; and BA
does not assume any liability or obligation to the guest for any
actions of the COR. The two involved collocators are solely
responsible for determining whether to share a cage, and if so upon
what terms and conditions.
2. Shared Cage Arrangement
(A) The host CLEC must notify BA in writing of its intention to share
its cage space and provide BA with a certificate of insurance from
the guest before the guest occupies the cage.
(B) All orders for Telecommunications Services or unbundled Network
Elements must be placed by or on behalf of the COR. The host and
guest may agree that such orders may be placed by the guest on
behalf of the host, but in such case BA must be provided with an
acceptable Letter of Authorization explicitly authorizing the guest
to place such orders. Where an order is placed by the guest in
conformity with this section BA will send bills for the ordered
services to the guest, and will accept payments from the guest on
the COR's account. Notwithstanding such ordering and billing
arrangements, the obligation to pay BA for such services
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remains exclusively with the COR, regardless of whether the guest
complies with its obligations under its contract with the COR to
make payments to the COR or to BA. BA may pursue any available
rights and remedies against the COR in the event of non-payment,
without first seeking payment from the guest, regardless of whether
the services for which payment is due are being used by the COR or
by the guest.
(C) All terms and conditions for Physical Collocation as described in
applicable Tariffs and in Section 13.0 of this Agreement will apply.
In addition, the following terms and conditions will apply to shared
cages:
(1) The guest must be a CLEC.
(2) The host and guest must each be collocating for the purpose of
interconnecting to BA or accessing BA's unbundled Network
Elements.
(3) In its use of a Shared Cage, the guest must comply with the
same BA rules and regulations and municipal/zoning regulations
as are applicable to the COR.
(4) The COR assumes the responsibility for the guest's violation
of all Tariff regulations and other requirements related to a
Shared Cage arrangement, and will be liable for any damage or
injury to BA caused by the conduct of the guest, to the same
extent as the COR would be liable if it had engaged in such
conduct itself. The COR will also indemnify BA against any
third-party claims resulting from the guest's conduct, to the
same extent as it would be responsible for such
indemnification if it had engaged in such conduct itself.
(5) The host and guest will participate in Method of Procedure
(MOP) meetings detailing the installation work to be performed
by the guest. This shall be completed for all Physical
Collocation equipment installation. The host shall prominently
display the signed MOP at the multiplexing node while any
installation functions are performed.
(6) The host must provide BA's designated representative(s) with a
list of the names of all technicians who will need access to
the Shared Cage for support, maintenance and repair purposes.
The host is responsible for supplying such representative(s)
with the required completed non-employee ID badge application
forms and all appropriate indentification material for its
employees/agents as well as those of the guest.
(7) BA will issue only one identifying cage and POT Bay CLLI code
and provide it to the host. The host will assume connecting
facility assignment (CFA) responsibilities.
(8) All occupancy and specific cage construction communications
(e.g., cage
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augments, cage access or deployment requirements) will be
between the host and BA as specified in this Agreement.
(9) The host will remain responsible for all costs associated with
the cage (e.g., cage construction, POT Bay installation). BA
will not split bill any of the rate elements associated with
the Collocation cage between the host and its tenant (e.g.,
recurring square foot charges, power, cable racking).
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SCHEDULE 27.2
PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
1. Performance Monitoring Reports
1.1. Subject to the provisions of this Schedule 27.2, BA shall provide to Covad
performance monitoring reports ("Performance Monitoring Reports") for services
and facilities provided by BA. Subject to the provisions of Appendix 1, the
Performance Monitoring Reports will include the measurements set forth in
subsections (a) through (d) of this Section 1.1, to the extent the measurements
set forth in a subsection are applicable to the services set forth in such
subsection: (a) for services provided to BA's retail customers, in the
aggregate, the measurements stated in Appendix 1, Section 6, "Retail"; (b) for
services and facilities provided to any BA local exchange affiliate purchasing
Interconnection,(1) if BA decides to operate a wholesale carrier, the
measurements stated in Appendix 1, Section 2, "Unbundled Network Elements",
Section 3, "Resale", and Section 4, "Network Interconnection Trunks"; (c) for
services and facilities provided to carriers purchasing Interconnection, in the
aggregate, the measurements stated in Appendix 1, Section 1, "OSS", Section 2,
"Unbundled Network Elements", Section 3, "Resale", Section 4, "Network
Interconnection Trunks", and Section 5, "CLEC Billing"; and, (d) for services
and facilities provided to Covad, the measurements stated in Appendix 1, Section
2, "Unbundled Network Elements", Section 3, "Resale", and Section 4, "Network
Interconnection Trunks".(2)
- ----------
(1) As used in this Schedule 27.2, Section 1.1, "Interconnection" includes
interconnection, transport and termination, services for resale, and/or access
to unbundled network elements, under Section 251 of the Act, as amended.
(2) The measurements listed in subsections (b) and (d) do not include Section 2,
"Unbundled Network Elements", Measurement 7, "% Flow Through Orders", and
Section 3, "Resale", Measurement 7, "% Flow Through Orders".
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1.2 The Performance Monitoring Reports shall be provided on a calendar quarter
basis (January through March, April through June, July through September,
October through December) with monthly information detail. The Performance
Monitoring Reports shall be provided within forty-five (45) days after the
completion of each calendar quarter. The first Performance Monitoring Reports
shall cover the calendar quarter of [?], 1998.
2. Performance Metrics, Standards and Remedies
2.1 Appendix 2 sets out performance standards for 21 service quality measurement
items ("Performance Metrics") listed in the Performance Monitoring Reports. BA
shall measure on a calendar quarter basis BA's performance for each Performance
Metric for service provided to Covad.
2.2 If for any calendar quarter BA fails to meet the standard for a Performance
Metric for service provided to Covad, BA will conduct an investigation with
regard to the failure. The investigation will review the validity of the
measurement for the Performance Metric, and, if the measurement is concluded to
be valid, identify the cause of the failure. After identifying the cause of the
failure, BA will take commercially reasonable action to correct the failure
resulting from such cause. Covad shall provide all information and support
reasonably requested by BA in order to enable BA to conduct the investigation
and to correct any failure.
2.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2, above, to the extent the failure to meet the standard
for a Performance Metric is caused by a Delaying Event. As used in this Schedule
27.2, "Delaying Event" means: (a) a failure by Covad to perform any of its
obligations set forth in this Agreement; (b) any delay, act or failure to act by
Covad or a customer, end-user, agent, affiliate, representative, vendor, or
contractor of Covad; (c) any Force Majeure Event
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as defined in Section 28.3; (d) any event, delay, act or failure to act, beyond
the reasonable control of BA; or, (e) such other event, delay, act or failure to
act upon which the Parties may agree. In calculating a Performance Metric, BA
may adjust the performance data to exclude any negative effect upon BA's meeting
the standard for the Performance Metric caused by a Delaying Event. If, pursuant
to this Section 2.3.1, BA adjusts performance data to exclude a negative effect
upon BA's meeting the standard for a Performance Metric caused by a Delaying
Event, BA shall provide to Covad a reasonably detailed description of the
adjustment. If Covad disputes the appropriateness of the adjustment, either
Party may seek resolution of the dispute in accordance with Section 28.11 of the
Agreement.
2.3.2 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric that shows a failure to meet
a performance standard if BA can reasonably show that (a) the measurement for
the Performance Metric does not have a statistically valid basis, or (b) the
data measured for service provided to Covad cannot be validly compared to the
measurement to which Appendix 2 specifies such data is to be compared (e.g., the
measurement for service provided to BA retail customers). If, pursuant to the
preceding sentence of this Section 2.3.2, BA excludes from action under Section
2.2 any Performance Metric, BA shall provide to Covad a reasonably detailed
explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
2.3.3 BA may exclude from consideration in calculating Performance Metrics any
activities where Covad has requested a date due or other performance interval
different from (greater or less than) that which BA provides for its own retail
customers or its other telecommunications carrier customers.
2.3.4 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric where the data for two or
more months in a calendar quarter have been
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excluded from consideration pursuant to the provisions of this Agreement.
2.4 For each Performance Metric related to UNE or Resale Services that requires
calculation of a percentage, a minimum of 200 items per calendar quarter for the
denominator shall be a prerequisite (e.g., a/200 x 100 = b%). Lack of the
minimum 200 items will result in BA being deemed to have met the standard for
that Performance Metric. For each Performance Metric related to Interconnection
Trunks that requires calculation of a percentage, a minimum of 50 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/50 x 100 =
b%). Lack of the minimum 50 items will result in BA being deemed to have met the
standard for that Performance Metric.
2.5 As used in Appendix 2 for those Performance Metrics where "Parity" is the
standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
3. Performance Measurements, Standards and Remedies
3.1 Appendix 3 sets forth nine (9) performance categories ("Performance
Categories"). Each Performance Category is composed of one or more performance
measurements, which are listed in the left-hand column of each Performance
Category matrix ("Performance Measurements"). Each Performance Category
point-score, when calculated, will be the sum of the point-scores of the
Performance Measurements composing that Performance Category, and may be "0", a
positive number (+1 or higher), or a negative number (-1 or less).
3.2 BA shall measure on a calendar quarter basis BA's performance for each
Performance Measurement for service provided to Covad. No later than sixty (60)
days after the completion of each calendar quarter, BA shall forward to Covad a
statement showing BA's performance for each Performance Measurement for service
provided to Covad and a calculation of each Performance
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Category point-score ("Performance Statement").
3.3 If for any calendar quarter BA fails to obtain a point-score of "0" or
higher for a Performance Measurement for service provided to Covad, BA will
conduct an investigation with regard to the failure. The investigation will
review the validity of the measurement for the Performance Measurement, and, if
the measurement is concluded to be valid, identify the cause of the failure.
After identifying the cause of the failure, BA will take commercially reasonable
action to correct the failure resulting from such cause. Covad shall provide all
information and support reasonably requested by BA in order to enable BA to
conduct this investigation and to correct any failure to obtain a point-score of
"0" or higher for the Performance Measurement.
3.4.1 Subject to the provisions of this Schedule 27.2 and other applicable
provisions of this Agreement, if the point-score for a Performance Category for
service provided to Covad is a negative number (-1 or less) for two (2)
consecutive calendar quarters, BA shall give a billing credit to Covad in the
amount provided for in Appendix 3 ("Performance Credit"). A Performance Credit
shall be given for the second consecutive calendar quarter and for each
subsequent consecutive calendar quarter for which the point-score for the
Performance Category is a negative number (-1 or less). Each Performance
Statement shall include a statement showing any Performance Credit due to Covad.
Each Performance Credit which is due shall be applied to an appropriate Covad
bill no later than thirty (30) days after the Performance Statement stating that
the Performance Credit is due is delivered to Covad.
3.4.2 If the point-score for a Performance Category for service provided to
Covad is a positive number (+1 or more), BA may use the positive point-score for
that Performance Category to off-set a negative point-score for that Performance
Category for the next calendar quarter.
3.4.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 3.3, or
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to pay a Performance Credit, to the extent the negative point-score for a
Performance Measurement or Performance Category is caused by a Delaying Event,
as defined in Section 2.3.1, above. In calculating a Performance Measurement, BA
may adjust the performance data to exclude any negative effect on BA's meeting
the performance standard for the Performance Measurement caused by a Delaying
Event. If, pursuant to this Section 3.4.3.1, BA adjusts performance data to
exclude a negative effect on BA's meeting the performance standard for a
Performance Measurement caused by a Delaying Event, BA shall provide to Covad a
reasonably detailed description of the adjustment. If Covad disputes the
appropriateness of the adjustment, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.2 BA may exclude from consideration in calculating Performance Category
Point Scores and Performance Credits, and shall not be obligated to take
investigative or corrective action pursuant to Section 3.3 with regard to, any
Performance Measurement that shows a failure to meet a performance standard if
BA can reasonably show that (a) the measurement for the Performance Measurement
does not have a statistically valid basis, or (b) the data measured for service
provided to Covad cannot be validly compared to the measurement to which
Appendix 3 specifies such data is to be compared (e.g., the measurement for
service provided to BA retail customers). If, pursuant to the preceding sentence
of this Section 3.4.3.2, BA excludes from consideration in calculating
Performance Category Point Scores and Performance Credits and from action under
Section 3.3 any Performance Measurement, BA shall provide to Covad a reasonably
detailed explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.3 BA may exclude from consideration in calculating Performance
Measurements any activities
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where Covad has requested a date due or other performance interval different
from (greater or less than) that which BA provides for its own retail customers
or its other telecommunications carrier customers.
3.4.3.4 BA may also exclude from consideration in calculating Performance
Category point-scores and Performance Credits, and shall not be obligated to
take investigative or corrective action pursuant to Section 3.3 with regard to,
any Performance Measurement where the data for two or more months in a calendar
quarter have been excluded from consideration pursuant to the provisions of this
Agreement.
3.4.4 For each Performance Measurement related to OSS, UNE, Resale Services or
Billing, that requires calculation of a percentage, a minimum of 200 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/200 x 100
= b%). Lack of the minimum 200 items will result in BA receiving a "0 Points"
score for that Performance Measurement. For each Performance Measurement related
to Interconnection Trunks that requires calculation of a percentage, a minimum
of 50 items per calendar quarter for the denominator shall be a prerequisite
(e.g., a/50 x 100 = b%). Lack of the minimum 50 items will result in BA
receiving a "0 Points" score for that Performance Measurement.
3.4.5 As used in Appendix 3 for those Performance Measurements where "Parity" is
the standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
4. Notwithstanding anything in this Agreement to the contrary, the Performance
Metrics, Performance Metrics standards, Performance Measurements, Performance
Measurements standards, Performance Categories, and Performance Credits,
provided for in this Schedule 27.2 shall also apply to Covad with regard to OSS,
UNE, Resale Services, Interconnection Trunks,
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and other services and arrangements, purchased by BA from Covad. Covad shall for
OSS, UNE, Resale Services, Interconnection Trunks, and other services and
arrangements, purchased by BA from Covad, provide to BA Performance Monitoring
Reports and Performance Statements similar to those to be provided by BA to
Covad. If Covad fails to meet a standard for a Performance Metric or a
Performance Measurement or incurs a negative point-score on a Performance
Category, Covad shall (a) undertake correction of the failure, to the same
extent as BA would be required to undertake correction of the failure under this
Schedule 27.2, and (b) give Performance Credits to BA, to the same extent as BA
would be required to give Performance Credits to Covad under this Schedule 27.2.
5. Appendix 1 sets out definitions for terms that are used in this Schedule
27.2. Except as clearly stated otherwise in a particular instance, these
definitions apply throughout this Schedule 27.2.
6. Covad agrees that the information contained in the Performance Reports and
the information contained in the Performance Statements is confidential and
proprietary to BA, and shall be used by Covad solely for internal performance
assessment purposes, for purposes of joint Covad and BA assessments of service
performance, and for reporting to the Commission, the FCC, or courts of
competent jurisdiction, under cover of an agreed-upon protective order, for the
sole purpose of enforcing BA's obligations under this Agreement. Covad shall not
otherwise disclose the information contained in the Performance Reports or
Performance Statements to third-persons.
7. BA shall provide Covad with access to the available data and information
necessary for Covad to verify the accuracy of the Performance Monitoring Reports
provided by BA to Covad. Covad agrees that such data and information is
confidential and proprietary to BA and shall be used by Covad solely for the
purpose of verifying the accuracy of the Performance Monitoring Reports. Covad
shall not disclose such data and information to third-persons. BA shall be
obligated to retain data and information for access by Covad under this Section
7 only for the period of time required by Applicable
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Laws.
8. In providing Performance Reports to Covad, providing Performance Statements
to Covad, providing Covad with access to data and information pursuant to
Section 7, above, and otherwise performing its obligations under this Schedule
27.2, BA shall not be obligated, and may decline, to disclose to Covad any
individually identifiable information pertaining to a person other than Covad,
including, but not limited to, any other carrier customer of BA or any retail
customer of BA.
9. The Parties acknowledge that this Schedule 27.2 is intended to implement
obligations of BA under the FCC's Memorandum Opinion and Order in "In the
Applications of NYNEX Corporation, Transferor, and Bell Atlantic Corporation,
Transferee, For Consent to Transfer Control of NYNEX Corporation and Its
Subsidiaries", File No. NSD-L-96-10, Released August 14, 1997. This Schedule
27.2 shall be interpreted and construed in a manner consistent with the FCC's
Memorandum Opinion and Order.
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SCHEDULE 27.2
APPENDIX 1
PERFORMANCE MONITORING REPORTS
1. OSS
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
OSS:
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time: Not Carrier Specific
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and
reservation
- --------------------------------------------------------------------------------
2. Availability of BA interface to OSS access: Not Carrier Specific
- --------------------------------------------------------------------------------
o % Interface Uptime(3)
- --------------------------------------------------------------------------------
- ----------
(3) This Schedule contemplates that measurements will be conducted in connection
with the use and/or operations of various BA systems (including, but not limited
to, ECG, EDI, WebGUI, and BA systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing). The Parties, through good faith
negotiation, shall amend this Schedule from time-to-time as necessary to conform
the Schedule to changes in, discontinuance of, or replacement of, BA systems.
Nothing in this Schedule shall be deemed to prevent BA from changing,
discontinuing or replacing any BA system or any version, issue or edition of a
BA system.
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2. UNBUNDLED NETWORK ELEMENTS ("UNE"):
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
- --------------------------------------------------------------------------------
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
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2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. - Dispatch
o % Missed Installation Appt. - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appt.
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
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2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Trouble Report Rate - Dispatch
o Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt - Dispatch
o % Missed Repair Appt - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Dispatch (Run
Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
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3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials
o Average Response Time - Rejects
o Mechanized (Flow Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
% Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
14
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed -No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
15
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) -
Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair (Run Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
16
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
17
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o a. Average Response Time: Firm Order
Confirmation
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
4. Reject Timeliness Manual Tracking
- --------------------------------------------------------------------------------
o a. Average Response Time: Rejects
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion Manual Tracking
(Requires Serial Number)
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
18
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Network Performance
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Blockage
- --------------------------------------------------------------------------------
19
<PAGE>
5. CLEC BILLING (All Services, Interconnection, UNE and Resale):
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Usage Feed
- --------------------------------------------------------------------------------
o Timeliness of Usage Information
o % Usage in 3 business days
- --------------------------------------------------------------------------------
o % Usage in 4 business days
o % Usage in 5 business days
o % Usage in 8 business days
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Bill Not Carrier Specific
- --------------------------------------------------------------------------------
20
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time:
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and reservation
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
21
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines):
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) - Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate - Total
o Network Trouble Report Rate - Dispatch
o Network Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Total (Run Clock)
o Mean Time to Repair - Dispatch (Run Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
22
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Trunks
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered FGD
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed FGD
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons) FGD
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities FGD
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days FGD
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate FGD
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock) FGD
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours FGD
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days FGD
- --------------------------------------------------------------------------------
19. % Common Final Trunk Blockage
- --------------------------------------------------------------------------------
23
<PAGE>
DEFINITIONS
The following definitions apply to the terms used in this Schedule 27.2.
Product Definitions:
- --------------------------------------------------------------------------------
Products: Definition:
- --------------------------------------------------------------------------------
o POTS services Retail and Resale POTS includes all non-designed
lines/circuits that originate at a customer's
premise and terminate on an OE (switch Office
Equipment). All others are considered specials.
POTS includes Centrex, Basic ISDN and PBX trunks.
- --------------------------------------------------------------------------------
UNE POTS includes Basic 2-Wire Analog Loop,
Customer specified signaling loops, Analog Line
Port, and Interim Number Portability. Includes
both new loops and "coordinated cutover" loop
orders. "Coordinated cutover" loops are orders
where a live customer is converted to a CLEC
re-using the outside plant facilities.
Coordination of all parties is necessary to
minimize disruption of service to the end user.
- --------------------------------------------------------------------------------
o Special Services Special Services ("Specials") are services or
elements that require design intervention. These
include such services/elements as: high capacity
services (DS1 or DS3), Primary rate ISDN, digital
services, private lines, multiplexing, and
Interoffice Facilities.
- --------------------------------------------------------------------------------
o Interconnection Trunks Includes switched local interconnection (message)
trunks carrying traffic between BA and CLEC
offices. Includes End Office and Tandem trunks.
- --------------------------------------------------------------------------------
o Number of Installation Total number of "N", "T", or "C" type orders.
Orders These orders include new orders, orders where the
service is moving to a different location, or
changes for existing service.
- --------------------------------------------------------------------------------
24
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Pre-Ordering: .
- --------------------------------------------------------------------------------
1. Response Time: Note: All Pre-Order measures are reported on an
aggregated basis and are not CLEC specific. Where
BA uses an access platform and Operations Support
System (OSS) that serve multiple states, BA may
combine measurement data from those states for
this measurement.
"Response time" is defined as the time, in
seconds, that elapses from issuance of a query
request to receipt of a response. For CLECs, this
performance is measured at the ECG access
platform. For BA, this performance is measured
directly to and from the Operations Support System
(OSS). (This measurement does not apply to the
WebGUI interface.)
Methodology: BA to sample ten (10) transactions
per hour per transaction type, for each interface,
from Monday to Friday, 8 a.m. to 5 p.m., via
Sentinel system. Sentinel will replicate the
transaction of a BA service representative going
directly to the OSS as well as a CLEC
representative going to the OSS through ECG.
- --------------------------------------------------------------------------------
o Customer Service Record Customer Service Records can range from 1 to about
200 pages.
BA may combine measurement data for PA and DE for
this measurement.
BA may combine measurement data for DC, MD, VA and
WV for this measurement.
- --------------------------------------------------------------------------------
o Other Pre-Order Includes the average response time for the
aggregate performance of the following: (1) due
date availability; (2) address validation; (3)
product & service availability; and, (4) telephone
number availability/reservation.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, WV) for this
measurement.
- --------------------------------------------------------------------------------
25
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
2. OSS Interface Note: All Pre-Order measures are reported on an
Availability aggregated basis and are not CLEC specific. Where
BA uses an access platform that serves multiple
states, BA may combine measurement data from those
states for this measurement.
Measures the percentage of time the OSS interface
is available compared to scheduled availability.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, (%) WV) for this
measurement.
- --------------------------------------------------------------------------------
Ordering:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Mechanized WebGUI4 receipt of a valid order request to EDI or
Orders WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that
flow-through to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Manual Orders WebGUI receipt of a valid order request to EDI or
WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of a
valid Access Service Request ("ASR") to
distribution of a Firm Order Confirmation ("FOC").
Hours exclude weekends and holidays. Includes
orders for less than 96 trunks for which
facilities are available. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
- ----------
(4) As of the effective date of this Agreement, BA's WebGUI may not be fully
available for use in the BA-South states (DE, DC, MD, NJ, PA, VA, WV).
Accordingly, references in this Schedule 27.2 to BA's WebGUI are to BA's WebGUI
when and to the extent it is available for use by [CLEC].
26
<PAGE>
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the Firm
Order Confirmations are sent more than ten (10)
days after receipt of a valid ASR. Days exclude
weekends and holidays. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
27
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
4. Reject Notice Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Mechanized WebGUI receipt of an order request to EDI or
WebGUI distribution of reject or query. Hours
exclude weekends and holidays. Includes orders
received via EDI or WebGUI that flow-through to
legacy OSS ordering and provisioning systems. Does
not include orders with negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Manual WebGUI receipt of a service request to EDI or
WebGUI distribution of reject or query. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of an
Access Service Request ("ASR") to distribution of
a reject or query. Hours exclude weekends and
holidays. Includes orders for less than 96 trunks
for which facilities are available. All ASRs must
be electronically transmitted for measurement to
apply. Does not include orders with negotiated
intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the
reject or query is sent more than 10 days after
receipt of an ASR. Days exclude weekends and
holidays. All ASRs must be electronically
transmitted for measurement to apply. Does not
include orders with negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
28
<PAGE>
- --------------------------------------------------------------------------------
5. % Rejects The percent of total orders received that are
rejected or queried by BA.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
6. Timeliness of Completion The average interval (in days) from work
Notification completion to the distribution of the order
completion notification. Under the current
process: UNE non-loop and Resale order completion
notifications are transmitted either
electronically via EDI or WebGUI or via FAX; for
UNE loop orders, measurement is from the turnover
of the loop to telephonic acceptance by the CLEC;
and, for Interconnection Trunks, measurement is
from work completion to telephonic acceptance by
the CLEC at turn-up. Does not include orders with
negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
7. % Flow Through Orders The percentage of valid orders received via EDI or
WebGUI and processed directly to legacy service
order processor without manual intervention.
Flow-Through measurements are reported on an
aggregated basis and not on a CLEC specific basis.
Where BA uses an access platform and OSS that
serve multiple states, BA may combine measurement
data from those states for this measurement.
- --------------------------------------------------------------------------------
Provisioning:
- --------------------------------------------------------------------------------
8. Average Interval - Average number of business days between order
Offered application date and committed due date. The
application date is the date that a valid service
request is received. For orders received after 12
Noon Eastern Time the next business day is
considered the application date. Includes "W"
coded orders only. Does not include an order with
a due date that is beyond the standard available
appointment interval. Does not include coordinated
cut-over orders.
- --------------------------------------------------------------------------------
29
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
9. Average Interval - Average number of business days between order
Completed application date and actual work completion date.
The application date is the date that a valid
service request is received. Completion date is
the field completion date noted on the Service
Order. Includes "W" coded orders only. Orders
completed late due to a CLEC or CLEC end user
caused delay are excluded from this performance
measure. Does not include an order with a due date
that is beyond the standard available appointment
interval.
- --------------------------------------------------------------------------------
10. % Completed within For POTS orders of 1 to 5 lines. The percentage of
5 business days - Total orders completed in 5 business days between order
application date and actual work completion date.
The application date is the date that a valid
service request is received. Includes "W" coded
orders only. Orders completed late due to a CLEC
or CLEC end user caused delay are excluded from
this performance measure. Does not include an
order with a due date that is beyond the standard
available appointment interval. Does not include
coordinated cut-over orders, such as loop or
number portability orders.
- --------------------------------------------------------------------------------
11. % Missed Installation Percentage of all orders completed for which there
Appointment - BA - Total was a missed installation appointment caused by
BA. Excludes missed installation appointments
caused by CLEC or end user, including required
access not available during appointment interval.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require the
Appointment - Dispatch assignment of loop facilities, switching
office equipment, or both.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require
Appointment - No switching translations work only. These
Dispatch are primarily "feature orders".
- --------------------------------------------------------------------------------
12. % Missed Installation Percentage of all orders completed for which there
Appointment - Facilities was a missed installation appointment due to lack
of BA facilities.
- --------------------------------------------------------------------------------
30
<PAGE>
- --------------------------------------------------------------------------------
13. % Installation Troubles Percentage of lines/circuits/trunks ordered for
within 30 Days which a Network Trouble (Disposition Codes, 3, 4
and 5) is reported and found within 30 days of
order completion. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), and troubles closed due to
customer action. Trouble reports on unregulated
services, such as Voice Messaging, are excluded.
- --------------------------------------------------------------------------------
31
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Maintenance:
- --------------------------------------------------------------------------------
14. Network Trouble Report Total Initial Customer direct or referred Troubles
Rate reported on services by customer, where the
trouble disposition was found to be a network
problem (Disposition Codes 3, 4 and 5), per 100
lines/circuits/trunks in service. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Codes 3 (Drop Wire) and
Dispatch 4 (Outside Plant) only. Troubles found to be in
the Outside Plant facilities.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Code 5 (Central Office)
No Dispatch only. Troubles found to be within the Central
Office, including translation troubles.
- --------------------------------------------------------------------------------
15. % Missed Repair The percentage of Initial Network Trouble Reports
Appointments (Disposition Codes 3, 4 and 5) that are not
repaired and cleared by the time committed.
Excludes subsequent reports (additional customer
calls while the trouble is pending), Customer
Provided Equipment (CPE) troubles, troubles
reported but not found (Found OK and Test OK), and
troubles closed due to customer action. Also
excludes missed repair appointments caused by CLEC
or end user, including required access not
available during appointment interval. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch was
Appointment - Dispatch required outside of the BA Central Office and the
trouble was found in Outside Plant (Disposition
Codes 3 and 4). Troubles where there was both an
inside and an outside dispatch are included if the
final resolution was a loop trouble.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch may
Appointment - No have been required outside of the BA Central
Dispatch Office, but the trouble was resolved within the
Central Office. Includes translation type troubles
as well as Central Office type troubles.
- --------------------------------------------------------------------------------
32
<PAGE>
- --------------------------------------------------------------------------------
16. Mean Time to Repair For Initial Customer Trouble Reports found to be
network troubles (Disposition Codes 3, 4 and 5),
the average duration time from trouble receipt to
trouble clearance. Running clock for POTS
troubles. Stop Clock for Specials troubles and
Interconnection Trunk troubles. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
17. % Out of Service Network troubles (Disposition Codes 3, 4 and 5)
[greater than] 24 Hours out of service, repaired and cleared more than 24
hours after receipt of a customer trouble report,
as a percentage of total network troubles
(Disposition Codes 3, 4 and 5) out of service. Out
of Service means that there is no dial tone, the
customer cannot call out, or the customer cannot
be called. The Out of Service period commences
when the trouble is entered into BA's designated
trouble reporting interface either directly by the
CLEC or by a BA representative upon notification
by the CLEC. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), troubles closed due to customer
action, and troubles not out of service. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
Key Service Quality Measurement Definitions:
33
<PAGE>
- --------------------------------------------------------------------------------
18. % Repeat Trouble The percentage of network troubles (Disposition
Reports within 30 days Codes 3, 4 and 5) cleared that have an additional
trouble within thirty (30) days for which a
network trouble (Disposition Codes 3, 4 and 5) is
found. A "Repeat Trouble Report" is a trouble on
the same line/circuit/trunk as a previous trouble
reported within the last thirty (30) calendar
days. A trouble report is not treated as a "Repeat
Trouble Report" where the original trouble report
was: trouble that had an originating disposition
code of CPE (customer premises
equipment--disposition codes 12 and 13); trouble
that had an originating disposition code of
Customer Action (disposition code 6); or, trouble
that originally closed as a Front End Close-Out. A
trouble report is also not treated as a "Repeat
Trouble Report" where the repeat report is: a
subsequent report (an additional customer call
while the trouble is pending); customer provided
equipment (CPE) trouble; trouble reported but not
found (Found OK and Test OK); or, trouble closed
due to customer action.
- --------------------------------------------------------------------------------
Network Performance:
- --------------------------------------------------------------------------------
19. % Common Final Trunk Measures the percentage of BA Common Final Trunk
Blockage Groups that exceed the applicable blocking design
threshold (either B.01 or B.005).
Common Final Trunks: Common Final Trunks carry
local traffic between BA end offices and the BA
Tandem and between BA end offices.
Does not include Common Final Trunks carrying only
IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA trunk
groups exceeding the applicable blocking design
threshold (either B.01 or B.005) will be reported.
For B.01 design, this is trunk groups exceeding a
threshold of about 3% blocking. For B.005 design,
this is trunk groups exceeding a threshold of
about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
- --------------------------------------------------------------------------------
34
<PAGE>
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Measures the percentage of BA Dedicated Final
Blockage Trunk Groups that exceed the applicable blocking
design threshold (either B.01 or B.005).
Dedicated Final Trunks: Dedicated final trunk
groups carry local traffic from a BA Access Tandem
to a CLEC switch. A dedicated final trunk group
does not overflow.
Does not include IXC dedicated trunks or Dedicated
Final Trunks carrying only IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA to CLEC
dedicated final trunk groups exceeding the
applicable blocking design (either B.01 or B.005)
will be reported. For B.01 design, this is trunk
groups exceeding a threshold of about 3% blocking.
For B.005 design, this is trunk groups exceeding a
threshold of about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
35
<PAGE>
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Measures the number of business days from the
Usage Feed creation of the message to the date that the usage
information is made available to the CLEC on the
daily usage feed. Measured in percentage of usage
records available for transmission in 3, 4, 5, and
8 business days. The measurement includes both UNE
and Resale.
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Measures the percentage of carrier bills ready for
Bill distribution to the carriers within 10 business
days of the bill date. Includes mechanized and
paper carrier CABS bills for both carrier access
and CLECs. Does not include summary bills sent
from CRIS. This is an aggregate measurement and
not CLEC specific.
- --------------------------------------------------------------------------------
36
<PAGE>
SCHEDULE 27.2
APPENDIX 2
PERFORMANCE METRICS, STANDARDS AND REMEDIES
A. Unbundled Network Elements
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(UNE KSQM 13)(5) Parity
- ----------
(5) "(UNE KSQM 13)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Metric.
37
<PAGE>
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(UNE KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair - Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair - No Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
B. Resale Services
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - No Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (Specials)
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - No Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
38
<PAGE>
- --------------------------------------------------------------------------------
Average Interval Completed (Specials)
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair (POTS)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
C. Interconnection Trunks
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
FOC Timeliness [greater than or equal
(Network Interconnection Trunks {"IT"} KSQM 3.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Rejects Timeliness [greater than or equal
(IT KSQM 4.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Average Interval Offered
(IT KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed
(IT KSQM 9) Parity
- --------------------------------------------------------------------------------
D. Network Performance
1. Final Trunk Group Blocking
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Dedicated Final Trunk Group Blockage (CLEC Trunks) Standard, as
(IT KSQM 20) applicable)
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Common Final Trunk Group Blockage (Retail Trunks) Standard, as
(IT KSQM 19) applicable)
- --------------------------------------------------------------------------------
39
<PAGE>
Parity
"Parity" will be determined in accordance with the statistical methodology set
forth in Appendix 4, "Statistical Methodology for Determining 'Parity' Range".
"Parity" for UNE and Resale Services will be based upon a comparison of BA's
performance for the above Performance Metrics with BA's performance for the
appropriate corresponding Retail measurements set forth in Appendix 1, or, in
the absence of appropriate corresponding Retail measurements set forth in
Appendix 1, Retail measurements as reasonably determined and provided by BA.
Definitions, Conditions, Requirements & Exclusions for Appendix 2
See, "UNE Definitions, Conditions, Requirements & Exclusions", "Resale
Definitions, Conditions, Requirements & Exclusions", "Interconnection Trunk
Definitions, Conditions, Requirements & Exclusions", and "Billing Definitions,
Conditions, Requirements & Exclusions", in Appendix 3, which are incorporated
here by reference. As used in this Appendix 2, references to Performance
Measurements in "UNE Definitions, Conditions, Requirements & Exclusions",
"Resale Definitions, Conditions, Requirements & Exclusions", "Interconnection
Trunk Definitions, Conditions, Requirements & Exclusions", and "Billing
Definitions, Conditions, Requirements & Exclusions", in Appendix 3, shall be
deemed to be references to Performance Metrics.
Resale Services
1. Ordering and Provisioning. Average Interval Offered and Average Interval
Completed Performance Measurements do not include orders with negotiated
intervals.
Interconnection Trunks
1. FOC and Rejects measurements apply only to electronically received ASRs.
2. FOC and Rejects measurements apply only to additions to existing trunk
groups, adding less than 96 trunks, with no routing or translations changes.
3. Average Interval Offered measurement comparison is to IXC Feature Group D
switched access trunks provided by BA to IXCs.
4. Average Interval Offered measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
5. Average Interval Completed comparison is to IXC Feature Group D switched
access trunks provided by BA to IXCs.
6. Average Interval Completed measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
40
<PAGE>
SCHEDULE 27.2
APPENDIX 3
PERFORMANCE MEASURMENTS, STANDARDS AND REMEDIES
A. Operational Support Systems
1. Performance Category 1 -- OSS Pre-Order Response Time and Availability
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Customer Service [greater than] 7.0 to 8.5 [less than]
Records 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.a)(6) difference difference difference
- -------------------------------------------------------------------------------------
</TABLE>
- ----------
(6) "(OSS KSQM 1)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Measurement.
41
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Aggregated Other [greater than] 7.0 to 8.5 [less than]
Pre-Order Transactions 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.b) difference difference difference
- -------------------------------------------------------------------------------------
Access Platform Availability (1) [less than] 99 % [greater than
(OSS KSQM 2) Availability or equal to] 99%
Availability
- -------------------------------------------------------------------------------------
</TABLE>
(1) Excludes (a) scheduled maintenance and (b) unavailability of Operations
Support Systems (e.g., BOSS, Livewire) other than the access platform.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 to -2 points = 1 % of OSS Charges for the Measured Calendar Quarter
-3 points = 2 % of OSS Charges for the Measured Calendar Quarter
42
<PAGE>
OSS Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Response Time:
1. Performance Measurements and Performance Credits apply only to use of the ECG
gateway or such successor OSS gateway as shall be implemented and designated for
measurement under this Performance Category by BA.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
3. Performance Measurements apply only to CSR Retrieval and Aggregated Other
Pre-Order Transactions. Aggregated Other Pre-Order Transactions will initially
include Telephone Number Availability and Reservation, and Address Validation.
Product & Service Availability Information and Due Date Availability will be
added in the future.
4. Covad shall provide to BA forecasts of volumes at least six (6) months prior
to the commencement of the measured calendar quarter. Forecasts for UNE and
Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. Forecasts for Interconnection Trunk volumes (including both number of
orders to be submitted and number of items of service to be ordered) shall be
submitted by Covad either (a) for each month or (b) for each quarter, in which
case the quarterly volume will be pro-rated to a monthly volume. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in timely submitted forecasts by more than 15%
(plus or minus), BA may exclude that month from consideration in calculating
Performance Measurements and Performance Credits and determining whether BA is
obligated to take investigative or corrective action under Section 3.3. If Covad
fails to timely provide the forecasts of volumes to BA, BA may exclude
Performance Category 1 and the Performance Measurements in Category 1 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(7)
- ----------
(7) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
43
<PAGE>
all transactions for that day will be deemed to have at least met "Equals
Standard" ("O" Points).
6. These Performance Measurements are not carrier specific.
Access Platform Availability:
1. This Performance Measurement is not carrier specific. This Performance
Measurement measures the overall availability performance of the OSS access
platform and is not service or function specific.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
44
<PAGE>
B. Unbundled Network Elements:
1. Performance Category 2 - UNE Ordering and Provisioning: (8)
- ----------
(8) "Performance Category 2 - UNE Ordering and Provisioning" does not include
measurement of Provisioning (measurement of Missed Installation Appointments)
for new 2 - Wire ISDN Digital Grade ULLs (BRI ISDN).
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order confirmation
(1) Orders received after 12:00 Noon Eastern Time shall have the "clock" start
at 8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 to -3 points = 5 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -4 to -5 points = 10 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -6 to -7 points = 15 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
45
<PAGE>
(1) Missed Installation Factor = (Missed Installation Appointments for UNE POTS
and Specials provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for UNE POTS and Specials provided by BA
to Covad for the measured calendar quarter) - (Missed Installation Appointments
for POTS and Specials provided by BA to BA retail customers for the measured
calendar quarter as a percentage of Installation Appointments for POTS and
Specials provided by BA to BA retail customers for the measured calendar
quarter).
If more than 10% of Covad's orders are rejected or queried by BA, (9) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
- ----------
(9) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
46
<PAGE>
2. Category 3 - Provisioning of 2-Wire ISDN Digital Grade ULLs (BRI ISDN) (10)
This section applies to missed installation appointments for orders of new(11)
2-Wire ISDN Digital Grade ULLs (BRI ISDN) as described in Section 11.2.3 of this
Agreement.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - No Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding BA
retail measurements for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN).
- ----------
(10) BA is currently developing the means to perform the Performance
Measurements listed in this Category 3. BA will take commercially reasonable
efforts to implement performance of these Performance Measurements within a
reasonable period of time. Until BA has implemented its performance of the
Performance Measurements listed in this Performance Category 3, Performance
Category 3 will not apply and BA will not have an obligation to take
investigative or corrective action pursuant to Section 3.3 with regard to the
Performance Measurements listed in Category 3 or to calculate or provide
Performance Credits pursuant to Category 3.
(11) This section does not apply to the cutover of existing 2-Wire ISDN Digital
Grade loops from BA to Covad.
47
<PAGE>
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 point = 2.5 % of Non-Recurring Charges for orders of new 2-Wire
ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
-2 = 5 % of Non-Recurring Charges for orders of new 2-Wire ISDN
Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for orders of
new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter as a percentage of Installation Appointments for
orders of new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad
for the measured calendar quarter) - (Missed Installation Appointments for
orders of new 2-Wire ISDN Digital Grade lines (BRI ISDN) provided by BA to BA
retail customers for the measured calendar quarter as a percentage of
Installation Appointments for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN) provided by BA to BA retail customers for the measured calendar quarter).
48
<PAGE>
3. Performance Category 4 - UNE Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(UNE KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 2 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-2 points = 4 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-3 points = 6 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
(1) Lines Out of Service Factor = (Percentage of Covad UNE POTS and Specials
lines network troubles out of service [greater than] 24 hours - Percentage of BA
retail customer POTS and Specials lines network troubles out of service [greater
than] 24 hours) x (Covad UNE POTS and Specials lines with network troubles out
of service [greater than] 24 hours, as a percentage of the measured calendar
quarter average total Covad UNE POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair/maintenance function, mutual responsibilities exist. The
responsibility for testing unbundled loops and the identification of a required
dispatch for UNE reside with Covad. Reductions
49
<PAGE>
will be made in the Performance Credit if necessary access is not available, or
if a dispatch is made and no trouble is found,(12) or if trouble is found to be
on the Covad customer's side of the network demarcation point (e.g., in premises
wiring or customer premises equipment), at a statistically higher rate than BA
experiences for BA's own retail customers.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
% No Access Moderate to Parity (1) Moderate to
High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
% Found OK or Trouble Found on Moderate to Parity (1) Moderate to
Customer Premises High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(12) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
50
<PAGE>
UNE Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Unbundled Switching Network Elements are included for measurement after the
establishment of unbundled switching in the switch through the joint
planning/services establishment process.
2. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all UNE
ordering which can be performed via EDI; or, (b) BA's WebGUI is in place and
being used by Covad for all UNE ordering which can be performed via BA's WebGUI.
Covad must implement later specifications of EDI and later versions of WebGUI
within 90 days (or such other shorter period as may be required by this
Agreement) after BA has made them available for Covad's use.
3. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
4. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(13) all
transactions for that day will be deemed to have at least met "Equals Standard"
("O" Points).
- ----------
(13) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
51
<PAGE>
5. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(14) or Covad's customers (including, but not limited to, inability to
access customer interfaces and terminals).
2. If the Expedited Due Dates(15) for UNEs covered by Performance Category 2 for
any one month in a measured calendar quarter exceed 10% of the total
appointments for such UNEs for that month, BA will not be obligated to calculate
Performance Category 2 for that month, or the Performance Measurements in
Performance Category 2 for that month, and may exclude Performance Category 2
for that month, and the Performance Measurements in Performance Category 2 for
that month, from calculation of Performance Credits and from taking
investigative and corrective action under Section 3.3.
If the Expedited Due Dates for UNEs covered by Performance Category 3 for any
one month in a measured calendar quarter exceed 10% of the total appointments
for such UNEs for that month, BA will not be obligated to calculate Performance
Category 3 for that month, or the Performance Measurements in Performance
Category 3 for that month, and may exclude Performance Category 3 for that
month, and the Performance Measurements in Performance Category 3 for that
month, from calculation of Performance Credits and from taking investigative and
corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
a. Loop Orders:
(i) ANI to Covad telephone number, verification successful from
DEMARC by BA field technician.
(ii) All order information submitted by Covad was valid, accurate
and complete (e.g., street address, end user local contact (LCON),
floor/unit number, appropriate Covad transmission equipment
assignment information).
(iii) Covad and Covad's customer were available and ready for
service at appointed date and time.
(iv) Verifiable Covad dial tone and correct Covad telephone number
at POT bay testable by BA technician, by 8:00 a.m. on the date due
minus one (1) day.
- ----------
(14) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(15) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
52
<PAGE>
(v) Accurate account and end user information was submitted on the
service request.
(vi) Orders were completed as submitted without cancellation after
Order Confirmation.
(vii) Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
(viii) For ISDN loops, copper ISDN loops are available that, without
conditioning, meet BA's technical specifications for ISDN loops.
4. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude the
Missed Installation Appointments Performance Measurements for that month from
the calculation of calendar quarter Performance Measurements and Performance
Credits.
6. Performance Measurement calculations for provisioning will exclude UNEs
provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. UNE loops that meet the standards identified in appropriate BA unbundled loop
Technical References will not be treated as Out of Service.
4. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
53
<PAGE>
5. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
54
<PAGE>
C. Resale Services:
1. Performance Category 5 - Resale Services Ordering and Provisioning:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order Confirmation
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- -1 to -3 points = 5 % of Resale Services Non-Recurring Charges for Covad for the
measured calendar quarter multiplied by the Missed Installation Factor(1)
-4 to -5 points = 10 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
55
<PAGE>
-6 to -7 points = 15 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for Resale
Services provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for Resale Services provided by BA to
Covad for the measured calendar quarter) - (Missed Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter as a percentage of Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter).
If more than 10% of Covad's orders are rejected or queried by BA,(16) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
2. Performance Category 6 - Resale Services Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(Resale KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding
Retail measurements set forth in Appendix 1, or, in the absence of appropriate
corresponding Retail measurements set forth in Appendix 1, Retail measurements
to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- ----------
(16) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
56
<PAGE>
-1 point = 2 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -2 points = 4 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -3 points = 6 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
(1) Lines Out of Service Factor = (Percentage of Covad Resale Services POTS and
Specials lines network troubles out of service [greater than] 24 hours -
Percentage of BA retail customer POTS and Specials lines network troubles out of
service [greater than] 24 hours) x (Covad Resale Services POTS and Specials
lines with network troubles out of service [greater than] 24 hours, as a
percentage of the measured calendar quarter average total Covad Resale Services
POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair function, mutual responsibilities exist. The responsibility for
authorizing a dispatch resides with Covad. Reductions will be made in the
Performance Credit if necessary access is not available, or if a dispatch is
made and no trouble is found,17 or if trouble is found to be on the Covad
customer's side of the network demarcation point (e.g., in premises wiring or
customer premises equipment), at a statistically higher rate than the same
performance that BA experiences for BA's own retail customers.
- --------------------------------------------------------------------------------
Equals
Measurement Misses Standard Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
% No Access Rate Moderate to High Parity (1) Moderate to High
probability less than probability better
Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
% Found OK or Trouble Moderate to High Parity (1) Moderate to High
Found on Customer probability less than probability better
Premises Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(17) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
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<PAGE>
Resale Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all Resale
Services ordering which can be performed via EDI; or, (b) BA's WebGUI is in
place and being used by Covad for all Resale Services ordering which can be
performed via BA's WebGUI. Covad must implement later specifications of EDI and
later versions of WebGUI within 90 days (or such other shorter period as may be
required by this Agreement) after BA has made them available for Covad's use.
2. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
3. When Covad submitted work load for any one hour in a day is more than twice
(2x) the daily average hour Covad submitted work load,(18) all transactions for
that day will be deemed to have at least met "Equals Standard" ("O" Points).
4. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
- ----------
(18) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
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<PAGE>
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(19) or Covad's customers (including, but not limited to, inability to
access interfaces and terminals).
2. If the Expedited Due Dates(20) for any one month in a measured calendar
quarter exceed 10% of the total appointments for that month, BA will not be
obligated to calculate Performance Category 5 for that month, or the Performance
Measurements in Performance Category 5 for that month, and may exclude
Performance Category 5 for that month, and the Performance Measurements in
Performance Category 5 for that month, from calculation of Performance Credits
and from taking investigative or corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
(a) All order information submitted by Covad was valid (e.g., street
address, end user local contact (LCON), Floor/unit number).
(b) Covad and Covad's customer were available and ready for service at the
appointed date and time. Access to Terminal Equipment was available.
(c) Accurate account and customer information was submitted by Covad.
(d) Orders were completed as submitted without cancellation after Order
Confirmation.
(e) Covad and Covad's customer were available for testing and cooperative
coordination as requested by BA.
4. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude
Missed Installation Appointment Performance Measurements for that month from the
calculation of calendar quarter Performance Measurements and Performance
Credits.
- ----------
(19) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(20) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
59
<PAGE>
6. Performance Measurement calculations for provisioning will exclude Resale
Services provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
4. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
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<PAGE>
D. Interconnection Trunks
1. Performance Category 7 - Interconnection Trunk Provisioning
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
-1 Point 0 Points + 1 Point
- --------------------------------------------------------------------------------
Provisioning - Missed Moderate to Parity(2) Moderate to
Installation Appointments(1) High High
(IT KSQM 11) probability probability
less than better than
Parity(2) Parity(2)
- --------------------------------------------------------------------------------
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score Credit Applied to
----- ------ ----------
0 or greater No Performance Credits
-1 point 10 % Trunk Non-Recurring Charges for
Covad for the measured calendar
quarter
multiplied by the Missed
Installation Factor(3)
(3) Missed Installation Factor = (Missed Covad Trunk Installation Appointments
for the measured calendar quarter as a percentage of Covad Trunk Installation
Appointments for the measured calendar quarter) - (Missed Installation
Appointments for BA IXC Feature Group D Trunks for the measured calendar quarter
as a percentage of BA IXC Feature Group D Trunk Installation Appointments for
the measured calendar quarter).
Adjustment of Performance Credit:
In the provisioning function, mutual responsibilities exist. In addition to
trunks provided by BA to Covad, Covad will provide trunks to BA. If the
percentage of Missed Appointments for trunks ordered by BA from Covad exceeds
the percentage of missed appointments for trunks ordered by Covad from BA
performance, the Performance Credit will be reduced as stated below. (The
percentage missed appointment calculation comparison requires a minimum sample
size of 50 trunks on both sides to be valid.) Covad shall maintain due date
intervals for trunks to be provided by Covad to BA that are no
61
<PAGE>
longer than BA's due date intervals for comparable trunks.
Trunks Ordered by BA from Covad
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Measurement 100% reduction in Credit 50% Reduction in Credit
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Provisioning of Trunks for BA by Covad - Missed [greater than] 5 percentage points [greater than] 2 but [less than
Installation Appointments: worse than BA Performance or equal to] 5 percentage points
worse than BA Performance
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
2. Performance Category 8 - Interconnection Trunk Maintenance and Repair
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Performance Misses Standard Equals Standard Exceeds Standard
Measurement - 1 point 0 points + 1 point
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Out of Service [greater than] 24 Hours Moderate to High Parity(1) Moderate to High
(IT KSQM 17) probability less than probability better
Parity(1) than Parity(1)
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score % Credit Applied to
----- -------- ----------
0 or greater No Performance Credits
-1 point $ 1.00 Per DS1 Trunk per Day out Lines Out of Service Factor
of service
(1) Lines Out of Service Factor = (Percentage of Covad Interconnection Trunks
network troubles out of service [greater than] 24 hours - Percentage of BA IXC
Feature Group D Trunks network troubles out of service [greater than] 24 hours)
x (Covad Interconnection Trunks with network troubles out of service [greater
than] 24 hours, as a percentage of the measured calendar quarter average total
Covad Interconnection Trunks in service).
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<PAGE>
Interconnection Trunk Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Provisioning:
1. Performance Measurement calculations for provisioning will be performed only
if for the measured calendar quarter a minimum of 50 trunks was installed by BA
for Covad and a minimum of 100 IXC Feature Group D trunks was installed by BA
for IXCs.
2. Orders must be received electronically, using a BA supported version of BA's
electronic Access Service Request System.
3. Performance Measurement calculations for provisioning will exclude trunks
provided pursuant to negotiated installation intervals.
4. Performance Measurement calculations for provisioning will be based on
comparisons by trunk type (e.g., DS0 with DS0, DS1 with DS1).
5. Covad shall provide to BA forecasts of Interconnection Trunk volumes at least
six (6) months prior to the commencement of the measured calendar quarter.
Forecasts for Interconnection Trunk volumes (including both number of orders to
be submitted and number of items of service to be ordered) shall be submitted by
Covad either (a) for each month or (b) for each quarter, in which case the
quarterly volume will be pro-rated to a monthly volume. If submission volumes
for any one month in a measured calendar quarter vary from forecasted volumes
for such month stated in submitted forecasts by more than 15% (plus or minus),
BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide the forecasts of volumes to BA, BA may exclude Performance
Category 7 and the Performance Measurements in Category 7 from calculation of
Performance Credits and from taking investigative or corrective action under
Section 3.3.
6. Covad Missed Installation Appointments do not include:
a. Installation Appointments missed or rescheduled due to the delay,
act or omission of Covad, Covad's contractors or vendors,(21) or
Covad's customers.
b. Missed Installation Appointments for Covad installations being made
to rehome trunks or for network grooming.
- ----------
(21) For the purposes of Paragraph 6, above, the phrase "Covad's contractors or
vendors" does not include BA.
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<PAGE>
7. Covad Missed Installation Appointments will be included in the computation
only if they result in a blockage of traffic that is in excess of standard
design blocking thresholds and that is identified and reported to BA by Covad.
8. Covad Missed Installation Appointments will be included in the computation
only if:
a. All order information submitted by Covad was valid.
b. Covad was prepared to accept the installation of service at the
scheduled time.
c. Orders were completed as submitted without cancellation after order
confirmation.
d. Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
9. Covad Missed Installation Appointments include only missed installation
appointments for interconnection trunks used one-way.
Maintenance:
1. This Performance Category will be measured no earlier than completion of the
WFA inventory for Covad and BA trunks and validation of applicable field
procedures.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 04 (Outside Plant) and 05 (Inside Central Office).
3. Applies only to trunks used as per applicable technical specifications.
4. Covad trunks will be included in the computation only if Covad was available
for testing and cooperative coordination if requested by BA.
5. Applies only to trunks where blockage exceeding standard design blocking
thresholds has been identified and reported by Covad.
6. Applies only to interconnection trunks used one-way.
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<PAGE>
E. Billing
1. Performance Category 9 - Timeliness of Daily Usage Feed ("DUF") for UNE
Switching and Resale Services
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Timeliness of Daily [less than] 90% of 90% to 95% of [greater than] 95% of
Usage Feed recorded call events recorded call events recorded call events
(CLEC Billing KSQM 21) in 5 Business Days in 5 Business Days in 5 Business Days
- ---------------------------------------------------------------------------------------------------
</TABLE>
Calculation of Performance Credit
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 0.25 % of DUF Charges (for UNE Switching and Resale Services)
for Covad for the measured calendar quarter.
Billing Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
1. UNE usage (Daily Usage Feed) information is limited to only Unbundled
Switching. Measurement with regard to Unbundled Switching will begin no earlier
than 4/1/98.
2. Excluded are delays or failures to provide information provided by third
parties.
3. Excluded are delays or failures to provide information where the cause of the
delay or failure also affects BA's ability to collect and utilize information
for itself.
4. Measurement will be made for lines that have been equipped at Covad's request
to collect daily usage feed information.
65
<PAGE>
SCHEDULE 27.2
APPENDIX 4
STATISTICAL METHODOLOGY FOR DETERMINING "PARITY" RANGE
1. For Performance measures where the measure is a yes or no on each measured
item: (e.g., % met or not met):
Measurement Objective:
To determine if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
The following methodology applies to service in which in each instance of its
provision, the outcome can be categorized as a success or a failure (e.g., was
the appointment missed, was a customer's line out of service for more than 24
hours, etc.).
Now, let xij = the ith customers score on service; where
xij = 0 if the outcome is categorized as a success
xij = 1 if the outcome is categorized as a failure
More specifically, let
(SIGMA) x1ij = the number of Covad customers' instances of service
categorized as a failure
The standard of service against which the instances of service to Covad's
customers will be compared is the average of that provided by BA to its own
customers, viz.
P0j = (SIGMA) x0ij where N0j is the number of instances of provision
------------ of service j to BA's customers
N0j
The service index calculated for Covad for service j and which will be compared
against the service standard Poj is given by:
P1j = (SIGMA) x1ij where N1j is the number of instances of provision
------------ of service j to Covad's customers
N1j
It is assumed that N0j will be large relative to N1j ; and that N1j may in fact,
for certain j, be small.
The assumption can be made that the N1j constitutes a sample taken from a larger
population comprised
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<PAGE>
of N0j ; i.e., instances of service provision like those provided to BA
customers. In this case the N1j are not technically a subset (i.e., sample) of
N0j. But for the purposes of the model we assume that if Covad customers are
being treated the same as BA customers, then the distribution of the x0ij and
the x1ij; should be identical, hence our viewing N1j as a sample of N0j.
If such an assumption is correct then the value P1j should be similar to the
value P0j. If it is not correct, then the two values would be expected to be
different with the magnitude of the difference reflecting how different the two
populations are, and by implication, how different the service level to each.
The question that arises is how close must P1j and P0j be to conclude that the
two populations received similar levels of service and how different must they
be to conclude they did not.
If we assume N1j is a sample taken from a universe identical to the BA universe,
then it is possible to derive the distribution of possible values of P1j that
could occur when drawing a sample of size N1j from such a universe. If N1j is
adequately large, (viz., if N1j is greater than 30) these values will follow a
normal distribution and have:
Expected value = E (x) = N1j x P0j
and
the Variance = Var (x) = N1j x P0j (1-P0j)
If the CLEC population is in fact identical (or very nearly so) to the BA
population, then most values of P1j would lie close to P0j, and if the
populations were not identical than most values of P1j would lie further from
P0j with the magnitude of the differences reflecting how different the two
underlying populations are and, by implication, how different the level of
service provided the two populations.
It is possible to evaluate how likely it is that the N0j and the N1j instances
of service are, on average, the same by evaluating how likely it would be by
chance alone to observe a difference as large as the one in fact observed, viz.
P0j - P1j.
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<PAGE>
The procedure for performing this evaluation is as follows:
1. Calculate the BA service standard for service j as follows:
P0j = (SIGMA) x0ij
------------
N0j
2. Calculate the level of service provided to Covad as follows:
P1j = (SIGMA) x1ij
------------
N1j
3. Calculate an index of service level comparability, z, as follows:
z = (P0j-P1j)/[square root](P0j(1-P0j)/N1j)
4. Evaluate the probability of similar or dissimilar services for BA and CLEC
customers as follows:
[less than] -0.83 o Probability is moderate to high that Covad customers are
("Misses more poorly served than BA customers.
Standard")
- -0.83 to 0.83 o Probability is weak that Covad customers are more poorly
("Parity") served than BA customers, or the probability is high
that Covad customers are served the same as BA
("Equals customers, or the probability is weak that Covad
Standard") customers are better served than BA customers.
[greater than] 0.83 o Probability is moderate to high that Covad customers are
("Exceeds better served than BA customers.
Standard")
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 1 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 1 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses
68
<PAGE>
Standard") if the result is [less than] -0.83 ("Probability is moderate to high
that Covad customers are more poorly served than BA customers"); (b) to have
equaled or met the "Parity" standard ("Equals Standard") if the result is -0.83
to 0.83 (i.e., "Probability is weak that Covad customers are more poorly served
than BA customers, or the probability is high that Covad customers are served
the same as BA customers, or the probability is weak that Covad customers are
better served than BA customers"); or, (c) to have exceeded the "Parity"
standard ("Exceeds Standard") if the result is [greater than] 0.83 ("Probability
is moderate to high that Covad customers are better served than BA customers").
69
<PAGE>
2. For Performance measures where the measure is a variable measure: (e.g.,
cycle time):
Measurement Objective:
To determine, for those services for which performance level is measured as an
elapsed time, if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
Methodology:
The following methodology applies to service in which in each instance of its
provision, the outcome is represented as a measurement of an interval of time
(e.g., 10 minutes, 2.5 hours, 3.5 days, etc.). For example, "time to restore
service."
Define the variable X, as duration of interval being measured (e.g., time to
restore service in hours)
Now, let Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
xij = BA's ith customer's score on service j i = 1,2,3...Nj
x'ij = Covad's ith customer's score on service j i = 1,2,3...nj
1. Calculate the average duration for service j for all Bell Atlantic customers
as follows:
Average duration of BA customers = [GRAPHIC OMITTED]
2. Calculate the standard deviation of the duration scores on service j for all
BA customers as follows:
Standard deviation of BA customer's scores = [GRAPHIC OMITTED]
70
<PAGE>
3. Calculate the average duration for service j for all Covad customers as
follows:
Average duration of Covad customers = [GRAPHIC OMITTED]
4. Calculate an Index of parity:
Having determined the following values:
Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
[GRAPHIC OMITTED] = the average duration for all BA customers
[GRAPHIC OMITTED] = the standard deviation of duration scores for all BA
customers
[GRAPHIC OMITTED] = the average duration for all Covad customers
Derive an index of parity as follows:
Index of Parity = [GRAPHIC OMITTED]
where values of the index less than 0.0 indicate Covad customers are being
serviced on average with less delay (i.e., better) than BA customers, values of
the index greater than 0.0 indicate Covad customers are being serviced on
average with more delay (i.e., worse) than BA customers,
and
where greater absolute values of the index, t, indicate increasingly less
likelihood that the observed differences between Covad and BA customers' is due
to chance variation, or what is called sampling error, and greater likelihood
the difference is due to other than chance factors.
5. Interpret the Index of Parity by referring to the Parity Translation Table
and following these steps:
a. Note the value of nj as determined previously, and calculate the
value nj-1
b. Locate the value of nj-1 in the first column of the parity index
translation table
c. Inspect the ranges of values of t in the row of the table
corresponding to your value of nj-1, locating the range containing
the value of t corresponding to the one you calculated.
d. Look at the top of the column containing the value of t
corresponding to the one you
71
<PAGE>
calculated and read the interpretation of the calculated index.
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 2 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 2 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses Standard") if the result as shown on the Parity Translation
Table is "Probability that CLEC customers Serviced worse than BA's Customers is
High" or "Probability that CLEC customers Serviced worse than BA's Customers is
Moderate"; (b) to have equaled or met the "Parity" standard ("Equals Standard")
if the result as shown on the Parity Translation Table is "Probability that CLEC
customers Serviced worse than BA's Customers is Weak", "Probability CLEC & BA
Customers Serviced the Same is High", or "Probability that CLEC Customers
Serviced Better than BA's Customers is Weak"; or, (c) to have exceeded the
"Parity" standard ("Exceeds Standard") if the result as shown on the Parity
Translation Table is "Probability CLEC Customers Serviced Better than BA's
Customers is Moderate" or "Probability that CLEC Customers Serviced Better than
BA's Customers is High").
72
<PAGE>
Parity Translation Table
73
<PAGE>
EXHIBIT A
BELL ATLANTIC - PENNSYLVANIA, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES
A. BA SERVICES, FACILITIES, AND ARRANGEMENTS: 1
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
I. Local Call Termination(2)
Traffic Delivered at BA End Office $.001864/MOU Not Applicable
Traffic Delivered at BA Tandem
$.002902/MOU Not Applicable
</TABLE>
- ----------
(1) Unless a citation is provided to a generally applicable BA tariff, all
listed rates and services available only to Covad when purchasing these services
for use in the provision of Telephone Exchange Service, and apply only to Local
Traffic and local Ancillary Traffic. BA rates and services for use by Covad in
the carriage of Toll Traffic shall be subject to BA's tariffs for Exchange
Access Service. Adherence to these limitations is subject to a reasonable
periodic audit by BA.
As applied to wholesale discount rates, unbundled Network Elements or call
transport and/or termination of Local Traffic purchased for the provision of
Telephone Exchange Service or Exchange Access, the rates and charges set forth
in Exhibit A shall apply until such time as they are replaced by new rates as
may be approved or allowed into effect by the Commission from time to time
pursuant to the FCC Regulations, subject to a stay or other order issued by any
court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend
Exhibit A to reflect the new approved rates.
(2) See note 6 regarding measurement and calculation of local traffic
termination charges.
1
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport
A. Dedicated Transport
Voice Grade/DS-0 $10.37/Month & Voice Grade/DS-0, DS-1,
$.03/Mile/Month DS-3 & DDS:
$1.05/Service Order,
DS-1 $37.66/Month & $353.70/Initial Facility &
$.66/Mile/Month $24.00/Additional Facility
(if purchased when initial
facility ordered)
DS-3 $526.72/Month &
$18.66/Mile/Month
DDS $10.74/Month &
$.04/Mile /Month
B. Common Transport
Tandem Switching $.000836/MOU Not Applicable
Transport Fixed $.000152/MOU Not Applicable
Transport Per Mile $.000004/MOU Not Applicable
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
C. Entrance Facilities
All:
$1.05/Service Order plus
installation charges for
each initial and
additional facility
purchased at the time of
order:
2Wire Voice Grade Channel Termination $16.78/Month $497.06/Initial &
$289.47/Additional
4Wire Voice Grade Channel Termination $33.76/Month $498.73/Initial &
$290.02/Additional
DS-1 to Voice Grade Multiplexing $77.83/Month $548.06/Initial &
$548.06/Additional
DS-1 Channel Termination $180.59/Month $668.37/Initial &
$331.87/Additional
DS-3 to DS-1 Multiplexing $257.61/Month $548.06/Initial &
$548.06/Additional
DS-3 Channel Termination $1059.65/Month $668.37/Initial &
$331.87/Additional
D. Digital Cross-Connect System
Service Establishment Not Applicable $1890.82
Database Modification Not Applicable $148.68/Modification
Request
Reconfiguration by BA personnel Not Applicable $31.98 Programming
Charge/Half Hour
DS-0 Cross-Connect $20.54/Port/Month $26.17/Port
DS-1 Cross-Connect $71.92/Port/Month $32.71/Port
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
E. Mid-span meet arrangements To be charged in accordance with the
requirements of Section 4.3 of the Agreement
F. Transit Arrangements (for
Interconnections between Covad and
Carriers other than BA)
Tandem Switching $.000836/MOU Per Section II. above and
V., as applicable
Switched Transport $.000152/MOU
$.000004/MOU/Mile
III. Unbundled Switching(3)
A. Local Switching Ports
POTS/PBX/Centrex $2.67/Port/Month $1.05/Service Order Per
Port: $2.97/Installation
$1.32/Disconnect
ISDN (BRI) $10.28/Port/Month $1.05/Service Order Per
Port: $2.97/Installation
$1.32/Disconnect
ISDN (PRI) $135.13/Port/Month $1.05/Service Order Per
Port: $113.36/Installation
$1.32/Disconnect
Public/Semi-Public $3.52/Port/Month $1.05/Service Order
Per Port:
$2.97/Installation
$1.32/Disconnect
DID $5.98/Port/Month $1.05/ Service Order
Per Port:
$692.07/Installation
$1.32/Disconnect
B. Tandem Switching Usage $.0008360/MOU Not Applicable
C. Local Switching Usage
Originating With Vertical Features $.011067/MOU Not Applicable
Terminating With Vertical Features $.006143/MOU Not Applicable
</TABLE>
- ----------
(3) In addition to the recurring and non-recurring rates set forth herein for
unbundled switching elements, BA may levy upon purchaser of such elements any
access charges (or portion thereof) permitted by Applicable Laws.
4
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops
POTS (Analog 2-Wire) Density Cell: Service Order: $1.05
1 - $11.52/Month Installation:
2 - $12.71/Month If premises visit not
3 - $16.12/Month required - $2.97 initial
4 - $23.11/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $66.85, initial loop;
$22.59, additional loop
Disconnect:
$1.32 per loop
ISDN Density Cell: Service Order: $1.05
1 - $13.16/Month Installation:
2 - $14.35/Month If premises visit not
3 - $17.75/Month required - $12.91 initial
4 - $24.74/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $76.78, initial loop;
$32.52, additional loop
Disconnect:
$1.32 per loop
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops (Continued)
Customer Specified Signaling - 2 Wire Density Cell: Service Order: $1.05
1 - $11.52/Month Installation:
2 - $12.71/Month If premises visit not
3 - $16.12/Month required - $2.97 initial
4 - $23.11/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $66.85, initial loop;
$22.59, additional loop
Disconnect:
$1.32 per loop
Coordinated Cutover:
If premises visit not
required - $3.24 per order
If premises visit required
- $12.10 per order
Designed Circuit:
$40.93 per order
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops (Continued)
Customer Specified Signaling - 4 Wire Density Cell: Service Order: $1.05
1 - $22.40/Month Installation:
2 - $26.36/Month If premises visit not
3 - $33.03/Month required - $2.97 initial
4 - $45.47/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $66.85, initial loop;
$22.59, additional loop
Disconnect:
$1.32 per loop
Coordinated Cutover:
If premises visit not
required - $3.24 per order
If premises visit required
- $12.10 per order
Designed Circuit:
$40.93 per order
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops (Continued)
DS1 Density Cell: Service Order: $1.05
1 - $132.51/Month Installation:
2 - $139.37/Month If premises visit not
3 - $168.59/Month required - $2.97 initial
4 - $252.46/Month and each additional loop;
Not Applicable if existing
loop & port together
If premises visit required
- $66.85, initial loop;
$22.59, additional loop
Disconnect:
$1.32 per loop
Coordinated Cutover:
If premises visit not
required - $3.24 per order
If premises visit required
- $12.10 per order
Designed Circuit:
$40.93 per order
2 Wire ADSL Loops TBD TBD
2 Wire & 4 Wire HDSL Loops TBD TBD
Distance Extensions for various ULL types TBD TBD
for distances exceeding transmission
characteristics in applicable technical
references.
V. Collocation Cross-Connection
A. Voice Grade Loop
Physical DS0 CO side to equipment $.41/Month Not Applicable
Virtual DS0 with RFT CO side MDF to equipment $1.20/Month Not Applicable
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
Virtual DS1 with EDSX (1DS1 + 24 $60.21/Month Both:
DS0's with IDLC) $1.05/Service Order
$544.36/Initial
Virtual DS1 with CFA (24DS0s with IDLA) $44.08/Month Installation &
$210.46/Additional
Installations
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
V. Collocation Cross-Connection (Continued)
B. Other
Physical DS3 $84.27/Month
All:
Physical DS1 $15.72/Month $1.05/Service Order
$481.36/Initial
Virtual DS3 $88.81/Month Installation &
$194.71/Additional
Virtual DS1 $16.12/Month Installations
VI. Time and Materials
Special Construction As applicable per BA-PA PUC 1 sec. 9
Service Technician (service work on Not Applicable $1.05/Service Order
unbundled loops outside of the Central $26.24/Premises Visit
Office) $12.10 Labor Charge/
Quarter Hour After First
Quarter Hour
Central Office Technician Not Applicable $1.05/Service Order
$10.42 Labor Charge/
Quarter Hour or Fraction
Thereof
VII. Signaling and Databases
A. STP Port
Termination $640.02/Month $94.15/Port
Access $.47/Mile/Month $1.05/Service Order
$274.06/Initial Facility &
$24.01/Additional Facility
B. 800/888 Database
Basic Query $.000835/Query Not Applicable
Vertical Query $.000343/Query Not Applicable
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
VII. Signaling and Databases (Continued)
C. LIDB Validation
LIDB Point Codes Not Applicable $85.84/Point Code
Calling Card $.015542/Query Not Applicable
Billed Number Screening $.015542/Query Not Applicable
Storage of Covad's Data in LIDB Database Not Applicable $1,469.92 Service
Establishment
D. AIN Service Creation (ASC) Service
1. Developmental Charges
Service Establishment Not Applicable $884.08
Service Creation Access Port $123.86/Port/Month Not Applicable
Service Creation Usage
a. Remote Access $1,328.47/Day Not Applicable
b. On-Premise $1,328.47/Day Not Applicable
Certification & Testing $76.99/Hour Not Applicable
Help Desk Support $81.48/Hour Not Applicable
2. Service Charges
Subscription Charge $5.44/Month Not Applicable
Database Queries
a. Network Query $.0007/Query Not Applicable
b. Covad Network Query $.0007/Query Not Applicable
c. Covad Switch Query $.0007/Query Not Applicable
Trigger Charge
a. Line Based $.0010/Query Not Applicable
b. Office Based $.0010/Query Not Applicable
Utilization Element $.0003/Query Not Applicable
Service Activation Charge
a. Network Service Activation Not Applicable $8.37/Service
Activated/Line
b. Covad Network Service Activation Not Applicable $8.37/Service
Activated/Line
c. Covad Switch Service Activation Not Applicable $8.37/Service
Activated/Line
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
D. AIN Service Creation (ASC) Service (Continued)
Service Modification
DTMF Update $.1080/Occurrence Not Applicable
Switch Based Announcement $.005/Announcement Not Applicable
VIII. Directory Listings & Books
Primary Listing (on initial UNE service Not Applicable Not Applicable
order). For each residence telephone number,
two (2) listings in the White Page directory
are provided. For each business telephone
number listed (except numbers of Centrex or
Centrex-like services or indialing service
station lines) one (1) listing is provided in
the White Page Directory and one (1) listing
in the Yellow Page directory of the type
provided to BA-PA end user business customers
for which no specific charge applies.
Other Tariffed Listing Services (For listings Retail rates less wholesale discount. For retail
ordered in excess of the primary listings rates see BA-PA tariff No. 1 sec. 5.B.
provided or other listing types, or listings
ordered at a time other than initial UNE
service order, or listings ordered not
associated with a UNE service order.)
Books & delivery (annual home area No charge for normal numbers of books
directories only) delivered to end users; bulk deliveries to
Covad per separate arrangement
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IX. Operator Services/Directory Assistance
Direct Access $.0342/Query $32,135.28/Link &
$15,206.81 Service
Establishment
Directory Assistance $.3664/Call Not Applicable
Directory Transport
Tandem Switching $.000730/Call Not Applicable
Tandem Switched Transport $.000132/Call & Not Applicable
$.000003/Mile/Call
Operator Services - Live $.01280/Operator Work Not Applicable
Second
Operator Services - Automated $.00158/Automated Work Not Applicable
Second
Branding for Directory Assistance and/or Operator Not Applicable $1,358.62/Message
Services
Carrier-to-Carrier LSV/VCI Requests $.01280/Operator Work Not Applicable
Second
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
X. Access to Operation Support Systems
A. Pre-Ordering $.22/Query Not Applicable
B. Ordering $3.34/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.22/Query Not Applicable
2. EB/OSI Access $1.16/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $246.59/CD-ROM Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000258/Message Not Applicable
b. Delivery of DUF
Data Tape $17.18/Tape $61.39/Programming Hour
Network Data Mover $.000094/Message Not Applicable
CMDS $.000094/Message $61.39/Programming Hour
c. DUF Transport
9.6 kb Communications Port $10.24/Month $7,437.36/Port
56 kb Communications Port $28.29/Month $30,778.91/Port
256 kb Communications Port $28.29/Month $51,236.88/Port
T1 Communications Port $359.31/Month $182,827.99/Port
Line Installation Not Applicable $61.39/Programming
Hour/Port
Port Set-up Not Applicable $9.85/Port
Network Control Programming Coding Not Applicable $61.39/Programming
Hour/Port
XI. Exchange Access Service
Interstate Per BA-FCC tariff number 1
Intrastate Per BA-PA tariff number 302
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
XII. Number Portability
Interim (using RCF) $1.50/Month/Ported Number $5.00/Service Order
$4.00/Installation/No. at
same location
Permanent Per permanent funding mechanism when established.
Access pass-through to number portability In accordance with Section 14.5 of Agreement
purchaser
XIII. 911/E911
Transport Per section II above.
Data Entry and Maintenance No Charge
XIV. Poles Conduits & ROW Per contract rates pursuant to 47 U.S.C. sec.
224
Illustrative:
Duct: $5.45/Foot/Year
Pole: $3.98/Attachment/Year
XV. Network Interface Device (NID) $.68/Month Not Applicable
XVI. Access to Telephone Numbers (NXX codes issued per No Charge
ICCF Code Administration Guidelines)
XVII. Local Dialing Parity No Charge
XVIII. Customized Routing
To Reseller Platform $.142360/Line/Month $3.84/Line
To BA Platform for Re-Branding $.08330/Call $3.84/Line
Customized Routing Transport Per section II above.
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
XIX. Wholesale Discount for Resale of Retail Telecommunications Services(4)
Resale of retail services if Covad provides 20.69%
own operator services platform
Resale of retail services if Covad uses Bell 18.43%
Atlantic operator services platform
Pennsylvania Gross Receipts Tax Discount Discount as per BA-PA PUC 1 sec. 1.8.1 tariff.
</TABLE>
- ----------
(4) Excludes telecommunications services designed primarily for wholesale, such
as switched and special exchange access service, and, subject to Section 12 of
the Agreement, the following additional arrangements that are not subject to
resale: limited duration (90 days or less) promotional offerings, public coin
telephone service, and technical and market trials. Taxes shall be collected and
remitted by the reseller and BA in accordance with legal requirements and as
agreed between the Parties. Surcharges (e.g., 911, telecommunications relay
service, universal service fund) shall be collected by the reseller and either
remitted to the recipient agency or NECA, or passed through to BA for remittance
to the recipient agency or NECA, as appropriate and agreed between the Parties.
End user common line charges shall be collected by the reseller and remitted to
BA.
Pending establishment of mechanized billing procedures adapted to resale,
BA will apply the wholesale discount for resale as a "bottom-of-the-bill"
discount rate and will utilize a "true-up" process to correct possible
inadvertent application of the wholesale discount to the exclusions identified
herein and to reflect other adjustments as the Companies agree.
16
<PAGE>
B. Covad SERVICES, FACILITIES, AND ARRANGEMENTS:
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
I. Local Call Termination(5)
Traffic Delivered at End Office $.001864/MOU Not Applicable
Traffic Delivered at Tandem
$.002902/MOU Not Applicable
II. Number Portability
Interim $1.50/Month/Ported Number $5.00/Service Order
$4.00/Installation/No. at
same location
Permanent Per permanent funding mechanism when established.
Access pass-through to number portability In accordance with Section 14.5 of Agreement
purchaser
III. Exchange Access Service
Interstate Per Covad FCC exchange access tariff.
Intrastate Per Covad PA tariff exchange access tariff.
IV. Local Dialing Parity No Charge
V. All Other Covad Services Available to BA Available at Covad's tariffed or otherwise
for Purposes of Effectuating Local Exchange generally available rates, not to exceed BA
Competition rates for equivalent services available to
Covad.
VI. Other Services $.03/Call No Charge
Information Service Billing Fee
</TABLE>
- ----------
(5) See note 6 regarding measurement and calculation of local traffic
termination charges.
17
<PAGE>
6 LOCAL TRAFFIC TERMINATION RATES
A. Charges by BA
(a) Traffic delivered to BA Access Tandem: $.002902 per mou.
(b) Traffic delivered directly to terminating BA End Office: $.001864
per mou.
B. Charges by Covad
1. Single-tiered interconnection structure:
Covad's rates for the termination of BA's Local Traffic under the
single-tiered interconnection structure shall be recalculated once each
year on each anniversary of the Effective Date (the "Rate Determination
Date"). The methodology for recalculating the rates is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic
delivered by Covad to BA Access Tandem for most recent billed
quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by
Covad directly to the terminating BA End Office for most recent
billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by
Covad to BA for most recent billed quarter.
Covad Charge at the Covad-IP =
(Access Tandem Minutes x $.002902) + (End Office Minutes x $.001864)
--------------------------------------------------------------------
Total Minutes
For the first year after the Effective Date, the Covad charge shall be
calculated based on the traffic data of the quarter immediately preceding
such Effective Date, or if no such traffic exists, on the proportion of
local call termination trunks to BA End Offices and to BA Access Tandems.
2. Multiple-tiered interconnection structure (if offered by Covad to any
carrier)
(a) Local Traffic delivered to Covad Access Tandem: $.002902
(b) Local Traffic delivered to terminating Covad End Office/node:
$.001864
C. Miscellaneous Notes
1. The Covad termination rate under the single-tiered interconnection
structure set forth above is intended to be a Local Traffic termination
rate for Interconnection to the Covad-IP within each LATA that is
reciprocal and equal to the actual rates that will be charged by BA to
Covad under the two-tiered Local Traffic termination rate structure
described above that will apply after the first anniversary of the
Effective Date. The single Covad termination rate is also intended to
provide financial incentives to Covad to deliver traffic directly to BA's
terminating End Offices once Covad's traffic volumes reach an appropriate
threshold.
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<PAGE>
EXHIBIT B
BONA FIDE REQUEST PROCEDURES
1. The following procedures shall apply to any Bona Fide Request submitted by
Covad to BA for: (a) an Interconnection or access to an unbundled Network
Element not otherwise provided hereunder at the time of such request, (b)
an Interconnection or connection to a Network Element that is different in
quality to that which BA provides to itself at the time of such request,
(c) Collocation at a location other than a BA Central Office, and (d) such
other arrangement, service, or Network Element for which a BFR is required
under the Agreement. Items (a) through (d) above may be referred to
individually as a "BFR Item." The BFR procedures set forth herein do not
apply to those services requested pursuant to Report & Order and Notice of
Proposed Rulemaking 91-141 (rel. October 19, 1992), Paragraph 259 and
Footnote 603 or subsequent orders.
2. A BFR shall be submitted in writing and shall include a technical
description of each requested BFR Item, and a forecast (e.g. volume
requested, locations, dates) for such Item.
3. Covad may cancel a BFR at any time, but shall pay BA's reasonable and
demonstrable costs of processing, implementing the BFR, and/or developing
the BFR Item up to the date of cancellation, and any wind-up costs
resulting therefrom.
4. Within fifteen (15) business days of receipt of the BFR, BA will respond
in one of the following ways:
(a) provide confirmation that the BFR is technically feasible and the
date BA will deliver a price proposal, including a service
description, pricing and an estimated schedule for availability;
(b) request a face-to-face meeting between technical representatives of
both Parties to further explain the request;
(c) inform Covad that BA must do laboratory testing (at Covad's expense)
to determine whether the request is technically feasible;
(d) inform Covad that BA must do field testing (at Covad's expense) to
determine whether the request is technically feasible;
(e) inform Covad that it is necessary for the Parties to undertake a
joint technical/operational field test (at Covad's expense) in order
to determine both technical feasibility and operational cost
impacts; or
(f) provide a written explanation that it is not technically feasible to
comply with the request and/or the BFR Item does not qualify as one
that is required to be
1
<PAGE>
provided under the Act.
5. Within ten (10) business days of receiving BA's response from Step 4(c),
4(d), or 4(e), Covad shall:
(a) negotiate a mutually agreeable schedule for BA's testing and agree
to pay BA for the testing costs, in the case of Steps 4(c) or (d);
or
(b) negotiate a mutually agreeable schedule for joint
technical/operational field testing, and agree to pay BA the costs,
in the case of Step 4(e).
6. Within ten (10) days of receiving BA's confirmation (from Step 4(a)),
Covad shall:
(a) accept BA's price proposal date and agree to pay BA the cost of
developing the proposal;
(b) negotiate a different date for BA to deliver the price proposal, and
agree to pay BA the cost of developing the proposal; or
(c) abandon the request.
7. Unless the Parties have agreed to another date, BA will deliver the BFR
Item price proposal to Covad in response to Step 5 or Step 6 as soon as
reasonably practicable, but no later than ninety (90) days from the date
BA provided the price proposal date, unless such delivery is technically
unreasonable given the nature of the BFR. The price proposal shall include
a service description of the BFR Item, the costs, including costs
associated with the development of the BFR Item, and an estimated
availability schedule.
8. Covad accepts BA's price proposal or negotiates mutually acceptable
changes.
9. BA makes the BFR Item available in accordance with Step 7.
10. Unless the Parties otherwise agree, all prices shall be consistent with
the pricing principles of the Act and any applicable FCC or Commission
rules, regulations, or orders.
11. If a Party to a BFR believes that the other Party is not requesting, or
negotiating or processing the BFR in good faith, or disputes a
determination, or price or cost quote, or is failing to act in accordance
with Section 251 of the Act, such Party may seek mediation or arbitration
by the Commission pursuant to Section 252 of the Act.
2
<PAGE>
EXHIBIT C
DIRECTORY ASSISTANCE AND INTRALATA
CALL COMPLETION SERVICES AGREEMENT
THIS AGREEMENT is made, effective this _____ day of _____________ 19___,
by and between Bell Atlantic - __________________, Inc., (hereinafter referred
to as "Bell Atlantic"), a __________________________ corporation, with offices
at _____________________________________, and _______________________________,
hereinafter referred to as "Carrier", a ______________________ corporation with
offices at _______________________________________.
1. SCOPE AND TERM OF AGREEMENT
1.1 Scope This Agreement sets forth the terms and conditions which shall govern
the use of and payment for Directory Assistance (DA) Service and IntraLATA Call
Completion Service (hereinafter collectively referred to as "Services") to be
provided by Bell Atlantic, or its affiliated companies, to Carrier. Carrier
shall subscribe to and pay for Services for Carrier's local exchange customers
in the ___________ LATA(s).
1.2 Term The initial term of this Agreement shall be one (1) year and commence
as of 12:01 a.m. on the date first written above. At the end of this initial
term, or any subsequent renewal term, this Agreement shall automatically renew
for an additional period of one (1) year unless either party provides written
notice to the other of its intent to terminate at least three (3) months prior
to the expiration of the then current term.
2. DESCRIPTION OF SERVICES
2.1 Directory Assistance (DA) Service
a) Directory Assistance Service shall consist of 1) directory transport by
Bell Atlantic from the point of Bell Atlantic's interconnection with Carrier's
trunks to Bell Atlantic's designated DA locations, and 2) the provision of
telephone number listings by Bell Atlantic operators in response to calls from
Carrier's local exchange customers located in the LATA(s) designated in Section
1.1.
b) A maximum of two requests for telephone numbers will be accepted per DA
call. A "DA call" as used in this Agreement shall mean a call answered by or
forwarded to Bell Atlantic, regardless of whether a telephone number is
requested, provided, or available. The listings that will be available to
Carrier's customers are those telephone numbers that are listed in Bell
Atlantic's DA records for the LATA(s) designated in Section 1.1.
2.2 IntraLATA Call Completion Service IntraLATA Call Completion Service
<PAGE>
consists of the live and automated local and toll call completion services
specified in Appendix B, including the completion of collect, card and
bill-to-third party calls; busy line verification; customer requested interrupt;
and other assistance to Carrier's local exchange customers located in the
LATA(s) designated in Section 1.1.
2.3 Branding Branding is a service that permits the Carrier to deliver a
customized announcement to its callers, identifying the Carrier as the customer
service provider. Carrier shall provide the information required by Bell
Atlantic to create this announcement. Branding also requires that the Carrier
maintain dedicated trunking arrangements to the designated Bell Atlantic DA or
operator switch locations.
2.4 End User Billing Bell Atlantic will provide Carrier with unrated EMR records
for use in the billing of Carrier's end users for Services. The rating, billing,
and settlement of end-user charges for the calls are the responsibility of
Carrier.
2.5 Service Methods Bell Atlantic agrees to provide Services in accordance with
Bell Atlantic's service standards and methods. Bell Atlantic will notify Carrier
in writing of any significant policy changes to operator services or directory
assistance standards and methods prior to implementation.
2.6 Customized Service Features and Options Carrier may request custom-designed
service features or optional services to be provided in conjunction with the
Services hereunder. Upon mutual agreement of the parties, such features and
options will be provided pursuant to this Agreement. Bell Atlantic, if
requested, shall provide Carrier with an estimate of the charges for such
custom-designed supplements, changes, or options prior to implementation.
3. COMMENCEMENT AND IMPLEMENTATION OF SERVICE
3.1 Required Information Each party shall make good-faith efforts to carry out
its respective responsibilities in meeting a jointly established schedule for
implementation. All records and other required information specified in Appendix
C, as well as a completed Technical Questionnaire, will be furnished by Carrier
at least ninety (90) days prior to the commencement of Services (i.e., the
Cutover Date described in Section 3.2.) Notices of any changes, additions, or
deletions to such records and information shall be provided promptly in writing
by Carrier to Bell Atlantic. Bell Atlantic will review these change requests and
determine any potential impact on the cutover date. Written confirmation of any
impact will be provided to Carrier.
3.2 Cutover Date The Cutover Date for Service(s) provided under this Agreement
shall be the date on which the Service(s) shall be available to all of Carrier's
local exchange customers in the LATA(s) designated in Section 1.1.
3.3 Service Review Meetings Bell Atlantic will meet and confer with Carrier
during the term of this Agreement to review and discuss the Services provided
under this
<PAGE>
Agreement. The times for meetings will be established by mutual agreement of the
parties.
4. EQUIPMENT AND FACILITIES
4.1 Bell Atlantic will establish and maintain such access equipment and related
facilities as may be necessary to perform the Services under this Agreement,
provided that Carrier furnishes Bell Atlantic the information specified in
Appendix C, and any changes in such information, in a timely and accurate
manner. Any additional services that Carrier seeks during the term of this
Agreement will be subject to mutual agreement and the availability of facilities
and equipment.
4.2 Carrier will provide and maintain such equipment within its premises as is
necessary to permit Bell Atlantic to perform the agreed-upon Services in
accordance with Bell Atlantic standard equipment operation and traffic operation
procedures.
4.3 Carrier Transport and Switched Access Connection
a) Carrier shall, at its expense, arrange for and establish the trunking
and other transport, interface, and signaling arrangements required by Bell
Atlantic to provide Services to Carrier. Separate dedicated trunks for each NPA
or LATA may be required. Any trunks or other transport and access that Carrier
obtains from Bell Atlantic to deliver Carrier's calls to Bell Atlantic shall be
provided pursuant to the applicable tariffs or other contractual arrangements,
and not under this Agreement. Bell Atlantic agrees to coordinate the scheduling
of Services to be provided under this Agreement with the scheduling of any
trunking or related services provisioned by Bell Atlantic under such tariffs or
other contractual arrangements.
b) Carrier shall specify the number of trunks required for Services.
Carrier must provide trunks with operator services signaling directly to the
locations designated by Bell Atlantic. Bell Atlantic shall provide Carrier at
least three (3) months advance notice in the event of any change in a designated
location.
5. PAYMENT FOR SERVICES
5.1 Rates Carrier agrees to subscribe to and pay for the Services and options
selected in Appendix A. Carrier shall pay the rates set forth in Appendix A,
subject to such obligations as Bell Atlantic may have under the
Telecommunications Act of 1996, and the FCC and state regulations and decisions
thereunder, to set cost-based rates for unbundled network elements.
Specifically, when a regulatory body of competent jurisdiction has duly approved
the rates under which Bell Atlantic is required to provide Services to
competitive local exchange carriers (hereinafter referred to as "CLEC rates"),
Bell Atlantic shall charge, and Carrier shall pay, such CLEC rates for the
applicable Services.
5.2 Settlements Carrier shall render payment to Bell Atlantic net thirty (30)
calendar days from the date of delivery of the Services or from the date of
billing for the Services,
<PAGE>
whichever occurs later. Carrier shall pay interest on any amount overdue at the
rate specified for late payments in the Interconnection Agreement between Bell
Atlantic and Carrier.
5.3 Billing Disagreements
a) Carrier may, in good faith, dispute part or all of an invoice provided
by Bell Atlantic. To dispute an invoice, Carrier must provide Bell Atlantic with
a written explanation of the questioned charges for consideration within thirty
(30) days of receipt of the invoice. Bell Atlantic will respond to Carrier's
claim within thirty (30) days of receipt of the explanation.
b) The parties agree to negotiate any dispute in good faith to reach a
satisfactory resolution of the dispute no later than ninety (90) days after
Carrier's receipt of the invoice. Carrier shall have no obligation to pay
interest on a disputed amount while a resolution is being negotiated during this
period. In the event that the dispute is not resolved at the account manager
level within forty five (45) days after receipt of Carrier's claim, the parties
agree to submit the dispute to an Intercompany Review Board for resolution. The
Intercompany Review Board shall consist of two representatives from each party
who are authorized to resolve the dispute on behalf of their respective
companies. The Intercompany Review Board shall conduct a joint conference to
review the parties' respective positions and to resolve the dispute.
c) Upon the resolution of the dispute, an appropriate adjustment of
billing shall be made by Bell Atlantic. Bell Atlantic shall apply any reductions
in the invoiced amount as a credit. Carrier shall promptly pay any amounts the
parties agree are due with interest thereon under Section 5.2 retroactive to the
date of the original invoice. If no resolution is reached within the specified
90-day period, either party may pursue such other remedies and recourse as are
otherwise available under law or this Agreement.
5.4 Taxes The rates specified in this Agreement are exclusive of all taxes,
duties, or similar charges imposed by law. Carrier shall be liable for and shall
reimburse Bell Atlantic for any sales, use, excise, or other taxes applicable to
the Services performed under this Agreement.
5.5 Carrier's Customers Carrier shall be responsible for all contacts and
arrangements with its customers concerning the provision and maintenance, and
the billing and collection, of charges for Services furnished to Carrier's
customers.
6. DEFAULTS AND REMEDIES
6.1 Defaults If Carrier defaults in the payment of any amount due hereunder, or
if Bell Atlantic materially fails to provide Services as agreed hereunder, and
such default or failure shall continue for thirty (30) days after written notice
thereof, the other party may terminate this Agreement with thirty (30) days
written notice.
<PAGE>
6.2 Carrier Remedies In the event that Bell Atlantic, through negligence or
willful misconduct, fails to provide the Services selected and contracted for
under this Agreement, Bell Atlantic shall pay Carrier for Carrier's direct
damages resulting from such failure, up to an amount not to exceed the charges
payable under this Agreement for the Services affected.
6.3 Discontinuance by Carrier In the event that Carrier discontinues using
Services, either in part or in whole, prior to expiration of the then current
term and such discontinuance is not due to Bell Atlantic's material failure to
provide Services, Carrier shall pay Bell Atlantic an amount equal to the average
monthly charges for the six-month period immediately preceding the
discontinuance multiplied by the number of months remaining in the then-current
term. If Services have been provided for a period of less than six months,
Carrier shall pay the charges for the month with the highest usage multiplied by
the number of months remaining in the then-current one year term. If Carrier
terminates this Agreement prior to the Cutover Date, Carrier shall pay Bell
Atlantic the greater of the following: (i) all reasonable and necessary costs
already incurred by Bell Atlantic in preparation for the commencement of
services, or (ii) the sum of fifty thousand dollars ($50,000).
6.4 Other Remedies THE EXTENT OF LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE
LIMITED AS DESCRIBED IN SECTIONS 6.1, 6.2 AND 6.3 ABOVE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY OTHER LOSS, COST, CLAIM, INJURY, LIABILITY, OR
EXPENSE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY INCIDENTAL, SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT,
WHETHER RECOVERY IS SOUGHT IN TORT, CONTRACT, OR OTHERWISE, EVEN IF EITHER PARTY
HAD NOTICE OF SUCH DAMAGES.
7. CONFIDENTIAL INFORMATION
7.1 Confidentiality The parties agree that all confidential and proprietary
information that is marked as specified in Section 7.2 and that is disclosed by
either party to the other party for the purposes of this Agreement, including
rates and terms, shall be treated as confidential unless a) such information was
previously or becomes known to the receiving party free of any obligation to
keep it confidential, b) has been or is subsequently made public by the
disclosing party, or c) is required to be disclosed by law. The receiving party
shall not, except in the performance of the Services under this Agreement or
with the express prior written consent of the other party, disclose or permit
access to any confidential information to any other parties. The parties agree
to advise their respective employees, agents, and representatives to take such
action as may be advisable to preserve and protect the confidentiality of such
information.
<PAGE>
7.2 Marking of Confidential Information All information the disclosing party
considers proprietary or confidential, if in writing or other tangible form,
shall be conspicuously labeled or marked as "Proprietary" and/or "Confidential"
and, if oral, shall be identified as proprietary at the time of disclosure and
promptly confirmed in writing. Either party shall have the right to correct any
inadvertent failure to designate information as proprietary by written
notification within ten (10) days following disclosure.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractors Bell Atlantic and Carrier shall be independent
contractors under this Agreement, and all services under this Agreement shall be
performed by Bell Atlantic as an independent contractor and not as an agent of
Carrier.
8.2 Responsibility for Employees and Agents All persons furnished by Bell
Atlantic shall be considered solely Bell Atlantic's employees or agents, and
Bell Atlantic shall be responsible for compliance with all laws, rules, and
regulations relating to such persons including, but not limited to, hours of
labor, working conditions, workers' compensation, payment of wages, benefits,
unemployment, social security and other payroll taxes. Each party's employees
and agents, while on premises of the other, shall comply with all rules and
regulations, including any applicable security procedures and safeguarding of
confidential data.
9. GENERAL CONDITIONS
9.1 Assignment Neither party may assign or delegate its rights and obligations
under this Agreement without the prior written consent of the other party,
except that either party may assign this Agreement, without such consent, to its
parent, affiliate or subsidiary, provided that the assignee has the resources,
legal authority, and ability to perform all terms of this Agreement. Thirty (30)
days advance notice of such assignment shall be provided to the other party.
9.2 Choice of Law The validity, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware.
9.3 Compliance with Laws Each party shall comply with all applicable federal,
state, county and local laws, ordinances, regulation, rules and codes in the
performance of this Agreement. Neither party shall be liable to the other for
termination of this Agreement or any services to be provided hereunder
necessitated by compliance with any law, rule, regulation or court order of a
duly authorized governmental body.
9.4 Contingency Neither party shall be held responsible or liable to the other
for any delay or failure in performance caused by fires, strikes, embargoes,
requirements imposed by Government regulation, civil or military authorities,
act of God or by the public enemy, or other causes beyond the control of Carrier
or Bell Atlantic. If such a contingency occurs, the party injured by the other's
inability to perform may: a) terminate the affected
<PAGE>
services or part thereof not already rendered; or b) suspend the affected
services or part thereof for the duration of the delaying cause and resume
performance once the delaying causes cease.
9.5 Licenses No licenses, expressed or implied, under any patents, copyrights,
trademarks or other intellectual property rights are granted by Bell Atlantic to
Carrier under this Agreement.
9.6 Notices Except as otherwise specified in this Agreement, any notice required
or permitted under this Agreement shall be in writing and shall be given to the
other party at the address designated below by hand delivery, registered
return-receipt requested mail, or nationally recognized courier service:
For Bell Atlantic: ____________________________________
____________________________________
____________________________________
____________________________________
For Carrier: ____________________________________
____________________________________
____________________________________
____________________________________
The above addresses may be changed by giving thirty (30) calendar days prior
written notice as prescribed above. Notice shall be deemed to have been given or
made on the date of delivery if received by hand, or express courier, and three
days after delivery to the U.S. Postal Service, if mailed.
9.7 Publicity Bell Atlantic and Carrier agree not to publish any advertising,
sales promotions, or press releases that promote or otherwise relate to the
services provided under this Agreement and include the other party's name,
logos, trademarks, or service marks, unless it obtains the other party's prior
written consent, except that either party may disclose the fact that Bell
Atlantic provides directory assistance and/or operator services to Carrier
without such prior review or approval.
9.8 Severability If any provision of this Agreement or the application of any
provision shall be held by a tribunal of competent jurisdiction to be contrary
to law or unenforceable, the remaining provisions of this Agreement shall
continue in full force and effect.
9.9 Survival All obligations hereunder, incurred by either Bell Atlantic or
Carrier prior to the cancellation, termination, or expiration of this Agreement
shall survive such
<PAGE>
cancellation, termination or expiration.
9.10 Captions and Section Headings The captions and section headings in this
Agreement are for convenience only and do not affect the meaning or
interpretation of this Agreement.
9.11 Duplicate Originals This Agreement may be executed separately by the
parties in one or more counterparts. Each duplicate executed shall be deemed an
original, and all together shall constitute one and the same document.
9.12 Entire Agreement The terms and conditions of this Agreement, including the
Appendices attached to this Agreement, constitute the entire Agreement between
Bell Atlantic and Carrier relating to the subject matter of this Agreement, and
supersede any and all prior or contemporaneous understandings, promises or
representations, whether written or oral, between the parties relating to the
subject matter of this Agreement. Any waiver, modification or amendment of any
provision of this Agreement, or of any right or remedy hereunder, shall not be
effective unless made in writing and signed by both parties.
IN WITNESS WHEREOF, the parties agree that the effective date of this Agreement
is the date first written above, and each party warrants that it has caused this
Agreement to be signed and delivered by its duly authorized representative.
FOR BELL ATLANTIC - FOR CARRIER
________________________, INC.
Name: _________________________ Name: _________________________
Title: ________________________ Title: ________________________
Signature: ____________________ Signature: ____________________
Date: _________________________ Date: _________________________
<PAGE>
EXHIBIT D
INTRALATA TELECOMMUNICATIONS SERVICES SETTLEMENT AGREEMENT
This Agreement is entered into as of _______________ , 1997, by and
between Bell Atlantic - _______________, Inc., a ___________ corporation, with
principal offices located at ______________________________ ("BA-__"), and
___________________________, a ______________ corporation, with principal
offices located at ______________________________________________ ("Carrier").
SECTION I
SCOPE
This Agreement sets forth the terms and conditions for the following:
(a) administering and processing messages in the intraLATA Toll
Originating Responsibility Plan ("ITORP"); and
(b) the settlement of compensation for the following telecommunications
traffic within a BA-__ LATA:
(1) intrastate and interstate intraLATA traffic terminated to
Carrier and originated by an Independent Telephone Company or
wireless carriers that transits the facilities of BA-__ within a
BA-__ LATA, including Message Telecommunications Service and Local
Exchange Service (the "ITORP Transit Service Traffic");
(2) intrastate and interstate intraLATA Message Telecommunications
Service and Local Exchange Service traffic which originates from a
Certified Local Exchange Carrier or Carrier, transits BA-PA's
network and terminates to Carrier, or a wireless carrier or an
Exchange Carrier other than BA-__, which traffic is subject to a
Meet-Point Billing arrangement (the "Meet-Point Transit Service
Traffic");
(3) intraLATA 800/888 Service Traffic; and
(4) intraLATA Alternately Billed Calls billed to a line-based
telephone number within the state where the call is originated.
By way of clarification, this Agreement does not cover the following: (x)
traffic that does not use BA-__ facilities; (y) interLATA traffic; and (z) any
statewide services (whether interLATA or intraLATA) provided entirely by an
Interexchange Carrier such as statewide WATS.
<PAGE>
EXHIBIT D
SECTION II
DEFINITIONS
For purposes of this Agreement, the terms set forth below shall have the
following meaning:
A. 800/888 Number Database shall mean the call management service
database that provides POTS telephone number translation or routing
information or both for a given 800/888 telephone number.
B. 800/888 Service Traffic means a toll free call originating with the
Originating Company and billed to the Terminating Company's end
user. 800/888 service MOUs are recorded by the Originating Company
and provided to the Terminating Company so that it can bill its end
user(s).
C. Access Tandem shall mean a switching entity that is used to connect
and switch trunk circuits between and among End Offices and between
and among End Office switches and carriers' aggregation points,
points of termination, or points of presence, which entity has
billing and recording capabilities that are used to provide switched
Exchange Access services.
D. Alternately Billed Calls shall mean all intraLATA land-line Collect
Calls, Calling Card Calls and Third-Number Calls that originate and
terminate in the _________ of _____________ and are billed to a
line-based number within the jurisdiction of the __________ of
_____________ serviced by the Billing Company. Alternately Billed
Calls are identified in ITORP reports as "Received Collect/Sent
Collect Calls".
E. Basic 800/888 Number Query shall mean routing information obtained
from an 800/888 Number Database for originating 800/888 calls.
F. Billing Company shall mean the Local Exchange Carrier that provides
the local telephone exchange service for the number to which an
Alternately Billed Call is to be billed.
G. Calling Card Call shall mean a call billed to a pre-assigned end
user line-based billing number, including calls dialed or serviced
by an operator system.
H. Carrier Common Line Facilities means the facilities from the end
user's premises to the End Office used to originate or terminate
Transit Service Traffic and 800/888 Service Traffic. Such carrier
common line facilities are as specified in each party's Exchange
Access Tariff.
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<PAGE>
I. Category 01 shall mean the EMR/billing record for usage charges
applicable to the terminating 800/888 number service subscriber.
J. Category 08 shall mean the EMR/copy record containing the
information necessary for Carrier to bill/settle intraLATA
terminating charges with other carriers.
K. Category 11 shall mean the EMR/access record containing information
necessary for Carrier to bill/settle interexchange access charges.
L. CCS/SS7 shall mean the Common Channel Signaling/Signaling System 7,
which refers to the packet-switched communication, out-of-band
signaling architecture that allows signaling and voice to be carried
on separate facilities, and thus is a signaling network that is
common to many voice channels. There are two modes of operation
defined for CCS/SS7: database query mode, and trunk signaling mode.
M. Centralized Message Distribution System (CMDS) shall mean the
message processing system which handles the distribution of Message
Records from the Earning Company to the Billing Company.
N. Certified Local Exchange Carrier (CLEC) means a carrier certified by
the ____________ ____________to provide Local Exchange Access
services within the BA-__ operating territory in that state.
O. Collect Call shall mean a non-sent paid call that is billed to the
number receiving the call, including calls dialed or serviced by an
operator system.
P. Discounted Toll Services means services in which the originating end
user is charged a rate less than would normally be assessed for
calls placed to similar points outside the end user's local calling
area.
Q. Earning Company shall mean the Local Exchange Carrier that provides
local telephone exchange service for the number from which an
Alternately Billed Call originates.
R. End Office means the end office switching and end user line
termination facilities used to originate or terminate switched
intraLATA telecommunications services traffic.
S. Exchange means a geographic area established for the furnishing of
local telephone service under a local tariff. It usually embraces a
city, town or village and its
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<PAGE>
EXHIBIT D
environs. It consists of one or more wire centers together with the
associated facilities used in furnishing communications service
within the area.
T. Exchange Access means the facilities and services used for the
purpose of originating or terminating interexchange
telecommunications in accordance with the schedule of charges,
regulations and conditions specified in lawfully established
Exchange Access Tariffs.
U. Exchange Access Tariffs means the tariffs lawfully established with
the Federal Communications Commission or the _____________
___________________ by an Exchange Carrier for the provision of
Exchange Access facilities and services.
V. Exchange Carrier shall mean a carrier licensed to provide
telecommunications services between points located in the same
Exchange area.
W. Exchange Message Record (EMR) shall mean the standard used for
exchange of telecommunications message information among Local
Exchange Carriers for billable, non-billable, sample, settlement and
study data. EMR format is described in BR-010-200-010 CRIS Exchange
Message Record, a Bell Communications Research, Inc. document that
defines industry standards for Exchange Message Records, which is
hereby incorporated by reference.
X. ITORP Transit Service Traffic shall have the meaning set forth in
Section I above titled "Scope".
Y. Independent Telephone Company shall mean any entity other than BA-__
which, with respect to its operations within the ___________ of
__________________, is an incumbent Local Exchange Carrier.
Z. Inter-Company Net Billing Statement shall mean the separate monthly
financial reports issued by BA-__ under ITORP to the Exchange
Carriers for settlement of amounts owed.
AA. IntraLATA Toll Originating Responsibility Plan (ITORP) shall mean
the information system owned and administered by BA-__ for
calculating charges between BA-__ and Local Exchange Carriers for
termination of intraLATA calls.
BB. Interexchange Carrier (IXC) means a carrier that provides, directly
or indirectly, interLATA or intraLATA telephone toll services.
CC. Local Access and Transport Area (LATA) means a contiguous geographic
area: (1) established before the date of enactment of the
Telecommunications Act of 1996 by BA-__ such that no Exchange area
includes points within more than one
4
<PAGE>
EXHIBIT D
metropolitan statistical area, consolidated metropolitan statistical
area, or state, except as expressly permitted under the AT&T Consent
Decree; or (2) established or modified by BA-__ after such date of
enactment and approved by the Federal Communications Commission.
DD. Local Exchange Carrier (LEC) means any person that is engaged in the
provision of Local Exchange Service or Exchange Access. Such term
does not include a person insofar as such person is engaged in the
provision of a commercial mobile service under Section 332 (c) of
the Telecommunications Act of 1996, except to the extent that the
Federal Communications Commission finds that such service should be
included in the definition of such term.
EE. Local Exchange Service means telecommunications services provided
between points located in the same LATA.
FF. Meet -Point Billing (MPB) means an arrangement whereby two or more
LECs jointly provide to a third party the transport element of a
switched access Local Exchange Service to one of the LECs' End
Office switches, with each LEC receiving an appropriate share of the
transport element revenues as defined by their effective Exchange
Access tariffs.
GG. Meet-Point Transit Service Traffic shall have the meaning set forth
in Section 1, "Scope".
HH. Message Records shall mean the message billing record in Exchange
Message Record format.
II. Message Telecommunications Service (MTS) means message toll
telephone communications, including Discounted Toll Services,
between end users in different Exchange areas, but within the same
LATA, provided in accordance with the schedules of charges,
regulations and conditions specified in lawfully applicable tariffs.
JJ. Minutes of Use (MOU) means the elapsed time in minutes used in the
recording of Transit Service Traffic and 800/888 Service Traffic.
KK. Multiple Bill/Single Tariff means the MPB method whereby each LEC
prepares and renders its own Meet Point Bill in accordance with its
own tariff(s) for the portion of the jointly-provided Exchange
Access service which the LEC provides.
LL. Multiple Exchange Carrier Access Billing (MECAB) means the document
prepared by the Billing Committee of the Ordering and Billing Forum,
which functions under the auspices of the Carrier Liaison Committee
of the Alliance for
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EXHIBIT D
Telecommunications Industry Solutions, and published by Bellcore as
Special Report SR-BDS-000983, which document contains the
recommended guidelines for the billing of an Exchange Access service
provided by two or more LECs, or by one LEC in two or more states,
within a single LATA, and is incorporated herein by reference.
MM. Originating Company means the company which originates intraLATA MTS
or Local Exchange Service on its system. (For compensation purposes,
the Originating Company shall be considered the Terminating Company
for 800/888 Service Traffic.)
NN. Terminating Company means the company which terminates intraLATA MTS
or Local Exchange Service on its system where the charges for such
services are collected by the Originating (or Billing) Company. (For
compensation purposes, the Terminating Company shall be considered
the Originating Company for 800/888 Service Traffic.)
OO. Third-Number Call shall mean a call billed to a subscriber's
line-based billing number which is not the number to which the call
either terminates or originates.
PP. Transit Traffic shall refer to both ITORP Transit Service Traffic
and Meet-Point Transit Service Traffic.
QQ. Transiting Company shall mean a Local Exchange Carrier which
transports intraLATA telecommunications traffic on its system
between an Originating Company and a Terminating Company.
RR. Transport Facilities means the facilities from the End Office to a
tandem switching facility used to originate or terminate switched
intraLATA telecommunication services traffic.
SECTION III
SETTLEMENT OF TRANSIT SERVICES
(a) ITORP Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ will route
ITORP Transit Service Traffic over the combined local and toll trunk groups
between BA-__ and Carrier. BA-__
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EXHIBIT D
and Carrier agree to designate the points of interconnection for the purpose of
terminating ITORP Transit Service Traffic which originates from an Independent
Telephone Company or wireless carrier and terminates to Carrier. Both parties
further agree to develop and file mutually agreed to billing percentages
applicable to ITORP Transit Service Traffic in the National Exchange Carrier
Association F.C.C. Tariff No. 4, which billing percentages shall be calculated
in accordance with ITORP guidelines.
(2) Exchange of Billing Data. The Originating Company will provide to
BA-__ all billing data relating to ITORP Transit Service Traffic for processing
in ITORP within fourteen (14) days from the date the usage occurs (to the extent
usage occurs on any given day) for traffic originating from an Independent
Telephone Company or wireless carrier, which traffic transits BA-PA's facilities
and terminates to Carrier.
(3) Billing. BA-__ will, on behalf of Carrier, bill Exchange Carriers for
intraLATA ITORP Transit Service Traffic, and collect compensation due Carrier
based on Carrier's established and legally-approved tariffed or negotiated rates
utilizing ITORP. The charges set forth in Attachment A, attached hereto and
incorporated herein by reference, shall apply to the billing and collection
services provided by BA-__ to Carrier hereunder. Carrier will record the ITORP
Transit Service Traffic usage at its switch, and shall bill BA-__ for this
traffic in accordance with the rates set forth in the Interconnection Agreement
under Section 251 and 252 of the Telecommunications Act of 1996, dated as of
September __, 1996, by and between BA-__ and Carrier.
(b) Meet-Point Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ and Carrier
will route their respective Meet-Point Transit Service Traffic over the combined
local and toll trunk groups between them. BA-__ and Carrier agree to designate
the points of interconnection for the purpose of terminating Meet-Point Transit
Service Traffic which originates from a CLEC and terminates to Carrier, or
originates from Carrier and terminates to a CLEC, Independent Telephone Company,
or a wireless carrier. Both parties further agree to develop and file mutually
agreed to billing percentages applicable to Meet-Point Transit Service Traffic
in the National Exchange Carrier Association F.C.C. Tariff No. 4, which billing
percentages shall be calculated in accordance with MECAB guidelines.
(i) End Offices Subtending BA-__ Access Tandem. Meet-Point Transit Service
Traffic will be routed over the local and toll interconnection facilities
used to terminate similar traffic directly between BA-__ and Carrier when
the Originating and Terminating Company's End Office switches subtend
BA-PA's Access Tandem. BA-__ will record this traffic at the BA-__ Access
Tandem, and forward the terminating call records to the Terminating
Company for purposes of Meet-Point Billing.
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EXHIBIT D
(ii) End Offices That Do Not Subtend a BA-__ Access Tandem. When the
Originating and/or the Terminating Company's End Office switches do not
subtend BA-PA's Access Tandem, the Meet-Point Transit Service Traffic must
be routed over interconnection facilities other than those used to
terminate intraLATA MTS or Local Exchange Service to BA-PA's end users The
Terminating Company will record this traffic at its Access Tandem and
forward the terminating call records to BA-__ for Meet-Point Billing
purposes.
(iii) Special Access. Upon request, any Meet-Point Service Transit Traffic
may be routed over special access interconnection facilities between
Carrier, on the one hand, and a CLEC, an Independent Telephone Company, or
a wireless carrier, on the other.
(2) Exchange of Billing Data. All billing data exchanged hereunder will be
exchanged on magnetic tape or via electronic data transfer, to be delivered at
the addresses set forth below, using the Electronic Message Record format. BA-__
will provide to Carrier the switched-access detail usage data (category 1101XX
records) on magnetic tape within fourteen (14) days from the date the usage
occurs (to the extent usage occurs on any given day) for traffic originating
from a CLEC, transiting BA-PA's facilities and terminating to Carrier, and
Carrier will provide to BA-__ the switched access summary usage data (category
1150XX records) on a magnetic tape on a monthly basis within fourteen (14) days
of receipt from BA-__ of the switched access detail usage data referenced above.
(3) Billing. BA-__ and Carrier will submit to CLECs separate bills under
their respective tariffs for their portion of jointly-provided Meet-Point
Transit Service Traffic. With respect to Meet-Point Transit Service Traffic,
BA-__ and Carrier will exchange billing data and render bills under Multiple
Bill/Single Tariff arrangements in accordance with the applicable terms and
conditions set forth in MECAB.
(4) Addresses. Magnetic tapes to be sent hereunder to Carrier will be sent
to the following address (which address Carrier may change upon prior written
notice to BA-__):
Magnetic tapes to be sent hereunder to BA-__ will be sent to the following
address(es), as appropriate (which address(es) BA-__ may change upon prior
written notice to Carrier):
Bell Atlantic
Tape Library
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EXHIBIT D
1500 Tech Center Drive
Monroeville, PA 15146
SECTION V
800/888 SERVICE
800/888 Service Traffic will be exchanged among BA-__, Carrier,
Independent Telephone Companies, CLECs and wireless carriers via CCS/SS7 trunks,
and all will deliver/route these calls as appropriate and provide EMRs to the
Terminating Company to enable it to bill its 800/888 service subscriber. These
EMRs will, per industry standards, include the following: Category 01 (800/888
number subscriber billing), Category 08 (copy record/local exchange charges),
and Category 11 (interexchange carriers access records).
(a) Delivery of Translated 800/888 Number Queries and calls over CCS/SS7
links and trunks. BA-__ and Carrier will launch their own Basic 800/888 Number
Query for 800/888 Service Traffic originated in their networks, and route this
traffic to each other, as appropriate, utilizing existing local and toll
interconnection facilities.
(b) Exchange of Records; Compensation. All 800/888 Service Traffic
hereunder shall be subject to the appropriate access charges, as set forth in
the applicable tariffs. In addition, for jointly provided intraLATA 800/888
Service Traffic between two Local Exchange Carriers, the Originating Company is
responsible for billing its tariffed Basic 800/888 Number Query charge to the
Terminating Company. Carrier, when acting as an Originating Company, must submit
to BA-__, via magnetic tape(s) in EMR format, (i) the information necessary to
bill/settle intraLATA charges (EMR Category 110125), and (ii) the usage charges
applicable to the terminating 800/888-number service subscriber (EMR Category
010125). In the event any of these records are lost or destroyed, BA-__ and
Carrier will jointly estimate the terminating access charges due to either party
hereunder as follows:
(1) Total the terminating traffic compensation paid with respect to
800/888 Service Traffic to each party hereunder for the most recent
six (6) months period preceding the month covered by the lost or
destroyed tapes.
(2) Divide the total determined in (1) preceding, by 180 days.
(3) Multiply the terminating traffic compensation per day determined in
(2) preceding, by the number of days covered by the lost or
destroyed tapes. The calculated amount will be included as an
adjustment for lost or destroyed tapes in the next Inter-Company Net
Billing Statement.
BA-__ shall have no liability whatsoever with respect to any lost, damaged
or destroyed
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EXHIBIT D
records submitted hereunder by Carrier.
(c) Settlement. EMR records submitted by Carrier hereunder acting as an
Originating Company, as contemplated in Paragraph (b) above, will be processed
in accordance with ITORP. For purposes of calculating the access charges due
Local Exchange Carriers with respect to 800/888 Service Traffic, the Originating
Company shall be deemed the Terminating Company. Access charges payable
hereunder shall be calculated in accordance with Section VII of this Agreement,
as applicable.
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EXHIBIT D
SECTION VI
ALTERNATELY BILLED CALLS
(a) Responsibilities of the Billing Company. The Billing Company agrees to
provide the Earning Company with billing services, as specified below, with
respect to Alternately Billed Calls.
(1) Billing. Upon receipt of the appropriate Message Record from CMDS, the
Billing Company shall include this record in the bill to be issued to the end
user responsible for payment. The Billing Company shall also submit copies of
these Message Records to BA-__, at least once a month, in order to determine
monthly settlement amounts for both the Billing Company and the Earning Company
which will be reflected in the Inter-Company Net Billing Statement. These
amounts will reflect any and all applicable charges due the Billing Company for
performing billing services hereunder. In addition, as applicable, the
Inter-Company Net Billing Statement will reflect any amounts owed by Carrier to
BA-__ for administering and processing ITORP.
(2) Payment of Amounts Outstanding. Upon receipt of the Inter-Company Net
Billing Statement from BA-__, Carrier shall, within thirty (30) days of invoice,
remit to BA-__ full payment of amounts owed under the Inter-Company Net Billing
Statement.
(b) Responsibilities of the Earning Company. In connection with
Alternately Billed Calls, the Earning Company shall provide Message Records to
the Billing Company on a daily basis to the extent that any usage has been
recorded. These Message Records will be delivered by the Earning Company to the
Billing Company via the CMDS system, unless otherwise agreed to by the parties
hereto.
(c) Fees for Settlement of Alternately Billed Calls. The billing services
provided by the Billing Company to the Earning Company with respect to
Alternately Billed Calls shall be subject to the applicable charges set forth in
Attachment A, which charges will be reflected in the Inter-Company Net Billing
Statement. These charges may be revised upon mutual written agreement of the
parties hereto.
SECTION VII
CALCULATION OF COMPENSATION
BA-__ and Carrier agree to compensate each other with respect to Transit
Services Traffic and 800/888 Service Traffic in accordance with the terms
established below, and the rate elements set forth in Attachments A and B,
attached hereto and incorporated herein by reference.
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EXHIBIT D
(a) Compensation due to the Terminating/Transiting Company. Compensation
due to the Terminating Company/Transiting Company will be determined separately
for each month as follows:
(1) For Carrier Common Line Facilities provided by the Terminating
Company, an amount calculated as specified for Carrier Common Line Facilities in
the Terminating Company's Exchange Access Tariff. Compensation will be
determined by multiplying a) the Terminating Company's Carrier Common Line rate,
times b) the MOU.
(2) For End Office facilities provided by the Terminating Company, an
amount calculated as specified for End Office facilities in the Terminating
Company's Exchange Access Tariff. Compensation will be determined by multiplying
a) the Terminating Company's appropriate Exchange Access End Office rate
elements, times b) the MOU.
(3) For Transport Facilities, where these facilities are provided by the
Terminating Company, or a Transiting and Terminating Company, an amount
calculated in accordance with the following steps:
(i) Determine the Terminating Company's airline miles from the End
Office which serves the Terminating Company's end user to
either the Terminating Company's Access Tandem switching
facility or the interconnection point with the Transiting
Company(ies).
(ii) Determine the Transiting Company's airlines miles from the
Transiting Company(ies) Access Tandem switching facility to
the interconnection point with the Terminating Company.
(iii) Determine the sum of the total airline miles by adding (i) and
(ii) above.
(iv) Divide the Terminating Company's airline miles determined in
(i) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Terminating Company.
(v) Divide the Transiting Company's airline miles determined in
(ii) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Transiting Company.
(vi) Identify the rates set forth in the Exchange Access Tariff for
either the Terminating Company or Transiting Companies, or
both, as appropriate, which rates are applicable to Transport
Facilities.
(vii) Multiply the ratio determined in (iv) preceding, times the
rate calculated in
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EXHIBIT D
(vi) preceding, times the MOU, and add the amount set forth
in (ix) below to determine the amount due the Terminating
Company.
(viii) Multiply the ratio determined in (v) preceding, times the
rate calculated in (vi) preceding, times the MOU, and add the
amount set forth in (ix) below to determine the amount due
the Transiting Company.
(ix) To the extent the Exchange Access Tariffs of the Terminating
or Transiting Company, or both, provide for the payment of a
fixed transport charge to be assessed with respect to a
terminating location (End Office or toll switch), multiply
this charge times the chargeable MOU.
SECTION VIII
ITORP ADMINISTRATION AND RESPONSIBILITIES
(a) Responsibilities of BA-__. BA-__ shall:
1. Operate and maintain the ITORP system.
2. Provide the requirements and standards for ITORP records and
tapes (ITORP User Guide).
3. Inform Carrier of any proposed change in tape creation or
distribution process at least sixty (60) days prior to the
actual implementation of the change.
4. Develop and implement all system enhancements required to
maintain the integrity of BA-PA's ITORP system.
5. Process ITORP tapes received from Carrier, or its agent,
during the next available billing cycle.
6. Review and analyze daily pre-edit reports to determine if a
tape is acceptable for ITORP processing; provided, however,
that Carrier is not absolved, as the Originating Company,
from its responsibility to conform to ITORP input
requirements.
7. Communicate with Carrier, or its agent, to resolve the
problems with tapes which are identified as being
unacceptable for ITORP processing.
8. Create and/or maintain all ITORP tables.
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EXHIBIT D
9. Include the monthly compensation due to and from Carrier as
identified by ITORP on the Inter-Company Net Billing
Statement. The compensation includes 800/888 Service Traffic
and Alternately Billed Services traffic.
10. Settle with all local Exchange Carriers, via the Inter-Company
Net Billing Statement, for 800/888 Service Traffic and
Alternately Billed Services traffic originating from and/or
terminating to Carrier.
11. Distribute monthly ITORP reports.
(b) Responsibilities of Carrier. Carrier shall:
1. Compensate BA-__ for the administration and processing of
ITORP as specified in Attachment A.
2. Notify BA-__ Exchange Carrier Services staff in writing of any
changes in its rates affecting ITORP tables, as specified in
Attachment A, thirty (30) days prior to the effective date of
any such changes.
3. Notify BA-__ Exchange Carrier Services staff in writing of any
network changes, such as changes in traffic routing, sixty
(60) days prior to the implementation of the change in the
network.
4. Conform to BA-__'s ITORP record requirements and standards.
5. Carrier or its designated agent will forward the Exchange
Message Records to BA-__, in a timely manner for processing.
6. Inform the BA-__ Exchange Carrier Services staff in writing of
any proposed changes in the Exchange Message Record creation
or distribution process at least sixty (60) days prior to the
actual implementation of the change.
7. Reimburse BA-__ for compensating other local Exchange Carriers
on behalf of Carrier, as reflected in the Inter-Company Net
Billing Statement.
(c) Fees. Compensation for the administration and processing of ITORP will
be due BA-__ on a monthly basis, based on the number of messages processed in
ITORP for Carrier at an average total cost per message. The processing and
administrative fees applicable on a per message basis are set forth in
Attachment A. These fees may be revised by BA-__, at its discretion and upon
notice to Carrier, based on annual studies conducted by BA-__, and Carrier
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EXHIBIT D
hereby agrees to be bound by such revised rates. A minimum monthly fee, as
specified in Attachment A, will be assessed when Carrier's monthly ITORP
processing charges are below the stated minimum monthly charge.
SECTION IX
LIABILITIES
In the event of an error on the part of BA-__ in calculating or settling
any compensation amounts hereunder, Carrier's sole remedy and BA-PA's only
obligation shall be to re-calculate the compensation amount, and to the extent
any amounts are owed to or owed by Carrier, such amounts will be reflected as an
adjustment in the next Inter-Company Net Billing Statement. In addition and to
the extent applicable, BA-PA's liability under this Agreement and/or in
connection with the settlement, payment and/or calculation of any amounts due
hereunder shall be limited as set forth in the applicable tariffs. BA-__ shall
have no obligation or liability with respect to any billing, settlement or
calculation-of-compensation errors or omissions, including without limitation
the duty to re-calculate any compensation amounts reflected in the Inter-Company
Net Billing Statement, if such error or omission occurred more than two (2)
years prior to the time in which it is brought to BA-PA's attention in writing.
Without limiting the foregoing, in no event shall either party hereto be liable
for consequential, incidental, special or indirect damages (including without
limitation loss of profit or business) hereunder whether such damages are based
in tort (including, without limitation, under any theory of negligence),
contract breach or otherwise, and even if said party knew or should have known
of the possibility thereof.
SECTION X
RELATIONSHIP OF THE PARTIES
Nothing herein contained will be deemed to constitute a partnership or
agency relationship between the parties. Each party agrees that it will perform
its obligations hereunder as an independent contractor and not as the agent,
employee or servant of the other party. Neither party nor any personnel
furnished by such party will be deemed employees or agents of the other party or
entitled to any benefits available under any plans for such other party's
employees. Each party has and hereby retains the right to exercise full control
of and supervision over its own performance of the obligations under this
Agreement, and retains full control over the employment, direction, compensation
and discharge of all employees assisting in the performance of such obligations,
including without limitation all matters relating to payment of such employees,
including compliance with social security taxes, withholding taxes and all other
regulations governing such matters. In addition, each party will be responsible
for its own acts and those of its own subordinates, employees, agents and
subcontractors during the performance of that party's obligations hereunder.
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EXHIBIT D
SECTION XI
TERM AND TERMINATION
(a) Term - Upon execution by all parties hereto, this Agreement shall
become effective as of the date first shown on Page 1 of this Agreement, and
shall remain in effect until terminated by either party in accordance with
paragraphs (b), (c), (d), or (e) below.
(b) Termination for Breach - Either party may, upon prior written notice
to the other party, terminate this Agreement in the event the other party is in
default or breach of this Agreement and such breach or default is not corrected
within thirty (30) days after the breaching party has been notified of same.
(c) Termination for Convenience - Upon six (6) months written advance
notice to the other party, either party may terminate this Agreement.
(d) Acts of Insolvency - Either party may terminate this Agreement or any
portion thereof, effective immediately, by written notice to the other party, if
said other party (1) applies for or consents to the appointment of or the taking
of possession by receiver, custodian, trustee, or liquidator of itself or of all
or a substantial part of its property; (2) becomes insolvent; (3) makes a
general assignment for the benefit of creditors; (4) suffers or permits the
appointment of a receiver for its business or assets; (5) becomes subject to any
proceeding under any bankruptcy or insolvency law whether domestic or foreign,
voluntarily or otherwise; or (6) fails to contest in a timely or appropriate
manner, or acquiesces in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code or any application for the
appointment of a receiver, custodian, trustee, or liquidation of itself or of
all or a substantial part of its property, or its reorganization, or
dissolution.
(e) Termination of Interconnection Agreement. Unless otherwise agreed to
by the parties hereto in writing, in the event that the Interconnection
Agreement under Sections 251 and 252 of the Telecommunications Act of 1996,
dated as of December __, 1996, by and between BA-__ and Carrier expires without
being renewed, or expires or is terminated and no other interconnection
agreement has been entered into by BA-__ and Carrier, then this Agreement shall
be deemed terminated effective on the date the aforesaid Interconnection
Agreement expires or is terminated.
SECTION XII
NETWORK CONFIGURATION
Each party shall provide six (6) months advance written notice to the
other party of any network configuration that may affect any of the services or
compensation contemplated under this Agreement, and the parties hereto agree to
use reasonable efforts to avoid service
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EXHIBIT D
interruptions during any such network change.
SECTION XIII
CONSTRUCTION AND EFFECT
All services contemplated under this Agreement are provided in accordance
with any and all applicable regulatory requirements and effective tariffs filed
with and approved by the appropriate federal and/or state regulatory bodies, as
these tariffs and requirements may be modified from time to time. To the extent
there is a conflict between the terms of any said tariff or regulatory
requirement and this Agreement, the terms of the tariff or the regulatory
requirement shall prevail. However, to the extent not in conflict with the
provisions of the applicable tariffs or regulatory requirements, this Agreement
shall supplement the tariffs or regulatory requirements, and it shall be
construed to the fullest extent possible in harmony with such tariffs or
regulatory requirements.
SECTION XIII
MISCELLANEOUS
(a) Headings. Headings used in this Agreement are for reference only, do
not constitute part of this Agreement, and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
(b) Notices. All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing, shall be deemed delivered
(1) on the date of delivery when delivered by hand, (2) on the date of
transmission when sent by electronic mail or facsimile transmission during
normal business hours with telephone confirmation of receipt, (3) one (1) day
after dispatch when sent by overnight courier maintaining records of receipt, or
(4) three (3) days after dispatch when sent by registered mail, postage prepaid,
return-receipt requested, all addressed as follows (or at such other addresses
as shall be given in writing by either party to their other):
If to BA-__: Address: 1320 N. Court House Road, 9th Floor
Arlington, VA 22201
Attn.: Manager-Local Interconnection
Facsimile: 703 974 2188
Telephone: 704 974 4614
If to Carrier: Address:
Attn:
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EXHIBIT D
Facsimile:
Telephone:
(c) Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, and nothing herein shall be
construed to create any rights enforceable by any other person or third party.
This Agreement may not be assigned by either party (except by BA-__ to an
affiliate or successor in interest) without the prior written consent of the
other party, which consent shall not be unreasonably withheld.
(d) Waiver. No waiver of any right or term hereof shall be effective
unless in a writing executed by the waiving party. No waiver of any right or
privilege hereunder shall operate as a waiver of any subsequent or similar right
or privilege.
(e) Modifications. This Agreement may be modified or amended only by a
written agreement executed by the parties hereto.
(f) Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed an original.
(g) Severability. If any term, provision, paragraph or clause of this
Agreement or any application thereof shall be held invalid or unenforceable in
any particular jurisdiction, the remainder of this Agreement and any other
application of such term, provision, paragraph or clause shall not be affected
thereby in such jurisdiction (where such remainder or application shall be
construed as if such invalid or unenforceable term, provision, paragraph or
clause has not been inserted), and this Agreement and such application of such
term, provision, paragraph or clause shall not be affected in any other
jurisdiction.
(h) Contingency. Neither party will be held liable for any delay or
failure in performance of this Agreement from any cause beyond its control and
without its fault or negligence including but not limited to acts of God, acts
of civil or military authority, government regulations, embargoes, epidemics,
wars, terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, floods, strikes, power blackouts, other major environmental
disturbances, unusually sever weather conditions, inability to secure products
or services of other persons or transportation facilities, or acts or omissions
of transportation common carriers.
(i) Governing Law. Except as otherwise expressly provided herein, this
Agreement shall be interpreted, construed and governed by the laws of the State
of ____________, without regard to conflict of law provisions.
(j) Confidentiality. Unless by mutual agreement, or except to the extent
directed by a court of competent jurisdiction, neither party shall disclose this
Agreement or the terms hereof to any person other than such party's affiliates
or such party's officers, employees and consultants,
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who are similarly bound hereby. This paragraph shall not prevent the filing of
this Agreement with a state or federal commission having jurisdiction over the
parties hereto if such filing is required by rule or order of that commission;
provided, however, that the parties hereto shall jointly request that the
Agreement be treated as confidential by that commission to the extent permitted
under the commission's regulations and procedures. Each party hereto must
maintain the confidentiality of all message, billing, traffic, and call records,
traffic volumes and all other material information and data pertaining to the
traffic covered by this Agreement and the carriers and end users associated with
such traffic.
(k) Remedies under Law. All remedies available to the parties hereto under
the terms of this Agreement shall be in addition to, and not by way of
limitation of, any other rights that said parties may have at law or equity,
none of which are hereby waived.
(l) Entire Agreement. This Agreement, including all Attachments and
Schedules attached hereto, contains the entire agreement, and supersedes and
voids any prior understanding, between BA-__ and Carrier regarding the subject
matter hereof.
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In witness whereof, the undersigned parties have caused this Agreement to
be executed on their behalf this day of , 19__.
Witness: [Carrier]
____________________ By: _________________________________
Witness: Bell Atlantic - _______________, Inc.
____________________ By: _________________________________
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EXHIBIT D
ATTACHMENT A
BASIS OF COMPENSATION
CHARGES FOR ADMINISTRATION OF ITORP AND ITORP PROCESSING
A. Bell Atlantic - _____________, Inc. charges the following rates for
providing ITORP services:
Rate Per Message/ Month
1. Administrative Charge $
2. Processing Charge Elements:
a. Terminating Traffic $
b. Minute/Message $
c. 800/888 Message $
d. Net Compensation $
e. Collected Revenue Processing Charge $
3. Minimum Monthly Fee $
4. Alternately Billed Calls $
21
<PAGE>
EXHIBIT D
ATTACHMENT B
I.
Message Telecommunications Service - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Carrier
End Office Carrier
Transport based on negotiated billing percentages (BIPs)
II.
800/888 - Terminating to or originating from Carrier Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Originating Company
End Office Originating Company
Transport based on negotiated billing percentages (BIPs)
Query Originating Company
III.
Local Exchange - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Local E.O. Termination Charge Carrier
Transport based on negotiated billing percentages (BIPs)
22
<PAGE>
APPENDIX A
BELL ATLANTIC
CARRIER SERVICE SELECTION FORM
Please select desired services.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
MINIMUM SERVICE
SERVICE SERVICE CHARGE SELECTION
PERIOD
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Directory Assistance 12 months $______/call (Directory Transport Yes No
(ADAS) charges below)
- ------------------------------------------------------------------------------------------
IntraLATA Call 12 months Live: $______/op work second Yes No
Completion Operator Automated: $______/auto wk sec
Services LIDB: $______/query
- ------------------------------------------------------------------------------------------
Directory Assistance non-recurring $_________ per switch Yes No
Branding fee
- ------------------------------------------------------------------------------------------
Operator Services non-recurring $_________ per switch Branding is
Branding fee required for OS
- ------------------------------------------------------------------------------------------
</TABLE>
Directory Transport charges are as follows. (Call miles are measured from the BA
Wire Center serving Carrier's premises to the Directory Assistance location.)
Rate Per Directory Assistance Call
----------------------------------
Tandem-Switched Transport
Fixed ................................. $________
Per mile .............................. $________
Tandem Switching ............................. $________
Note: Trunking, daily usage file, and switched access costs are not included in
the above rates.
<PAGE>
APPENDIX B
INTRALATA CALL COMPLETION OPERATOR SERVICES CALL TYPES
IntraLATA Call Completion Operator Services may include the following:
a. Calling Card
(i) Live: Bell Atlantic operator keys the calling card number and call
details into the system, secures validation, and releases the call to the
network.
(ii) Automated: Caller keys the calling number and call details in
response to automated prompts. Bell Atlantic secures validation and
releases the call to the network.
b. Collect
(i) Live: Bell Atlantic operator obtains the calling party's name, keys
the call details if necessary, announces the call to the called party,
waits for acceptance, and releases the call to the network.
(ii) Automated: Caller provides name and call details. Bell Atlantic's
automated system obtains called party's consent and releases the call to
the network.
c. Billed To A Third Party
(i) Live: Bell Atlantic operator requests the calling party's name, keys
the call details if necessary, calls the third party to verify acceptance
of billing, and upon acceptance, releases the call to the network.
(ii) Automated: Caller provides name, call details, and billing number.
Bell Atlantic's automated system verifies billed number and releases the
call to the network.
d. Person-to-Person
Bell Atlantic operator requests the person or department the calling party
has specified, ensures the appropriate party has been reached (person or
department), and releases the call to the network.
e. Coin Sent Paid
Bell Atlantic operator keys the call details if necessary, requests the
initial deposit, and upon deposit, releases the call to the network.
<PAGE>
f. Miscellaneous Call Assistance (Live)
(i) 0- Calls: Bell Atlantic operator provides caller with dialing
instructions or assistance, transfers emergency calls, or refers questions
to the business office or repair service.
(ii) Dialing Assistance & Intervention: Bell Atlantic operator dials a
number for a caller who is unwilling to dial directly or is encountering
trouble (such as wrong number, poor transmission, or cutoff), and who
requests a credit or reconnection.
(iii) Time and Charges: Bell Atlantic operator provides caller with time
and charges at the end of conversation, if requested.
(iv) Individuals with Disabilities: Bell Atlantic operator assists a
caller requiring dialing assistance due to a disability.
g. Busy-Line Verification
Bell Atlantic operator determines if the number specified by the customer
is in use, idle, or out of order. Appropriate facilities and equipment may
be required from the Carrier to enable verification of Carrier's lines.
h. Customer-Requested Interrupt
At the caller's request, Bell Atlantic operator interrupts conversation in
progress on a line that is in use, as verified through Busy-Line
Verification.
i. Operator Number Identification (ONI) Requests
Bell Atlantic operator requests the calling telephone number, keys the
number into the system for identification, and releases the call for
processing.
j. Automated Coin Toll Service (ACTS)
Bell Atlantic will provide automated messages for intraLATA toll calls
that originate from coin phones. The messages will prompt callers for the
correct change and record the change upon deposit. If a caller fails to
deposit the correct amount within the time threshold (set by Bell
Atlantic), the call will default to a live operator.
k. Validation Services
Bell Atlantic will launch queries for the validation of all calling card
calls, collect calls, and billed-to-third number calls to a Line
Information Data Base (LIDB). The validation costs for queries of LIDB are
separate from the individual call rates. Bell Atlantic will also launch
queries for validations to another company's LIDB if that company has a
card honoring agreement with Bell Atlantic.
<PAGE>
APPENDIX C
REQUIRED INFORMATION
Carrier shall furnish Bell Atlantic all information required by Bell Atlantic to
establish and maintain the Services to be provided to Carrier, including a
completed Technical Questionnaire. Such required information includes, but is
not limited to, the following:
1. Central office exchange names
2. Usage forecasts
3. Local central office characteristics
4. Trunking arrangements and trunk group types
5. Emergency reporting system and procedures
6. Business office information
7. Repair service information
8. Name and address request information
9. Tariffs and rate information
10. Customer dialing capabilities
11. Access to EMR records
12. Desired branding announcement (if applicable)
13. Carrier's estimated start date of Services
14. Access Service Requests (ASRs) for trunking and translations
Note: ASRs are not to be submitted by Carrier until Carrier and Bell Atlantic
have reviewed the Technical Questionnaire.
<PAGE>
APPENDIX D
OPTIONAL SERVICE SELECTION FORM
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
MINIMUM SERVICE SELECTION
SERVICE SERVICE PERIOD CHARGE
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Directory Assistance Call Completion 6 months $___/call Yes No
- ------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT D
INTRALATA TELECOMMUNICATIONS SERVICES SETTLEMENT AGREEMENT
This Agreement is entered into as of _______________ , 1997, by and
between Bell Atlantic - _______________, Inc., a ___________ corporation, with
principal offices located at ______________________________ ("BA-__"), and
___________________________, a ______________ corporation, with principal
offices located at _____________________________________________ ("Carrier").
SECTION I
SCOPE
This Agreement sets forth the terms and conditions for the following:
(a) administering and processing messages in the intraLATA Toll
Originating Responsibility Plan ("ITORP"); and
(b) the settlement of compensation for the following telecommunications
traffic within a BA-__ LATA:
(1) intrastate and interstate intraLATA traffic terminated to
Carrier and originated by an Independent Telephone Company or
wireless carriers that transits the facilities of BA-__ within a
BA-__ LATA, including Message Telecommunications Service and Local
Exchange Service (the "ITORP Transit Service Traffic");
(2) intrastate and interstate intraLATA Message Telecommunications
Service and Local Exchange Service traffic which originates from a
Certified Local Exchange Carrier or Carrier, transits BA-PA's
network and terminates to Carrier, or a wireless carrier or an
Exchange Carrier other than BA-__, which traffic is subject to a
Meet-Point Billing arrangement (the "Meet-Point Transit Service
Traffic");
(3) intraLATA 800/888 Service Traffic; and
(4) intraLATA Alternately Billed Calls billed to a line-based
telephone number within the state where the call is originated.
By way of clarification, this Agreement does not cover the following: (x)
traffic that does not use BA-__ facilities; (y) interLATA traffic; and (z) any
statewide services (whether interLATA or intraLATA) provided entirely by an
Interexchange Carrier such as statewide WATS.
<PAGE>
EXHIBIT D
SECTION II
DEFINITIONS
For purposes of this Agreement, the terms set forth below shall have the
following meaning:
A. 800/888 Number Database shall mean the call management service
database that provides POTS telephone number translation or routing
information or both for a given 800/888 telephone number.
B. 800/888 Service Traffic means a toll free call originating with the
Originating Company and billed to the Terminating Company's end
user. 800/888 service MOUs are recorded by the Originating Company
and provided to the Terminating Company so that it can bill its end
user(s).
C. Access Tandem shall mean a switching entity that is used to connect
and switch trunk circuits between and among End Offices and between
and among End Office switches and carriers' aggregation points,
points of termination, or points of presence, which entity has
billing and recording capabilities that are used to provide switched
Exchange Access services.
D. Alternately Billed Calls shall mean all intraLATA land-line Collect
Calls, Calling Card Calls and Third-Number Calls that originate and
terminate in the _________ of _____________ and are billed to a
line-based number within the jurisdiction of the __________ of
_____________ serviced by the Billing Company. Alternately Billed
Calls are identified in ITORP reports as "Received Collect/Sent
Collect Calls".
E. Basic 800/888 Number Query shall mean routing information obtained
from an 800/888 Number Database for originating 800/888 calls.
F. Billing Company shall mean the Local Exchange Carrier that provides
the local telephone exchange service for the number to which an
Alternately Billed Call is to be billed.
G. Calling Card Call shall mean a call billed to a pre-assigned end
user line-based billing number, including calls dialed or serviced
by an operator system.
H. Carrier Common Line Facilities means the facilities from the end
user's premises to the End Office used to originate or terminate
Transit Service Traffic and 800/888 Service Traffic. Such carrier
common line facilities are as specified in each party's Exchange
Access Tariff.
2
<PAGE>
EXHIBIT D
I. Category 01 shall mean the EMR/billing record for usage charges
applicable to the terminating 800/888 number service subscriber.
J. Category 08 shall mean the EMR/copy record containing the
information necessary for Carrier to bill/settle intraLATA
terminating charges with other carriers.
K. Category 11 shall mean the EMR/access record containing information
necessary for Carrier to bill/settle interexchange access charges.
L. CCS/SS7 shall mean the Common Channel Signaling/Signaling System 7,
which refers to the packet-switched communication, out-of-band
signaling architecture that allows signaling and voice to be carried
on separate facilities, and thus is a signaling network that is
common to many voice channels. There are two modes of operation
defined for CCS/SS7: database query mode, and trunk signaling mode.
M. Centralized Message Distribution System (CMDS) shall mean the
message processing system which handles the distribution of Message
Records from the Earning Company to the Billing Company.
N. Certified Local Exchange Carrier (CLEC) means a carrier certified by
the ____________ ____________to provide Local Exchange Access
services within the BA-__ operating territory in that state.
O. Collect Call shall mean a non-sent paid call that is billed to the
number receiving the call, including calls dialed or serviced by an
operator system.
P. Discounted Toll Services means services in which the originating end
user is charged a rate less than would normally be assessed for
calls placed to similar points outside the end user's local calling
area.
Q. Earning Company shall mean the Local Exchange Carrier that provides
local telephone exchange service for the number from which an
Alternately Billed Call originates.
R. End Office means the end office switching and end user line
termination facilities used to originate or terminate switched
intraLATA telecommunications services traffic.
S. Exchange means a geographic area established for the furnishing of
local telephone service under a local tariff. It usually embraces a
city, town or village and its
3
<PAGE>
EXHIBIT D
environs. It consists of one or more wire centers together with the
associated facilities used in furnishing communications service
within the area.
T. Exchange Access means the facilities and services used for the
purpose of originating or terminating interexchange
telecommunications in accordance with the schedule of charges,
regulations and conditions specified in lawfully established
Exchange Access Tariffs.
U. Exchange Access Tariffs means the tariffs lawfully established with
the Federal Communications Commission or the _____________
___________________ by an Exchange Carrier for the provision of
Exchange Access facilities and services.
V. Exchange Carrier shall mean a carrier licensed to provide
telecommunications services between points located in the same
Exchange area.
W. Exchange Message Record (EMR) shall mean the standard used for
exchange of telecommunications message information among Local
Exchange Carriers for billable, non-billable, sample, settlement and
study data. EMR format is described in BR-010-200-010 CRIS Exchange
Message Record, a Bell Communications Research, Inc. document that
defines industry standards for Exchange Message Records, which is
hereby incorporated by reference.
X. ITORP Transit Service Traffic shall have the meaning set forth in
Section I above titled "Scope".
Y. Independent Telephone Company shall mean any entity other than BA-__
which, with respect to its operations within the ___________ of
__________________, is an incumbent Local Exchange Carrier.
Z. Inter-Company Net Billing Statement shall mean the separate monthly
financial reports issued by BA-__ under ITORP to the Exchange
Carriers for settlement of amounts owed.
AA. IntraLATA Toll Originating Responsibility Plan (ITORP) shall mean
the information system owned and administered by BA-__ for
calculating charges between BA-__ and Local Exchange Carriers for
termination of intraLATA calls.
BB. Interexchange Carrier (IXC) means a carrier that provides, directly
or indirectly, interLATA or intraLATA telephone toll services.
CC. Local Access and Transport Area (LATA) means a contiguous geographic
area: (1) established before the date of enactment of the
Telecommunications Act of 1996 by BA-__ such that no Exchange area
includes points within more than one
4
<PAGE>
EXHIBIT D
metropolitan statistical area, consolidated metropolitan statistical
area, or state, except as expressly permitted under the AT&T Consent
Decree; or (2) established or modified by BA-__ after such date of
enactment and approved by the Federal Communications Commission.
DD. Local Exchange Carrier (LEC) means any person that is engaged in the
provision of Local Exchange Service or Exchange Access. Such term
does not include a person insofar as such person is engaged in the
provision of a commercial mobile service under Section 332 (c) of
the Telecommunications Act of 1996, except to the extent that the
Federal Communications Commission finds that such service should be
included in the definition of such term.
EE. Local Exchange Service means telecommunications services provided
between points located in the same LATA.
FF. Meet -Point Billing (MPB) means an arrangement whereby two or more
LECs jointly provide to a third party the transport element of a
switched access Local Exchange Service to one of the LECs' End
Office switches, with each LEC receiving an appropriate share of the
transport element revenues as defined by their effective Exchange
Access tariffs.
GG. Meet-Point Transit Service Traffic shall have the meaning set forth
in Section 1, "Scope".
HH. Message Records shall mean the message billing record in Exchange
Message Record format.
II. Message Telecommunications Service (MTS) means message toll
telephone communications, including Discounted Toll Services,
between end users in different Exchange areas, but within the same
LATA, provided in accordance with the schedules of charges,
regulations and conditions specified in lawfully applicable tariffs.
JJ. Minutes of Use (MOU) means the elapsed time in minutes used in the
recording of Transit Service Traffic and 800/888 Service Traffic.
KK. Multiple Bill/Single Tariff means the MPB method whereby each LEC
prepares and renders its own Meet Point Bill in accordance with its
own tariff(s) for the portion of the jointly-provided Exchange
Access service which the LEC provides.
LL. Multiple Exchange Carrier Access Billing (MECAB) means the document
prepared by the Billing Committee of the Ordering and Billing Forum,
which functions under the auspices of the Carrier Liaison Committee
of the Alliance for
5
<PAGE>
EXHIBIT D
Telecommunications Industry Solutions, and published by Bellcore as
Special Report SR-BDS-000983, which document contains the
recommended guidelines for the billing of an Exchange Access service
provided by two or more LECs, or by one LEC in two or more states,
within a single LATA, and is incorporated herein by reference.
MM. Originating Company means the company which originates intraLATA MTS
or Local Exchange Service on its system. (For compensation purposes,
the Originating Company shall be considered the Terminating Company
for 800/888 Service Traffic.)
NN. Terminating Company means the company which terminates intraLATA MTS
or Local Exchange Service on its system where the charges for such
services are collected by the Originating (or Billing) Company. (For
compensation purposes, the Terminating Company shall be considered
the Originating Company for 800/888 Service Traffic.)
OO. Third-Number Call shall mean a call billed to a subscriber's
line-based billing number which is not the number to which the call
either terminates or originates.
PP. Transit Traffic shall refer to both ITORP Transit Service Traffic
and Meet-Point Transit Service Traffic.
QQ. Transiting Company shall mean a Local Exchange Carrier which
transports intraLATA telecommunications traffic on its system
between an Originating Company and a Terminating Company.
RR. Transport Facilities means the facilities from the End Office to a
tandem switching facility used to originate or terminate switched
intraLATA telecommunication services traffic.
SECTION III
SETTLEMENT OF TRANSIT SERVICES
(a) ITORP Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ will route
ITORP Transit Service Traffic over the combined local and toll trunk groups
between BA-__ and Carrier. BA-__
6
<PAGE>
EXHIBIT D
and Carrier agree to designate the points of interconnection for the purpose of
terminating ITORP Transit Service Traffic which originates from an Independent
Telephone Company or wireless carrier and terminates to Carrier. Both parties
further agree to develop and file mutually agreed to billing percentages
applicable to ITORP Transit Service Traffic in the National Exchange Carrier
Association F.C.C. Tariff No. 4, which billing percentages shall be calculated
in accordance with ITORP guidelines.
(2) Exchange of Billing Data. The Originating Company will provide to
BA-__ all billing data relating to ITORP Transit Service Traffic for processing
in ITORP within fourteen (14) days from the date the usage occurs (to the extent
usage occurs on any given day) for traffic originating from an Independent
Telephone Company or wireless carrier, which traffic transits BA-PA's facilities
and terminates to Carrier.
(3) Billing. BA-__ will, on behalf of Carrier, bill Exchange Carriers for
intraLATA ITORP Transit Service Traffic, and collect compensation due Carrier
based on Carrier's established and legally-approved tariffed or negotiated rates
utilizing ITORP. The charges set forth in Attachment A, attached hereto and
incorporated herein by reference, shall apply to the billing and collection
services provided by BA-__ to Carrier hereunder. Carrier will record the ITORP
Transit Service Traffic usage at its switch, and shall bill BA-__ for this
traffic in accordance with the rates set forth in the Interconnection Agreement
under Section 251 and 252 of the Telecommunications Act of 1996, dated as of
September __, 1996, by and between BA-__ and Carrier.
(b) Meet-Point Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ and Carrier
will route their respective Meet-Point Transit Service Traffic over the combined
local and toll trunk groups between them. BA-__ and Carrier agree to designate
the points of interconnection for the purpose of terminating Meet-Point Transit
Service Traffic which originates from a CLEC and terminates to Carrier, or
originates from Carrier and terminates to a CLEC, Independent Telephone Company,
or a wireless carrier. Both parties further agree to develop and file mutually
agreed to billing percentages applicable to Meet-Point Transit Service Traffic
in the National Exchange Carrier Association F.C.C. Tariff No. 4, which billing
percentages shall be calculated in accordance with MECAB guidelines.
(i) End Offices Subtending BA-__ Access Tandem. Meet-Point Transit Service
Traffic will be routed over the local and toll interconnection facilities
used to terminate similar traffic directly between BA-__ and Carrier when
the Originating and Terminating Company's End Office switches subtend
BA-PA's Access Tandem. BA-__ will record this traffic at the BA-__ Access
Tandem, and forward the terminating call records to the Terminating
Company for purposes of Meet-Point Billing.
7
<PAGE>
EXHIBIT D
(ii) End Offices That Do Not Subtend a BA-__ Access Tandem. When the
Originating and/or the Terminating Company's End Office switches do not
subtend BA-PA's Access Tandem, the Meet-Point Transit Service Traffic must
be routed over interconnection facilities other than those used to
terminate intraLATA MTS or Local Exchange Service to BA-PA's end users The
Terminating Company will record this traffic at its Access Tandem and
forward the terminating call records to BA-__ for Meet-Point Billing
purposes.
(iii) Special Access. Upon request, any Meet-Point Service Transit Traffic
may be routed over special access interconnection facilities between
Carrier, on the one hand, and a CLEC, an Independent Telephone Company, or
a wireless carrier, on the other.
(2) Exchange of Billing Data. All billing data exchanged hereunder will be
exchanged on magnetic tape or via electronic data transfer, to be delivered at
the addresses set forth below, using the Electronic Message Record format. BA-__
will provide to Carrier the switched-access detail usage data (category 1101XX
records) on magnetic tape within fourteen (14) days from the date the usage
occurs (to the extent usage occurs on any given day) for traffic originating
from a CLEC, transiting BA-PA's facilities and terminating to Carrier, and
Carrier will provide to BA-__ the switched access summary usage data (category
1150XX records) on a magnetic tape on a monthly basis within fourteen (14) days
of receipt from BA-__ of the switched access detail usage data referenced above.
(3) Billing. BA-__ and Carrier will submit to CLECs separate bills under
their respective tariffs for their portion of jointly-provided Meet-Point
Transit Service Traffic. With respect to Meet-Point Transit Service Traffic,
BA-__ and Carrier will exchange billing data and render bills under Multiple
Bill/Single Tariff arrangements in accordance with the applicable terms and
conditions set forth in MECAB.
(4) Addresses. Magnetic tapes to be sent hereunder to Carrier will be sent
to the following address (which address Carrier may change upon prior written
notice to BA-__):
Magnetic tapes to be sent hereunder to BA-__ will be sent to the following
address(es), as appropriate (which address(es) BA-__ may change upon prior
written notice to Carrier):
Bell Atlantic
Tape Library
8
<PAGE>
EXHIBIT D
1500 Tech Center Drive
Monroeville, PA 15146
SECTION V
800/888 SERVICE
800/888 Service Traffic will be exchanged among BA-__, Carrier,
Independent Telephone Companies, CLECs and wireless carriers via CCS/SS7 trunks,
and all will deliver/route these calls as appropriate and provide EMRs to the
Terminating Company to enable it to bill its 800/888 service subscriber. These
EMRs will, per industry standards, include the following: Category 01 (800/888
number subscriber billing), Category 08 (copy record/local exchange charges),
and Category 11 (interexchange carriers access records).
(a) Delivery of Translated 800/888 Number Queries and calls over CCS/SS7
links and trunks. BA-__ and Carrier will launch their own Basic 800/888 Number
Query for 800/888 Service Traffic originated in their networks, and route this
traffic to each other, as appropriate, utilizing existing local and toll
interconnection facilities.
(b) Exchange of Records; Compensation. All 800/888 Service Traffic
hereunder shall be subject to the appropriate access charges, as set forth in
the applicable tariffs. In addition, for jointly provided intraLATA 800/888
Service Traffic between two Local Exchange Carriers, the Originating Company is
responsible for billing its tariffed Basic 800/888 Number Query charge to the
Terminating Company. Carrier, when acting as an Originating Company, must submit
to BA-__, via magnetic tape(s) in EMR format, (i) the information necessary to
bill/settle intraLATA charges (EMR Category 110125), and (ii) the usage charges
applicable to the terminating 800/888-number service subscriber (EMR Category
010125). In the event any of these records are lost or destroyed, BA-__ and
Carrier will jointly estimate the terminating access charges due to either party
hereunder as follows:
(1) Total the terminating traffic compensation paid with respect to
800/888 Service Traffic to each party hereunder for the most recent
six (6) months period preceding the month covered by the lost or
destroyed tapes.
(2) Divide the total determined in (1) preceding, by 180 days.
(3) Multiply the terminating traffic compensation per day determined in
(2) preceding, by the number of days covered by the lost or
destroyed tapes. The calculated amount will be included as an
adjustment for lost or destroyed tapes in the next Inter-Company Net
Billing Statement.
BA-__ shall have no liability whatsoever with respect to any lost, damaged
or destroyed
9
<PAGE>
EXHIBIT D
records submitted hereunder by Carrier.
(c) Settlement. EMR records submitted by Carrier hereunder acting as an
Originating Company, as contemplated in Paragraph (b) above, will be processed
in accordance with ITORP. For purposes of calculating the access charges due
Local Exchange Carriers with respect to 800/888 Service Traffic, the Originating
Company shall be deemed the Terminating Company. Access charges payable
hereunder shall be calculated in accordance with Section VII of this Agreement,
as applicable.
10
<PAGE>
EXHIBIT D
SECTION VI
ALTERNATELY BILLED CALLS
(a) Responsibilities of the Billing Company. The Billing Company agrees to
provide the Earning Company with billing services, as specified below, with
respect to Alternately Billed Calls.
(1) Billing. Upon receipt of the appropriate Message Record from CMDS, the
Billing Company shall include this record in the bill to be issued to the end
user responsible for payment. The Billing Company shall also submit copies of
these Message Records to BA-__, at least once a month, in order to determine
monthly settlement amounts for both the Billing Company and the Earning Company
which will be reflected in the Inter-Company Net Billing Statement. These
amounts will reflect any and all applicable charges due the Billing Company for
performing billing services hereunder. In addition, as applicable, the
Inter-Company Net Billing Statement will reflect any amounts owed by Carrier to
BA-__ for administering and processing ITORP.
(2) Payment of Amounts Outstanding. Upon receipt of the Inter-Company Net
Billing Statement from BA-__, Carrier shall, within thirty (30) days of invoice,
remit to BA-__ full payment of amounts owed under the Inter-Company Net Billing
Statement.
(b) Responsibilities of the Earning Company. In connection with
Alternately Billed Calls, the Earning Company shall provide Message Records to
the Billing Company on a daily basis to the extent that any usage has been
recorded. These Message Records will be delivered by the Earning Company to the
Billing Company via the CMDS system, unless otherwise agreed to by the parties
hereto.
(c) Fees for Settlement of Alternately Billed Calls. The billing services
provided by the Billing Company to the Earning Company with respect to
Alternately Billed Calls shall be subject to the applicable charges set forth in
Attachment A, which charges will be reflected in the Inter-Company Net Billing
Statement. These charges may be revised upon mutual written agreement of the
parties hereto.
SECTION VII
CALCULATION OF COMPENSATION
BA-__ and Carrier agree to compensate each other with respect to Transit
Services Traffic and 800/888 Service Traffic in accordance with the terms
established below, and the rate elements set forth in Attachments A and B,
attached hereto and incorporated herein by reference.
11
<PAGE>
EXHIBIT D
(a) Compensation due to the Terminating/Transiting Company. Compensation
due to the Terminating Company/Transiting Company will be determined separately
for each month as follows:
(1) For Carrier Common Line Facilities provided by the Terminating
Company, an amount calculated as specified for Carrier Common Line Facilities in
the Terminating Company's Exchange Access Tariff. Compensation will be
determined by multiplying a) the Terminating Company's Carrier Common Line rate,
times b) the MOU.
(2) For End Office facilities provided by the Terminating Company, an
amount calculated as specified for End Office facilities in the Terminating
Company's Exchange Access Tariff. Compensation will be determined by multiplying
a) the Terminating Company's appropriate Exchange Access End Office rate
elements, times b) the MOU.
(3) For Transport Facilities, where these facilities are provided by the
Terminating Company, or a Transiting and Terminating Company, an amount
calculated in accordance with the following steps:
(i) Determine the Terminating Company's airline miles from the End
Office which serves the Terminating Company's end user to
either the Terminating Company's Access Tandem switching
facility or the interconnection point with the Transiting
Company(ies).
(ii) Determine the Transiting Company's airlines miles from the
Transiting Company(ies) Access Tandem switching facility to
the interconnection point with the Terminating Company.
(iii) Determine the sum of the total airline miles by adding (i) and
(ii) above.
(iv) Divide the Terminating Company's airline miles determined in
(i) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Terminating Company.
(v) Divide the Transiting Company's airline miles determined in
(ii) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Transiting Company.
(vi) Identify the rates set forth in the Exchange Access Tariff for
either the Terminating Company or Transiting Companies, or
both, as appropriate, which rates are applicable to Transport
Facilities.
(vii) Multiply the ratio determined in (iv) preceding, times the
rate calculated in
12
<PAGE>
EXHIBIT D
(vi) preceding, times the MOU, and add the amount set forth
in (ix) below to determine the amount due the Terminating
Company.
(viii) Multiply the ratio determined in (v) preceding, times the
rate calculated in (vi) preceding, times the MOU, and add the
amount set forth in (ix) below to determine the amount due
the Transiting Company.
(ix) To the extent the Exchange Access Tariffs of the Terminating
or Transiting Company, or both, provide for the payment of a
fixed transport charge to be assessed with respect to a
terminating location (End Office or toll switch), multiply
this charge times the chargeable MOU.
SECTION VIII
ITORP ADMINISTRATION AND RESPONSIBILITIES
(a) Responsibilities of BA-__. BA-__ shall:
1. Operate and maintain the ITORP system.
2. Provide the requirements and standards for ITORP records and
tapes (ITORP User Guide).
3. Inform Carrier of any proposed change in tape creation or
distribution process at least sixty (60) days prior to the
actual implementation of the change.
4. Develop and implement all system enhancements required to
maintain the integrity of BA-PA's ITORP system.
5. Process ITORP tapes received from Carrier, or its agent,
during the next available billing cycle.
6. Review and analyze daily pre-edit reports to determine if a
tape is acceptable for ITORP processing; provided, however,
that Carrier is not absolved, as the Originating Company,
from its responsibility to conform to ITORP input
requirements.
7. Communicate with Carrier, or its agent, to resolve the
problems with tapes which are identified as being
unacceptable for ITORP processing.
8. Create and/or maintain all ITORP tables.
13
<PAGE>
EXHIBIT D
9. Include the monthly compensation due to and from Carrier as
identified by ITORP on the Inter-Company Net Billing
Statement. The compensation includes 800/888 Service Traffic
and Alternately Billed Services traffic.
10. Settle with all local Exchange Carriers, via the Inter-Company
Net Billing Statement, for 800/888 Service Traffic and
Alternately Billed Services traffic originating from and/or
terminating to Carrier.
11. Distribute monthly ITORP reports.
(b) Responsibilities of Carrier. Carrier shall:
1. Compensate BA-__ for the administration and processing of
ITORP as specified in Attachment A.
2. Notify BA-__ Exchange Carrier Services staff in writing of any
changes in its rates affecting ITORP tables, as specified in
Attachment A, thirty (30) days prior to the effective date of
any such changes.
3. Notify BA-__ Exchange Carrier Services staff in writing of any
network changes, such as changes in traffic routing, sixty
(60) days prior to the implementation of the change in the
network.
4. Conform to BA-__'s ITORP record requirements and standards.
5. Carrier or its designated agent will forward the Exchange
Message Records to BA-__, in a timely manner for processing.
6. Inform the BA-__ Exchange Carrier Services staff in writing of
any proposed changes in the Exchange Message Record creation
or distribution process at least sixty (60) days prior to the
actual implementation of the change.
7. Reimburse BA-__ for compensating other local Exchange Carriers
on behalf of Carrier, as reflected in the Inter-Company Net
Billing Statement.
(c) Fees. Compensation for the administration and processing of ITORP will
be due BA-__ on a monthly basis, based on the number of messages processed in
ITORP for Carrier at an average total cost per message. The processing and
administrative fees applicable on a per message basis are set forth in
Attachment A. These fees may be revised by BA-__, at its discretion and upon
notice to Carrier, based on annual studies conducted by BA-__, and Carrier
14
<PAGE>
EXHIBIT D
hereby agrees to be bound by such revised rates. A minimum monthly fee, as
specified in Attachment A, will be assessed when Carrier's monthly ITORP
processing charges are below the stated minimum monthly charge.
SECTION IX
LIABILITIES
In the event of an error on the part of BA-__ in calculating or settling
any compensation amounts hereunder, Carrier's sole remedy and BA-PA's only
obligation shall be to re-calculate the compensation amount, and to the extent
any amounts are owed to or owed by Carrier, such amounts will be reflected as an
adjustment in the next Inter-Company Net Billing Statement. In addition and to
the extent applicable, BA-PA's liability under this Agreement and/or in
connection with the settlement, payment and/or calculation of any amounts due
hereunder shall be limited as set forth in the applicable tariffs. BA-__ shall
have no obligation or liability with respect to any billing, settlement or
calculation-of-compensation errors or omissions, including without limitation
the duty to re-calculate any compensation amounts reflected in the Inter-Company
Net Billing Statement, if such error or omission occurred more than two (2)
years prior to the time in which it is brought to BA-PA's attention in writing.
Without limiting the foregoing, in no event shall either party hereto be liable
for consequential, incidental, special or indirect damages (including without
limitation loss of profit or business) hereunder whether such damages are based
in tort (including, without limitation, under any theory of negligence),
contract breach or otherwise, and even if said party knew or should have known
of the possibility thereof.
SECTION X
RELATIONSHIP OF THE PARTIES
Nothing herein contained will be deemed to constitute a partnership or
agency relationship between the parties. Each party agrees that it will perform
its obligations hereunder as an independent contractor and not as the agent,
employee or servant of the other party. Neither party nor any personnel
furnished by such party will be deemed employees or agents of the other party or
entitled to any benefits available under any plans for such other party's
employees. Each party has and hereby retains the right to exercise full control
of and supervision over its own performance of the obligations under this
Agreement, and retains full control over the employment, direction, compensation
and discharge of all employees assisting in the performance of such obligations,
including without limitation all matters relating to payment of such employees,
including compliance with social security taxes, withholding taxes and all other
regulations governing such matters. In addition, each party will be responsible
for its own acts and those of its own subordinates, employees, agents and
subcontractors during the performance of that party's obligations hereunder.
15
<PAGE>
EXHIBIT D
SECTION XI
TERM AND TERMINATION
(a) Term - Upon execution by all parties hereto, this Agreement shall
become effective as of the date first shown on Page 1 of this Agreement, and
shall remain in effect until terminated by either party in accordance with
paragraphs (b), (c), (d), or (e) below.
(b) Termination for Breach - Either party may, upon prior written notice
to the other party, terminate this Agreement in the event the other party is in
default or breach of this Agreement and such breach or default is not corrected
within thirty (30) days after the breaching party has been notified of same.
(c) Termination for Convenience - Upon six (6) months written advance
notice to the other party, either party may terminate this Agreement.
(d) Acts of Insolvency - Either party may terminate this Agreement or any
portion thereof, effective immediately, by written notice to the other party, if
said other party (1) applies for or consents to the appointment of or the taking
of possession by receiver, custodian, trustee, or liquidator of itself or of all
or a substantial part of its property; (2) becomes insolvent; (3) makes a
general assignment for the benefit of creditors; (4) suffers or permits the
appointment of a receiver for its business or assets; (5) becomes subject to any
proceeding under any bankruptcy or insolvency law whether domestic or foreign,
voluntarily or otherwise; or (6) fails to contest in a timely or appropriate
manner, or acquiesces in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code or any application for the
appointment of a receiver, custodian, trustee, or liquidation of itself or of
all or a substantial part of its property, or its reorganization, or
dissolution.
(e) Termination of Interconnection Agreement. Unless otherwise agreed to
by the parties hereto in writing, in the event that the Interconnection
Agreement under Sections 251 and 252 of the Telecommunications Act of 1996,
dated as of December __, 1996, by and between BA-__ and Carrier expires without
being renewed, or expires or is terminated and no other interconnection
agreement has been entered into by BA-__ and Carrier, then this Agreement shall
be deemed terminated effective on the date the aforesaid Interconnection
Agreement expires or is terminated.
SECTION XII
NETWORK CONFIGURATION
Each party shall provide six (6) months advance written notice to the
other party of any network configuration that may affect any of the services or
compensation contemplated under this Agreement, and the parties hereto agree to
use reasonable efforts to avoid service
16
<PAGE>
EXHIBIT D
interruptions during any such network change.
SECTION XIII
CONSTRUCTION AND EFFECT
All services contemplated under this Agreement are provided in accordance
with any and all applicable regulatory requirements and effective tariffs filed
with and approved by the appropriate federal and/or state regulatory bodies, as
these tariffs and requirements may be modified from time to time. To the extent
there is a conflict between the terms of any said tariff or regulatory
requirement and this Agreement, the terms of the tariff or the regulatory
requirement shall prevail. However, to the extent not in conflict with the
provisions of the applicable tariffs or regulatory requirements, this Agreement
shall supplement the tariffs or regulatory requirements, and it shall be
construed to the fullest extent possible in harmony with such tariffs or
regulatory requirements.
SECTION XIII
MISCELLANEOUS
(a) Headings. Headings used in this Agreement are for reference only, do
not constitute part of this Agreement, and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
(b) Notices. All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing, shall be deemed delivered
(1) on the date of delivery when delivered by hand, (2) on the date of
transmission when sent by electronic mail or facsimile transmission during
normal business hours with telephone confirmation of receipt, (3) one (1) day
after dispatch when sent by overnight courier maintaining records of receipt, or
(4) three (3) days after dispatch when sent by registered mail, postage prepaid,
return-receipt requested, all addressed as follows (or at such other addresses
as shall be given in writing by either party to their other):
If to BA-__: Address: 1320 N. Court House Road, 9th Floor
Arlington, VA 22201
Attn.: Manager-Local Interconnection
Facsimile: 703 974 2188
Telephone: 704 974 4614
If to Carrier: Address:
Attn:
17
<PAGE>
EXHIBIT D
Facsimile:
Telephone:
(c) Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, and nothing herein shall be
construed to create any rights enforceable by any other person or third party.
This Agreement may not be assigned by either party (except by BA-__ to an
affiliate or successor in interest) without the prior written consent of the
other party, which consent shall not be unreasonably withheld.
(d) Waiver. No waiver of any right or term hereof shall be effective
unless in a writing executed by the waiving party. No waiver of any right or
privilege hereunder shall operate as a waiver of any subsequent or similar right
or privilege.
(e) Modifications. This Agreement may be modified or amended only by a
written agreement executed by the parties hereto.
(f) Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed an original.
(g) Severability. If any term, provision, paragraph or clause of this
Agreement or any application thereof shall be held invalid or unenforceable in
any particular jurisdiction, the remainder of this Agreement and any other
application of such term, provision, paragraph or clause shall not be affected
thereby in such jurisdiction (where such remainder or application shall be
construed as if such invalid or unenforceable term, provision, paragraph or
clause has not been inserted), and this Agreement and such application of such
term, provision, paragraph or clause shall not be affected in any other
jurisdiction.
(h) Contingency. Neither party will be held liable for any delay or
failure in performance of this Agreement from any cause beyond its control and
without its fault or negligence including but not limited to acts of God, acts
of civil or military authority, government regulations, embargoes, epidemics,
wars, terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, floods, strikes, power blackouts, other major environmental
disturbances, unusually sever weather conditions, inability to secure products
or services of other persons or transportation facilities, or acts or omissions
of transportation common carriers.
(i) Governing Law. Except as otherwise expressly provided herein, this
Agreement shall be interpreted, construed and governed by the laws of the State
of ____________, without regard to conflict of law provisions.
(j) Confidentiality. Unless by mutual agreement, or except to the extent
directed by a court of competent jurisdiction, neither party shall disclose this
Agreement or the terms hereof to any person other than such party's affiliates
or such party's officers, employees and consultants,
18
<PAGE>
EXHIBIT D
who are similarly bound hereby. This paragraph shall not prevent the filing of
this Agreement with a state or federal commission having jurisdiction over the
parties hereto if such filing is required by rule or order of that commission;
provided, however, that the parties hereto shall jointly request that the
Agreement be treated as confidential by that commission to the extent permitted
under the commission's regulations and procedures. Each party hereto must
maintain the confidentiality of all message, billing, traffic, and call records,
traffic volumes and all other material information and data pertaining to the
traffic covered by this Agreement and the carriers and end users associated with
such traffic.
(k) Remedies under Law. All remedies available to the parties hereto under
the terms of this Agreement shall be in addition to, and not by way of
limitation of, any other rights that said parties may have at law or equity,
none of which are hereby waived.
(l) Entire Agreement. This Agreement, including all Attachments and
Schedules attached hereto, contains the entire agreement, and supersedes and
voids any prior understanding, between BA-__ and Carrier regarding the subject
matter hereof.
19
<PAGE>
In witness whereof, the undersigned parties have caused this Agreement
to be executed on their behalf this _________ day of _________ , 19__.
Witness: [Carrier]
____________________ By: _________________________________
Witness: Bell Atlantic - _______________, Inc.
____________________ By: _________________________________
20
<PAGE>
EXHIBIT D
ATTACHMENT A
BASIS OF COMPENSATION
CHARGES FOR ADMINISTRATION OF ITORP AND ITORP PROCESSING
A. Bell Atlantic - _____________, Inc. charges the following rates for
providing ITORP services:
Rate Per Message/ Month
1. Administrative Charge $
2. Processing Charge Elements:
a. Terminating Traffic $
b. Minute/Message $
c. 800/888 Message $
d. Net Compensation $
e. Collected Revenue Processing Charge $
3. Minimum Monthly Fee $
4. Alternately Billed Calls $
21
<PAGE>
EXHIBIT D
ATTACHMENT B
I.
Message Telecommunications Service - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Carrier
End Office Carrier
Transport based on negotiated billing percentages (BIPs)
II.
800/888 - Terminating to or originating from Carrier Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Originating Company
End Office Originating Company
Transport based on negotiated billing percentages (BIPs)
Query Originating Company
III.
Local Exchange - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Local E.O. Termination Charge Carrier
Transport based on negotiated billing percentages (BIPs)
22
<PAGE>
EXHIBIT 10.18
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of May 26, 1999
by and between
BELL ATLANTIC - NEW JERSEY, INC.
and
HARVARD NET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
26th day of May, 1999 (the "Effective Date"), by and between Bell Atlantic -New
Jersey, Inc. ("BA"), a New Jersey corporation with offices at 540 Broad Street,
Newark, New Jersey, and Harvard Net, Inc. ("HarvardNet"), a Delaware,
corporation with offices at 500 Rutherford Avenue, Charlestown, Massachusetts,
02129 (each a "Party" and, collectively, the "Parties").
WHEREAS, Harvardnet has requested, pursuant to Section 252(i) of the Act,
that BA make available to Harvardnet Interconnection, services and unbundled
Network Elements upon the same terms and conditions as provided in the
Interconnection Agreement (and amendments thereto) between Dieca Communications,
Inc. and BA, dated as of October 7, 1998, for New Jersey, approved by the Board
under Section 252 of the Act copies of which agreement and amendments are
attached hereto as Appendix 1 (the "Separate Agreement"); and
WHEREAS, BA has agreed, subject to the terms and conditions set forth
below, to make available to Harvardnet hereby Interconnection, services and
unbundled Network Elements upon the terms and conditions of the Separate
Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Harvardnet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement, as it is in effect the date hereof after giving effect to
operation of law, and of the other Appendices hereto, are incorporated by
reference in their entirety herein and form an integral part of this Agreement.
1.2 References in the Separate Agreement to Dieca Communications, Inc. or
to Covad shall for purposes of this Agreement be deemed to refer to Harvardnet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of the Separate Agreement, this Agreement shall
continue in effect until March 15, 2001, unless extended pursuant to Section
22.1 of the Separate Agreement. If the parties to the Separate Agreement
terminate that agreement prior to the above date, such termination shall have no
impact on the term or effectiveness of this Agreement.
<PAGE>
1.4 All references in the Separate Agreement to "800/888" shall be deleted
in their entirety and replaced with the following: "800/888/877" and other such
toll free numbers.
1.5 All usage data to be provided pursuant to Sections 6.3.10 of the
Separate Agreement shall be sent to the following address on behalf of
Harvardnet:
Harvard Net, Inc.
Attn: James Newman
Vice President of Operations
500 Rutherford Avenue
Charlestown, MA 02129
1.6 All certificates or other proof of insurance to be sent to BA under
Section 21.3 of the Separate Agreement shall be sent to the following address:
Director - Interconnection Services
Bell Atlantic - Telecom Industry Services
Room 1423
1095 Avenue of the Americas
New York, New York 10036
1.7 All notices, affidavits, exemption-certificates or other
communications to Harvardnet under Section 29.6.7 of the Separate Agreement
shall be sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (800) 772-6771 (Ext. 607)
Facsimile: (617) 242-6991
1.8 All notices, affidavits, exemption-certificates or other
communications to BA under Section 29.6.7 of the Separate Agreement shall be
sent to the following address:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
Telephone: (212) 395-1280
Facsimile: (212) 597-2915
1.9 Notices to Harvardnet under Section 29.10 of the Separate Agreement
shall be
<PAGE>
sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (617) 242-1700
Facsimile: (617) 242-6991
1.10 Notices to BA under Section 29.10 of the Separate Agreement shall be
sent to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
Bell Atlantic - New Jersey, Inc.
Attn: General Counsel
540 Broad Street
Newark, New Jersey 07101
1.11 The rates, charges and other terms set forth in Appendix 2 hereto
shall replace and supersede in their entirety the rates, charges and other terms
set forth in Exhibit A to the Separate Agreement.
1.12 Schedules 3.0 and 4.0 set forth at Appendix 3 hereto shall replace
and supersede in their entirety Schedules 3.0 and 4.0 of the Separate Agreement.
2.0 Clarifications
<PAGE>
2.1 The entry into, filing and performance by the Parties of this
Agreement does not in any way constitute a waiver by either Party of any of the
rights and remedies it may have to seek review of any of the provisions of the
Separate Agreement, or to petition the Commission, other administrative body or
court for reconsideration or reversal of any determination made by any of them,
or to seek review in any way of any portion of this Agreement in connection with
Harvardnet's election under Section 252(i) of the Act.
2.2 Notwithstanding any other provisions of this Agreement, where the
state so mandates, BA shall have no obligation to perform under this Agreement
until such time as Harvardnet has obtained a Certificate of Public Convenience
and Necessity ("CPCN") or such other Board authorization as may be required by
law as a condition for conducting business in the State of New Jersey as a local
exchange carrier, provided that, this restriction does not apply to BA's
obligation to provide Collocation or any other tariffed service to Harvardnet
irrespective of Harvardnet's CPCN status.
2.3 The Parties shall meet within thirty (30) days of the Effective Date,
or at such other time to which the Parties mutually agree, to exchange
information and to discuss in good faith the implementation issues addressed in
Section 10.1 (Joint Network Implementation and Grooming Process).
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 26th day of May, 1999.
HARVARD NET, INC. BELL ATLANTIC - NEW JERSEY, INC.
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
--------------------------- -----------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
---------------------- --------------------------
Title: President and Chief Title: Vice-President - Interconnection
Executive Officer Services Policy & Planning
------------------------ --------------------------------
<PAGE>
APPENDIX 2
EXHIBIT A
BELL ATLANTIC - NEW JERSEY, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES
A. BA SERVICES, FACILITIES, AND ARRANGEMENTS: (1)
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
I. Local Call Termination(2)
Traffic Delivered at BA End Office $.001846/MOU Not Applicable
Traffic Delivered at BA Tandem
$.003738/MOU Not Applicable
II. Unbundled Transport
A. Dedicated Transport
Voice Grade/DS-0 $11.28/Month & All:
$.0238/Mile/Month $23.55/Service Order
$387.77/Initial Facility &
DS-1 $39.83/Month & $26.25/Additional Facility(3)
$.48/Mile/Month
DS-3 $529.78/Month &
$13.40/Mile/Month
DDS $11.69/Month
$.03/Mile/Month
</TABLE>
- ----------
(1) Unless a citation is provided to a generally applicable BA tariff, all
listed rates and services are available only to HarvardNet purchasing these
services for use in the provision of Telephone Exchange Service, and apply only
to Local Traffic and local Ancillary Traffic. BA rates and services for use by
HarvardNet in the carriage of Toll Traffic shall be subject to BA's tariffs for
Exchange Access Service. Adherence to these limitations is subject to a
reasonable periodic audit by BA.
As applied to wholesale discount rates, unbundled Network Elements or call
transport and/or termination of Local Traffic purchased for the provision of
Telephone Exchange Service or Exchange Access, the rates and charges set forth
in Exhibit A, incorporate the New Jersey Board of Public Utilities approved
rates in Docket TX95120631 and interim rates that are subject to review by the
Board. These rates shall apply until such time as they are replaced by new rates
as may be approved or allowed into effect by the Board from time to time,
subject however, to any stay or other order issued by any court of competent
jurisdiction. At such time(s) as such new rates have been approved or allowed
into effect by the Board, the Parties shall amend Exhibit A to reflect the new
approved rates.
(2) See note 18 regarding measurement and calculation of local traffic
termination charges.
(3) The additional facilities rate applies only to additional transport
facilities purchased when the initial facility is ordered.
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
B. Common Transport
Tandem Switching $.001471/MOU Not Applicable
Tandem-Switched Transport $.0002486/MOU & Not Applicable
$.0000012/MOU/ Mile
C. Entrance Facilities
All:
$23.55/Service Order
plus installation
charges for each
initial and additional
facility purchased at
the time of order:
2-Wire Voice Grade Channel Termination $18.16/Month $664.62/Initial &
$377.72/Additional
4-Wire Voice Grade Channel Termination $38.75/Month $888.69/Initial &
$508.74/Additional
DS-1 to Voice Grade Multiplexing $84.54/Month $532.38/Initial &
$532.38/Additional
DS-1 Channel Termination $146.30/Month $737.17/Initial &
$425.28/Additional
DS-3 to DS-1 Multiplexing $286.11/Month $532.38/Initial &
$532.38/Additional
DS-3 Channel Termination $938.88/Month $737.17/Initial &
$425.28/Additional
</TABLE>
2
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
D. Digital Cross-Connect System(4)
Service Establishment Not Applicable $2,009.14
Database Modification Not Applicable $159.82/Modification
Request
Reconfiguration by BA personnel Not Applicable $34.65/Programming
Charge/Half Hour
DS-0 Cross-Connect $20.75/Port/Month $28.35/Port
DS-1 Cross-Connect $72.93/Port/Month $35.54/Port
E. Mid-span meet arrangements To be charged in accordance with the
requirements of Section 4.3 of the Agreement
F. Tandem Transit arrangements for Local Separate trunks required
Traffic between HarvardNet and carriers IXC subtending trunks
other than Bell for Atlantic that subtend
a Bell Atlantic Tandem Switch. (Not
applicable to Toll Traffic when Meet Point
Billing Arrangement applies; Separate
trunks required for IXC subtending trunks)
Tandem Switching $.001471/MOU Per Section II. above and
V., as applicable
Switched Transport $.0002486/MOU &
$.0000012/MOU/ Mile
</TABLE>
- ----------
(4) All Digital Cross-Connect rates are interim rates until permanent rates are
established by the Commission.
3
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
III. Unbundled Switching
A. Local Switching Ports
POTS/PBX/Centrex $1.90/Port/Month $23.55/Service Order
$9.16/Installation
/Port
ISDN (PRI) $131.11/Port/Month $30.26/Service Order
$120.41/Installation
/Port
ISDN (BRI) $11.45/Port/Month $30.26/Service Order
$20.19/Installation
/Port
Public/Semi-Public $3.25/Port/Month $23.55/Service Order
$9.16/Installation
/Port
DID $4.36/Port/Month $23.55/Service Order
$770.34/Installation
/Port
B. Tandem Switching Usage $.001471/MOU Not Applicable
</TABLE>
4
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
III. Unbundled Switching (Continued)
C. Local Switching Usage
POTS Originating With Vertical Features $.005418/MOU
POTS Terminating With Vertical Features $.003207/MOU
ISDN Originating Digital Switched Voice With $.003002/MOU All ISDN:
Vertical Features $12.41/Service Order
$.14/Installation
ISDN Terminating Digital Switched Voice $.001510/MOU
ISDN Originating Digital Circuit Switched Data $.001751/MOU
ISDN Terminating Digital Circuit Switched Data $.001510/MOU
D. POTS Features
PBX $.000726/MOU Both:
$12.41/Service Order
Multi-Line Hunting $.000002/MOU $.14/Installation
E. Centrex Features
UCD $.000932/MOU All:
$12.41/Service Order
Hunting $.000003/MOU $.14/Installation
Queuing $.000486/MOU
Intercom & Features $.025131/MOU
Attendant $.026413/MOU
Attendant Console $.031847/MOU
Centralized Attendant Services $.216809/MOU
Attendant Access Code Dialing $.047949/MOU
Automatic Route Selection $.000422/MOU
Electronic Tandem Switching $.001833/MOU
F. ISDN Centrex Feature $.006666/MOU $12.41/Service Order
$.14/Installation
</TABLE>
5
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops
POTS (analog 2-Wire) Density Cell: Service Order: $23.55
1 - $11.95/Month Installation:
2 - $16.02/Month If premises visit not
3 - $20.98/Month required, initial & each
additional loop - $8.61
If premises visit required,
initial loop - $83.69
If premises visit required,
additional loop - $29.58
ISDN Density Cell: Service Order: $30.26
1 - $15.02/Month Installation:
2 - $19.58/Month If premises visit not
3 - $25.12/Month required, initial & each
additional loop - $20.19
If premises visit required,
initial loop - $95.26
If premises visit required,
additional loop - $41.15
Customer Specified Signaling - 2-Wire Density Cell: Service Order: $23.55
1 - $13.39/Month Installation:
2 - $17.95/Month If premises visit not
3 - $23.50/Month required, initial & each
additional loop - $58.84
If premises visit required,
initial loop - $146.87
If premises visit required,
additional loop - $92.76
</TABLE>
6
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops (Continued)
Customer Specified Signaling - 4-Wire Density Cell: Service Order: $23.55
1 - $28.85/Month Installation:
2 - $38.52/Month If premises visit not
3 - $49.59/Month required, initial & each
additional loop - $58.84
If premises visit required,
initial loop - $146.87
If premises visit required,
additional loop - $92.76
DS-1 Density Cell: Service Order: $23.55
1 - $128.40/Month Installation:
2 - $144.80/Month If premises visit not
3 - $177.50/Month required, initial & each
additional loop - $58.84
If premises visit required,
initial loop - $146.87
If premises visit required,
additional loop - $92.76
2 Wire ADSL Loops TBD TBD
2 Wire & 4 Wire HDSL Loops TBD TBD
Distance Extensions for various ULL types for TBD TBD
distances exceeding transmission characteristics in
applicable technical references.
</TABLE>
7
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
V. Collocation Cross-Connection
A. Voice Grade Loop
Physical DS0 CO side to equipment $.84/Month Not Applicable
Virtual DS0 with RFT CO side MDF to equipment $2.06/Month Not Applicable
Virtual DS1 with EDSX (1DS1 + 24 DS0s with IDLC) $93.37/Month Both:
$23.55/Service Order
$460.67/Initial
Virtual DS1 with CFA (24DS0s with IDLC) $71.02/Month Installation &
$217.10/Additional
Installations
B. Other
Physical DS3 or DS1 Cable Rack $1.03/Month Not Applicable
Physical DS3 $118.89/Month All:
$23.55/Service Order
Physical DS1 $21.60/Month $399.48/Initial
Installation &
Virtual DS3 $124.75/Month $201.80/Additional
Installations
Virtual DS1 $22.35/Month
VI. Time and Materials
Special Construction As applicable per BA-NJ Tariff B.P.U.-NJ-No.2,
Exchange and Network Services, Section A4
Service Technician (service work on unbundled loops Not Applicable $11.17/Service Order
outside of the Central Office) $34.78/Premises Visit
$12.95 Labor Charge/ Per
Quarter Hour After First
Quarter Hour
Central Office Technician Not Applicable $11.17/Service Order
$13.07 Labor Charge/ Per
Quarter Hour or Fraction
Thereof
</TABLE>
8
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
VII. Signaling and Databases
A. STP Port
Termination $576.31/Month $100.60/Port
Access(5) $.61/Mile/Month $23.55/Service Order
$304.29/Initial Facility &
$26.25/Additional Facility
B. 800/888 Database
Basic Query $.000757/Query Not Applicable
Vertical Query $.000268/Query Not Applicable
C. LIDB Validation
Calling Card $.016280/Query Not Applicable
Billed Number Screening $.016280/Query Not Applicable
LIDB Point Codes(6) Not Applicable $86.88/Point Code
Storage of Requesting HarvardNet's Data in LIDB
Database(7) Not Applicable $1,487.64 Service
Establishment
D. AIN Service Creation (ASC) Service(8)
1. Developmental Charges
Service Establishment Not Applicable $895.73
Service Creation Access Port $105.12/Port/Month Not Applicable
Service Creation Usage
a. Remote Access $1,146.57/Day Not Applicable
b. On-Premise $1,146.57/Day Not Applicable
Certification & Testing $78.02/Hour Not Applicable
Help Desk Support $82.57/Hour Not Applicable
</TABLE>
- ----------
(5) Interim rates until permanent rates are established by the Commission.
(6) Interim rates until permanent rates are established by the Commission.
(7) Interim rates until permanent rates are established by the Commission.
(8) Interim rates until permanent rates are established by the Commission.
9
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
D. AIN Service Creation (ASC) Service(9) (Continued)
2. Service Charges
Subscription Charge $4.65/Month Not Applicable
Database Queries
a. Network Query $.0006/Query Not Applicable
b. HarvardNet Network Query $.0006/Query Not Applicable
c. HarvardNet Switch Query $.0006/Query Not Applicable
Trigger Charge
a. Line Based $.0008/Query Not Applicable
b. Office Based $.0008/Query Not Applicable
Utilization Element $.0004/ACU Not Applicable
Service Activation Charge
a. Network Service Activation Not Applicable $15.21/Service
Activated/Line
b. HarvardNet Network Service Activation Not Applicable $15.21/Service
Activated/Line
c. HarvardNet Switch Service Activation Not Applicable $15.21/Service
Activated/Line
Service Modification
a. DTMF Update $.11/Occurrence Not Applicable
Switch Based Announcement $.004/Announcement Not Applicable
VIII. Directory Listings & Books
Primary Listing Not Applicable $1.00/Listing/No.
Additional Tariffed Listing Services BA-NJ Tariff B.P.U.-N.J.-NO.2, Exchange and Network
Services, Section A5.7.1.
Books & delivery (annual home area directories only) No charge for normal numbers of books delivered to
end users; bulk deliveries to HarvardNet per
separate arrangement
</TABLE>
- ----------
(9) Interim rates until permanent rates are established by the Commission.
10
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IX. Operator Services/Directory Assistance
Direct Access $.0344/Query $32,964.80/Link(10)
Service Establishment Not Applicable $15,390.10/Customer(11)
Directory Assistance $.3110/Call Not Applicable
Directory Transport(12)
Tandem Switching $.001520/Call Not Applicable
Tandem Switched Transport $.000211/Call & Not Applicable
$.000001/Mile/Call
Operator Services - Live $.012062/Operator Work Not Applicable
Second
Operator Services - Automated(13) $.000215/Automated Word Not Applicable
Second
Branding for Directory Assistance and/or Operator Not Applicable $18,417.30/ Message
Services(14)
Carrier-to-Carrier LSV/VCI Requests $.012062/Operator Work Not Applicable
Second
X. Access to Operation Support Systems
A. Pre-Ordering $.26/Query Not Applicable
B. Ordering $4.22/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.26/Query Not Applicable
2. EB/OSI Access $1.18/Trouble Ticket Not Applicable
</TABLE>
- ----------
(10) Interim rates until permanent rates are established by the Commission.
(11) Interim rates until permanent rates are established by the Commission.
(12) Interim rates until permanent rates are established by the Commission.
(13) Interim rates until permanent rates are established by the Commission.
(14) Interim rates until permanent rates are established by the Commission.
11
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
X. Access to Operation Support Systems (Continued)
</TABLE>
12
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
E. Billing
1. CD-ROM $249.57/CD-ROM Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000262/Message Not Applicable
b. Delivery of DUF
Data Tape $17.40/Tape $62.14/Programming Hour
Network Data Mover $.000101/Message Not Applicable
CMDS $.000101/Message $62.14/Programming Hour
c. DUF Transport
9.6 kb Communications Port $10.37/Month $7,660.42/Port
56 kb Communications Port $28.63/Month $31,727.40/Port
256 kb Communications Port $28.63/Month $52,773.67/Port
T1 Communications Port $363.65/Month $188,311.65/Port
Line Installation Not Applicable $62.14/Programming Hour
Port Set-up Not Applicable $9.98/Port
Network Control Programming Coding Not Applicable $62.14/Programming Hour
XI. Exchange Access Service
Interstate Per BA-FCC Tariff NO. 1
Intrastate Per BA- NJ Tariff B.P.U.-N.J.-NO. 2, Access Service
XII. Number Portability
Interim (using RCF) $1.00/Number/Mo. Not Applicable
Permanent Per permanent funding mechanism when established.
</TABLE>
13
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
XIII. 911/E911
Transport Per section II above.
Data Entry and Maintenance No Charge
XIV. Poles Conduits & ROW Per contract rates pursuant to 47 U.S.C. sec. 224
Illustrative:
Duct: $5.00/Foot/Year
Pole: $4.52/Attachment/Year
XV. Network Interface Device (NID)
$.68/Month Not Applicable
XVI. Access to Telephone Numbers (NXX codes issued per No Charge
ICCF Code Administration Guidelines)
XVII. Local Dialing Parity No Charge
XVIII. Customized Routing
To Reseller Platform $.31086/Line/Month $4.83/Line
To BA Platform for Re-Branding .077715/Call15 $4.83/Line
Customized Routing Transport Per section II above.
</TABLE>
- ----------
(15) Interim rates until permanent rates are established by the Commission.
14
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
XIX. Wholesale Discount for Resale of Retail
Telecommunications Services(16)
Resale of retail services if HarvardNet provides own 20.03%
operator services platform
Resale of retail services if HarvardNet uses Bell 17.04%
Atlantic operator services platform
</TABLE>
- ----------
(16) Excludes telecommunications services designed primarily for wholesale, such
as switched and special exchange access service, and, subject to Section 12 of
the Agreement, the following additional arrangements that are not subject to
resale: limited duration (90 days or less) promotional offerings, public coin
telephone service, and technical and market trials. Taxes shall be collected and
remitted by the reseller and BA in accordance with legal requirements and as
agreed between the Parties. Surcharges (e.g., 911, telecommunications relay
service, universal service fund) shall be collected by the reseller and either
remitted to the recipient agency or NECA, or passed through to BA for remittance
to the recipient agency or NECA, as appropriate and agreed between the Parties.
End user common line charges shall be collected by the reseller and remitted to
BA.
Pending establishment of mechanized billing procedures adapted to resale,
BA will apply the wholesale discount for resale as a "bottom-of-the-bill"
discount rate and will utilize a "true-up" process to correct possible
inadvertent application of the wholesale discount to the exclusions identified
herein and to reflect other adjustments as the Parties agree.
15
<PAGE>
APPENDIX 2
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
B. HarvardNet SERVICES, FACILITIES, AND ARRANGEMENTS:
I. Local Call Termination(17)
Traffic Delivered at End Office $.001846/MOU Not Applicable
Traffic Delivered at Tandem
$.003738/MOU Not Applicable
II. Number Portability
Interim (using RCF) $1.00/Number/Mo. Not Applicable
Permanent Per permanent funding mechanism when established.
III. Exchange Access Service
Interstate Per HarvardNet FCC exchange access tariff.
Intrastate Per HarvardNet NJ tariff exchange access tariff.
IV. All Other HarvardNet Services Available to BA for Available at HarvardNet's tariffed or otherwise
Purposes of Effectuating Local Exchange Competition generally available rates, not to exceed BA rates for
equivalent services available to HarvardNet.
</TABLE>
- ----------
(17) See note 18 regarding measurement and calculation of local traffic
termination charges.
16
<PAGE>
APPENDIX 2
18 LOCAL TRAFFIC TERMINATION RATES
A. Charges by BA
(a) Traffic delivered to BA Access Tandem: $.003738 per mou.
(b) Traffic delivered directly to terminating BA End Office: $.001846
per mou.
B. Charges by HarvardNet
1. Single-tiered interconnection structure: HarvardNet's rates for the
termination of BA's Local Traffic under the single-tiered interconnection
structure shall be recalculated once each year on each anniversary of the
Effective Date (the "Rate Determination Date"). The methodology for
recalculating the rates is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic
delivered by HarvardNet to the BA Access Tandem for most recent
billed quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by
HarvardNet directly to the terminating BA End Office for most recent
billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by
HarvardNet to BA for most recent billed quarter.
HarvardNet Charge at the HarvardNet-IP =
(Access Tandem Minutes x $.003738) + (End Office Minutes x $.001846)
--------------------------------------------------------------------
Total Minutes
For the first year after the Effective Date, the HarvardNet charge shall
be calculated based on the traffic data of the quarter immediately
preceding such Effective Date, or if no such traffic exists, on the
proportion of local call termination trunks to BA End Offices and to BA
Access Tandems.
2. Multiple-tiered interconnection structure (if offered by HarvardNet to any
carrier)
(a) Local Traffic delivered to HarvardNet Access Tandem: $.003738
(b) Local Traffic delivered to terminating HarvardNet End Office/node:
$.001846
C. Miscellaneous Notes
1. The HarvardNet termination rate under the single-tiered interconnection
structure set forth above is intended to be a Local Traffic termination rate for
Interconnection to the HarvardNet-IP within each LATA that is reciprocal and
equal to the actual rates that will be charged by BA to HarvardNet under the
two-tiered Local Traffic termination rate structure described above that will
apply after the first anniversary of the Effective Date. The single HarvardNet
termination rate is also intended to provide financial incentives to HarvardNet
to deliver traffic directly to BA's terminating End Offices once HarvardNet's
traffic volumes reach an appropriate threshold.
17
<PAGE>
APPENDIX 3
SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE FOR NEW JERSEY
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
===============================================================================
LATA in New Jersey Milestone Date
- -------------------------------------------------------------------------------
LATA ___ LATA Start Date TBD
----------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
----------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
----------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
----------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
----------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
----------------------------------------------------------
SS7 Certification Achieved; (1) TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements(2)
----------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
Call-through Testing Completed; TBD
"Interconnection Activation Date"
===============================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in New Jersey when HARVARDNET has an
effective Tariff for business Telephone Exchange Service in New Jersey and a
significant number of Telephone Exchange Service Customer lines in service for
business Telephone Exchange Service Customers in that LATA in New Jersey that
are not affiliates or
- ----------
(1) SS7 certification scheduling depends on actual schedule availability at time
of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
(2) Intervals for IDLC collocation arrangements for VG ULL capability are 60
days for Virtual Collocation and 120 days for Physical Collocation from the date
the arrangement is applied for.
<PAGE>
APPENDIX 3
employees of either BA or HARVARDNET, and (ii) residential Telephone Exchange
Service shall be considered "fully operational" in a LATA in New Jersey when
HARVARDNET has an effective Tariff for residential Telephone Exchange Service in
New Jersey and has a significant number of Telephone Exchange Service Customer
lines in service for residential Telephone Exchange Service Customers in that
LATA in New Jersey that are not affiliates or employees of either BA or
HARVARDNET.
<PAGE>
APPENDIX 3
SCHEDULE 4.0 Network Interconnection Schedule
LATA HARVARDNET-IP BA-IP Activation Date
TBD TBD TBD TBD
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of October 7, 1998
by and between
BELL ATLANTIC - NEW JERSEY, INC.
and
DIECA COMMUNICATIONS, INC.
1
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
1.0 DEFINITIONS 2
2.0 INTERPRETATION AND CONSTRUCTION 11
3.0 INTERCONNECTION ACTIVATION DATES AND IMPLEMENTATION SCHEDULE 11
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) 12
4.1 Scope 12
4.2 Physical Architectures 14
4.3 Mid-Span Meets 15
4.4 Interconnection in Additional LATAs 16
4.5 Interconnection Points for Different Types of Traffic 17
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE
TRAFFIC PURSUANT TO SECTION 251(c)(2) 17
5.1 Scope of Traffic 17
5.2 Trunk Group Connections and Ordering 17
5.3 Additional Switching System Hierarchy and Trunking Requirements 18
5.4 Signaling 18
5.5 Grades of Service 18
5.6 Measurement and Billing 18
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5) 19
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC
PURSUANT TO 251(c)(2) 20
6.1 Scope of Traffic 20
6.2 Trunk Group Architecture and Traffic Routing 20
6.3 Meet-Point Billing Arrangements 21
6.4 800/888 Traffic 24
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC 25
7.1 Information Services Traffic 25
7.2 LSV/VCI Traffic 26
7.3 Transit Service 27
7.4 911/E911 Arrangements 28
7.5 Ancillary Traffic Generally 30
8.0 NUMBER RESOURCES, RATE CENTERS, AND RATING POINTS 30
2
<PAGE>
9.0 NETWORK MAINTENANCE AND MANAGEMENT; OUTAGES 31
9.1 Interference or Impairment 31
9.2 Repeated or Willful Noncompliance 31
9.3 Outage Repair Standard 32
9.4 Notice of Changes -- Section 251(c)(5) 32
10.0 JOINT NETWORK IMPLEMENTATION AND GROOMING PROCESS;
INSTALLATION, MAINTENANCE, TESTING AND REPAIR 32
10.1 Joint Network Implementation and Grooming Process 32
10.2 Installation, Maintenance, Testing and Repair 33
10.3 Forecasting Requirements for Trunk Provisioning 33
11.0 UNBUNDLED ACCESS -- SECTION 251(c)(3) 34
11.1 Available Network Elements 35
11.2 Unbundled Local Loop (ULL) Transmission Types 35
11.3 Network Interface Device 37
11.4 Unbundled Switching Elements 37
11.5 Interoffice Transmission Facilities 37
11.6 Operations Support Systems 37
11.7 Limitations on Unbundled Access 37
11.8 Availability of Other Network Elements on an Unbundled Basis 38
11.9 Provisioning of Unbundled Local Loops 39
11.10 Maintenance of Unbundled Local Loops 40
11.11 Rates and Charges 40
12.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1) 41
12.1 Availability of Retail Rates for Resale 41
12.2 Availability of Wholesale Rates for Resale 41
12.3 Availability of Support Services for Resale 41
12.4 Restrictions on Resale and Use of BA Services 41
13.0 COLLOCATION -- SECTION 251(c)(6) 42
14.0 NUMBER PORTABILITY -- SECTION 251(b)(2) 44
14.1 Scope 44
14.2 Procedures for Providing INP Through Remote Call Forwarding 44
14.3 Procedures for Providing INP Through Direct Inward Dial Trunks
(Flex-DID) 46
14.4 Procedures for Providing LTNP Through Full NXX Code Migration 46
14.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers 46
14.6 Recovery of INP Costs Pursuant to FCC Order and Rulemaking 47
15.0 DIALING PARITY -- SECTION 251(b)(3) 47
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 48
3
<PAGE>
17.0 DATABASES AND SIGNALING 48
18.0 COORDINATED SERVICE ARRANGEMENTS 50
18.1 Intercept and Referral Announcements 50
18.2 Coordinated Repair Calls 50
18.3 Customer Authorization 50
19.0 DIRECTORY SERVICES ARRANGEMENTS 51
19.1 Directory Listings and Directory Distributions 51
19.2 Yellow Pages Maintenance 53
19.3 Service Information Pages 53
19.4 Directory Assistance (DA); Call Completion 54
20.0 COORDINATION WITH TARIFF TERMS 54
21.0 INSURANCE 55
22.0 TERM AND TERMINATION 55
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 56
24.0 CANCELLATION CHARGES 56
25.0 INDEMNIFICATION 57
26.0 LIMITATION OF LIABILITY 57
27.0 PERFORMANCE STANDARDS FOR SPECIFIED ACTIVITIES 58
27.1 Performance Standards 58
27.2 Performance Monitoring Reports, Standards, and Remedies 58
27.3 Performance Measurement, Standard, and Remedy for xDSL Compatible
ULLs 59
28.0 COMPLIANCE WITH LAWS; REGULATORY APPROVAL 59
29.0 MISCELLANEOUS 60
29.1 Authorization 60
29.2 Independent Contractor 60
29.3 Force Majeure 61
29.4 Confidentiality 61
29.5 Choice of Law 62
29.6 Taxes 62
29.7 Assignment 65
29.8 Billing and Payment; Disputed Amounts 65
29.9 Dispute Resolution 66
29.10 Notices 66
4
<PAGE>
29.11 Section 252(i) Obligations 67
29.12 Joint Work Product 68
29.13 No Third Party Beneficiaries; Disclaimer of Agency 68
29.14 No License 69
29.15 Technology Upgrades 69
29.16 Survival 69
29.17 Entire Agreement 70
29.18 Counterparts 70
29.19 Modification, Amendment, Supplement or Waiver 70
29.20 Successors and Assigns 70
29.21 Publicity and Use of Trademarks or Service Marks 70
29.22 Integrity of BELL ATLANTIC Network 70
29.23 Merger Conditions 70
LIST OF SCHEDULES AND EXHIBITS
Schedules
Schedule 1.0 Certain Terms As Defined in the Act, As of Effective Date
Schedule 3.0 Initial Network Implementation Schedule
Schedule 4.0 Interconnection Points in LATA
Schedule 4.5 Interconnection Points for Different Types of Traffic
Schedule 6.3 Rate Elements Under Meet Point Billing
Schedule 11.3 Access to Network Interface Device
Schedule 11.4 Unbundled Switching Elements
Schedule 12.3 Support Services for Resale
Schedule 13.4 Collocation: Shared Cage Arrangement
Schedule 27.2 Performance Monitoring Reports, Standards and Remedies
Exhibits
Exhibit A Detailed Schedule of Itemized Charges
Exhibit B Network Element Bona Fide Request
Exhibit C Directory Assistance and Call Completion Services Agreement
5
<PAGE>
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, is effective as of the 7th day of October 1998
(the "Effective Date"), by and between Bell Atlantic - New Jersey, Inc. ("BA"),
a New Jersey corporation with offices at 540 Broad Street, Newark, New Jersey
07101, and DIECA Communications, Inc. (referred to in this Agreement as
"Covad"), a Virginia corporation with offices at 6849 Old Dominion Drive, Suite
220, McLean, VA 22101.
WHEREAS, the Parties want to interconnect their networks at mutually
agreed upon points of interconnection to provide Telephone Exchange Services,
Switched Exchange Access Services, and other Telecommunications Services (all as
defined below) to their respective customers;
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 Act (as defined below) and additional services as set forth
herein; and
WHEREAS, Sections 251, 252, and 271 of the Telecommunications Act of 1996
have specific requirements for interconnection, unbundling, and service resale,
commonly referred to as the "Checklist", and the Parties intend that this
Agreement address those Checklist requirements.
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, Covad and BA hereby agree as follows:
This Agreement sets forth the terms, conditions and pricing under which BA
and Covad (individually, a "Party" and collectively, the "Parties") will offer
and provide to each other network Interconnection, access to Network Elements,
ancillary services, and wholesale Telecommunications Services available for
resale within each LATA in which they both operate within New Jersey. As such,
this Agreement is an integrated package that reflects a balancing of interests
critical to the Parties. It will be submitted to the New Jersey Board of Public
Utilities, and the Parties will specifically request that the Board refrain from
taking any action to change, suspend or otherwise delay implementation of the
Agreement. So long as the Agreement remains in effect, neither Party shall
advocate before any legislative, regulatory, or other public forum that any term
of this Agreement be modified or eliminated, unless mutually agreed to by the
Parties.
1.0 DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
specified below in this Section 1. For convenience of reference only, the
definitions of certain terms that are As
6
<PAGE>
Defined in the Act (as defined below) are set forth on Schedule 1.0.
1.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et. seq.),
as amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or the
Board.
1.2 "ADSL" or "Asymmetrical Digital Subscriber Line" is a digital loop
transmission technology which typically permits the transmission of up to 6 Mbps
downstream (from the CO to the end-user customer) and up to 640 kbps digital
signal upstream (from the end-user customer to the CO).
1.2.A "Affiliate" is As Defined in the Act.
1.3 "Agreement" means this Interconnection Agreement under Sections 251
and 252 of the Act and all Exhibits, Schedules, addenda, and attachments
referenced herein and/or appended hereto.
1.4 "Ancillary Traffic," means all traffic that is destined for ancillary
services, or that may have special billing requirements, including but not
limited to the following: LSV/VCI, Directory Assistance, 911/E911, Operator
Services (IntraLATA call completion), IntraLATA third party, collect and calling
card, 800/888 database query, LIDB, and information services requiring special
billing.
1.5 "Applicable Laws" or "Applicable Law" or "Law" means all laws,
regulations, and orders applicable to each Party's performance of its
obligations hereunder.
1.6 "As Defined in the Act" means as specifically defined by the Act and
as from time to time interpreted in the duly authorized rules and regulations of
the FCC or the Board.
1.7 "As Described in the Act" means as described in or required by the Act
and as from time to time interpreted in the duly authorized rules and
regulations of the FCC or the Board.
1.8 "Automatic Number Identification" or "ANI" means a signaling parameter
which refers to the number transmitted through a network identifying the billing
number of the calling party.
1.8.A "Board" or "BPU" means the New Jersey Board of Public Utilities.
1.8.B "Bona Fide Request" or "BFR" means the process described on Exhibit
B that prescribes the terms and conditions relating to a Party's request that
the other Party provide a BFR Item (as defined in Exhibit B) not otherwise
provided by the terms of this Agreement.
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1.9 "Calling Party Number" or "CPN" is a Common Channel Signaling ("CCIS")
parameter which refers to the number transmitted through a network identifying
the calling Party.
1.10 "Central Office Switch" means a switch used to provide
Telecommunications Services, including, but not limited to:
(a) "End Office Switch" or "End Office" is a switching entity that
is used to terminate Customer station Loops for the purpose of interconnection
to each other and to trunks; and
(b) "Tandem Switch" or "Tandem Office" or "Tandem" is a switching
entity that has billing and recording capabilities and is used to connect and
switch trunk circuits between and among End Office Switches and between and
among End Office Switches and carriers' aggregation points, points of
termination, or points of presence, and to provide Switched Exchange Access
Services.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
1.11 "CLASS Features" means certain CCIS-based features available to
Customers including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification, and future CCIS-based offerings.
1.12 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in equipment necessary for
Interconnection or for access to Network Elements offered by the second Party on
an unbundled basis that has been installed and maintained at the premises of a
second Party (the "Housing Party"). For purposes of Collocation, the "premises"
of a Housing Party is limited to a Housing Party Wire Center, other mutually
agreed-upon locations of the Housing Party, or any other location for which
Collocation has been ordered by the FCC or Commission. 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 owns, installs, and maintains equipment
dedicated to use by the Collocating Party in the Housing Party's premises. BA
currently provides Collocation under terms, rates, and conditions as described
in tariffs on file or soon to be filed with the FCC and the Board. For purposes
of this Agreement, Collocation also includes alternative Collocation
arrangements required by Applicable Law or agreed to by the Parties purusant to
Section 13 below.
1.13 [Reserved.]
1.14 "Common Channel Interoffice Signaling" or "CCIS" means a method of
transmitting call set-up and network control data over a digital signaling
network separate from the public switched telephone network facilities that
carry the actual voice or data traffic of the call. "SS7" means the common
channel out of band signaling protocol developed by the Consultative Committee
for International Telephone and Telegraph ("CCITT") and the American
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National Standards Institute ("ANSI"). BA and Covad currently utilize this
out-of-band signaling protocol. "CCSAC" or "CCSAS" means the common channel
signaling access connection or service, respectively, which connects one Party's
signaling point of interconnection ("SPOI") to the other Party's STP for the
exchange of SS7 messages.
1.15 "Competitive Local Exchange Carrier" or "CLEC" means any Local
Exchange Carrier other than BA, operating as such in BA's certificated territory
in New Jersey. Covad is a CLEC.
1.16 "Cross Connection" means a jumper cable or similar connection
provided pursuant to Collocation at the digital signal cross connect, Main
Distribution Frame or other suitable frame or panel between (i) the Collocating
Party's equipment and (ii) the equipment or facilities of the Housing Party.
1.17 "Customer" means a third-party residence or business end-user
subscriber to Telecommunications Services provided by either of the Parties.
1.17.A "Customer Proprietary Network Information" or "CPNI" is As Defined
in the Act.
1.18 "Dialing Parity" is As Defined in the Act.
1.19 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.20 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.21 "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.
1.22 "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.
1.23 "Exchange Access" is As Defined in the Act.
1.24 "Exchange Message Record" or "EMR" means the standard used for
exchange of telecommunications message information among Local Exchange Carriers
for billable, non-billable, sample, settlement, and study data. EMR format is
contained in BR-010-200-010 CRIS Exchange Message Record, a Bell Communications
Research, Inc. ("Bellcore") document that defines industry standards for
Exchange Message Records.
1.25 "FCC" means the Federal Communications Commission.
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1.26 "FCC Regulations" means Title 47 of the Code of Federal Regulations,
including but not limited to the amendments adopted in, and the additional
requirements of, the First Report and Order In the Matter of Implementation of
the Local Competition Provisions in the Telecommunications Act of 1996 and
Interconnection between Local Exchange and Commercial Mobile Radio Service
Providers, CC Docket Nos. 96-98 and 95-185, adopted on August 1, 1996 and
released on August 8, 1996, the Second Report and Order and Memorandum Opinion
and Order, CC Docket Nos. 96-98, 95-185, and 92-237, adopted and released on
August 8, 1996, and any and all rules or regulations that are issued from
Deployment of Wireline Services Offering Advance Telecommunications Capability,
CC Docket No. 98-147 et al., Memorandum Opinion and Order and Notice of Proposed
Rulemaking, FCC 98-188, released on August 7, 1998, as each may be amended,
stayed, voided, repealed, or supplemented from time to time.
1.27 "HDSL" or "High-Bit Rate Digital Subscriber Line" means a
transmission technology which transmits up to 784 kbps simultaneously in both
directions on a two-wire channel using a 2 Binary / 1 Quartenary ("2B1Q") line
code.
1.28 "Incumbent Local Exchange Carrier" or "ILEC" is As Defined in the
Act. For purposes of this Agreement, BA is an Incumbent Local Exchange Carrier.
1.29 "Independent Telephone Company" or "ITC" means any entity other than
BA which, with respect to its operations within the State of New Jersey, is an
Incumbent Local Exchange Carrier.
1.30 "Information Service Traffic" means Local Traffic or IntraLATA Toll
Traffic which originates on a Telephone Exchange Service line and which is
addressed to an information service provided over a Party's information services
platform (e.g., 976).
1.30.A "Inside Wire" or "Inside Wiring" means all wire, cable, terminals,
hardware, and other equipment or materials on the Customer's side of the Rate
Demarcation Point.
1.31 "Integrated Digital Loop Carrier" or "IDLC" means a subscriber loop
carrier system which integrates within the switch at a DS1 level that is
twenty-four (24) loop transmission paths combined into a 1.544 Mbps digital
signal.
1.32. "Integrated Services Digital Network" or "ISDN" means a switched
network service providing end-to-end digital connectivity for the simultaneous
transmission of voice and data. Basic Rate Interface-ISDN ("BRI-ISDN") provides
for digital transmission of two 64 kbps bearer channels and one 16 kbps data and
signaling channel (2B+D). Primary Rate Interface-ISDN ("PRI-ISDN") provides for
digital transmission of twenty three (23) 64 kbps bearer channels and one (1) 64
kbps data and signaling channel (23 B+D).
1.33 "Interconnection" is As Described in the Act, and means the
connection of equipment or facilities of one carrier with the equipment or
facilities of another carrier for the purpose of transmission and routing of
Telephone Exchange Service traffic and Exchange Access
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traffic.
1.34 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll Services.
1.35 "Interim Number Portability" or "INP" means the use of existing and
available call routing, forwarding, and addressing capabilities (e.g. remote
call forwarding) to enable a Customer to receive Telephone Exchange Service
provided by any Local Exchange Carrier operating within the exchange area with
which the Customer's telephone number(s) is associated, without having to change
the telephone number presently assigned to the Customer and regardless of
whether the Customer's chosen Local Exchange Carrier is the carrier that
originally assigned the number to the Customer.
1.36 "InterLATA" is As Defined in the Act.
1.37 "IntraLATA Toll Traffic" means those intraLATA calls that are not
defined as Local Traffic in this Agreement.
1.38 Reserved.
1.39 "Line Status Verification" or "LSV" means an operator request for a
status check on the line of a called party. The request is made by one Party's
operator to an operator of the other Party. The verification of the status check
is provided to the requesting operator.
1.40 "Local Access and Transport Area" or "LATA" is As Defined in the Act.
1.41 "Local Exchange Carrier" or "LEC" is As Defined in the Act. The
Parties to this Agreement are or will shortly become Local Exchange Carriers.
1.42 Reserved.
1.43 "Local Telephone Number Portability" or "LTNP" means "number
portability" As Defined in the Act.
1.44 "Local Traffic," unless otherwise defined by Applicable Law, is
traffic that is originated by a Customer of one Party on that Party's network
and terminates to a Customer of the other Party on that other Party's network,
within a given local calling area, or expanded area service ("EAS") area, as
defined in BA's effective Customer tariffs, or, if the Board has defined local
calling areas applicable to all LECs, then as so defined by the Board.
1.45 "Main Distribution Frame" or "MDF" means the primary point at which
outside plant facilities terminate within a Wire Center, for interconnection to
other telecommunications facilities within the Wire Center.
1.46 "MECAB" means the Multiple Exchange Carrier Access Billing (MECAB)
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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 Exchange Access service
provided by two or more LECs, or by one LEC in two or more states, within a
single LATA.
1.47 "MECOD" means 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 OBF. The
MECOD document, published by Bellcore as Special Report SR-STS-002643,
establishes methods for processing orders for Exchange Access service which is
to be provided by two or more LECs.
1.48 "Meet-Point Billing" or "MPB" means an arrangement whereby two or
more LECs jointly provide to a third party the transport element of a Switched
Exchange Access Service to one of the LECs' End Office Switches, with each LEC
receiving an appropriate share of the transport element revenues as defined by
their effective Exchange Access tariffs. "Meet-Point Billing Traffic" means
traffic that is subject to an effective Meet-Point Billing arrangement.
1.49 "Mid-Span Meet" means an Interconnection architecture whereby two
carriers' transmission facilities meet at a mutually agreed-upon point of
Interconnection utilizing a fiber hand-off and, at the delivering carrier's
option, may interface with such carrier's collocated equipment to gain access to
unbundled elements.
1.50 "Multiple Bill/Single Tariff" or "Multiple Bill/Multiple Tariff"
means the MPB method whereby each LEC prepares and renders its own meet point
bill in accordance with its own Tariff(s) for the portion of the
jointly-provided Switched Exchange Access Service which the LEC provides.
1.51 "Network Element" is As Defined in the Act.
1.52 "Network Interface Device" or "NID" means the BA-provided interface
terminating BA's telecommunications network on the property where the Customer's
service is located at a point determined by BA.
1.53 "North American Numbering Plan" or "NANP" means the numbering plan
used in the United States that also serves Canada, Bermuda, Puerto Rico and
certain Caribbean Islands. The NANP format is a 10-digit number that consists of
a 3-digit NPA code (commonly referred to as the area code), followed by a
3-digit NXX code and 4-digit line number.
1.54. "Numbering Plan Area" or "NPA" is also sometimes referred to as an
area code. There are two general categories of NPAs, "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
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specialized telecommunications service which may be provided across multiple
geographic NPA areas; 800, 900, 700, 500 and 888 are examples of Non-Geographic
NPAs.
1.55 "NXX," "NXX Code," or "End Office Code" means the three digit switch
entity indicator (i.e. the first three digits of a seven digit telephone
number).
1.56 "Permanent Number Portability" or "PNP" means the use of a database
or other technical solution that comports with regulations issued by the FCC to
provide LTNP for all customers and service providers.
1.57 "Port Element" or "Port" means a termination on a Central Office
Switch that permits Customers to send or receive Telecommunications over the
public switched network, but does not include switch features or switching
functionality.
1.57.A "POT Bay" or "Point of Termination Bay" means the intermediate
distributing frame system which serves as the point of demarcation for
collocated Interconnection.
1.58 "Rate Center Area" or "Rate Center" or "Exchange Area" means the
geographic area that has been identified by a given LEC as being associated with
a particular NPA-NXX code assigned to the LEC for its provision of Telephone
Exchange Services. The Rate Center Area is the exclusive geographic area which
the LEC has identified as the area within which it will provide Telephone
Exchange Services bearing the particular NPA-NXX designation associated with the
specific Rate Center Area. A "Rate Center Point" is a specific geographic point,
defined by a V&H coordinate, located within the Rate Center Area and used to
measure distance for the purpose of billing Customers for distance-sensitive
Telephone Exchange Services and Toll Traffic. Rate Centers will be identical for
each Party until such time as Covad is permitted by an appropriate regulatory
body to create its own Rate Centers within an area.
1.59 "Rate Demarcation Point" means the point where network access
recurring charges and BA responsibility stop and beyond which Customer
responsibility begins, determined in accordance with FCC rules and BA standard
operating practices.
1.60 "Rating Point" or "Routing Point" means a specific geographic point
identified by a specific V&H coordinate. The Rating Point is used to route
inbound traffic to specified NPA-NXXs and to calculate mileage measurements for
distance-sensitive transport charges of switched access services. Pursuant to
Bellcore Practice BR-795-100-100, the Rating 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 be any alphanumeric A-Z or 0-9. The Rating Point/Routing Point
must be located within the LATA in which the corresponding NPA-NXX is located.
However, the Rating Point/Routing Point associated with each NPA-NXX need not be
the same as the corresponding Rate Center Point, nor must it be located within
the corresponding Rate Center Area, nor must there be a unique and separate
Rating Point corresponding to each unique and separate Rate Center.
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1.61 "Reciprocal Compensation" is As Described in the Act, and refers to
the payment arrangements that recover costs incurred for the transport and
termination of Reciprocal Compensation Traffic originating on one Party's
network and terminating on the other Party's network.
1.62 "Service Control Point" or "SCP" means the node in the Common Channel
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 a service switching point and via a Signaling
Transfer Point, performs subscriber or application-specific service logic, and
then sends instructions back to the SSP on how to continue call processing.
1.63 "Signaling Transfer Point" or "STP" means a specialized switch that
provides SS7 network access and performs SS7 message routing and screening.
1.63.A "Strapping" means the act of installing a permanent connection
between a Point of Termination bay and a collocated interconnector's physical
Collocation node.
1.64 "Switched Access Detail Usage Data" means a category 1101XX record as
defined in the EMR Bellcore Practice BR-010-200-010.
1.65 "Switched Access Summary Usage Data" means a category 1150XX record
as defined in the EMR Bellcore Practice BR-010-200-010.
1.66 "Switched Exchange Access Service" means the offering of transmission
and switching services to Telecommunications Carriers for the purpose of the
origination or termination of Toll Traffic. Switched Exchange Access Services
include but may not be limited to: Feature Group A, Feature Group B, Feature
Group D, 700 access, 800 access, 888 access, and 900 access and functionally
equivalent Switched Exchange Access services that may be offered in the future.
1.67 "Switching Element" is the unbundled Network Element that provides a
CLEC the ability to use switching functionality in a BA End Office switch,
including all vertical services that are available on that switch, to provide
Telecommunications Services, including Telephone Exchange Service, to its end
user customer(s). The Switching Element will be provisioned with a Port Element,
which provides line side access to the Switching Element.
1.68 "Tariff" means any applicable federal or state tariff of a Party, or
standard agreement or other document that sets forth the generally available
terms and conditions, each as may be amended by the Party from time to time,
under which a Party offers a particular service, facility, or arrangement. A
Tariff shall not include BA's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary Services
and Resale of Telecommunications Services" which has been approved or is pending
approval by the Board pursuant to Section 252(f) of the Communications Act of
1934, 47 U.S.C. ss. 252(f).
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1.69 "Technically Feasible Point" is As Described in the Act.
1.70 "Telecommunications" is As Defined in the Act.
1.71 "Telecommunications Act" means the Telecommunications Act of 1996 and
any rules and regulations promulgated thereunder.
1.72 "Telecommunications Carrier" is As Defined in the Act.
1.73 "Telecommunications Service" is As Defined in the Act.
1.74 "Telephone Exchange Service," sometimes also referred to as "Exchange
Service," is As Defined in the Act. Telephone Exchange Service generally
provides the Customer with a telephonic connection to, and a unique telephone
number address on, the public switched telecommunications network, and enables
such Customer to place or receive calls to all other stations on the public
switched telecommunications network.
1.75 [Reserved]
1.76 "Toll Traffic" means traffic that is originated by a Customer of one
Party on that Party's network and terminates to a Customer of the other Party on
that Party's network and is not Local Traffic or Ancillary Traffic. Toll Traffic
may be either "IntraLATA Toll Traffic" or "InterLATA Toll Traffic," depending on
whether the originating and terminating points are within the same LATA.
1.77 "Transit Traffic" means any traffic that originates from or
terminates at Covad's network, "transits" BA's network substantially unchanged,
and terminates to or originates from a third carrier's network, as the case may
be. "Transit Traffic Service" provides Covad with the ability to use its
connection to a BA Tandem for the delivery of calls which originate or terminate
with Covad and terminate to or originate from a carrier other than BA, such as
another CLEC, a LEC other than BA, or a wireless carrier. In these cases,
neither the originating nor terminating Customer is a Customer of BA. This
service is provided through BA's Tandems and applies only where the terminating
End Office of the third carrier subtends the BA Tandem. "Transit Traffic" and
"Transit Traffic Service" do not include or apply to traffic that is subject to
an effective Meet-Point Billing arrangement.
1.78 "Trunk Side" means a Central Office Switch connection that is capable
of, and has been programmed to treat the circuit as, connecting to another
switching entity (e.g. another carrier's network). Trunk Side connections offer
those transmission and signaling features appropriate for the connection of
switching entities.
1.79 "Unbundled Local Loop Element" or "ULL" means a transmission path
that extends from a Main Distribution Frame, DSX-panel, or functionally
comparable piece of equipment in the Customer's serving End Office to the Rate
Demarcation Point (or network interface device (NID) if installed) in or at a
Customer's premises. The actual loop transmission
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facilities used to provide an ULL may utilize any of several technologies.
1.80 "Verification with Call Interruption" or "VCI" means a service that
may be requested and provided when Line Status Verification has determined that
a line is busy due to an ongoing call. VCI is an operator interruption of that
ongoing call to inform the called party that a calling party is seeking to
complete his or her call to the called party.
1.81 "Voice Grade" means either an analog signal of 300 to 3000 Hz or a
digital signal of 56/64 kilobits per second. When referring to digital voice
grade service (a 56/64 kbps channel), the terms "DS-0" or "sub-DS-1" may also be
used.
1.82 "Wire Center" means a building or portion thereof which serves as a
Routing Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION.
2.1 All references to Sections, Exhibits and Schedules shall be deemed to
be references to Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. The headings used in this Agreement
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning of this Agreement. Unless the context shall
otherwise require, any reference to any agreement, other instrument (including
BA or other third party offerings, guides or practices), statute, regulation,
rule or tariff is to such agreement, instrument, statute, regulation, or rule or
tariff as amended and supplemented from time to time (and, in the case of a
statute, regulation, rule or tariff, to any successor provision).
2.2 Subject to the terms set forth in Section 20 regarding rates and
charges, each Party hereby incorporates by reference those provisions of its
tariffs that govern the provision of any of the services or facilities provided
hereunder. If any provision of this Agreement and an applicable tariff cannot be
reasonably construed or interpreted to avoid conflict, the provision contained
in this Agreement shall prevail, provided that in all cases the more specific
shall prevail over the more general. If any provision contained in this main
body of the Agreement and any Schedule or Exhibit hereto cannot be reasonably
construed or interpreted to avoid conflict, the provision contained in this main
body of the Agreement shall prevail. The fact that a condition, right,
obligation, or other term appears in this Agreement but not in any such tariff
shall not be interpreted as, or be deemed grounds for finding, a conflict for
purposes of this Section 2.
3.0 INTERCONNECTION ACTIVATION DATES AND IMPLEMENTATION SCHEDULE.
Subject to the terms and conditions of this Agreement, each Party shall
exercise its best efforts to adhere to the Interconnection Activation Dates and
Network Implementation Schedule set forth in Schedule 3.0, and to provide fully
operational service predominantly over its own Telephone Exchange Service
facilities to business and residential Customers as soon as reasonably
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practicable following the achievement of the milestones in said Schedule for
each listed LATA in New Jersey. Schedule 3.0 may be revised and supplemented
from time to time upon the mutual agreement of the Parties to reflect the
intention of the Parties to interconnect in additional LATAs pursuant to
subsection 4.4 by attaching one or more supplementary schedules to Schedule 3.0.
The Parties agree that this Agreement addresses BA's obligation to provide
Interconnection under Section 251 of the Act, and the requirements of the
Competitive Checklist, under Section 271 of the Act. Covad represents that it
is, or intends to become, a provider of Telecommunications Service to
residential and business subscribers offered exclusively over its own
Telecommunications Service facilities or predominantly over its own
Telecommunications 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.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
The types of Traffic to be exchanged under this Agreement shall be Local
Traffic, IntraLATA Toll (and InterLATA Toll, as applicable) Traffic, Transit
Traffic, Meet Point Billing Traffic, and Ancillary Traffic. Subject to the terms
and conditions of this Agreement, Interconnection of the Parties facilities and
equipment for the transmission and routing of Local Traffic and Toll Traffic
pursuant to this Section 4 shall be established on or before the corresponding
"Interconnection Activation Date" shown for each such LATA within New Jersey on
Schedule 3.0 and in accordance with the standards set forth in subsection 10.2.
Both Schedule 3.0 and Schedule 4.0 may be revised and supplemented from time to
time upon the mutual agreement of the Parties to reflect additional or changed
Interconnection Points in New Jersey by attaching one or more supplementary
addenda to such Schedule.
4.1 Scope
4.1.1 Section 4 describes the architecture for Interconnection of
the Parties' facilities and equipment over which the Parties shall configure the
following separate and distinct trunk groups:
Traffic Exchange Trunks for the transmission and routing of
terminating Local Traffic, Transit Traffic, translated LEC IntraLATA
800/888 traffic, IntraLATA Toll Traffic, and, where agreed to
between the Parties and as set forth in subsection 4.2.8 below,
InterLATA Toll Traffic between their respective Telephone Exchange
Service customers pursuant to Section 251 (c)(2) of the Act, in
accordance with Section 5 below;
Access Toll Connecting Trunks for the transmission and routing of
Exchange Access traffic, including translated InterLATA 800/888
traffic, between Covad Telephone Exchange Service customers and
purchasers of Switched Exchange Access Service via a BA Tandem,
pursuant to Section 251(c)(2) of the Act, in accordance with Section
6 below;
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Information Services Trunks for the transmission and routing of
terminating Information Services Traffic in accordance with Section
7 below;
LSV/VCI Trunks for the transmission and routing of terminating
LSV/VCI traffic, in accordance with Section 7 below;
911/E911 Trunks for the transmission and routing of terminating
E911/911 traffic, in accordance with Section 7 below;
Directory Assistance Trunks for the transmission and routing of
terminating directory assistance traffic, in accordance with
subsection 19.4 below; and
Operator Services (IntraLATA call completion) Trunks for the
transmission and routing of terminating IntraLATA call completion
traffic, in accordance with subsection 19.4 below;
Choke Trunks for traffic congestion and testing; and
Others as may be requested and agreed to by the Parties.
4.1.2 To the extent required by Section 251 of the Act, this
Agreement provides for Interconnection to each other's networks at any
technically feasible point. For the purposes of this Agreement, the Parties
agree that Interconnection for the transport and termination of traffic may take
place, in the case of BA, at a terminating End Office, a Tandem, and/or other
points as specified herein, and, in the case of Covad, at a Central Office
and/or other points as specified herein, and, in the case of both Parties, any
mutually agreed-upon Mid-Span Meet arrangement as provided in Section 4.3 below.
For purposes of Interconnection, if Covad delivers traffic to BA at a BA End
Office or Tandem point of Interconnection other than the terminating End Office
or Tandem subtended by the terminating End Office, then such point of
Interconnection shall be deemed to be a serving Wire Center. In such instances
and whenever Covad utilizes a serving Wire Center as point of Interconnection,
Covad shall designate that such traffic be transported via a separate trunk
group to the BA Tandem that is subtended by the applicable terminating End
Office. In such cases, the BA Tandem subtended by the terminating End Office
will serve as the BA-IP (as defined below).
4.1.3 The Parties shall establish interconnection points
(collectively, the "Interconnection Points" or "IPs") at the available locations
designated in Schedule 4.0. The mutually agreed-upon IPs on the Covad network at
which Covad will provide transport and termination of traffic shall be
designated as the Covad Interconnection Points ("Covad-IPs"); the mutually
agreed-upon IPs on the BA network shall be designated as the BA Interconnection
Points ("BA-IPs") and shall be either a BA terminating End Office or Tandem.
4.1.4 In the event either Party fails to make available a
geographically relevant End Office or functional equivalent as an IP on its
network to the other Party, the other Party may, at any time, request that the
first Party establish such additional technically feasible IP(s).
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Such requests shall be made as a part of the Joint Process established pursuant
to subsection 10.1; provided, however, that the Parties shall commence
negotiations to determine the technically feasible and geographically relevant
location(s) of the additional IP(s) as soon as reasonably practicable following
a Party's request therefor. If, after sixty (60) days following said request,
the Parties have been unable to reach agreement on the additional
Interconnection Points, then either Party may file a complaint with the Board to
resolve such impasse or pursue with any other remedy available under law or
equity. For purposes of this subsection 4.1.4, a "geographically relevant" IP
shall mean an IP that is located within the BA local calling area of equivalent
BA end user customers, but no greater than twenty five (25) miles from the BA
Rate Center Point of the BA NXX serving the equivalent relevant end user
customers, or, with the mutual agreement of the Parties, an existing and
currently utilized IP within the LATA but outside the foregoing BA local calling
area and/or twenty five (25) mile radius. "Equivalent" customers shall mean
customers served by either Party at the same physical location.
4.1.5 In recognition of the large number and variety of BA-IPs
available for use by Covad, Covad's ability to select from among those points to
minimize the amount of transport it needs to provide or purchase, and the fewer
number of Covad-IPs available to BA to select from for similar purposes, and as
an express condition of BA's making its Wire Centerss available to Covad as
points of Interconnection pursuant to subsection 4.1.2 above, Covad shall charge
BA no more than Covad's Tariffed non-distance sensitive entrance facility charge
for the transport of traffic from a BA-IP to a Covad-IP in any given LATA. The
Parties may by mutual agreement establish additional Interconnection Points at
any technically feasible points consistent with the Act.
4.1.6 The Parties shall configure separate trunk groups (as
described in subsection 4.1.1 above) for traffic from Covad to BA, and for
traffic from BA to Covad, respectively; however, the trunk groups shall be
equipped as two-way trunks for testing purposes. As provided in Section 10
below, the Parties agree to consider as part of the Joint Process the
feasibility of combining any of the separate trunk groups into a single two-way
trunk group.
4.2 Physical Architectures
4.2.1 In each LATA identified in Schedule 4.0, the Parties shall
utilize the Covad-IP(s) and BA-IP(s) designated in such Schedule as the points
from which each Party will provide the transport and termination of traffic.
4.2.2 Covad shall have the sole right and discretion to specify any
of the following methods for interconnection at any of the BA-IPs:
(a) a Physical or Virtual Collocation facility Covad establishes at
the BA-IP;
(b) a Physical or Virtual Collocation facility established
separately at the BA-IP by a third party with whom Covad has
contracted for such purposes; and/or
(c) an entrance facility and transport (where applicable) leased
from BA (and
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any necessary multiplexing), where such facility extends to the
BA-IP from a mutually agreed to point on Covad's network.
4.2.3 Covad shall provide its own facilities or purchase necessary
transport for the delivery of traffic to any Collocation arrangement it
establishes at a BA-IP pursuant to Section 13. BA shall provide the transport
and termination of the traffic beyond the BA-IP.
4.2.4 Covad may order from BA any of the Interconnection methods
specified above in accordance with the order intervals and other terms and
conditions, including, without limitation, rates and charges, set forth in this
Agreement, in any applicable Tariff(s), or as may be subsequently agreed to
between the Parties.
4.2.5 BA shall have the sole right and discretion to specify any one
of the following methods for Interconnection at any of the Covad-IPs:
(a) upon reasonable notice to Covad, a Physical Collocation facility
BA establishes at the Covad-IP;
(b) a Physical or Virtual Collocation facility established
separately at the Covad-IP by a third party with whom BA has
contracted for such purposes; and/or
(c) an entrance facility leased from Covad (and any necessary
multiplexing), where such facility extends to the Covad-IP from a
mutually agreed upon point on BA's network.
4.2.6 BA shall provide its own facilities or purchase necessary
transport for the delivery of traffic to any Collocation arrangement it
establishes at an Covad-IP pursuant to Section 13. Covad shall provide the
transport and termination of the traffic beyond the Covad-IP.
4.2.7 BA may order from Covad any of the Interconnection methods
specified above in accordance with the order intervals and other terms and
conditions, including, without limitation, rates and charges, set forth in this
Agreement, in any applicable Tariff(s), or as may be subsequently agreed to
between the Parties.
4.2.8 Under any of the architectures described in this subsection
4.2, either Party may utilize the Traffic Exchange Trunks for the termination of
InterLATA Toll Traffic in accordance with the terms contained in Section 5 below
and pursuant to the other Party's Switched Exchange Access Service tariffs. The
other Party's Switched Exchange Access Service rates shall apply to such
Traffic.
4.3 Mid-Span Meets
4.3.1 In addition to the foregoing methods of Interconnection, the
Parties may agree, at either Party's request at any time, to establish (i) a
Mid-Span Meet arrangement in accordance with the terms of this subsection 4.3
that utilizes either wireless or wireline
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transmission facilities, or a combination of both, or (ii) a SONET backbone with
an electrical interface at the DS-3 level where and on the same terms BA offers
such SONET services to other carriers. In the event the Parties agree to adopt a
Mid-Span Meet arrangement that utilizes both wireless and wireline facilities,
Covad agrees to bear all expenses associated with the purchase of equipment,
materials, or services necessary to facilitate a wireless to wireline meet up to
and including the optical to electrical multiplexer necessary to effect a fiber
hand-off to BA.
4.3.2 The establishment of any Mid-Span Meet arrangement is
expressly conditioned upon the Parties' reaching prior agreement on appropriate
sizing and forecasting, equipment, ordering, provisioning, maintenance, repair,
testing, augment, and compensation procedures and arrangements, reasonable
distance limitations, and on any other arrangements necessary to implement the
Mid-Span Meet arrangement. Any Mid-Span Meet arrangement requested at a
third-party premises is expressly conditioned on the Parties' having sufficient
capacity at the requested location to meet such request, on unrestricted 24-hour
access for both Parties to the requested location, on other appropriate
protections as deemed necessary by either Party, and on an appropriate
commitment that such access and other arrangements may not be restricted for a
reasonable period.
4.3.3 Mid-Span Meet arrangements shall be used only for the
termination of Local Traffic and IntraLATA Toll Traffic unless and until such
time as the Parties have agreed to appropriate compensation arrangements
relating to the exchange of other types of traffic over such Mid-Span Meet, and
only where facilities are available. Any agreement to access unbundled Network
Elements via a Mid-Span Meet arrangement shall be conditioned on the resolution
of the technical and other issues described in this subsection 4.3, resolution
by the joint operations team of additional issues (such as inventory and testing
procedures unique to the provision of unbundled Network Elements via a Mid-Span
Meet), and, as necessary, completion of a joint operational and technical test.
In addition, access to unbundled Network Elements via a Mid-Span Meet
arrangement for access to such Elements, shall be limited to that which is
required by Applicable Laws, and shall be subject to full compensation of all
relevant costs (as defined in the FCC Regulations) by the requesting Party to
the other Party.
4.4 Interconnection in Additional LATAs
4.4.1 If Covad determines to offer Telephone Exchange Services in
any LATA not listed in Schedule 3.0 in which BA also offers Telephone Exchange
Services, Covad shall provide written notice to BA of the need to establish
Interconnection in such LATA pursuant to this Agreement.
4.4.2 The notice provided in subsection 4.4.1 shall include (i) the
initial Routing Point Covad has designated in the new LATA; (ii) Covad's
requested Interconnection Activation Date (and related milestone dates in
accordance with the format in Schedule 3.0); and (iii) a non-binding forecast of
Covad's trunking requirements.
4.4.3 Unless otherwise agreed to by the Parties, the Parties shall
designate the Wire Center(s) Covad has identified as its initial Routing
Point(s) in the LATA as the Covad-IP(s)
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in that LATA and shall designate mutually agreed upon BA Wire Center(s) that
houses a Tandem Office within the LATA nearest to the Covad-IP (as measured in
airline miles utilizing the V&H coordinates method) as the BA-IP(s) in that
LATA, provided that, for the purpose of charging for the transport of traffic
from the BA-IP to the Covad-IP, the Covad-IP shall be no further than an
entrance facility away from the BA-IP.
4.4.4 The Parties shall agree upon an addendum to Schedule 3.0 to
reflect the schedule applicable to each new LATA requested by Covad; provided,
however, that unless agreed by the Parties, the Interconnection Activation Date
in a new LATA shall not be earlier than forty-five (45) days after receipt by BA
of all complete and accurate trunk orders and routing information. Within ten
(10) business days of BA's receipt of Covad's notice, BA and Covad shall confirm
the BA-IP, the Covad-IP and the Interconnection Activation Date for the new LATA
by attaching an addendum to Schedule 3.0.
4.5 Interconnection Points for Different Types of Traffic
Each Party shall make available Interconnection Points and facilities for
routing of traffic from those Interconnection Points as designated in Schedule
4.5. Any additional traffic that is not covered in Schedule 4.5 shall be subject
to separate negotiations between the Parties, except that (i) either Party may
deliver traffic of any type or character to the other Party for termination as
long as the delivering Party pays the receiving Party's then current Switched
Exchange Access rates for such traffic, and (ii) upon a bona fide request from
either Party, the Parties will exercise all reasonable efforts to conclude an
agreement covering the exchange of such traffic.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
Section 5 prescribes parameters for trunk groups (the "Traffic Exchange
Trunks") to be effected over the Interconnections specified in Section 4 for the
transmission and routing of Local Traffic, Transit Traffic, translated LEC
IntraLATA 800/888 traffic, InterLATA Toll Traffic (to the extent applicable),
and IntraLATA Toll Traffic between the Parties' respective Telephone Exchange
Service Customers.
5.2 Trunk Group Connections and Ordering
5.2.1 Traffic Exchange Trunk group connections will be made at a
DS-1 level or higher. Higher speed connections shall be made, when and where
available, in accordance with the Joint Implementation and Grooming Process
prescribed in Section 10. Ancillary Traffic trunk groups may be made below a
DS-1 level, as may be agreed to by the Parties.
5.2.2 Each Party will identify its Carrier Identification Code, a
three or four digit numeric obtained from Bellcore, to the other Party when
ordering a trunk group.
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5.3 Additional Switching System Hierarchy and Trunking Requirements
For purposes of routing Covad traffic to BA, the subtending arrangements
between BA Tandem Switches and BA End Office Switches shall be the same as the
Tandem/End Office subtending arrangements BA maintains for the routing of its
own or other carriers' traffic. For purposes of routing BA traffic to Covad, the
subtending arrangements between Covad Tandem Switches (or functional equivalent)
and Covad End Office Switches (or functional equivalent) shall be the same as
the Tandem/End Office subtending arrangements (or functional equivalent) which
Covad maintains for the routing of its own or other carriers' traffic.
5.4 Signaling
Each Party will provide the other Party with access to its databases and
associated signaling necessary for the routing and completion of the other
Party's traffic in accordance with the provisions contained in Section 17 below.
5.5 Grades of Service
The Parties shall initially engineer and shall jointly monitor and enhance
all trunk groups consistent with the Joint Implementation and Grooming Process
as set forth in Section 10.
5.6 Measurement and Billing
5.6.1 For billing purposes, each Party shall pass Calling Party
Number ("CPN") information on each call carried over the Traffic Exchange Trunks
at such time as the originating switch is equipped for SS7 and from all switches
no later than December 31, 1998. At such time as either Party has the ability,
as the Party receiving the traffic, to use such CPN information to classify on
an automated basis traffic delivered by the other Party as either Local Traffic
or Toll Traffic, such receiving Party shall bill the originating Party the Local
Traffic termination rates, Intrastate Exchange Access rates, or Interstate
Exchange Access rates applicable to each minute of Traffic for which CPN is
passed, as provided in Exhibit A and applicable Tariffs.
5.6.2 If, under the circumstances set forth in subsection 5.6.1, the
originating Party does not pass CPN on up to ten percent (10%) of calls, the
receiving Party shall bill the originating Party the Local Traffic termination
rates, Intrastate Exchange Access rates, Intrastate/Interstate Transit Traffic
rates, or Interstate Exchange Access rates applicable to each minute of traffic,
as provided in Exhibit A and applicable Tariffs, for which CPN is passed. For
the remaining up to ten percent (10%) of calls without CPN information, the
receiving Party shall bill the originating Party for such traffic as Local
Traffic termination rates, Intrastate Exchange Access rates,
Intrastate/Interstate Transit Traffic rates, or Interstate Exchange Access rates
applicable to each minute of traffic, as provided in Exhibit A and applicable
Tariffs, in direct proportion to the minutes of use of calls passed with CPN
information.
5.6.3 If the originating Party does not pass CPN on more than ten
percent (10%) of
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calls, or if the receiving Party lacks the ability to use CPN information to
classify on an automated basis traffic delivered by the other Party as either
Local Traffic or Toll Traffic, and the originating Party chooses to combine
Local and Toll Traffic on the same trunk group, it will supply an auditable
Percent Local Use ("PLU") report quarterly, based on the previous three months'
traffic, and applicable to the following three months. If the originating Party
also chooses to combine Interstate and Intrastate Toll Traffic on the same trunk
group, it will supply an auditable Percent Interstate Use ("PIU") report
quarterly, based on the previous three months' terminating traffic, and
applicable to the following three months. In lieu of the foregoing PLU and/or
PIU reports, the Parties may agree to provide and accept reasonable surrogate
measures for an agreed-upon interim period.
5.6.4 Measurement of billing minutes for purposes of determining
terminating compensation shall be in conversation seconds.
5.7 Reciprocal Compensation Arrangements -- Section 251(b)(5)
Reciprocal Compensation arrangements address the transport and termination
of Local Traffic. BA's delivery of Traffic to Covad that originated with a third
carrier is addressed in subsection 7.3. Where Covad delivers Traffic (other than
Local Traffic) to BA, except as may be set forth herein or subsequently agreed
to by the Parties, Covad shall pay BA the same amount that such carrier would
have paid BA for termination of that Traffic at the location the Traffic is
delivered to BA by Covad. Compensation for the transport and termination of
traffic not specifically addressed in this subsection 5.7 shall be as provided
elsewhere in this Agreement, or if not so provided, as required by the Tariffs
of the Party transporting and/or terminating the traffic. BA shall provide
notice to Covad of any BA filing to the Board that would alter the
classification of particular traffic as Local or IntraLATA Toll Traffic.
5.7.1 Nothing in this Agreement shall be construed to limit either
Party's ability to designate the areas within which that Party's Customers may
make calls which that Party rates as "local" in its Customer Tariffs.
5.7.2 The Parties shall compensate each other for the transport and
termination of Local Traffic in an equal and symmetrical manner at the rates
provided in the Detailed Schedule of Itemized Charges (Exhibit A hereto), as may
be amended from time to time in accordance with Exhibit A and subsection 20.1.2
below or, if not set forth therein, in the applicable Tariff(s) of the
terminating Party, as the case may be. These rates are to be applied at the
Covad-IP for traffic delivered by BA, and at the BA-IP for traffic delivered by
Covad. No additional charges, including port or transport charges, shall apply
for the termination of Local Traffic delivered to the BA-IP or the Covad-IP,
except as set forth in Exhibit A. When Local Traffic is terminated over the same
trunks as Toll Traffic, any port or transport or other applicable access charges
related to the Toll Traffic shall be prorated to be applied only to the Toll
Traffic.
5.7.3 The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access Service. All Switched
Exchange Access Service and all Toll Traffic shall continue to be governed by
the terms and conditions of the applicable federal
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and state Tariffs. Similarly, the Parties agree that the Reciprocal Compensation
arrangements contained in this subsection 5.7 shall not apply to traffic handed
off from one Party to the other Party, within a BA local calling area, for
delivery to an Internet Service Provider ("ISP") for carriage over the Internet.
5.7.4 Compensation for transport and termination of all Traffic
which has been subject to performance of INP by one Party for the other Party
pursuant to Section 14 shall be as specified in subsection 14.5.
5.7.5 The designation of Traffic as Local or non-Local for purposes
of compensation shall be based on the actual originating and terminating points
of the complete end-to-end call, regardless of the entities involved in carrying
any segment of the call.
5.7.6 Each Party reserves the right to measure and audit all
Traffic, up to a maximum of two audits per calendar year, to ensure that proper
rates are being applied appropriately, provided, however, that either Party
shall have the right to conduct additional audit(s) if the preceding audit
disclosed material errors or discrepancies. Each Party agrees to provide the
necessary Traffic data or permit the other Party's recording equipment to be
installed for sampling purposes in conjunction with any such audit.
5.7.7 The Parties will engage in settlements of intraLATA intrastate
alternate-billed calls (e.g. collect, calling card, and third-party billed
calls) originated or authorized by their respective Customers in New Jersey in
accordance with the terms of an appropriate settlement agreement as mutually
agreed to bythe Parties.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO 251(c)(2)
6.1 Scope of Traffic
Section 6 prescribes parameters for certain trunks to be established over
the Interconnections specified in Section 4 for the transmission and routing of
traffic between Covad Telephone Exchange Service Customers and Interexchange
Carriers ("Access Toll Connecting Trunks"), in any case where Covad elects to
have its End Office Switch subtend a BA Tandem. This includes casually-dialed
(10XXX and 101XXXX) traffic.
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 Covad shall establish Access Toll Connecting Trunks by which
it will provide tandem-transported Switched Exchange Access Services to
Interexchange Carriers to enable such Interexchange Carriers to originate and
terminate traffic to and from Covad's Customers.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Exchange Access to allow Covad's Customers to
connect to or be connected to the
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interexchange trunks of any Interexchange Carrier which is connected to a BA
Tandem.
6.2.3 The Access Toll Connecting Trunks shall be two-way trunks
connecting an End Office Switch Covad utilizes to provide Telephone Exchange
Service and Switched Exchange Access in a given LATA to a Tandem BA utilizes to
provide Exchange Access in such LATA.
6.2.4 The Parties shall jointly determine which BA Tandem(s) will be
subtended by each Covad End Office Switch. Covad's End Office switch shall
subtend the BA Tandem that would have served the same rate center on BA's
network. Alternative configurations will be discussed as part of the Joint
Implementation and Grooming Process.
6.3 Meet-Point Billing Arrangements
6.3.1 Covad and BA will establish Meet-Point Billing arrangements in
order to provide a common transport option to Switched Access Services Customers
via a Tandem Switch in accordance with the Meet-Point Billing guidelines
contained in the OBF's MECAB and MECOD documents, except as modified herein, and
BA's New Jersey Tariff Number 2, Section 2.4.8. The arrangements described in
this Section 6 are intended to be used to provide Switched Exchange Access
Service that originates and/or terminates on a Telephone Exchange Service that
is provided by either Party, where the transport component of the Switched
Exchange Access Service is routed through a Tandem Switch that is provided by
BA.
6.3.2 In each LATA, the Parties shall establish MPB arrangements
between the applicable Rating Point/BA Wire Center combinations.
6.3.3 Interconnection for the MPB arrangement shall occur at the
BA-IP in the LATA, unless otherwise agreed to by the Parties.
6.3.4 Covad and BA will use reasonable efforts, individually and
collectively, to maintain provisions in their respective state access tariffs,
and/or provisions within the National Exchange Carrier Association ("NECA")
tariff No. 4, or any successor Tariff sufficient to reflect the MPB arrangements
established pursuant to this Agreement.
6.3.5 Each Party shall implement the "Multiple Bill/Single Tariff"
or "Multiple Bill/Multiple Tariff" option, as appropriate, in order to bill an
IXC for the portion of the jointly provided telecommunications service provided
by that Party.
6.3.6 The rate elements to be billed by each Party are as set forth
in Schedule 6.3. The actual rate values for each Party's affected access service
rate element shall be the rates contained in that Party's own effective federal
and state access tariffs, or other document that contains the terms under which
that Party's access services are offered. The MPB billing percentages for each
Rating Point/BA Wire Center combination shall be calculated in accordance with
the formula set forth in subsection 6.3.17 below.
6.3.7 Each Party shall provide the other Party with the billing
name, billing
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address, and Carrier Identification Code ("CIC") of the IXC, and identification
of the IXC's serving Wire Center in order to comply with the MPB notification
process as outlined in the MECAB document via facsimile or such other media as
the Parties may agree to.
6.3.8 BA shall provide Covad with the Switched Access Detail Usage
Data (category 1101XX records) on magnetic tape or via such other media as the
Parties may agree to, no later than ten (10) business days after the date the
usage occurred.
6.3.9 Covad shall provide BA with the Switched Access Summary Usage
Data (category 1150XX records) on magnetic tape or via such other media as the
Parties may agree, no later than ten (10) business days after the date of its
rendering of the bill to the relevant IXC, which bill shall be rendered no less
frequently than monthly.
6.3.10 All usage data to be provided pursuant to subsections 6.3.8
and 6.3.9 above shall be sent to the following addresses:
To Covad: Covad to notify BA of Covad address.
To BA: Bell Atlantic
Tape Library
1500 Tech Center Drive
Monroeville, PA 15146
Either Party may change its address for receiving usage data by notifying the
other Party in writing.
6.3.11 Each Party shall coordinate and exchange the billing account
reference ("BAR") and billing account cross reference ("BACR") numbers or
Operating Company Number ("OCN"), as appropriate, for the MPB 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, or if the OCN changes.
6.3.12 Errors may be discovered by Covad, the IXC or BA. Each Party
agrees to provide the other Party with notification of any errors it discovers
within two (2) business days of the date of such discovery. In the event of a
loss of data, both Parties shall cooperate to reconstruct the lost data and, if
such reconstruction is not possible, shall accept a reasonable estimate of the
lost data based upon prior usage data.
6.3.13 Either Party may request a review or audit of the various
components of access recording up to a maximum of two (2) audits per calendar
year. All costs associated with each review and audit shall be borne by the
requesting Party. Such review or audit shall be conducted subject to
confidentiality protection and during regular business hours. A Party may
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conduct additional audits, at its expense, upon the other Party's consent, which
consent shall not be unreasonably withheld.
6.3.14 Nothing contained in this subsection 6.3 shall create any
liability for damages, losses, claims, costs, injuries, expenses or other
liabilities whatsoever on the part of either Party (other than as may be set
forth in MECAB or in any applicable Tariff).
6.3.15 The Parties shall not charge one another for the services
rendered or information provided pursuant to this subsection 6.3.
6.3.16 MPB will apply for all traffic bearing the 500, 900, 800/888
(to the extent provided by an IXC) or any other non-geographic NPA which may be
likewise designated for such traffic in the future.
6.3.17 In the event Covad determines to offer Telephone Exchange
Services in another LATA in which BA operates a Tandem Switch, BA shall permit
and enable Covad to subtend the BA Tandem Switch(es) designated for the BA End
Offices in the area where the Covad Rating Point(s) associated with the
NPA-NXX(s) to/from which the Switched Exchange Access Services are homed. The
MPB billing percentages for each new Rating Point/BA Wire Center combination
shall be calculated according to the following formula:
a / (a + b) = Covad Billing Percentage
and
b / (a + b) = BA Billing Percentage
where:
a = the airline mileage between the Rating Point and the
actual point of interconnection for the MPB arrangement; and
b = the airline mileage between the BA Wire Center and the
actual point of interconnection for the MPB arrangement.
Covad shall inform BA of the LATA in which it intends to offer Telephone
Exchange Services and its calculation of the billing percentages which should
apply for such arrangement, as part of the notice required by subsection 4.4.1
above. Within ten (10) business days of Covad's delivery of notice to BA, BA and
Covad shall confirm the new Rating Point/BA Wire Center combination and billing
percentages. Nothing in this subsection 6.3.17 shall be construed to limit
Covad's ability to select to interconnect with BA in additional LATAs by means
of Interconnection at a Wire Center, to the extent that such Interconnection is
permitted under this Agreement.
6.3.18 Within thirty (30) days of a request by Covad, BA agrees to
notify all switched access users with a Carrier Identification Code in a LATA in
which the Parties have newly established Interconnection arrangements pursuant
to this Agreement that BA and Covad have entered in a Meet Point Billing
arrangement.
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6.4 800/888 Traffic
The following terms shall apply when either Party delivers 800/888 calls
to the other Party for completion.
6.4.1 When Covad delivers translated 800/888 calls to BA for
completion
(a) to an IXC, Covad shall:
(i) Provide a MPB record in an industry standard format to BA; and
(ii) Bill the IXC the appropriate Covad query charge associated with
the call.
(b) as an IntraLATA call to BA or another LEC in the LATA, Covad shall:
(i) Provide a copy record in an industry standard format to BA or
the terminating LEC;
(ii) Submit the call records to ITORP for payment by BA or the LEC
that is the 800/888 service provider of Covad's and any intermediate
LEC's Tariffed Exchange Access charges and query charges.
6.4.2 When BA delivers translated 800/888 calls originated by BA's
or another LEC's Customers to Covad for completion
(a) to Covad in its capacity as an IXC, BA shall:
(i) Bill Covad the appropriate BA query charge associated with the
call; and
(ii) Bill Covad the appropriate FGD Exchange Access charges
associated with the call.
(b) as an IntraLATA call to Covad in its capacity as a LEC,
(i) the originating LEC shall submit the appropriate call records to
BA for processing under the IntraLATA Toll Originating
Responsibility Plan ("ITORP") for payment by Covad of BA's (and
another LEC's, if appropriate) tariffed Exchange Access charges; and
(ii) Covad shall pay the originating LEC's appropriate query charge
associated with the call.
6.4.3 The settlement of all IntraLATA 800/888 calls exchanged
pursuant to this subsection 6.4 shall be in accordance with the terms of an
appropriate settlement agreement as
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mutually agreed to by the Parties.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Services Traffic
The following provisions shall apply only to Covad-originated Information
Services Traffic directed to an information services platform connected to BA's
network. At such time as Covad connects Information Services platforms to its
network, the Parties shall agree upon a comparable arrangement for BA-originated
Information Services Traffic.
7.1.1 Covad shall have the option to route Information Services
Traffic that originates on its own network to the appropriate information
services platform(s) connected to BA's network. In the event Covad exercises
such option, Covad will establish a dedicated trunk group to the BA information
services serving switch. This trunk group will be utilized to allow Covad to
route information service traffic originated on its network to BA.
7.1.2 Covad shall provide an electronic file transfer or monthly
magnetic tape containing recorded call detail information to BA.
7.1.3 BA shall provide to Covad via electronic file transfer or
magnetic tape or other means as available all necessary information to rate the
Information Services Traffic to Covad's Customers pursuant to the BA's
agreements with each information services provider. Information shall be
provided in as timely a fashion as practical in order to facilitate record
review and reflect actual prices set by the individual information services
providers.
7.1.4 Covad shall bill and collect such information services
provider charges and remit the amounts collected to BA less:
(a) The Information Services Billing and Collection fee set
forth in Exhibit A; and
(b) An uncollectibles reserve calculated based on the
uncollectibles reserve in BA's billing and collection agreement with
the applicable information services provider; and
(c) Customer adjustments provided by Covad.
Covad shall provide to BA sufficient information regarding uncollectibles
and Customer adjustments to allow BA to pass through the adjustments to the
information services provider, and BA shall pass through such adjustments.
However, if the information services provider disputes such adjustments and
refuses to accept such adjustments, Covad shall reimburse BA for all such
disputed adjustments. Final resolution regarding all disputed adjustments shall
be solely between Covad and the information services provider.
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7.1.5 Nothing in this Agreement shall restrict either Party from
offering, or obviate either Party's obligations, if any, under Applicable Laws
to offer, to its Telephone Exchange Service Customers the ability to block the
completion of Information Service Traffic or from establishing such blocking as
the default and requiring that such Customers make an affirmative request to
remove the blocking.
7.1.6 To the extent either Party offers variable rated (e.g. 976,
554, and/or 915, as applicable) information services, the Parties may agree to
separate arrangements for the billing and compensation of such services.
7.1.7 The Information Services Traffic addressed herein does not
include 555 traffic or similar traffic with AIN service interfaces, which
traffic shall be subject to separate arrangements between the Parties.
7.2 LSV/VCI Traffic
7.2.1 If Party A decides or is required by a regulatory body of
competent jurisdiction to offer LSV and VCI services to enable its Customers to
verify and/or interrupt calls of Party B's Customers, Party B shall accept and
respond to LSV and VCI requests from the operator bureau of the Party A. Each
Party shall compensate the other Party for LSV and VCI inquiries in accordance
with the other Party's Tariffed rates, the terms of the Directory Assistance and
Call Completion Agreement appended hereto as Exhibit C, or as may be agreed to
by the Parties.
7.2.2 The Party B operator shall only verify the status of the line
(LSV) or interrupt the line to inform the called party that there is a call
waiting. The Party B operator will not complete the telephone call of the
Customer initiating the LSV/VCI request. The Party B operator will only make one
LSV/VCI attempt per Customer operator bureau telephone call, and the applicable
charges apply whether or not the called party releases the line.
7.2.3 Each Party's operator bureau shall accept LSV and VCI
inquiries from the operator bureau of the other Party in order to allow
transparent provision of LSV/VCI Traffic between the Parties' networks.
7.2.4 Each Party shall route LSV/VCI Traffic inquiries over separate
direct trunks (and not the Local/IntraLATA/InterLATA Trunks) established between
the Parties' respective operator bureaus. Each Party shall offer interconnection
for LSV/VCI traffic at its operator services Tandem Office, or other mutually
agreed point in the LATA. Separate LSV/VCI trunks will be directed to the
operator services Tandem Office designated by Party B. Unless otherwise mutually
agreed, the Parties shall configure LSV/VCI trunks over the Interconnection
architectures in accordance with the terms of Section 4, consistent with the
Joint Implementation and Grooming Process. Party A shall outpulse the
appropriate NPA, ATC Code, and Routing Code (operator code) to Party B.
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7.3 Transit Service
7.3.1 Each Party shall exercise all reasonable efforts to enter into
a reciprocal local traffic exchange arrangement (either via written agreement or
mutual tariffs) with any wireless carrier, ITC, CLEC, or other LEC to which it
sends, or from which it receives, local traffic that transits the other Party's
facilities over Traffic Exchange Trunks. If either Party fails to enter into
such an arrangement as quickly as commercially reasonable following the
Effective Date and to provide written notification of such Agreement, including
the relevant rates therein, to the other Party, but continues to utilize the
other Party's Transit Service for the exchange of local traffic with such
wireless carrier, ITC, CLEC, or other LEC, then the Party utilizing the Transit
Service shall, in addition to paying the rate set forth in Exhibit A for said
Transit Service, pay the other Party any charges or costs such terminating third
party carrier imposes or levies on the other Party for the delivery or
termination of such Traffic, including, where not prohibited by Applicable Law,
any switched access charges, plus all reasonable expenses incurred by the other
Party in delivering or terminating such Traffic and/or resulting from the
utilizing Party's failure to secure said reciprocal local traffic exchange
arrangement. Each Party will, upon request, provide the other Party with all
reasonable cooperation and assistance in obtaining such arrangements. In
addition, neither Party shall take any actions to prevent the other Party from
entering into a direct and reciprocal local traffic exchange arrangement (either
via written agreement or mutual tariffs) with any wireless carrier, ITC, CLEC,
or other LEC to which it sends, or from which it receives, local traffic that
does not utilize the Transit Service of the first Party. The Parties agree to
work cooperatively in appropriate industry fora to promote the adoption of
reasonable industry guidelines relating to Transit Traffic.
7.3.2 Transit Traffic that is originated by an ITC or wireless
carrier shall be settled in accordance with the terms of an appropriate
settlement agreement as mutually agreed to by the Parties. Meet-Point Billing
compensation arrangements as described in subsection 6.3 shall be utilized for
compensation for the joint handling of Toll Traffic.
7.3.3 BA expects that most networks involved in Transit Traffic will
deliver each call to each involved network with CCIS and the appropriate
Transactional Capabilities Application Part ("TCAP") message to facilitate full
interoperability of those services supported by BA and billing functions. In all
cases, each Party shall follow the Exchange Message Record ("EMR") standard and
exchange records between the Parties and with the terminating carrier to
facilitate the billing process to the originating network.
7.3.4 Transit Traffic shall be routed over the Traffic Exchange
Trunks described in Section 5 above.
7.4 911/E911 Arrangements
7.4.1 Notwithstanding any other provision of this Agreement, where
this subsection 7.4 or other portions of this Agreement refer to or describe
911/E911 functions, services, or facilities as BA functions, services, or
facilities, the Parties agree that, in New Jersey, some such functions,
services, and facilities are provided, owned, and controlled not by BA but by
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the State of New Jersey, and that Covad will look to the State of New Jersey,
and not BA, and make arrangements with the State of New Jersey, and not BA, for
the provision of such functions, services, and facilities. BA will cooperate
with Covad in identifying all such functions, services, and facilities that are
provided, owned, or controlled by the State of New Jersey and in identifying the
contact points and procedures BA believes will facilitate Covad's promptly
securing such arrangements with the State of New Jersey as may be necessary for
the effective provision of 911/E911 service to Customers of Covad.
7.4.2 Path and route diverse interconnections for 911/E911 shall be
made at the Covad-IP, the BA-IP, or other points as necessary and mutually
agreed, and as required by law or regulation.
7.4.3 Within thirty (30) days of its receipt of a request from Covad
and to the extent authorized by the relevant federal, state, and local
authorities, BA will provide Covad with the following at no charge:
(a) a file on diskette or other mutually agreed upon medium
containing the Master Street Address Guide ("MSAG") for each county within the
LATA(s) specified in this Agreement, which MSAG shall be updated no more
frequently than monthly and a complete copy of which shall be made available on
an annual basis;
(b) a list of the address, CLLI code, and an associated NXX of each
911/E911 selective router or 911 Tandem office(s) in the area in which Covad
plans to offer Telephone Exchange Service;
(c) a list of the address, CLLI code, associated NXX, contact name
and phone number of each PSAP in each county in the area in which Covad plans to
offer Telephone Exchange Service;
(d) a list of BA personnel who currently have responsibility for
each county's 911 requirements;
(e) the ten-digit subscriber number for each PSAP or the "main" PSAP
that subtends each BA 911/E911 selective router or 911 Tandem to which Covad is
interconnected for the transfer of "0-" calls to the PSAP;
(f) any special 911 trunking requirements for each 911/E911
selective router or 911 Tandem;
(g) an electronic interface, when available, through which Covad
shall input and provide a daily update of 911/E911 database information related
to appropriate Covad Customers. Until such time as an electronic interface is
available, Covad shall provide BA with all appropriate 911 information such as
name, address, and telephone number in writing for BA's entry into the 911
database system. Any 911-related data exchanged between the Parties prior to the
availability of an electronic interface shall conform to BA standards, whereas
911-related data
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exchanged electronically shall conform to the National Emergency Number
Association standards;
(h) return of any Covad E911 data entry files containing errors, so
that Covad may ensure the accuracy of the Customer records; and
(i) a Design Layout Record ("DLR") of a 911 (CAMA) trunk, if
applicable.
7.4.4 In cases where a Customer of one Party elects to discontinue
its service and become the Customer of the other Party ("Party B") but desires
to retain its original telephone number pursuant to an INP arrangement, Party B
will outpulse the telephone number to which the call has been forwarded (i.e.
the Customer's ANI) to the 911 Tandem Office. Party B will also provide the 911
database with both the forwarded number and the directory number, as well as the
appropriate address information of the Customer.
7.4.5 BA and Covad will use their best efforts to facilitate the
prompt, robust, reliable and efficient interconnection of Covad systems to the
911/E911 platforms.
7.4.6 BA and Covad will work cooperatively to arrange meetings with
PSAPs to answer any technical questions the PSAPs, or county or municipal
coordinators may have regarding the 911/E911 arrangements.
7.4.7 The Parties acknowledge that the provision of INP, until PNP
with full 911 compatibility is available, creates a special need to have the
Automatic Location Identification ("ALI") screen reflect two number: the "old"
number and the "new" number assigned by Covad. The Parties acknowledge further
the objective of including the five character Telephone Company Identification
("TCI") of the company that provides service to the calling line as part of the
ALI display. Until such time as TCI is operational, however, BA and Covad agree
to supply and use the three-letter Access Carrier Name Abbreviation ("ACNA") as
the carrier identifier.
7.4.8 Covad will compensate BA for connections to its 911/E911
pursuant to Exhibit A.
7.4.9 Covad will comply with all applicable rules and regulations
pertaining to the provision of 911/E911 services in New Jersey.
7.5 Ancillary Traffic Generally
Ancillary Traffic that may be terminated at a BA Wire Center pursuant to
subsection 4.5 above shall be subject to a separate transport charge for
transport from the Wire Center to the appropriate Tandem Office, as set forth in
Exhibit A.
8.0 NUMBER RESOURCES, RATE CENTERS AND RATING POINTS
8.1 Nothing in this Agreement shall be construed to limit or otherwise
adversely affect
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in any manner either Party's right to employ or to request and be assigned any
Central Office (NXX) Codes pursuant to the Central Office Code Assignment
Guidelines, as may be amended from time to time, or to establish, by Tariff or
otherwise, Rate Centers and Rating Points corresponding to such NXX codes. Until
such time as number administration is provided by a third party, BA shall
provide Covad access to telephone numbers by assigning NXX codes to Covad in
accordance with such Assignment Guidelines.
8.2 It shall be the responsibility of each Party to program and update its
own switches and network systems in accordance with the Local Exchange Routing
Guide ("LERG") in order 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, except as expressly set forth
in this Agreement.
8.3 Unless mandated otherwise by a Board order, the Rate Center Areas will
be the same for each Party. During the term of this Agreement, Covad shall adopt
the Rate Center Areas and Rate Center Points that the Board has approved for BA,
in all areas where BA and Covad service areas overlap, and Covad shall assign
whole NPA-NXX codes to each Rate Center unless the LEC industry adopts
alternative methods of utilizing NXXs in the manner adopted by the NANP.
8.4 Covad will also designate a Routing Point for each assigned NXX code.
Covad shall designate one location for each Rate Center Area as the Routing
Point for the NPA-NXXs associated with that Area, and such Routing Point shall
be within the same LATA as the Rate Center Area but not necessarily within the
Rate Center Area itself.
8.5 Notwithstanding anything to the contrary contained herein, nothing in
this Agreement is intended to, and nothing in this Agreement shall be construed
to, in any way constrain Covad's choices regarding the size of the local calling
area(s) that Covad may establish for its Customers, which local calling areas
may be larger than, smaller than, or identical to, BA's local calling areas.
9.0 NETWORK MAINTENANCE AND MANAGEMENT; OUTAGES
9.1 The Parties will work cooperatively to install and maintain a reliable
network. Covad and BA will exchange appropriate information (e.g., maintenance
contact numbers, escalation procedures, network information, information
required to comply with law enforcement and other security agencies of the
Government) to achieve this desired reliability. In addition, the Parties will
work cooperatively to apply sound network management principles to alleviate or
to prevent congestion. BA and Covad agree to work cooperatively to implement
technical guidelines to prevent degradation or other impairments to the quality
or reliability of either Party's network.
9.2 Each Party recognizes a responsibility to follow the standards that
may be agreed to between the Parties and to employ characteristics and methods
of operation that will not
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interfere with or impair the service or any facilities of the other or any third
parties connected with or involved directly in the network of the other.
9.3 Interference or Impairment
If BA reasonably determines that the use of an unbundled Network Element
or network service by Covad is interfering with or impairing BA's provision of
services, BA shall have the right to discontinue service to the degree
reasonably necessary to resolve the interference or impairment, subject,
however, to the following: :
9.3.1 BA shall have given Covad at least ten (10) days' prior
written notice of the interference or impairment and the need to correct the
condition within said time period.
9.3.2 BA shall have concurrently provided a copy of the notice
provided to Covad under subsection 9.3.1 above to the appropriate federal and/or
state regulatory bodies.
9.3.3 Notice in accord with subsections 9.3.1 and 9.3.2 above shall
not be required in emergencies and BA may immediately discontinue service if
reasonably necessary to avoid interference with or impairment of BA's network or
services.. In such case, however, BA shall use all reasonable means to notify
Covad and the appropriate federal and/or state regulatory bodies.
9.3.4 Upon correction of the interference or impairment, which may
include relocation at appropriate rates and charges, BA will promptly renew
service to Covad. During such period of discontinuance, there will be no
compensation or credit allowance by BA to Covad for interruptions.
9.3.5 The provisions of this Section 9.3 shall not apply to ADSL-2W,
HDSL-2W, and HDSL-4W ULLs provided to Covad by BA pursuant to Section 11.2 of
this Agreement, so long as Covad conforms to the applicable technical references
in its use of such Loops.
9.3.6 If Bell Atlantic reasonably determines that (i) Covad's use of
an unbundled Network Element or a service provided by BA or (ii) the
characteristics and methods of operation used by Covad will or may interfere
with or impair BA's provision of services, BA shall give Covad at least twenty
(20) days' prior written notice of the potential interference or impairment and
the need to correct the condition within said time period. If Covad fails to
correct the condition within said time period, BA may take any action permitted
by Applicable Law, including, but not limited to, filing a complaint with or
seeking other relief from the FCC or the Department.
9.4 Repeated or Willful Noncompliance
The Interconnection, unbundled Network Elements, and services provided
hereunder may be discontinued by either Party upon thirty (30) days written
notice to the other for repeated or willful violation of and/or a refusal to
comply with this Agreement in any material respect. The
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Party discontinuing will notify the appropriate federal and/or state regulatory
bodies concurrently with the notice to the other Party of the prospective
discontinuance.
9.5 Outage Repair Standard
In the event of an outage or trouble in any arrangement, facility, or
service being provided by a Party hereunder, the providing Party will follow
procedures for isolating and clearing the outage or trouble that are no less
favorable than those that apply to comparable arrangements, facilities, or
services being provided by the providing Party to itself or any other carrier
whose network is connected to that of the providing Party. Covad and BA may
agree to modify those procedures from time to time based on their experience
with comparable Interconnection arrangements with other carriers.
9.6 Notice of Changes -- Section 251(c)(5)
If a Party makes a change in the information necessary for the
transmission and routing of services using that Party's network, or any other
change in its network which it believes will materially affect the
inter-operability of its network with the other Party's network, the Party
making the change shall provide at least ninety (90) days advance written notice
of such change to the other Party. In addition to all other disclosure rules
required by Applicable Law, the Parties will comply with the Network Disclosure
rules adopted by the FCC in CC Docket No. 86-79 and those promulgated pursuant
to Section 251(c)(5) of the Act as may be amended from time to time.
9.7 Fraud
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.
10. JOINT NETWORK IMPLEMENTATION AND GROOMING PROCESS; INSTALLATION,
MAINTENANCE, TESTING AND REPAIR
10.1 Joint Network Implementation and Grooming Process
Upon request of either Party, the Parties shall jointly develop an
implementation and grooming process (the "Joint Grooming Process" or "Joint
Process") which may define and detail, inter alia,
(a) agreement on Physical Architecture consistent with the
guidelines defined in Section 4.0;
(b) standards to ensure that Interconnection trunk groups experience
a grade of service, availability and quality which is comparable to that
achieved on interoffice trunks within BA's network and in accord with all
appropriate relevant industry-accepted
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quality, reliability and availability standards;
(c) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of the trunk groups,
including, but not limited to, standards and procedures for notification
and discoveries of trunk disconnects;
(d) disaster recovery provision escalations;
(e) additional technically feasible and geographically relevant
IP(s) in a LATA as provided in Section 4.0 above; and
(f) such other matters as the Parties may agree, including, e.g.,
End Office to End Office high usage trunks as good engineering practices
may dictate.
Nothing in this subsection 10.1 shall affect either Party's obligations to
meet the milestone dates set forth in Schedule 3.0 hereof.
10.2 Installation, Maintenance, Testing and Repair
Unless otherwise agreed to by the Parties, Interconnection shall be
provided at parity. For purposes of this Agreement, a Party's obligation to
provide parity shall be in accordance with Applicable Laws, including relevant
Tariffs or service standards, regarding the establishment of Interconnectin
arrangements. . If either Party is unable to fulfill its obligations under this
subsection 10.2, it shall notify the other Party of its inability to do so and
will negotiate alternative intervals in good faith. The Parties agree that the
standards to be used by each Party for isolating and clearing any disconnections
and/or other outages or troubles shall be at parity.
10.3 Forecasting Requirements for Trunk Provisioning
Within ninety (90) days of executing this Agreement, Covad shall provide
BA a one (1) year traffic forecast. This initial forecast will provide the
amount of traffic to be delivered to BA over each of the Traffic Exchange Trunk
groups over the next four (4) quarters. The forecast shall be updated and
provided to BA on an as-needed but no less frequently than quarterly basis. All
forecasts shall include Access Carrier Terminal Location (ACTL), traffic type
(local/toll, operator services, 911, etc.), code (identifies trunk group), A
location/Z location (CLLI codes for Covad-IPs and BA-IPs), interface type (e.g.,
DS1), and trunks in service each year (cumulative).
10.3.1 Initial Forecasts/Trunking Requirements Because BA's trunking
requirements will, at least during an initial period, be dependent on the
customer segments and service segments within customer segments to whom Covad
decides to market its services, BA will be largely dependent on Covad to provide
accurate trunk forecasts for both inbound (from BA) and outbound (from Covad)
traffic. BA will, as an initial matter and upon request, provide the same number
of trunks to terminate local traffic to Covad as Covad provides to terminate
local traffic to BA, unless Covad expressly identifies particular situations
that are expected to produce traffic that is substantially skewed in either the
inbound or outbound direction, in which
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case BA will provide the number of trunks Covad suggests; provided, however,
that in all cases BA's provision of the forecasted number of trunks to Covad is
conditioned on the following: that such forecast is based on reasonable
engineering criteria, there are no capacity constraints, and Covad's previous
forecasts have proven to be reliable and accurate.
10.3.2 Monitoring and Adjusting Forecasts BA will, for ninety (90)
days, monitor traffic on each trunk group that it establishes at Covad's
suggestion or request pursuant to the procedures identified in subsection 10.3.1
above. At the end of such ninety (90) day period, BA may disconnect trunks that,
based on reasonable engineering criteria and capacity constraints, are not
warranted by the actual traffic volume experienced. If, after such initial
ninety (90) day period for a trunk group, BA determines that any trunks in the
trunk group in excess of four (4) DS-1s are not warranted by actual traffic
volumes (considering engineering criteria for busy hour CCIS and blocking
percentages), then BA may hold Covad financially responsible for the excess
facilities. In subsequent periods, BA may also monitor traffic for ninety (90)
days on additional trunk groups that Covad suggests or requests BA to establish.
If, after any such (90) day period, BA determines that any trunks in the trunk
group are not warranted by actual traffic volumes (considering engineering
criteria for busy hour CCIS and blocking percentages), then BA may hold Covad
financially responsible for the excess facilities. At any time during the
relevant ninety (90) day period, Covad may request that BA disconnect trunks to
meet a revised forecast. In such instances, BA may hold Covad financially
responsible for the disconnected trunks retroactive to the start of the ninety
(90) day period through the date such trunks are disconnected.
10.3.3 Reciprocal Responsibility To the extent that BA requires
Covad to install trunks for delivery of traffic to BA, Covad may apply the same
procedures with respect to BA's trunking requirements.
10.3.4 Future Forecasts/Trunking Requirement The Parties agree to
determine and develop reciprocal forecast requirements at the end of two (2)
years following the Service Activation Date (as set forth in Schedule 3.0).
10.4 Demand Management Forecasts
10.4.1 Covad will furnish BA with good faith demand management
forecasts to enable BA to effectively plan its network infrastructure and work
force levels to accomodate anticipated Covad demand for BA services and
products. Such forecasts will describe Covad's expected needs for service
volumes, and timeframes for service deployment, by wire center. Covad agrees to
provide such forecasts to BA thirty (30) days following the Effective Date, with
updates to follow every six months thereafter. BA agrees that such forecasts
shall be subject to the confidentiality provisions defined in subsection 29.4
below, and that such information will only be used by BA to provide
Interconnection, unbundled Network Elements and other services pursuant to this
Agreement.
11.0 UNBUNDLED ACCESS -- SECTION 251(c)(3)
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To the extent required of each Party by Section 251 of the Act, each Party
shall offer to the other Party nondiscriminatory access to Network Elements on
an unbundled basis at any technically feasible point. BA shall unbundle and
separately price and offer Network Elements such that Covad will be able to
lease and interconnect to whichever of the Network Elements Covad requires, and
to allow Covad to combine the BA-provided elements with any facilities and
services that Covad may itself provide, subject to Applicable Law. To the extent
permitted by Applicable Law, Covad may use one or more unbundled Network
Elements to provide to itself, its affiliates or its customers any feature,
function or service option that (1) such unbundled Network Element is presently
capable or becomes capable of providing in the BA network, (2) is described in
the applicable Bellcore and other industry standard technical references
identified herein and which the BA network has the capability of providing on
the Effective Date of this Agreement or becomes capable of providing during the
Term of this Agreement, or (3) may otherwise be agreed to by the Parties. Unless
otherwise required by Applicable Law, any combination by Covad of unbundled
Network Elements purchased from BA shall be through a Collocation arrangement
pursuant to Section 13.0 or applicable Tariff.
The unbundled Network Elements and rates specified in this Agreement shall
be made available by BA to Covad purusant to and to the extent required by
Applicable Law. Unless otherwise provided in this Agreement, the unbundled
Network Elements specified in this Agreement shall be made available by BA to
Covad for ordering and provisioning on the Effective Date. To the extent
required by Applicable Law, and notwithstanding anything to the contrary in this
Section, BA will offer Covad nondiscriminatory access to ADSL-2W, HDSL-2W, and
HDSL-4W ULLs to the extent that BA offers such ULLs to any Telecommunications
Carrier in the state of New Jersey. Nothing in the preceding sentence or
elsewhere in this Section is intended to obligate Bell Atlantic to provide
ADSL-2W, HDSL-2W and HDSL-4W ULLs as of a specific date (other than as may be
required by Applicable Law) or to constitute a waiver of any right Covad may
have to obtain such Loops. In the event that a change in Applicable Law requires
Bell Atlantic to provide ADSL-2W, HDSL-2W and HDSL-4W ULLs or other types of
DSL-compatible Loops, the Parties will negotiate in good faith a
non-discriminatory, commercially reasonable schedule for the availability of
each such type of Loop consistent with Applicable Law.
Covad and BA agree that the unbundled Network Elements identified in this
Section 11 are not exclusive and that pursuant to the BFR Process Covad may
identify and request that BA furnish additional or revised unbundled Network
Elements to the extent required under the Act. Additionally, if BA provides any
unbundled Network Element that is not identified in this Agreement to a
requesting Telecommunications Carrier, including a BA Affiliate, without
requiring such carrier to utilize the BFR process, then BA will make available
the same unbundled Network Element to Covad without Covad being required to use
the BFR Process.
At the time Covad provides BA with an order for a particular unbundled
Network Element other than the standard interfaces provided under this
Agreement, Covad may request any technically feasible network interface. Any
such requested network interface shall be subject to the approval of BA, which
approval shall not be unreasonably withheld or delayed. If Covad's request is
denied, BA shall provide Covad with written notice of said denial, including, if
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applicable, a specific description of why it is technically infeasible for BA to
comply with Covad's request.
For each appropriate unbundled Network Element, BA shall identify a
demarcation point and, if necessary and appropriate, access to such demarcation
point.
11.1 Available Network Elements
At the request of Covad, BA shall provide Covad access to the following
unbundled Network Elements in accordance with the requirements of the FCC
Regulations and Applicable Law:
11.1.1 Local Loops, as set forth in subsection 11.2;
11.1.2 The Network Interface Device, as set forth in subsection
11.3;
11.1.3 Switching Capability, as set forth in subsection 11.4;
11.1.4 Interoffice Transmission Facilities, as set forth in
subsection 11.5;
11.1.5 Signaling Links and Call-Related Databases, as set forth in
Section 17;
11.1.6 Operations Support Systems, as set forth in subsection 11.6;
11.1.7 Operator Services and Directory Assistance, as set forth in
subsection 19.4; and
11.1.8 such other Network Elements in accordance with subsection
11.8 below.
11.2 Unbundled Local Loop ("ULL") Transmission Types
Subject to subsection 11.7, BA shall allow Covad to access the following
unbundled Local Loop ("ULL") types unbundled from local switching and local
transport in accordance with the terms and conditions set forth in this
subsection 11.2.
11.2.1 "2-Wire Analog Voice Grade ULL" or "Analog 2W" which supports
analog transmission of 300-3000 Hz, loop start, loop reverse battery, ground
start, and no signaling and terminates at both the Central Office MDF (or
equivalent) and the Customer premises, in accordance with BA TR72565 and
TR72570.
11.2.2 "4-Wire Analog Voice Grade ULL" or "Analog 4W" provides an
effective 4-wire channel with 4-wire interfaces at each end that is suitable for
the transport of analog voice grade (nominal 300 to 3000 Hz) signals. The
service will operate with one of the following signaling types that may be
specified when the service is ordered: loop-start, ground-start,
loop-reverse-battery, duplex, and no signaling. The service is more fully
described in Bell Atlantic TR-
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72570.
11.2.3 "2-Wire ISDN Digital Grade ULL" or "BRI ISDN" (Premium Link)
which supports digital transmission of two 64 kbps bearer channels and one 16
kbps data channel ("2B+D") in accordance with BA TR72575. BRI ISDN is a 2B+D
Basic Rate Interface-Integrated Services Digital Network (BRI-ISDN) Loop which
will support equipment that meets national ISDN standards and conforms to ANSI
T1.601-1992 & T1E1.4 90-004R3.
11.2.4 "2-Wire ADSL-Compatible ULL" or "ADSL 2W" is a 2-wire,
non-loaded, twisted copper pair that meets revised resistance design or carrier
serving area design guidelines. An ADSL-2W is a transmission path that is
suitable for the transmission of up to a 6 mpbs digital signal downstream
(toward the Customer) and up to a 640 kbps digital signal upstream (away from
the Customer) while simultaneously carrying an analog voice signal, although
Covad is not restricted to those bandwidth specificaitons in providing its
services, provided that Covad complies with appropriate industry ADSL standards
and BA technical reference TR72575. An ADSL 2W terminates in a 2-wire electrical
interface at the Customer premises and at the Bell Atlantic Central Office
frame. 2-wire ADSL-compatible local loops are only available where existing
facilities can meet the non-loaded revised resistance design or carrier serving
area design guidelines. The upstream and downstream ADSL power spectral density
masks and dc line power limits referenced in BA TR 72575 must be met. 2-Wire
ADSL-compatible Local Loops are subject to availability.
11.2.5 "2-Wire HDSL-Compatible ULL" or "HDSL 2W" consisits of a
single 2-wire, non-loaded, twisted copper pair that meets the carrier serving
area design criteria. The HDSL power spectral density mask and dc line power
limits referenced in BA TR 72575 must be met. 2-Wire HDSL-compatible Local Loops
are subject to availability.
11.2.6 "4-Wire HDSL-Compatible ULL" or "HDSL 4W" consists of two
2-wire, non-loaded, twisted copper pairs that meet the carrier serving area
design criteria. The HDSL power spectral density mask and dc line power limits
referenced in BA TR 72575 must be met. 4-Wire HDSL-compatible Local Loops are
subject to availability.
11.2.7 "4-Wire DS1-compatible ULL" (Digital Grade Loop) is a
transmission path that supports the transmission of digital signals of up to a
maximum binary information rate of 1.544 mbps and terminates in a 4-Wire
electrical interface at the Customer premises and a Covad Collocation node at a
BA Central Office. A DS-1 digital Grade Loop is capable of operating in a full
duplex, time division (digital) multiplexing mode and provides transmission
capacity equivalent to 24 voice grade channels with associated signaling,
twenty-four 56 kbps digital channels when in band signaling is provided or
twenty-four 64 kbps channels with the selection of the Clear Channel signaling
option, as described in BA TR 72575. .
11.2.8 ULLs will be offered on the terms and conditions specified
herein and on such other terms in applicable Tariffs that are not inconsistent
with the terms and conditions set forth herein. BA shall make ULLs available to
Covad at the rates specified by the Board, as amended from time to time, subject
to the provisions of subsection 11.2.8.1 below.
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11.2.8.1 BA will make Analog 2-Wire ULLs, BRI ISDN ULLs, Analog 4W
ULLs, and 4-Wire DS-1-compatible ULLs available for purchase by Covad at any
time after the Effective Date.
11.2.9 Special Provisions Regarding ADSL and HDSL ULLs
At Covad's request, BA will provide the ADSL-2W, HDSL-2W and HDSL-4W
ULLs described in Sections 11.2.4, 11.2.5 and 11.2.6 of this Agreement after
successful completion of a Technical Trial, if necessary, and an Operational
Trial for each ULL type. A Technical Trial is required prior to an Operational
Trial; however, the Technical and/or Operational Trial may or may not involve
Covad and will not take place in New Jersey. Upon Covad's request, BA will
advise Covad as to the status of any technical and/or operational trial(s) being
conducted or already completed by BA in any state. BA may also waive the need
for the Operational Trial, and BA will then provide Covad, and Covad may
utilize, such ULL types, subject to the provisions of Section
11.2.9.3-11.2.9.3.5 below.
BA shall exercise its best efforts to utilize all technical data available
to it to satisfy its requirement to conduct a Technical Trial. BA shall share
with Covad, upon Covad's written request, the technical trial results related to
potential interference issues of any ADSL or HDSL technical trial that BA has
undertaken with another Telecommunications Carrier in its service territory, to
the extent that the information is not proprietary to the other
Telecommunications Carrier.
At any time prior to its making ADSL Loops generally available in New
Jersey, BA may request that Covad engage in an Operational or Technical Trial
and Covad will negotiate in good faith to reach agreement on the parameters of
such a trial. Covad shall be deemed to have satisfied its good faith obligation
under this section, inter alia, if it (a) reasonably determines that it lacks
sufficient resources to engage in the requested trial at the time of the
request, or (b) is or has been engaged in a BA user group or Board collaborative
process that is addressing or has successfully addressed the issue proposed to
be resolved by the requested test.
11.2.9.2 Rates
The ADSL-2W and HDSL-2W rates and any other charges specified in Exhibit A
as applicable to such ULLs shall apply during the Operational Trial and
thereafter on an interim basis for ADSL-2W and HDSL-2W ULLs. The HDSL-4W rate
and other charges specified in Exhibit A as applicable to such ULLs shall apply
during the Operational Trial and on an interim basis thereafter for HDSL-4W ULLs
. The interim rates identified in this subsection shall only apply until such
time as the Department approves rates for ADSL and HDSL-compatible ULLs that
comply with Section 252(d)(1) of the Act.
11.2.9.3 Interference and Impairment for ADSL-2W, HDSL-2W and HDSL-4W
ULLs.
After the successful completion of the Operational Trial and subject to
the BA published technical references and guidelines:
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11.2.9.3.1 Covad shall be able to order and BA shall provision ADSL-2W,
HDSL-2W and HDSL-4W ULL(s).
11.2.9.3.2. In its use of ADSL-2W, HDSL-2W and HDSL-4W ULLs, Covad shall
conform to the BA references and guidelines such that its provision of services
to its customers does not degrade or otherwise adversely affect the quality or
reliability of service to BA's customers, provided that BA is in compliance with
the provisions of this Section.
11.2.9.3.3 BA shall conform to its references and guidelines and shall not
introduce services on its network that would degrade or otherwise adversely
affect the quality or reliability of service to Covad's Customers, provided that
Covad is in compliance with the provisions of this Section.
11.2.9.3.4. If Covad determines that BA is deploying xDSL technology in a
manner that will or may interfere with Covad's provision of its services, Covad
shall notify BA in a reasonable manner and time frame. If BA determines that
Covad is using an ADSL or HDSL Compatible ULL in a manner that will or may
interfere with or impair BA's provision of its services, BA shall notify Covad
in a reasonable manner and time frame.
11.2.9.3.5. The Parties agree to work cooperatively to resolve
interference or other impairment issues. In the event a cooprative resolution
cannot be reached, the Dispute Resolution procedures for this Agreement shall
apply.
11.3 Network Interface Device
At the request of Covad, BA shall permit Covad to connect a carrier's loop
to the Inside Wiring of a Customer's premises through BA's NID in the manner set
forth in Schedule 11.3. Covad must establish the connection to BA's NID through
an adjoining NID deployed by Covad. The Customer shall be responsible for
resolving any conflicts between service providers for access to Customer's
premises and Inside Wire.
11.4 Unbundled Switching Elements
BA shall make available to Covad the local Switching Element and tandem
Switching Element unbundled from transport, local loop transmission, or other
services, as more fully described in Schedule 11.4, in accordance with the terms
and conditions of and at the rates specified in BA's applicable Tariff as
amended from time to time. In the event that there is no applicable Tariff in
New Jersey, the Parties agree to negotiate the terms, conditions, and rates for
the provision of unbundled switching elements upon Covad's request..
11.5 Interoffice Transmission Facilities
11.5.1 BA will provide Covad access to unbundled interoffice
transmission facilities as set forth herein between its Central Offices.
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11.5.2 BA will provide Covad access to unbundled shared IOF
transport in conjunction with Covad's purchase of unbundled local switching.
Unbundled shared IOF transport provides Covad access to BA's inter-office
transport facilities (i.e. existing route(s) that are used within the Bell
Atlantic network) which carry transmission from several different carriers,
including BA.
11.5.3 BA will provide Covad access to unbundled dedicated IOF
transport. "Dedicated Transport" is an interoffice transmission path of fixed
capacity between designated locations to which Covad is granted exclusive use.
Access to Dedicated Transport is from Covad's switching office or from its
Collocation arrangement established at BA's Central Office.
11.5.4 Dedicated Transport will be paid for by Covad at rates set
forth in Exhibit A.
11.5.5 BA will provide access to unbundled dedicated IOF transport
between: 1) Telecommunications Carrier switching office, 2) CLEC Collocation
Arrangements, and 3) a CLEC Collocation arrangement and a Telecommunications
Carrier switching office. When unbundled dedicated IOF transport terminates at a
Bell Atlantic Central Office, it must terminate at a CLEC Collocation
arrangement.
11.5.6 BA will provide unbundled dedicated IOF transport at the
following transmission speeds: DS-1 and DS-3. For other transmission speed
requests (i.e. OC-n) Covad shall submit a Bona Fide Request (BFR).
11.5.7 In addition to its obligations purusant to this Section 11.4,
BA shall provide Covad unbundled IOF Transport, unbundled from switching, and
other services as required by Applicable Law, at the rates, terms and conditions
set forth in applicable Tariffs, as amended from time to time.
11.6 Operations Support Systems
BA shall provide Covad with nondiscriminatory access to OSS functions for
pre-ordering, ordering, provisioning, maintenance and repair, and billing as
soon as required by Applicable Law. Once BA has developed a pre-order loop
qualification database for xDSL-compatible ULLs in New Jersey, and either (i)
makes the database available to other Telecommunications Carriers, or (ii)
utilizes the database in its own retail operations on a routine basis, it shall
provide Covad nondiscriminatory access to such database, at rates and charges to
be determined. Nothing in this subsection shall restrict Covad's ability to
obtain access to any operational support systems ("OSS") that BA makes generally
available to any other Telecommunications Carrier in the state. .
11.7 Limitations on Unbundled Access
11.7.1 BA shall only be required to provide ULLs and Ports where
such Loops and Ports are available.
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11.7.2 Covad shall access BA's unbundled Network Elements
specifically identified in this Agreement via Collocation in accordance with
Section 13 at the BA Wire Center where those elements exist or other mutually
agreed upon means of Interconnection, and each ULL or Port shall, in the case of
Collocation, be delivered to Covad's Collocation by means of a Cross Connection
or Strapping, at the rates set forth in Exhibit A, or via such other alternative
arrangement(s) as the Parties may mutually agree, to the extent required by
Applicable Law.
11.7.3 BA shall provide Covad access to its Unbundled Local Loops at
each of BA's Wire Centers for loops terminating in that Wire Center. In
addition, if Covad orders one or more ULL provisioned via Integrated Digital
Loop Carrier or Remote Switching technology deployed as a ULL concentrator, BA
shall, where available and in accordance with applicable technical references,
move the requested ULL(s) to a spare, existing physical ULL at no additional
charge to Covad. If, however, no spare physical ULL is available, BA shall
within three (3) business days of Covad's request notify Covad of the lack of
available facilities. In such event, BA shall offer Covad other options as may
be available, which shall, where feasible, include the placement of a suitable
digital line card at the remote terminal, provided that Covad shall agree to pay
the additional costs incurred by BA in making such other options available to
Covad. The additional cost of such other specific option, and the basis for
allocating such additional cost, will be determined at the time the option is
made available. Covad may also, at its discretion, make a Network Element Bona
Fide Request to BA to provide the unbundled Local Loop through the
demultiplexing of the integrated digitized ULL(s). Covad may also make a Network
Element Bona fide Request for access to Unbundled Local Loops at the ULL
concentration site point. Alternatively, Covad may choose to avail itself of
BA's Special Construction services, as set forth in Exhibit A, for the
provisioning of such ULL(s). Notwithstanding anything to the contrary in this
Agreement, standard provisioning intervals shall not apply to ULL provided under
this subsection 11.7.3.
11.7.4 If Covad orders a ULL type and the distance requested on such
ULL exceeds the transmission characteristics in applicable technical references,
as specified below, distance extensions may be required and additional rates and
charges shall apply as set forth in Exhibit A or applicable Tariffs.
Loop Type Technical Reference/Limitation
ISDN Bellcore TA-NWT-000393
HDSL 2W T1E1 Technical Report Number 28
HDSL 4W T1E1 Technical Report Number 28
ADSL 2W ANSI T1.413 1995 Specification
11.7.5 BA will exercise all reasonable efforts to ensure that the
service intervals that apply to ULLs and unbundled Ports are comparable to the
(i) repair intervals that apply to the bundled dial tone line service, and (ii)
installation intervals that apply to other BA-coordinated services, except as
provided in Section 27. Although BA will make commercially reasonable efforts to
ensure that ULLs and unbundled ports meet specified or agreed-upon technical
standards, BA makes no warranty that the ULLs or unbundled Ports supplied by BA
hereunder will be compatible with the services Covad may offer to its Customers
if they are used in a manner
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not contemplated by the Parties.
11.8 Availability of Other Network Elements on an Unbundled Basis
11.8.1 BA shall, upon request of Covad and to the extent required by
Applicable Law, provide to Covad nondiscriminatory access to its Network
Elements on an unbundled basis for the provision of Covad's Telecommunications
Service. Any request by Covad for access to an BA Network Element that is not
already available shall be treated as a Network Element Bona Fide Request. Covad
shall provide BA access to its Network Elements as mutually agreed by the
Parties or as required by Applicable Laws.
11.8.2 A Network Element obtained by one Party from the other Party
under this subsection 11.8 may be used in combination with the facilities of the
requesting Party only to provide a Telecommunications Service, including
obtaining billing and collection, transmission, and routing of the
Telecommunications Service.
11.8.3 Notwithstanding anything to the contrary in this subsection
11.8, a Party shall not be required to provide a proprietary Network Element to
the other Party under this subsection 11.8 except as required by the Board or
FCC.
11.8.4 BA will, on a semi-annual basis, notify Covad of the
availability of new unbundled Network Elements.
11.9 Provisioning of Unbundled Local Loops
The following coordination procedures shall apply for conversions of
"live" Telephone Exchange Services to ULLs. These and other mutually agreed-upon
procedures shall apply reciprocally for the "live" cutover of Customers from BA
to Covad and from Covad to BA.
11.9.1 Upon request by Covad, BA will apply the following
coordination procedures to conversions of live Telephone Exchange Services to
ULLs. Coordinated cutover charges will apply to any such arrangement. If Covad
elects not to request coordinated cutover, BA will process Covad's request in
the normal course and subject to the normal installation intervals.
11.9.2 Covad shall request ULLs from BA by delivering to BA a valid
electronic transmittal service order (when available) or another mutually
agreed-upon type of service order such as a Loop/NID Time and Material form.
Such service order shall be provided in accordance with industry format and
specifications or such format and specifications as may be agreed to by the
Parties. Within forty-eight (48) hours of BA's receipt of such valid service
order, BA shall provide Covad the firm order commitment date according to the
Performance Interval Dates set forth in Schedule 27 by which the ULLs covered by
such service order will be installed.
11.9.3 On each ULL order in a Wire Center, Covad and BA will agree
on a cutover time at least forty eight (48) hours before that cutover time. The
cutover time will be
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defined as a 15-30 minute window within which both the Covad and BA personnel
will make telephone contact to complete the cutover.
11.9.4 Within the appointed 15-30 minute cutover time, the BA person
will call the Covad person designated to coordinate cutover work.
11.9.5 If Covad requires a change in scheduling, it must contact BA
to issue a supplement to the original order. The negotiations process to
determine the date and time of cutover will then be reinitiated as usual.
11.9.6 If the Covad person is not ready within the appointed
interval and if Covad had not called to reschedule the work at least two (2)
hours prior to the start of the interval, Covad shall be liable for the
non-recurring charge for the unbundled elements scheduled for the missed
appointment. In addition, non-recurring charges for the rescheduled appointment
will apply.
11.9.7 If BA is not available or not ready at any time during the
appointed 15-30 minute interval, Covad and BA will reschedule and BA will waive
the non-recurring charge for the unbundled elements originally scheduled for
that interval, whenever those unbundled elements are actually cut over pursuant
to an agreed-upon rescheduling.
11.9.8 The standard time expected from disconnection of a live
Telephone Exchange Service to the connection of the unbundled element to the
Covad Collocation Arrangement is fifteen (15) minutes per voice grade circuit
for all orders consisting of twenty (20) ULLs or less. Orders involving more
than twenty (20) ULLs will require a negotiated interval.
11.9.9 If unusual or unexpected circumstances prolong or extend the
time required to accomplish the coordinated cutover, the Party responsible for
such circumstances is responsible for the reasonable labor charges of the other
Party. Delays caused by the Customer are the responsibility of Covad.
11.9.10 If Covad has ordered INP as part of an ULL installation, BA
will coordinate implementation of INP with the ULL installation. BA's provision
of unbundled elements shall in all cases be subject to the availability of
suitable facilities, to the extent permitted by Section 251 of the Act.
11.9.11 If Covad requests or approves a BA technician to perform
services on the network side of the Rate Demarcation Point beyond normal
installation of the ULLs covered by the service order, BA may charge Covad for
any additional and reasonable labor charges to perform such services. BA may
also charge Covad its normal overtime rates for services Covad requests to be
performed outside of BA's normal business hours (M-F, 9 am to 5 pm, E.S.T.).
11.10 Maintenance of Unbundled Local Loops
BA has the obligation to maintain and repair unbundled Network Elements
provided to
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Covad on a nondiscriminatory basis and at parity with the maintenance and repair
services it provides to itself and other carriers. If (i) Covad reports to BA a
Customer trouble, (ii) Covad requests a dispatch, (iii) BA dispatches a
technician, and (iv) such trouble was not caused by BA facilities or equipment
in whole or in part, then Covad shall pay BA a charge set forth in Exhibit A for
time associated with said dispatch.. In addition, this charge also applies when
the Customer contact as designated by Covad is not available at the appointed
time. Covad accepts responsibility for initial trouble isolation and providing
BA with appropriate dispatch information based on its test results. If, as the
result of Covad instructions, BA is erroneously requested to dispatch within a
BA Central Office or to a POT Bay ("dispatch in"), BA may levy on Covad an
appropriate charge. If, as the result of Covad instructions, BA is erroneously
requested to dispatch outside a BA Central Office or to a POT Bay ("dispatch
out"), BA may levy on Covad an appropriate charge. BA agrees to respond to Covad
trouble reports on a non-discriminatory basis consistent with the manner in
which it provides service to its own retail customers or to any other similarly
situated Telecommunications Carrier.However, if BA imposes any charge on Covad
under this subsection 11.8 and the same trouble recurs and the cause in both
instances is determined to be in BA's facilities, then BA shall refund to Covad
all charges applicable to that trouble that were erroneously levied on and paid
by Covad to BA plus interest at the rate applicable to refunds of overpayments
pursuant to BA's Tariffs.
11.11 Other Terms and Conditions Including Rates and Charges
11.11.1 ULLs and other Network Elements will be offered on the terms
and conditions, including rates and charges, specified herein and on such other
terms as stated in applicable Tariffs, as amended from time to time, that are
not inconsistent with the terms and conditions set forth herein.
11.11.2 In the event that the Board has not adopted permanent rates
for services, ULLs, and other Network Elements consistent with the requirements
of the FCC regulations, BA shall charge the non-recurring and monthly recurring
rates for ULLs and other Network Elements set forth in Exhibit A as interim
rates until such time as the Department adopts permanent rates consistent with
the requirements of the FCC Regulations. Such permanent rates shall be applied
in the manner described in Exhibit A and subsection 20.1.2 below.
11.11.3 Monthly ULL Charges.
11.11.3.1 "Current Monthly Rates" for ULLs are set forth in Exhibit
A.
11.11.3.2 Nothing in this Agreement shall be construed to imply that
Covad agrees that the Current Monthly Rate referenced in Section 11.11.3.1 is a
reasonable or appropriate charge for ULLs.
12.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
12.1 Availability of Retail Rates for Resale
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Each Party shall make available its Telecommunications Services for resale
at the retail rates set forth in its Tariffs to the other Party in accordance
with Section 251(b)(1) of the Act. In addition, BA and Covad shall each allow
the resale by the other of all Telecommunications Services that are offered
primarily or entirely to other Telecommunications Carriers (e.g., Switched and
special Exchange Access Services) at the rates already applicable to such
services. BA shall also allow the resale by Covad of such other
non-Telecommunications Services as BA, in its sole discretion, determines to
provide for resale under terms and conditions to be agreed to by the Parties.
12.2 Availability of Wholesale Rates for Resale
BA shall make available to Covad for resale all Telecommunications
Services that BA provides at retail to Customers that are not Telecommunications
Carriers at the retail prices set forth in BA's Tariffs less the wholesale
discount set forth in Exhibit A in accordance with Section 251(c)(4) of the Act.
Such services shall be provided in accordance with the terms of the applicable
retail services Tariff(s), including, without limitation, user or user group
restrictions, as the case may be, subject to the requirement that such
restrictions shall in all cases comply with the requirements of Section 251 of
the Act and the FCC Regulations regarding restrictions on resale. The Parties
may also agree to negotiate term and/or volume discounts for resold services.
12.3 Availability of Support Services and Branding for Resale
BA shall make available to Covad the various support services for resale
described in Schedule 12.3 hereto in accordance with the terms set forth
therein. In addition, to the extent required by Applicable Law, upon request by
Covad and at prices, terms and conditions to be negotiated by Covad and BA, BA
shall provide BA Retail Telecommunications Services (as defined in Schedule
12.3) that are identified by Covad's trade name, or that are not identified by
trade name, trademark or service mark.
12.4 Additional Terms Governing Resale and Use of BA Services
12.4.1 Covad shall comply with the provisions of this Agreement
(including, but not limited to, all applicable BA Tariffs) regarding resale or
use of BA services. In addition, Covad shall undertake in good faith to ensure
that its Customers comply with the provisions of BA's Tariffs applicable to
their use of BA's Telecommunications Services.
12.4.2 Without in any way limiting subsection 12.4.1, Covad shall
not resell (a) residential service to business or other nonresidential Customers
of Covad, (b) Lifeline or other means-tested service offerings, or grandfathered
service offerings, to persons not eligible to subscribe to such service
offerings from BA, or (c) any other BA service in violation of any user or user
group restriction that may be contained in the BA Tariff applicable to such
service to the extent such restriction is not prohibited by Applicable Laws. In
addition, Covad shall be subject to the same limitations that BA's own retail
Customers may be subject to with respect to any Telecommunications Service that
BA may, in its discretion and to the extent not prohibited by Applicable Law,
discontinue offering.
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12.4.3 BA shall not be obligated to offer to Covad at a wholesale
discount Telecommunications Services that BA offers at a special promotional
rate if such promotions are for a limited duration of ninety (90) days or less.
12.4.4 Upon request by BA, Covad shall provide to BA adequate
assurance of payment of charges due to BA in connection with Covad's purchase of
BA services for resale. Assurance of payment of charges may be requested by BA:
if Covad (a) in BA's reasonable judgment, at the Effective Date or at any time
thereafter, is unable to show itself to be creditworthy; (b) in BA's reasonable
judgment, at the Effective Date or at any time thereafter, is not creditworthy;
or, (c) fails to timely pay a bill rendered to Covad by BA. Unless otherwise
agreed by the Parties, the assurance of payment shall be in the form of a cash
deposit and shall be in an amount equal to the charges for BA services that
Covad may reasonably be expected to incur during a period of two (2) months. BA
may at any time use the deposit or other assurance of payment to pay amounts due
from Covad.
12.4.5 Covad shall not be eligible to participate in any BA plan or
program under which BA end user retail Customers may obtain products or
merchandise, or services which are not Bell Atlantic Retail Telecommunications
Services, in return for trying, agreeing to purchase, purchasing, or using Bell
Atlantic Retail Telecommunications Services.
12.4.6 BA may impose additional restrictions on Covad's resale of
BA's retail Telecommunications Services to the extent permitted by Applicable
Laws.
13.0 COLLOCATION -- SECTION 251(c)(6)
13.1 BA shall offer to Covad Physical or Virtual Collocation of equipment
necessary for Interconnection (pursuant to Section 4.0) or for access to
unbundled Network Elements (pursuant to Section 11.0), pursuant to the terms and
conditions in this Section and BA's approved Tariffs on file with the FCC and
the Board, except that BA may offer only Virtual Collocation if BA demonstrates
to the Board that Physical Collocation as described in this Agreement is not
practical for technical reasons or because of space limitations, as provided in
Section 251(c)(6) of the Act. BA shall provide Collocation solely for the
purpose of Interconnection with facilities or services of BA or access to
unbundled Network Elements of BA, except as otherwise mutually agreed to in
writing by the Parties or as required by the FCC or the Board, subject to
applicable federal and state Tariffs and license agreements.
13.2 BA shall offer, upon request by Covad and to the extent technically
feasible, Physical Collocation arrangements where the dedicated space may be a
minimum of approximately twenty-five (25) square feet, at the appropriate cost.
In the event there is no existing Tariff for this arrangement, the Parties shall
expeditiously and in good faith negotiate interim terms for this type of
physical Collocation. Such arrangements shall be made pursuant to applicable
Tariff(s) when such Tariff(s) are approved.
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13.3 BA will provide Covad with Physical Collocation as specified in
Sections 13.1 and 13.2 above; provided however, that upon written request by
Covad, Bell Atlantic will not enclose by a cage or other means Covad's equipment
that is placed within the secured and physically separated area set aside by
Bell Atlantic within a Central Office for the purposes of Collocation set forth
in 13.1 above and pursuant to any applicable BA Collocation Tariff(s). In the
event that there is no existing Tariff for this entire arrangement, the Parties
shall expeditiously and in good faith negotiate interim terms for this type of
physical Collocation. This entire arrangement shall be made pursuant to
applicable Tariff(s) when such Tariff(s) are approved.
13.4 Collocation shall be made available to Covad on BA Premises as
required by Applicable Law and in a manner that is at parity to the priorities
that BA provides to persons who are permitted to collocate, including BA's
Affiliates that are required to collocate. Pursuant to applicable Tariff, or to
Schedule 13.4 until such time as an approved Tariff is effective, BA will
provide Covad with shared cage Collocation, in which Covad can collocate
equipment in another collocating entity's physical Collocation arrangement. Upon
request by Covad for shared cage Collocation, the Parties will negotiate
expeditiously and in good faith to resolve any operational, provisioning and
billing issues that are not covered by an applicable Tariff or Schedule 13.4.
Notwithstanding any other provision of this Agreement, BA will provide Covad
with alternative Collocation arrangements (including "cage-less" physical
Collocation) to the extent that such arrangements are required by Applicable
Law, and may consider other alternative arrangements proposed by Covad. BA shall
provide Collocation at additional locations for placement of equipment necessary
for Interconnection or for access to unbundled Network Elementsto the extent
required by Applicable Law.
13.5 In comport with Applicable Law, Covad reserves the right to have
Covad's dedicated (but not common) Collocation space constructed by a third
party sub-contractor in accordance with BA engineering specifications utilizing
a BA-approved sub-contractor. Request by Covad for approval of additional
sub-contractors will bot be unreasonably withheld.
13.6 Covad may collocate Digital Subscriber Line Access Multiplexers
("DSLAM"s) in its collocated space, subject to the requirements of this Section.
Covad may install any equipment allowed by Law, including Remote Switching
Modules ("RSM"s) and DSLAMs in its Collocation space unless and until the FCC,
the Board, or a court of competent jurisdiction determines that incumbent LECs
need not permit Collocation of such equipment, in which event BA must allow
Covad a reasonable transition period for removing, replacing or modifying such
equipment, or for otherwise negotiating a mutually satisfactory alternative
arrangement with BA. Covad agrees that any such equipment must comply with
National Equipment Building System ("NEBS") Level III. Covad agrees that such
RSM or DSLAM equipment as may be collocated at BA premises will not be used to
provide switching functionality unless such use is specifically approved by the
Board..
BA will permit Covad to install, maintain, repair and use ATM
cross-connect equipment in BA Premises where Covad has established a physical
Collocation arrangement, provided that such equipment will be used to support
pre-defined point-to-point Private Virtual Connections ("PVC"s) between the
Premises-collocated equipment and other points off BA's
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network. The ATM cross-connect equipment shall be used exclusively for
aggregating and transporting traffic and will not under any circumstances be
used for dynamic routing or switching of traffic. BA shall have the right at its
own expense to audit Covad's use of such collocated equipment, and if it finds
that Covad is using the equipment for switching of Local Traffic or other uses
prohibited hereunder, BA may either invoke the dispute resolution provisions of
this Agreement, or notify Covad in writing and Covad shall then remove such
equipment from BA's Premises.
13.7 Covad agrees to offer to BA Collocation of equipment for purposes of
Interconnection (pursuant to Section 4.0) on a non-discriminatory basis and at
comparable rates, terms and conditions as Covad may provide to other third
parties. Covad shall provide such Collocation subject to applicable Tariffs.
13.8 In the course of implementation of Collocation project, BA shall::
(a) identify the Collocation project manager assigned to the project;
(b) develop a written comprehensive "critical tasks" timeline detailing
the work (and relative sequence thereof) that is to be performed by each Party
or jointly by both Parties; and
(c) provide Covad with the relevant engineering requirements.
13.9 The Collocating Party shall purchase Cross Connection to services or
facilities as described in applicable Tariffs or this Agreement. Transport
facilities may be leased from BA under terms and conditions set forth in this
Agreement or applicable Tariffs.
13.10 Except in the event that Covad changes its Application for
Collocation requirements after they have been accepted by BA and such changes
would, in the reasonable judgement of BA, cause a construction or other delay
which would affect the delivery of collocated space, or in the event of "Special
Circumstances" detailed by BA for Covad, and subject to the circumstances
contemplated by Section 29.3 of this Agreement, the collocated space shall be
constructed, made ready, and delivered by BA to Covad within the interval
specified in the applicable Tariff following the date of receipt by BA of
Covad's Application for Collocation and the applicable BA Tariff fee(s).
Covad and BA also agree that a three (3) week extension will apply when
"Special Circumstances" are identified at the time of a "space walk-through" or
later in the Collocation process, provided that BA notifies Covad within two (2)
business days of the discovery of such "Special Circumstances". For the purposes
of this Section 13.0, the term "Special Circumstances" shall mean special,
unusual, or unanticipated conditions or circumstances arising out of or required
by Covad's Application for Collocation (excluding changes made by Covad to such
Application after such Application has been accepted by BA) which could, in the
reasonable judgement of BA, cause a construction or other delay in the delivery
of collocated space, including, by way of illustration and without limitation,
major construction obstacles, asbestos abatement procedures or uncustomary
modifications to the Collocation premises.
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In those instances where Covad changes its requirements which will affect
the delivery of collocated space, or where otherwise extraordinary circumstances
exist, the interval for construction and delivery of the collocated space shall
be extended to reflect those changes upon mutual agreement of the Parties.
13.11 Collocation shall occur under the terms of each Party's applicable
and available Tariffs, subject to the provisons of this Section 13, and pursuant
to Applicable Law.
13.12 Cage-to-Cage Interconnection
13.12.1 Cage-to-Cage Interconnection provides for the dedicated
connection between a Covad Collocation arrangement established pursuant to
applicable Tariffs and/or license agreements at a BA Premises and the
Collocation arrangement of a third party carrier that maintains a Collocation
arrangement at the same premises, so long as the collocated equipment of both
Collocation arrangements is used for Interconnection with BA or access to BA's
unbundled Network Elements. Covad shall purchase Cage-to-Cage Interconnection
using Collocation Cross Connections to services and facilities as described in
applicable Tariffs.
13.12.2 The carrier that requests the Collocation Cross Connections
shall be the customer of record for both ends of the service in terms of
ordering, provisioning, maintenance, and billing. Alternative arrangements may
be utilized if agreed upon by all three parties. Rates and charges for
Collocation Cross Connections are stated in Exhibit A.
SECTION 251(b) PROVISIONS
14.0 NUMBER PORTABILITY -- SECTION 251(b)(2)
14.1 Scope
14.1.1 The Parties shall provide Local Telephone Number Portability
("LTNP") on a reciprocal basis to each other to the extent technically feasible,
and in accordance with rules and regulations as from time to time prescribed by
the FCC and/or the Board.
14.1.2 Until Permanent Number Portability is implemented by the
industry pursuant to regulations issued by the FCC and/or the Board, the Parties
agree to reciprocally provide Interim Number Portability to each other at the
prices listed in Exhibit A. Such agreed-upon prices for INP are not intended to
reflect either Party's views on the cost recovery mechanisms being considered by
the FCC in its current proceeding on number portability issues.
14.1.3 Upon the agreement of the Parties or issuance of applicable
FCC and/or Board order(s) or regulations mandating the adoption of a Permanent
Number Portability ("PNP") arrangement, BA and Covad will commence migration
from INP to the agreed-upon or mandated PNP arrangement as quickly as
practically possible while minimizing interruption or
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degradation of service to their respective Customers. Once PNP is implemented,
either Party may withdraw, at any time and at its sole discretion, its INP
offerings, subject to advance notice to the other Party and coordination to
allow the seamless and transparent conversion of INP Customer numbers to PNP.
Upon implementation of PNP pursuant to FCC or Board regulation, both Parties
agree to conform and provide such PNP. To the extent PNP rates or cost recovery
mechanisms are not established by the applicable FCC or Board order or
regulation mandating the adoption of PNP, the Parties will negotiate in good
faith the charges or cost recovery mechanism for PNP service at such time as a
PNP arrangement is adopted by the Parties.
14.1.4 Under either an INP or PNP arrangement, Covad and BA will
implement a process to coordinate LTNP cutovers with ULL conversions (as
described in Section 11 of this Agreement).
14.2 Procedures for Providing INP Through Remote Call Forwarding
Covad and BA will provide INP through Remote Call Forwarding as follows:
14.2.1 A Customer of one Party ("Party A") elects to become a
Customer of the other Party ("Party B"). The Customer elects to utilize the
original telephone number(s) corresponding to the Telephone Exchange Service(s)
it previously received from Party A, in conjunction with the Telephone Exchange
Service(s) it will now receive from Party B. Upon receipt of a service order
from Party B requesting assignment of the number(s) to Party B, Party A will
implement an arrangement whereby all calls to the original telephone number(s)
will be forwarded to a new telephone number(s) designated by Party B, only
within the same Exchange Area as the original telephone number(s). Party A will
route the forwarded traffic to Party B over the appropriate traffic exchange
trunk groups.
14.2.2 Party B will become the customer of record for the original
Party A telephone number(s) subject to the INP arrangements. Upon the execution
of an appropriate billing services agreement or such other mutually agreed-upon
arrangement between the Parties, Party A shall use its reasonable efforts to
consolidate into as few billing statements as possible collect, calling card,
and third-number billed calls associated with the number(s), with sub-account
detail by retained number.
14.2.3 Party A will update its Line Information Database ("LIDB")
listings for retained numbers, and load calling card information associated with
those forwarded numbers as directed by Party B. In addition, Party A will update
the retained numbers in the LIDB with the screening options provided by Party B
on a per order basis. Party B shall determine which of the screening options
offered by Party A should apply to the Party B Customer account.
14.2.4 Party B will outpulse the telephone number to which the call
has been forwarded to the 911 Tandem Office. Party B will also provide the 911
database with both the forwarded number and the directory number, as well as the
appropriate address information of the Customer.
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14.2.5 Party A shall be permitted to cancel INP arrangements and
reassign the telephone number(s) upon (i) receipt of notification from Party B
or a third party that is authorized to act on behalf of the Customer or (ii)
authorization from the Customer itself. The Parties agree to work cooperatively
to develop procedures or adopt industry standards or practices concerning the
initiation and termination of INP service in a multi-carrier environment.
14.2.6 The INP service offered herein shall not initially apply to
NXX Codes 555, 915, 950 (as applicable), or 976, or for Feature Group A or coin
telephone service. Upon request of either Party, provision of INP to these
services will be mutually negotiated between the parties and provided to the
extent feasible under negotiated rates, terms and conditions. INP shall not
apply for any arrangement that would render the forwarded call Toll Traffic.
14.2.7 The ordering of INP arrangements and the exchange of
screening information shall be made in accordance with industry-accepted (e.g.
OBF developed) format and specifications to the extent they have been
implemented by the Parties.
14.3 Other Interim Number Portability Options
14.3.1 Procedures for Providing INP Through Direct Inward Dial
Trunks (Flex-DID). Either Party may also request INP through Direct Inward Dial
Trunks pursuant to any applicable Tariffs.
14.3.2 Procedures for Providing INP Through Route Indexing. Upon
mutual agreement, BA will deploy a Route Index arrangement which combines direct
trunks, provisioned between BA's and Covad's End Offices, with Trunk Side
routing translations and full functionality for those CLASS services deployed in
the specific BA switch. Under this arrangement, inbound calls to a ported number
will be pointed at a route index that sends the call to a dedicated trunk group,
built as a direct final, for the sole purpose of facilitating completion of
calls to a ported bumber. BA will coordinate with Covad to provide this solution
in a mutually agreeable an administratively manageable manner (e.g. NXX level)
so as to minimize switch resource utilization for both Parties.
14.4 Procedures for Providing LTNP Through Full NXX Code Migration
Where either Party has activated an entire NXX for a single Customer, or
activated at least eighty percent (80%) of an NXX for a single Customer, with
the remaining numbers in that NXX either reserved for future use by that
Customer or otherwise unused, if such Customer chooses to receive Telephone
Exchange 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 be accomplished with appropriate coordination
between the Parties and subject to appropriate industry lead-times for movements
of NXXs from one switch to another. Neither Party shall charge the other in
connection with this coordinated transfer.
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14.5 Receipt of Terminating Compensation on Traffic to INP'ed Numbers
The Parties agree in principle that, under the INP arrangements described
in subsections 14.2 and 14.3 above, terminating compensation on calls to INP'ed
numbers should be received by each Customer's chosen LEC as if each call to the
Customer had been originally addressed by the caller to a telephone number
bearing an NPA-NXX directly assigned to the Customer's chosen LEC. In order to
accomplish this objective where INP is employed, the Parties shall utilize the
process set forth in this subsection 14.5 whereby terminating compensation on
calls subject to INP will be passed from the Party (the "Performing Party")
which performs the INP to the other Party (the "Receiving Party") for whose
Customer the INP is provided.
14.5.1 The Parties shall individually and collectively make best
efforts to track and quantify INP traffic between their networks based on the
CPN of each call by identifying CPNs which are INP'ed numbers. The Receiving
Party shall charge the Performing Party for each minute of INP traffic at the
INP Traffic Rate specified in subsection 14.5.3 in lieu of any other
compensation charges for terminating such traffic, except as provided in
subsection 14.5.2.
14.5.2 By the Interconnection Activation Date in each LATA, the
Parties shall jointly estimate for the prospective six months, based on historic
data of all traffic in the LATA, the percentages of such traffic that, if dialed
to telephone numbers bearing NPA-NXXs directly assigned to a Receiving Party (as
opposed to the INP'ed number), would have been subject to (i) Reciprocal
Compensation ("Recip Traffic"), (ii) appropriate intrastate FGD charges ("Intra
Traffic"), (iii) interstate FGD charges ("Inter Traffic"), or (iv) handling as
Transit Traffic. On the date which is six (6) months after the Interconnection
Activation Date, and thereafter on each succeeding six month anniversary of such
Interconnection Activation Date, the Parties shall establish new INP traffic
percentages to be applied in the prospective six (6) month period, based on the
Performing Party's choice of actual INP traffic percentages from the preceding
six (6) month period or historic data of all traffic in the LATA.
14.5.3 The INP Traffic Rate shall be equal to the sum of:
(Recip Traffic percentage times the Reciprocal Compensation Rate set forth in
Exhibit A)
plus
(Intra Traffic percentage times Receiving Party's effective intrastate FGD
rates)
plus
(Inter Traffic percentage times Receiving Party's effective interstate FGD
rates).
The Receiving Party shall compensate the Performing Party for its billing
and collection of charges for the intrastate and interstate FGD access services
provided by the Receiving Party to a third party through the greater of (i) the
difference between the intrastate and interstate FGD rates of the Receiving
Party and the Performing Party, or (ii) three percent (3%) of the Performing
Party's intrastate and interstate FGD revenues for INP'ed numbers. Under no
circumstances shall the Performing Party, in performing the billing and
collections service on behalf of the Receiving Party, be obligated to pass
through more than ninety seven percent (97%) of its FGD access charge to the
Receiving Party in connection with any given INP'ed call.
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14.6 Recovery of INP Costs Pursuant to FCC Order and Rulemaking
Notwithstanding anything to the contrary contained in this Section 14, in
light of the FCC's First Report and Order and Further Notice of Proposed
Rulemaking, adopted June 27, 1996, in CC Docket 95-116 (the "Order"), the
Parties stipulate and agree as follows:
14.6.1 The rates listed in Exhibit A for the provision of INP are
appropriate amounts that each Party providing INP service should recover for the
provision of those INP functionalities in BA's operating territory on an interim
basis until the Board mandates an alternative cost recovery mechanism for the
provision of INP. For the INP functions it provides, each Party should be
allowed to recover these amounts in a manner consistent with any final FCC
and/or Board order on INP cost recovery (such as a state-wide fund contributed
to by all telecommunications carriers).
14.6.2 The Parties agree that neither Party waives its rights to
advocate its views that are consistent with this subsection 14.6 on the
appropriate INP cost recovery mechanism, or to present such views before any
relevant regulatory body or other agency as they relate to FCC or Board actions
on INP cost recovery.
15.0 DIALING PARITY -- SECTION 251(b)(3)
BA and Covad shall each provide the other with nondiscriminatory access to
such services and information as are necessary to allow the other Party to
implement dialing parity for Telephone Exchange Service, operator services,
directory assistance, and directory listing information with no unreasonable
dialing delays, as required under Section 251(b)(3) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
16.1 Each Party ("Licensor") shall provide the other Party ("Licensee")
within a reasonable time period access to the poles, ducts, rights-of-way and
conduits it owns or controls, to the extent permitted by Law and as required by
Section 224 of the Act or any FCC or Board order or practice, on terms,
conditions and prices comparable to those offered to any other entity purusant
to each Party's applicable standard agreements with such entities.
17.0 DATABASES AND SIGNALING
17.1 Each Party shall provide the other Party with access to databases,
including LIDB and toll-free service access codes (i.e. 800/888), and associated
signaling necessary for call routing and completion of Covad's traffic through
the provision of SS7 Common Channel Signaling (CCIS) under its applicable
tariffs. Alternatively, either Party may secure CCS Interconnection from a
commercial SS7 hub provider, and in that case the other Party will permit
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the purchasing Party to access the same databases as would have been accessible
if the purchasing party had connected directly to the other Party's CCISnetwork.
17.2 The Parties will provide CCIS Signaling to each other, where and as
available, in conjunction with all Local Traffic, Toll Traffic, Meet Point
Billing Traffic, and Transit Traffic. The Parties will cooperate on the exchange
of TCAP messages to facilitate interoperability of CCIS-based features between
their respective networks, including all CLASS features and functions, to the
extent each Party offers such features and functions to its Customers. All CCIS
Signaling parameters will be provided upon request (where available), including
called party number, calling party number, originating line information, calling
party category, and charge number. All privacy indicators will be honored. The
Parties will follow all Ordering and Billing Forum-adopted standards pertaining
to CIC/OZZ codes. Where CCIS Signaling is not available, in-band multi-frequency
(MF) wink start signaling will be provided. Any such MF arrangement will require
a separate local trunk circuit between the Parties' respective switches in those
instances where the Parties have established End Office to End Office high usage
trunk groups. In such an arrangement, each Party will outpulse the full
ten-digit telephone number of the called party to the other Party.
17.3 Each Party shall provide trunk groups, where available and upon
reasonable request, that are configured utilizing the B8ZS ESF protocol for 64
kbps clear channel transmission to allow for ISDN interoperability between the
Parties' respective networks.
17.4 The following publications describe the practices, procedures and
specifications generally utilized by BA for signaling purposes and is listed
herein to assist the Parties in meeting their respective Interconnection
responsibilities related to Signaling:
(a) Bellcore Generic Requirements, GR-905-CORE, Issue 1, March,
1995, and subsequent issues and amendments; and
(b) Bell Atlantic Supplement Common Channel Signaling Network
Interface Specification (BA-905).
17.5 Each Party shall charge the other Party mutual and reciprocal rates
for any usage-based charges for CCIS Signaling, 800/888 database access, LIDB
access, and access to other necessary databases, as follows: BA shall charge
Covad in accordance with Exhibit A hereto and applicable Tariffs; Covad shall
charge BA rates equal to the rates BA charges Covad, unless Covad's Tariffs for
CCIS signaling provide for lower generally available rates, in which case Covad
shall charge BA such lower rates; except to the extent a Party uses a third
party vendor for the provision of CCIS Signaling, in which case such charges
shall apply only to the third party vendor.
18.0 COORDINATED SERVICE ARRANGEMENTS
18.1 Intercept and Referral Announcements
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When a Customer changes its service provider from BA to Covad, or from
Covad to BA, and does not retain its original telephone number, the Party
formerly providing service to such Customer shall provide a referral
announcement ("Referral Announcement") on the abandoned telephone number which
provides details on the Customer's new number or provide other appropriate
information to the extent known. Referral Announcements shall be provided
reciprocally, free of charge to either the other Party or the Customer to the
extent the providing Party does not charge its own customers for such service,
for a period of not less than four (4) months after the date the Customer
changes its telephone number in the case of business Customers and not less than
sixty (60) days after the date the Customer changes its telephone number in the
case of residential Customers. However, if either Party provides Referral
Announcements for different periods than the above respective periods when its
Customers change their telephone numbers, such Party shall provide the same
level of service to Customers of the other Party.
18.2 Coordinated Repair Calls
Covad and BA will employ the following procedures for handling misdirected
repair calls:
18.2.1 Covad and BA will educate their respective Customers as to
the correct telephone numbers to call in order to access their respective repair
bureaus.
18.2.2 To the extent Party A is identifiable as the correct provider
of service to Customers that make misdirected repair calls to Party B, Party B
will immediately refer the Customers to the telephone number provided by Party
A, or to an information source that can provide the telephone number of Party A,
in a courteous manner and at no charge. In responding to misdirected repair
calls, neither Party shall make disparaging remarks about the other Party, its
services, rates, or service quality.
18.2.3 Covad and BA will provide their respective repair contact
numbers to one another on a reciprocal basis.
18.3 Customer Authorization
18.3.1 Without in any way limiting either Party's obligations under
subsection 28.1, each Party shall comply with Applicable Laws with regard to
Customer selection of a primary Telephone Exchange Service provider. Until the
Board and/or FCC adopts regulations and/or orders applicable to Customer
selection of a primary Telephone Exchange Service provider, each Party shall
adhere to the rules and procedures set forth in Section 64.1100 of the FCC
Rules, 47 CFR ss. 64.1100, in effect on the Effective Date hereof when ordering,
terminating, or otherwise changing Telephone Exchange Service on behalf of the
other Party's or another carrier's Customers.
18.3.2 In the event either Party requests that the other Party
install, provide, change, or terminate a Customer's Telecommunications Service
(including, but not limited to, a
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Customer's selection of a primary Telephone Exchange Service Provider) and (a)
fails to provide documentary evidence of the Customer's primary Telephone
Exchange Service Provider selection upon request, or (b) without having obtained
authorization from the Customer for such installation, provision, selection,
change or termination in accordance with Applicable Laws (or as provided in
subsection 18.3.1 above), the requesting Party shall be liable to the other
Party for all charges that would be applicable to the Customer for the initial
change in the Customer's Telecommunications Service and any charges for
restoring the Customer's Telecommunications Service to its Customer-authorized
condition, including to the appropriate primary Telephone Exchange Service
provider.
18.3.3 Without in any way limiting Covad's obligations under
subsection 28.1, Covad shall comply with Applicable Laws with regard to Customer
Proprietary Network Information, including, but not limited to, 47 U.S.C. ss.
222. Covad shall not access (including, but not limited to, through BA OSS
Services and BA Pre-OSS Services), use, or disclose Customer Proprietary Network
Information made available to Covad by BA pursuant to this Agreement unless
Covad has obtained the appropriate Customer authorization for such access, use
and/or disclosure required by Applicable Laws. By accessing, using or disclosing
Customer Proprietary Network Information, Covad represents and warrants that it
has obtained authorization for such action from the applicable Customer in the
manner required by Applicable Laws and this Agreement. Covad shall, upon request
by BA, provide proof of such authorization (including a copy of any written
authorization).
18.3.4 BA shall have the right to monitor and/or audit Covad's
access to and use and/or disclosure of Customer Proprietary Network Information
that is made available by BA to Covad pursuant to this Agreement to ascertain
whether Covad is complying with the requirements of Applicable Laws and this
Agreement with regard to such access, use, and/or disclosure. To the extent
permitted by Applicable Laws, the foregoing right shall include, but not be
limited to, the right to electronically monitor Covad's access to and use of
Customer Proprietary Network Information that is made available by BA to Covad
pursuant to this Agreement.
19.0 DIRECTORY SERVICES ARRANGEMENTS
19.1 Directory Listings and Directory Distributions
In this subsection 19.1, references to a Covad Customer's "primary
listing" shall mean such Customer's primary name, address, and telephone number,
which number falls within the NXX codes directly assigned to Covad or is
retained by Covad on the Customer's behalf pursuant to LTNP arrangements with BA
or any other carrier within the geographic area covered in the relevant BA
directory. BA will, upon request, provide the following directory services to
Covad in accordance with the terms set forth herein.
19.1.1 BA will include the Covad Customer's primary listing in its
"White Pages" directory (residence and business listings) and "Yellow Pages"
directory (business listings) that cover the address of the Customer. Listings
of Covad's Customers will be interfiled with listings
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of BA's Customers and the Customers of other LECs included in the BA
directories. Covad will pay BA a non-recurring charge as set forth in Exhibit A
for providing such service for each Covad Customer's primary listing. Covad will
also pay BA's Tariffed charges, as the case may be, for additional and foreign
white page listings and other white pages services for Covad's Customers. BA
will not require a minimum number of listings per order.
19.1.2 BA will also include the Covad Customer's primary listing in
BA's directory assistance database on the same basis that BA's own Customers are
included, as well as in any electronic directories in which BA's Customers are
ordinarily included, for no charge other than the charges identified in
subsection 19.1.1.
19.1.3 BA will distribute to Covad Customers copies of their primary
white pages and yellow pages directories at the same time and on the same basis
that BA distributes primary directories to its own Customers. BA will also
deliver a reasonable number of such directories to Covad. These distributions
will be made for no additional charge. Covad and its Customers may request
additional directories from BA's Directory Fulfillment Centers, which Centers
will provide such additional directories for the same charges applicable to
comparable requests by BA Customers.
19.1.4 Upon request by Covad, BA will provide Covad with a directory
list of relevant NXX codes, the close dates, publishing data, and call guide
close dates on the same basis as such information is provided to BA's own
business offices.
19.1.5 Covad shall provide BA with daily listing information on all
new Covad Customers in the format required by BA or a mutually-agreed upon
industry standard format. The information shall include the Customer's name,
address, telephone number, the delivery address and number of directories to be
delivered, and, in the case of a business listing, the primary business heading
under which the business Customer desires to be placed, and any other
information necessary for the publication and delivery of directories. Covad
will also provide BA with daily listing information showing Customers that have
disconnected or terminated their service with Covad. BA will provide Covad with
confirmation of listing order activity within forty eight (48) hours.
19.1.6 BA will accord Covad's directory listing information the same
level of confidentiality which BA accords its own directory listing information,
and BA shall ensure that access to Covad's directory listing information will be
used solely for the purpose of providing directory services; provided, however,
that BA may use or license information contained in its directory listings for
direct marketing purposes so long as the Covad Customers are not separately
identified as such; and provided further that Covad may identify those of its
Customers that request that their names not be sold for direct marketing
purposes, and BA will honor such requests to the same extent as it does for its
own Customers.
19.1.7 Both Parties shall use their best efforts to ensure the
accurate listing of Covad Customer listings. BA will also provide Covad, upon
request, a copy of the BA listings standards and specifications manual. In
addition, BA will provide Covad with a listing of Yellow
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Pages headings and directory close schedules on an ongoing basis.
19.1.8 Covad will adhere to all practices, standards, and ethical
requirements of BA with regard to listings, and, by providing BA with listing
information, warrants to BA that Covad has the right to place such listings on
behalf of its Customers. Covad agrees that it will undertake commercially
practicable and reasonable steps to attempt to ensure that any business or
person to be listed is authorized and has the right (i) to provide the product
or service offered, and (ii) to use any personal or corporate name, trade name
or language used in the listing. In addition, Covad agrees to release, defend,
hold harmless and indemnify BA from and against any and all claims, losses,
damages, suits, or other actions, or any liability whatsoever, suffered, made,
instituted, or asserted by any person arising out of BA's listing of the listing
information provided by Covad hereunder.
19.1.9 BA's liability to Covad in the event of a BA error in or
omission of a listing shall not exceed the amount of charges actually paid by
Covad for such listing. In addition, Covad agrees to take, with respect to its
own Customers, all reasonable steps to ensure that its and BA's liability to
Covad's Customers in the event of a BA error in or omission of a listing shall
be subject to the same limitations that BA's liability to its own Customers are
subject to.
19.1.10 Within thirty (30) business days of the Effective Date, BA
agrees to meet with Covad and, if appropriate, arrange a meeting with a BA
authorized Yellow Pages agent, to address issues regarding Covad customer
referrals or questions pertaining to Yellow Pages listings.
19.2 Yellow Pages Maintenance
The Parties agree to work cooperatively to ensure that Yellow Page
advertisements purchased by Customers that switch their service to Covad
(including Customers utilizing Covad-assigned telephone numbers and Covad
Customers utilizing LTNP) are maintained without interruption. BA will offer
Yellow Pages services to Covad Customers on the same basis as they are offered
to BA Customers.
19.3 Service Information Pages
BA will include all Covad NXX codes associated with the areas to which
each directory pertains, along with BA's own NXX codes, in any lists of such
codes which are contained in the general reference portions of the directories.
Covad's NXX codes shall appear in such lists in the same manner as BA's NXX
information. In addition, BA will include in the "Customer Guide" or comparable
section of the applicable white pages directories listings provided by Covad for
Covad's installation, repair and customer service and other essential service
oriented information, as agreed by the Parties, including appropriate
identifying logo. Such listings shall appear in the manner agreed to by the
Parties. BA shall not charge Covad for inclusion of this essential
service-oriented information, but reserves the right to impose charges on other
information Covad may elect to submit and BA may elect to accept for inclusion
in BA's white pages directories. BA will provide Covad with the annual directory
close dates and reasonable notice of any changes in said
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dates.
19.4 Directory Assistance (DA); Call Completion
19.4.1 Upon request, BA will provide Covad with directory
assistance, connect request, and/or IntraLATA call completion services in
accordance with the terms set forth in the Directory Assistance and Call
Completion Services Agreement appended hereto as Exhibit C.
19.4.2 Also upon request, BA will provide to Covad operator services
trunk groups, utilizing Feature Group D type signaling, with ANI, minus OZZ,
when interconnecting to the BA operator services network.
19.4.3 BA agrees to utilize existing trunking arrangements, at no
facility charge to Covad, to transfer Covad's operator calls handled by a BA
operator to the appropriate 911/E911 PSAP. The ALI information passed to the
PSAP shall be consistent with the information that BA passes on its own
operator-handled calls.
19.4.4 At the request of Covad, BA will provide Covad with "Direct
Access" service to the same directory assistance ("DA") database that is used by
BA to provide directory assistance to BA Customers. Direct Access will enable
Covad's operator bureau, if Covad elects to provide its own DA services, to
obtain direct electronic access to the DA database for the purpose of providing
intraLATA directory assistance to Covad Customers. Covad may search and read DA
database information at the per query rates specified in Exhibit A. BA will
furnish ports for connection and termination of Covad facilities to the DA
database system. The type of ports and associated charges will be based on the
type of access configuration required by Covad for termination of its
facilities. The number of ports provided at the database will be based on
Covad's annual forecast of "Busy Hour" queries. At the request of Covad, BA will
also accept electronic transmission of Covad Customer DA information for
inclusion in the DA database.
20.0 COORDINATION WITH TARIFF TERMS
20.1 The Parties acknowledge that some of the services, facilities, and
arrangements described herein are or will be available under and subject to the
terms of the federal or state Tariffs of the other Party applicable to such
services, facilities, and arrangements. To the extent a Tariff of the providing
Party applies to any service, facility, and arrangement described herein, the
Parties agree as follows:
20.1.1 Those rates and charges set forth in Exhibit A for the
services, facilities, and arrangements described herein that reference or are
identical to a rate contained in an existing Tariff of the providing Party,
shall conform with those contained in the then-prevailing Tariff and vary in
accordance with any changes that may be made to the Tariff rates and charges
subsequent to the Effective Date.
20.1.2 As applied to wholesale discount rates, unbundled Network
Elements or
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call transport and/or termination of Local Traffic purchased for the provision
of Telephone Exchange Service or Exchange Access, the rates and charges set
forth in Exhibit A shall apply until such time as they are replaced by new rates
as may be approved by the Board from time to time pursuant to the FCC
Regulations, subject to a stay or other order issued by any court of competent
jurisdiction. At such time(s) as such new rates have been approved by the Board,
the Parties shall amend Exhibit A to reflect the new approved rates.
20.2 Except with respect to the rates and charges described in subsection
20.1 above, all other terms contained in an applicable Tariff of the providing
Party shall apply in connection with its provision of the particular service,
facility, and arrangement purusant to that Tariff. . The availability of
particular services pursuant to this Agreement that are similar to those
provided for in any applicable Tariff shall not affect the ability of a Party to
obtain those services pursuant to this Agreement.
21.0 INSURANCE
21.1 Covad shall maintain, during the term of this Agreement, all
insurance and/or bonds required by law and necessary to satisfy its obligations
under this Agreement, including, without limitation, its obligations set forth
in Section 25 hereof. At a minimum and without limiting the foregoing covenant,
Covad shall maintain the following insurance:
(a) Commercial General Liability Insurance, on an occurrence basis,
including but not limited to, premises-operations, broad form property
damage, products/completed operations, contractual liability, independent
contractors, and personal injury, with limits of at least $2,000,000
combined single limit for each occurrence.
(b) Automobile Liability, Comprehensive Form, with limits of at
least $500,000 combined single limit for each occurrence.
(c) Excess Liability, in the umbrella form, with limits of at least
$10,000,000 combined single limit for each occurrence.
(d) Worker's Compensation Insurance as required by law and
Employer's Liability Insurance with limits of not less than $1,000,000 per
occurrence.
21.2 Covad shall name BA as an additional insured on the foregoing
insurance.
21.3 Covad shall, within two (2) weeks of the date hereof and on a
semi-annual basis thereafter, furnish certificates or other adequate proof of
the foregoing insurance. The certificates or other proof of the foregoing
insurance shall be sent to: Bell Atlantic, Insurance Administration Group, 1320
N. Court House Road, 4th Floor, Arlington, Virginia, 22201. In addition, Covad
shall require its agents, representatives, or contractors, if any, that may
enter upon the premises of BA or BA's affiliated companies to maintain similar
and appropriate insurance and, if requested, to furnish BA certificates or other
adequate proof of such insurance. Certificates furnished by
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Covad or Covad's agents, representatives, or contractors shall contain a clause
stating: "Bell Atlantic - Pennsylvania, Inc. shall be notified in writing at
least thirty (30) days prior to cancellation of, or any material change in, the
insurance."
22.0 TERM AND TERMINATION.
22.1 This Agreement shall be effective as of the date first above written
and continue in effect until March 15, 2001, and thereafter the Agreement shall
continue in force and effect unless and until terminated as provided herein.
Upon the expiration of the initial term, either Party may terminate this
Agreement by providing written notice of termination to the other Party, such
written notice to be provided at least ninety (90) days in advance of the date
of termination. In the event of such termination, those service arrangements
made available under this Agreement and existing at the time of termination
shall continue without interruption under (a) a new agreement executed by the
Parties, (b) standard Interconnection terms and conditions approved and made
generally effective by the Board, (c) Tariff terms and conditions generally
available to CLECs, or (d) if none of the above is available, under the terms of
this Agreement on a month-to-month basis until such time as (a), (b), or (c)
becomes available.
22.2 For service arrangements made available under this Agreement and
existing at the time of termination, if the standard Interconnection terms and
conditions or Tariff terms and conditions result in the non-terminating Party
physically rearranging facilities or incurring programming expense, the
non-terminating Party shall be entitled to recover such rearrangement or
programming costs from the terminating Party.
22.3 If either Party defaults in the payment of any amount due hereunder,
or if either Party violates any other provision of this Agreement, and such
default or violation shall continue for sixty (60) days after written notice
thereof, the other Party may terminate this Agreement and services hereunder by
written notice; provided the other Party has provided the defaulting Party and
the appropriate federal and/or state regulatory bodies with written notice at
least twenty five (25) days' prior to terminating service. Notice shall be
posted by overnight mail, return receipt requested. If the defaulting Party
cures the default or violation within the twenty-five (25) day period, the other
Party will not terminate service or this Agreement but shall be entitled to
recover all costs, if any, incurred by it in connection with the default or
violation, including, without limitation, costs incurred to prepare for the
termination of service.
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NEITHER PARTY MAKES 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.
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24.0 CANCELLATION CHARGES
Except as provided in this Agreement or as otherwise provided in any
applicable Tariff, no cancellation charges shall apply.
25.0 INDEMNIFICATION
25.1 Each Party agrees to release, indemnify, defend and hold harmless the
other Party from and against all losses, claims, demands, damages, expenses,
suits or other actions, or any liability whatsoever, including, but not limited
to, costs and attorneys' fees (collectively, a "Loss"), (a) whether suffered,
made, instituted, or asserted by any other party or person, relating to personal
injury to or death of any person, or for loss, damage to, or destruction of real
and/or personal property, whether or not owned by others, arising from
transactions or activities relating to this Agreement and to the extent
proximately caused by the negligent or willful acts or omissions of the
indemnifying Party, regardless of the form of action, or (b) suffered, made,
instituted, or asserted by its own customer(s) against the other Party arising
out of the other Party's provision of services to the indemnifying Party under
this Agreement. Notwithstanding the foregoing indemnification, nothing in this
Section 25.0 shall affect or limit any claims, remedies, or other actions the
indemnifying Party may have against the indemnified Party under this Agreement,
any other contract, or any applicable Tariff(s), regulations or laws for the
indemnified Party's provision of said services.
25.2 The indemnification provided herein shall be conditioned upon:
(a) The indemnified Party shall promptly notify the indemnifying
Party of any action, claim, lawsuit or demand taken against the
indemnified Party relating to the indemnification.
(b) The indemnifying Party shall have sole authority to defend any
such action, claim, lawsuit or demand including the selection of legal
counsel, and the indemnified Party may engage separate legal counsel only
at its sole cost and expense. The Indemnifying Party shall keep the
Indemnified Party reasonably and timely apprised of the status of the
action, claim, demand or lawsuit. The Indemnifying Party will not be
liable under this Section for settlements or compromises by the
Indemnified party of any action, claim, demand or lawsuit unless the
Indemnifying Party has approved the settlement or compromise in advance or
unless the defense of the action, claim, demand or lawsuit has been
tendered to the Indemnifying Party in writing and the Indemnifying Party
has failed to promptly undertake the defense.
(c) In no event shall the indemnifying Party settle or consent to
any judgment pertaining to any such action without the prior written
consent of the indemnified Party, which consent shall not be unreasonably
withheld. However, in the event the settlement or judgment requires a
contribution from or affects the rights of the Indemnified Party, the
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Indemnified Party shall have the right to refuse such settlement or
judgment and, at its own cost and expense, take over the defense against
such Loss, provided that in such event the indemnifying Party shall not be
responsible for, nor shall it be obligated to indemnify the indemnified
Party against, the Loss for any amount in excess of such refused
settlement or judgment.
(d) The indemnified Party shall, in all cases, assert any and all
provisions in its Tariffs that limit liability to third parties as a bar
to any recovery by the third party claimant in excess of such limitation
of liability.
(e) The indemnified Party shall offer the indemnifying Party all
reasonable cooperation and assistance in the defense of any such action,
demand or lawsuit.
26.0 LIMITATION OF LIABILITY
26.1 The liability of either Party to the other Party for damages arising
out of failure to comply with a direction to install, restore or terminate
facilities; or out of failures, mistakes, omissions, interruptions, delays,
errors, or defects (collectively, "Errors") occurring in the course of
furnishing any services, arrangements, or facilities hereunder shall be
determined in accordance with the terms of the applicable tariff(s) of the
providing Party. In the event no tariff(s) apply, the providing Party's
liability for such Errors shall not exceed an amount equal to the pro rata
monthly charge for the period in which such failures, mistakes, omissions,
interruptions, delays, errors or defects occur. Except as otherwise provided in
Section 25, Section 26.2, Section 27 and Section 29.4, recovery of said amount
shall be the injured Party's sole and exclusive remedy against the providing
Party for Errors, provided however that Errors shall not include grossly
negligent or willful conduct..
26.2 Except as provided in Section 25, Section 27, and Section 29.4, or in
instances of gross negligence or willful misconduct, neither Party shall be
liable to the other in connection with the provision or use of services offered
under this Agreement for indirect, incidental, consequential, reliance or
special damages, including (without limitation) damages for lost profits
(collectively, "Consequential Damages"), regardless of the form of action,
whether in contract, warranty, strict liability, or tort, including, without
limitation, negligence of any kind, 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 Section 25.
26.3 The Parties agree that neither Party shall be liable to the customers
of the other Party in connection with its provision of services to the other
Party under this Agreement. Nothing in this Agreement shall be deemed to create
a third party beneficiary relationship between the Party providing the service
and the customers of the Party purchasing the service. In the event of a dispute
involving both Parties with a customer of one Party, both Parties shall assert
the applicability of any limitations on liability to customers that may be
contained in either Party's applicable Tariff(s).
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27.0 PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
27.1 Performance Standards
BA shall provide the Interconnection and unbundled Network Elements
contemplated hereunder in accordance with the performance standards set forth in
Section 251(c) of the Act and the FCC Regulations, including without limitation
the rules set forth in 47 Code of Federal Regulations ss.ss. 51.305(a)(3),
51.311(a), and 51.311(b).
27.2 Performance Monitoring Reports, Standards and Remedies
Schedule 27.2, "Performance Monitoring Reports, Standards and Remedies,"
is made a part of this Agreement and incorporated herein in its entirety.
27.3 Performance Measurement, Standard and Remedy for XDSL-Compatible ULLs
Upon request by either Party, at such time as BA provides to Covad, as a
generally available offering, pursuant to Section 11.2, 2-Wire ADSL-Compatible
ULLs, 2-Wire HDSL-Compatible ULLs, and 4-Wire HDSL-Compatible ULLs, the Parties
will negotiate in good faith for insertion into Schedule 27.2 a missed
installation appointment performance measurement, standard and remedy, for such
ULLs. Unless otherwise agreed by the Parties, such measurement, standard and
remedy, will be a consolidated measurement, standard and remedy, that covers
missed installation appointments for all three types of ULLs.
28.0 COMPLIANCE WITH LAWS; REGULATORY APPROVAL
28.1 Each Party shall promptly notify the other Party in writing of any
governmental action that suspends, cancels, withdraws, limits, or otherwise
materially affects its ability to perform its obligations hereunder.
28.2 The Parties understand and agree that this Agreement will be filed
with the Board and may thereafter be filed with the FCC as an integral part of
BA's application pursuant to Section 271(d) of the Act. The Parties covenant and
agree that this Agreement is satisfactory to them as an agreement under Section
251 of the Act. Each Party covenants and agrees to fully support approval of
this Agreement by the Board or the FCC under Section 252 of the Act without
modification. The Parties, however, reserve the right to seek regulatory relief
and otherwise seek redress from each other regarding performance and
implementation of this Agreement, including, without limitation, the conformance
of this Agreement to the FCC Regulations as provided in subsection 28.3 below.
28.3 The Parties recognize that the FCC has issued and may continue to
issue the FCC Regulations implementing Sections 251, 252, and 271 and other
Sections of the Act that affect
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certain terms contained in this Agreement. In the event that any one or more of
the provisions contained herein is inconsistent with any applicable rule
contained in such FCC Regulations or as may be enacted by the Board, or imposed
by a court in the exercise of its lawful jurisdiction, or which, in BA's
reasonable determination, affects BA's application pursuant to Section 271(d) of
the Act, the Parties agree to negotiate in good faith the revisions necessary to
eliminate the inconsistency or amend the application-affecting provision(s).
Such revisions need not be considered material, and need not require further
Board approval beyond any Board approval required under Section 252(e) of the
Act. If, however, any such change in Applicable Law or amendment to this
Agreement would necessitate a change that would affect the interconnectin of
network facilities or Covad's ability to use any BA service or Network Element,
Covad shall have a reasonable time to modify or re-deploy its network or
operations to reflect such change.
28.4 In the event any Applicable Law other than the FCC Regulations
requires modification of any material term(s) contained in this Agreement,
either Party may require a renegotiation of the term(s) that require direct
modification as well as of any term(s) that are reasonably affected thereby. If
neither Party requests a renegotiation or if an Applicable Law requires
modification of any non-material term(s), the remaining provisions of this
Agreement shall remain in full force and effect. For purposes of this subsection
28.4 and without limitation of any other modifications required by Applicable
Laws, the Parties agree that any modification required by Applicable Laws (i) to
the two-tier Reciprocal Call Termination compensation structure for the
transport and termination of Local Traffic described in Exhibit A, or (ii) that
affects either Party's receipt of Reciprocal Compensation for the transport and
termination of Local Traffic, shall be deemed to be a modification of a material
term that requires immediate good faith renegotiation between the Parties.
28.5 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA"). Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with CALEA. Each Party shall indemnify and hold the other Party harmless from
any and all penalties imposed upon the other Party for such non-compliance 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.
29.0 MISCELLANEOUS
29.1 Authorization
29.1.1 Bell Atlantic - New Jersey, Inc. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey and has full power and authority to execute and deliver this
Agreement and to perform the obligations hereunder.
29.1.2 DIECA Communications, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Virginia, and has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder.
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29.2 Independent Contractor
Each Party shall perform services hereunder as an independent contractor
and nothing herein shall be construed as creating any other relationship between
the Parties. 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 their
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.
29.3 Force Majeure
Neither Party shall be responsible for delays or failures in performance
resulting from acts or occurrences beyond the reasonable control of such Party,
regardless of whether such delays or failures in performance were foreseen or
foreseeable as of the date of this Agreement, including, without limitation:
adverse weather conditions, fire, explosion, power failure, acts of God, war,
revolution, civil commotion, or acts of public enemies; any law, order,
regulation, ordinance or requirement of any government or legal body; or labor
unrest, including, without limitation, strikes, slowdowns, picketing or
boycotts; or delays caused by the other Party or by other service or equipment
vendors; or any other circumstances beyond the Party's reasonable control. In
such event, the affected Party 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 interferences (and the other Party shall likewise be excused from
performance of its obligations on a day-to-day basis to the extent such Party's
obligations relate to the performance so interfered with). The affected Party
shall use its best efforts to avoid or remove the cause(s) of non-performance
and both Parties shall proceed to perform with dispatch once the cause(s) are
removed or cease.
29.4 Confidentiality
29.4.1 All information, including but not limited to specification,
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 to the other
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, 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, and by written notice given to the
receiving Party within ten (10) days after delivery, to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary Information"), shall
remain the property of the disclosing Party.
29.4.2 Each Party shall keep all of the other Party's Proprietary
Information confidential in the same manner it holds its own Proprietary
Information confidential (which in all cases shall be no less than reasonable)
and shall use the other Party's Proprietary Information only
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for performing the covenants contained in this Agreement. 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.
All Proprietary Information (i) shall be held in confidence by each receiving
Party; (ii) shall be disclosed on a confidential basis to only those persons who
have a need for it in connectin with the provision of services required to
fulfill this Agreement and shall be used only for such purposes; and (iii) may
be used for other purposes only upon such terms and conditions as may be
mutually agreed to in advance of use in writing by the Parties.
29.4.3 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this 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 it confidential as evidenced by
written records prepared prior to delivery by the disclosing Party; or
(b) is or becomes publicly known through no wrongful act of the
receiving Party; or
(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; or
(d) is independently developed by an employee, agent, or contractor
of the receiving Party that is not involved in any manner with the
provision of services pursuant to this Agreement and does not have any
direct or indirect access to the Proprietary Information; or
(e) is approved for release by written authorization of the
disclosing Party; or
(f) is required to be made public by the receiving Party pursuant to
applicable law or regulation, provided that the receiving Party shall give
sufficient notice of the requirement to the disclosing Party to enable the
disclosing Party to seek protective orders. In such event, the receiving
Party shall provide the disclosing Party with written notice of such
requirement, to the extent permitted by Law, as soon as possible and,
where possible, prior to such disclosure. The disclosing Party may then
seek appropriate protective relief from all or part of such requirement,
and the receiving Party shall use reasonable efforts to cooperate with the
disclosing Party in attempting to obtain any protective relief which such
disclosing Party chooses to obtain.
29.4.4 Upon request by the disclosing Party, the receiving Party
shall return all tangible copies of Proprietary Information, whether written,
graphic, electromagnetic or otherwise.
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29.4.5 Notwithstanding any other provision of this Agreement, the
provisions of this subsection 29.4 shall apply to all Proprietary Information
furnished by either Party to the other in furtherance of the purpose of this
Agreement, even if furnished before the Effective Date.
29.4.6 Except as otherwise expressly provided elsewhere in this
Agreement, no license is hereby granted under any patent, trademark, or
copyright, nor is any license implied, solely by virtue of the disclosure of any
Proprietary Information.
29.5 Choice of Law
The construction, interpretation and performance of this Agreement shall
be governed by and construed in accordance with the laws of the state in which
this Agreement is to be performed, except for its conflicts of laws provisions.
In addition, insofar as and to the extent federal law may apply, federal law
will control.
29.6 Taxes
29.6.1 In General. With respect to any purchase hereunder of
services, facilities or arrangements, if any federal, state or local tax, fee,
surcharge or other tax-like charge (a "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 properly bill the purchasing Party for such
Tax, (ii) the purchasing Party shall timely remit such Tax to the providing
Party and (iii) the providing Party shall timely remit such collected Tax to the
applicable taxing authority.
29.6.2 Taxes Imposed on the Providing Party With respect to any
purchase hereunder of services, facilities or arrangements, if any federal,
state or local Tax is imposed by Applicable Law on the receipts of the providing
Party, which Law permits the providing Party to exclude certain receipts
received from sales for resale to a public utility, distributor, telephone
company, local exchange carrier, telecommunications company or other
communications company ("Telecommunications Company"), such exclusion being
based solely on the fact that the purchasing Party is also subject to a tax
based upon receipts ("Receipts Tax"), then the purchasing Party (i) shall
provide the providing Party with notice in writing in accordance with subsection
29.6.6 of this Agreement of its intent to pay the Receipts Tax and (ii) shall
timely pay the Receipts Tax to the applicable tax authority.
29.6.3 Taxes Imposed on Customers With respect to any purchase
hereunder of services, facilities or arrangements that are resold to a third
party, if any federal, state or local Tax is imposed by Applicable Law on the
subscriber, end-user, Customer or ultimate consumer ("Subscriber") in connection
with any such purchase, which a Telecommunications Company is required to impose
and/or collect from a Subscriber, then the purchasing Party (i) shall be
required to impose and/or collect such Tax from the Subscriber and (ii) shall
timely remit such Tax to the applicable taxing authority.
29.6.4 Liability for Uncollected Tax, Interest and Penalty If the
providing Party has not received an exemption certificate and fails to collect
any Tax as required by subsection
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29.6.1, 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 interest assessed thereon and any
penalty assessed with respect to such uncollected Tax by such authority. If the
providing Party properly bills the purchasing Party for any Tax but the
purchasing Party fails to remit such Tax to the providing Party as required by
subsection 29.6.1, then, as between the providing Party and the purchasing
Party, the purchasing Party shall be liable for such uncollected Tax and any
interest assessed thereon, as well as any penalty assessed with respect to such
uncollected Tax by the applicable taxing authority. If the providing Party does
not collect any Tax as required by subsection 29.6.1 because the purchasing
Party has provided such providing Party with an exemption certificate that is
later found to be inadequate by a taxing authority, then, as between the
providing Party and the purchasing Party, the purchasing Party shall be liable
for such uncollected Tax and any interest assessed thereon, as well as any
penalty assessed with respect to such uncollected Tax by the applicable taxing
authority. If the purchasing Party fails to pay the Receipts Tax as required by
subsection 29.6.2, then, as between the providing Party and the purchasing
Party, (x) the providing Party shall be liable for any Tax imposed on its
receipts and (y) the purchasing Party shall be liable for any interest assessed
thereon and any penalty assessed upon the providing Party with respect to such
Tax by such authority. If the purchasing Party fails to impose and/or collect
any Tax from Subscribers as required by subsection 29.6.3, then, as between the
providing Party and the purchasing Party, the purchasing Party shall remain
liable for such uncollected Tax and any interest assessed thereon, as well as
any penalty assessed with respect to such uncollected Tax by the applicable
taxing authority. With respect to any Tax that the purchasing Party has agreed
to pay, or is required to impose on and/or collect from Subscribers, the
purchasing Party agrees to indemnify and hold the providing Party harmless 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 recover the Tax from the
providing Party due to the failure of the purchasing Party to timely pay, or
collect and timely remit, such Tax to such authority. In the event either Party
is audited by a taxing authority, the other Party agrees to cooperate fully with
the Party being audited in order to respond to any audit inquiries in a proper
and timely manner so that the audit and/or any resulting controversy may be
resolved expeditiously.
29.6.5 Tax Exemptions and Exemption Certificates If Applicable Law
clearly exempts a purchase hereunder from a Tax, and if such Law also provides
an exemption procedure, such as an exemption-certificate requirement, then, if
the purchasing Party complies with such procedure, the providing Party shall not
collect such Tax during the effective period of such exemption. Such exemption
shall be effective upon receipt of the exemption certificate or affidavit in
accordance with the terms set forth in subsection 29.6.6. If Applicable Law
clearly exempts a purchase hereunder from a Tax, but does not also provide an
exemption procedure, then the providing Party shall not collect such Tax if the
purchasing Party (i) furnishes the providing Party with a letter signed by an
officer requesting such an exemption and citing the provision in the Law which
clearly allows such exemption and (ii) supplies the providing Party with an
indemnification agreement, reasonably acceptable to the providing Party (e.g.,
an agreement commonly used in the industry), which holds the providing Party
harmless on an after-tax basis with respect to its forbearing to collect such
Tax.
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29.6.6 If any discount or portion of a discount in price provided to
Covad under this Agreement (including, but not limited to, a wholesale discount
provided for in Exhibit A) is based on anticipated Tax savings to BA because it
was anticipated that receipts from sales of BA services that would otherwise be
subject to a Tax on such receipts could be excluded from such Tax under
Applicable Law because the BA services would be sold to Covad for resale, and BA
is, in fact, required by Applicable Law to pay such Tax on receipts from sales
of BA services to Covad, then, as between BA and Covad, Covad shall be liable
for, and shall indemnify and hold harmless BA against (on an after-tax basis),
any such Tax and any interest and/or penalty assessed by the applicable taxing
authority on either Covad or BA with respect to the Tax on BA's receipts.
29.6.7 All notices, affidavits, exemption-certificates or other
communications required or permitted to be given by either Party to the other,
for purposes of this subsection 29.6, shall be made in writing and shall be
delivered in person or sent by certified mail, return receipt requested, or
registered mail, or a courier service providing proof of service, and sent to
the addressees set forth in subsection 29.10 as well as to the following:
To Bell Atlantic: Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, NY 10036
To Covad: Tax Administration
DIECA Communications, Inc.
2330 Central Expressway
Santa Clara, CA 95050-2516
Either Party may from time to time designate another address or other addressees
by giving notice is accordance with the terms of this subsection 29.6. Any
notice or other communication shall be deemed to be given when received.
29.7 Assignment
Neither Party may assign or transfer (whether by operation of Law or
otherwise) this Agreement or any of its rights or obligations hereunder to a
third partywithout the other Party's prior written consent, which consent shall
not be unreasonably withheld or delayed; provided , however, 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 prior written notice to the other Party of such assignment or
transfer, together with a properly executed acceptance of the assigning Party's
obligations and duties hereunder. Any attempted assignment or transfer that is
not permitted shall be void ab initio. All obligations and duties of any Party
shall be binding on all successors in interest and assigns of such Party.
29.8 Billing and Payment; Disputed Amounts
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29.8.1 Except as may otherwise be provided in this Agreement, each
Party shall submit on a monthly basis an itemized statement of charges incurred
by the other Party during the preceding month(s) for services rendered
hereunder. Payment of billed amounts under this Agreement, whether billed on a
monthly basis or as otherwise provided herein, shall be due, in immediately
available U.S. funds, within thirty (30) days of the date of such statement.
29.8.2 Although it is the intent of both Parties to submit timely
and accurate statements of charges, failure by either Party to present
statements to the other Party in a timely manner shall not constitute a breach
or default, or a waiver of the right to payment of the incurred charges, by the
billing Party under this Agreement, and the billed Party shall not be entitled
to dispute the billing Party's statement(s) based on such Party's failure to
submit them in a timely fashion.
29.8.3 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) the Disputed Amount up to the higher of $10,000 or 50% of the
Disputed Amount into an interest bearing escrow account with a third party
escrow agent mutually agreed upon by the Parties. The remaining balance of the
Disputed Amount not placed into escrow shall thereafter be paid, if appropriate,
upon final determination of such dispute.
29.8.4 If the Parties are unable to resolve the issues related to
the Disputed Amounts in the normal course of business within ninety (90) 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.
29.8.5 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 subsection 29.8.4, or if either Party
fails to appoint a designated representative within forty five (45) days, then
either Party may file a complaint with the Board to resolve such issues or
proceed with any other remedy pursuant to law or equity. The Board 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.
29.8.6 The Parties agree that all negotiations pursuant to this
subsection 29.8 shall
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remain confidential and shall be treated as compromise and settlement
negotiations for purposes of the Federal Rules of Evidence and state rules of
evidence.
29.8.7 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.
29.9 Dispute Resolution
Any dispute between the Parties regarding the interpretation or
enforcement of this Agreement or any of its terms shall be addressed by good
faith negotiation between the Parties, in the first instance. Should such
negotiations fail to resolve the dispute in a reasonable time, either Party may
initiate an appropriate action in any regulatory or judicial forum of competent
jurisdiction.
29.10 Notices
Except as otherwise provided in this Agreement, notices given by one Party
to the other Party under this Agreement shall be in writing and shall be (a)
delivered personally, (b) delivered by express delivery service, (c) mailed,
certified mail or first class U.S. mail postage prepaid, return receipt
requested, or (d) delivered by telecopy to the following addresses of the
Parties:
To Covad:
DIECA Communications, Inc.
2330 Central Expressway
Santa Clara, CA 95050-2516
Attn: Vice President and General Counsel
Facsimile: (408) 844-7507
with a copy to:
DIECA Communications, Inc.
6849 Old Dominion Drive, Suite 220
McLean, VA 22101
Att: Assistant General Counsel
Facsimile: (703) 734-5474
To BA:
Bell Atlantic
Telecom Industry Services
1095 Avenue of the Americas
40th Floor
New York, NY 10036
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Facsimile: (212) 597-2585
with a copy to:
General Attorney
Bell Atlantic
1320 N. Courthouse Road
8th Floor
Arlington, VA 22201
Facsimile: (703) 974-0744
or to such other address as either Party shall designate by proper notice.
Notices will be deemed given as of the earlier of (i) the date of actual
receipt, (ii) the next business day when notice is sent via express mail or
personal delivery, (iii) three (3) days after mailing in the case of first class
or certified U.S. mail, or (iv) on the date set forth on the confirmation in the
case of telecopy.
29.11 Section 252(i) Obligations
29.11.1 To the extent required under Applicable Law, BA shall make
available without unreasonable delay to Covad any individual interconnection,
service or network element contained in any agreement to which it is a party
that is approved by the Board pursuant to Section 252 of the Act, upon the same
rates, terms, and conditions as those provided in the agreement.
29.11.2 To the extent the exercise of the foregoing options requires
a rearrangement of facilities by the providing Party, the opting Party shall be
liable for the non-recurring charges associated therewith.
29.11.3 The Party electing to exercise such option shall do so by
delivering written notice to the first Party. Upon receipt of said notice by the
first Party, the Parties shall amend this Agreement to provide the same rates,
terms and conditions to the notifying Party for the remaining term of this
Agreement; provided, however, that the Party exercising its option under this
subsection 29.11 must continue to provide the same services or arrangements to
the first Party as required by this Agreement, subject either to the rates,
terms, and conditions applicable to the first Party in its agreement with the
third party or to the rates, terms, and conditions of this Agreement, whichever
is more favorable to the first Party in its sole determination.
29.12 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.
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29.13 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.
29.14 No License
29.14.1 Except as may be expressly provided herein, nothing in this
Agreement shall be construed as the grant of a license with respect to any
patent, copyright, trademark, trade name, trade secret or any other proprietary
or intellectual property now or hereafter owned, controlled or licensable by
either Party. Neither Party may use any patent, copyrightable materials,
trademark, trade name, trade secret or other intellectual property right of the
other Party except in accordance with the terms of a separate license agreement
between the Parties granting such rights.
29.14.2 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 Party or its customers
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 of any facilities by either Party under this Agreement, alone or in
combination with that of the other Party, constitutes direct, vicarious or
contributory infringement or inducement to infringe, misuse or misappropriation
of any patent, copyright, trademark, trade secret, or any other proprietary or
intellectual property right of any Party or third party. Each Party, however,
shall offer to the other reasonable cooperation and assistance in the defense of
any such claim.
29.14.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES NOT EXIST, ANY
WARRANTY, EXPRESS OR IMPLIED, THAT THE USE BY THE PARTIES OF THE OTHER'S
FACILITIES, ARRANGEMENTS, OR SERVICES PROVIDED UNDER THIS AGREEMENT SHALL NOT
GIVE RISE TO A CLAIM BY ANY THIRD PARTY OF INFRINGEMENT, MISUSE, OR
MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT OF SUCH THIRD PARTY.
29.15 Technology Upgrades
Nothing in this Agreement shall limit BA's ability to upgrade its network
through the
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incorporation of new equipment, new software or otherwise. BA shall provide
Covad written notice at least ninety (90) days prior to the incorporation of any
such upgrades in BA's network that will materially affect Covad's service, and
shall exercise reasonable efforts to provide at least one hundred eighty (180)
days notice where practicable. In addition, BA shall comply with the FCC Network
Disclosure rules, promulgated purusant to Title II of the Act and, in
particular, Section 251(c)(5) of the Act, set forth in the FCC Regulations to
the extent applicable. Covad shall be solely responsible for the cost and effort
of accommodating such changes in its own network.
29.16 Survival
The Parties' obligations under this Agreement which by their nature are
intended to continue beyond the termination or expiration of this Agreement,
including but not limited to Section 29.4, shall survive the termination or
expiration of this Agreement.
29.17 Entire Agreement
The terms contained in this Agreement and any Schedules, Exhibits, 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.
29.18 Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
29.19 Modification, Amendment, Supplement, or Waiver
No modification, amendment, supplement to, or waiver of the Agreement or
any of its provisions shall be effective and binding upon the Parties unless it
is made in writing and duly signed by the Parties. A failure or delay of either
Party to enforce any of the provisions hereof, to exercise any option which is
herein provided, or to require performance of any of the provisions hereof shall
in no way be construed to be a waiver of such provisions or options.
29.20 Successors and Assigns
This Agreement shall be binding on and inure to the benefit of the Parties
and their respective legal successors and permitted assigns.
29.21 Publicity and Use of Trademarks or Service Marks
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Neither Party nor its subcontractors or agents shall use the other Party's
trademarks, service marks, logos or other proprietary trade dress in any
advertising, press releases, publicity matters or other promotional materials
without such Party's prior written consent.
29.22 Integrity of BELL ATLANTIC Network
The Parties acknowledge that BA, at its election, may deploy fiber
throughout its network and that such fiber deployment may inhibit or facilitate
Covad's ability to provide service using certain technologies. Notwithstanding
any other provision of this Agreement, BA shall have the right to deploy,
upgrade, migrate and maintain its network at its discretion pursuant to Section
29.15 of this Agreement.
29.23 Merger Conditions
Nothing in this Agreement shall constitute a waiver by Covad of any rights
it may have under the FCC Order in the Application of Bell Atlantic Corporation,
Transferee, For Consent to Transfer control of Bell Atlantic Corporation and its
Subsidiaries, NSD-L-96-10, Memorandum Opinion and Order (August 14, 1997) ("the
FCC Merger Order"). Any such rights under the FCC Merger Order shall supplement
Covad's rights under this Agreement. Upon Covad's request, BA shall BA will
provide Covad with the then current Installment Payment Option outlined in the
FCC Merger Order.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this 7th day of October, 1998.
DIECA Communications, Inc. BELL ATLANTIC-
NEW JERSEY, INC.
By: By:
------------------------------ -------------------------------
Printed: Dhruv Khanna Printed: Jeffrey A. Masoner
------------------------- --------------------------
Title: Vice President and General Counsel Title: Vice President -
---------------------------------- Interconnection Services
Policy & Planning
----------------------------
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SCHEDULE 1.0
CERTAIN TERMS AS DEFINED IN THE ACT AS OF EFFECTIVE DATE
"Affiliate" means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or the equivalent thereof) of more than ten percent (10%).
"Customer Proprietary Network Information" 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; except that such
term does not include subscriber list information.
"Dialing Parity" means that a person that is not an affiliate of a local
exchange carrier is able to provide Telecommunications Services in such a manner
that Customers have the ability to route automatically, without the use of any
access code, their Telecommunications to the Telecommunications Services
provider of the customer's designation from among two (2) or more
Telecommunications Services providers (including such LEC).
"Exchange Access" means the offering of access to Telephone Exchange
Services or facilities for the purpose of the origination or termination of
Telephone Toll Services.
"Incumbent Local Exchange Carrier" means, with respect to an area, the
Local Exchange Carrier, that (A) on the date of enactment of the
Telecommunications Act, provided Telephone Exchange Service in such area, and
(B)(i) on such date of enactment, was deemed to be a member of the exchange
carrier association pursuant to Section 69.601(b) of the FCC's regulations (47
C.F.R. 69.601(b)), or (ii) is a person or entity that, on or after such date of
enactment, became a successor or assign of a member described in clause (i).
"InterLATA" means Telecommunications between a point located in a local
access and transport area and a point located outside such area.
"Local Access and Transport Area" or "LATA" means a contiguous geographic
area: (a) established before the date of enactment of the Act by a Bell
operating company such that no Exchange Area includes points within more than
one (1) metropolitan statistical area, consolidated metropolitan statistical
area, or State, except as expressly permitted under the AT&T Consent Decree; or
(b) established or modified by a Bell operating company after such date of
enactment and approved by the FCC.
"Local Exchange Carrier" means any person that is engaged in the provision
of Telephone
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Exchange Service or Exchange Access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial mobile service under
Section 332(c) of the Act, except to the extent that the FCC finds that such
service should be included in the definition of such term.
"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 and collection or used in the transmission, routing, or other provision
of a Telecommunications Service.
"Number Portability" means the ability of end 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.
"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.
"Telecommunications Carrier" means any provider of Telecommunications
Services, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Communications
Act).
"Telecommunications Service" 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.
"Telephone Exchange Service" means (a) service within a telephone exchange
or within a connected system of telephone exchanges within the same exchange
area operated to furnish subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the exchange
service charge, or (b) comparable service provided through a system of switches,
transmission equipment, or other facilities (or combination thereof) by which a
subscriber can originate and terminate a telecommunications service.
"Telephone Toll Service" means telephone service between stations in
different exchange areas for which there is made a separate charge not included
in contracts with subscribers for exchange service.
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SCHEDULE 4.5
INTERCONNECTION POINTS FOR DIFFERENT TYPES OF TRAFFIC
Each Party shall provide the other Party with Interconnection to its
network at the following points for transmission, routing and termination. Each
Party shall make available at its Interconnection Points facilities to route the
traffic it receives to the appropriate final destination. Compensation for such
facilities will be as set forth in Exhibit A or as provided elsewhere herein.
1. For the termination of Local Traffic or Toll Traffic originated by one
Party's Customer and terminated to the other Party's Customer, at the points set
forth in subsections 4.2 and/or 4.3 of the main body of the Agreement.
2. For the termination of Meet Point Billing Traffic from an IXC to:
(a) Covad, at the Covad-IP in LATA in which the Traffic is to
terminate.
(b) BA, at the BA-IP in LATA in which the Traffic is to terminate.
3. For the termination of Transit Traffic from an ITC, wireless carrier,
or other CLEC to:
(a) Covad, at the Covad-IP in which the Traffic is to terminate.
(b) BA, at the BA-IP in LATA in which the Traffic is to terminate.
4. For 911/E911 traffic originated on Covad's network, at the PSAP in
areas where only Basic 911 service is available, or at the BA 911 Tandem Office
serving the area in which the Covad Customer is located, in accordance with
applicable state laws and regulations and PSAP requirements.
5. For Directory Assistance (411 or NPA-555-1212) traffic, at the
applicable BA Wire Center or the BA operator services Tandem Office subtended by
such Wire Center.
6. For Operator Services (call completion) traffic, at the applicable BA
Wire Center or the BA operator services Tandem Office subtended by such Wire
Center.
7. For LSV/VCI traffic, at the terminating Party's Wire Center or operator
services Tandem Office subtended by such Wire Center.
8. For SS7 signaling originated by:
(a) Covad, at mutually agreed-upon Signaling Point of
Interconnection(s) ("SPOI") in the LATA in which the Local or Toll Traffic
originates, over CCSAC links provisioned in accordance with Bellcore GR-905 and
Bell Atlantic Supplement Common Channel
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Signaling Network Interface Specification (BA_905).
(b) BA, at mutually agreed-upon SPOIs in the LATA in which the Local
or Toll Traffic originates, over a CCSAC links provisioned in accordance with
Bellcore GR-905 and BA-905.
Alternatively, either Party may elect to interconnect for SS7 signaling through
a commercial SS7 hub provider.
9. For 800/888 database inquiry traffic, at any BA Signaling Transfer
Point in the LATA in which the originating Covad Wire Center is located, over a
CCSAC link. Alternatively, Covad may elect to interconnect through a commercial
SS7 hub provider.
10. For Line Information Database ("LIDB") inquiry traffic, at any BA
Signaling Transfer Point in the LATA in which the LIDB is located, over a CCSAC
link. Alternatively, Covad may elect to interconnect through a commercial SS7
hub provider.
11. For any other type of traffic, at reasonable points to be agreed upon
by the Parties, based on the network architecture of the terminating Party's
network.
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SCHEDULE 11.3
ACCESS TO NETWORK INTERFACE DEVICE
1. Due to the wide variety of NIDs utilized by BA (based on Customer size
and environmental considerations), Covad may access the Customer's Inside Wire
by any of the following means:
(a) Where an adequate length of Inside Wire is present and
environmental conditions permit, Requesting Carrier may remove the Inside Wire
from BA's NID and connect that wire to Covad's NID;
(b) Enter the Customer access chamber or "side" of "dual chamber"
NID enclosures for the purpose of extending a connecterized or spliced jumper
wire from the Inside Wire through a suitable "punch-out" hole of such NID
enclosures;
(c) Request BA to make other rearrangements to the Inside Wire
terminations or terminal enclosure on a time and materials cost basis to be
charged to the requesting party (i.e., Covad, its agent, the building owner or
the Customer).
2. If Covad accesses the Customer's Inside Wire as described in Paragraph
1(c) above, the Tariffed time and materials charges will be billed to the
requesting party (i.e., Covad, the building owner or the Customer).
3. In no case shall Covad remove or disconnect BA's loop facilities from
BA's NIDs, enclosures, or protectors.
4. In no case shall Covad remove or disconnect ground wires from BA's
NIDs, enclosures, or protectors.
5. In no case shall Covad remove or disconnect NID modules, protectors, or
terminals from BA's NID enclosures.
6. Maintenance and control of premises wiring (Inside Wire) is the
responsibility of the Customer. Any conflicts between service providers for
access to the Customer's Inside Wire must be resolved by the Customer.
7. Due to the wide variety of NID enclosures and outside plant
environments, BA will work with Covad to develop specific procedures to
establish the most effective means of implementing this Schedule 11.3.
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SCHEDULE 11.4
UNBUNDLED SWITCHING ELEMENTS
Local Switching
The unbundled local Switching Elements include line side and trunk side
facilities (e.g. line and trunk side Ports such as analog and ISDN line side
Ports and DS1 trunk side Ports) plus the features, functions, and capabilities
of the switch. It consists of the line-side Port (including connection between a
loop termination and a switch line card, telephone number assignment, basic
intercept, one primary directory listing, presubscription, and access to 911,
operator services, and directory assistance), line and line group features
(including all vertical features and line blocking options that the switch and
its associated deployed switch software is capable of providing and are
currently offered to BA's local exchange customers), usage (including the
connection of lines to lines, lines to trunks, trunks to lines, and trunks to
trunks), and trunk features (including the connection between the trunk
termination and a trunk card).
BA shall offer, as an optional chargeable feature, daily usage tapes.
Covad may request activation or deactivation of features on a per-port basis at
any time, and shall compensate BA for the non-recurring charges associated with
processing the order. Covad may submit a Bona Fide Request for other switch
features and functions that the switch is capable of providing, but which BA
does not currently provide, or for customized routing of traffic other than
operator services and/or directory assistance traffic. BA shall develop and
provide these requested services where technically feasible with the agreement
of Covad to pay the recurring and non-recurring costs of developing, installing,
updating, providing and maintaining these services.
Tandem Switching
The unbundled tandem Switching Element includes trunk-connect facilities,
the basic switching function of connecting trunks to trunks, and the functions
that are centralized in Tandem Switches. Unbundled tandem switching creates a
temporary transmission path between interoffice trunks that are interconnected
at a BA Access Tandem for the purpose of routing a call or calls.
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SCHEDULE 3.0
INITIAL NETWORK IMPLEMENTATION SCHEDULE FOR NEW JERSEY
In accordance with the provisions of Section 3 of the Agreement, the
Parties shall make their best efforts to meet the following initial Milestones
no later than the listed Dates.
================================================================================
LATA in Milestone Date
NEW JERSEY
- --------------------------------------------------------------------------------
LATA ___ LATA Start Date TBD
-----------------------------------------------------------
SS7 Certification, Collocation, TBD
Operator Services/DA Facilities, and
NXX(s) Applied For
-----------------------------------------------------------
Parties Agree on Trunking Arrangements TBD
for Traffic Exchange
-----------------------------------------------------------
Valid Access Service Request(s) TBD
("ASRs") for Traffic Exchange Trunk
Groups and Routing Information Received
by BA
-----------------------------------------------------------
Valid Orders for 911 Facilities TBD
Received by BA
-----------------------------------------------------------
All Trunks (Traffic Exchange, Operator TBD
Services/DA, 911) Tested and Turned Up
-----------------------------------------------------------
SS7 Certification Achieved; 1 TBD
Collocation Arrangements Complete for
Trunk Interconnection and Access to
Network Elements
-----------------------------------------------------------
Arrangements for Alternate-Billed Calls TBD
Agreed Upon
-----------------------------------------------------------
Call-through Testing Completed; TBD
"Interconnection Activation Date"
================================================================================
Failure of a Party or the Parties to meet an earlier Milestone Date shall
not relieve either Party of the responsibility to make its best efforts to meet
subsequent Milestone Date(s) in the LATA, unless, and only to the extent that,
the subsequent Milestone Date(s) depend on the timely completion of such earlier
Milestone Date.
For purposes of Section 3, (i) business Telephone Exchange Service shall
be considered "fully operational" in a LATA in New Jersey when Covad has an
effective Tariff for business Telephone Exchange Service in New Jersey and a
significant number of Telephone Exchange Service Customer lines in service for
business Telephone Exchange Service Customers in that LATA in New Jersey that
are not affiliates or employees of either BA or Covad, and (ii) residential
Telephone Exchange Service shall be considered "fully operational" in a LATA in
New Jersey when Covad has an effective Tariff for
- ----------
(1) SS7 certification scheduling depends on actual schedule availability at time
of request. Initial implementation will be multi-frequency until SS7
certification is achieved.
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residential Telephone Exchange Service in New Jersey and has a significant
number of Telephone Exchange Service Customer lines in service for residential
Telephone Exchange Service Customers in that LATA in New Jersey that are not
affiliates or employees of either BA or Covad.
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SCHEDULE 6.3
RATE ELEMENTS UNDER MEET POINT BILLING
Interstate Access - Terminating to or originating from COVAD Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
Intrastate Access - Terminating to or originating from COVAD Customers (Pre-LTR
tariff)
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Transport Based on negotiated billing
percentage (BIP)
Intrastate Access - Terminating to or originating from COVAD Customers (Post-LTR
tariff)
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line COVAD
Local Switching COVAD
Interconnection Charge COVAD
Local Transport Facility/
Tandem Switched Transport Per Mile Based on negotiated billing
percentage (BIP)
Tandem Switching BA
Local Transport Termination/
Tandem Switched Transport Fixed BA
Entrance Facility BA
800 Database Query Party that performs query
<PAGE>
SCHEDULE 12.3
SUPPORT SERVICES FOR RESALE
1. BA OSS SERVICES
1.1 Definitions
As used in the Schedule 12.3, the following terms shall have the meanings
stated below:
1.1.1 "BA Operations Support Systems" means BA systems for pre-ordering,
ordering, provisioning, maintenance and repair, and billing.
1.1.2 "BA OSS Services" means access to BA Operations Support Systems
functions. The term "BA OSS Services" includes, but is not limited to: (a)
BA's provision of Covad Usage Information to Covad pursuant to Section 1.3
below; and, (b) "BA OSS Information", as defined in Section 1.1.4 below.
1.1.3 "BA OSS Facilities" means any gateways, interfaces, databases,
facilities, equipment, software, or systems, used by BA to provide BA OSS
Services to Covad.
1.1.4 "BA OSS Information" means any information accessed by, or disclosed
or provided to, Covad through or as a part of BA OSS Services. The term
"BA OSS Information" includes, but is not limited to: (a) any Customer
Information related to a BA Customer or a Covad Customer accessed by, or
disclosed or provided to, Covad through or as a part of BA OSS Services;
and, (b) any Covad Usage Information (as defined in Section 1.1.6 below)
accessed by, or disclosed or provided to, Covad.
1.1.5 "BA Retail Telecommunications Service" means any Telecommunications
Service that Bell Atlantic provides at retail to subscribers that are not
Telecommunications Carriers. The term "BA Retail Telecommunications
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. ss. 153(16)) provided by BA.
1.1.6 "Covad Usage Information" means the usage information for a BA
Retail Telecommunications Service purchased by Covad under this Agreement
that BA would record if BA was furnishing such BA Retail
Telecommunications Service to a BA end-user retail Customer.
1.1.7 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
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1.2 BA OSS Services
1.2.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), BA OSS Services.
1.2.2 Subject to the requirements of Applicable Law, BA Operations Support
Systems, BA Operations Support Systems functions, BA OSS Facilities, BA
OSS Information, and the BA OSS Services that will be offered by BA, shall
be as determined by BA. Subject to the requirements of Applicable Law, BA
shall have the right to change BA Operations Support Systems, BA
Operations Support Systems functions, BA OSS Facilities, BA OSS
Information, and the BA OSS Services, from time-to-time, without the
consent of Covad.
1.3 Covad Usage Information
1.3.1 Upon request by Covad, BA shall provide to Covad, pursuant to
Section 251(c)(3) of the Act, 47 U.S.C. ss. 251(c)(3), Covad Usage
Information.
1.3.2 Covad Usage Information will be available to Covad through the
following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
1.3.3.1 Covad Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Section 1.3.2(a)
above will be issued each day, Monday through Friday, except holidays
observed by BA.
1.3.4 Except as stated in this Section 1.3, subject to the requirements of
Applicable Law, the manner in which, and the frequency with which, Covad
Usage Information will be provided to Covad shall be determined by BA.
1.5 Access to and Use of BA OSS Facilities
1.5.1 BA OSS Facilities may be accessed and used by Covad only to the
extent necessary for Covad's access to and use of BA OSS Services pursuant
to the Agreement.
1.5.2 BA OSS Facilities may be accessed and used by Covad only to provide
Telecommunications Services to Covad Customers.
1.5.3 Covad shall restrict access to and use of BA OSS Facilities to
Covad. This Schedule 12.3 does not grant to Covad any right or license to
grant sublicenses to other
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persons, or permission to other persons (except Covad's employees, agents
and contractors, in accordance with Section 1.5.7 below), to access or use
BA OSS Facilities.
1.5.4 Covad shall not (a) alter, modify or damage the BA OSS Facilities
(including, but not limited to, BA software), (b) copy, remove, derive,
reverse engineer, or decompile, software from the BA OSS Facilities, or
(c) obtain access through BA OSS Facilities to BA databases, facilities,
equipment, software, or systems, which are not offered for Covad's use
under this Schedule 12.3.
1.5.5 Covad shall comply with all practices and procedures established by
BA for access to and use of BA OSS Facilities (including, but not limited
to, BA practices and procedures with regard to security and use of access
and user identification codes).
1.5.6 All practices and procedures for access to and use of BA OSS
Facilities, and all access and user identification codes for BA OSS
Facilities: (a) shall remain the property of BA; (b) shall be used by
Covad only in connection with Covad's use of BA OSS Facilities permitted
by this Schedule 12.3; (c) shall be treated by Covad as Confidential
Information of BA pursuant to subsection 29.4 of the Agreement; and, (d)
shall be destroyed or returned by Covad to BA upon the earlier of request
by BA or the expiration or termination of the Agreement.
1.5.7 Covad's employees, agents and contractors may access and use BA OSS
Facilities only to the extent necessary for Covad's access to and use of
the BA OSS Facilities permitted by this Agreement. Any access to or use of
BA OSS Facilities by Covad's employees, agents, or contractors, shall be
subject to the provisions of the Agreement, including, but not limited to,
subsection 29.4 thereof and Sections 1.5.6 and 1.6.3.3 of this Schedule
12.3.
1.6 BA OSS Information
1.6.1 Subject to the provisions of this Schedule 12.3 and Applicable Law,
BA grants to Covad a non-exclusive license to use BA OSS Information.
1.6.2 All BA OSS Information shall at all times remain the property of BA.
Except as expressly stated in this Schedule 12.3, Covad shall acquire no
rights in or to any BA OSS Information.
1.6.3.1 The provisions of this Section 1.6.3 shall apply to all BA OSS
Information, except (a) Covad Usage Information, (b) CPNI of Covad, and
(c) CPNI of a BA Customer or a Covad Customer, to the extent the Customer
has authorized Covad to use the Customer Information.
1.6.3.2 BA OSS Information may be accessed and used by Covad only to
provide Telecommunications Services to Covad Customers.
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1.6.3.3 Covad shall treat BA OSS Information that is designated by BA,
through written or electronic notice (including, but not limited to,
through the BA OSS Services), as "Confidential" or "Proprietary" as
Confidential Information of BA pursuant to subsection 29.4 of the
Agreement.
1.6.3.4 Except as expressly stated in this Schedule 12.3, this Agreement
does not grant to Covad any right or license to grant sublicenses to other
persons, or permission to other persons (except Covad's employees, agents
or contractors, in accordance with Section 1.6.3.5 below, to access, use
or disclose BA OSS Information.
1.6.3.5 Covad's employees, agents and contractors may access, use and
disclose BA OSS Information only to the extent necessary for Covad's
access to, and use and disclosure of, BA OSS Information permitted by this
Schedule 12.3. Any access to, or use or disclosure of, BA OSS Information
by Covad's employees, agents or contractors, shall be subject to the
provisions of this Agreement, including, but not limited to, subsection
29.4 of the Agreement and Section 1.6.3.3 above.
1.6.3.6 Covad's license to use BA OSS Information shall expire upon the
earliest of: (a) the time when the BA OSS Information is no longer needed
by Covad to provide Telecommunications Services to Covad Customers; (b)
termination of the license in accordance with this Schedule 12.3; or (c)
expiration or termination of the Agreement.
1.6.3.7 All BA OSS Information received by Covad shall be destroyed or
returned by Covad to BA, upon expiration, suspension or termination of the
license to use such BA OSS Information.
1.6.4 Unless sooner terminated or suspended in accordance with the
Agreement or this Schedule 12.3 (including, but not limited to, subsection
22.3 of the Agreement and Section 1.7.1 above), Covad's access to BA OSS
Information through BA OSS Services shall terminate upon the expiration or
termination of the Agreement.
1.6.5.1 Without in any way limiting subsection 18.3 of the Agreement, BA
shall have the right (but not the obligation) to audit Covad to ascertain
whether Covad is complying with the requirements of Applicable Law and
this Agreement with regard to Covad's access to, and use and disclosure
of, BA OSS Information.
1.6.5.2 Without in any way limiting any other rights BA may have under the
Agreement or Applicable Law, BA shall have the right (but not the
obligation) to monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad pursuant to this Agreement, to
ascertain whether Covad is complying with the requirements of Applicable
Law and this Agreement, with regard to Covad's access to, and use and
disclosure of, such BA OSS Information. The foregoing right shall include,
but not be limited to, the right (but not the obligation) to
electronically monitor Covad's access to and use of BA OSS Information
which is made available by BA to Covad through BA OSS Facilities.
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1.6.5.3 Information obtained by BA pursuant to this Section 1.6.5 shall be
treated by BA as Confidential Information of Covad pursuant to subsection
29.4 of the Agreement; provided that, BA shall have the right (but not the
obligation) to use and disclose information obtained by BA pursuant to
this Section 1.6.5 to enforce BA's rights under the Agreement or
Applicable Law.
1.6.6 Covad acknowledges that the BA OSS Information, by its nature, is
updated and corrected on a continuous basis by BA, and therefore that BA
OSS Information is subject to change from time to time.
1.7 Liabilities and Remedies
1.7.1 Any breach by Covad, or Covad's employees, agents or contractors, of
the provisions of Sections 1.5 or 1.6 above shall be deemed a material
breach of the Agreement. In addition, if Covad or an employee, agent or
contractor of Covad at any time breaches a provision of Sections 1.5 or
1.6 above and such breach continues for more than ten (10) days after
written notice thereof from BA, then, except as otherwise required by
Applicable Law, BA shall have the right, upon notice to Covad, to suspend
the license to use BA OSS Information granted by Section 1.6.1 above
and/or the provision of BA OSS Services, in whole or in part.
1.7.2 Covad agrees that BA would be irreparably injured by a breach of
Sections 1.5 or 1.6 above by Covad or the employees, agents or contractors
of Covad, and that BA shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of any
such breach. Such remedies shall not be deemed to be the exclusive
remedies for any such breach, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
1.8 Relation to Applicable Law
The provisions of Sections 1.5, 1.6 and 1.7 above shall be in addition to
and not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. ss. 222, and are not intended to constitute a
waiver by BA of any right with regard to protection of the confidentiality
of the information of BA or BA Customers provided by Applicable Law.
1.9 Cooperation
Covad, at Covad's expense, shall reasonably cooperate with BA in using BA
OSS Services. Such cooperation shall include, but not be limited to, the
following:
1.9.1 Upon request by BA, Covad shall by no later than the fifteenth
(15th) day of each calendar month submit to BA reasonable, good faith
estimates (by central office or other BA office or geographic area
designated by BA) of the volume of each BA Retail
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Telecommunications Service for which Covad anticipates submitting orders
in each week of the next calendar month.
1.9.2 Upon request by BA, Covad shall submit to BA reasonable, good faith
estimates of other types of transactions or use of BA OSS Services that
Covad anticipates.
1.9.3 Covad shall reasonably cooperate with BA in submitting orders for BA
Retail Telecommunications Services and otherwise using the BA OSS
Services, in order to avoid exceeding the capacity or capabilities of such
BA OSS Services.
1.9.4 Covad shall participate in cooperative testing of BA OSS Services
and shall provide assistance to BA in identifying and correcting mistakes,
omissions, interruptions, delays, errors, defects, faults, failures, or
other deficiencies, in BA OSS Services.
1.10 BA Access to Information Related to Covad Customers
1.10.1 BA shall have the right to access, use and disclose information
related to Covad Customers that is in BA's possession (including, but not
limited to, in BA OSS Facilities) to the extent such access, use and/or
disclosure has been authorized by the Covad Customer in the manner
required by Applicable Law.
1.10.2 Upon request by BA, Covad shall negotiate in good faith and enter
into a contract with BA, pursuant to which BA may obtain access to Covad's
operations support systems (including, systems for pre-ordering, ordering,
provisioning, maintenance and repair, and billing) and information
contained in such systems, to permit BA to obtain information related to
Covad Customers (as authorized by the applicable Covad Customer), to
permit Customers to transfer service from one Telecommunications Carrier
to another, and for such other purposes as may be permitted by Applicable
Law.
2. BELL ATLANTIC PRE-OSS SERVICES
2.1 As used in this Schedule 12.3, "BA Pre-OSS Service" means a service
which allows the performance of an activity which is comparable to an
activity to be performed through a BA OSS Service and which BA offers to
provide to Covad prior to, or in lieu of, BA's provision of the BA OSS
Service to Covad. The term "BA Pre-OSS Service" includes, but is not
limited to, the activity of placing orders for BA Retail
Telecommunications Services through a telephone facsimile communication.
2.2 Subject to the requirements of Applicable Law, the BA Pre-OSS Services
that will be offered by BA shall be as determined by BA and BA shall have
the right to change BA Pre-OSS Services, from time-to-time, without the
consent of Covad.
2.3 Subject to the requirements of Applicable Law, the prices for BA
Pre-OSS Services shall be as determined by BA and shall be subject to
change by BA from time-to-time.
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2.4 The provisions of Sections 1.5 through 1.9 above shall also apply to
BA Pre-OSS Services. For the purposes of this Section 2.4: (a) references
in Sections 1.5 through 1.9 above to BA OSS Services shall be deemed to
include BA Pre-OSS Services; and, (b) references in Sections 1.5 through
1.9 above to BA OSS Information shall be deemed to include information
made available to Covad through BA Pre-OSS Services.
3. RATES AND CHARGES
The prices for the foregoing services shall be as set forth in BA's
Tariffs or, in the absence of an applicable BA Tariff price, in Exhibit A
or, if not set forth in either, as may be determined by BA from time to
time. If BA at any time offers another resale support service the prices
for which are not stated in BA's Tariffs or Exhibit A, BA shall have the
right to revise Exhibit A to add such prices.
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SCHEDULE 13.4
COLLOCATION: SHARED CAGE ARRANGEMENT
1. Service Description
(A) Shared Cages provide an additional option to Covad for
Interconnection and access to unbundled Network Elements. Shared
Cages refers to an arrangement in which a Collocation node is shared
by two CLECs purusant to terms and conditions agreed to by those
CLECs.
(B) For established collocation nodes, the initial CLEC is the
"Collocator of Record" ("COR"), or "host" collocator; the other
collocator participating in the sharing arrangement is referred to
in this Agreement as the "guest". When two collocators request
establishment of a new Collocation node, to be used as a Shared
Cage, one of the participating CLECs must agree to be the COR and
the other to be the guest. The host collocator is BA's customer, and
has all of the rights and obligations applicable under this
Agreement and the applicable Tariff to CLECs purchasing
Collocation-related services, including, without limitation, the
obligation to pay all applicable charges, whether or not the COR is
reimbursed for all or any portion of such charges by the guest.
Neither this Agreement, nor any actions taken by BA or the COR in
compliance with this Agreement or the applicable Tariff, shall
create a contractual, agency, or any other type of relationship
between BA and the guest collocator in a sharing arrangement; and BA
does not assume any liability or obligation to the guest for any
actions of the COR. The two involved collocators are solely
responsible for determining whether to share a cage, and if so upon
what terms and conditions.
2. Shared Cage Arrangement
(A) The host CLEC must notify BA in writing of its intention to share
its cage space and provide BA with a certificate of insurance from
the guest before the guest occupies the cage.
(B) All orders for Telecommunications Services or unbundled Network
Elements must be placed by or on behalf of the COR. The host and
guest may agree that such orders may be placed by the guest on
behalf of the host, but in such case BA must be provided with an
acceptable Letter of Authorization explicitly authorizing the guest
to place such orders. Where an order is placed by the guest in
conformity with this section BA will send bills for the ordered
services to the guest, and will accept payments from the guest on
the COR's account. Notwithstanding such ordering and billing
arrangements, the obligation to pay BA for such services
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remains exclusively with the COR, regardless of whether the guest
complies with its obligations under its contract with the COR to
make payments to the COR or to BA. BA may pursue any available
rights and remedies against the COR in the event of non-payment,
without first seeking payment from the guest, regardless of whether
the services for which payment is due are being used by the COR or
by the guest.
(C) All terms and conditions for Physical Collocation as described in
applicable Tariffs and in Section 13.0 of this Agreement will apply.
In addition, the following terms and conditions will apply to shared
cages:
(1) The guest must be a CLEC.
(2) The host and guest must each be collocating for the purpose of
interconnecting to BA or accessing BA's unbundled Network
Elements.
(3) In its use of a Shared Cage, the guest must comply with the
same BA rules and regulations and municipal/zoning regulations
as are applicable to the COR.
(4) The COR assumes the responsibility for the guest's violation
of all Tariff regulations and other requirements related to a
Shared Cage arrangement, and will be liable for any damage or
injury to BA caused by the conduct of the guest, to the same
extent as the COR would be liable if it had engaged in such
conduct itself. The COR will also indemnify BA against any
third-party claims resulting from the guest's conduct, to the
same extent as it would be responsible for such
indemnification if it had engaged in such conduct itself.
(5) The host and guest will participate in Method of Procedure
(MOP) meetings detailing the installation work to be performed
by the guest. This shall be completed for all Physical
Collocation equipment installation. The host shall prominently
display the signed MOP at the multiplexing node while any
installation functions are performed.
(6) The host must provide BA's designated representative(s) with a
list of the names of all technicians who will need access to
the Shared Cage for support, maintenance and repair purposes.
The host is responsible for supplying such representative(s)
with the required completed non-employee ID badge application
forms and all appropriate indentification material for its
employees/agents as well as those of the guest.
(7) BA will issue only one identifying cage and POT Bay CLLI code
and provide it to the host. The host will assume connecting
facility assignment (CFA) responsibilities.
(8) All occupancy and specific cage construction communications
(e.g., cage
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augments, cage access or deployment requirements) will be
between the host and BA as specified in this Agreement.
(9) The host will remain responsible for all costs associated with
the cage (e.g., cage construction, POT Bay installation). BA
will not split bill any of the rate elements associated with
the Collocation cage between the host and its tenant (e.g.,
recurring square foot charges, power, cable racking).
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SCHEDULE 27.2
PERFORMANCE MONITORING REPORTS, STANDARDS AND REMEDIES
1. Performance Monitoring Reports
1.1. Subject to the provisions of this Schedule 27.2, BA shall provide to Covad
performance monitoring reports ("Performance Monitoring Reports") for services
and facilities provided by BA. Subject to the provisions of Appendix 1, the
Performance Monitoring Reports will include the measurements set forth in
subsections (a) through (d) of this Section 1.1, to the extent the measurements
set forth in a subsection are applicable to the services set forth in such
subsection: (a) for services provided to BA's retail customers, in the
aggregate, the measurements stated in Appendix 1, Section 6, "Retail"; (b) for
services and facilities provided to any BA local exchange affiliate purchasing
Interconnection,(1) if BA decides to operate a wholesale carrier, the
measurements stated in Appendix 1, Section 2, "Unbundled Network Elements",
Section 3, "Resale", and Section 4, "Network Interconnection Trunks"; (c) for
services and facilities provided to carriers purchasing Interconnection, in the
aggregate, the measurements stated in Appendix 1, Section 1, "OSS", Section 2,
"Unbundled Network Elements", Section 3, "Resale", Section 4, "Network
Interconnection Trunks", and Section 5, "CLEC Billing"; and, (d) for services
and facilities provided to Covad, the measurements stated in Appendix 1, Section
2, "Unbundled Network Elements", Section 3, "Resale", and Section 4, "Network
Interconnection Trunks".(2)
- ----------
(1) As used in this Schedule 27.2, Section 1.1, "Interconnection" includes
interconnection, transport and termination, services for resale, and/or access
to unbundled network elements, under Section 251 of the Act, as amended.
(2) The measurements listed in subsections (b) and (d) do not include Section 2,
"Unbundled Network Elements", Measurement 7, "% Flow Through Orders", and
Section 3, "Resale", Measurement 7, "% Flow Through Orders".
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1.2 The Performance Monitoring Reports shall be provided on a calendar quarter
basis (January through March, April through June, July through September,
October through December) with monthly information detail. The Performance
Monitoring Reports shall be provided within forty-five (45) days after the
completion of each calendar quarter. The first Performance Monitoring Reports
shall cover the calendar quarter of [?], 1998.
2. Performance Metrics, Standards and Remedies
2.1 Appendix 2 sets out performance standards for 21 service quality measurement
items ("Performance Metrics") listed in the Performance Monitoring Reports. BA
shall measure on a calendar quarter basis BA's performance for each Performance
Metric for service provided to Covad.
2.2 If for any calendar quarter BA fails to meet the standard for a Performance
Metric for service provided to Covad, BA will conduct an investigation with
regard to the failure. The investigation will review the validity of the
measurement for the Performance Metric, and, if the measurement is concluded to
be valid, identify the cause of the failure. After identifying the cause of the
failure, BA will take commercially reasonable action to correct the failure
resulting from such cause. Covad shall provide all information and support
reasonably requested by BA in order to enable BA to conduct the investigation
and to correct any failure.
2.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2, above, to the extent the failure to meet the standard
for a Performance Metric is caused by a Delaying Event. As used in this Schedule
27.2, "Delaying Event" means: (a) a failure by Covad to perform any of its
obligations set forth in this Agreement; (b) any delay, act or failure to act by
Covad or a customer, end-user, agent, affiliate, representative, vendor, or
contractor of Covad; (c) any Force Majeure Event
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as defined in Section 28.3; (d) any event, delay, act or failure to act, beyond
the reasonable control of BA; or, (e) such other event, delay, act or failure to
act upon which the Parties may agree. In calculating a Performance Metric, BA
may adjust the performance data to exclude any negative effect upon BA's meeting
the standard for the Performance Metric caused by a Delaying Event. If, pursuant
to this Section 2.3.1, BA adjusts performance data to exclude a negative effect
upon BA's meeting the standard for a Performance Metric caused by a Delaying
Event, BA shall provide to Covad a reasonably detailed description of the
adjustment. If Covad disputes the appropriateness of the adjustment, either
Party may seek resolution of the dispute in accordance with Section 28.11 of the
Agreement.
2.3.2 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric that shows a failure to meet
a performance standard if BA can reasonably show that (a) the measurement for
the Performance Metric does not have a statistically valid basis, or (b) the
data measured for service provided to Covad cannot be validly compared to the
measurement to which Appendix 2 specifies such data is to be compared (e.g., the
measurement for service provided to BA retail customers). If, pursuant to the
preceding sentence of this Section 2.3.2, BA excludes from action under Section
2.2 any Performance Metric, BA shall provide to Covad a reasonably detailed
explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
2.3.3 BA may exclude from consideration in calculating Performance Metrics any
activities where Covad has requested a date due or other performance interval
different from (greater or less than) that which BA provides for its own retail
customers or its other telecommunications carrier customers.
2.3.4 BA shall not be obligated to take investigative or corrective action
pursuant to Section 2.2 for any Performance Metric where the data for two or
more months in a calendar quarter have been
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excluded from consideration pursuant to the provisions of this Agreement.
2.4 For each Performance Metric related to UNE or Resale Services that requires
calculation of a percentage, a minimum of 200 items per calendar quarter for the
denominator shall be a prerequisite (e.g., a/200 x 100 = b%). Lack of the
minimum 200 items will result in BA being deemed to have met the standard for
that Performance Metric. For each Performance Metric related to Interconnection
Trunks that requires calculation of a percentage, a minimum of 50 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/50 x 100 =
b%). Lack of the minimum 50 items will result in BA being deemed to have met the
standard for that Performance Metric.
2.5 As used in Appendix 2 for those Performance Metrics where "Parity" is the
standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
3. Performance Measurements, Standards and Remedies
3.1 Appendix 3 sets forth nine (9) performance categories ("Performance
Categories"). Each Performance Category is composed of one or more performance
measurements, which are listed in the left-hand column of each Performance
Category matrix ("Performance Measurements"). Each Performance Category
point-score, when calculated, will be the sum of the point-scores of the
Performance Measurements composing that Performance Category, and may be "0", a
positive number (+1 or higher), or a negative number (-1 or less).
3.2 BA shall measure on a calendar quarter basis BA's performance for each
Performance Measurement for service provided to Covad. No later than sixty (60)
days after the completion of each calendar quarter, BA shall forward to Covad a
statement showing BA's performance for each Performance Measurement for service
provided to Covad and a calculation of each Performance
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Category point-score ("Performance Statement").
3.3 If for any calendar quarter BA fails to obtain a point-score of "0" or
higher for a Performance Measurement for service provided to Covad, BA will
conduct an investigation with regard to the failure. The investigation will
review the validity of the measurement for the Performance Measurement, and, if
the measurement is concluded to be valid, identify the cause of the failure.
After identifying the cause of the failure, BA will take commercially reasonable
action to correct the failure resulting from such cause. Covad shall provide all
information and support reasonably requested by BA in order to enable BA to
conduct this investigation and to correct any failure to obtain a point-score of
"0" or higher for the Performance Measurement.
3.4.1 Subject to the provisions of this Schedule 27.2 and other applicable
provisions of this Agreement, if the point-score for a Performance Category for
service provided to Covad is a negative number (-1 or less) for two (2)
consecutive calendar quarters, BA shall give a billing credit to Covad in the
amount provided for in Appendix 3 ("Performance Credit"). A Performance Credit
shall be given for the second consecutive calendar quarter and for each
subsequent consecutive calendar quarter for which the point-score for the
Performance Category is a negative number (-1 or less). Each Performance
Statement shall include a statement showing any Performance Credit due to Covad.
Each Performance Credit which is due shall be applied to an appropriate Covad
bill no later than thirty (30) days after the Performance Statement stating that
the Performance Credit is due is delivered to Covad.
3.4.2 If the point-score for a Performance Category for service provided to
Covad is a positive number (+1 or more), BA may use the positive point-score for
that Performance Category to off-set a negative point-score for that Performance
Category for the next calendar quarter.
3.4.3.1 BA shall not be obligated to take investigative or corrective action
pursuant to Section 3.3, or
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to pay a Performance Credit, to the extent the negative point-score for a
Performance Measurement or Performance Category is caused by a Delaying Event,
as defined in Section 2.3.1, above. In calculating a Performance Measurement, BA
may adjust the performance data to exclude any negative effect on BA's meeting
the performance standard for the Performance Measurement caused by a Delaying
Event. If, pursuant to this Section 3.4.3.1, BA adjusts performance data to
exclude a negative effect on BA's meeting the performance standard for a
Performance Measurement caused by a Delaying Event, BA shall provide to Covad a
reasonably detailed description of the adjustment. If Covad disputes the
appropriateness of the adjustment, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.2 BA may exclude from consideration in calculating Performance Category
Point Scores and Performance Credits, and shall not be obligated to take
investigative or corrective action pursuant to Section 3.3 with regard to, any
Performance Measurement that shows a failure to meet a performance standard if
BA can reasonably show that (a) the measurement for the Performance Measurement
does not have a statistically valid basis, or (b) the data measured for service
provided to Covad cannot be validly compared to the measurement to which
Appendix 3 specifies such data is to be compared (e.g., the measurement for
service provided to BA retail customers). If, pursuant to the preceding sentence
of this Section 3.4.3.2, BA excludes from consideration in calculating
Performance Category Point Scores and Performance Credits and from action under
Section 3.3 any Performance Measurement, BA shall provide to Covad a reasonably
detailed explanation of the basis for the exclusion. If Covad disputes the
appropriateness of the exclusion, either Party may seek resolution of the
dispute in accordance with Section 28.11 of the Agreement.
3.4.3.3 BA may exclude from consideration in calculating Performance
Measurements any activities
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where Covad has requested a date due or other performance interval different
from (greater or less than) that which BA provides for its own retail customers
or its other telecommunications carrier customers.
3.4.3.4 BA may also exclude from consideration in calculating Performance
Category point-scores and Performance Credits, and shall not be obligated to
take investigative or corrective action pursuant to Section 3.3 with regard to,
any Performance Measurement where the data for two or more months in a calendar
quarter have been excluded from consideration pursuant to the provisions of this
Agreement.
3.4.4 For each Performance Measurement related to OSS, UNE, Resale Services or
Billing, that requires calculation of a percentage, a minimum of 200 items per
calendar quarter for the denominator shall be a prerequisite (e.g., a/200 x 100
= b%). Lack of the minimum 200 items will result in BA receiving a "0 Points"
score for that Performance Measurement. For each Performance Measurement related
to Interconnection Trunks that requires calculation of a percentage, a minimum
of 50 items per calendar quarter for the denominator shall be a prerequisite
(e.g., a/50 x 100 = b%). Lack of the minimum 50 items will result in BA
receiving a "0 Points" score for that Performance Measurement.
3.4.5 As used in Appendix 3 for those Performance Measurements where "Parity" is
the standard, "Parity" will be determined in accordance with Appendix 4,
"Statistical Methodology for Determining 'Parity' Range".
4. Notwithstanding anything in this Agreement to the contrary, the Performance
Metrics, Performance Metrics standards, Performance Measurements, Performance
Measurements standards, Performance Categories, and Performance Credits,
provided for in this Schedule 27.2 shall also apply to Covad with regard to OSS,
UNE, Resale Services, Interconnection Trunks,
7
<PAGE>
and other services and arrangements, purchased by BA from Covad. Covad shall for
OSS, UNE, Resale Services, Interconnection Trunks, and other services and
arrangements, purchased by BA from Covad, provide to BA Performance Monitoring
Reports and Performance Statements similar to those to be provided by BA to
Covad. If Covad fails to meet a standard for a Performance Metric or a
Performance Measurement or incurs a negative point-score on a Performance
Category, Covad shall (a) undertake correction of the failure, to the same
extent as BA would be required to undertake correction of the failure under this
Schedule 27.2, and (b) give Performance Credits to BA, to the same extent as BA
would be required to give Performance Credits to Covad under this Schedule 27.2.
5. Appendix 1 sets out definitions for terms that are used in this Schedule
27.2. Except as clearly stated otherwise in a particular instance, these
definitions apply throughout this Schedule 27.2.
6. Covad agrees that the information contained in the Performance Reports and
the information contained in the Performance Statements is confidential and
proprietary to BA, and shall be used by Covad solely for internal performance
assessment purposes, for purposes of joint Covad and BA assessments of service
performance, and for reporting to the Commission, the FCC, or courts of
competent jurisdiction, under cover of an agreed-upon protective order, for the
sole purpose of enforcing BA's obligations under this Agreement. Covad shall not
otherwise disclose the information contained in the Performance Reports or
Performance Statements to third-persons.
7. BA shall provide Covad with access to the available data and information
necessary for Covad to verify the accuracy of the Performance Monitoring Reports
provided by BA to Covad. Covad agrees that such data and information is
confidential and proprietary to BA and shall be used by Covad solely for the
purpose of verifying the accuracy of the Performance Monitoring Reports. Covad
shall not disclose such data and information to third-persons. BA shall be
obligated to retain data and information for access by Covad under this Section
7 only for the period of time required by Applicable
8
<PAGE>
Laws.
8. In providing Performance Reports to Covad, providing Performance Statements
to Covad, providing Covad with access to data and information pursuant to
Section 7, above, and otherwise performing its obligations under this Schedule
27.2, BA shall not be obligated, and may decline, to disclose to Covad any
individually identifiable information pertaining to a person other than Covad,
including, but not limited to, any other carrier customer of BA or any retail
customer of BA.
9. The Parties acknowledge that this Schedule 27.2 is intended to implement
obligations of BA under the FCC's Memorandum Opinion and Order in "In the
Applications of NYNEX Corporation, Transferor, and Bell Atlantic Corporation,
Transferee, For Consent to Transfer Control of NYNEX Corporation and Its
Subsidiaries", File No. NSD-L-96-10, Released August 14, 1997. This Schedule
27.2 shall be interpreted and construed in a manner consistent with the FCC's
Memorandum Opinion and Order.
9
<PAGE>
SCHEDULE 27.2
APPENDIX 1
PERFORMANCE MONITORING REPORTS
1. OSS
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
OSS:
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time: Not Carrier Specific
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and
reservation
- --------------------------------------------------------------------------------
2. Availability of BA interface to OSS access: Not Carrier Specific
- --------------------------------------------------------------------------------
o % Interface Uptime(3)
- --------------------------------------------------------------------------------
- ----------
(3) This Schedule contemplates that measurements will be conducted in connection
with the use and/or operations of various BA systems (including, but not limited
to, ECG, EDI, WebGUI, and BA systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing). The Parties, through good faith
negotiation, shall amend this Schedule from time-to-time as necessary to conform
the Schedule to changes in, discontinuance of, or replacement of, BA systems.
Nothing in this Schedule shall be deemed to prevent BA from changing,
discontinuing or replacing any BA system or any version, issue or edition of a
BA system.
10
<PAGE>
2. UNBUNDLED NETWORK ELEMENTS ("UNE"):
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
- --------------------------------------------------------------------------------
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
11
<PAGE>
2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. - Dispatch
o % Missed Installation Appt. - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appt.
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Troubles within 30 days
- --------------------------------------------------------------------------------
12
<PAGE>
2. UNBUNDLED NETWORK ELEMENTS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Trouble Report Rate - Dispatch
o Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt - Dispatch
o % Missed Repair Appt - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Dispatch (Run
Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
Parity
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
13
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness: .
- --------------------------------------------------------------------------------
POTS:
- --------------------------------------------------------------------------------
o a. Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time - Order Confirmation
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials:
o Average Response Time: Order Confirmation
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
4. Reject Timeliness
POTS:
o a. Average Response Time - Rejects
o Mechanized (Flow-Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
o b. % On Time -Rejects
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
Specials
o Average Response Time - Rejects
o Mechanized (Flow Through) Orders
o Manual Orders:
o [less than] 10 Lines
o [greater than or equal to] 10 Lines
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
% Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
Average Response Time - Notice of Completion
- --------------------------------------------------------------------------------
14
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
7. % Flow Through Orders Tracked
Not Carrier Specific
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed -No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
15
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines)
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) -
Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment -
Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair (Run Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
16
<PAGE>
3. RESALE:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
17
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Ordering Process:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o a. Average Response Time: Firm Order
Confirmation
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
4. Reject Timeliness Manual Tracking
- --------------------------------------------------------------------------------
o a. Average Response Time: Rejects
- --------------------------------------------------------------------------------
o b. % [greater than] 10 days
- --------------------------------------------------------------------------------
5. % Rejects:
- --------------------------------------------------------------------------------
o % Rejects
- --------------------------------------------------------------------------------
6. Timeliness of Completion Notification:
- --------------------------------------------------------------------------------
o Average Response Time - Notice of Completion Manual Tracking
(Requires Serial Number)
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
18
<PAGE>
4. NETWORK INTERCONNECTION TRUNKS:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Network Performance
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Blockage
- --------------------------------------------------------------------------------
19
<PAGE>
5. CLEC BILLING (All Services, Interconnection, UNE and Resale):
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Usage Feed
- --------------------------------------------------------------------------------
o Timeliness of Usage Information
o % Usage in 3 business days
- --------------------------------------------------------------------------------
o % Usage in 4 business days
o % Usage in 5 business days
o % Usage in 8 business days
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Bill Not Carrier Specific
- --------------------------------------------------------------------------------
20
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Pre-Order Process:
- --------------------------------------------------------------------------------
1. Pre-Order Response Time:
- --------------------------------------------------------------------------------
o a. Customer Service Records
- --------------------------------------------------------------------------------
o b. Other Pre-Order (Aggregate of the following):
o Due Date Availability
o Product & Service Availability Information
o Address Validation
o Telephone number availability and reservation
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Offered - Dispatch
o Avg. Interval Offered - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Offered
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
POTS:
o Avg. Interval Completed - Dispatch
o Avg. Interval Completed - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Avg. Interval Completed
- --------------------------------------------------------------------------------
21
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
10. % Completed within 5 business days - Total
- --------------------------------------------------------------------------------
POTS:
o % Completed within 5 Days (1 to 5 Lines):
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appt. (BA) - Dispatch
o % Missed Appt. (BA) - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o % Missed Appt. (BA)
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
POTS:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
Specials:
o % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
POTS:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Specials:
o % Installation Trouble within 30 days
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
POTS:
o Network Trouble Report Rate - Total
o Network Trouble Report Rate - Dispatch
o Network Trouble Report Rate - No Dispatch
- --------------------------------------------------------------------------------
Specials:
o Network Trouble Report Rate (Dispatch +
No Dispatch)
- --------------------------------------------------------------------------------
15. % Missed Repair Appointments
- --------------------------------------------------------------------------------
POTS:
o % Missed Repair Appt. - Dispatch
o % Missed Repair Appt. - No Dispatch
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
POTS:
o Mean Time to Repair - Total (Run Clock)
o Mean Time to Repair - Dispatch (Run Clock)
o Mean Time to Repair - No Dispatch (Run
Clock)
- --------------------------------------------------------------------------------
Specials:
o Mean Time to Repair (Stop Clock)
- --------------------------------------------------------------------------------
22
<PAGE>
6. RETAIL:
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
POTS:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
Specials:
o % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
POTS:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
Specials:
o % Repeat Reports within 30 Days
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Trunks
- --------------------------------------------------------------------------------
Key Service Quality Measurements Notes
- --------------------------------------------------------------------------------
Provisioning Process
- --------------------------------------------------------------------------------
8. Average Interval - Offered
- --------------------------------------------------------------------------------
o Average Interval - Offered FGD
- --------------------------------------------------------------------------------
9. Average Interval - Completed
- --------------------------------------------------------------------------------
o Average Interval - Completed FGD
- --------------------------------------------------------------------------------
10. [Intentionally Omitted]
- --------------------------------------------------------------------------------
11. % Missed Installation Appointment -BA Reasons
- --------------------------------------------------------------------------------
o % Missed Installation Appointment (BA Reasons) FGD
- --------------------------------------------------------------------------------
12. % Missed Installation Appointment - Facilities
- --------------------------------------------------------------------------------
o % Missed Installation Appointment - Facilities FGD
- --------------------------------------------------------------------------------
13. % Installation Troubles within 30 Days
- --------------------------------------------------------------------------------
o % Installation Trouble within 30 days FGD
- --------------------------------------------------------------------------------
Maintenance and Repair Process
- --------------------------------------------------------------------------------
14. Network Trouble Report Rate
- --------------------------------------------------------------------------------
o Network Trouble Report Rate FGD
- --------------------------------------------------------------------------------
15. [Intentionally Omitted]
- --------------------------------------------------------------------------------
16. Mean Time to Repair
- --------------------------------------------------------------------------------
o Mean Time to Repair (Stop Clock) FGD
- --------------------------------------------------------------------------------
17. % Out of Service [greater than] 24 Hours
- --------------------------------------------------------------------------------
o % Out of Service [greater than] 24 Hours FGD
- --------------------------------------------------------------------------------
18. % Repeat Reports within 30 days
- --------------------------------------------------------------------------------
o % Repeat Reports within 30 Days FGD
- --------------------------------------------------------------------------------
19. % Common Final Trunk Blockage
- --------------------------------------------------------------------------------
23
<PAGE>
DEFINITIONS
The following definitions apply to the terms used in this Schedule 27.2.
Product Definitions:
- --------------------------------------------------------------------------------
Products: Definition:
- --------------------------------------------------------------------------------
o POTS services Retail and Resale POTS includes all non-designed
lines/circuits that originate at a customer's
premise and terminate on an OE (switch Office
Equipment). All others are considered specials.
POTS includes Centrex, Basic ISDN and PBX trunks.
- --------------------------------------------------------------------------------
UNE POTS includes Basic 2-Wire Analog Loop,
Customer specified signaling loops, Analog Line
Port, and Interim Number Portability. Includes
both new loops and "coordinated cutover" loop
orders. "Coordinated cutover" loops are orders
where a live customer is converted to a CLEC
re-using the outside plant facilities.
Coordination of all parties is necessary to
minimize disruption of service to the end user.
- --------------------------------------------------------------------------------
o Special Services Special Services ("Specials") are services or
elements that require design intervention. These
include such services/elements as: high capacity
services (DS1 or DS3), Primary rate ISDN, digital
services, private lines, multiplexing, and
Interoffice Facilities.
- --------------------------------------------------------------------------------
o Interconnection Trunks Includes switched local interconnection (message)
trunks carrying traffic between BA and CLEC
offices. Includes End Office and Tandem trunks.
- --------------------------------------------------------------------------------
o Number of Installation Total number of "N", "T", or "C" type orders.
Orders These orders include new orders, orders where the
service is moving to a different location, or
changes for existing service.
- --------------------------------------------------------------------------------
24
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Pre-Ordering: .
- --------------------------------------------------------------------------------
1. Response Time: Note: All Pre-Order measures are reported on an
aggregated basis and are not CLEC specific. Where
BA uses an access platform and Operations Support
System (OSS) that serve multiple states, BA may
combine measurement data from those states for
this measurement.
"Response time" is defined as the time, in
seconds, that elapses from issuance of a query
request to receipt of a response. For CLECs, this
performance is measured at the ECG access
platform. For BA, this performance is measured
directly to and from the Operations Support System
(OSS). (This measurement does not apply to the
WebGUI interface.)
Methodology: BA to sample ten (10) transactions
per hour per transaction type, for each interface,
from Monday to Friday, 8 a.m. to 5 p.m., via
Sentinel system. Sentinel will replicate the
transaction of a BA service representative going
directly to the OSS as well as a CLEC
representative going to the OSS through ECG.
- --------------------------------------------------------------------------------
o Customer Service Record Customer Service Records can range from 1 to about
200 pages.
BA may combine measurement data for PA and DE for
this measurement.
BA may combine measurement data for DC, MD, VA and
WV for this measurement.
- --------------------------------------------------------------------------------
o Other Pre-Order Includes the average response time for the
aggregate performance of the following: (1) due
date availability; (2) address validation; (3)
product & service availability; and, (4) telephone
number availability/reservation.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, WV) for this
measurement.
- --------------------------------------------------------------------------------
25
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
2. OSS Interface Note: All Pre-Order measures are reported on an
Availability aggregated basis and are not CLEC specific. Where
BA uses an access platform that serves multiple
states, BA may combine measurement data from those
states for this measurement.
Measures the percentage of time the OSS interface
is available compared to scheduled availability.
BA may combine measurement data from all BA--South
states (DE, DC, MD, NJ, PA, VA, (%) WV) for this
measurement.
- --------------------------------------------------------------------------------
Ordering:
- --------------------------------------------------------------------------------
3. Order Confirmation Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Mechanized WebGUI4 receipt of a valid order request to EDI or
Orders WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that
flow-through to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time: Manual Orders WebGUI receipt of a valid order request to EDI or
WebGUI distribution of service order confirmation.
Hours exclude weekends and holidays. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of a
valid Access Service Request ("ASR") to
distribution of a Firm Order Confirmation ("FOC").
Hours exclude weekends and holidays. Includes
orders for less than 96 trunks for which
facilities are available. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
- ----------
(4) As of the effective date of this Agreement, BA's WebGUI may not be fully
available for use in the BA-South states (DE, DC, MD, NJ, PA, VA, WV).
Accordingly, references in this Schedule 27.2 to BA's WebGUI are to BA's WebGUI
when and to the extent it is available for use by [CLEC].
26
<PAGE>
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the Firm
Order Confirmations are sent more than ten (10)
days after receipt of a valid ASR. Days exclude
weekends and holidays. All ASRs must be
electronically transmitted for this measurement to
apply. Does not include orders with negotiated
intervals.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
27
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
4. Reject Notice Timeliness:
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Mechanized WebGUI receipt of an order request to EDI or
WebGUI distribution of reject or query. Hours
exclude weekends and holidays. Includes orders
received via EDI or WebGUI that flow-through to
legacy OSS ordering and provisioning systems. Does
not include orders with negotiated intervals.
- --------------------------------------------------------------------------------
o UNE and Resale Average Average response time (in hours) from EDI or
Response Time - Manual WebGUI receipt of a service request to EDI or
WebGUI distribution of reject or query. Includes
orders received via EDI or WebGUI that require
manual input to legacy OSS ordering and
provisioning systems. Does not include orders with
negotiated intervals.
- --------------------------------------------------------------------------------
o Interconnection Trunks Average response time (in days) from receipt of an
Access Service Request ("ASR") to distribution of
a reject or query. Hours exclude weekends and
holidays. Includes orders for less than 96 trunks
for which facilities are available. All ASRs must
be electronically transmitted for measurement to
apply. Does not include orders with negotiated
intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Interconnection Trunks: % For Interconnection Trunk orders (non-negotiated
[greater than] 10 Days due dates), the percentage of ASRs where the
reject or query is sent more than 10 days after
receipt of an ASR. Days exclude weekends and
holidays. All ASRs must be electronically
transmitted for measurement to apply. Does not
include orders with negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
o Application Date/Time Orders received after 12 Noon Eastern Time will be
considered received the next business day.
- --------------------------------------------------------------------------------
28
<PAGE>
- --------------------------------------------------------------------------------
5. % Rejects The percent of total orders received that are
rejected or queried by BA.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
6. Timeliness of Completion The average interval (in days) from work
Notification completion to the distribution of the order
completion notification. Under the current
process: UNE non-loop and Resale order completion
notifications are transmitted either
electronically via EDI or WebGUI or via FAX; for
UNE loop orders, measurement is from the turnover
of the loop to telephonic acceptance by the CLEC;
and, for Interconnection Trunks, measurement is
from work completion to telephonic acceptance by
the CLEC at turn-up. Does not include orders with
negotiated intervals.
This measurement is currently under development
for Network Interconnection Trunks and will be
furnished for Network Interconnection Trunks when
available.
- --------------------------------------------------------------------------------
7. % Flow Through Orders The percentage of valid orders received via EDI or
WebGUI and processed directly to legacy service
order processor without manual intervention.
Flow-Through measurements are reported on an
aggregated basis and not on a CLEC specific basis.
Where BA uses an access platform and OSS that
serve multiple states, BA may combine measurement
data from those states for this measurement.
- --------------------------------------------------------------------------------
Provisioning:
- --------------------------------------------------------------------------------
8. Average Interval - Average number of business days between order
Offered application date and committed due date. The
application date is the date that a valid service
request is received. For orders received after 12
Noon Eastern Time the next business day is
considered the application date. Includes "W"
coded orders only. Does not include an order with
a due date that is beyond the standard available
appointment interval. Does not include coordinated
cut-over orders.
- --------------------------------------------------------------------------------
29
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
9. Average Interval - Average number of business days between order
Completed application date and actual work completion date.
The application date is the date that a valid
service request is received. Completion date is
the field completion date noted on the Service
Order. Includes "W" coded orders only. Orders
completed late due to a CLEC or CLEC end user
caused delay are excluded from this performance
measure. Does not include an order with a due date
that is beyond the standard available appointment
interval.
- --------------------------------------------------------------------------------
10. % Completed within For POTS orders of 1 to 5 lines. The percentage of
5 business days - Total orders completed in 5 business days between order
application date and actual work completion date.
The application date is the date that a valid
service request is received. Includes "W" coded
orders only. Orders completed late due to a CLEC
or CLEC end user caused delay are excluded from
this performance measure. Does not include an
order with a due date that is beyond the standard
available appointment interval. Does not include
coordinated cut-over orders, such as loop or
number portability orders.
- --------------------------------------------------------------------------------
11. % Missed Installation Percentage of all orders completed for which there
Appointment - BA - Total was a missed installation appointment caused by
BA. Excludes missed installation appointments
caused by CLEC or end user, including required
access not available during appointment interval.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require the
Appointment - Dispatch assignment of loop facilities, switching
office equipment, or both.
- --------------------------------------------------------------------------------
o % Missed Installation Same as above, for orders that require
Appointment - No switching translations work only. These
Dispatch are primarily "feature orders".
- --------------------------------------------------------------------------------
12. % Missed Installation Percentage of all orders completed for which there
Appointment - Facilities was a missed installation appointment due to lack
of BA facilities.
- --------------------------------------------------------------------------------
30
<PAGE>
- --------------------------------------------------------------------------------
13. % Installation Troubles Percentage of lines/circuits/trunks ordered for
within 30 Days which a Network Trouble (Disposition Codes, 3, 4
and 5) is reported and found within 30 days of
order completion. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), and troubles closed due to
customer action. Trouble reports on unregulated
services, such as Voice Messaging, are excluded.
- --------------------------------------------------------------------------------
31
<PAGE>
Key Service Quality Measurement Definitions:
- --------------------------------------------------------------------------------
Maintenance:
- --------------------------------------------------------------------------------
14. Network Trouble Report Total Initial Customer direct or referred Troubles
Rate reported on services by customer, where the
trouble disposition was found to be a network
problem (Disposition Codes 3, 4 and 5), per 100
lines/circuits/trunks in service. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Codes 3 (Drop Wire) and
Dispatch 4 (Outside Plant) only. Troubles found to be in
the Outside Plant facilities.
- --------------------------------------------------------------------------------
o Trouble Report Rate - Same as above, Disposition Code 5 (Central Office)
No Dispatch only. Troubles found to be within the Central
Office, including translation troubles.
- --------------------------------------------------------------------------------
15. % Missed Repair The percentage of Initial Network Trouble Reports
Appointments (Disposition Codes 3, 4 and 5) that are not
repaired and cleared by the time committed.
Excludes subsequent reports (additional customer
calls while the trouble is pending), Customer
Provided Equipment (CPE) troubles, troubles
reported but not found (Found OK and Test OK), and
troubles closed due to customer action. Also
excludes missed repair appointments caused by CLEC
or end user, including required access not
available during appointment interval. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch was
Appointment - Dispatch required outside of the BA Central Office and the
trouble was found in Outside Plant (Disposition
Codes 3 and 4). Troubles where there was both an
inside and an outside dispatch are included if the
final resolution was a loop trouble.
- --------------------------------------------------------------------------------
o % Missed Repair Same as above, for troubles where a dispatch may
Appointment - No have been required outside of the BA Central
Dispatch Office, but the trouble was resolved within the
Central Office. Includes translation type troubles
as well as Central Office type troubles.
- --------------------------------------------------------------------------------
32
<PAGE>
- --------------------------------------------------------------------------------
16. Mean Time to Repair For Initial Customer Trouble Reports found to be
network troubles (Disposition Codes 3, 4 and 5),
the average duration time from trouble receipt to
trouble clearance. Running clock for POTS
troubles. Stop Clock for Specials troubles and
Interconnection Trunk troubles. Excludes
subsequent reports (additional customer calls
while the trouble is pending), Customer Provided
Equipment (CPE) troubles, troubles reported but
not found (Found OK and Test OK), and troubles
closed due to customer action. Trouble reports on
unregulated services, such as Voice Messaging, are
excluded.
- --------------------------------------------------------------------------------
17. % Out of Service Network troubles (Disposition Codes 3, 4 and 5)
[greater than] 24 Hours out of service, repaired and cleared more than 24
hours after receipt of a customer trouble report,
as a percentage of total network troubles
(Disposition Codes 3, 4 and 5) out of service. Out
of Service means that there is no dial tone, the
customer cannot call out, or the customer cannot
be called. The Out of Service period commences
when the trouble is entered into BA's designated
trouble reporting interface either directly by the
CLEC or by a BA representative upon notification
by the CLEC. Excludes subsequent reports
(additional customer calls while the trouble is
pending), Customer Provided Equipment (CPE)
troubles, troubles reported but not found (Found
OK and Test OK), troubles closed due to customer
action, and troubles not out of service. Trouble
reports on unregulated services, such as Voice
Messaging, are excluded.
- --------------------------------------------------------------------------------
Key Service Quality Measurement Definitions:
33
<PAGE>
- --------------------------------------------------------------------------------
18. % Repeat Trouble The percentage of network troubles (Disposition
Reports within 30 days Codes 3, 4 and 5) cleared that have an additional
trouble within thirty (30) days for which a
network trouble (Disposition Codes 3, 4 and 5) is
found. A "Repeat Trouble Report" is a trouble on
the same line/circuit/trunk as a previous trouble
reported within the last thirty (30) calendar
days. A trouble report is not treated as a "Repeat
Trouble Report" where the original trouble report
was: trouble that had an originating disposition
code of CPE (customer premises
equipment--disposition codes 12 and 13); trouble
that had an originating disposition code of
Customer Action (disposition code 6); or, trouble
that originally closed as a Front End Close-Out. A
trouble report is also not treated as a "Repeat
Trouble Report" where the repeat report is: a
subsequent report (an additional customer call
while the trouble is pending); customer provided
equipment (CPE) trouble; trouble reported but not
found (Found OK and Test OK); or, trouble closed
due to customer action.
- --------------------------------------------------------------------------------
Network Performance:
- --------------------------------------------------------------------------------
19. % Common Final Trunk Measures the percentage of BA Common Final Trunk
Blockage Groups that exceed the applicable blocking design
threshold (either B.01 or B.005).
Common Final Trunks: Common Final Trunks carry
local traffic between BA end offices and the BA
Tandem and between BA end offices.
Does not include Common Final Trunks carrying only
IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA trunk
groups exceeding the applicable blocking design
threshold (either B.01 or B.005) will be reported.
For B.01 design, this is trunk groups exceeding a
threshold of about 3% blocking. For B.005 design,
this is trunk groups exceeding a threshold of
about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
- --------------------------------------------------------------------------------
34
<PAGE>
- --------------------------------------------------------------------------------
20. % Dedicated Final Trunk Measures the percentage of BA Dedicated Final
Blockage Trunk Groups that exceed the applicable blocking
design threshold (either B.01 or B.005).
Dedicated Final Trunks: Dedicated final trunk
groups carry local traffic from a BA Access Tandem
to a CLEC switch. A dedicated final trunk group
does not overflow.
Does not include IXC dedicated trunks or Dedicated
Final Trunks carrying only IXC traffic.
Blockage: The system used to measure trunk
performance is TNDS (Total Network Data System).
Monthly trunk blockage studies are based on a time
consistent busy hour. The percentage of BA to CLEC
dedicated final trunk groups exceeding the
applicable blocking design (either B.01 or B.005)
will be reported. For B.01 design, this is trunk
groups exceeding a threshold of about 3% blocking.
For B.005 design, this is trunk groups exceeding a
threshold of about 2% blocking.
BA may combine measurement data for PA and DE for
this measurement.
35
<PAGE>
- --------------------------------------------------------------------------------
Billing:
- --------------------------------------------------------------------------------
21. Timeliness of Daily Measures the number of business days from the
Usage Feed creation of the message to the date that the usage
information is made available to the CLEC on the
daily usage feed. Measured in percentage of usage
records available for transmission in 3, 4, 5, and
8 business days. The measurement includes both UNE
and Resale.
- --------------------------------------------------------------------------------
22. Timeliness of Carrier Measures the percentage of carrier bills ready for
Bill distribution to the carriers within 10 business
days of the bill date. Includes mechanized and
paper carrier CABS bills for both carrier access
and CLECs. Does not include summary bills sent
from CRIS. This is an aggregate measurement and
not CLEC specific.
- --------------------------------------------------------------------------------
36
<PAGE>
SCHEDULE 27.2
APPENDIX 2
PERFORMANCE METRICS, STANDARDS AND REMEDIES
A. Unbundled Network Elements
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(UNE KSQM 13)(5) Parity
- ----------
(5) "(UNE KSQM 13)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Metric.
37
<PAGE>
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(UNE KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair - Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair - No Dispatch (POTS)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(UNE KSQM 16) Parity
- --------------------------------------------------------------------------------
B. Resale Services
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (POTS) - No Dispatch
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Offered (Specials)
(Resale KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
Average Interval Completed (POTS) - No Dispatch
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
38
<PAGE>
- --------------------------------------------------------------------------------
Average Interval Completed (Specials)
(Resale KSQM 9) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (POTS)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
% Installation Troubles within 30 Days (Specials)
(Resale KSQM 13) Parity
- --------------------------------------------------------------------------------
2. Maintenance
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
Mean Time to Repair (POTS)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
Mean Time to Repair (Specials)
(Resale KSQM 16) Parity
- --------------------------------------------------------------------------------
C. Interconnection Trunks
1. Ordering and Provisioning
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
FOC Timeliness [greater than or equal
(Network Interconnection Trunks {"IT"} KSQM 3.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Rejects Timeliness [greater than or equal
(IT KSQM 4.b) to] 90% in 10 Days
- --------------------------------------------------------------------------------
Average Interval Offered
(IT KSQM 8) Parity
- --------------------------------------------------------------------------------
Average Interval Completed
(IT KSQM 9) Parity
- --------------------------------------------------------------------------------
D. Network Performance
1. Final Trunk Group Blocking
- --------------------------------------------------------------------------------
Performance Metric Standard
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Dedicated Final Trunk Group Blockage (CLEC Trunks) Standard, as
(IT KSQM 20) applicable)
- --------------------------------------------------------------------------------
(B.01 Design Standard
or B.005 Design
Common Final Trunk Group Blockage (Retail Trunks) Standard, as
(IT KSQM 19) applicable)
- --------------------------------------------------------------------------------
39
<PAGE>
Parity
"Parity" will be determined in accordance with the statistical methodology set
forth in Appendix 4, "Statistical Methodology for Determining 'Parity' Range".
"Parity" for UNE and Resale Services will be based upon a comparison of BA's
performance for the above Performance Metrics with BA's performance for the
appropriate corresponding Retail measurements set forth in Appendix 1, or, in
the absence of appropriate corresponding Retail measurements set forth in
Appendix 1, Retail measurements as reasonably determined and provided by BA.
Definitions, Conditions, Requirements & Exclusions for Appendix 2
See, "UNE Definitions, Conditions, Requirements & Exclusions", "Resale
Definitions, Conditions, Requirements & Exclusions", "Interconnection Trunk
Definitions, Conditions, Requirements & Exclusions", and "Billing Definitions,
Conditions, Requirements & Exclusions", in Appendix 3, which are incorporated
here by reference. As used in this Appendix 2, references to Performance
Measurements in "UNE Definitions, Conditions, Requirements & Exclusions",
"Resale Definitions, Conditions, Requirements & Exclusions", "Interconnection
Trunk Definitions, Conditions, Requirements & Exclusions", and "Billing
Definitions, Conditions, Requirements & Exclusions", in Appendix 3, shall be
deemed to be references to Performance Metrics.
Resale Services
1. Ordering and Provisioning. Average Interval Offered and Average Interval
Completed Performance Measurements do not include orders with negotiated
intervals.
Interconnection Trunks
1. FOC and Rejects measurements apply only to electronically received ASRs.
2. FOC and Rejects measurements apply only to additions to existing trunk
groups, adding less than 96 trunks, with no routing or translations changes.
3. Average Interval Offered measurement comparison is to IXC Feature Group D
switched access trunks provided by BA to IXCs.
4. Average Interval Offered measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
5. Average Interval Completed comparison is to IXC Feature Group D switched
access trunks provided by BA to IXCs.
6. Average Interval Completed measurement applies only to additions to existing
trunk groups, adding less than 96 trunks, with no routing or translations
changes.
40
<PAGE>
SCHEDULE 27.2
APPENDIX 3
PERFORMANCE MEASURMENTS, STANDARDS AND REMEDIES
A. Operational Support Systems
1. Performance Category 1 -- OSS Pre-Order Response Time and Availability
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Customer Service [greater than] 7.0 to 8.5 [less than]
Records 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.a)(6) difference difference difference
- -------------------------------------------------------------------------------------
</TABLE>
- ----------
(6) "(OSS KSQM 1)" identifies the Key Service Quality Measurement listed in
Appendix 1 which is the basis for measurement of this Performance Measurement.
41
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Response Time - Aggregated Other [greater than] 7.0 to 8.5 [less than]
Pre-Order Transactions 8.5 seconds seconds 7.0 seconds
(OSS KSQM 1.b) difference difference difference
- -------------------------------------------------------------------------------------
Access Platform Availability (1) [less than] 99 % [greater than
(OSS KSQM 2) Availability or equal to] 99%
Availability
- -------------------------------------------------------------------------------------
</TABLE>
(1) Excludes (a) scheduled maintenance and (b) unavailability of Operations
Support Systems (e.g., BOSS, Livewire) other than the access platform.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 to -2 points = 1 % of OSS Charges for the Measured Calendar Quarter
-3 points = 2 % of OSS Charges for the Measured Calendar Quarter
42
<PAGE>
OSS Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Response Time:
1. Performance Measurements and Performance Credits apply only to use of the ECG
gateway or such successor OSS gateway as shall be implemented and designated for
measurement under this Performance Category by BA.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
3. Performance Measurements apply only to CSR Retrieval and Aggregated Other
Pre-Order Transactions. Aggregated Other Pre-Order Transactions will initially
include Telephone Number Availability and Reservation, and Address Validation.
Product & Service Availability Information and Due Date Availability will be
added in the future.
4. Covad shall provide to BA forecasts of volumes at least six (6) months prior
to the commencement of the measured calendar quarter. Forecasts for UNE and
Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. Forecasts for Interconnection Trunk volumes (including both number of
orders to be submitted and number of items of service to be ordered) shall be
submitted by Covad either (a) for each month or (b) for each quarter, in which
case the quarterly volume will be pro-rated to a monthly volume. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in timely submitted forecasts by more than 15%
(plus or minus), BA may exclude that month from consideration in calculating
Performance Measurements and Performance Credits and determining whether BA is
obligated to take investigative or corrective action under Section 3.3. If Covad
fails to timely provide the forecasts of volumes to BA, BA may exclude
Performance Category 1 and the Performance Measurements in Category 1 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(7)
- ----------
(7) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
43
<PAGE>
all transactions for that day will be deemed to have at least met "Equals
Standard" ("O" Points).
6. These Performance Measurements are not carrier specific.
Access Platform Availability:
1. This Performance Measurement is not carrier specific. This Performance
Measurement measures the overall availability performance of the OSS access
platform and is not service or function specific.
2. Performance Measurements and Performance Credits will be calculated only if
the ECG gateway (or such successor OSS gateway as shall be implemented and
designated for measurement under this Performance Category by BA) has been fully
tested by the Parties and accepted by Covad, and is used by Covad for all
transactions.
44
<PAGE>
B. Unbundled Network Elements:
1. Performance Category 2 - UNE Ordering and Provisioning: (8)
- ----------
(8) "Performance Category 2 - UNE Ordering and Provisioning" does not include
measurement of Provisioning (measurement of Missed Installation Appointments)
for new 2 - Wire ISDN Digital Grade ULLs (BRI ISDN).
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(UNE KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(UNE KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(UNE KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order confirmation
(1) Orders received after 12:00 Noon Eastern Time shall have the "clock" start
at 8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 to -3 points = 5 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -4 to -5 points = 10 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
- -6 to -7 points = 15 % of UNE POTS and Specials Non-Recurring Charges for Covad
for the measured calendar quarter times the Missed Installation Factor(1)
45
<PAGE>
(1) Missed Installation Factor = (Missed Installation Appointments for UNE POTS
and Specials provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for UNE POTS and Specials provided by BA
to Covad for the measured calendar quarter) - (Missed Installation Appointments
for POTS and Specials provided by BA to BA retail customers for the measured
calendar quarter as a percentage of Installation Appointments for POTS and
Specials provided by BA to BA retail customers for the measured calendar
quarter).
If more than 10% of Covad's orders are rejected or queried by BA, (9) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
- ----------
(9) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
46
<PAGE>
2. Category 3 - Provisioning of 2-Wire ISDN Digital Grade ULLs (BRI ISDN) (10)
This section applies to missed installation appointments for orders of new(11)
2-Wire ISDN Digital Grade ULLs (BRI ISDN) as described in Section 11.2.3 of this
Agreement.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
% Missed Installation Moderate to Parity (1) Moderate to
Appointments - No Dispatch High High
probability probability
less than better than
Parity(1) Parity(1)
- ------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding BA
retail measurements for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN).
- ----------
(10) BA is currently developing the means to perform the Performance
Measurements listed in this Category 3. BA will take commercially reasonable
efforts to implement performance of these Performance Measurements within a
reasonable period of time. Until BA has implemented its performance of the
Performance Measurements listed in this Performance Category 3, Performance
Category 3 will not apply and BA will not have an obligation to take
investigative or corrective action pursuant to Section 3.3 with regard to the
Performance Measurements listed in Category 3 or to calculate or provide
Performance Credits pursuant to Category 3.
(11) This section does not apply to the cutover of existing 2-Wire ISDN Digital
Grade loops from BA to Covad.
47
<PAGE>
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credits
-1 point = 2.5 % of Non-Recurring Charges for orders of new 2-Wire
ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
-2 = 5 % of Non-Recurring Charges for orders of new 2-Wire ISDN
Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter times the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for orders of
new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad for the
measured calendar quarter as a percentage of Installation Appointments for
orders of new 2-Wire ISDN Digital Grade ULLs (BRI ISDN) provided by BA to Covad
for the measured calendar quarter) - (Missed Installation Appointments for
orders of new 2-Wire ISDN Digital Grade lines (BRI ISDN) provided by BA to BA
retail customers for the measured calendar quarter as a percentage of
Installation Appointments for orders of new 2-Wire ISDN Digital Grade lines (BRI
ISDN) provided by BA to BA retail customers for the measured calendar quarter).
48
<PAGE>
3. Performance Category 4 - UNE Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(UNE KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(UNE KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 2 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-2 points = 4 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
-3 points = 6 % of UNE POTS and Specials Recurring Charges for Covad for
the measured calendar quarter times the Lines Out of Service Factor(1)
(1) Lines Out of Service Factor = (Percentage of Covad UNE POTS and Specials
lines network troubles out of service [greater than] 24 hours - Percentage of BA
retail customer POTS and Specials lines network troubles out of service [greater
than] 24 hours) x (Covad UNE POTS and Specials lines with network troubles out
of service [greater than] 24 hours, as a percentage of the measured calendar
quarter average total Covad UNE POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair/maintenance function, mutual responsibilities exist. The
responsibility for testing unbundled loops and the identification of a required
dispatch for UNE reside with Covad. Reductions
49
<PAGE>
will be made in the Performance Credit if necessary access is not available, or
if a dispatch is made and no trouble is found,(12) or if trouble is found to be
on the Covad customer's side of the network demarcation point (e.g., in premises
wiring or customer premises equipment), at a statistically higher rate than BA
experiences for BA's own retail customers.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
% No Access Moderate to Parity (1) Moderate to
High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
% Found OK or Trouble Found on Moderate to Parity (1) Moderate to
Customer Premises High High
probability probability
less than better than
Parity(1) Parity(1)
- -------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(12) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
50
<PAGE>
UNE Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Unbundled Switching Network Elements are included for measurement after the
establishment of unbundled switching in the switch through the joint
planning/services establishment process.
2. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all UNE
ordering which can be performed via EDI; or, (b) BA's WebGUI is in place and
being used by Covad for all UNE ordering which can be performed via BA's WebGUI.
Covad must implement later specifications of EDI and later versions of WebGUI
within 90 days (or such other shorter period as may be required by this
Agreement) after BA has made them available for Covad's use.
3. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
4. When the Covad submitted work load for any one hour in a day is more than
twice (2x) the daily average hour Covad submitted work load,(13) all
transactions for that day will be deemed to have at least met "Equals Standard"
("O" Points).
- ----------
(13) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
51
<PAGE>
5. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(14) or Covad's customers (including, but not limited to, inability to
access customer interfaces and terminals).
2. If the Expedited Due Dates(15) for UNEs covered by Performance Category 2 for
any one month in a measured calendar quarter exceed 10% of the total
appointments for such UNEs for that month, BA will not be obligated to calculate
Performance Category 2 for that month, or the Performance Measurements in
Performance Category 2 for that month, and may exclude Performance Category 2
for that month, and the Performance Measurements in Performance Category 2 for
that month, from calculation of Performance Credits and from taking
investigative and corrective action under Section 3.3.
If the Expedited Due Dates for UNEs covered by Performance Category 3 for any
one month in a measured calendar quarter exceed 10% of the total appointments
for such UNEs for that month, BA will not be obligated to calculate Performance
Category 3 for that month, or the Performance Measurements in Performance
Category 3 for that month, and may exclude Performance Category 3 for that
month, and the Performance Measurements in Performance Category 3 for that
month, from calculation of Performance Credits and from taking investigative and
corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
a. Loop Orders:
(i) ANI to Covad telephone number, verification successful from
DEMARC by BA field technician.
(ii) All order information submitted by Covad was valid, accurate
and complete (e.g., street address, end user local contact (LCON),
floor/unit number, appropriate Covad transmission equipment
assignment information).
(iii) Covad and Covad's customer were available and ready for
service at appointed date and time.
(iv) Verifiable Covad dial tone and correct Covad telephone number
at POT bay testable by BA technician, by 8:00 a.m. on the date due
minus one (1) day.
- ----------
(14) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(15) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
52
<PAGE>
(v) Accurate account and end user information was submitted on the
service request.
(vi) Orders were completed as submitted without cancellation after
Order Confirmation.
(vii) Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
(viii) For ISDN loops, copper ISDN loops are available that, without
conditioning, meet BA's technical specifications for ISDN loops.
4. Covad shall provide to BA forecasts of UNE volumes at least six (6) months
prior to the commencement of the measured calendar quarter. Forecasts for UNE
volumes (including both number of orders to be submitted and number of items of
service to be ordered) shall be submitted by Covad for each month. If submission
volumes for any one month in a measured calendar quarter vary from forecasted
volumes for such month stated in submitted forecasts by more than 15% (plus or
minus), BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide to BA the forecasts of UNE volumes for UNEs covered by Category
2, BA may exclude Performance Category 2 and the Performance Measurements in
Category 2 from calculation of Performance Credits and from taking investigative
and corrective action under Section 3.3. If Covad fails to timely provide to BA
the forecasts of UNE volumes for UNEs covered by Category 3, BA may exclude
Performance Category 3 and the Performance Measurements in Category 3 from
calculation of Performance Credits and from taking investigative and corrective
action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude the
Missed Installation Appointments Performance Measurements for that month from
the calculation of calendar quarter Performance Measurements and Performance
Credits.
6. Performance Measurement calculations for provisioning will exclude UNEs
provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. UNE loops that meet the standards identified in appropriate BA unbundled loop
Technical References will not be treated as Out of Service.
4. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
53
<PAGE>
5. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
54
<PAGE>
C. Resale Services:
1. Performance Category 5 - Resale Services Ordering and Provisioning:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
POTS - OC Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 3.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - OC Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 3.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [less than] 10 Lines [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
(Resale KSQM 4.b) [less than or equal [less than or equal [less than or equal
to] 24 Hours(1) to] 24 Hours(1) to] 24 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
POTS - Reject Timeliness: [greater than or equal [less than] 89.5% 89.5 - 90.5% [greater than] 90.5%
to] 10 Lines [less than or equal [less than or equal [less than or equal
(Resale KSQM 4.b) to] 96 Hours(1) to] 96 Hours(1) to] 96 Hours(1)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
POTS - No Dispatch probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
Missed Installation Appointments: Moderate to High Parity (2) Moderate to High
Specials probability less than probability better
(Resale KSQM 11) Parity (2) than Parity (2)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
OC = Order Confirmation
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the appropriate
corresponding Retail measurements set forth in Appendix 1, or, in the absence of
appropriate corresponding Retail measurements set forth in Appendix 1, Retail
measurements to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- -1 to -3 points = 5 % of Resale Services Non-Recurring Charges for Covad for the
measured calendar quarter multiplied by the Missed Installation Factor(1)
-4 to -5 points = 10 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
55
<PAGE>
-6 to -7 points = 15 % of Resale Services Non-Recurring Charges for Covad for
the measured calendar quarter multiplied by the Missed Installation Factor(1)
(1) Missed Installation Factor = (Missed Installation Appointments for Resale
Services provided by BA to Covad for the measured calendar quarter as a
percentage of Installation Appointments for Resale Services provided by BA to
Covad for the measured calendar quarter) - (Missed Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter as a percentage of Installation Appointments for
corresponding retail services provided by BA to BA retail customers for the
measured calendar quarter).
If more than 10% of Covad's orders are rejected or queried by BA,(16) BA shall
not be obligated to calculate this Performance Category, to pay a Performance
Credit in connection with this Performance Category, or to take investigative or
corrective action under Section 3.3 with regard to any Performance Measurement
in this Performance Category.
2. Performance Category 6 - Resale Services Maintenance:
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
POTS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
SPECIALS: % Out of Service Moderate to Parity (1) Moderate to
[greater than] 24 Hours High High
(Resale KSQM 17) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
POTS: % Repeat Reports Moderate to Parity (1) Moderate to
w/in 30 Days High High
(Resale KSQM 18) probability probability
less than better than
Parity(1) Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurements with BA's performance for the corresponding
Retail measurements set forth in Appendix 1, or, in the absence of appropriate
corresponding Retail measurements set forth in Appendix 1, Retail measurements
to be reasonably determined and provided by BA.
Calculation of Performance Credit:
Total Score:
------------
0 or Greater Points = No Performance Credit
- ----------
(16) Orders that are rejected or queried by BA because of a failure in the
operation of a BA ordering system will not be included in calculations to
determine the percentage of Covad's orders that are rejected or queried by BA.
56
<PAGE>
-1 point = 2 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -2 points = 4 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
- -3 points = 6 % of Resale Services Recurring Charges for Covad for the measured
calendar quarter multiplied by the Lines Out of Service Factor.(1)
(1) Lines Out of Service Factor = (Percentage of Covad Resale Services POTS and
Specials lines network troubles out of service [greater than] 24 hours -
Percentage of BA retail customer POTS and Specials lines network troubles out of
service [greater than] 24 hours) x (Covad Resale Services POTS and Specials
lines with network troubles out of service [greater than] 24 hours, as a
percentage of the measured calendar quarter average total Covad Resale Services
POTS and Specials lines in service).
Adjustment of Performance Credit:
In the repair function, mutual responsibilities exist. The responsibility for
authorizing a dispatch resides with Covad. Reductions will be made in the
Performance Credit if necessary access is not available, or if a dispatch is
made and no trouble is found,17 or if trouble is found to be on the Covad
customer's side of the network demarcation point (e.g., in premises wiring or
customer premises equipment), at a statistically higher rate than the same
performance that BA experiences for BA's own retail customers.
- --------------------------------------------------------------------------------
Equals
Measurement Misses Standard Standard Exceeds Standard
- 1 point 0 points + 1 point
- --------------------------------------------------------------------------------
% No Access Rate Moderate to High Parity (1) Moderate to High
probability less than probability better
Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
% Found OK or Trouble Moderate to High Parity (1) Moderate to High
Found on Customer probability less than probability better
Premises Parity(1) than Parity(1)
- --------------------------------------------------------------------------------
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range".
Total Score:
------------
0 or Greater Points = No Adjustment to Maintenance Performance Credit
-1 point = 25 % Reduction of Maintenance Performance Credit
-2 points = 50 % Reduction of Maintenance Performance Credit
- ----------
(17) BA will not include in calculations to determine reductions in the
Performance Credit a dispatch where no trouble is found if a trouble which
should have been found on such dispatch is found on a subsequent dispatch.
57
<PAGE>
Resale Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Ordering (OC Timeliness and Reject Timeliness):
1. Performance Measurements and Performance Credits will apply only if: (a) EDI
Issue 8 implementing LSOG Issue 2 ordering interface specifications (or such
later ordering interface specifications, supported by BA, as BA shall have made
available for Covad's use) is in place and is being used by Covad for all Resale
Services ordering which can be performed via EDI; or, (b) BA's WebGUI is in
place and being used by Covad for all Resale Services ordering which can be
performed via BA's WebGUI. Covad must implement later specifications of EDI and
later versions of WebGUI within 90 days (or such other shorter period as may be
required by this Agreement) after BA has made them available for Covad's use.
2. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
3. When Covad submitted work load for any one hour in a day is more than twice
(2x) the daily average hour Covad submitted work load,(18) all transactions for
that day will be deemed to have at least met "Equals Standard" ("O" Points).
4. OC and Reject Timeliness Performance Measurements do not apply to orders with
negotiated due dates.
- ----------
(18) In calculating "the daily average hour Covad submitted work load", the
"daily" period used for the calculation shall be deemed to be twelve (12) hours
in length.
58
<PAGE>
Provisioning (Missed Installation Appointments):
1. Covad Missed Installation Appointments do not include appointments missed or
rescheduled due to the delay, act or omission of Covad, Covad's contractors or
vendors,(19) or Covad's customers (including, but not limited to, inability to
access interfaces and terminals).
2. If the Expedited Due Dates(20) for any one month in a measured calendar
quarter exceed 10% of the total appointments for that month, BA will not be
obligated to calculate Performance Category 5 for that month, or the Performance
Measurements in Performance Category 5 for that month, and may exclude
Performance Category 5 for that month, and the Performance Measurements in
Performance Category 5 for that month, from calculation of Performance Credits
and from taking investigative or corrective action under Section 3.3.
3. Covad Missed Installation Appointments will be included in the computation
only if:
(a) All order information submitted by Covad was valid (e.g., street
address, end user local contact (LCON), Floor/unit number).
(b) Covad and Covad's customer were available and ready for service at the
appointed date and time. Access to Terminal Equipment was available.
(c) Accurate account and customer information was submitted by Covad.
(d) Orders were completed as submitted without cancellation after Order
Confirmation.
(e) Covad and Covad's customer were available for testing and cooperative
coordination as requested by BA.
4. Covad shall provide to BA forecasts of Resale Services volumes at least six
(6) months prior to the commencement of the measured calendar quarter. Forecasts
for Resale Services volumes (including both number of orders to be submitted and
number of items of service to be ordered) shall be submitted by Covad for each
month. If submission volumes for any one month in a measured calendar quarter
vary from forecasted volumes for such month stated in submitted forecasts by
more than 15% (plus or minus), BA may exclude that month from consideration in
calculating Performance Measurements and Performance Credits and determining
whether BA is obligated to take investigative or corrective action under Section
3.3. If Covad fails to timely provide the forecasts of Resale Services volumes
to BA, BA may exclude Performance Category 5 and the Performance Measurements in
Category 5 from calculation of Performance Credits and from taking investigative
or corrective action under Section 3.3.
5. If more than 10% of Covad's orders in a month fall out of BA's provisioning
systems (i.e., require manual investigation and/or correction), or require
correction of Covad provided information during provisioning, BA may exclude
Missed Installation Appointment Performance Measurements for that month from the
calculation of calendar quarter Performance Measurements and Performance
Credits.
- ----------
(19) For the purposes of Paragraph 1, above, the phrase "Covad's contractors or
vendors" does not include BA.
(20) An "Expedited Due Date" is any due date with a shorter interval than the
standard interval being offered by BA for the transaction at the time the
transaction is requested.
59
<PAGE>
6. Performance Measurement calculations for provisioning will exclude Resale
Services provided pursuant to negotiated installation intervals.
Maintenance:
1. Out of Service Over 24 Hours: Excluded will be reports where access was
required but not available during the first 24 hours.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 03 (Drops), 04 (Loops) and 05 (Inside Central Office).
3. Covad shall establish a toll free 800 number for BA repair technicians to
call for trouble related questions and trouble closeout.
4. The Covad repair center and toll free number must be available 24 hours per
day, seven days per week.
60
<PAGE>
D. Interconnection Trunks
1. Performance Category 7 - Interconnection Trunk Provisioning
- --------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
-1 Point 0 Points + 1 Point
- --------------------------------------------------------------------------------
Provisioning - Missed Moderate to Parity(2) Moderate to
Installation Appointments(1) High High
(IT KSQM 11) probability probability
less than better than
Parity(2) Parity(2)
- --------------------------------------------------------------------------------
(1) Orders Received after 12:00 Noon Eastern Time will have the "clock" start at
8:00 a.m. on the next business day.
(2) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score Credit Applied to
----- ------ ----------
0 or greater No Performance Credits
-1 point 10 % Trunk Non-Recurring Charges for
Covad for the measured calendar
quarter
multiplied by the Missed
Installation Factor(3)
(3) Missed Installation Factor = (Missed Covad Trunk Installation Appointments
for the measured calendar quarter as a percentage of Covad Trunk Installation
Appointments for the measured calendar quarter) - (Missed Installation
Appointments for BA IXC Feature Group D Trunks for the measured calendar quarter
as a percentage of BA IXC Feature Group D Trunk Installation Appointments for
the measured calendar quarter).
Adjustment of Performance Credit:
In the provisioning function, mutual responsibilities exist. In addition to
trunks provided by BA to Covad, Covad will provide trunks to BA. If the
percentage of Missed Appointments for trunks ordered by BA from Covad exceeds
the percentage of missed appointments for trunks ordered by Covad from BA
performance, the Performance Credit will be reduced as stated below. (The
percentage missed appointment calculation comparison requires a minimum sample
size of 50 trunks on both sides to be valid.) Covad shall maintain due date
intervals for trunks to be provided by Covad to BA that are no
61
<PAGE>
longer than BA's due date intervals for comparable trunks.
Trunks Ordered by BA from Covad
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Measurement 100% reduction in Credit 50% Reduction in Credit
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Provisioning of Trunks for BA by Covad - Missed [greater than] 5 percentage points [greater than] 2 but [less than
Installation Appointments: worse than BA Performance or equal to] 5 percentage points
worse than BA Performance
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
2. Performance Category 8 - Interconnection Trunk Maintenance and Repair
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Performance Misses Standard Equals Standard Exceeds Standard
Measurement - 1 point 0 points + 1 point
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
% Out of Service [greater than] 24 Hours Moderate to High Parity(1) Moderate to High
(IT KSQM 17) probability less than probability better
Parity(1) than Parity(1)
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) "Parity" will be determined in accordance with the statistical methodology
set forth in Appendix 4, "Statistical Methodology for Determining 'Parity'
Range". "Parity" will be based upon a comparison of BA's performance for the
above Performance Measurement with BA's performance for BA IXC Feature Group D
Trunks.
Calculation of Performance Credit:
Total Score:
------------
Score % Credit Applied to
----- -------- ----------
0 or greater No Performance Credits
-1 point $ 1.00 Per DS1 Trunk per Day out Lines Out of Service Factor
of service
(1) Lines Out of Service Factor = (Percentage of Covad Interconnection Trunks
network troubles out of service [greater than] 24 hours - Percentage of BA IXC
Feature Group D Trunks network troubles out of service [greater than] 24 hours)
x (Covad Interconnection Trunks with network troubles out of service [greater
than] 24 hours, as a percentage of the measured calendar quarter average total
Covad Interconnection Trunks in service).
62
<PAGE>
Interconnection Trunk Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
Provisioning:
1. Performance Measurement calculations for provisioning will be performed only
if for the measured calendar quarter a minimum of 50 trunks was installed by BA
for Covad and a minimum of 100 IXC Feature Group D trunks was installed by BA
for IXCs.
2. Orders must be received electronically, using a BA supported version of BA's
electronic Access Service Request System.
3. Performance Measurement calculations for provisioning will exclude trunks
provided pursuant to negotiated installation intervals.
4. Performance Measurement calculations for provisioning will be based on
comparisons by trunk type (e.g., DS0 with DS0, DS1 with DS1).
5. Covad shall provide to BA forecasts of Interconnection Trunk volumes at least
six (6) months prior to the commencement of the measured calendar quarter.
Forecasts for Interconnection Trunk volumes (including both number of orders to
be submitted and number of items of service to be ordered) shall be submitted by
Covad either (a) for each month or (b) for each quarter, in which case the
quarterly volume will be pro-rated to a monthly volume. If submission volumes
for any one month in a measured calendar quarter vary from forecasted volumes
for such month stated in submitted forecasts by more than 15% (plus or minus),
BA may exclude that month from consideration in calculating Performance
Measurements and Performance Credits and determining whether BA is obligated to
take investigative or corrective action under Section 3.3. If Covad fails to
timely provide the forecasts of volumes to BA, BA may exclude Performance
Category 7 and the Performance Measurements in Category 7 from calculation of
Performance Credits and from taking investigative or corrective action under
Section 3.3.
6. Covad Missed Installation Appointments do not include:
a. Installation Appointments missed or rescheduled due to the delay,
act or omission of Covad, Covad's contractors or vendors,(21) or
Covad's customers.
b. Missed Installation Appointments for Covad installations being made
to rehome trunks or for network grooming.
- ----------
(21) For the purposes of Paragraph 6, above, the phrase "Covad's contractors or
vendors" does not include BA.
63
<PAGE>
7. Covad Missed Installation Appointments will be included in the computation
only if they result in a blockage of traffic that is in excess of standard
design blocking thresholds and that is identified and reported to BA by Covad.
8. Covad Missed Installation Appointments will be included in the computation
only if:
a. All order information submitted by Covad was valid.
b. Covad was prepared to accept the installation of service at the
scheduled time.
c. Orders were completed as submitted without cancellation after order
confirmation.
d. Covad and Covad's customer were available for testing and
cooperative coordination as requested by BA.
9. Covad Missed Installation Appointments include only missed installation
appointments for interconnection trunks used one-way.
Maintenance:
1. This Performance Category will be measured no earlier than completion of the
WFA inventory for Covad and BA trunks and validation of applicable field
procedures.
2. Measured Trouble Reports include those found to be in the Network:
Disposition Codes 04 (Outside Plant) and 05 (Inside Central Office).
3. Applies only to trunks used as per applicable technical specifications.
4. Covad trunks will be included in the computation only if Covad was available
for testing and cooperative coordination if requested by BA.
5. Applies only to trunks where blockage exceeding standard design blocking
thresholds has been identified and reported by Covad.
6. Applies only to interconnection trunks used one-way.
64
<PAGE>
E. Billing
1. Performance Category 9 - Timeliness of Daily Usage Feed ("DUF") for UNE
Switching and Resale Services
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Performance Measurement Misses Standard Equals Standard Exceeds Standard
- 1 point 0 points + 1 point
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Timeliness of Daily [less than] 90% of 90% to 95% of [greater than] 95% of
Usage Feed recorded call events recorded call events recorded call events
(CLEC Billing KSQM 21) in 5 Business Days in 5 Business Days in 5 Business Days
- ---------------------------------------------------------------------------------------------------
</TABLE>
Calculation of Performance Credit
Total Score:
------------
0 or Greater Points = No Performance Credit
-1 point = 0.25 % of DUF Charges (for UNE Switching and Resale Services)
for Covad for the measured calendar quarter.
Billing Definitions, Conditions, Requirements & Exclusions:
The following definitions, conditions, requirements and exclusions shall apply.
In addition, all applicable definitions, conditions, requirements and exclusions
set out in other provisions of this Schedule 27.2 shall apply (including, but
not limited to, definitions, conditions, requirements and exclusions, pertaining
to measurements set out in Appendix 1).
1. UNE usage (Daily Usage Feed) information is limited to only Unbundled
Switching. Measurement with regard to Unbundled Switching will begin no earlier
than 4/1/98.
2. Excluded are delays or failures to provide information provided by third
parties.
3. Excluded are delays or failures to provide information where the cause of the
delay or failure also affects BA's ability to collect and utilize information
for itself.
4. Measurement will be made for lines that have been equipped at Covad's request
to collect daily usage feed information.
65
<PAGE>
SCHEDULE 27.2
APPENDIX 4
STATISTICAL METHODOLOGY FOR DETERMINING "PARITY" RANGE
1. For Performance measures where the measure is a yes or no on each measured
item: (e.g., % met or not met):
Measurement Objective:
To determine if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
The following methodology applies to service in which in each instance of its
provision, the outcome can be categorized as a success or a failure (e.g., was
the appointment missed, was a customer's line out of service for more than 24
hours, etc.).
Now, let xij = the ith customers score on service; where
xij = 0 if the outcome is categorized as a success
xij = 1 if the outcome is categorized as a failure
More specifically, let
(SIGMA) x1ij = the number of Covad customers' instances of service
categorized as a failure
The standard of service against which the instances of service to Covad's
customers will be compared is the average of that provided by BA to its own
customers, viz.
P0j = (SIGMA) x0ij where N0j is the number of instances of provision
------------ of service j to BA's customers
N0j
The service index calculated for Covad for service j and which will be compared
against the service standard Poj is given by:
P1j = (SIGMA) x1ij where N1j is the number of instances of provision
------------ of service j to Covad's customers
N1j
It is assumed that N0j will be large relative to N1j ; and that N1j may in fact,
for certain j, be small.
The assumption can be made that the N1j constitutes a sample taken from a larger
population comprised
66
<PAGE>
of N0j ; i.e., instances of service provision like those provided to BA
customers. In this case the N1j are not technically a subset (i.e., sample) of
N0j. But for the purposes of the model we assume that if Covad customers are
being treated the same as BA customers, then the distribution of the x0ij and
the x1ij; should be identical, hence our viewing N1j as a sample of N0j.
If such an assumption is correct then the value P1j should be similar to the
value P0j. If it is not correct, then the two values would be expected to be
different with the magnitude of the difference reflecting how different the two
populations are, and by implication, how different the service level to each.
The question that arises is how close must P1j and P0j be to conclude that the
two populations received similar levels of service and how different must they
be to conclude they did not.
If we assume N1j is a sample taken from a universe identical to the BA universe,
then it is possible to derive the distribution of possible values of P1j that
could occur when drawing a sample of size N1j from such a universe. If N1j is
adequately large, (viz., if N1j is greater than 30) these values will follow a
normal distribution and have:
Expected value = E (x) = N1j x P0j
and
the Variance = Var (x) = N1j x P0j (1-P0j)
If the CLEC population is in fact identical (or very nearly so) to the BA
population, then most values of P1j would lie close to P0j, and if the
populations were not identical than most values of P1j would lie further from
P0j with the magnitude of the differences reflecting how different the two
underlying populations are and, by implication, how different the level of
service provided the two populations.
It is possible to evaluate how likely it is that the N0j and the N1j instances
of service are, on average, the same by evaluating how likely it would be by
chance alone to observe a difference as large as the one in fact observed, viz.
P0j - P1j.
67
<PAGE>
The procedure for performing this evaluation is as follows:
1. Calculate the BA service standard for service j as follows:
P0j = (SIGMA) x0ij
------------
N0j
2. Calculate the level of service provided to Covad as follows:
P1j = (SIGMA) x1ij
------------
N1j
3. Calculate an index of service level comparability, z, as follows:
z = (P0j-P1j)/[square root](P0j(1-P0j)/N1j)
4. Evaluate the probability of similar or dissimilar services for BA and CLEC
customers as follows:
[less than] -0.83 o Probability is moderate to high that Covad customers are
("Misses more poorly served than BA customers.
Standard")
- -0.83 to 0.83 o Probability is weak that Covad customers are more poorly
("Parity") served than BA customers, or the probability is high
that Covad customers are served the same as BA
("Equals customers, or the probability is weak that Covad
Standard") customers are better served than BA customers.
[greater than] 0.83 o Probability is moderate to high that Covad customers are
("Exceeds better served than BA customers.
Standard")
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 1 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 1 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses
68
<PAGE>
Standard") if the result is [less than] -0.83 ("Probability is moderate to high
that Covad customers are more poorly served than BA customers"); (b) to have
equaled or met the "Parity" standard ("Equals Standard") if the result is -0.83
to 0.83 (i.e., "Probability is weak that Covad customers are more poorly served
than BA customers, or the probability is high that Covad customers are served
the same as BA customers, or the probability is weak that Covad customers are
better served than BA customers"); or, (c) to have exceeded the "Parity"
standard ("Exceeds Standard") if the result is [greater than] 0.83 ("Probability
is moderate to high that Covad customers are better served than BA customers").
69
<PAGE>
2. For Performance measures where the measure is a variable measure: (e.g.,
cycle time):
Measurement Objective:
To determine, for those services for which performance level is measured as an
elapsed time, if the level of service provided to Covad is, on average, similar
to or different from the level of service BA provides to other BA customers.
Methodology:
The following methodology applies to service in which in each instance of its
provision, the outcome is represented as a measurement of an interval of time
(e.g., 10 minutes, 2.5 hours, 3.5 days, etc.). For example, "time to restore
service."
Define the variable X, as duration of interval being measured (e.g., time to
restore service in hours)
Now, let Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
xij = BA's ith customer's score on service j i = 1,2,3...Nj
x'ij = Covad's ith customer's score on service j i = 1,2,3...nj
1. Calculate the average duration for service j for all Bell Atlantic customers
as follows:
Average duration of BA customers = [GRAPHIC OMITTED]
2. Calculate the standard deviation of the duration scores on service j for all
BA customers as follows:
Standard deviation of BA customer's scores = [GRAPHIC OMITTED]
70
<PAGE>
3. Calculate the average duration for service j for all Covad customers as
follows:
Average duration of Covad customers = [GRAPHIC OMITTED]
4. Calculate an Index of parity:
Having determined the following values:
Nj = the number of instances of service j for BA customers
nj = the number of instances of service j for Covad customers
[GRAPHIC OMITTED] = the average duration for all BA customers
[GRAPHIC OMITTED] = the standard deviation of duration scores for all BA
customers
[GRAPHIC OMITTED] = the average duration for all Covad customers
Derive an index of parity as follows:
Index of Parity = [GRAPHIC OMITTED]
where values of the index less than 0.0 indicate Covad customers are being
serviced on average with less delay (i.e., better) than BA customers, values of
the index greater than 0.0 indicate Covad customers are being serviced on
average with more delay (i.e., worse) than BA customers,
and
where greater absolute values of the index, t, indicate increasingly less
likelihood that the observed differences between Covad and BA customers' is due
to chance variation, or what is called sampling error, and greater likelihood
the difference is due to other than chance factors.
5. Interpret the Index of Parity by referring to the Parity Translation Table
and following these steps:
a. Note the value of nj as determined previously, and calculate the
value nj-1
b. Locate the value of nj-1 in the first column of the parity index
translation table
c. Inspect the ranges of values of t in the row of the table
corresponding to your value of nj-1, locating the range containing
the value of t corresponding to the one you calculated.
d. Look at the top of the column containing the value of t
corresponding to the one you
71
<PAGE>
calculated and read the interpretation of the calculated index.
For the purposes of Performance Metrics listed in Appendix 2 to which the
statistical methodology set forth in this Appendix 4, Section 2 is applicable,
and Performance Measurements listed in Appendix 3 to which the statistical
methodology set forth in this Appendix 4, Section 2 is applicable, BA's
performance will be deemed: (a) to have missed or failed to meet the "Parity"
standard ("Misses Standard") if the result as shown on the Parity Translation
Table is "Probability that CLEC customers Serviced worse than BA's Customers is
High" or "Probability that CLEC customers Serviced worse than BA's Customers is
Moderate"; (b) to have equaled or met the "Parity" standard ("Equals Standard")
if the result as shown on the Parity Translation Table is "Probability that CLEC
customers Serviced worse than BA's Customers is Weak", "Probability CLEC & BA
Customers Serviced the Same is High", or "Probability that CLEC Customers
Serviced Better than BA's Customers is Weak"; or, (c) to have exceeded the
"Parity" standard ("Exceeds Standard") if the result as shown on the Parity
Translation Table is "Probability CLEC Customers Serviced Better than BA's
Customers is Moderate" or "Probability that CLEC Customers Serviced Better than
BA's Customers is High").
72
<PAGE>
Parity Translation Table
73
<PAGE>
EXHIBIT A
BELL ATLANTIC - NEW JERSEY, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES
A. BA SERVICES, FACILITIES, AND ARRANGEMENTS: (1)
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
I. Local Call Termination(2)
Traffic Delivered at BA End Office $.001846/MOU Not Applicable
Traffic Delivered at BA Tandem
$.003738/MOU Not Applicable
II. Unbundled Transport
A. Dedicated Transport
Voice Grade/DS-0 $11.28/Month & All:
$.0238/Mile/Month $23.55/Service
Order(3)
DS-1 $39.83/Month & $387.77/Initial
$.48/Mile/Month Facility &
$26.25/Additional
DS-3 $529.78/Month & Facility(4)
$13.40/Mile/Month
DDS $11.69/Month
$.03/Mile/Month
</TABLE>
- -----------------------
(1) Unless a citation is provided to a generally applicable BA tariff, all
listed rates and services are available only to Covad purchasing these services
for use in the provision of Telephone Exchange Service, and apply only to Local
Traffic and local Ancillary Traffic. BA rates and services for use by Covad in
the carriage of Toll Traffic shall be subject to BA's tariffs for Exchange
Access Service. Adherence to these limitations is subject to a reasonable
periodic audit by BA.
As applied to wholesale discount rates, unbundled Network Elements or call
transport and/or termination of Local Traffic purchased for the provision of
Telephone Exchange Service or Exchange Access, the rates and charges set forth
in Exhibit A, incorporate the New Jersey Board of Public Utilities approved
rates in Docket TX95120631 and interim rates that are subject to review by the
Board. These rates shall apply until such time as they are replaced by new rates
as may be approved or allowed into effect by the Board from time to time,
subject however, to any stay or other order issued by any court of competent
jurisdiction. At such time(s) as such new rates have been approved or allowed
into effect by the Board, the Parties shall amend Exhibit A to reflect the new
approved rates.
(2) See note 28 regarding measurement and calculation of local traffic
termination charges.
(3) Interim rate.
(4) The additional facilities rate applies only to additional transport
facilities purchased when the initial facility is ordered.
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
B. Common Transport
Tandem Switching $.001471/MOU(5) Not Applicable
Tandem-Switched Transport $.0002486/MOU & Not Applicable
$.0000012/MOU/ Mile
C. Entrance Facilities All:
$23.55/Service
Order(6) plus
installation charges
for each initial and
additional facility
purchased at the
time of order:
2-Wire Voice Grade Channel Termination $18.16/Month $664.62/Initial &
$377.72/Additional
4-Wire Voice Grade Channel Termination $38.75/Month $888.69/Initial &
$508.74/Additional
DS-1 to Voice Grade Multiplexing $84.54/Month $532.38/Initial &
$532.38/Additional
DS-1 Channel Termination $146.30/Month $737.17/Initial &
$425.28/Additional
DS-3 to DS-1 Multiplexing $286.11/Month $532.38/Initial &
$532.38/Additional
DS-3 Channel Termination $938.88/Month $737.17/Initial &
$425.28/Additional
</TABLE>
- -----------------------
(5) See note 3 above.
(6) See note 3 above.
2
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
II. Unbundled Transport (Continued)
D. Digital Cross-Connect System(7)
Service Establishment Not Applicable $2,009.14
Database Modification Not Applicable $159.82/Modification
Request
Reconfiguration by BA personnel Not Applicable $34.65/Programming
Charge/Half Hour
DS-0 Cross-Connect $20.75/Port/Month $28.35/Port
DS-1 Cross-Connect $72.93/Port/Month $35.54/Port
E. Mid-span meet arrangements To be charged in accordance with the
requirements of Section 4.3 of the Agreement
F. Transit Arrangements (for
Interconnections between Covad and
Carriers other than BA)
Tandem Switching $.001471/MOU(8) Per Section II. above
and V., as applicable
Switched Transport $.0002486/MOU &
$.0000012/MOU/ Mile
III. Unbundled Switching
A. Local Switching Ports
POTS/PBX/Centrex $1.90/Port/Month $23.55/Service Order
$9.16/Installation
/Port
ISDN (PRI) $131.11/Port/Month $30.36/Service
Order(9)
$120.41/Installation
/Port
ISDN (BRI) $11.45/Port/Month $30.36/Service
Order(10)
$20.19/Installation
/Port
</TABLE>
- -----------------------
(7) See note 3 above.
(8) See note 3 above.
(9) See note 3 above.
(10) See note 3 above.
3
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
Public/Semi-Public $3.25/Port/Month $23.55/Service Order
$9.16/Installation
/Port
DID $4.36/Port/Month $23.55/Service Order
$770.34/Installation
/Port
B. Tandem Switching Usage $.001471/MOU(11) Not Applicable
</TABLE>
- -----------------------
(11) See note 3 above.
4
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
III. Unbundled Switching (Continued)
C. Local Switching Usage
POTS Originating With Vertical Features $.005418/MOU
POTS Terminating With Vertical Features $.003207/MOU
ISDN Originating Digital Switched Voice $.003002/MOU All ISDN:
With Vertical Features $12.41/Service Order
$.14/Installation
ISDN Terminating Digital Switched Voice $.001510/MOU
ISDN Originating Digital Circuit $.001751/MOU
Switched Data
ISDN Terminating Digital Circuit $.001510/MOU
Switched Data
D. POTS Features
PBX $.000726/MOU Both:
$12.41/Service Order
Multi-Line Hunting $.000002/MOU $.14/Installation
E. Centrex Features
UCD $.000932/MOU All:
$12.41/Service Order
Hunting $.000003/MOU $.14/Installation
Queuing $.000486/MOU
Intercom & Features $.025131/MOU
Attendant $.026413/MOU
Attendant Console $.031847/MOU
Centralized Attendant Services $.216809/MOU
Attendant Access Code Dialing $.047949/MOU
Automatic Route Selection $.000422/MOU
Electronic Tandem Switching $.001833/MOU
F. ISDN Centrex Feature $.006666/MOU $12.41/Service Order
$.14/Installation
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops
POTS (analog 2-Wire) Density Cell: Service Order: $23.55
1 - $11.95/Month Installation:
2 - $16.02/Month If premises visit
3 - $20.98/Month not required,
initial & each
additional loop -
$8.61
If premises visit
required, initial
loop - $83.69
If premises visit
required, additional
loop - $29.58
ISDN Density Cell: Service Order:
1 - $15.02/Month $30.26(12)
2 - $19.58/Month Installation:
3 - $25.12/Month If premises visit
not required,
initial & each
additional loop -
$20.19
If premises visit
required, initial
loop - $95.26(13)
If premises visit
required, additional
loop - $41.15
Customer Specified Signaling - 2-Wire Density Cell: Service Order: $23.55
1 - $13.39/Month Installation:
2 - $17.95/Month If premises visit
3 - $23.50/Month not required,
initial & each
additional loop -
$58.84
If premises visit
required, initial
loop - $146.87
If premises visit
required, additional
loop - $92.76
</TABLE>
- -----------------------
(12) See note 3 above.
(13) See note 3 above.
6
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IV. Unbundled Loops (Continued)
Customer Specified Signaling - 4-Wire Density Cell: Service Order: $23.55
1 - $28.85/Month Installation:
2 - $38.52/Month If premises visit
3 - $49.59/Month not required,
initial & each
additional loop -
$58.84(14)
If premises visit
required, initial
loop - $146.87
If premises visit
required, additional
loop - $92.76
DS-1 Density Cell: Service Order: $23.55
1 - $128.40/Month Installation:
2 - $144.80/Month If premises visit
3 - $177.50/Month not required,
initial & each
additional loop -
$58.84
If premises visit
required, initial
loop - $146.87
If premises visit
required, additional
loop - $92.76
2 Wire ADSL Loops TBD TBD
2 Wire & 4 Wire HDSL Loops TBD TBD
Distance Extensions for various ULL types TBD TBD
for distances exceeding transmission
characteristics in applicable technical
references.
</TABLE>
- -----------------------
(14) See note 3 above.
7
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
V. Collocation Cross-Connection
A. Voice Grade Loop
Physical DS0 CO side to equipment $.84/Month Not Applicable
Virtual DS0 with RFT CO side MDF to $2.06/Month Not Applicable
equipment
Virtual DS1 with EDSX (1DS1 + 24 DS0s $93.37/Month Both:
with IDLC) $23.55/Service
Order(15)
Virtual DS1 with CFA (24DS0s with IDLC) $71.02/Month $460.67/Initial
Installation &
$217.10/Additional
Installations
B. Other
Physical DS3 or DS1 Cable Rack $1.03/Month Not Applicable
Physical DS3 $118.89/Month All:
$23.55/Service
Physical DS1 $21.60/Month Order(16)
$399.48/Initial
Virtual DS3 $124.75/Month Installation &
$201.80/Additional
Virtual DS1 $22.35/Month Installations
VI. Time and Materials
Special Construction As applicable per BA-NJ Tariff
B.P.U.-NJ-No.2, Exchange and Network
Services, Section A4
Service Technician (service work on Not Applicable $11.17/Service Order
unbundled loops outside of the Central $34.78/Premises Visit
Office) $12.95 Labor Charge/
Per Quarter Hour
After First Quarter
Hour
Central Office Technician Not Applicable $11.17/Service Order
$13.07 Labor Charge/
Per Quarter Hour or
Fraction Thereof
</TABLE>
- -----------------------
(15) See note 3 above.
(16) See note 3 above.
8
<PAGE>
VII. Signaling and Databases
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
A. STP Port
Termination $576.31/Month $100.60/Port
Access(17) $.61/Mile/Month $23.55/Service Order
$304.29/Initial
Facility &
$26.25/Additional
Facility
B. 800/888 Database
Basic Query $.000757/Query Not Applicable
Vertical Query $.000268/Query Not Applicable
C. LIDB Validation
Calling Card $.016280/Query Not Applicable
Billed Number Screening $.016280/Query Not Applicable
LIDB Point Codes(18) Not Applicable $86.88/Point Code
Storage of Covad's Data in LIDB
Database(19) Not Applicable $1,487.64 Service
Establishment
D. AIN Service Creation (ASC) Service(20)
1. Developmental Charges
Service Establishment Not Applicable $895.73
Service Creation Access Port $105.12/Port/Month Not Applicable
Service Creation Usage
a. Remote Access $1,146.57/Day Not Applicable
b. On-Premise $1,146.57/Day Not Applicable
Certification & Testing $78.02/Hour Not Applicable
Help Desk Support $82.57/Hour Not Applicable
</TABLE>
- -----------------------
(17) See note 3 above.
(18) See note 3 above.
(19) See note 3 above.
(20) See note 3 above.
9
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
D. AIN Service Creation (ASC) Service(21) (Continued)
2. Service Charges
Subscription Charge $4.65/Month Not Applicable
Database Queries
a. Network Query $.0006/Query Not Applicable
b. Covad Network Query $.0006/Query Not Applicable
c. Covad Switch Query $.0006/Query Not Applicable
Trigger Charge
a. Line Based $.0008/Query Not Applicable
b. Office Based $.0008/Query Not Applicable
Utilization Element $.0004/ACU Not Applicable
Service Activation Charge
a. Network Service Activation Not Applicable $15.21/Service
Activated/Line
b. Covad Network Service Not Applicable $15.21/Service
Activation Activated/Line
c. Covad Switch Service Not Applicable $15.21/Service
Activation Activated /Line
Service Modification
a. DTMF Update $.11/Occurrence Not Applicable
Switch Based Announcement $.004/Announcement Not Applicable
VIII. Directory Listings & Books
Primary Listing Not Applicable $1.00/Listing/No.
Additional Tariffed Listing Services BA-NJ Tariff B.P.U.-N.J.-NO.2, Exchange and
Network Services, Section A5.7.1.
Books & delivery (annual home area No charge for normal numbers of books
directories only) delivered to end users; bulk deliveries to
Covad per separate arrangement
</TABLE>
- -----------------------
(21) See note 3 above.
10
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
IX. Operator Services/Directory Assistance
Direct Access $.0344/Query $32,964.80/Link(22)
Service Establishment Not Applicable $15,390.10/Customer(23)
Directory Assistance $.3110/Call Not Applicable
Directory Transport(24)
Tandem Switching $.001520/Call Not Applicable
Tandem Switched Transport $.000211/Call & Not Applicable
$.000001/Mile/Call
Operator Services - Live $.012062/Operator Not Applicable
Work Second
Operator Services - Automated(25) $.000215/Automated Not Applicable
Word Second
Branding for Directory Assistance and/or Not Applicable $18,417.30/ Message
Operator Services(26)
Carrier-to-Carrier LSV/VCI Requests $.012062/Operator Not Applicable
Work Second
X. Access to Operation Support Systems
A. Pre-Ordering $.26/Query Not Applicable
B. Ordering $4.22/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.26/Query Not Applicable
2. EB/OSI Access $1.18/Trouble Ticket Not Applicable
</TABLE>
- -----------------------
(22) See note 3 above.
(23) See note 3 above.
(24) See note 3 above.
(25) See note 3 above.
(26) See note 3 above.
11
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
X. Access to Operation Support Systems (Continued)
E. Billing
1. CD-ROM $249.57/CD-ROM Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000262/Message Not Applicable
b. Delivery of DUF
Data Tape $17.40/Tape $62.14/Programming
Hour
Network Data Mover $.000101/Message Not Applicable
CMDS $.000101/Message $62.14/Programming
Hour
c. DUF Transport
9.6 kb Communications Port $10.37/Month $7,660.42/Port
56 kb Communications Port $28.63/Month $31,727.40/Port
256 kb Communications Port $28.63/Month $52,773.67/Port
T1 Communications Port $363.65/Month $188,311.65/Port
Line Installation Not Applicable $62.14/Programming
Hour
Port Set-up Not Applicable $9.98/Port
Network Control Programming Coding Not Applicable $62.14/Programming
Hour
XI. Exchange Access Service
Interstate Per BA-FCC Tariff NO. 1
Intrastate Per BA- NJ Tariff B.P.U.-N.J.-NO. 2, Access
Service
XII. Number Portability
Interim (using RCF) $1.00/Number/Mo. Not Applicable
Permanent Per permanent funding mechanism when
established.
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
XIII. 911/E911
Transport Per section II above.
Data Entry and Maintenance No Charge
XIV. Poles Conduits & ROW Per contract rates pursuant to 47 U.S.C.
sec. 224
Illustrative:
Duct: $5.00/Foot/Year
Pole: $4.52/Attachment/Year
XV. Network Interface Device (NID) $.68/Month Not Applicable
XVI. Access to Telephone Numbers (NXX codes No Charge
issued per ICCF Code Administration Guidelines)
XVII. Local Dialing Parity No Charge
XVIII. Customized Routing
To Reseller Platform $.31086/Line/Month $4.83/Line
To BA Platform for Re-Branding .077715/Call(27) $4.83/Line
Customized Routing Transport Per section II above.
</TABLE>
- -----------------------
(27) See note 3 above.
13
<PAGE>
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
XIX. Wholesale Discount for Resale of Retail Telecommunications Services(28)
Resale of retail services if Covad provides 20.03%
own operator services platform
Resale of retail services if Covad uses Bell 17.04%
Atlantic operator services platform
</TABLE>
- -----------------------
(28) Excludes telecommunications services designed primarily for wholesale, such
as switched and special exchange access service, and, subject to Section 12 of
the Agreement, the following additional arrangements that are not subject to
resale: limited duration (90 days or less) promotional offerings, public coin
telephone service, and technical and market trials. Taxes shall be collected and
remitted by the reseller and BA in accordance with legal requirements and as
agreed between the Parties. Surcharges (e.g., 911, telecommunications relay
service, universal service fund) shall be collected by the reseller and either
remitted to the recipient agency or NECA, or passed through to BA for remittance
to the recipient agency or NECA, as appropriate and agreed between the Parties.
End user common line charges shall be collected by the reseller and remitted to
BA.
Pending establishment of mechanized billing procedures adapted to resale,
BA will apply the wholesale discount for resale as a "bottom-of-the-bill"
discount rate and will utilize a "true-up" process to correct possible
inadvertent application of the wholesale discount to the exclusions identified
herein and to reflect other adjustments as the Parties agree.
14
<PAGE>
B. Covad SERVICES, FACILITIES, AND ARRANGEMENTS:
<TABLE>
<CAPTION>
Service or Element Description: Recurring Charges: Non-Recurring Charge:
- ------------------------------- ------------------ ---------------------
<S> <C> <C>
I. Local Call Termination(29)
Traffic Delivered at End Office $.001846/MOU Not Applicable
Traffic Delivered at Tandem
$.003738/MOU Not Applicable
II. Number Portability
Interim (using RCF) $1.00/Number/Mo. Not Applicable
Permanent Per permanent funding mechanism when
established.
III. Exchange Access Service
Interstate Per Covad FCC exchange access tariff.
Intrastate Per Covad NJ tariff exchange access tariff.
IV. All Other Covad Services Available to BA Available at Covad's tariffed or otherwise
for Purposes of Effectuating Local Exchange generally available rates, not to exceed BA
Competition rates for equivalent services available to
Covad.
</TABLE>
- -------------------------
(29) See note 28 regarding measurement and calculation of local traffic
termination charges.
<PAGE>
28 LOCAL TRAFFIC TERMINATION RATES
A. Charges by BA
(a) Traffic delivered to BA Access Tandem: $.003738 per mou.
(b) Traffic delivered directly to terminating BA End Office: $.001846
per mou.
B. Charges by Covad
1. Single-tiered interconnection structure:
Covad's rates for the termination of BA's Local Traffic under the
single-tiered interconnection structure shall be recalculated once each
year on each anniversary of the Effective Date (the "Rate Determination
Date"). The methodology for recalculating the rates is as follows:
Access Tandem Minutes = Total minutes of use of Local Traffic
delivered by Covad to the BA Access Tandem for most recent billed
quarter.
End Office Minutes = Total minutes of use Local Traffic delivered by
Covad directly to the terminating BA End Office for most recent
billed quarter.
Total Minutes = Total minutes of use of Local Traffic delivered by
Covad to BA for most recent billed quarter.
Covad Charge at the Covad-IP =
(Access Tandem Minutes x $.003738) + (End Office Minutes x $.001846)
--------------------------------------------------------------------
Total Minutes
For the first year after the Effective Date, the Covad charge shall be
calculated based on the traffic data of the quarter immediately
preceding such Effective Date, or if no such traffic exists, on the
proportion of local call termination trunks to BA End Offices and to BA
Access Tandems.
2. Multiple-tiered interconnection structure (if offered by Covad to any
carrier)
(a) Local Traffic delivered to Covad Access Tandem: $.003738
(b) Local Traffic delivered to terminating Covad End Office/node:
$.001846
C. Miscellaneous Notes
1. The Covad termination rate under the single-tiered interconnection structure
set forth above is intended to be a Local Traffic termination rate for
Interconnection to the Covad-IP within each LATA that is reciprocal and equal to
the actual rates that will be charged by BA to Covad under the two-tiered Local
Traffic termination rate structure described above that will apply after the
first anniversary of the Effective Date. The single Covad termination rate is
also intended to provide financial incentives to Covad to deliver traffic
directly to BA's terminating End Offices once Covad's traffic volumes reach an
appropriate threshold.
16
<PAGE>
EXHIBIT B
BONA FIDE REQUEST PROCEDURES
1. The following procedures shall apply to any Bona Fide Request submitted by
Covad to BA for: (a) an Interconnection or access to an unbundled Network
Element not otherwise provided hereunder at the time of such request, (b)
an Interconnection or connection to a Network Element that is different in
quality to that which BA provides to itself at the time of such request,
(c) Collocation at a location other than a BA Central Office, and (d) such
other arrangement, service, or Network Element for which a BFR is required
under the Agreement. Items (a) through (d) above may be referred to
individually as a "BFR Item." The BFR procedures set forth herein do not
apply to those services requested pursuant to Report & Order and Notice of
Proposed Rulemaking 91-141 (rel. October 19, 1992), Paragraph 259 and
Footnote 603 or subsequent orders.
2. A BFR shall be submitted in writing and shall include a technical
description of each requested BFR Item, and a forecast (e.g. volume
requested, locations, dates) for such Item.
3. Covad may cancel a BFR at any time, but shall pay BA's reasonable and
demonstrable costs of processing, implementing the BFR, and/or developing
the BFR Item up to the date of cancellation, and any wind-up costs
resulting therefrom.
4. Within fifteen (15) business days of receipt of the BFR, BA will respond
in one of the following ways:
(a) provide confirmation that the BFR is technically feasible and the
date BA will deliver a price proposal, including a service
description, pricing and an estimated schedule for availability;
(b) request a face-to-face meeting between technical representatives of
both Parties to further explain the request;
(c) inform Covad that BA must do laboratory testing (at Covad's expense)
to determine whether the request is technically feasible;
(d) inform Covad that BA must do field testing (at Covad's expense) to
determine whether the request is technically feasible;
(e) inform Covad that it is necessary for the Parties to undertake a
joint technical/operational field test (at Covad's expense) in order
to determine both technical feasibility and operational cost
impacts; or
(f) provide a written explanation that it is not technically feasible to
comply with the request and/or the BFR Item does not qualify as one
that is required to be
1
<PAGE>
provided under the Act.
5. Within ten (10) business days of receiving BA's response from Step 4(c),
4(d), or 4(e), Covad shall:
(a) negotiate a mutually agreeable schedule for BA's testing and agree
to pay BA for the testing costs, in the case of Steps 4(c) or (d);
or
(b) negotiate a mutually agreeable schedule for joint
technical/operational field testing, and agree to pay BA the costs,
in the case of Step 4(e).
6. Within ten (10) days of receiving BA's confirmation (from Step 4(a)),
Covad shall:
(a) accept BA's price proposal date and agree to pay BA the cost of
developing the proposal;
(b) negotiate a different date for BA to deliver the price proposal, and
agree to pay BA the cost of developing the proposal; or
(c) abandon the request.
7. Unless the Parties have agreed to another date, BA will deliver the BFR
Item price proposal to Covad in response to Step 5 or Step 6 as soon as
reasonably practicable, but no later than ninety (90) days from the date
BA provided the price proposal date, unless such delivery is technically
unreasonable given the nature of the BFR. The price proposal shall include
a service description of the BFR Item, the costs, including costs
associated with the development of the BFR Item, and an estimated
availability schedule.
8. Covad accepts BA's price proposal or negotiates mutually acceptable
changes.
9. BA makes the BFR Item available in accordance with Step 7.
10. Unless the Parties otherwise agree, all prices shall be consistent with
the pricing principles of the Act and any applicable FCC or Commission
rules, regulations, or orders.
11. If a Party to a BFR believes that the other Party is not requesting, or
negotiating or processing the BFR in good faith, or disputes a
determination, or price or cost quote, or is failing to act in accordance
with Section 251 of the Act, such Party may seek mediation or arbitration
by the Commission pursuant to Section 252 of the Act.
2
<PAGE>
EXHIBIT C
DIRECTORY ASSISTANCE AND INTRALATA
CALL COMPLETION SERVICES AGREEMENT
THIS AGREEMENT is made, effective this _____ day of _____________ 19___,
by and between Bell Atlantic - __________________, Inc., (hereinafter referred
to as "Bell Atlantic"), a __________________________ corporation, with offices
at _____________________________________, and _______________________________,
hereinafter referred to as "Carrier", a ______________________ corporation with
offices at _______________________________________.
1. SCOPE AND TERM OF AGREEMENT
1.1 Scope This Agreement sets forth the terms and conditions which shall govern
the use of and payment for Directory Assistance (DA) Service and IntraLATA Call
Completion Service (hereinafter collectively referred to as "Services") to be
provided by Bell Atlantic, or its affiliated companies, to Carrier. Carrier
shall subscribe to and pay for Services for Carrier's local exchange customers
in the ___________ LATA(s).
1.2 Term The initial term of this Agreement shall be one (1) year and commence
as of 12:01 a.m. on the date first written above. At the end of this initial
term, or any subsequent renewal term, this Agreement shall automatically renew
for an additional period of one (1) year unless either party provides written
notice to the other of its intent to terminate at least three (3) months prior
to the expiration of the then current term.
2. DESCRIPTION OF SERVICES
2.1 Directory Assistance (DA) Service
a) Directory Assistance Service shall consist of 1) directory transport by
Bell Atlantic from the point of Bell Atlantic's interconnection with Carrier's
trunks to Bell Atlantic's designated DA locations, and 2) the provision of
telephone number listings by Bell Atlantic operators in response to calls from
Carrier's local exchange customers located in the LATA(s) designated in Section
1.1.
b) A maximum of two requests for telephone numbers will be accepted per DA
call. A "DA call" as used in this Agreement shall mean a call answered by or
forwarded to Bell Atlantic, regardless of whether a telephone number is
requested, provided, or available. The listings that will be available to
Carrier's customers are those telephone numbers that are listed in Bell
Atlantic's DA records for the LATA(s) designated in Section 1.1.
2.2 IntraLATA Call Completion Service IntraLATA Call Completion Service
<PAGE>
consists of the live and automated local and toll call completion services
specified in Appendix B, including the completion of collect, card and
bill-to-third party calls; busy line verification; customer requested interrupt;
and other assistance to Carrier's local exchange customers located in the
LATA(s) designated in Section 1.1.
2.3 Branding Branding is a service that permits the Carrier to deliver a
customized announcement to its callers, identifying the Carrier as the customer
service provider. Carrier shall provide the information required by Bell
Atlantic to create this announcement. Branding also requires that the Carrier
maintain dedicated trunking arrangements to the designated Bell Atlantic DA or
operator switch locations.
2.4 End User Billing Bell Atlantic will provide Carrier with unrated EMR records
for use in the billing of Carrier's end users for Services. The rating, billing,
and settlement of end-user charges for the calls are the responsibility of
Carrier.
2.5 Service Methods Bell Atlantic agrees to provide Services in accordance with
Bell Atlantic's service standards and methods. Bell Atlantic will notify Carrier
in writing of any significant policy changes to operator services or directory
assistance standards and methods prior to implementation.
2.6 Customized Service Features and Options Carrier may request custom-designed
service features or optional services to be provided in conjunction with the
Services hereunder. Upon mutual agreement of the parties, such features and
options will be provided pursuant to this Agreement. Bell Atlantic, if
requested, shall provide Carrier with an estimate of the charges for such
custom-designed supplements, changes, or options prior to implementation.
3. COMMENCEMENT AND IMPLEMENTATION OF SERVICE
3.1 Required Information Each party shall make good-faith efforts to carry out
its respective responsibilities in meeting a jointly established schedule for
implementation. All records and other required information specified in Appendix
C, as well as a completed Technical Questionnaire, will be furnished by Carrier
at least ninety (90) days prior to the commencement of Services (i.e., the
Cutover Date described in Section 3.2.) Notices of any changes, additions, or
deletions to such records and information shall be provided promptly in writing
by Carrier to Bell Atlantic. Bell Atlantic will review these change requests and
determine any potential impact on the cutover date. Written confirmation of any
impact will be provided to Carrier.
3.2 Cutover Date The Cutover Date for Service(s) provided under this Agreement
shall be the date on which the Service(s) shall be available to all of Carrier's
local exchange customers in the LATA(s) designated in Section 1.1.
3.3 Service Review Meetings Bell Atlantic will meet and confer with Carrier
during the term of this Agreement to review and discuss the Services provided
under this
<PAGE>
Agreement. The times for meetings will be established by mutual agreement of the
parties.
4. EQUIPMENT AND FACILITIES
4.1 Bell Atlantic will establish and maintain such access equipment and related
facilities as may be necessary to perform the Services under this Agreement,
provided that Carrier furnishes Bell Atlantic the information specified in
Appendix C, and any changes in such information, in a timely and accurate
manner. Any additional services that Carrier seeks during the term of this
Agreement will be subject to mutual agreement and the availability of facilities
and equipment.
4.2 Carrier will provide and maintain such equipment within its premises as is
necessary to permit Bell Atlantic to perform the agreed-upon Services in
accordance with Bell Atlantic standard equipment operation and traffic operation
procedures.
4.3 Carrier Transport and Switched Access Connection
a) Carrier shall, at its expense, arrange for and establish the trunking
and other transport, interface, and signaling arrangements required by Bell
Atlantic to provide Services to Carrier. Separate dedicated trunks for each NPA
or LATA may be required. Any trunks or other transport and access that Carrier
obtains from Bell Atlantic to deliver Carrier's calls to Bell Atlantic shall be
provided pursuant to the applicable tariffs or other contractual arrangements,
and not under this Agreement. Bell Atlantic agrees to coordinate the scheduling
of Services to be provided under this Agreement with the scheduling of any
trunking or related services provisioned by Bell Atlantic under such tariffs or
other contractual arrangements.
b) Carrier shall specify the number of trunks required for Services.
Carrier must provide trunks with operator services signaling directly to the
locations designated by Bell Atlantic. Bell Atlantic shall provide Carrier at
least three (3) months advance notice in the event of any change in a designated
location.
5. PAYMENT FOR SERVICES
5.1 Rates Carrier agrees to subscribe to and pay for the Services and options
selected in Appendix A. Carrier shall pay the rates set forth in Appendix A,
subject to such obligations as Bell Atlantic may have under the
Telecommunications Act of 1996, and the FCC and state regulations and decisions
thereunder, to set cost-based rates for unbundled network elements.
Specifically, when a regulatory body of competent jurisdiction has duly approved
the rates under which Bell Atlantic is required to provide Services to
competitive local exchange carriers (hereinafter referred to as "CLEC rates"),
Bell Atlantic shall charge, and Carrier shall pay, such CLEC rates for the
applicable Services.
5.2 Settlements Carrier shall render payment to Bell Atlantic net thirty (30)
calendar days from the date of delivery of the Services or from the date of
billing for the Services,
<PAGE>
whichever occurs later. Carrier shall pay interest on any amount overdue at the
rate specified for late payments in the Interconnection Agreement between Bell
Atlantic and Carrier.
5.3 Billing Disagreements
a) Carrier may, in good faith, dispute part or all of an invoice provided
by Bell Atlantic. To dispute an invoice, Carrier must provide Bell Atlantic with
a written explanation of the questioned charges for consideration within thirty
(30) days of receipt of the invoice. Bell Atlantic will respond to Carrier's
claim within thirty (30) days of receipt of the explanation.
b) The parties agree to negotiate any dispute in good faith to reach a
satisfactory resolution of the dispute no later than ninety (90) days after
Carrier's receipt of the invoice. Carrier shall have no obligation to pay
interest on a disputed amount while a resolution is being negotiated during this
period. In the event that the dispute is not resolved at the account manager
level within forty five (45) days after receipt of Carrier's claim, the parties
agree to submit the dispute to an Intercompany Review Board for resolution. The
Intercompany Review Board shall consist of two representatives from each party
who are authorized to resolve the dispute on behalf of their respective
companies. The Intercompany Review Board shall conduct a joint conference to
review the parties' respective positions and to resolve the dispute.
c) Upon the resolution of the dispute, an appropriate adjustment of
billing shall be made by Bell Atlantic. Bell Atlantic shall apply any reductions
in the invoiced amount as a credit. Carrier shall promptly pay any amounts the
parties agree are due with interest thereon under Section 5.2 retroactive to the
date of the original invoice. If no resolution is reached within the specified
90-day period, either party may pursue such other remedies and recourse as are
otherwise available under law or this Agreement.
5.4 Taxes The rates specified in this Agreement are exclusive of all taxes,
duties, or similar charges imposed by law. Carrier shall be liable for and shall
reimburse Bell Atlantic for any sales, use, excise, or other taxes applicable to
the Services performed under this Agreement.
5.5 Carrier's Customers Carrier shall be responsible for all contacts and
arrangements with its customers concerning the provision and maintenance, and
the billing and collection, of charges for Services furnished to Carrier's
customers.
6. DEFAULTS AND REMEDIES
6.1 Defaults If Carrier defaults in the payment of any amount due hereunder, or
if Bell Atlantic materially fails to provide Services as agreed hereunder, and
such default or failure shall continue for thirty (30) days after written notice
thereof, the other party may terminate this Agreement with thirty (30) days
written notice.
<PAGE>
6.2 Carrier Remedies In the event that Bell Atlantic, through negligence or
willful misconduct, fails to provide the Services selected and contracted for
under this Agreement, Bell Atlantic shall pay Carrier for Carrier's direct
damages resulting from such failure, up to an amount not to exceed the charges
payable under this Agreement for the Services affected.
6.3 Discontinuance by Carrier In the event that Carrier discontinues using
Services, either in part or in whole, prior to expiration of the then current
term and such discontinuance is not due to Bell Atlantic's material failure to
provide Services, Carrier shall pay Bell Atlantic an amount equal to the average
monthly charges for the six-month period immediately preceding the
discontinuance multiplied by the number of months remaining in the then-current
term. If Services have been provided for a period of less than six months,
Carrier shall pay the charges for the month with the highest usage multiplied by
the number of months remaining in the then-current one year term. If Carrier
terminates this Agreement prior to the Cutover Date, Carrier shall pay Bell
Atlantic the greater of the following: (i) all reasonable and necessary costs
already incurred by Bell Atlantic in preparation for the commencement of
services, or (ii) the sum of fifty thousand dollars ($50,000).
6.4 Other Remedies THE EXTENT OF LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE
LIMITED AS DESCRIBED IN SECTIONS 6.1, 6.2 AND 6.3 ABOVE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY OTHER LOSS, COST, CLAIM, INJURY, LIABILITY, OR
EXPENSE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY INCIDENTAL, SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT,
WHETHER RECOVERY IS SOUGHT IN TORT, CONTRACT, OR OTHERWISE, EVEN IF EITHER PARTY
HAD NOTICE OF SUCH DAMAGES.
7. CONFIDENTIAL INFORMATION
7.1 Confidentiality The parties agree that all confidential and proprietary
information that is marked as specified in Section 7.2 and that is disclosed by
either party to the other party for the purposes of this Agreement, including
rates and terms, shall be treated as confidential unless a) such information was
previously or becomes known to the receiving party free of any obligation to
keep it confidential, b) has been or is subsequently made public by the
disclosing party, or c) is required to be disclosed by law. The receiving party
shall not, except in the performance of the Services under this Agreement or
with the express prior written consent of the other party, disclose or permit
access to any confidential information to any other parties. The parties agree
to advise their respective employees, agents, and representatives to take such
action as may be advisable to preserve and protect the confidentiality of such
information.
<PAGE>
7.2 Marking of Confidential Information All information the disclosing party
considers proprietary or confidential, if in writing or other tangible form,
shall be conspicuously labeled or marked as "Proprietary" and/or "Confidential"
and, if oral, shall be identified as proprietary at the time of disclosure and
promptly confirmed in writing. Either party shall have the right to correct any
inadvertent failure to designate information as proprietary by written
notification within ten (10) days following disclosure.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractors Bell Atlantic and Carrier shall be independent
contractors under this Agreement, and all services under this Agreement shall be
performed by Bell Atlantic as an independent contractor and not as an agent of
Carrier.
8.2 Responsibility for Employees and Agents All persons furnished by Bell
Atlantic shall be considered solely Bell Atlantic's employees or agents, and
Bell Atlantic shall be responsible for compliance with all laws, rules, and
regulations relating to such persons including, but not limited to, hours of
labor, working conditions, workers' compensation, payment of wages, benefits,
unemployment, social security and other payroll taxes. Each party's employees
and agents, while on premises of the other, shall comply with all rules and
regulations, including any applicable security procedures and safeguarding of
confidential data.
9. GENERAL CONDITIONS
9.1 Assignment Neither party may assign or delegate its rights and obligations
under this Agreement without the prior written consent of the other party,
except that either party may assign this Agreement, without such consent, to its
parent, affiliate or subsidiary, provided that the assignee has the resources,
legal authority, and ability to perform all terms of this Agreement. Thirty (30)
days advance notice of such assignment shall be provided to the other party.
9.2 Choice of Law The validity, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware.
9.3 Compliance with Laws Each party shall comply with all applicable federal,
state, county and local laws, ordinances, regulation, rules and codes in the
performance of this Agreement. Neither party shall be liable to the other for
termination of this Agreement or any services to be provided hereunder
necessitated by compliance with any law, rule, regulation or court order of a
duly authorized governmental body.
9.4 Contingency Neither party shall be held responsible or liable to the other
for any delay or failure in performance caused by fires, strikes, embargoes,
requirements imposed by Government regulation, civil or military authorities,
act of God or by the public enemy, or other causes beyond the control of Carrier
or Bell Atlantic. If such a contingency occurs, the party injured by the other's
inability to perform may: a) terminate the affected
<PAGE>
services or part thereof not already rendered; or b) suspend the affected
services or part thereof for the duration of the delaying cause and resume
performance once the delaying causes cease.
9.5 Licenses No licenses, expressed or implied, under any patents, copyrights,
trademarks or other intellectual property rights are granted by Bell Atlantic to
Carrier under this Agreement.
9.6 Notices Except as otherwise specified in this Agreement, any notice required
or permitted under this Agreement shall be in writing and shall be given to the
other party at the address designated below by hand delivery, registered
return-receipt requested mail, or nationally recognized courier service:
For Bell Atlantic:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
For Carrier:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
The above addresses may be changed by giving thirty (30) calendar days prior
written notice as prescribed above. Notice shall be deemed to have been given or
made on the date of delivery if received by hand, or express courier, and three
days after delivery to the U.S. Postal Service, if mailed.
9.7 Publicity Bell Atlantic and Carrier agree not to publish any advertising,
sales promotions, or press releases that promote or otherwise relate to the
services provided under this Agreement and include the other party's name,
logos, trademarks, or service marks, unless it obtains the other party's prior
written consent, except that either party may disclose the fact that Bell
Atlantic provides directory assistance and/or operator services to Carrier
without such prior review or approval.
9.8 Severability If any provision of this Agreement or the application of any
provision shall be held by a tribunal of competent jurisdiction to be contrary
to law or unenforceable, the remaining provisions of this Agreement shall
continue in full force and effect.
9.9 Survival All obligations hereunder, incurred by either Bell Atlantic or
Carrier prior to the cancellation, termination, or expiration of this Agreement
shall survive such
<PAGE>
cancellation, termination or expiration.
9.10 Captions and Section Headings The captions and section headings in this
Agreement are for convenience only and do not affect the meaning or
interpretation of this Agreement.
9.11 Duplicate Originals This Agreement may be executed separately by the
parties in one or more counterparts. Each duplicate executed shall be deemed an
original, and all together shall constitute one and the same document.
9.12 Entire Agreement The terms and conditions of this Agreement, including the
Appendices attached to this Agreement, constitute the entire Agreement between
Bell Atlantic and Carrier relating to the subject matter of this Agreement, and
supersede any and all prior or contemporaneous understandings, promises or
representations, whether written or oral, between the parties relating to the
subject matter of this Agreement. Any waiver, modification or amendment of any
provision of this Agreement, or of any right or remedy hereunder, shall not be
effective unless made in writing and signed by both parties.
IN WITNESS WHEREOF, the parties agree that the effective date of this Agreement
is the date first written above, and each party warrants that it has caused this
Agreement to be signed and delivered by its duly authorized representative.
FOR BELL ATLANTIC - FOR CARRIER
________________________, INC.
Name: _________________________ Name: __________________________
Title: ________________________ Title: _________________________
Signature: ____________________ Signature: _____________________
Date: _________________________ Date: __________________________
<PAGE>
APPENDIX A
BELL ATLANTIC
CARRIER SERVICE SELECTION FORM
Please select desired services.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
MINIMUM SERVICE
SERVICE SERVICE CHARGE SELECTION
PERIOD
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Directory Assistance 12 months $______/call (Directory Yes No
(ADAS) Transport charges below)
- -------------------------------------------------------------------------------------------
IntraLATA Call 12 months Live: $______/op work second Yes No
Completion Operator Automated: $______/auto wk sec
Services LIDB: $______/query
- -------------------------------------------------------------------------------------------
Directory Assistance non- $_________ per switch Yes No
Branding recurring fee
- -------------------------------------------------------------------------------------------
Operator Services non- $_________ per switch Branding is
Branding recurring fee required for OS
- -------------------------------------------------------------------------------------------
</TABLE>
Directory Transport charges are as follows. (Call miles are measured from the BA
Wire Center serving Carrier's premises to the Directory Assistance location.)
Rate Per Directory Assistance Call
----------------------------------
Tandem-Switched Transport
Fixed ....................................... $________
Per mile .................................... $________
Tandem Switching .................................. $________
Note: Trunking, daily usage file, and switched access costs are not included in
the above rates.
<PAGE>
APPENDIX B
INTRALATA CALL COMPLETION OPERATOR SERVICES CALL TYPES
IntraLATA Call Completion Operator Services may include the following:
a. Calling Card
(i) Live: Bell Atlantic operator keys the calling card number and call
details into the system, secures validation, and releases the call to the
network.
(ii) Automated: Caller keys the calling number and call details in
response to automated prompts. Bell Atlantic secures validation and
releases the call to the network.
b. Collect
(i) Live: Bell Atlantic operator obtains the calling party's name, keys
the call details if necessary, announces the call to the called party,
waits for acceptance, and releases the call to the network.
(ii) Automated: Caller provides name and call details. Bell Atlantic's
automated system obtains called party's consent and releases the call to
the network.
c. Billed To A Third Party
(i) Live: Bell Atlantic operator requests the calling party's name, keys
the call details if necessary, calls the third party to verify acceptance
of billing, and upon acceptance, releases the call to the network.
(ii) Automated: Caller provides name, call details, and billing number.
Bell Atlantic's automated system verifies billed number and releases the
call to the network.
d. Person-to-Person
Bell Atlantic operator requests the person or department the calling party
has specified, ensures the appropriate party has been reached (person or
department), and releases the call to the network.
e. Coin Sent Paid
Bell Atlantic operator keys the call details if necessary, requests the
initial deposit, and upon deposit, releases the call to the network.
<PAGE>
f. Miscellaneous Call Assistance (Live)
(i) 0- Calls: Bell Atlantic operator provides caller with dialing
instructions or assistance, transfers emergency calls, or refers questions
to the business office or repair service.
(ii) Dialing Assistance & Intervention: Bell Atlantic operator dials a
number for a caller who is unwilling to dial directly or is encountering
trouble (such as wrong number, poor transmission, or cutoff), and who
requests a credit or reconnection.
(iii) Time and Charges: Bell Atlantic operator provides caller with time
and charges at the end of conversation, if requested.
(iv) Individuals with Disabilities: Bell Atlantic operator assists a
caller requiring dialing assistance due to a disability.
g. Busy-Line Verification
Bell Atlantic operator determines if the number specified by the customer
is in use, idle, or out of order. Appropriate facilities and equipment may
be required from the Carrier to enable verification of Carrier's lines.
h. Customer-Requested Interrupt
At the caller's request, Bell Atlantic operator interrupts conversation in
progress on a line that is in use, as verified through Busy-Line
Verification.
i. Operator Number Identification (ONI) Requests
Bell Atlantic operator requests the calling telephone number, keys the
number into the system for identification, and releases the call for
processing.
j. Automated Coin Toll Service (ACTS)
Bell Atlantic will provide automated messages for intraLATA toll calls
that originate from coin phones. The messages will prompt callers for the
correct change and record the change upon deposit. If a caller fails to
deposit the correct amount within the time threshold (set by Bell
Atlantic), the call will default to a live operator.
k. Validation Services
Bell Atlantic will launch queries for the validation of all calling card
calls, collect calls, and billed-to-third number calls to a Line
Information Data Base (LIDB). The validation costs for queries of LIDB are
separate from the individual call rates. Bell Atlantic will also launch
queries for validations to another company's LIDB if that company has a
card honoring agreement with Bell Atlantic.
<PAGE>
APPENDIX C
REQUIRED INFORMATION
Carrier shall furnish Bell Atlantic all information required by Bell Atlantic to
establish and maintain the Services to be provided to Carrier, including a
completed Technical Questionnaire. Such required information includes, but is
not limited to, the following:
1. Central office exchange names
2. Usage forecasts
3. Local central office characteristics
4. Trunking arrangements and trunk group types
5. Emergency reporting system and procedures
6. Business office information
7. Repair service information
8. Name and address request information
9. Tariffs and rate information
10. Customer dialing capabilities
11. Access to EMR records
12. Desired branding announcement (if applicable)
13. Carrier's estimated start date of Services
14. Access Service Requests (ASRs) for trunking and translations
Note: ASRs are not to be submitted by Carrier until Carrier and Bell Atlantic
have reviewed the Technical Questionnaire.
<PAGE>
APPENDIX D
OPTIONAL SERVICE SELECTION FORM
MINIMUM SERVICE
SERVICE SERVICE PERIOD CHARGE SELECTION
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Directory Assistance Call Completion 6 months $___/call Yes No
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT D
INTRALATA TELECOMMUNICATIONS SERVICES SETTLEMENT AGREEMENT
This Agreement is entered into as of _______________ , 1997, by and
between Bell Atlantic - _______________, Inc., a ___________ corporation, with
principal offices located at ______________________________ ("BA-__"), and
___________________________, a ______________ corporation, with principal
offices located at ________________________
____________________________________________________ ("Carrier").
SECTION I
SCOPE
This Agreement sets forth the terms and conditions for the following:
(a) administering and processing messages in the intraLATA Toll
Originating Responsibility Plan ("ITORP"); and
(b) the settlement of compensation for the following telecommunications
traffic within a BA-__ LATA:
(1) intrastate and interstate intraLATA traffic terminated to
Carrier and originated by an Independent Telephone Company or
wireless carriers that transits the facilities of BA-__ within a
BA-__ LATA, including Message Telecommunications Service and Local
Exchange Service (the "ITORP Transit Service Traffic");
(2) intrastate and interstate intraLATA Message Telecommunications
Service and Local Exchange Service traffic which originates from a
Certified Local Exchange Carrier or Carrier, transits BA-PA's
network and terminates to Carrier, or a wireless carrier or an
Exchange Carrier other than BA-__, which traffic is subject to a
Meet-Point Billing arrangement (the "Meet-Point Transit Service
Traffic");
(3) intraLATA 800/888 Service Traffic; and
(4) intraLATA Alternately Billed Calls billed to a line-based
telephone number within the state where the call is originated.
By way of clarification, this Agreement does not cover the following: (x)
traffic that does not use BA-__ facilities; (y) interLATA traffic; and (z) any
statewide services (whether interLATA or intraLATA) provided entirely by an
Interexchange Carrier such as statewide WATS.
<PAGE>
EXHIBIT D
SECTION II
DEFINITIONS
For purposes of this Agreement, the terms set forth below shall have the
following meaning:
A. 800/888 Number Database shall mean the call management service
database that provides POTS telephone number translation or routing
information or both for a given 800/888 telephone number.
B. 800/888 Service Traffic means a toll free call originating with the
Originating Company and billed to the Terminating Company's end
user. 800/888 service MOUs are recorded by the Originating Company
and provided to the Terminating Company so that it can bill its end
user(s).
C. Access Tandem shall mean a switching entity that is used to
connect and switch trunk circuits between and among End Offices and
between and among End Office switches and carriers' aggregation
points, points of termination, or points of presence, which entity
has billing and recording capabilities that are used to provide
switched Exchange Access services.
D. Alternately Billed Calls shall mean all intraLATA land-line
Collect Calls, Calling Card Calls and Third-Number Calls that
originate and terminate in the _________ of _____________ and are
billed to a line-based number within the jurisdiction of the
__________ of _____________ serviced by the Billing Company.
Alternately Billed Calls are identified in ITORP reports as
"Received Collect/Sent Collect Calls".
E. Basic 800/888 Number Query shall mean routing information
obtained from an 800/888 Number Database for originating 800/888
calls.
F. Billing Company shall mean the Local Exchange Carrier that
provides the local telephone exchange service for the number to
which an Alternately Billed Call is to be billed.
G. Calling Card Call shall mean a call billed to a pre-assigned end
user line-based billing number, including calls dialed or serviced
by an operator system.
H. Carrier Common Line Facilities means the facilities from the end
user's premises to the End Office used to originate or terminate
Transit Service Traffic and 800/888 Service Traffic. Such carrier
common line facilities are as specified in each party's Exchange
Access Tariff.
2
<PAGE>
EXHIBIT D
I. Category 01 shall mean the EMR/billing record for usage charges
applicable to the terminating 800/888 number service subscriber.
J. Category 08 shall mean the EMR/copy record containing the
information necessary for Carrier to bill/settle intraLATA
terminating charges with other carriers.
K. Category 11 shall mean the EMR/access record containing
information necessary for Carrier to bill/settle interexchange
access charges.
L. CCS/SS7 shall mean the Common Channel Signaling/Signaling System
7, which refers to the packet-switched communication, out-of-band
signaling architecture that allows signaling and voice to be carried
on separate facilities, and thus is a signaling network that is
common to many voice channels. There are two modes of operation
defined for CCS/SS7: database query mode, and trunk signaling mode.
M. Centralized Message Distribution System (CMDS) shall mean the
message processing system which handles the distribution of Message
Records from the Earning Company to the Billing Company.
N. Certified Local Exchange Carrier (CLEC) means a carrier certified by
the ____________ ____________to provide Local Exchange Access
services within the BA-__ operating territory in that state.
O. Collect Call shall mean a non-sent paid call that is billed to
the number receiving the call, including calls dialed or serviced by
an operator system.
P. Discounted Toll Services means services in which the originating end
user is charged a rate less than would normally be assessed for
calls placed to similar points outside the end user's local calling
area.
Q. Earning Company shall mean the Local Exchange Carrier that
provides local telephone exchange service for the number from which
an Alternately Billed Call originates.
R. End Office means the end office switching and end user line
termination facilities used to originate or terminate switched
intraLATA telecommunications services traffic.
S. Exchange means a geographic area established for the furnishing of
local telephone service under a local tariff. It usually embraces a
city, town or village and its
3
<PAGE>
EXHIBIT D
environs. It consists of one or more wire centers together with the
associated facilities used in furnishing communications service
within the area.
T. Exchange Access means the facilities and services used for the
purpose of originating or terminating interexchange
telecommunications in accordance with the schedule of charges,
regulations and conditions specified in lawfully established
Exchange Access Tariffs.
U. Exchange Access Tariffs means the tariffs lawfully established with
the Federal Communications Commission or the _____________
___________________ by an Exchange Carrier for the provision of
Exchange Access facilities and services.
V. Exchange Carrier shall mean a carrier licensed to provide
telecommunications services between points located in the same
Exchange area.
W. Exchange Message Record (EMR) shall mean the standard used for
exchange of telecommunications message information among Local
Exchange Carriers for billable, non-billable, sample, settlement and
study data. EMR format is described in BR-010-200-010 CRIS Exchange
Message Record, a Bell Communications Research, Inc. document that
defines industry standards for Exchange Message Records, which is
hereby incorporated by reference.
X. ITORP Transit Service Traffic shall have the meaning set forth in
Section I above titled "Scope".
Y. Independent Telephone Company shall mean any entity other than BA-__
which, with respect to its operations within the ___________ of
__________________, is an incumbent Local Exchange Carrier.
Z. Inter-Company Net Billing Statement shall mean the separate monthly
financial reports issued by BA-__ under ITORP to the Exchange
Carriers for settlement of amounts owed.
AA. IntraLATA Toll Originating Responsibility Plan (ITORP) shall mean
the information system owned and administered by BA-__ for
calculating charges between BA-__ and Local Exchange Carriers for
termination of intraLATA calls.
BB. Interexchange Carrier (IXC) means a carrier that provides, directly
or indirectly, interLATA or intraLATA telephone toll services.
CC. Local Access and Transport Area (LATA) means a contiguous geographic
area: (1) established before the date of enactment of the
Telecommunications Act of 1996 by BA-__ such that no Exchange area
includes points within more than one
4
<PAGE>
EXHIBIT D
metropolitan statistical area, consolidated metropolitan statistical
area, or state, except as expressly permitted under the AT&T Consent
Decree; or (2) established or modified by BA-__ after such date of
enactment and approved by the Federal Communications Commission.
DD. Local Exchange Carrier (LEC) means any person that is engaged in the
provision of Local Exchange Service or Exchange Access. Such term
does not include a person insofar as such person is engaged in the
provision of a commercial mobile service under Section 332 (c) of
the Telecommunications Act of 1996, except to the extent that the
Federal Communications Commission finds that such service should be
included in the definition of such term.
EE. Local Exchange Service means telecommunications services provided
between points located in the same LATA.
FF. Meet -Point Billing (MPB) means an arrangement whereby two or more
LECs jointly provide to a third party the transport element of a
switched access Local Exchange Service to one of the LECs' End
Office switches, with each LEC receiving an appropriate share of the
transport element revenues as defined by their effective Exchange
Access tariffs.
GG. Meet-Point Transit Service Traffic shall have the meaning set forth
in Section 1, "Scope".
HH. Message Records shall mean the message billing record in Exchange
Message Record format.
II. Message Telecommunications Service (MTS) means message toll
telephone communications, including Discounted Toll Services,
between end users in different Exchange areas, but within the same
LATA, provided in accordance with the schedules of charges,
regulations and conditions specified in lawfully applicable tariffs.
JJ. Minutes of Use (MOU) means the elapsed time in minutes used in the
recording of Transit Service Traffic and 800/888 Service Traffic.
KK. Multiple Bill/Single Tariff means the MPB method whereby each LEC
prepares and renders its own Meet Point Bill in accordance with its
own tariff(s) for the portion of the jointly-provided Exchange
Access service which the LEC provides.
LL. Multiple Exchange Carrier Access Billing (MECAB) means the document
prepared by the Billing Committee of the Ordering and Billing Forum,
which functions under the auspices of the Carrier Liaison Committee
of the Alliance for
5
<PAGE>
EXHIBIT D
Telecommunications Industry Solutions, and published by Bellcore as
Special Report SR-BDS-000983, which document contains the
recommended guidelines for the billing of an Exchange Access service
provided by two or more LECs, or by one LEC in two or more states,
within a single LATA, and is incorporated herein by reference.
MM. Originating Company means the company which originates intraLATA
MTS or Local Exchange Service on its system. (For compensation
purposes, the Originating Company shall be considered the
Terminating Company for 800/888 Service Traffic.)
NN. Terminating Company means the company which terminates intraLATA
MTS or Local Exchange Service on its system where the charges for
such services are collected by the Originating (or Billing) Company.
(For compensation purposes, the Terminating Company shall be
considered the Originating Company for 800/888
Service Traffic.)
OO. Third-Number Call shall mean a call billed to a subscriber's
line-based billing number which is not the number to which the call
either terminates or originates.
PP. Transit Traffic shall refer to both ITORP Transit Service Traffic
and Meet-Point Transit Service Traffic.
QQ. Transiting Company shall mean a Local Exchange Carrier which
transports intraLATA telecommunications traffic on its system
between an Originating Company and a Terminating Company.
RR. Transport Facilities means the facilities from the End Office to a
tandem switching facility used to originate or terminate switched
intraLATA telecommunication services traffic.
SECTION III
SETTLEMENT OF TRANSIT SERVICES
(a) ITORP Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ will route
ITORP Transit Service Traffic over the combined local and toll trunk groups
between BA-__ and Carrier. BA-__
6
<PAGE>
EXHIBIT D
and Carrier agree to designate the points of interconnection for the purpose of
terminating ITORP Transit Service Traffic which originates from an Independent
Telephone Company or wireless carrier and terminates to Carrier. Both parties
further agree to develop and file mutually agreed to billing percentages
applicable to ITORP Transit Service Traffic in the National Exchange Carrier
Association F.C.C. Tariff No. 4, which billing percentages shall be calculated
in accordance with ITORP guidelines.
(2) Exchange of Billing Data. The Originating Company will provide to
BA-__ all billing data relating to ITORP Transit Service Traffic for processing
in ITORP within fourteen (14) days from the date the usage occurs (to the extent
usage occurs on any given day) for traffic originating from an Independent
Telephone Company or wireless carrier, which traffic transits BA-PA's facilities
and terminates to Carrier.
(3) Billing. BA-__ will, on behalf of Carrier, bill Exchange Carriers for
intraLATA ITORP Transit Service Traffic, and collect compensation due Carrier
based on Carrier's established and legally-approved tariffed or negotiated rates
utilizing ITORP. The charges set forth in Attachment A, attached hereto and
incorporated herein by reference, shall apply to the billing and collection
services provided by BA-__ to Carrier hereunder. Carrier will record the ITORP
Transit Service Traffic usage at its switch, and shall bill BA-__ for this
traffic in accordance with the rates set forth in the Interconnection Agreement
under Section 251 and 252 of the Telecommunications Act of 1996, dated as of
September __, 1996, by and between BA-__ and Carrier.
(b) Meet-Point Transit Service Traffic.
(1) Call Routing and Recording; Billing Percentages. BA-__ and Carrier
will route their respective Meet-Point Transit Service Traffic over the combined
local and toll trunk groups between them. BA-__ and Carrier agree to designate
the points of interconnection for the purpose of terminating Meet-Point Transit
Service Traffic which originates from a CLEC and terminates to Carrier, or
originates from Carrier and terminates to a CLEC, Independent Telephone Company,
or a wireless carrier. Both parties further agree to develop and file mutually
agreed to billing percentages applicable to Meet-Point Transit Service Traffic
in the National Exchange Carrier Association F.C.C. Tariff No. 4, which billing
percentages shall be calculated in accordance with MECAB guidelines.
(i) End Offices Subtending BA-__ Access Tandem. Meet-Point Transit Service
Traffic will be routed over the local and toll interconnection facilities
used to terminate similar traffic directly between BA-__ and Carrier when
the Originating and Terminating Company's End Office switches subtend
BA-PA's Access Tandem. BA-__ will record this traffic at the BA-__ Access
Tandem, and forward the terminating call records to the Terminating
Company for purposes of Meet-Point Billing.
7
<PAGE>
EXHIBIT D
(ii) End Offices That Do Not Subtend a BA-__ Access Tandem. When the
Originating and/or the Terminating Company's End Office switches do not
subtend BA-PA's Access Tandem, the Meet-Point Transit Service Traffic must
be routed over interconnection facilities other than those used to
terminate intraLATA MTS or Local Exchange Service to BA-PA's end users The
Terminating Company will record this traffic at its Access Tandem and
forward the terminating call records to BA-__ for Meet-Point Billing
purposes.
(iii) Special Access. Upon request, any Meet-Point Service Transit Traffic
may be routed over special access interconnection facilities between
Carrier, on the one hand, and a CLEC, an Independent Telephone Company, or
a wireless carrier, on the other.
(2) Exchange of Billing Data. All billing data exchanged hereunder will be
exchanged on magnetic tape or via electronic data transfer, to be delivered at
the addresses set forth below, using the Electronic Message Record format. BA-__
will provide to Carrier the switched-access detail usage data (category 1101XX
records) on magnetic tape within fourteen (14) days from the date the usage
occurs (to the extent usage occurs on any given day) for traffic originating
from a CLEC, transiting BA-PA's facilities and terminating to Carrier, and
Carrier will provide to BA-__ the switched access summary usage data (category
1150XX records) on a magnetic tape on a monthly basis within fourteen (14) days
of receipt from BA-__ of the switched access detail usage data referenced above.
(3) Billing. BA-__ and Carrier will submit to CLECs separate bills under
their respective tariffs for their portion of jointly-provided Meet-Point
Transit Service Traffic. With respect to Meet-Point Transit Service Traffic,
BA-__ and Carrier will exchange billing data and render bills under Multiple
Bill/Single Tariff arrangements in accordance with the applicable terms and
conditions set forth in MECAB.
(4) Addresses. Magnetic tapes to be sent hereunder to Carrier will be sent
to the following address (which address Carrier may change upon prior written
notice to BA-__):
Magnetic tapes to be sent hereunder to BA-__ will be sent to the following
address(es), as appropriate (which address(es) BA-__ may change upon prior
written notice to Carrier):
Bell Atlantic
Tape Library
8
<PAGE>
EXHIBIT D
1500 Tech Center Drive
Monroeville, PA 15146
SECTION V
800/888 SERVICE
800/888 Service Traffic will be exchanged among BA-__, Carrier,
Independent Telephone Companies, CLECs and wireless carriers via CCS/SS7 trunks,
and all will deliver/route these calls as appropriate and provide EMRs to the
Terminating Company to enable it to bill its 800/888 service subscriber. These
EMRs will, per industry standards, include the following: Category 01 (800/888
number subscriber billing), Category 08 (copy record/local exchange charges),
and Category 11 (interexchange carriers access records).
(a) Delivery of Translated 800/888 Number Queries and calls over CCS/SS7
links and trunks. BA-__ and Carrier will launch their own Basic 800/888 Number
Query for 800/888 Service Traffic originated in their networks, and route this
traffic to each other, as appropriate, utilizing existing local and toll
interconnection facilities.
(b) Exchange of Records; Compensation. All 800/888 Service Traffic
hereunder shall be subject to the appropriate access charges, as set forth in
the applicable tariffs. In addition, for jointly provided intraLATA 800/888
Service Traffic between two Local Exchange Carriers, the Originating Company is
responsible for billing its tariffed Basic 800/888 Number Query charge to the
Terminating Company. Carrier, when acting as an Originating Company, must submit
to BA-__, via magnetic tape(s) in EMR format, (i) the information necessary to
bill/settle intraLATA charges (EMR Category 110125), and (ii) the usage charges
applicable to the terminating 800/888-number service subscriber (EMR Category
010125). In the event any of these records are lost or destroyed, BA-__ and
Carrier will jointly estimate the terminating access charges due to either party
hereunder as follows:
(1) Total the terminating traffic compensation paid with respect to
800/888 Service Traffic to each party hereunder for the most recent
six (6) months period preceding the month covered by the lost or
destroyed tapes.
(2) Divide the total determined in (1) preceding, by 180 days.
(3) Multiply the terminating traffic compensation per day determined in
(2) preceding, by the number of days covered by the lost or
destroyed tapes. The calculated amount will be included as an
adjustment for lost or destroyed tapes in the next Inter-Company Net
Billing Statement.
BA-__ shall have no liability whatsoever with respect to any lost, damaged
or destroyed
9
<PAGE>
EXHIBIT D
records submitted hereunder by Carrier.
(c) Settlement. EMR records submitted by Carrier hereunder acting as an
Originating Company, as contemplated in Paragraph (b) above, will be processed
in accordance with ITORP. For purposes of calculating the access charges due
Local Exchange Carriers with respect to 800/888 Service Traffic, the Originating
Company shall be deemed the Terminating Company. Access charges payable
hereunder shall be calculated in accordance with Section VII of this Agreement,
as applicable.
10
<PAGE>
EXHIBIT D
SECTION VI
ALTERNATELY BILLED CALLS
(a) Responsibilities of the Billing Company. The Billing Company agrees to
provide the Earning Company with billing services, as specified below, with
respect to Alternately Billed Calls.
(1) Billing. Upon receipt of the appropriate Message Record from CMDS, the
Billing Company shall include this record in the bill to be issued to the end
user responsible for payment. The Billing Company shall also submit copies of
these Message Records to BA-__, at least once a month, in order to determine
monthly settlement amounts for both the Billing Company and the Earning Company
which will be reflected in the Inter-Company Net Billing Statement. These
amounts will reflect any and all applicable charges due the Billing Company for
performing billing services hereunder. In addition, as applicable, the
Inter-Company Net Billing Statement will reflect any amounts owed by Carrier to
BA-__ for administering and processing ITORP.
(2) Payment of Amounts Outstanding. Upon receipt of the Inter-Company Net
Billing Statement from BA-__, Carrier shall, within thirty (30) days of invoice,
remit to BA-__ full payment of amounts owed under the Inter-Company Net Billing
Statement.
(b) Responsibilities of the Earning Company. In connection with
Alternately Billed Calls, the Earning Company shall provide Message Records to
the Billing Company on a daily basis to the extent that any usage has been
recorded. These Message Records will be delivered by the Earning Company to the
Billing Company via the CMDS system, unless otherwise agreed to by the parties
hereto.
(c) Fees for Settlement of Alternately Billed Calls. The billing services
provided by the Billing Company to the Earning Company with respect to
Alternately Billed Calls shall be subject to the applicable charges set forth in
Attachment A, which charges will be reflected in the Inter-Company Net Billing
Statement. These charges may be revised upon mutual written agreement of the
parties hereto.
SECTION VII
CALCULATION OF COMPENSATION
BA-__ and Carrier agree to compensate each other with respect to Transit
Services Traffic and 800/888 Service Traffic in accordance with the terms
established below, and the rate elements set forth in Attachments A and B,
attached hereto and incorporated herein by reference.
11
<PAGE>
EXHIBIT D
(a) Compensation due to the Terminating/Transiting Company. Compensation
due to the Terminating Company/Transiting Company will be determined separately
for each month as follows:
(1) For Carrier Common Line Facilities provided by the Terminating
Company, an amount calculated as specified for Carrier Common Line Facilities
in the Terminating Company's Exchange Access Tariff. Compensation will be
determined by multiplying a) the Terminating Company's Carrier Common Line
rate, times b) the MOU.
(2) For End Office facilities provided by the Terminating Company, an
amount calculated as specified for End Office facilities in the Terminating
Company's Exchange Access Tariff. Compensation will be determined by multiplying
a) the Terminating Company's appropriate Exchange Access End Office rate
elements, times b) the MOU.
(3) For Transport Facilities, where these facilities are provided by the
Terminating Company, or a Transiting and Terminating Company, an amount
calculated in accordance with the following steps:
(i) Determine the Terminating Company's airline miles from the
End Office which serves the Terminating Company's end user
to either the Terminating Company's Access Tandem switching
facility or the interconnection point with the Transiting
Company(ies).
(ii) Determine the Transiting Company's airlines miles from the
Transiting Company(ies) Access Tandem switching facility to
the interconnection point with the Terminating Company.
(iii) Determine the sum of the total airline miles by adding (i)
and (ii) above.
(iv) Divide the Terminating Company's airline miles determined in
(i) preceding by the total airline miles determined in (iii)
preceding, to determine the ratio of local transport miles
provided by the Terminating Company.
(v) Divide the Transiting Company's airline miles determined in
(ii) preceding by the total airline miles determined in
(iii) preceding, to determine the ratio of local transport
miles provided by the Transiting Company.
(vi) Identify the rates set forth in the Exchange Access Tariff
for either the Terminating Company or Transiting Companies,
or both, as appropriate, which rates are applicable to
Transport Facilities.
(vii) Multiply the ratio determined in (iv) preceding, times the
rate calculated in
12
<PAGE>
EXHIBIT D
(vi) preceding, times the MOU, and add the amount set forth
in (ix) below to determine the amount due the Terminating
Company.
(viii) Multiply the ratio determined in (v) preceding, times the
rate calculated in (vi) preceding, times the MOU, and add
the amount set forth in (ix) below to determine the amount
due the Transiting Company.
(ix) To the extent the Exchange Access Tariffs of the Terminating
or Transiting Company, or both, provide for the payment of a
fixed transport charge to be assessed with respect to a
terminating location (End Office or toll switch), multiply
this charge times the chargeable MOU.
SECTION VIII
ITORP ADMINISTRATION AND RESPONSIBILITIES
(a) Responsibilities of BA-__. BA-__ shall:
1. Operate and maintain the ITORP system.
2. Provide the requirements and standards for ITORP records and
tapes (ITORP User Guide).
3. Inform Carrier of any proposed change in tape creation or
distribution process at least sixty (60) days prior to the
actual implementation of the change.
4. Develop and implement all system enhancements required to
maintain the integrity of BA-PA's ITORP system.
5. Process ITORP tapes received from Carrier, or its agent,
during the next available billing cycle.
6. Review and analyze daily pre-edit reports to determine if a
tape is acceptable for ITORP processing; provided, however,
that Carrier is not absolved, as the Originating Company, from
its responsibility to conform to ITORP input requirements.
7. Communicate with Carrier, or its agent, to resolve the
problems with tapes which are identified as being unacceptable
for ITORP processing.
8. Create and/or maintain all ITORP tables.
13
<PAGE>
EXHIBIT D
9. Include the monthly compensation due to and from Carrier as
identified by ITORP on the Inter-Company Net Billing
Statement. The compensation includes 800/888 Service Traffic
and Alternately Billed Services traffic.
10. Settle with all local Exchange Carriers, via the Inter-Company
Net Billing Statement, for 800/888 Service Traffic and
Alternately Billed Services traffic originating from and/or
terminating to Carrier.
11. Distribute monthly ITORP reports.
(b) Responsibilities of Carrier. Carrier shall:
1. Compensate BA-__ for the administration and processing of
ITORP as specified in Attachment A.
2. Notify BA-__ Exchange Carrier Services staff in writing of any
changes in its rates affecting ITORP tables, as specified in
Attachment A, thirty (30) days prior to the effective date of
any such changes.
3. Notify BA-__ Exchange Carrier Services staff in writing of any
network changes, such as changes in traffic routing, sixty
(60) days prior to the implementation of the change in the
network.
4. Conform to BA-__'s ITORP record requirements and standards.
5. Carrier or its designated agent will forward the Exchange
Message Records to BA-__, in a timely manner for processing.
6. Inform the BA-__ Exchange Carrier Services staff in writing of
any proposed changes in the Exchange Message Record creation
or distribution process at least sixty (60) days prior to the
actual implementation of the change.
7. Reimburse BA-__ for compensating other local Exchange Carriers
on behalf of Carrier, as reflected in the Inter-Company Net
Billing Statement.
(c) Fees. Compensation for the administration and processing of ITORP will
be due BA-__ on a monthly basis, based on the number of messages processed in
ITORP for Carrier at an average total cost per message. The processing and
administrative fees applicable on a per message basis are set forth in
Attachment A. These fees may be revised by BA-__, at its discretion and upon
notice to Carrier, based on annual studies conducted by BA-__, and Carrier
14
<PAGE>
EXHIBIT D
hereby agrees to be bound by such revised rates. A minimum monthly fee, as
specified in Attachment A, will be assessed when Carrier's monthly ITORP
processing charges are below the stated minimum monthly charge.
SECTION IX
LIABILITIES
In the event of an error on the part of BA-__ in calculating or settling
any compensation amounts hereunder, Carrier's sole remedy and BA-PA's only
obligation shall be to re-calculate the compensation amount, and to the extent
any amounts are owed to or owed by Carrier, such amounts will be reflected as an
adjustment in the next Inter-Company Net Billing Statement. In addition and to
the extent applicable, BA-PA's liability under this Agreement and/or in
connection with the settlement, payment and/or calculation of any amounts due
hereunder shall be limited as set forth in the applicable tariffs. BA-__ shall
have no obligation or liability with respect to any billing, settlement or
calculation-of-compensation errors or omissions, including without limitation
the duty to re-calculate any compensation amounts reflected in the Inter-Company
Net Billing Statement, if such error or omission occurred more than two (2)
years prior to the time in which it is brought to BA-PA's attention in writing.
Without limiting the foregoing, in no event shall either party hereto be liable
for consequential, incidental, special or indirect damages (including without
limitation loss of profit or business) hereunder whether such damages are based
in tort (including, without limitation, under any theory of negligence),
contract breach or otherwise, and even if said party knew or should have known
of the possibility thereof.
SECTION X
RELATIONSHIP OF THE PARTIES
Nothing herein contained will be deemed to constitute a partnership or
agency relationship between the parties. Each party agrees that it will perform
its obligations hereunder as an independent contractor and not as the agent,
employee or servant of the other party. Neither party nor any personnel
furnished by such party will be deemed employees or agents of the other party or
entitled to any benefits available under any plans for such other party's
employees. Each party has and hereby retains the right to exercise full control
of and supervision over its own performance of the obligations under this
Agreement, and retains full control over the employment, direction, compensation
and discharge of all employees assisting in the performance of such obligations,
including without limitation all matters relating to payment of such employees,
including compliance with social security taxes, withholding taxes and all other
regulations governing such matters. In addition, each party will be responsible
for its own acts and those of its own subordinates, employees, agents and
subcontractors during the performance of that party's obligations hereunder.
15
<PAGE>
EXHIBIT D
SECTION XI
TERM AND TERMINATION
(a) Term - Upon execution by all parties hereto, this Agreement shall
become effective as of the date first shown on Page 1 of this Agreement, and
shall remain in effect until terminated by either party in accordance with
paragraphs (b), (c), (d), or (e) below.
(b) Termination for Breach - Either party may, upon prior written notice
to the other party, terminate this Agreement in the event the other party is in
default or breach of this Agreement and such breach or default is not corrected
within thirty (30) days after the breaching party has been notified of same.
(c) Termination for Convenience - Upon six (6) months written advance
notice to the other party, either party may terminate this Agreement.
(d) Acts of Insolvency - Either party may terminate this Agreement or any
portion thereof, effective immediately, by written notice to the other party, if
said other party (1) applies for or consents to the appointment of or the taking
of possession by receiver, custodian, trustee, or liquidator of itself or of all
or a substantial part of its property; (2) becomes insolvent; (3) makes a
general assignment for the benefit of creditors; (4) suffers or permits the
appointment of a receiver for its business or assets; (5) becomes subject to any
proceeding under any bankruptcy or insolvency law whether domestic or foreign,
voluntarily or otherwise; or (6) fails to contest in a timely or appropriate
manner, or acquiesces in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code or any application for the
appointment of a receiver, custodian, trustee, or liquidation of itself or of
all or a substantial part of its property, or its reorganization, or
dissolution.
(e) Termination of Interconnection Agreement. Unless otherwise agreed to
by the parties hereto in writing, in the event that the Interconnection
Agreement under Sections 251 and 252 of the Telecommunications Act of 1996,
dated as of December __, 1996, by and between BA-__ and Carrier expires without
being renewed, or expires or is terminated and no other interconnection
agreement has been entered into by BA-__ and Carrier, then this Agreement shall
be deemed terminated effective on the date the aforesaid Interconnection
Agreement expires or is terminated.
SECTION XII
NETWORK CONFIGURATION
Each party shall provide six (6) months advance written notice to the
other party of any network configuration that may affect any of the services or
compensation contemplated under this Agreement, and the parties hereto agree to
use reasonable efforts to avoid service
16
<PAGE>
EXHIBIT D
interruptions during any such network change.
SECTION XIII
CONSTRUCTION AND EFFECT
All services contemplated under this Agreement are provided in accordance
with any and all applicable regulatory requirements and effective tariffs filed
with and approved by the appropriate federal and/or state regulatory bodies, as
these tariffs and requirements may be modified from time to time. To the extent
there is a conflict between the terms of any said tariff or regulatory
requirement and this Agreement, the terms of the tariff or the regulatory
requirement shall prevail. However, to the extent not in conflict with the
provisions of the applicable tariffs or regulatory requirements, this Agreement
shall supplement the tariffs or regulatory requirements, and it shall be
construed to the fullest extent possible in harmony with such tariffs or
regulatory requirements.
SECTION XIII
MISCELLANEOUS
(a) Headings. Headings used in this Agreement are for reference only, do
not constitute part of this Agreement, and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
(b) Notices. All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing, shall be deemed delivered
(1) on the date of delivery when delivered by hand, (2) on the date of
transmission when sent by electronic mail or facsimile transmission during
normal business hours with telephone confirmation of receipt, (3) one (1) day
after dispatch when sent by overnight courier maintaining records of receipt, or
(4) three (3) days after dispatch when sent by registered mail, postage prepaid,
return-receipt requested, all addressed as follows (or at such other addresses
as shall be given in writing by either party to their other):
If to BA-__: Address: 1320 N. Court House Road, 9th Floor
Arlington, VA 22201
Attn.: Manager-Local Interconnection
Facsimile: 703 974 2188
Telephone: 704 974 4614
If to Carrier: Address:
Attn:
17
<PAGE>
EXHIBIT D
Facsimile:
Telephone:
(c) Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, and nothing herein shall be
construed to create any rights enforceable by any other person or third party.
This Agreement may not be assigned by either party (except by BA-__ to an
affiliate or successor in interest) without the prior written consent of the
other party, which consent shall not be unreasonably withheld.
(d) Waiver. No waiver of any right or term hereof shall be effective
unless in a writing executed by the waiving party. No waiver of any right or
privilege hereunder shall operate as a waiver of any subsequent or similar right
or privilege.
(e) Modifications. This Agreement may be modified or amended only by a
written agreement executed by the parties hereto.
(f) Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed an original.
(g) Severability. If any term, provision, paragraph or clause of this
Agreement or any application thereof shall be held invalid or unenforceable in
any particular jurisdiction, the remainder of this Agreement and any other
application of such term, provision, paragraph or clause shall not be affected
thereby in such jurisdiction (where such remainder or application shall be
construed as if such invalid or unenforceable term, provision, paragraph or
clause has not been inserted), and this Agreement and such application of such
term, provision, paragraph or clause shall not be affected in any other
jurisdiction.
(h) Contingency. Neither party will be held liable for any delay or
failure in performance of this Agreement from any cause beyond its control and
without its fault or negligence including but not limited to acts of God, acts
of civil or military authority, government regulations, embargoes, epidemics,
wars, terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, floods, strikes, power blackouts, other major environmental
disturbances, unusually sever weather conditions, inability to secure products
or services of other persons or transportation facilities, or acts or omissions
of transportation common carriers.
(i) Governing Law. Except as otherwise expressly provided herein, this
Agreement shall be interpreted, construed and governed by the laws of the State
of ____________, without regard to conflict of law provisions.
(j) Confidentiality. Unless by mutual agreement, or except to the extent
directed by a court of competent jurisdiction, neither party shall disclose this
Agreement or the terms hereof to any person other than such party's affiliates
or such party's officers, employees and consultants,
18
<PAGE>
EXHIBIT D
who are similarly bound hereby. This paragraph shall not prevent the filing of
this Agreement with a state or federal commission having jurisdiction over the
parties hereto if such filing is required by rule or order of that commission;
provided, however, that the parties hereto shall jointly request that the
Agreement be treated as confidential by that commission to the extent permitted
under the commission's regulations and procedures. Each party hereto must
maintain the confidentiality of all message, billing, traffic, and call records,
traffic volumes and all other material information and data pertaining to the
traffic covered by this Agreement and the carriers and end users associated with
such traffic.
(k) Remedies under Law. All remedies available to the parties hereto under
the terms of this Agreement shall be in addition to, and not by way of
limitation of, any other rights that said parties may have at law or equity,
none of which are hereby waived.
(l) Entire Agreement. This Agreement, including all Attachments and
Schedules attached hereto, contains the entire agreement, and supersedes and
voids any prior understanding, between BA-__ and Carrier regarding the subject
matter hereof.
19
<PAGE>
EXHIBIT D
In witness whereof, the undersigned parties have caused this Agreement
to be executed on their behalf this ______ day of _________, 19__.
Witness: [Carrier]
By:
- ----------------------------------- -------------------------------------
Witness: Bell Atlantic - _______________, Inc.
By:
- ----------------------------------- -------------------------------------
20
<PAGE>
EXHIBIT D
ATTACHMENT A
BASIS OF COMPENSATION
CHARGES FOR ADMINISTRATION OF ITORP AND ITORP PROCESSING
A. Bell Atlantic - _____________, Inc. charges the following rates for
providing ITORP services:
Rate Per Message/ Month
1. Administrative Charge $
2. Processing Charge Elements:
a. Terminating Traffic $
b. Minute/Message $
c. 800/888 Message $
d. Net Compensation $
e. Collected Revenue Processing Charge $
3. Minimum Monthly Fee $
4. Alternately Billed Calls $
21
<PAGE>
EXHIBIT D
ATTACHMENT B
I.
Message Telecommunications Service - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Carrier
End Office Carrier
Transport based on negotiated billing percentages (BIPs)
II.
800/888 - Terminating to or originating from Carrier Customers
Rate Element Billing Company
- ------------ ---------------
Carrier Common Line Originating Company
End Office Originating Company
Transport based on negotiated billing percentages (BIPs)
Query Originating Company
III.
Local Exchange - Terminating to Carrier
Rate Element Billing Company
- ------------ ---------------
Local E.O. Termination Charge Carrier
Transport based on negotiated billing percentages (BIPs)
22
<PAGE>
EXHIBIT 10.19
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of May 26, 1999
by and between
NEW YORK TELEPHONE COMPANY,
d/b/a
BELL ATLANTIC - NEW YORK
and
HARVARD NET, INC.
<PAGE>
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
26th day of May, 1999 (the "Effective Date"), by and between New York Telephone
Company, d/b/a Bell Atlantic - New York ("BA"), a New York corporation with
offices at 1095 Avenue of the Americas, New York, New York 10036, and Harvard
Net, Inc. ("HarvardNet"), a Delaware, corporation with offices at 500 Rutherford
Avenue, Charlestown, Massachusetts, 02129 (each a "Party" and, collectively, the
"Parties").
WHEREAS, Harvardnet has requested, pursuant to Section 252(i) of the Act,
that BA make available to Harvardnet Interconnection, services and unbundled
Network Elements upon the same terms and conditions as provided in the
Interconnection Agreement (and amendments thereto) between Covad Communications,
Company and BA, dated as of December 16, 1997, for New York, approved by the
Commission under Section 252 of the Act copies of which agreement and amendments
are attached hereto as Appendix 1 (the "Separate Agreement"); and
WHEREAS, BA has agreed, subject to the terms and conditions set forth
below, to make available to Harvardnet hereby Interconnection, services and
unbundled Network Elements upon the terms and conditions of the Separate
Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Harvardnet and BA hereby agree as follows:
1.0 Incorporation of Appendices by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement, as it is in effect the date hereof after giving effect to
operation of law, and of the other Appendices hereto, are incorporated by
reference in their entirety herein and form an integral part of this Agreement.
1.2 References in the Separate Agreement to Covad Communications, Company
or to Covad shall for purposes of this Agreement be deemed to refer to
Harvardnet.
1.3 References in Appendix 1 hereto to the "Effective Date", the date of
effectiveness thereof and like provisions shall for purposes of this Agreement
be deemed to refer to the date first written above. Unless terminated earlier in
accordance with the terms of the Separate Agreement, this Agreement shall
continue in effect until March 15, 2001, unless extended pursuant to Section 2
of the Separate Agreement. If the parties to the Separate Agreement terminate
that agreement prior to the above date, such termination shall have no impact on
the term or effectiveness of this Agreement.
<PAGE>
1.4 All references in the Separate Agreement to "800/888" shall be deleted
in their entirety and replaced with the following: "800/888/877"and other such
toll free numbers.
1.5 All certificates or other proof of insurance to be sent to BA under
Section 2.4.27 of the Separate Agreement shall be sent to the following address:
Director - Interconnection Services
Bell Atlantic - Telecom Industry Services
Room 1423
1095 Avenue of the Americas
New York, New York 10036
1.6 Notices to Harvardnet under Section 17 of the Separate Agreement shall
be sent to the following address:
Harvard Net, Inc.
Attn: Melanie Haratunian
General Counsel
500 Rutherford Avenue
Charlestown, MA 02129
Telephone: (617) 242-1700
Facsimile: (617) 242-6991
1.7 Notices to BA under Section 17 of the Separate Agreement shall be sent
to the following address:
President - Telecom Industry Services
Bell Atlantic Corporation
1095 Avenue of the Americas
40th Floor
New York, New York 10036
Facsimile: (212) 597-2585
with a copy to:
Bell Atlantic Network Services, Inc.
Attn: Jack H. White
Associate General Counsel
1320 N. Court House Road, 8th Floor
Arlington, Virginia 22201
Telephone: (703) 974-1368
Facsimile: (703) 974-0744
with a copy to:
<PAGE>
Bell Atlantic - New York
Attn: General Counsel
37th Floor
1095 Avenue of the Americas
New York, New York 10036
2.0 Clarifications
2.1 The entry into, filing and performance by the Parties of this
Agreement does not in any way constitute a waiver by either Party of any of the
rights and remedies it may have to seek review of any of the provisions of the
Separate Agreement, or to petition the Commission, other administrative body or
court for reconsideration or reversal of any determination made by any of them,
or to seek review in any way of any portion of this Agreement in connection with
Harvardnet's election under Section 252(i) of the Act.
2.2 Notwithstanding any other provisions of this Agreement, where the
state so mandates BA shall have no obligation to perform under this Agreement
until such time as Harvardnet has obtained a Certificate of Public Convenience
and Necessity ("CPCN") or such other Commission authorization as may be required
by law as a condition for conducting business in the State of New York as a
local exchange carrier, provided that, this restriction does not apply to BA's
obligation to provide Collocation or any other tariffed service to Harvardnet
irrespective of Harvardnet's CPCN status.
2.3 The Parties shall meet within thirty (30) days of the Effective Date,
or at such other time to which the Parties mutually agree, to exchange
information and to discuss in good faith the implementation issues addressed in
Section 2 of Exhibit A to Part III (Joint Planning and Forecasts).
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 26th day of May, 1999.
HARVARD NET, INC BELL ATLANTIC - NEW YORK
By: /s/ Mark Washburn By: /s/ Jeffrey A. Masoner
---------------------------- --------------------------------
Printed: Mark Washburn Printed: Jeffrey A. Masoner
----------------------- ---------------------------
Title: President and Title: Vice-President - Interconnection
Chief Executive Officer Services Policy & Planning
------------------------- -----------------------------
<PAGE>
AGREEMENT
between
New York Telephone Company
d/b/a Bell Atlantic
and
Covad Communications Company
<PAGE>
TABLE OF CONTENTS
INTERCONNECTION AGREEMENT
Page
RECITALS...................................................................1
DEFINITIONS................................................................1
GENERAL TERMS AND CONDITION................................................2
1. Scope of the Agreement..................................................2
2. Term of Agreement; Termination..........................................2
3. Transitional Support....................................................3
4. Good Faith Performance..................................................3
5. Option to Obtain Services, Unbundled Network Elements or
Combinations Under Other Agreements..................................4
6. Responsibility of Each Party............................................4
7. Government Compliance...................................................5
8. Regulatory Matters......................................................6
9. Liability and Indemnity.................................................6
9.1 Indemnification........................................................6
9.2 Limitation of Liability................................................7
10. Payment Terms, Disputed Amounts and Audits.............................8
10.1 ......................................................................8
<PAGE>
10.2 Payment Terms - Other than Local Services.............................9
10.3 Disputed Amounts - Other than Local Services..........................10
10.5 Audits and Inspections................................................13
10.5 Alternate Billing to Third Numbers....................................14
10.6 Reciprocal Compensation...............................................15
11. Service Standards......................................................16
12. OSS/Electronic Interfaces..............................................19
13. Operations Plan and Implementation Team................................20
14. Force Majeure..........................................................20
15. Certain State and Local Taxes..........................................20
16.1 Inter-Company Review Board............................................22
16.2 Non-Service Affecting Disputes........................................23
16.3 Service Affecting Disputes............................................26
16.4 Confidentiality.......................................................27
17. Notices................................................................28
17A. Non-Waiver............................................................29
18. Confidentiality........................................................31
19. Number Portability.....................................................32
2
<PAGE>
19.1 Interim Number Portability............................................32
19.2 Number Reassignment...................................................35
20. Directory Listings and Directory Distributions.........................35
21. Subscriber List Information............................................37
22. Parity.................................................................38
23. Miscellaneous..........................................................38
23.1 Delegation or Assignment..............................................38
23.2 Nonexclusive Remedies -...............................................38
23.3 No Third Party Beneficiaries..........................................39
23.4 Referenced Documents..................................................39
23.5 Governing Law.........................................................39
23.6 Publicity and Advertising.............................................39
23.7 Amendments or Waivers.................................................40
23.8 Severability..........................................................40
23.9 Entire Agreement......................................................40
23.10 Survival of Obligations..............................................41
23.11 Executed in Counterparts.............................................41
22.12 Headings of No Force or Effect.......................................41
3
<PAGE>
23.13 Joint Work Product...................................................41
23.14 Nonexclusive Dealings................................................41
23.15 No License...........................................................41
23.16 Dialing Parity.......................................................42
23.17 Integrity of BELL ATLANTIC Network...................................42
Part I.....................................................................43
Part II....................................................................44
1. Introduction............................................................45
2. Unbundled Network Elements..............................................46
3. Combinations............................................................71
4. MLT Testing.............................................................73
EXHIBIT A to Part II.......................................................74
PART III: SERVICE DESCRIPTION -- ANCILLARY FUNCTIONS.......................76
1. Intentionally Omitted...................................................76
2. Collocation.............................................................76
2.1 Definition.............................................................76
2.2 Technical Requirements.................................................76
2.3 Technical References...................................................94
4
<PAGE>
2.4 Other Requirements.....................................................95
2.5 Virtual Collocation....................................................109
3. Rights of Way...........................................................115
4. Dark Fiber..............................................................115
Appendix A.................................................................119
Appendix B.................................................................125
Appendix C.................................................................139
Appendix D.................................................................140
Appendix E.................................................................139
PART IV: PRICING SCHEDULE..................................................144
A. UNBUNDLED NETWORK ELEMENTS..............................................144
B. OTHER RATES.............................................................144
Reciprocal Compensation....................................................144
Information Services Fees..................................................144
BLV/BLVI Traffic...........................................................145
Transit Service............................................................145
Interim Number Portability.................................................146
IntraLATA 800..............................................................146
5
<PAGE>
Intentionally Omitted......................................................146
911/E911 Interconnection...................................................146
Wholesale Discounts........................................................147
Directory Assistance -Network Elements.....................................147
Miscellaneous and Non-Recurring Charges....................................149
A. Unbundled Network Elements..............................................149
Switch Port Additives......................................................149
Non-Recurring Charges......................................................149
B. Miscellaneous...........................................................150
1. Call Usage Detail Service...............................................150
2. Emergency Bulletin Service..............................................151
3. Intentionally Omitted...................................................151
6. Local Services Other....................................................152
Collocation................................................................152
Customized Routing.........................................................152
Alternate Billed Calls.....................................................152
NID........................................................................152
Branding...................................................................152
6
<PAGE>
Additional Charges.........................................................153
Electronic Copies..........................................................153
RATE APPLICATION RULES.....................................................153
General....................................................................153
Reciprocal Compensation....................................................155
Unbundled Network Elements.................................................155
Transient Tandem Process and Pricing.......................................157
Links......................................................................157
Non-Recurring..............................................................157
EXHIBIT A TO PART IV.......................................................160
PART V: INTERCONNECTION....................................................192
ATTACHMENT 1: DEFINITIONS..................................................193
ATTACHMENT 2 - OPERATIONS PLAN & IMPLEMENTATION TEAM.......................200
ATTACHMENT 3...............................................................204
ATTACHMENT 4...............................................................205
ATTACHMENT 5...............................................................205
ATTACHMENT 6 - BILLING AND RECORDING......................................206
APPENDIX I - CARRIER BILLING MANAGEMENT...................................231
7
<PAGE>
INTERCONNECTION AGREEMENT
This Agreement, which shall become effective upon the date approved in
accordance with Section 2(a), is entered into by and between COVAD
Communications Co., d/b/a COVAD, a California corporation, having an office at
3650 Bassett St., Santa Clara, CA 95054 ("COVAD"), and New York Telephone
Company, d/b/a BELL ATLANTIC, a New York corporation, having an office at 1095
Avenue of the Americas, New York, New York 10036 ("BELL ATLANTIC" or "NYNEX").
RECITALS
WHEREAS, the Telecommunications Act of 1996 (as amended or modified from
time to time, the "Act") was signed into law on February 8, 1996; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Telecommunications Carriers; and
WHEREAS, the Federal Communications Commission (the "FCC") has issued
rules to implement the Act (including In the Matter of the Local Competition
Provisions in the Telecommunications Act of 1996, FCC 96-325 (hereinafter, as
amended, modified, stayed or reconsidered from time to time, the "Order"); 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
COVAD will interconnect with the BELL ATLANTIC network in the BELL ATLANTIC
service territory within the State of New York (the "NY Region") and BELL
ATLANTIC will provide services to COVAD as required by the Act and Order and
additional services as set forth herein; and
WHEREAS, the Parties have arrived at this Agreement through negotiations
undertaken pursuant to the Act.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of this Agreement and other good and valuable consideration, COVAD and BELL
ATLANTIC hereby agree as follows:
DEFINITIONS
For purposes of this Agreement, certain terms have been defined in
Attachment 1 and elsewhere in this Agreement to encompass meanings that may
differ from, or be in addition to, the normal connotation of the defined word.
Unless the context clearly indicates otherwise, any term defined or used in the
singular shall include the plural. The words "shall" and "will" are used
interchangeably throughout the Agreement and the use of either connotes a
mandatory requirement. The use of one or the other shall not mean a different
degree of right or obligation for either Party. A defined word intended to
convey its special meaning is capitalized when used. Other terms that are
capitalized,
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and not defined in this Agreement, shall have the meaning in the Act.
GENERAL TERMS AND CONDITIONS
1. Scope of the Agreement This Agreement together with all applicable tariffs
referenced herein (as in effect from time to time) set forth the terms,
conditions and prices to which BELL ATLANTIC and COVAD have agreed in
respect of the following: (a) certain unbundled network elements,
(hereinafter collectively referred to as unbundled "Network Elements"),
(b) Collocation, (c) Number Portability, (d) Directory Assistance and
Operator Services and Directory Listings, (e) Reciprocal Compensation, (f)
E911 and 911 services, (g) Meet-Point Billing, (h) Dialing Parity, (i)
Transient Tandem Service, (j) Interconnection of COVAD's network to BELL
ATLANTIC's network and (k) Access to Telephone Numbers. This Agreement
includes the General Terms and Conditions, Parts I through V, and their
Attachments and all accompanying Appendices and Exhibits. Unless otherwise
provided in this Agreement, the rights and obligations of the Parties
hereunder shall apply throughout the NY Region.
2. Term of Agreement; Termination
(a) The initial term of this Agreement shall commence on the date on
which this Agreement has been approved in its entirety by the
Commission or the FCC as contemplated in Section 252 of the Act (the
"Effective Date") and shall expire on March 15, 2001 ("Term"),
except as otherwise provided in Section 2(d) below.
(b) COVAD (i) shall, at BELL ATLANTIC's request, or (ii) may, at its
option, nine months prior to the expiration of the Term, make a
request to BELL ATLANTIC to renegotiate the terms of this Agreement
pursuant to Section 251(c)(1) of the Act. The date of BELL
ATLANTIC's receipt of such request shall be hereinafter referred to
as the "Renegotiation Request Date". The Parties agree that within
sixty (60) days of such Renegotiation Request Date each Party will
provide to the other a written description of its proposed changes
to the Agreement. The Parties shall enter into negotiations on such
proposed changes seventy-five (75) days after such Renegotiation
Request Date.
(c) In the event that, notwithstanding, the good faith efforts of both
Parties, they are unable to agree on terms and conditions of a new
agreement, effective as of the expiration of this Agreement, then
either Party may, beginning 135 days after the Renegotiation Request
Date, file a petition for arbitration by the Commission pursuant to
Section 252(b) of the Act.
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(d) The terms and conditions of this Agreement shall only continue in
full force and effect until the effective date of the Commission's
decision pursuant to any petition filed under Section 2(c) above
(the "Arbitration Decision") if COVAD requests to renegotiate
pursuant to Section 2(b) above; provided, however, that the prices,
and, where feasible, any other terms and conditions of this
Agreement shall be trued up to conform with the Arbitration Decision
back to the date of expiration of the Term.
(e) Nothing in this Section 2 shall be construed as a waiver by either
Party of its right to appeal any decision of the Commission,
including the Arbitration Decision.
(f) Upon termination or expiration of this Agreement in accordance with
this Section 2:
(i) each Party shall comply with its obligations set forth in
paragraph (c) of Section 18 of the General Terms and
Conditions of this Agreement;
(ii) each Party shall promptly pay all amounts (including any late
payment charges or cancellation charges, if any) owed under
this Agreement; and
(iii) each Party's obligations that by their terms continue in force
and effect after termination or expiration of this Agreement
(including, without limitation, indemnification obligations)
shall survive termination or expiration of this Agreement.
3. Transitional Support Upon the termination or expiration of this Agreement,
COVAD may itself provide or retain another vendor to provide unbundled
Network Elements, or other access or services comparable to those
furnished under the terms of this Agreement. BELL ATLANTIC agrees to
cooperate with COVAD and to use commercially reasonable efforts to effect
an orderly and efficient transition to COVAD or COVAD's new vendor,
subject to the payment by COVAD to BELL ATLANTIC of the reasonable costs
incurred in providing such cooperation.
4. Good Faith Performance In the performance of their obligations under this
Agreement, the Parties shall act in good faith and consistently with the
provisions of the Act and the applicable effective provisions of the
Order. Except to the extent a different standard is expressly set forth in
this Agreement, in which case such other standard shall apply, where
notice, approval or similar action by a Party is permitted or required by
any provision of this Agreement, (including, without limitation, the
obligation of the Parties to further negotiate the
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resolution of new or open issues under this Agreement) such notice,
approval or similar action shall not be unreasonably delayed or withheld.
5. Option to Obtain Services, Unbundled Network Elements
(a) If BELL ATLANTIC enters into an agreement approved by the Commission
or the FCC pursuant to Section 252 of the Act which provides for the
provision in the State of New York of arrangements covered in this
Agreement to another requesting Telecommunications Carrier (the
"Other Agreement"), BELL ATLANTIC shall make available to COVAD upon
request, pursuant to section 252 (i) of the Act, such arrangements
upon the same rates, terms and conditions as those provided in the
Other Agreement.
If COVAD enters into an agreement with a Telecommunications Carrier
approved by the Commission or the FCC pursuant to Section 252 of the
Act with respect to services in the State of New York (the "Other
COVAD Agreement"), then COVAD shall make available upon request the
same interconnection, services and unbundled Network Elements to
BELL ATLANTIC under the same terms and conditions as those provided
in such Other COVAD Agreement to the full extent required by Section
252(i) of the Act.
(b) Notwithstanding the terms and provisions of paragraph (a) of this
Section 5, in the event that as a result of any decision, order or
determination of any judicial or regulatory authority, it is
determined that all or any portion of such paragraph (a) above is
found invalid or unenforceable, the Parties agree to abide by such
decision, order or determination to the extent paragraph (a) of this
Section 5 conflicts with such decision, order or determination.
6. Responsibility of Each Party Each Party has and hereby retains the right
to exercise full control of and supervision over its own performance of
its obligations under this Agreement, and retains full control over the
employment, direction, compensation and discharge of all employees
assisting in the performance of such obligations. Each Party will be
solely responsible for all matters relating to payment of such employees,
including compliance with social security taxes, withholding taxes and all
other regulations governing such matters. Subject to the limitations on
liability set forth in Section 9 of the General Terms and Conditions of
this Agreement and except as otherwise expressly provided in this
Agreement, each Party shall be responsible for (i) its own acts and
performance of all obligations imposed by all applicable federal, state or
local statutes, laws, rules, regulations, codes, orders, decisions,
injunctions, judgments, awards and decrees (collectively, "Applicable
Laws") in
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connection with its activities, legal status and property, real or
personal, and (ii) the acts of its own affiliates, employees, agents and
contractors during the performance of that Party's obligations hereunder.
Neither this Agreement, nor any actions taken by BELL ATLANTIC or COVAD in
compliance with this Agreement, shall be deemed to create an agency, joint
venture, or other relationship between COVAD and BELL ATLANTIC of any
kind, other than that of purchaser and seller of services. Neither this
Agreement, nor any actions taken by BELL ATLANTIC or COVAD in compliance
with this Agreement, shall create a contractual, agency, or any other type
of relationship or third party liability between BELL ATLANTIC and COVAD's
end users or others.
7. Government Compliance
7.1 The provisions of this Agreement are subject in their entirety to
the applicable provisions of the Act and any other orders,
restrictions and requirements of governmental and regulatory
authorities with competent jurisdiction over the subject matter
thereof and, in the event of any direct conflict between the
provisions of this Agreement and the requirements of such
governmental and regulatory authorities, the requirements of such
authorities shall prevail.
7.2 BELL ATLANTIC represents and COVAD acknowledges that BELL ATLANTIC
is entering into this Agreement specifically in order to satisfy the
obligations of BELL ATLANTIC as set forth in the Act and the Order.
7.3 In the event that any legislative, regulatory, judicial or other
legal action materially affects any material terms of this Agreement
or the rights or obligations of either COVAD or BELL ATLANTIC
hereunder or the ability of COVAD or BELL ATLANTIC to perform any
material provision hereof, the Parties shall renegotiate in good
faith such affected provisions with a view toward agreeing to
acceptable new terms as may be required or permitted as a result of
such legislative, regulatory, judicial or other legal action.
7.4 Notwithstanding anything herein to the contrary, in the event that
as a result of any decision, order or determination of any judicial
or regulatory authority with jurisdiction over the subject matter
hereof, it is determined that BELL ATLANTIC shall not be required to
furnish any service or item or provide any benefit required to be
furnished or provided to COVAD hereunder, then COVAD and BELL
ATLANTIC shall promptly commence and conduct negotiations in good
faith with a view toward agreeing to mutually acceptable new terms
as may be required or permitted as a result of such decision, order
or determination; provided, however, that BELL ATLANTIC expressly
reserves all rights it may have
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to discontinue any such service or item or benefit provided under
this Agreement to the extent permitted by any such decision, order
or determination and COVAD expressly reserves all rights it may have
to oppose any such discontinuance by BELL ATLANTIC.
8. Regulatory Matters
8.1 Each Party shall reasonably cooperate with the other in obtaining
and maintaining any required regulatory approvals for which the
Party is responsible in connection with the performance of its
obligations under this Agreement.
8.2 The Parties understand and agree that this Agreement will be filed
with the Commission and may thereafter be filed with the FCC. 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, subject to the rights of the Parties to appeal
or challenge arbitrated provisions or arbitration decisions. The
Parties also reserve the right to seek regulatory relief and
otherwise seek redress from each other regarding performance and
implementation of this Agreement. In the event the Commission, FCC
or any court rejects this Agreement in whole or in part, the Parties
agree to meet and negotiate in good faith to arrive at a mutually
acceptable modification of the rejected portion(s). If such new
terms are not renegotiated within 30 days after such rejection, the
dispute shall be referred to the Dispute Resolution process set
forth in Section 16 of the General Terms and Conditions of this
Agreement.
9. Liability and Indemnity
9.1 Indemnification
(a) With respect to all matters under this Agreement other than
Local Services (which shall be governed by applicable
Tariffs), to the extent not prohibited by Applicable Law, each
Party (the "Indemnifying Party") shall indemnify and hold
harmless the other Party ("Indemnified Party") from and
against loss, cost, claim, liability, damage, and expense
(including reasonable attorney's fees) to third parties for:
(i) damage to tangible personal property or for personal
injury proximately caused by the negligence or willful
misconduct of the Indemnifying Party, its employees,
agents or contractors; and
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(ii) claims for libel, slander, infringement of copyright
arising from the material transmitted over the
Indemnified Party's facilities arising from the
Indemnifying Party's own communications or the
communications of such Indemnifying Party's Customers;
and
(iii) claims for infringement of patents arising from
combining the Indemnified Party's facilities or services
with, or the using of the Indemnified Party's services
or facilities in connection with, facilities of the
Indemnifying Party.
(b) The Indemnified Party will notify the Indemnifying Party
promptly in writing of any claims, lawsuits, or demands by
third parties for which the Indemnified Party alleges that the
Indemnifying Party is responsible under this Section, and, if
requested by the Indemnifying Party, will tender the defense
of such claim, lawsuit or demand. In the event the
Indemnifying Party does not promptly assume or diligently
pursue the defense of the tendered action, then the
Indemnified Party may proceed to defend or settle said action
and the Indemnifying Party shall hold harmless the Indemnified
Party from any loss, cost, liability, damage and expense. In
the event the Party otherwise entitled to indemnification from
the other elects to decline such indemnification, then the
Party making such an election may, at its own expense, assume
defense and settlement of the claim, lawsuit or demand. The
Parties will cooperate in every reasonable manner with the
defense or settlement of any claim, demand, or lawsuit.
9.2 Limitation of Liability
(a) Except as otherwise provided in (i) Section 9.1 of the General
Terms and Conditions of this Agreement, (ii) Section 11 of the
General Terms and Conditions of this Agreement and (iii) Part
III of this Agreement, no liability shall attach to either
Party, its parents, subsidiaries, affiliates, agents, servants
or employees for any cost, expense, claim, liability, damage,
expense or other Loss in the absence of gross negligence or
willful misconduct.
(b) Except as otherwise expressly provided in (i) Section 9.1 of
the General Terms and Conditions of this Agreement, (ii)
Section 11 of the General Terms and Conditions of this
Agreement and (iii) Part III of this Agreement, no Party shall
be liable to the other
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Party for any cost, expense, claim, liability, damage, expense
or other Loss caused by the conduct of the other Party, the
other Party's agents, servants, contractors or others acting
in aid or concert with the other Party.
(c) 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.
(d) Except as otherwise provided in (i) Section 9.1 of the General
Terms and Conditions (ii) Section 11 of the General Terms and
Conditions of this Agreement and (iii) Part III of this
Agreement, each Party's liability to the other Party for any
Loss relating to or arising out of any negligent act or
omission in its performance of this Agreement, whether in
contract or in tort, shall be limited to the amount that is or
would have been charged to the other Party by such negligent
or breaching Party for the specific service(s) or function(s)
not performed or improperly performed, and only for the period
of time such service or function was not performed or
improperly performed.
10. Payment Terms, Disputed Amounts and Audits
10.1 [Intentionally Omitted]
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10.2 Payment Terms
Except for alternate billed calls, and meet-point billed calls, each
Party shall bill on a current basis all charges incurred by and
credits due to the other Party under this Agreement attributable to
services established, discontinued or performed during the preceding
billing period. In addition, either Party may bill in advance
charges for all services to be provided during the earning billing
period except for charges associated with measured service usage
which will be billed in arrears. The bill day (i.e., the billing
date of a bill for a Party for services under this Agreement), the
period of service each bill covers, and the payment date will be as
follows:
(a) Each Party will establish a bill day each month for the other
Party's account. If payment is not received by the payment date, as
set forth in (b) following, in immediately available funds, a late
payment penalty will apply as set forth in (b) following.
(b) All payment for bills dated as set forth in (a) preceding for
service provided to one Party by the other are due within thirty-one
(31) calendar days (payment date) unless the billed Party is able to
establish that the bill was not timely received (i.e., at least 20
days prior to the payment date), in which case the payment date
shall be twenty (20) calendar days from the receipt of the bill. All
bills are payable in immediately available funds. If such payment
date would cause payment to be due on a Saturday, Sunday or Legal
Holiday, payment for such bills will be due from the billed Party as
follows:
(i) If such payment date falls on a Sunday or on a Legal Holiday
which is observed on a Monday, the payment date shall be the
first non-Holiday day following such Sunday or Legal Holiday.
(ii) If such payment date falls on a Saturday or on a Legal Holiday
which is observed on Tuesday, Wednesday, Thursday or Friday,
the payment date shall be the last non-Holiday day preceding
such Saturday or Legal Holiday.
(iii) Further, if any portion of the payment is received by the
billing Party after the payment date, or if any portion of the
payment is received by the billing Party in funds which are
not immediately available to the billing Party, then a late
penalty shall be due to the billing Party. The late payment
penalty shall be the portion of the payment not received by
the payment date or not immediately
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available times a late factor. The late factor shall be the
lesser of:
(x) The highest interest rate (in decimal value) which may
be allowed by law for commercial transactions, for the
number of days from the payment date to and including
the date that the billed Party, actually makes the
payment to the billing Party, or
(y) 0.0005 per day, simple interest, for the number of days
from the payment date to and including the date that the
billed Party actually makes the payment to the billing
Party.
10.3 Disputed Amounts
In the event that a billing dispute occurs concerning any charges
billed to the billed Party by the billing Party the following
provisions will apply.
(a) The first day of the dispute shall be the date on which the billed
Party furnishes in writing the billing Party with the account number
under which the bill has been rendered, the date of the bill and the
specific items on the bill being disputed.
(b) If the Parties are unable to resolve the issues related to the
disputed amounts in the normal course of business within ninety (90)
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. 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.
(c) 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 paragraph (b) above, then
the matter shall be referred for resolution pursuant to Section 16
of the General Terms and Conditions of this Agreement.
(d) The Parties agree that all negotiations pursuant to this Section
10.3 with respect to disputed amounts shall remain confidential and
shall be treated as compromise and settlement negotiations for
purposes of the
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Federal Rules of Evidence and state rules of evidence.
(e) If a billing dispute is resolved in favor of the billing Party, any
payments withheld pending resolution of the dispute shall be subject
to the late payment penalty as set forth in paragraph 10.2 (b) (iii)
above. Further, the billed Party will not receive a disputed amount
penalty credit and/or a late payment penalty credit.
(f) If a billed Party disputes a bill within three months of the payment
date and pays the total billed amount on or before the payment date,
and the billing dispute is resolved in favor of the billed Party,
the billed Party will receive a credit for a disputed amount penalty
from the billing Party for the period starting with the date of
payment and ending on the date of resolution. The credit for a
disputed amount penalty shall be the following:
The disputed amount penalty shall be calculated by multiplying that
portion of the disputed amount paid and resolved in the billed
Party's favor times the lesser of:
(i) The highest interest rate (in decimal value) which may be
allowed by law for commercial transactions, for the number of
days from the first date to and including the last date of the
period involved, or
(ii) 0.0005 per day for the number of days from the first date to
and including the last date of the period involved.
(g) If the billed Party disputes a bill within three months of the
payment date and pays the total billed amount after the payment date
and the billing dispute is resolved in favor of the billed Party,
the billed Party will receive a credit for a disputed amount penalty
from the billing Party for the period starting with the date of
payment and ending on the date of resolution. The credit for a
disputed amount penalty shall be as set forth following. In
addition, the late payment penalty applied to the disputed amount
resolved in the billed Party's favor as set forth in paragraph
10.2(b)(iii) preceding will be credited.
(h) If the billed Party disputes a bill within three months of the
payment date and does not pay the disputed amount or does not pay
the billed amount (i.e., the non-disputed and disputed amount), and
the billing dispute is resolved in favor of the billed Party, the
billed Party will not receive a credit for a disputed amount penalty
from the billing Party. The late payment penalty applied to the
disputed amount resolved in the billing
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Party's favor as set forth in paragraph 10.2(b)(iii) preceding will
not be credited.
(i) If a billed Party disputes a bill after three months from the
payment date and pays the total billed amount on or before the
dispute date or after the dispute date but prior to the date of
resolution, and the billing dispute is resolved in favor of the
billed Party, the billed Party will receive a credit for a disputed
amount penalty from the billing Party for the period starting with
the date of dispute (if the payment was received before or on the
dispute date) or the date of payment (if the payment was received
after the dispute date) and ending on the date of resolution. The
credit for a disputed amount penalty shall be as set forth
following. The billed Party will not receive a credit for the late
payment penalty applied to the disputed amount resolved in the
billed Party's favor if the payment was received on or before the
dispute date. If the payment was received after the dispute date but
prior to the date of resolution, the billed Party will receive a
credit for a late payment penalty applied to the disputed amount
resolved in the billed Party's favor times a late payment penalty
factor for the period starting with the date of dispute and ending
on the date of payment. The penalty factor shall be as set forth in
paragraph 10.2(b)(iii) preceding.
(j) If the billed Party disputes a bill after three months from the
payment date and does not pay the disputed amount or does not pay
the billed amount (i.e., the non-disputed amount and disputed
amount) and the billing dispute is resolved in favor of the billed
Party, the billed Party will not receive a credit for a disputed
amount penalty from the billing Party. The billed Party will receive
a credit for the late payment penalty applied to the disputed amount
resolved in the billed Party's favor times a late payment penalty
factor for the period starting with the date of dispute and ending
on the date of resolution. The penalty factor shall be as set forth
in paragraph 10.2(b)(iii) preceding.
(k) Adjustments for the quantities of services established or
discontinued in any billing period will be prorated to the number of
days or major fraction of days based on a thirty (30) day month. The
billing Party will, upon request and if available, furnish to the
billed Party such detailed information as may reasonably be required
for verification of any bill.
(l) When a rate as set forth in this Agreement is shown to more than two
decimal places, the charges will be determined using the rate shown.
The resulting amount will then be rounded to the nearest penny
(i.e., rounded to two decimal places).
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10.4 Audits and Inspections
(a) Subject to the terms and conditions of this Section 10.4, the
restrictions set forth in Section 18 of the General Terms and
Conditions and the reasonable security requirements of each
Party and except as may be otherwise specifically provided in
this Agreement, each Party (the "Auditing Party") may audit
the other Party's (the "Audited Party") books, records and
other documents which relate solely to the Parties' billing to
the other Party under this Agreement once each year at the
conclusion of each calendar year, in order to evaluate the
accuracy of such other Party's billing and invoicing. The
Parties may employ other persons or firms for this purpose.
Such audit shall take place at a time and place agreed to by
the Parties no later than thirty (30) days after notice
thereof to such other Party.
(b) Each Audited Party shall promptly correct any billing error
that is revealed in an audit, including reimbursing any
overpayment in the form of a credit to the Auditing Party on
the invoice for the first full billing cycle after the Parties
have agreed upon the accuracy of the audit results. Any
disputes concerning audit results shall be resolved pursuant
to the procedures described in Section 16 of the General Terms
and Conditions of this Agreement.
(c) Each Audited Party shall cooperate fully in any such audit,
providing reasonable access to any and all appropriate
employees and relevant books, records and other documents
reasonably necessary to assess the accuracy of its bills.
(d) Each Auditing Party may perform a single additional audit of
the Audited Party's relevant books, records and documents
during any calendar year if the previous audit uncovered
uncorrected net variances or errors in invoices in favor of
the Audited Party having an aggregate value (except for Local
Services purchases) of not less than two percent (2%) of the
total amount payable by the Auditing Party during the period
covered by the audit.
(e) All audits shall be conducted at the sole cost and expense of
the Auditing Party.
(f) Upon (i) the discovery by either Party of overcharges not
previously reimbursed to the other Party or underpayments by a
Party or (ii) the resolution of disputed audits, each Party
shall
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promptly reimburse or pay to the Party entitled thereto the
amount of any overpayment or underpayment, together with
interest thereon at a rate per month equal to the lesser of
1.5% or the maximum permitted legal rate of interest for the
number of days from the date such Party received such
overpayment or, in the case of an underpayment, should have
received such payment through but excluding the date such
reimbursement or payment is made. In no event, however, shall
interest be assessed on any previously assessed or accrued
late payment charges.
10.5 Alternate Billing to Third Numbers
10.5.1 Intentionally Omitted
10.5.2 Intentionally Omitted
10.5.3 Intentionally Omitted
10.5.4 Intentionally Omitted
10.5.5. Alternate Billed Calls.
BELL ATLANTIC will use a BELL ATLANTIC territory
intraregion Alternate Billed Call clearinghouse (the
"Clearinghouse") for settling Alternate Billed Calls for
facility-based and unbundled Network Element purposes.
BELL ATLANTIC shall provide usage records for Alternate
Billed Calls directly to COVAD with a report to the
Clearinghouse. COVAD agrees that it will promptly pay to
the Clearinghouse all amounts billed by the
Clearinghouse on behalf of BELL ATLANTIC for Alternate
Billed Calls. COVAD shall be entitled to a billing and
collection fee as specified in Part IV for billing
Alternate Billed Calls to COVAD customers. Such billing
and collection fee shall be deducted by the
Clearinghouse from the amounts owed by COVAD to BELL
ATLANTIC and the bill provided to COVAD by the
Clearinghouse shall reflect the net amount due from
COVAD.
COVAD will transmit and settle Alternate Billed calls
directly with BELL ATLANTIC or its agent at which time
the Billing and Collection fee will be as specified in
Part IV for Alternate Billed calls.
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10.6 Reciprocal Compensation
(a) Reciprocal Compensation only applies to the transport and
termination of Reciprocal Compensation Traffic.
(b) The Parties shall compensate each other for transport and
termination of Reciprocal Compensation Traffic, based on
actual usage, at the rates set forth in Part IV hereof.
(c) The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to Switched Exchange Access
Service, including intraLATA calls originated on a third-party
carrier's network on a 1+ presubscribed basis or a casual
dialed (10XXX or 101XXXX) basis. All Switched Exchange Access
Service and all Toll Traffic shall continue to be governed by
the terms and conditions of the applicable federal and state
Tariffs. Notwithstanding any legislative, regulatory, judicial
or other legal action, the Parties agree that the Reciprocal
Compensation arrangements contained in this subsection 10.6
shall not apply to traffic handed off from one Party to the
other Party, within a BELL ATLANTIC intraLATA calling area,
for delivery to an Internet Service Provider for carriage over
the Internet ("ISP Traffic"). To the extent that either Party
is unable to measure the volume of ISP Traffic, the Parties
agree to work cooperatively to estimate such traffic volume.
(d) When either Party delivers seven (7) or ten (10) digit
translated intraLATA 800/888 service to the other Party for
termination, where the originating Party uses its own switch
(i.e., not utilizing unbundled switching from the terminating
Party), the originating Party shall provide the terminating
Party with customer billing records in industry standard
format (EMR) if required by the terminating Party. Where the
originating Party utilizes unbundled switching from the
terminating Party, the Party with recording capability will
provide such records. Where the originating Party uses its own
switch (not utilizing unbundled switching) to originate the
call, the originating Party may bill the terminating Party for
the delivery of the traffic at Reciprocal Compensation rates.
The terminating Party may not bill the originating Party for
Reciprocal Compensation under this Agreement, except
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where the originating Party fails to provide the terminating
Party with useable EMR records in a timely manner. The
originating Party shall bear the entire cost of any systems
development and production of such records; provided that the
terminating Party that is providing the 800/888 service shall
pay for each record provided by the originating Party at the
reciprocal record exchange rate set forth in Part IV hereof.
If the originating Party performs the 800 database query for
the terminating Party, the originating Party may charge the
terminating Party for such a query at the rate set forth in
Part IV hereof.
(e) Except for Reciprocal Compensation Traffic, each Party shall
charge the other Party its effective applicable tariffed
IntraLATA switched access rates for the transport and
termination of all IntraLATA Toll Traffic.
(f) The rates for termination of Reciprocal Compensation Traffic
are set forth in Part IV.
11. Installation Intervals and Credits
11.1 Installation Intervals
BELL ATLANTIC shall provision the unbundled Network Elements
identified below in accordance with the installation intervals
specified herein, provided, however, that in no event shall BELL
ATLANTIC be obligated to provide intervals that are more favorable
than BELL ATLANTIC extends to its own customers for comparable
services. In the event that an interval BELL ATLANTIC extends to its
own customers for a comparable service exceeds the interval
specified below, BELL ATLANTIC shall notify COVAD in writing of the
interval that BELL ATLANTIC extends to its own customers for that
comparable service (the "parity interval"). Ten (10) days after
receipt of such notice, the parity interval shall apply to
subsequent orders placed by COVAD for the comparable element for
which intervals are specified in this Section 11, notwithstanding
the intervals specified in Section 11.1(a)-(c) below.
After receipt of such notice, and notwithstanding Section 11.5
below, Covad may, at any time and at its sole discretion, elect to
waive its rights to credits pursuant to this Section 11 and may seek
other applicable intervals and remedies that may result from PSC or
FCC
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proceedings for any failure by Bell Atlantic to timely provide any
unbundled Network Element specified in this Section 11.
a) In every instance where facilities exist and COVAD orders less
than ten (10) 2-Wire ISDN-Compatible Digital Loops or less
than ten (10) 4-Wire 64 Kbps Digital Loops, as described in
Part II, Section 2.9.1 (c) and (d), from BELL ATLANTIC, BELL
ATLANTIC shall provide to COVAD such loops within ten (10)
business days from BELL ATLANTIC's receipt of a complete and
accurate order from COVAD.
b) Unless otherwise mutually agreed, Interoffice Transmission
Facilities ("IOF"), excluding SONET, shall be provided to
COVAD within thirty (30) calendar days from BELL ATLANTIC's
receipt of a complete and accurate order from COVAD, subject
to the availability of facilities. The installation interval
for the provision of IOF on or using SONET technologies shall
be negotiated by the Parties in good faith.
(c) To the extent ADSL-Compatible and/or HDSL-Compatible Loops
become available under the terms set forth in Part II, Section
2.9.1 (g), BELL ATLANTIC and COVAD agree to negotiate
installation intervals for such unbundled Network Elements
after the successful completion of an Operational Trial as
described in Part II, Section 2.9.1(g). The Parties shall
negotiate in good faith to establish such installation
intervals and associated credit provisions within sixty (60)
days of the date on which such loops are first provisioned by
BELL ATLANTIC pursuant to Part II, Section 2.9.1(g).
11.2 Specified Performance Breach
If BELL ATLANTIC's provision of an unbundled Network Element
identified in Section 11.1 above, exceeds the installation interval
set forth in that Section, BELL ATLANTIC shall issue credits to
COVAD, in accordance with and subject to the terms and conditions
set forth in this Section 11.
11.3 Credits
COVAD and BELL ATLANTIC agree and acknowledge that: (i) the credits
are not a penalty and have been determined based upon the facts and
circumstances known to COVAD and BELL ATLANTIC at the time of the
negotiation and the execution of this Agreement, with due regard
given to the performance expectations of each Party; and (ii) COVAD
shall not be required to provide any proof of its injury from any
failure by BELL ATLANTIC to achieve the installation interval as a
condition precedent to issuance of the credit. Notwithstanding (ii)
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above, COVAD upon BELL ATLANTIC's request shall provide any
information reasonably requested by BELL ATLANTIC to enable BELL
ATLANTIC to determine whether a credit is payable, including
information for any particular unbundled Network Element for which
COVAD asserts BELL ATLANTIC failed to meet the installation interval
set forth in Section 11.1 of the General Terms and Conditions of
this Agreement. Credits will apply as follows, subject to the
foregoing and to the limitations set forth in Section 11.4 below:
(a) 2-Wire ISDN-Compatible Digital Loops 4-Wire 64 Kbps Digital Loops,
ADSL-Compatible Loops, and HDSL-Compatible Loops. In the event that
BELL ATLANTIC fails to provide a 2-Wire ISDN Compatible Digital
Loop, a 4-Wire 64 Kbps Digital Loop, or an ADSL- or HDSL-Compatible
Loop to COVAD within the installation interval set forth in Section
11.1 (a) or (c), BELL ATLANTIC shall credit COVAD twenty five
percent (25%) of the applicable installation nonrecurring charges.
For every business day beyond the installation interval specified in
Section 11.1(a) or (c), that BELL ATLANTIC does not provide such
loops BELL ATLANTIC shall credit COVAD with 1/10th of the
installation nonrecurring charge for each such loop. Notwithstanding
the foregoing, at no time shall the maximum credit exceed the full
nonrecurring charge applicable to the installation of such loops.
(b) Interoffice Transmission Facilities. If BELL ATLANTIC fails to
install IOFwithin the installation interval set forth in Section
11.1(b), then for every business day that BELL ATLANTIC does not
provide IOF services beyond a thirty-five (35) day period, BELL
ATLANTIC shall credit COVAD with 1/20th of the applicable
installation nonrecurring charge for such service. Notwithstanding
the foregoing, at no time shall the maximum credit exceed the full
nonrecurring charge applicable to the installation of such service.
11.4 Limitations
BELL ATLANTIC shall not be liable for credits specified in Section
11.3 where:
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a) BELL ATLANTIC's failure to meet the installation interval is
caused, directly or indirectly, by a Delaying Event. A
"Delaying Event" means (i) a failure by COVAD to perform any
of its obligations set forth in this Agreement; (ii) any
delay, act or failure to act by COVAD or its customer, agent,
vendor, affiliate, representative or subcontractor; (iii) any
Force Majeure Event; or (iv) such other delay, act or failure
to act upon which the Parties may agree. Where BELL ATLANTIC
is unable to provision an unbundled Network Element because of
a Delaying Event, BELL ATLANTIC shall assign a new
installation interval subject to the terms set forth in
Section 11.1 and Section 11.3, above, this Section 11.4, and
Section 11.5 below;
b) For any order for Local Loops or IOF, where COVAD has
requested a date due or other installation interval different
(later or earlier) from those specified in Section 11.1 (a)
and (b);
c) COVAD has submitted orders for Local Loops in excess of (i)
3000 in any one month, (ii) 200 in any one day, (iii) 150 in
any one Central Office in any one day, or (iv) 30 in any one
hour. In such event, credits will apply only to the first (w)
3000 orders submitted in that particular month, (x) 200 orders
submitted in that particular day; (y) 150 orders submitted in
that particular Central Office on that particular day; or (z)
30 orders submitted in that particular hour;
d) COVAD has submitted orders for Local Loops or IOF that exceed
the forecast provided by COVAD by greater than five percent
(5%) by type and location. In such event, credits will apply
only to orders up to the forecasted amount; and/or
e) COVAD has not submitted the order(s) for Local Loops or IOF
through the standard electronic interface, provided that BELL
ATLANTIC has made available to COVAD a standard electronic
interface pursuant to this Agreement.
11.5 Sole Remedy
In the absence of gross negligence or willful misconduct, the
credits described herein shall be the sole and exclusive remedy
available for any failure by BELL ATLANTIC to provide the unbundled
Network Elements in accordance with this Section 11 regardless of
the existence or availability of any other remedy, procedure or
process available to COVAD at law or equity, and shall apply
irrespective of any other determinations made with respect to other
carriers in PSC Case No. 97-C-0139.
12. OSS/Electronic Interfaces
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For unbundled Network Elements, BELL ATLANTIC will provide
nondiscriminatory access to OSS functions for preordering, ordering,
provisioning, maintenance and repair, and billing as required by the Act,
the Order and other Applicable Law.
13. Operations Plan and Implementation Team The Parties agree to an
Implementation Plan as set forth in Attachment 2 to this Agreement.
14. Force Majeure
(a) Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement (other than an obligation
to make money payments) from any cause beyond its reasonable 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, strikes, equipment failure, 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 (each, a "Force Majeure Event"). If any
Force Majeure Event occurs, the Party delayed or unable to perform
shall give prompt notice to the other Party and shall take all
reasonable steps to mitigate the effects of such Force Majeure
Event. During the pendency of the Force Majeure Event, the duties of
the Parties under this Agreement affected by the Force Majeure Event
shall be abated and, upon cessation of such Force Majeure Event,
shall resume as promptly as reasonably practicable, without
liability thereafter.
(b) Notwithstanding paragraph (a) of this Section 14, no delay or other
failure to perform shall be excused pursuant to this Section 14 by
the acts or omissions of a Party's subcontractors, material men,
suppliers or other third persons providing products or services to
such Party unless such acts or omissions are themselves the product
of a Force Majeure Event, or unless such delay or failure and the
consequences thereof are beyond the reasonable control and without
the fault or negligence of the Party claiming excusable delay or
other failure to perform.
15. Certain State and Local Taxes 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 levied against or upon such purchasing Party (or the providing
Party when such providing Party is permitted to pass along to the
purchasing Party such taxes,
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fees or surcharges), except for any tax on either Party's corporate
existence, status or income (other than income taxes included in rates
through the computation of carrying charge factors). Whenever possible,
these amounts shall be billed as a separate item on the invoice. To the
extent a sale is claimed to be qualified 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.
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16. Dispute Resolution
16.1 General
Except for any matters related to BELL ATLANTIC's compliance with the FCC
Merger Order in the Application of BELL ATLANTIC Corporation, Transferee,
For Consent to Transfer Control of BELL ATLANTIC Corporation and its
Subsidiaries, NSD-L-96-10, Memorandum Opinion and Order (August 14, 1997)
("the FCC Merger Order") (including but not limited to any payment option
established pursuant to Section 17A of the General Terms and Conditions of
this Agreement), dispute resolution under the procedures provided in this
Section 16 shall be the primary remedy for all disputes between BELL
ATLANTIC and COVAD directly arising out of this Agreement or its breach.
If, for any reason, certain claims or disputes are deemed to be
non-arbitrable, the non-arbitrability of those claims or disputes shall
not determine the arbitrability of any other claims or disputes.
Nothing in this Section 16 shall limit the right of either BELL ATLANTIC
or COVAD to obtain provisional remedies (including injunctive relief) from
a court before, during or after the pendency of any arbitration proceeding
brought pursuant to this Section 16. However, once a decision is reached
by the arbitrator, such decision shall supersede any provisional remedy.
If, for any reason, the Commission or any other federal agency of
competent jurisdiction exercises jurisdiction over and decides any dispute
arising out of this Agreement and, as a result, a claim is adjudicated in
both an agency proceeding and an arbitration proceeding under this Section
16, the agency ruling shall be binding upon the Parties, to the extent
allowed by law.
16.2 Inter-Company Review Board:
(1) The Parties to this Agreement shall establish an Inter-Company
Review Board consisting of at least one representative from each
Party at the managing director or above level (or such lower level
as the Parties agree) to assist in the resolution of disputes
between BELL ATLANTIC and COVAD.
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(a) Each Party must designate its initial representative to the
Inter-Company Review Board within 15 days of the Effective
Date of this Agreement.
(b) The Parties may change their designee, or select an
alternative designee, as required or deemed appropriate,
without notice.
16.3 Non-Service Affecting Disputes:
If a non-service affecting dispute arises between BELL ATLANTIC and COVAD
during the term of the Agreement, the following process shall be followed
to resolve such dispute. In the event the Parties, in good faith, do not
agree that a non-service affecting dispute exists, the dispute shall be
assumed to be a service affecting dispute and the process for resolving a
service affecting dispute, as described below, shall be followed.
(1) Informal Negotiation of Non-Service Affecting Dispute.
If the parties have a non-service affecting dispute either Party may
initiate the procedures set forth herein by providing notice of the
existence of a non-service affecting dispute as set forth in Section
17. The petitioning party shall also serve the Commission and the
Inter-Company Review Board with a copy of the notice.
(a) The Parties shall have an initial 30 day period beginning from
the date on which either Party has provided written notice to
the other Party identifying the existence of a non-service
affecting dispute within which to resolve the dispute
themselves, without mediation or arbitration as provided
below.
(b) During the 30 day period referenced in subsection (a), the
Parties, through the Inter-Company Review Board, shall make a
reasonable effort to meet as often as necessary but not less
than one time each week in an effort to resolve a dispute.
(c) The Parties may also mutually agree to other informal
resolution processes for specific circumstances, including,
but not limited to commercial mediation or arbitration.
(2) Formal Mediation or Arbitration of Non-Service Affecting Dispute.
If the Inter-Company Review Board is unable to resolve a non-service
affecting dispute within thirty days (or such other period agreed to
in writing by the Parties) either Party may petition the Commission
to request mediation. If agreement cannot be reached through
mediation, either Party may then file a petition for commercial
arbitration pursuant to the
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Commercial Arbitration Rules of the American Arbitration
Association.
(a) A request for mediation shall be submitted in writing to the
Commission, with a copy served on the other Party pursuant to
Section 17.
(b) The period of mediation shall be 30 days commencing on the
date of filing of such petition for mediation. Such
petition shall include a request to the Commission to
choose a mediator within the first 10 days of such 30 day
period, and the mediation shall be conducted by a mediator
designated by the Commission. The Commission may assign a
staff person or a professional mediator to conduct the
mediation. The Parties shall cooperate in good faith with
the mediator to resolve the dispute within such 30 day
period. If, at any date following the 20th day of such 30
day period, the Parties have not resolved their dispute,
the Parties may request the mediator formally declare a
deadlock.
(c) Following the earlier to occur of (i) expiration of the 30
day mediation period without resolution of the dispute
between the Parties or (ii) formal declaration of a
deadlock by the mediator as contemplated in preceding
paragraph (b), either Party may petition for arbitration by
a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. This
petition for arbitration should include a comprehensive
explanation of the dispute (e.g., unresolved issues, areas
of agreement, stipulations of fact), as well as all
relevant correspondence exchanged during negotiations or
mediation. The petitioning Party shall provide a copy of
the petition to the other Party on the same day that the
petition for arbitration is filed. The other Party shall
assent to such petition for arbitration.
(d) The rules set forth in this subsection and the rules of the
American Arbitration Association ("AAA") shall govern all
arbitration proceedings initiated pursuant to this Section
16; however, such arbitration proceedings shall not be
conducted under the auspices of the AAA unless the Parties
mutually agree. Where any of the rules set forth herein
conflict with the rules of the AAA, the rules set forth in
this Section 16 shall prevail.
(e) To the extent possible, within ten (10) days of the filing of
the petition for arbitration, the Parties shall appoint an
arbitrator upon mutual agreement to resolve the dispute.
(f) Discovery shall be controlled by the arbitrator. The
arbitrator shall have the power to award any remedy or
relief that a court with jurisdiction over this Agreement
could order or grant, including,
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without limitation, the awarding of damages, pre-judgment
interest, specific performance of any obligation created under
the Agreement, issuance of an injunction, or imposition of
sanctions for abuse or frustration of the arbitration process
except as limited by Sections 9 and 11 of the General Terms
and Conditions and Part III of this Agreement. The arbitrator
shall not have the authority to limit, expand, or otherwise
modify the terms of this Agreement.
(g) The arbitration hearing shall be commenced within sixty
(60) days of the petition for arbitration. The arbitrator
shall issue in writing and serve his or her decision and
award on the Parties within 20 business days of the close
of the arbitration hearing. The times specified in this
subsection may be extended upon mutual agreement of the
Parties or by the arbitrator upon a showing of good cause
by one Party.
(h) Within thirty (30) days of the decision and award, the
arbitrator's decision must be submitted to the Commission
for review. Each Party must also submit its position on
the award and statement as to whether the Party agrees to
be bound by it or seeks to challenge it. The Commission
will determine whether to review the dispute within fifteen
(15) days of the date of receipt of the decision submitted
for review. If the Commission does not exercise its
jurisdiction within fifteen (15) days of receipt, the
arbitrator's decision and award shall be final and binding
on the Parties, except as provided below. Judgment upon
the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. Either Party may apply
to the United States District Court for the district in
which the hearing occurred for an order enforcing the
decision.
(i) A decision of the arbitrator shall not be final in the event
the dispute concerns the misappropriation or use of
intellectual property rights of a Party, including, but not
limited to, the use of the trademark, tradename, trade dress
or service mark of a Party, and the decision and award is
appealed by a Party to a federal or state court with
jurisdiction over the dispute.
(j) Each Party agrees that any permitted appeal must be commenced
within thirty (30) days after the arbitrator's decision in the
arbitration proceeding becomes final and binding.
(k) In the event an agency or court agrees to hear the matter on
appeal, a Party must comply with the results of the
arbitration
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process during the appeal process, unless a stay is granted.
(l) Except as provided below, each Party shall bear its own costs
of these procedures. The Parties shall equally split the fees
of the arbitration and the arbitrator. However, if in the
arbitrator's judgment, one Party's claim is frivolous, then
the arbitrator may determine that such Party should bear such
expense.
16.4 Service Affecting Disputes:
If a service affecting dispute arises between BELL ATLANTIC and COVAD
during the term of the Agreement, the following process shall be followed
to resolve such dispute. Any disputes over a matter that directly affects
the ability of a Party to provide timely services to its customers shall
be considered a service affecting dispute. The Parties may mutually agree
to resolve service affecting disputes in accordance with the procedures
set forth in Section 16.3 for non-service affecting disputes. However, in
the sole discretion of the Party identifying the existence of the service
affecting dispute, said dispute may be resolved in accordance with the
general procedures/timeframes for a non-service affecting dispute, as
described above. The Parties agree that disputes regarding the
applicability or provision of credits under Section 11 of the General
Terms and Conditions and Part III of this Agreement shall not constitute
service affecting disputes.
(1) Informal Negotiation of Service Affecting Dispute.
If the Parties have a service affecting dispute either Party may
initiate the procedures set forth herein by providing notice of the
existence of a service affecting dispute as set forth in Section 17.
The Parties shall have an initial seven business day period
beginning from the date on which either Party has provided written
notice to the other Party identifying the existence of a service
affecting dispute and seeking to resolve it, within which to resolve
the dispute themselves, without mediation or arbitration as provided
below, except as set forth in subsection (b) below.
(a) The Parties to this Agreement shall submit any service
affecting dispute between BELL ATLANTIC and COVAD for
resolution to the Inter-Company Review Board. The Parties
shall make a reasonable effort to meet as often as
necessary but not less than once in an effort to resolve
the 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.
(b) The Parties may also mutually agree to other informal
resolution processes for specific circumstances, including,
but not limited to
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commercial mediation or arbitration.
(2) Formal Arbitration of Service Affecting Dispute If the Inter-Company
Review Board is unable to resolve a service affecting dispute within
seven business days (or such other period agreed to in writing by
the Parties) either Party may petition for arbitration to resolve
the dispute pursuant to paragraph 16.3, subsection (2)(c)-(l) as
modified by this subparagraph. A dispute will be deemed submitted to
the Inter-Company Review Board on the date a Party requests
Inter-Company Review Board action in writing, transmitted by
facsimile and confirmed. A Party's petition for arbitration may be
in letter or memorandum form and must specifically describe the
action or inaction of the other Party in dispute and identify with
particularity how the Party's service to its Customers is affected.
To the extent reasonable, and technically and operationally
feasible, the Party against whom the complaint has been made, shall
take immediate remedial action to correct the service affecting
condition, without prejudice to its position on the merits of the
dispute or its right to recover any costs incurred in implementing
an interim solution. The arbitration hearing shall be commenced
within thirty (30) days of the petition for expedited arbitration.
The hearing will be limited to four days, with each Party allocated
no more than two days, including cross-examination by the other
Party, to present its evidence and arguments. At the arbitrator's
discretion and for extraordinary reasons, including the need for
extensive cross-examination, the arbitrator may allocate more time
for the hearing. The arbitrator shall issue in writing and serve his
or her decision and award on the Parties within five (5) business
days of the close of the arbitration hearings or receipt of the
hearing transcript, whichever is later. The Parties shall take
actions necessary to implement the decision and award of the
arbitrator immediately upon receipt of the arbitrator's decision.
The Parties shall submit the decision and award of the arbitrator,
along with each Party's position on the award and statement as to
whether the Party agrees to be bound by it or seek to challenge it,
to the Commission within three (3) days of receipt of the
arbitrator's award and decision. The Commission will determine
whether to review the dispute within seven (7) days of receipt. If
the Commission does not exercise its jurisdiction in seven (7) days,
the arbitrator's decision and award shall be final and binding on
the Parties, except as provided in Section 16.2, subsection (2).
16.4 Confidentiality
(1) BELL ATLANTIC, COVAD, and the mediator or arbitrator will treat the
mediation or arbitration proceedings, including the hearings and
conferences, discovery, or other related events, as confidential,
except as
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necessary in connection with a judicial challenge to, or enforcement
of, an award, or unless otherwise required by an order or lawful
process of a court or governmental body.
(2) In order to maintain the privacy of all mediation or arbitration
conferences and hearings, the mediator or arbitrator shall have the
power to require the exclusion of any person, other than a Party,
counsel thereto, or other essential persons.
(3) To the extent that any information or materials disclosed in the
course of mediation or arbitration proceedings contain proprietary,
trade secret or confidential information of either Party, it shall
be safeguarded in accordance with an appropriate agreement for the
protection of proprietary, trade secret or confidential information
that the Parties agree to negotiate. However, nothing in such
negotiated agreement shall be construed to prevent either Party from
disclosing the other Party's information to the mediator or
arbitrator in connection with or in anticipation of mediation or
arbitration proceedings. In addition, the arbitrator may issue
orders to protect the confidentiality of proprietary information,
trade secrets, or other sensitive information in the event the
Parties cannot agree upon an agreement to govern the handling of
such information.
17. Notices Any notices or other communications required or permitted to be
given or delivered under this Agreement shall be in hard-copy writing
(unless otherwise specifically provided herein) and shall be sufficiently
given if (a) delivered personally, (b) delivered by prepaid overnight
express service or (c) delivered by confirmed telecopier transmission with
a copy delivered thereafter in the manner set forth in (a) or (b) above,
to the following (unless otherwise specifically required by this Agreement
to be delivered by other means or to another representative or point of
contact and except for notices required in the ordinary course of
business):
If to COVAD:
COVAD Communications Company
3650 Bassett Street
Santa Clara, CA 95054
Attn: General Counsel
With a copy of each notice relating to an action, suit proceeding or claim
to be sent simultaneously to:
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COVAD Communications Company
3650 Bassett Street
Santa Clara, CA 95054
Attn: Chief Executive Officer
Telecopier: (408) 490-4501
If to Bell Atlantic:
BELL ATLANTIC
1095 Avenue of the Americas
40th Floor
New York, NY 10036
Attention: General Counsel
Telecopier: (212) 597-2560
With a copy of each notice relating to an action, suit proceeding or claim
to be sent simultaneously to:
BELL ATLANTIC
1095 Avenue of the Americas
40th Floor
New York, NY 10036
Attention: President - Telecom Industry Services
Telecopier: (212) 597-2560
Either Party may unilaterally change its designated representative and/or
address for the receipt of notices by giving seven (7) days' prior written
notice to the other Party in compliance with this Section. Any notice or
other communication shall be deemed given when received.
17A. Non-Waiver. Nothing in this Agreement shall constitute a waiver by COVAD
of any rights it may have under the FCC Order in the Application of BELL
ATLANTIC Corporation, Transferee, For Consent to Transfer Control of BELL
ATLANTIC Corporation and its Subsidiaries, NSD-L-96-10, Memorandum Opinion
and Order (August 14, 1997) ("the FCC Merger Order"). Any such rights
under the FCC Merger Order shall supplement COVAD's rights under this
Agreement.
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Pursuant to the FCC Merger Order, BELL ATLANTIC will provide COVAD with an
installment payment option as outlined in the letter to the Commission
dated November 12, 1997 and contained in Appendix A to the General Terms
and Conditions or an alternative equally acceptable to BELL ATLANTIC. The
Parties agree to continue discussions to see if they can establish a
reasonable alternative that is agreeable to both Parties. If the Parties
agree to the terms and conditions of such a payment option, then the
Parties agree to amend this Agreement to incorporate such terms and
conditions. If BELL ATLANTIC proposes any future installment payment
option that BELL ATLANTIC makes generally available, COVAD may adopt such
option and the Parties will amend this Agreement to incorporate such terms
and conditions.
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18. Confidentiality
(a) Any information such as specifications, drawings, sketches, business
information, forecasts, models, samples, data, computer programs and
other software and documentation of one Party (a "Disclosing Party")
that is furnished or made available or otherwise disclosed to the
other Party or any of its employees, contractors, agents or
Affiliates (its "Representatives" and, together with a Party, a
"Receiving Party") pursuant to this Agreement (such information,
other than customer proprietary network information, as defined in
Section 222(f)(1) of the Act, being hereinafter collectively
referred to as "Proprietary Information") shall be deemed the
property of the Disclosing Party. Proprietary Information, if
written, shall be marked "Confidential" or "Proprietary" or by other
similar notice, and, if oral or visual, shall be confirmed in
writing as confidential by the Disclosing Party to the Receiving
Party within ten (10) days after disclosure. Unless Proprietary
Information was previously known by the Receiving Party free of any
obligation to keep it confidential, or has been or is subsequently
made public by an act not attributable to the Receiving Party, or is
explicitly agreed in writing not to be regarded as confidential, or
is independently developed by the Receiving Party, the Parties
hereby agree that in addition to the confidentiality requirements
set forth in the Act and the Order, all Proprietary Information (i)
shall be held in confidence by each Receiving Party; (ii) shall be
disclosed on a confidential basis to only those persons who have a
need for it in connection with the provision of services required to
fulfill this Agreement and shall be used only for such purposes; and
(iii) may be used for other purposes only upon such terms and
conditions as may be mutually agreed to in advance of use in writing
by the Parties. Notwithstanding the foregoing sentence, a Receiving
Party shall be entitled to disclose or provide Proprietary
Information as required by any governmental authority or applicable
law only in accordance with Section 18(b) below.
(b) If any Receiving Party is required by any governmental authority or
by Applicable Law to disclose any Proprietary Information, then such
Receiving Party shall provide the Disclosing Party with written
notice of such requirement, to the extent permitted by law, as soon
as possible and, where possible, prior to such disclosure. The
Disclosing Party may then seek appropriate protective relief from
all or part of such requirement, and 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
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obtain. Absent any restraining order or other relief prohibiting any
such disclosure by the Receiving Party, then the Receiving Party
shall be entitled to disclose such Proprietary Information and shall
incur no liability hereunder as a result thereof.
(c) 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 and shall use all
reasonable efforts, including instructing its employees and others
who have had access to such information, to keep confidential and
not to use any such information, unless such information is now, or
is hereafter disclosed, through no act, omission or fault of such
Party, in any manner making it available to the general public.
(d) The Receiving Party may make copies of Proprietary Information only
as reasonably necessary to perform its obligations under this
Agreement. All such copies shall bear the same copyright and
proprietary rights notices as are contained on the original.
(e) Except as otherwise expressly provided elsewhere in this Agreement,
no license is hereby granted under any patent, trademark, or
copyright, nor is any such license implied, solely by virtue of the
disclosure of any Proprietary Information.
19. Number Portability
19.1 Interim Number Portability
(a) Until Number Portability is implemented on an industry-wide
basis pursuant to an order or regulation issued by the FCC or
the Commission, the Parties agree to provide to each other
Interim Number Portability (as defined in the Act, "INP")
through remote call forwarding, route indexing, and full NXX
code migration as set forth below or through any other
technical solution which may, at the option of the Parties, be
mutually agreed to by the Parties.
(b) Upon implementation of Number Portability pursuant to an FCC
or Commission regulation, both Parties agree to conform and
provide such Number Portability in accordance with said
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regulation. Once Number Portability is implemented, either
Party may withdraw, at any time and at its sole discretion,
its INP offerings, subject to reasonable advance written
notice to the other Party.
(c) In the event a Customer of one Party ("Party A") elects to
become a Customer of the other Party ("Party B") and such
Customer continues to reside within the same central office
boundary and Rate Center, and elects to utilize the original
telephone number(s) corresponding to the Exchange Service(s)
it previously received from Party A in conjunction with the
Exchange Service(s) it will now receive from Party B:
(i) Party B shall, upon receipt from such Customer of the
type of customer authorization required by the
Commission or the FCC (together with an associated
service order which, among other things, indicates that
Party B has obtained the required customer authorization
permitting assignment of the number to Party B), place
an order with Party A to implement an arrangement
whereby all calls to the original telephone number(s)
will be forwarded to Party B over the appropriate
Local/IntraLATA trunks for purposes of forwarding the
call.
(ii) Party B shall become the customer of record for the
original Party A telephone numbers subject to the INP
arrangements provided that Party B continues to use the
INP service for the use of the end user customer
originally assigned such number, and in all respects
shall be treated as the customer as to such number as if
Party B has been assigned such number. Party A shall use
its reasonable efforts to consolidate into as few
billing statements as possible all collect, calling
card, and third-number billed calls associated with
those numbers, with sub-account detail by retained
number. The parties shall work cooperatively to enable
Party A to provide such billing statement to Party B in
an agreed-upon format via either electronic file
transfer, daily magnetic tape, or monthly magnetic tape.
(iii) Party A will update its Line Information Database
("LIDB") listings for retained numbers, as directed by
Party B, and cancel calling cards associated with those
forwarded
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numbers.
(iv) Within two (2) business days of receiving notification
from the new Local Services carrier or the Customer
terminating service with Party B, Party B shall notify
Party A of the Customer's termination of service with
Party B. Party A will cancel the INP arrangements for
such Customer's telephone number(s). In the event Party
A changes its telephone numbers, it may discontinue
providing INP service as to such numbers.
(d) Procedures for Providing INP Through Route Indexing. Either
Party may deploy a Route Index arrangement which combines
direct trunks provisioned between BELL ATLANTIC and COVAD's
end offices with trunk side routing translations. Under this
arrangement, inbound calls to a ported number will be pointed
at a Route Index that sends the call to a dedicated trunk
group, built as a direct final, for the sole purpose of
facilitating completion for calls to a ported number. Each
Party will coordinate with the other to provide this solution
in a mutually agreeable and administratively manageable manner
(e.g., NXX level) so as to minimize switch resource
utilization for both Parties. COVAD shall pay to BELL ATLANTIC
all costs and expenses incurred by BELL ATLANTIC in
implementing such Route Indexing through tandems as requested
by COVAD including, without limitation, all costs and expenses
arising out of the development of necessary
translations/reprogramming of existing trunk routing, the
provision of additional dedicated trunks serving each affected
tandem and the establishment of increased call processing and
memory capacity to handle the increased volume of traffic,
codes, translations and routing domains for all affected
tandem or end office switches.
(e) Procedures for Providing INP Through Full NXX Code Migration.
Where either Party has activated an entire NXX for a single
Customer, or activated a portion consisting in excess of fifty
percent (50%) of an NXX Code for a single Customer with the
remaining numbers in that NXX either reserved for future use
or otherwise unused, if such Customer 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 be
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accomplished with appropriate coordination between the Parties
and subject to lead times specified in ATTIS Numbering
Committee Guidelines 95-0407-008 C.O. Code (NXX) Assignment
guidelines and NOF Reference Document, Part II, Section 2.3,
NXX Code Opening for movements of NXXs from one switch to
another.
(f) The Parties shall pay to each other for ported telephone
numbers the amounts determined in accordance with their
respective tariffs (in the case of BELL ATLANTIC, P.S.C. No.
914 Tariff, or its successor), as in effect from time to time.
Terminating IXC access charges shall be shared as required by
the Commission between BELL ATLANTIC and COVAD pursuant to
meet-point billing arrangements between the Parties using
special estimated studies until such time as actual meet-point
billing records are available.
19.2 Number Reassignment BELL ATLANTIC shall not be required to reassign
to COVAD thousand number blocks (i.e., split NXX codes into blocks
of a thousand numbers) in the Local Exchange Routing Guide ("LERG")
except to the extent that BELL ATLANTIC agrees to such reassignment
consistent with a change in the national guidelines for Central
Office Code assignments.
20. Directory Listings and Directory Distributions
(a) Except for COVAD customers of services resold by COVAD from BELL
ATLANTIC pursuant to the PSC No. 915 Tariff as amended from time to
time, which will be governed by that tariff, BELL ATLANTIC will
include COVAD Customers' telephone numbers in all of its "White
Pages" and "Yellow Pages" directory listings (including electronic
directories) and directory assistance databases associated with the
areas in which COVAD provides services to such Customers, and will
distribute such directories to such Customers, in an identical and
transparent manner in which it provides those functions for its own
Customers' telephone numbers. In this Section 20, references to
COVAD Customers' telephone numbers means telephone numbers falling
within NXX codes directly assigned to COVAD and to numbers which are
retained by COVAD on the customer's behalf pursuant to Interim
Number Portability arrangements described in Section 19 of the
General Terms and Conditions of this Agreement.
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(b) Intentionally Omitted
(c) BELL ATLANTIC will include all COVAD NXX codes on appropriate
existing calling charts in the BELL ATLANTIC Customer Guide section
of the directory in the same manner as it provides this information
for its own NXX Codes. BELL ATLANTIC shall assist COVAD in dealing
with NIRC to facilitate NIRC's publication of COVAD Calling Charts
or other COVAD information in the front portion of NIRC directories
distributed in the NY Region. To the extent that COVAD provides
Directory Listing information on its Service Order, BELL ATLANTIC
will confirm that Directory Listing information on its Service Order
Completion.
(d) COVAD will provide BELL ATLANTIC with its directory listings and
daily updates to those listings (including new, changes, and deleted
listings) on a non-exclusive basis in a mutually agreed upon format
at no charge.
(e) BELL ATLANTIC will accord COVAD's directory listing information the
same level of confidentiality which BELL ATLANTIC accords its own
directory listing information.
(f) BELL ATLANTIC shall provide COVAD at no charge with directory
distribution for COVAD Customers. The Parties hereby acknowledge and
agree that BELL ATLANTIC is not required, as per applicable tariffs,
to provide more than one free white pages directory listing for each
CENTREX system purchased for resale, regardless of the number of
CENTREX lines purchased as part of such system.
(g) BELL ATLANTIC will provide COVAD with a report of all COVAD customer
listings 90 days prior to directory publication in such form and
format as may be mutually agreed to by both parties. Both Parties
shall use their best efforts to ensure the accurate listing of such
information.
(h) BELL ATLANTIC will work cooperatively with COVAD so that Yellow Page
advertisements purchased by Customers who switch their service to
COVAD (including Customers utilizing Interim Number Portability) are
maintained without interruption. BELL ATLANTIC will allow COVAD
customers to purchase new Yellow Pages advertisements without
discrimination, under the identical rates, terms and conditions that
apply to BELL ATLANTIC's customers.
(i) BELL ATLANTIC will include, on one-eighth of a page, in the
"Information Pages" or comparable section of its White Pages
Directories for areas served by COVAD in the NY Region, listings
provided by
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COVAD for COVAD's installation, repair and customer service and
other customer service-oriented information, including appropriate
identifying logo. Such listings shall appear in the manner that such
information appears for subscribers of BELL ATLANTIC and other LECs.
BELL ATLANTIC shall not charge COVAD for inclusion of this
information.
(j) Electronic Format Directory Assistance
Upon at least thirty days notice from COVAD, BELL ATLANTIC shall
provide to COVAD in electronic format BELL ATLANTIC's master
directory assistance listings for BELL ATLANTIC end user customers
in the NY Region, exclusive of non-published numbers to the extent
that BELL ATLANTIC is prohibited from selling or offering to sell
such numbers under the Public Service Law. BELL ATLANTIC shall also
provide COVAD with updates (containing adds, deletes and changes
only) to these listings, at the same frequency that BELL ATLANTIC
updates its own directory assistance database. The parties shall
mutually agree to content, format and timing specifications for
these directory assistance listings. Such directory assistance
listings shall only be used by COVAD for the purpose of providing
local directory assistance to COVAD local exchange service
customers. COVAD shall pay BELL ATLANTIC a rate based on the cost of
providing directory assistance listings and updates in an electronic
format, including a reasonable profit.
21. Subscriber List Information
(a) At COVAD's request, in accordance with Section 222(e) and (f) of the
Act, for the purpose of publishing a directory in any format, BELL
ATLANTIC shall provide to COVAD published Subscriber List
Information on a timely basis via readily accessible tape or
electronic formats on the same terms and conditions and at the same
rates that BELL ATLANTIC provides its own Subscriber List
Information to third party directory publishers. Changes to the
Subscriber List Information shall be available on a timely basis
through the same tape or electronic transfer means used to transmit
the initial Subscriber List Information at the same rates and on the
same terms and conditions that BELL ATLANTIC provides its own
Subscriber List Information to third party directory publishers.
Subscriber List Information provided by BELL ATLANTIC shall indicate
whether the customer is a residence or business customer.
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(b) BELL ATLANTIC shall provide Subscriber List Information that
includes COVAD Customers to third parties, as required by the Act,
on the same terms and conditions and at the same rates that BELL
ATLANTIC provides its own Subscriber List Information to third
parties. COVAD shall receive its pro-rata share (calculated based on
the proportionate share of COVAD Customers to the total number of
customers included in the Subscriber List Information) of net
proceeds realized by BELL ATLANTIC from third parties for such
Subscriber List Information; provided, however, that BELL ATLANTIC
shall not be required to include COVAD Customers in Subscriber List
Information sales to third parties (other than COVAD) if BELL
ATLANTIC promptly notifies COVAD of all requests by third party
directory publishers and others for COVAD Subscriber List
Information thus permitting COVAD to deal directly with said third
parties.
22. Parity
BELL ATLANTIC's obligation to provide parity under this Agreement
shall be in accordance with Applicable Laws.
23. Miscellaneous
23.1 Delegation or Assignment - 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 which consent shall not be
unreasonably withheld or delayed; provided, however, 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 prior written notice to the
other Party of such assignment or transfer. Any attempted assignment
or transfer that is not permitted shall be void ab initio. All
obligations and duties of any Party shall be binding on all
successors in interest and assigns of such Party.
23.2 Nonexclusive Remedies - Except as otherwise expressly provided in
this Agreement, each of the remedies provided under this Agreement
is cumulative and is in addition to any remedies that may be
available at law or in equity.
23.3 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,
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reimbursement, cause of action, or other privilege.
23.4 Referenced Documents - Unless otherwise specifically provided
herein, whenever any provision of this Agreement refers to a
technical reference, technical publication, COVAD Practice, BELL
ATLANTIC Practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated into this Agreement, it will be deemed to
be a reference to the most recent version or edition (including any
amendments, supplements, addenda, or successors) of such document
that is in effect, and will include the most recent version or
edition (including any amendments, supplements, addenda, or
successors) of each document incorporated by reference in such a
technical reference, technical publication, COVAD Practice, BELL
ATLANTIC Practice, or publication of industry standards.
23.5 Governing Law - The validity of this Agreement, the construction and
enforcement of its terms, and the interpretation of the rights and
duties of the Parties shall be governed by the laws of the State of
New York other than as to conflicts of laws, except insofar as
federal law may control any aspect of this Agreement, in which case
federal law shall govern such aspect. The forum for resolution of
any dispute between the Parties shall be the State of New York.
23.6 Publicity and Advertising - Neither Party shall publish or use any
advertising, sales promotions or other publicity materials that use
the other Party's logo, trademarks or service marks without the
prior written approval of the other Party. Neither BELL ATLANTIC nor
COVAD may offer services to its end users or others under any of the
brand names of the other Party or any of its parents, subsidiaries
or affiliates, regardless of whether or not such brand names are
registered trademarks or servicemarks, without the other Party's
prior written authorization. Neither Party shall state or imply that
there is any partnership or other joint business arrangement with
the other Party, its parent, subsidiaries, or affiliates, for the
provision of services to the other Party's end users or others. BELL
ATLANTIC and COVAD may jointly develop a press release publicizing
their relationship under this Agreement, subject to both (1) any
prior non-disclosure agreement, and (2) mutually agreed upon
language and media. Notwithstanding this section, COVAD is entitled
to identify BELL ATLANTIC as the underlying carrier of the services
provided hereunder.
23.7 Amendments or Waivers - Except as otherwise provided in this
Agreement, no amendment or waiver of any provision of this
Agreement,
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and no consent to any default under this Agreement, shall be
effective unless the same is in writing and signed by both Parties.
In addition, no course of dealing or failure of a Party strictly to
enforce any term, right or condition of this Agreement shall be
construed as a waiver of such term, right or condition. By entering
into this Agreement neither Party waives any right granted to it
pursuant to the Act and/or the Order, except to the extent the Act
or the Order permits such rights to be modified or waived and such
modification or waiver is expressly set forth herein.
23.8 Severability - If any term, condition or provision of this Agreement
is held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not invalidate the entire
Agreement, unless such construction would be unreasonable. However,
the Parties agree to meet and negotiate in good faith to arrive at a
mutually acceptable modification of the invalid or unenforceable
provision. If the Parties are unable to agree on such modification
within 30 days after the Agreement provision(s) is held to be
illegal, invalid or enforceable, such failure to agree shall be
submitted for resolution pursuant to Section 16 of the General Terms
and Conditions of this Agreement and resolved in accordance with the
Dispute Resolution process.
23.9 Entire Agreement - This Agreement, which shall include the
Attachments, Appendices, Exhibits and other documents referenced
herein including all applicable tariffs referenced herein (as in
effect from time to time), constitutes the entire Agreement between
the Parties concerning the subject matter hereof and supersedes any
prior agreements, representations, statements, negotiations,
understandings, proposals or undertakings, oral or written, with
respect to the subject matter expressly set forth herein. Neither
Party shall be bound by any 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.
23.10 Survival of Obligations - Any liabilities or obligations of a Party
for acts or omissions prior to the cancellation or termination of
this Agreement, any obligation of a Party under the provisions
regarding indemnification, Proprietary Information, limitations on
liability, and any other provisions of this Agreement which, by
their terms, are contemplated to survive (or to be performed after)
termination of this Agreement, shall survive expiration or
termination hereof.
23.11 Executed in Counterparts - This Agreement may be executed in any
number of counterparts, each of which shall be deemed on original,
but
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such counterparts shall together constitute one and the same
instrument.
23.12 Headings of No Force or Effect - The headings of Articles and
Sections of this Agreement are for convenience of reference only,
and shall in no way define, modify or restrict the meaning or
interpretation of the terms or provisions of this Agreement.
23.13 Joint Work Product - This Agreement is the joint work product of 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.
23.14 Nonexclusive Dealings - This Agreement does not prevent either Party
from providing or purchasing services to or from any other person
nor, except as provided in Section 5 of the General Terms and
Conditions and Exhibit A (Bona Fide Request Process) of Part II
hereof, does it obligate either Party to provide or purchase any
services not specifically provided herein.
23.15 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.
23.16 Dialing Parity - The Parties shall provide dialing parity to each
other as required under Section 251(b)(3) of the Act, except as may
be limited by Section 271(e)(2)(B) of the Act.
23.17 Integrity of BELL ATLANTIC Network - The Parties acknowledge that
BELL ATLANTIC, at its election, may deploy fiber throughout its
network and that such fiber deployment may inhibit or facilitate
COVAD's ability to provide service using certain technologies.
Notwithstanding any other provision of this Agreement, BELL ATLANTIC
shall have the right to deploy, upgrade, migrate and maintain its
network at its discretion.
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IN WITNESS WHEREOF, the authorized officers of the parties have duly
executed this Agreement as of this ___________________ day of December, 1997.
NEW YORK TELEPHONE COMPANY COVAD COMMUNICATIONS CO.
By: By:
------------------------------------ ------------------------------
Name: Jacob J. Goldberg Name: Charles J.McMinn
Title: President - Telecom Industry Title: President and CEO
Services
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PART I: INTENTIONALLY OMITTED
43
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PART II: UNBUNDLED NETWORK ELEMENTS
1. Introduction
1.1 BELL ATLANTIC agrees to offer to COVAD unbundled Network Elements
and to allow combination of the BELL ATLANTIC-provided unbundled
Network Elements in accordance with its obligations under Section
251(c)(3) of the Act and the Order. The specific terms and
conditions that apply to the provision of the unbundled Network
Elements are set forth in this Part II. Unless otherwise noted
below, the prices for each unbundled Network Element shall be
governed by Part IV of this Agreement. Prices for any unbundled
Network Element not listed in this Agreement shall be determined
through the Bona Fide Request Process set forth in Exhibit A of this
Part II (the "BFR Process"), except as otherwise expressly provided
in Section 2.9 of this Part II. Any non-recurring/miscellaneous
charges which may be applicable to the purchase of unbundled Network
Elements shall be governed by Part IV of this Agreement.
1.2 The unbundled Network Elements and rates specified in this Agreement
shall be made available by BELL ATLANTIC to COVAD pursuant to and to
the extent required by Applicable Law. Unless otherwise provided in
this Agreement, the unbundled Network Elements specified in this
Agreement shall be made available by BELL ATLANTIC to COVAD for
ordering and provisioning on the Effective Date.
If pursuant to the Order, COVAD requests interconnection to
unbundled Network Elements that are different from those required by
the Act or Order or are not specified in this Agreement, COVAD
agrees that any such request shall be subject to the BFR Process,
except as otherwise expressly provided in Section 2.9 of this Part
II.
1.3 BELL ATLANTIC and COVAD agree to work cooperatively to implement
technical guidelines to prevent degradation or other impairments to
the quality or reliability of either Party's network. If BELL
ATLANTIC reasonably determines that any particular Local Loop or
other unbundled Network Element used by COVAD is interfering with or
impairing BELL ATLANTIC's provision of services, BELL ATLANTIC shall
have the right to interrupt its provision of that particular loop or
other unbundled Network Element, subject, however, to the following:
a) BELL ATLANTIC shall have given COVAD at least ten (10) days'
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prior written notice of the interference or impairment and the
need to correct the condition within said time period.
b) BELL ATLANTIC shall have concurrently provided a copy of the
notice provided to COVAD under subsection (a) above to the
appropriate federal and/or state regulatory bodies.
c) Notice in accord with subsection (a) above shall not be
required in emergencies and BELL ATLANTIC may immediately
discontinue its provision of the particular loop or other
unbundled Network Element if such discontinuance is reasonably
necessary to avoid interference with or impairment to BELL
ATLANTIC's network or services. In such case, however, BELL
ATLANTIC shall use all reasonable means to notify COVAD.
d) Upon correction of the interference or impairment, which may
include relocation at appropriate rates and charges, BELL
ATLANTIC will promptly renew its provision of the loop or
other unbundled Network Element. During such period of
discontinuance, there will be no compensation or credit
allowance by BELL ATLANTIC to COVAD for interruptions.
Except as otherwise provided, the provisions of this section shall
not apply to ADSL and HDSL compatible loops provided to COVAD by
BELL ATLANTIC pursuant to Section 2.9.1(g) of this Agreement.
2. Unbundled Network Elements
2.1 BELL ATLANTIC will offer Network Elements to COVAD on an unbundled
basis on terms and subject to conditions that are just, reasonable,
and non-discriminatory in accordance with the terms and conditions
of this Agreement and the requirements of Section 251 and Section
252 of the Act and the Order, as applicable.
2.2 To the extent required by Applicable Law, BELL ATLANTIC will permit
COVAD to interconnect COVAD's facilities or facilities provided to
COVAD by third parties with each of the unbundled Network Elements
provided by BELL ATLANTIC at any point requested by COVAD that is
technically feasible. Any request by COVAD to interconnect at a
point not previously established in accordance with the terms of
this Agreement (i.e., other than as set forth in the descriptions of
unbundled Network Elements under
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Section 2.9 of this Part II) shall be subject to the BFR Process.
2.3 At the time COVAD provides BELL ATLANTIC with an order for
particular unbundled Network Elements provided under this Agreement,
COVAD may request any technically feasible network interface,
including without limitation, to the extent deployed and available
in the BELL ATLANTIC network, and where requested by COVAD: (1) DSO,
DS-1, DS-3, STS-1, and OC-n (where n equals those industry standard
numbers between 1 and 48) interfaces, and (2) any other interface
described in the applicable Bellcore and other industry standard
technical references. Any such requested network interface shall be
subject to the approval of BELL ATLANTIC, which approval shall not
be unreasonably withheld or delayed. If COVAD's request is denied,
BELL ATLANTIC shall provide COVAD with written notice of said denial
specifically describing why it is technically infeasible for BELL
ATLANTIC to comply with COVAD's request.
2.4 COVAD may use one or more unbundled Network Elements to provide to
itself, its affiliates and to COVAD Customers any feature, function,
or service option that such unbundled Network Element is presently
capable or becomes capable of providing in the BELL ATLANTIC
network, or any feature, function, or service option that is
described in the applicable Bellcore and other industry standard
technical references identified herein and which the BELL ATLANTIC
network has the capability of providing on the Effective Date of
this Agreement and thereafter as such capability may be expanded, or
as may otherwise be agreed to by the Parties.
2.5 BELL ATLANTIC shall permit COVAD to combine any unbundled Network
Element or unbundled Network Elements provided by BELL ATLANTIC with
another unbundled Network Element or other unbundled Network
Elements obtained from BELL ATLANTIC or with compatible network
components provided by COVAD or provided by third parties to COVAD
to provide Telecommunications Services to COVAD, its affiliates and
to COVAD Customers. Notwithstanding the foregoing, without
additional components furnished by COVAD to itself or through third
parties, COVAD shall only be permitted to combine unbundled Network
Elements made available by BELL ATLANTIC with other contiguous BELL
ATLANTIC unbundled Network Elements.
2.6 For each appropriate unbundled Network Element, BELL ATLANTIC shall
provide a demarcation point and, if necessary and appropriate,
access to such demarcation point.
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2.7 Intentionally omitted
2.8 Intentionally omitted
2.9 Subsections 2.9.1 through 2.9.8 of this Section 2.9 list the
unbundled Network Elements that COVAD and BELL ATLANTIC have
identified as of the Effective Date of this Agreement and which are
described in the Order (the "Agreed Elements"). COVAD and BELL
ATLANTIC agree that the unbundled Network Elements identified in
this Part II are not exclusive and that pursuant to the BFR Process
COVAD may identify and request that BELL ATLANTIC furnish additional
or revised unbundled Network Elements to the extent required under
the Act. Additionally, if BELL ATLANTIC provides any unbundled
Network Element or interconnection arrangement that is not
identified in this Agreement to a requesting Telecommunications
Carrier, including a BELL ATLANTIC affiliate, BELL ATLANTIC will
make available the same unbundled Network Element or interconnection
arrangement to COVAD without COVAD being required to use the Bona
Fide Request Process, to the extent required by Section 252 (i) of
the Act. The descriptions of unbundled Network Elements that are
Agreed Elements in this Section 2.9 do not address, directly or by
implication, the charge or charges that apply. As of the Effective
Date of this Agreement, charges for unbundled Network Elements shall
be as specified in Part IV hereof.
2.9.1. The "Local Loop" is a transmission facility between a distribution
frame, or its equivalent, in the BELL ATLANTIC central office, and
the demarcation point at the Customer premises. All Local Loops will
be provided with a NID or other protective device at the rate
specified in Part IV. All Local Loops will be provisioned by BELL
ATLANTIC and used by COVAD in conformance with Bellcore standard
GR-1089.
The Local Loops, as described below, may be used to provide modes of
transmission that include: 2-wire and 4-wire analog voice grade
loops and 2-wire and 4-wire transmission of ISDN, ADSL, HDSL and DS1
level digital signals, as follows:
(a) "2-Wire Analog Voice Grade Loop" or "Analog 2W," will support
analog transmission of 300-3000 Hz, repeat loop start, loop
reverse battery, or ground start seizure and disconnect in one
direction (toward the End Office Switch), and repeat ringing
in the other direction (toward the Customer) and terminates at
both
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the central office MDF (or equivalent) and the Customer
premises. Analog 2W includes Loops sufficient for the
provision of PBX trunks, pay telephone lines and electronic
key system lines. Current BELL ATLANTIC Loop design guidelines
follow ANSI TI.601 and Bellcore TR-NWT-000393 recommendations,
with a process of loop classification specified in Bellcore's
SR-2275. If COVAD orders one or more Local Loops serviced by
Integrated Digital Loop Carrier or Remote Switching technology
deployed as a Local Loop Concentrator, without the associated
switch port, then BELL ATLANTIC shall, where available,
provision the requested Local Loop(s) using its choice of
spare existing physical Local Loop(s) that do not require
multiplexing, at no charge to COVAD. If, however, such other
facilities are not available, BELL ATLANTIC shall offer COVAD
other options provided that COVAD shall agree to pay the
additional costs approved by the Commission incurred by BELL
ATLANTIC in making such other option(s) available to COVAD. If
the option BELL ATLANTIC offers is shared by other Customers
in addition to COVAD, the Parties shall develop an equitable
basis for allocating the additional cost among all users of
the facility. BELL ATLANTIC and COVAD shall work cooperatively
to develop the details and costs of such options as part of
the Operations Plan.
(b) "4-Wire Analog Voice Grade Loop" or "Analog 4W," which
supports transmission of voice grade signals using separate
transmit and receive paths and terminates in a 4-wire
electrical interface at both ends.
(c) "2-Wire ISDN-Compatible Digital Loop" or "BRI-ISDN," which
supports digital transmission of two 64 kbps bearer channels
and one 16 kbps data channel (2B + D). BRI-ISDN is a 2B + D
Basic Rate Interface-Integrated Services Digital Network
(BRI-ISDN) Loop which will meet national ISDN standards and
conform to Technical Reference ANSI T1.601 & T1E1.490-004R3.
Subject to the provisions of Section 1.3, COVAD may, at its
discretion and at its own risk, use a BRI-ISDN Local Loop for
the provision of modes of transmission other than BRI-ISDN
Local Loop as described herein. BELL ATLANTIC makes no
representations or promises with respect to the suitability of
a BRI_ISDN Local Loop for the modes of transmission used by
COVAD. The 2-wire Conditioned Link (Local Loop) rate and
relevant charges, specified in Part IV of this Agreement,
shall
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apply to these Loops.
(d) "4-Wire 64 Kbps Digital Loop" or "4-Wire 64 Digital," is a
transmission path which supports transmission of digital
signals of up to a maximum binary information rate of 64 kbps
and terminates in a 4-Wire electrical interface at both the
Customer premises and on the MDF in BELL ATLANTIC's Central
Office. 4-Wire 64 kbps Digital are available only where
existing copper facilities can meet the requirements specified
in ANSI T1.410.1992. Subject to the provisions of Section 1.3,
COVAD may, at its discretion and at its own risk, use a 4-Wire
64 Digital Local Loop for the provision of modes of
transmission other than ISDN subject to the technical
limitations of the 4-Wire 64 Digital Local Loop as described
herein. BELL ATLANTIC makes no representations or promises
with respect to the suitability of a 4-Wire 64 Digital Loop
for the modes of transmission used by COVAD. The 4-wire
Conditioned Link (Local Loop) rate and relevant charges,
specified in Part IV of this Agreement, shall apply to these
Loops.
(e) "4-Wire 1.544 Mbps Digital Loop" or "1.544 Mbps Digital," is a
transmission path which supports transmission of digital
signals of up to a maximum binary information rate of 1.544
mbps and terminates in a 4-Wire electrical interface at the
Customer premises and on the DSX frame in BELL ATLANTIC's
Central Office. 1.544 Mbps Digital will be provided in
accordance with the relevant and applicable specifications,
interfaces and parameters described in Technical Reference
ANSI T1.102.
(f) "Digital Signal Level 3 Loop" or "DS3 Loop" is a transmission
path which supports transmission of digital signals up to a
maximum binary information rate of 44.736 Mbps (the
third-level in the time division multiplex hierarchy) and
terminates in an electrical interface at the customer premises
and on a DSX frame in a BELL ATLANTIC central office. BELL
ATLANTIC will provide DS3 Loops pursuant to P.S.C. No. 916
Tariff.
(g) ADSL and HDSL Compatible Local Loops
At COVAD's request, BELL ATLANTIC will provide ADSL and HDSL
Compatible Local Loops, described in paragraph (4) of this
subsection, after successful completion of a Technical Trial,
if necessary, and an Operational Trial for Two-Wire ADSL,
Two-
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Wire HDSL and Four-Wire HDSL Compatible Local Loop types. A
Technical Trial is required prior to an Operational Trial;
however, the Technical and/or operational Trial may or may not
involve COVAD. Upon COVAD's request, BELL ATLANTIC will advise
COVAD as to the status of any ongoing technical and/or
operational trials conducted by BELL ATLANTIC and the need for
a technical and/or operational trial with COVAD. The ADSL and
HDSL Compatible Local Loops must terminate on a NID at a
customer premises and in COVAD's Collocation space.
If BELL ATLANTIC makes generally available any 2-wire ADSL, 2-wire
HDSL, or 4-wire HDSL service in any of its service territories in
the state of New York, the Technical Trial required by 2.9.1(g)(1)
will not be required. BELL ATLANTIC shall exercise its best efforts
to utilize all technical data available to it to satisfy its
requirement to conduct a Technical Trial. BELL ATLANTIC shall share
with COVAD, upon COVAD's written request, the technical trial
results related to potential interference issues of any ADSL or HDSL
technical trial that BELL ATLANTIC has undertaken with another
Telecommunications Carrier in its service territory. The results of
such other Technical Trials may be used to satisfy the Technical
Trial required under Section 2.9.1(g)(1).
If a Technical Trial is not required, COVAD may request an
Operational Trial in accordance with Section 2.9.1(g)(1), provided
that COVAD agrees to (i) conform to BELL ATLANTIC's published
technical standards, guidelines or procedures that result from other
technical trials or that are used in the general deployment of such
service(s), and (ii) uses technology that is substantially similar
to that underlying the technical data subject to the other technical
trials, relied on by BELL ATLANTIC, or used in the general
deployment of such service(s).
Notwithstanding the requirements of this Section 2.9.1, BELL
ATLANTIC will offer COVAD nondiscriminatory access to 2-wire and
4-wire ADSL-Compatible and HDSL-Compatible Loops that BELL ATLANTIC
offers to any Telecommunications Carrier in the state of New York to
the extent required by applicable law.
(1) Trial Milestones
COVAD shall notify BELL ATLANTIC of its request for a
Technical and/or Operational Trial in writing and share
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any technical information pertinent to such trial
concerning potential interference issues. COVAD will
provide BELL ATLANTIC with a list of proposed locations
for said trial(s). BELL ATLANTIC will indicate a
suitable location from such list for said trial within
15 business days of receipt of COVAD's list. In the
event COVAD does not have a suitable Collocation space
at the designated trial location, it shall submit a
Collocation Application within 30 business days of the
trial request. The Parties shall then meet to agree upon
a Trial Plan for the requested trial(s). The Trial Plan
shall include, but is not limited to, the minimum and
maximum volumes for each Local Loop type (which shall be
in the range of 10 to 20 loops), the trial location, the
technical and/or operational trial parameters and
expected results for the specified technical and/or
operational trial. The Trial Plan shall be a joint work
effort completed no later than the completion of
Collocation space to be used in the trial, if ordered,
or 120 days from the trial request, whichever is later,
or as otherwise mutually agreed.
COVAD shall provide BELL ATLANTIC with fourteen (14)
days written prior notice of its Equipment Ready Date
(ERD). Such notice shall indicate the date upon which
COVAD can and will accept termination and turn-up of the
trial Local Loop(s). The Technical Trial shall commence
no later than 10 business days from the ERD and shall be
of a duration of not more than 60 days. The Operational
Trial shall commence the later of 30 days from the ERD
or July 1, 1998 and shall be of a duration of not more
than 60 days.
Upon successful completion as defined in the Trial Plan
of the Technical Trial, if necessary, and Operational
Trial, which includes, but is not limited to, the
resolution of any network interference or other network
impairments issues, the Parties shall agree upon an
implementation schedule for deployment of the unbundled
local loop type(s) subject to such trial(s). Within 60
days of successful completion of the Operational Trial
as defined in the Trial Plan, BELL ATLANTIC will publish
relevant documentation. At that time, COVAD may order
and use the type of Local Loop which had been subject to
a trial in conformance with the BELL ATLANTIC published
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references and guidelines for such Local Loop type.
(2) Rates
The 2 Wire Conditioned LINK (Local Loop) rate and other
charges, specified in Part IV of this Agreement, shall
apply during the Operations Trial and thereafter for
Two-Wire ADSL and Two-Wire HDSL Compatible Local Loops.
The 4 Wire Conditioned LINK (Local Loop) rate and other
charges, specified in Part IV of this Agreement, shall
apply during the Operations Trial and thereafter for
Four-Wire HDSL Compatible Local Loops. Such Conditioned
LINK rates shall apply to the provision of ADSL and HDSL
Compatible Local Loops until such time as Bell Atlantic
establishes ADSL and HDSL Compatible Local Loops rates
which shall apply thereafter.
(3) Interference
During and until successful completion of the Technical
and Operational Trial(s), BELL ATLANTIC, at its sole
discretion, has the right to terminate, modify or
reconfigure COVAD's unbundled ADSL or HDSL Compatible
Local Loops deployed as part of the Trial(s), which BELL
ATLANTIC determines to cause interference or other
impairments to the services or facilities provisioned by
BELL ATLANTIC to itself or others as set forth in
Section 1.3 of this Part II.
After the successful completion of the Operational Trial
as defined in the Trial Plan and subject to the BELL
ATLANTIC published technical references and guidelines:
i) COVAD shall be able to order and BELL ATLANTIC
shall provision ADSL and HDSL Compatible Local
Loops.
ii) In its use of ADSL and HDSL Compatible Local
Loops, COVAD shall conform to the BELL ATLANTIC
references and guidelines such that its provision
of services to its customers does not degrade or
otherwise adversely affect the quality or
reliability of service to BELL ATLANTIC's
customers provided that BELL ATLANTIC is in
compliance with the provisions
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of this Section.
iii) BELL ATLANTIC shall conform to its guidelines and
shall not introduce services on its network that
would degrade or otherwise adversely affect the
quality or reliability of service to COVAD's
customers provided that COVAD is in compliance
with the provisions of this Section.
If COVAD determines that BELL ATLANTIC is using a loop
provisioned with ADSL or HDSL technology in a manner
that will or may interfere with or impair COVAD's
provision of its services, COVAD shall notify BELL
ATLANTIC in a reasonable manner and time frame. If BELL
ATLANTIC determines that COVAD is using an ADSL or HDSL
Compatible Local Loop in a manner that will or may
interfere with or impair BELL ATLANTIC's provision of
its services, BELL ATLANTIC shall notify COVAD in a
reasonable manner and time frame. The Parties agree to
work cooperatively to resolve interference or other
impairment issues. In the event a cooperative resolution
cannot be reached, the procedures for Service-Affecting
Disputes in Part 16 of the General Terms of this
Agreement shall apply .
(4) ADSL and HDSL Compatible Local Loop Descriptions
Upon successful conclusion of the Technical Trial, BELL
ATLANTIC may modify or change the following descriptions
to conform with the results of the Technical Trial.
i) "2-Wire ADSL-Compatible Loop" or "ADSL 2W," is a
transmission path which facilitates the
transmission of up to 6 Mbps digital signal
downstream (toward the Customer) and up to 640
kbps digital signal upstream (away from the
Customer) while carrying an analog voice signal.
An ADSL 2W is provided over a 2-Wire, non-loaded
twisted copper pair provisioned using revised
resistance design guidelines and meeting ANSI
Standard T1.413-1995-007R2. An ADSL 2W terminates
in a 2-wire electrical interface at the Customer
premises and at the BELL ATLANTIC Central Office
frame. ADSL-compatible Local Loops are only
available where existing copper facilities can
meet the ANSI T1.413-1995-007R2
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specifications.
ii) "2-Wire HDSL-Compatible Loop" or "HDSL 2W," is a
transmission path which facilitates the
transmission of a 768 kbps digital signal over a
2-Wire, non-loaded twisted copper pair meeting the
specifications in ANSI T1E1 Committee Technical
Report Number 28/T1E1.4/92-002R3. HSDL-compatible
Local Loops are available only where existing
copper facilities can meet the T1E1 Technical
Report Number 28 specifications.
iii) "4-Wire HDSL-Compatible Loop" or "HSDL 4W," is a
transmission path which facilitates the
transmission of a 1.544 Mbps digital signal over
4-Wire, non-loaded twisted copper pairs meeting
the specifications in ANSI T1E1 Committee
Technical Report Number 28. HDSL-compatible Loops
are available only where existing copper
facilities can meet the T1E1 Technical Report
Number 28 specifications.
(5) If COVAD orders one or more ADSL-Compatible or
HDSL-Compatible Local Loop(s) serviced by Integrated
Digital Loop Carrier or Remote Switching technology
deployed as a Local Loop Concentrator, without the
associated switch port, then BELL ATLANTIC shall, where
available, provision the requested Local Loop(s) using
its choice of spare existing physical Local Loop(s) that
do not require multiplexing, at no charge to COVAD. If
however, such other facilities are not available, BELL
ATLANTIC shall offer COVAD other option(s), which shall,
where feasible, include the placement of a suitable
digital line card at the remote terminal, provided that
COVAD shall agree to pay the additional costs incurred
by BELL ATLANTIC in making such other option(s)
available to COVAD. If the option BELL ATLANTIC offers
is shared by other Customers in addition to COVAD, the
Parties shall develop an equitable basis for allocating
the additional cost among all users of the facility.
BELL ATLANTIC and COVAD shall work cooperatively to
develop the details and costs of such option(s) as part
of the Operations Plan.
(6) At such time as BELL ATLANTIC offers ADSL and HDSL
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Compatible Local Loops, under Section 2.9.1 (g), and to
the extent BELL ATLANTIC develops a pre-order loop
qualification database for such Local Loops, it shall
provide COVAD access to such database, at rates and
charges to be determined.
2.9.2 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 NID provides: a
network termination for the Local Loop, voltage overload protection
to ground, termination for optional test apparatus, proper signal
termination, and a point of termination and connection for a
Customer's "inside" wiring. A modern NID features two chambers or
divisions which separate the service provider's network from the
end-user's inside wiring. Each chamber or division contains the
appropriate connection points or posts to which the service
provider, and end-user each make their connections. Upon COVAD's
written request, or electronically transmitted request delivered
through an established interface, a direct connection between
COVAD's NID and BELL ATLANTIC's NID will be established; provided
that only BELL ATLANTIC's own technicians may perform the necessary
work to effect such direct connection. Alternatively, upon COVAD's
written request, or electronically transmitted request delivered
through an established interface, a direct connection between
COVAD's Local Loop and BELL ATLANTIC's NID may be established;
provided that with respect to such direct connection there is
adequate spare capacity on BELL ATLANTIC's NID, and, provided
further, that only BELL ATLANTIC's own technicians may perform the
necessary work to effect such direct connection. BELL ATLANTIC shall
be entitled to payment from COVAD for making the connection, as
provided in Part IV of this Agreement.
2.9.3 "Local Switching" is the Network Element that provides the
functionality required to connect the appropriate originating lines
or trunks wired to the Main Distributing Frame (MDF) or Digital
Cross Connect (DSX) panel to a desired line or trunk appearance on
the Local Switch. COVAD may request shared or dedicated routing.
COVAD shall define the routing plan (i.e., customized routing) that
will be used by its Customers for each BELL ATLANTIC switch in which
unbundled Local Switching will be provided pursuant to the Network
Design Request process at rates, charges for Customized Routing
shall be as provided in Part IV of this Agreement. Customized
Routing will be provided where facilities and equipment exist
pursuant to the rates and process for Network Design Requests
specified in PSC No.
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916 Tariff. BELL ATLANTIC will implement, where it is technically
feasible to do so and where facilities exist that dialing plan and
any associated dedicated trunking needed to support the introduction
of customized routing on that Local Switching Network Element. The
Local Switching functionality shall include all of the features,
functions and capabilities that BELL ATLANTIC has purchased or has
the right to use, including but not limited to: line signaling,
signaling capabilities of the switch, digit reception, dialed number
translations, call screening (the switch-based feature which permits
the switch to differentiate line treatment or routing based on
specific classes of service), routing, recording, call supervision,
dial tone, switching, network address (when available in the
particular switch) to directory number, announcements, calling
features and capabilities (including call processing), Centrex
features and functionality, Automatic Call Distributor (ACD),
Carrier pre-subscription (e.g., long distance carrier, intraLATA
toll as deployed), testing and other operational features inherent
to the switch and switch software; provided, however, that in cases
where COVAD wishes to activate a feature or function in the BELL
ATLANTIC network or in a specific switch with respect to which
capacity problems may affect BELL ATLANTIC's ability to utilize
services or features for its own use or offer services to other
Telecommunications Carriers, the Parties agree to work cooperatively
to seek a solution to such capacity problem to the extent
technically feasible. In the event that a capacity problem cannot be
resolved to the mutual satisfaction of both Parties, switch capacity
will be made available to BELL ATLANTIC, COVAD and other
Telecommunications Carriers on a first come, first serve basis
(without reservation of capacity for BELL ATLANTIC, COVAD or other
Telecommunications Carriers), and new service requests will be
approved or denied on a first come, first serve basis. When BELL
ATLANTIC and other Telecommunications Carriers use the last
remaining capacity in a switch on a first come, first serve basis,
BELL ATLANTIC shall have no obligation to augment or add switches to
meet COVAD's requirements except as may be required pursuant to the
Bona Fide Request Process. If BELL ATLANTIC does augment switch
capacity or add switches to satisfy its needs or the needs of other
Telecommunications Carriers, any such new capacity or additional
switches shall also be made available to COVAD on a first come,
first serve basis with BELL ATLANTIC and the other
Telecommunications Carriers. Where BELL ATLANTIC provides COVAD with
Local Switching features which BELL ATLANTIC has a right to use but
has not deployed for its own Customers, COVAD shall pay to BELL
ATLANTIC all costs and expenses incurred by BELL ATLANTIC in
providing such features. The calculation of such costs and expenses
shall be on an ICB basis, taking into account the
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requested features and the affected switch, and shall not include
any amount to reimburse BELL ATLANTIC for RTU fees in those
instances where such RTU fees were previously paid by BELL ATLANTIC
for the specific requested features prior to COVAD's request. Such
costs and expenses shall be submitted to the Commission for review.
Local Switching also provides, to the same extent such switch
currently provides to BELL ATLANTIC such access on the Effective
Date hereof and thereafter as such access may be expanded, access
to: transport, signaling (ISDN) User Part (ISUP) and Transaction
Capabilities Application Part (TCAP), and platforms such as
adjuncts, Public Safety Systems (911), operator services, directory
services, and, when and where available, Local Switching ports
adhering to Bellcore TR-NWT-08 and TR-NWT-303 specifications, and
Advanced Intelligent Network (AIN) described in Section 2.11 of this
Part II. Remote Switching Module (RSM) functionality as it relates
to termination of Customer lines or trunks is included in the Local
Switching Network Element. RSM functionality, however, does not
include support of COVAD's RSM on BELL ATLANTIC's host switch. The
switching capabilities used will be based on the line side features
they support. Local Switching will also be capable of routing local,
intraLATA, interLATA, and, when and where available, calls to an
international Customer's preferred carrier.
2.9.3.1 Local Switching also includes Circuit Switched Data
(CSD) and ISDN Packet Switching, to the extent such CSD
and ISDN Packet Switching are available to BELL ATLANTIC
on the Effective Date hereof and thereafter as such
availability may be expanded, which provide with respect
to CSD service the circuit switching functionality that
is required to switch and transport ISDN Circuit
Switched Data between interfaces conforming to ISDN
American National Standards for Telecommunications. For
Local Switching, the purposes of ISDN Circuit Switched
Data are to provide an ISDN-capable Local Exchange
Termination, to route CSD calls to the proper
termination (line, trunk or other switch), to provide
efficient concentration of traffic, to provide necessary
connectivity within the network, and to provide the
switching features and capabilities to support ISDN. It
is understood by both Parties that the Customer Premises
Equipment at both ends of the call will be expected to
conform to the appropriate American National Standard
for ISDN Network Terminations applicable for CSD.
2.9.4 "Tandem Switching." The Tandem Switching Network Element
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provides the switching function needed to establish a temporary
transmission path between two other switching offices. It includes
the facilities connecting the trunk distribution frames to the
tandem switch, and all the functions of the tandem switch itself,
including those facilities that establish a temporary transmission
path between two other switches. It also includes functions that are
centralized in the tandem, such as any call recording which is or
becomes available in the tandem switch, and, in certain cases,
routing of calls to tandem signaling conversion functions (e.g., MF
to SS7) used in the BELL ATLANTIC network. Tandem switch call
recording functions and capabilities are different from end office
switch call recording functions and capabilities. BELL ATLANTIC will
implement, where it is technically feasible to do so and where
facilities exist that dialing plan and any associated dedicated
trunking needed to support the introduction of customized routing on
that Tandem Switching Network Element.
2.9.5 "Interoffice Transmission Facilities" is a Network Element which is
provided either as Dedicated Transport or is in some cases BELL
ATLANTIC Shared Transport. Bell Atlantic shall provide IOF pursuant
to the PSC No. 916 Tariff and this subsection 2.9.5.
2.9.5.1 "BELL ATLANTIC Shared Transport" is a transmission
facility which BELL ATLANTIC shares with at least one
Customer or carrier between BELL ATLANTIC switching
elements. This facility is paid for based upon usage
plus any applicable non-recurring charges, and is
provided in accordance with the terms and conditions
specified in PSC No. 916 Tariff and this subsection.
2.9.5.2 "Dedicated Transport" is an interoffice transmission
path between designated locations to which a single
carrier is granted exclusive use. Such locations may
include BELL ATLANTIC central offices or other equipment
locations, COVAD network components, other carrier
network components, or Customer premises. Dedicated
Transport includes the Digital Cross Connect System
(DCS) functionality as an option to the extent available
on the Effective Date of this Agreement and thereafter
as such functionality may become available. This
facility is paid for based upon fixed monthly charges
plus any applicable non-recurring charges, and is
provided in accordance with the terms and conditions
specified in PSC No. 916 Tariff and
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this subsection.
2.9.6 "Operator Services and Directory Assistance" is the Network Element
that provides two types of functions: Operator Services and
Directory Assistance, each of which is described below.
2.9.6.1 "Operator Services"
2.9.6.1.1 Inward Operator Services
Inward Operator Services enables the COVAD
end user or its operator service provider to
be connected to the BELL ATLANTIC Traffic
Operation Position Systems ("TOPS")
office(s) for the purpose of providing
operator services to their end users. There
are two types of Inward Operator Services:
(i) Busy Line Verification ("BLV"):
BLV is an option where, at the
request of COVAD's end user or its
operator service provider, a BELL
ATLANTIC operator will attempt to
determine the status of an exchange
service line (e.g., conversation in
progress, available to receive a
call or out of service) and report
to COVAD's end user or its operator
service provider.
(ii) Busy Line Verification/Interrupt
("BLV/I")
BLV/I is an option where, at the
request of COVAD's end user or its
operator service provider, a BELL
ATLANTIC operator determines and
reports that a conversation is in
progress on an exchange service line
and subsequently interrupts such
conversation to request that the
conversation be terminated so that
COVAD's end user can attempt to
complete a call to the line.
Inward Operator Services are provided over
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trunk groups ordered by COVAD or its
alternate operator service provider to the
BELL ATLANTIC TOPS switch(es) as specified
by BELL ATLANTIC.
Inward Operator Services cannot be provided
on ported telephone numbers, telephone
number which forward calls using Call
Forwarding Variable service
features.
a) BELL ATLANTIC will provide BLV and BLV/I
for telephone numbers provided in its
operating territory.
b) The BELL ATLANTIC operator will respond
to one telephone number per call on
requests for BLV or BLV/I.
c) BELL ATLANTIC will designate which TOPS
switch(es) services which NXXs and make
such information available to COVAD.
d) COVAD shall order Inward Operator
Services as set forth in this Section.
e) COVAD and its customer shall indemnify
and save BELL ATLANTIC harmless against
all claims that may arise from either
party to the interrupted call or any
other person.
Rates and Charges for Inward Operator
Services are set forth in Part IV.
2.9.6.1.2 Operator Service ("OS")
Under this option, BELL ATLANTIC shall
provide for the routing of Operator Services
("OS") calls dialed by COVAD subscribers
directly to either the COVAD Operator
Services platform or to the BELL ATLANTIC
Operator Services platform as specified by
COVAD.
BELL ATLANTIC will offer OS to COVAD
customers served by COVAD switches over
separate trunk groups ordered or provided by
COVAD to the BELL ATLANTIC TOPS switch(es)
as specified by BELL ATLANTIC.
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Access to the BELL ATLANTIC OS platform from
COVAD's local switch requires that COVAD
utilize Feature Group C Modified Operator
Services Signaling. The Interoffice
Transmission Facility mileage rate for the
facility will be based on airline mileage
using V&H coordinate methods from the COVAD
location to the nearest BELL ATLANTIC TOPS.
Trunk terminations at the TOPS switch(es)
require COVAD to purchase trunk ports at
rates specified in the Pricing Schedule. For
each trunk group, COVAD must indicate the
branding option selected as set forth in
Sectons 19.2.2 (a), (b), and (c) preceding.
BELL ATLANTIC also provides COVAD, using the
unbundled local switching element, access to
this optional service either through
dedicated IOF and trunk ports or on shared
operator service trunks between the end
office in which they have unbundled local
switching ports and the TOPS switches.
Additional per minute of use (MOU) local
switching charges will apply for all calls
which interconnect from the unbundled local
switching ports to the BELL ATLANTIC TOPS at
rates set forth in Part IV.
2.9.6.1. 0+ Mechanized Operator Calls (Calling Card,
Collect, Bill to Third Number):
This option is available for COVAD to
provide their end user the ability, through
the mechanized BELL ATLANTIC operator
interface, to complete calls via 0+ dialing
with alternate billing capabilities without
live operator assistance. Alternate billing
call completions can be Calling Card,
Collect or Bill to Third Number.
0+ Mechanized calls may be provided over the
same DA trunk groups which establish
interconnection from the COVAD switch or the
trunk groups which provide interconnection
from the COVAD unbundled local switching
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line ports to the BELL ATLANTIC TOPS.
Rates for requests for 0+ Mechanized Calls
will be billed to COVAD and are set forth in
Part IV. In addition, for calls originating
from a facilities-based COVAD switch or for
calls from COVAD unbundled local switching
line ports, there will be charges to
terminate the call from the TOPS tandem to
the called party. These include the per
minute of use Unbundled Tandem Transport
Charges ("UTTC") assessed for each call
transported between the TOPS tandem and the
end office, the per minute of use Tandem
Transit Switching Charge ("TTSC") assessed
for each call that traverses a BELL ATLANTIC
tandem switch, and the appropriate per
minute of use charges for reciprocal
compensation ("UNRCC" or "UCRCC") depending
on the terminating end office switch, as set
forth in Part IV.
2.9.6.1.4 0- Operator Handled Calls (Calling Card,
Collect, Bill to Third Number)
This option is available for COVAD to
provide their end user, through the BELL
ATLANTIC operator, the ability to complete
intraLATA calls via 0- dialing with
alternate billing capabilities and live
operator assistance. Alternate billing call
completions can be Calling Card, Collect or
Bill to Third Number, Station to Station and
Person to Person.
0- Operator Handled Calls may be provided
over the same DA trunk groups which
establish interconnection from the COVAD
switch or the trunk groups which provide
interconnection from the COVAD unbundled
local switching line ports to the BELL
ATLANTIC TOPS.
Rates for requests for 0- Operator Handled
Calls will be billed to COVAD and are set
forth in Part IV. In addition, for calls
originating from a facilities-based COVAD
switch or for calls
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from COVAD unbundled local switching line
ports, there will be charges to terminate
the call from the TOPS tandem to the called
party. These include the per minute of use
Unbundled Tandem Transport Charges ("UTTC")
assessed for each call transported between
the TOPS tandem and the end office, the per
minute of use Tandem Transit Switching
Charge ("TTSC") assessed for each call that
traverses a BELL ATLANTIC tandem switch, and
the appropriate per minute of use charges
for reciprocal compensation ("UNRCC" or
"UCRCC") depending on the terminating end
office switch, as set forth in Part IV.
2.9.6.1.5 Operator Emergency Bulletin Service
This option provides COVAD with emergency
numbers of police, fire, ambulance and
Public Safety Answering Points (PSAP) in the
BELL ATLANTIC serving area so that COVAD
operators can connect callers directly to
the proper emergency bureaus.
The BELL ATLANTIC Operator Emergency
Bulletin Service lists the emergency,
police, fire, ambulance and PSAP telephone
numbers by municipality and in alphabetical
order for each of the areas served by BELL
ATLANTIC.
Operator Emergency Bulletin Service is
available for use by COVAD operators for the
sole purpose of assisting callers in
reaching an emergency bureau.
Operator Emergency Bulletin Service is a
copy of BELL ATLANTIC's own emergency
bulletin. This agreement includes one annual
copy of the bulletin plus periodic updates
during the year. Independent telephone
companies emergency numbers are not
included.
Rates and charges for Operator Emergency
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Bulletin service are set forth in Part IV.
2.9.6.1.6 Operator Passthrough Service
This option provides COVAD's end users with
access to operators of their Presubscribed
Interexchange Carriers ("IC") for operator
assisted call completion. This option
applies only when the Presubscribed IC
provides Operator Services for COVAD's end
users for calls originating from a
particular LATA and is capable of receiving
calls passed through it by BELL ATLANTIC in
that LATA.
BELL ATLANTIC will, when requested by
COVAD's end user, connect that end user to a
specified IC for operator call completion
provided that IC offers operator services in
that end user's originating LATA and is
capable of receiving calls passed through to
it by BELL ATLANTIC in that LATA.
If the IC does not provide Operator Services
for COVAD's end user, at the option of the
IC, BELL ATLANTIC will provide COVAD's end
user with access to an IC designated
Operator Services Provider or to a BELL
ATLANTIC provided announcement which will
direct COVAD's end user to contact their
Presubscribed IC for dialing instructions.
The Operator Passthrough charge is applied
on an operator work second basis, and rated
using the 0-Operator Handled calls in Part
IV.
COVAD will be assessed this charge on calls
that are passed through to either the
Presubscribed IC's operator, or a BELL
ATLANTIC provided recording indicating that
the IC does not provide service in that
area.
Rates and charges applied to Operator
Passthrough Service are set forth in Part
IV.
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2.9.6.2 Directory Assistance
BELL ATLANTIC will offer Directory Assistance ("DA")
service to COVAD's customers served by COVAD's own
switch over separate trunk groups ordered or provided by
COVAD to the BELL ATLANTIC TOPS switch(es) as specified
by BELL ATLANTIC. Access to the BELL ATLANTIC DA
platform from COVAD's local switch requires that COVAD
utilize Feature Group C ("FG-C") Modified Operator
Services Signaling. The Interoffice Transmission
Facility ("IOF") mileage rate for the facility will be
based on airline mileage using V&H coordinate methods
from the COVAD location to the nearest BELL ATLANTIC
TOPS. Trunk terminations at the TOPS switch(es) require
COVAD to purchase trunk ports at rates specified in Part
IV. For each trunk group COVAD must indicate the DA
option selected as set forth in 19.2.2 (a), (b) and (c)
immediately following. BELL ATLANTIC also provides
COVAD, using the unbundled local switching element,
access to this optional service either through dedicated
IOF and trunk ports or on shared operator service trunks
between the end office in which they have unbundled
local switching ports and the TOPS switches. Additional
per minute of use ("MOU") local switching charges will
apply for all calls which interconnect from the
unbundled local switching ports to the BELL ATLANTIC
TOPS as described in Part IV.
This option provides COVAD end users access to Telephone
Directory Assistance operators via 411, 555-1212, or 1+
(NPA) 555-1212 dialing. Rates for requests for Directory
Assistance will be billed to COVAD and are set forth in
Part IV. There are no Directory Assistance call
allowances provided to COVAD or their end users.
2.9.6.2.1 Directory Assistance with Branding
This service allows COVAD to select only one
of the three options as follows:
(a) COVAD may provide BELL ATLANTIC with a
COVAD branded, introductory Directory
Assistance and Operator Services
announcement which will be played for all
COVAD end users completing DA or Operator
Services calls over the trunk group to the
BELL
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ATLANTIC TOPS.
(b) COVAD may request BELL ATLANTIC branded
announcement.
(c) COVAD may request an unbranded, generic
announcement.
This message may be a maximum of eighteen
(18) seconds and may be recorded by COVAD
or, at COVAD's request, by BELL ATLANTIC. A
minimum of two (2) audio cassette recordings
of the COVAD branding announcement must be
forwarded to BELL ATLANTIC. Rates for
requests for Directory Assistance with
branding will be billed to COVAD and are set
forth in Part IV.
2.9.6.2.2 Directory Assistance Call Completion (DACC)
This option provides for automatic
connection of a COVAD end user calling BELL
ATLANTIC DA to the published telephone
number requested. After the BELL ATLANTIC DA
operator provides the requested number, a
recorded service message will offer to
connect the caller to that number for a
specified additional charge. The caller can
accept the offer for DACC by depressing a
button (touch tone) or responding by voice
(dial), as instructed by the voice message.
The DACC charge will apply as set forth in
Part IV. In addition, for calls originating
from a facilities-based COVAD switch or for
calls from COVAD unbundled local switching
line ports, there will be charges to
terminate the call from the TOPS tandem to
the called party. These include the per
minute of use Unbundled Tandem Transport
Charges (UTTC) assessed for each call
transported between the TOPS tandem and the
end office, the per minute of use Tandem
Transit Switching Charge (TTSC) assessed for
each call that traverses a BELL ATLANTIC
tandem switch, and the appropriate per
minute of use charges for reciprocal
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compensation (UNRCC or UCRCC) depending on
the terminating end office switch, as set
forth in Part IV.
DACC is available to COVAD residence and
business customers and from public
telephones on a collect, bill to third
number or calling card basis. The charge
appropriate to the billing option used will
apply in addition to the DACC charge.
DACC is available with all telephone numbers
in the BELL ATLANTIC DA database except:
- non-published telephone
numbers
- interLATA numbers
- 700, 800 and 900 numbers
When a caller requests more than one number
for Directory Assistance, DACC is offered
only for the first eligible listing that was
selected by the operator.
The DACC charge applies only to calls
actually completed.
The DACC charge will be credited for
completion of calls to the wrong number,
incomplete connections or calls with
unsatisfactory transmission as set forth in
Section 2.9.6.2.3 following.
Rates for requests for DACC will be billed
to COVAD as set forth in Part IV.
2.9.6.2.3 Directory Assistance Credits
A credit allowance will apply to COVAD for
directory inaccessibility, wrong numbers,
cut-offs or poor transmission. When the
COVAD end user reports to the BELL ATLANTIC
directory assistance operator such a call
and the number requested, the number
provided and the reason the number provided
is
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incorrect, the number of calls for which a
credit will apply will be developed by the
BELL ATLANTIC DA operator and credited to
COVAD identifying the specific COVAD end
user to whom the credit applies.
2.9.6.2.4 Direct Access to Directory Assistance
("DADA")
Direct Access to Directory Assistance
("DADA") is a database service that provides
for access to BELL ATLANTIC listings by a
COVAD operator. The DADA database is a
physically distinct entity from the BELL
ATLANTIC DA database, populated with
identical listing data, and updated from the
same source on a daily basis.
COVAD is required to arrange for
interconnection to the database. BELL
ATLANTIC will interconnect at any
technically feasible point designated by
COVAD. BELL ATLANTIC will provide COVAD with
a User Guide for training its agents.
Rates and Charges for DADA are set forth in
Part IV.
2.9.6.3 Customized Routing will be provided in accordance with
the PSC No. 916 Tariff.
2.9.7 "Signaling Systems and Call-Related Databases"
2.9.7.1 "Signaling Link Transport" is a set of two or four
dedicated 56 Kbps transmission paths between Signaling
Points of Interconnection (SPOI) mutually agreed to by
the Parties that provides appropriate physical
diversity.
2.9.7.2 "Signaling Transfer Points" is a signaling network
function that includes all of the capabilities provided
by the signaling transfer point switches (STPs) and
their associated signaling link ports which enable the
exchange of SS7 messages among and between switching
elements, database elements
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and other signaling transfer points. This function does
not include the administration and translation function
which BELL ATLANTIC will perform upon COVAD's request.
2.9.8 "Service Control Points (SCPs)"/"Databases"
2.9.8.1 "Databases" as used herein are the unbundled Network
Elements that typically provide the functionality for
storage of, access to, and manipulation of information
required to provide a particular service or capability.
2.9.8.2 A "Service Control Point" (SCP) is a specific type of
Database Network Element deployed in a Signaling System
7 (SS7) network that executes service application logic
in response to SS7 queries sent to it by a switching
system also connected to the SS7 network. SCPs may also
utilize interfaces to allow for provisioning,
administration and maintenance of subscriber data and
service application data (e.g., an 800 database stores
Customer record data that provides information necessary
to route 800 calls).
2.9.8.3 "Service Management Systems" (SMS) permits the creation,
modification or updating of information in call-related
databases. SMS shall be provided by BELL ATLANTIC to
COVAD in the same manner and method that BELL ATLANTIC
provides for its own access to SMS. BELL ATLANTIC shall
provide COVAD with all information necessary to
correctly enter or format for entry the information
relevant for input into the particular BELL ATLANTIC
SMS.
2.9.8.4 "Advanced Intelligent Network" (AIN) database as used
herein means a Service Control Point providing
programmed call-processing information for various
services in response to specific queries generated by
switch-based triggers.
2.10 Operations Support Systems Functions. See Section 12 of the General
Terms and Conditions of this Agreement.
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3. Other Requirements
3.1 To the extent required by Applicable Law, BELL ATLANTIC may combine
unbundled Network Elements at rates and charges to be determined on
an individual case basis.
3.2 COVAD agrees that, in order to allow BELL ATLANTIC to properly size
its resources, COVAD will provide BELL ATLANTIC with COVAD's
projected demand requirements for particular unbundled Network
Elements prior to ordering such unbundled Network Elements in a
particular geographic area. The demand projections provided by COVAD
will include, but shall not be limited to, forecasts of: (1) the
volume of unbundled Network Elements; (2) any significant number of
orders for any unbundled Network Elements; and (3) complex orders
for unbundled Network Elements. BELL ATLANTIC agrees, however, that
COVAD shall not be required by this Section 3.2 to provide detailed
forecasts of every specific order, unbundled Network Element, or
Customer specific bid. The Parties agree to participate in joint
network planning and large job planning meetings as required. COVAD
will be considered the Customer for each unbundled Network Element.
3.3 Intentionally Omitted
3.4 The following additional terms shall apply to COVAD's purchase and
BELL ATLANTIC's provision of unbundled Network Elements.
3.4.1 Intentionally Omitted
3.4.2 BELL ATLANTIC agrees to unbundled its SS7 network to convey
any type of message (currently provided or to be provided in
the future when and where it becomes available in the BELL
ATLANTIC network) as required by the Order (i.e., at an STP)
between any and all signaling points necessary for the
provision of those services. The BELL ATLANTIC signaling
network will provide access to all unbundled Network Elements
connected to it and will support fully the functions of all
unbundled Network Elements connected to it in support of these
services as specifically included in this Agreement and
necessary for the mutual provision of said services. This
explicitly includes the use of the BELL ATLANTIC signaling
network to convey transient messages to another carrier
connected to BELL ATLANTIC's network in a manner that permits
BELL ATLANTIC to convey such messages. For example, to the
extent permitted by law, BELL ATLANTIC agrees not to block
transient TCAP messages. BELL ATLANTIC agrees to (i) allow
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COVAD freedom to select signaling points of interconnection,
subject to the capacity of the BELL ATLANTIC network and other
network considerations, (ii) unbundle dedicated transport for
signaling links from the BELL ATLANTIC SS7 network and to
satisfy physical diversity requirements based on the capacity
and any measuring limitations of its SS7 network on the same
terms and conditions that BELL ATLANTIC provides to itself,
(iii) enable call setup between COVAD local switching and
signaling systems and the BELL ATLANTIC switching and
signaling systems, (iv) support CLASS features between the
COVAD local network and BELL ATLANTIC's network to the extent
such compatibility exists on the Effective Date of this
Agreement and thereafter as such compatibility may be
expanded, and (v) provide the appropriate options to query
BELL ATLANTIC databases via this interconnection.
3.4.3 BELL ATLANTIC agrees to unbundle Tandem Switching in a manner
that prevents the loss of any functionality when routing
through the applicable tandem to the extent such functionality
is provided for traffic routed through that tandem on the
Effective Date of this Agreement and thereafter during the
term or any renewal term of this Agreement. BELL ATLANTIC
agrees to preserve CLASS features and Caller ID as traffic is
processed, to the extent the BELL ATLANTIC network has the
capability on the Effective Date of this Agreement and
thereafter as such capability may be expanded, and to provide
COVAD access to the BELL ATLANTIC E911 tandems. COVAD
acknowledges that certain CLASS features may not be passed
between certain switch types which do not have such technical
capabilities in the BELL ATLANTIC network.
3.4.4 BELL ATLANTIC agrees to provide COVAD full cooperation and
support to ensure COVAD's Customers are able to reach a PSAP.
BELL ATLANTIC will provide COVAD data on the type of emergency
service (e.g., Basic 911, E911) that exists throughout the NY
Region, as well as any geographical differences. COVAD agrees
that it is responsible for initiating and maintaining its own
relationships with PSAPs, and for any end user payments to
townships, counties and municipalities associated with
911/E911 services. BELL ATLANTIC agrees, however, that it will
endeavor to assist COVAD in establishing relationships with
PSAPs.
3.4.5 BELL ATLANTIC shall perform testing and trouble isolation of
all unbundled Network Elements provided by BELL ATLANTIC,
except for the Local Loop and line ports.
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3.4.6 Within 6 months after the Effective Date, the Implementation
Team described in Attachment 2 ("Operations Plan and
Implementation Team") shall begin to consider supplementing
the Operations Plan with more detailed specifications and
technical requirements for the unbundled Network Elements.
4. MLT Testing
Except in exceptional circumstances, as stated below, when a COVAD
customer served by COVAD using an unbundled Network Element Local
Loop or reports a service problem to COVAD, COVAD shall perform
Mechanized Loop Testing (MLT) on the Local Loop and line port prior
to reporting the service problem to BELL ATLANTIC. The Parties will
work cooperatively to develop a list of exceptional circumstances in
which COVAD need not perform an MLT test, which shall include, but
not be limited to circumstances in which the service problem is due
to a visually or otherwise readily identifiable service problem
(e.g., a downed drop wire) or the applicable BELL ATLANTIC systems
needed to perform an MLT test are not operational. In addition, BELL
ATLANTIC, in its discretion, may perform MLT testing to diagnose a
trouble. BELL ATLANTIC will maintain all unbundled Network Elements
provided by BELL ATLANTIC to COVAD, including but not limited to the
Local Loop (and line ports).
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EXHIBIT A to Part II
Bona Fide Request Process
1. The following process shall be used to promptly consider and analyze
requests by COVAD for unbundled Network Elements required to be provided
under the Act which are not specifically identified in this Agreement.
These requests by COVAD shall hereinafter be referred to as "Bona Fide
Requests."
2. A Bona Fide Request shall be submitted in writing and shall include a
technical description of each requested unbundled Network Element.
3. Within ten (10) business days of receipt, BELL ATLANTIC shall acknowledge
receipt of the Bona Fide Request.
4. Except under extraordinary circumstances, within thirty (30) days of its
receipt of a Bona Fide Request, BELL ATLANTIC shall provide to COVAD a
preliminary analysis in writing of such Bona Fide Request (hereinafter
referred to as a "Preliminary Analysis") at no charge to COVAD. The
Preliminary Analysis shall (i) state whether the unbundled Network Element
requested by COVAD is readily or currently available, and if so, confirm
that BELL ATLANTIC will promptly offer access to the unbundled Network
Element or (ii) provide an explanation that access to the unbundled
Network Element is not technically feasible or available and/or that the
request does not qualify as an unbundled Network Element that is required
to be provided by BELL ATLANTIC under the Act. In the case of clause (ii)
above, the Parties shall undertake good faith negotiations to redefine the
request, and in the event of impasse either Party may seek relief pursuant
to the Dispute Resolution Process set forth in Section 16 of the General
Terms and Conditions of this Agreement.
5. Once the Parties have agreed that the provision of an unbundled Network
Element requested in the Bona Fide Request is technically feasible and
otherwise qualifies under the Act, if COVAD wishes BELL ATLANTIC to
proceed with developing the Bona Fide Request, it shall submit a written
request for a quote and provide payment to BELL ATLANTIC for the
preparation of such quote (hereinafter referred to as a "BFR Quote").
Within 90 days of such request by COVAD to proceed and payment therefor,
BELL ATLANTIC shall complete the development of the BFR Quote for the
unbundled Network Element requested in the Bona Fide Request, including
availability, applicable prices and installation intervals.
6. Unless the Parties otherwise agree, the unbundled Network Element
requested must be priced in accordance with Section 252(d)(1) of the Act.
7. Within ninety (90) days of its receipt of the BFR Quote, COVAD must
confirm its
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order for the Bona Fide Request pursuant to the BFR Quote or seek relief
pursuant to the Dispute Resolution Process set forth in Section 16 of the
General Terms and Conditions of this Agreement.
8. If a Party believes that the other Party is not requesting, negotiating or
processing a Bona Fide Request in good faith, or disputes a determination,
or price or cost quote, or is failing to act in accordance with Section
251 of the Act, such Party shall seek relief pursuant to the Dispute
Resolution Process set forth in Section 16 of the General Terms and
Conditions of this Agreement.
9. COVAD may cancel its Bona Fide Request at any time upon written notice to
BELL ATLANTIC, subject to the following: (i) if such cancellation notice
is received after the submission by BELL ATLANTIC to COVAD of the
Preliminary Analysis, but before COVAD requests a BFR Quote, COVAD shall
not be liable to BELL ATLANTIC for reimbursement of any costs incurred by
BELL ATLANTIC and (ii) if such cancellation notice is received after COVAD
submits its request for a BFR Quote, but before the BFR Quote is rendered
by BELL ATLANTIC to COVAD, COVAD shall be liable to BELL ATLANTIC for
reimbursement of all actual costs incurred by BELL ATLANTIC in connection
with developing such BFR Quote up until its receipt of such notice of
cancellation; provided, however, that if such notice of cancellation is
received after the receipt by COVAD of the BFR Quote, the amount for which
COVAD shall be liable pursuant to clause (ii) of this paragraph 9 shall
not exceed the lesser of the actual costs incurred by BELL ATLANTIC or the
estimate in the BFR Quote plus 20%.
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PART III: SERVICE DESCRIPTION -- ANCILLARY FUNCTIONS
1. Intentionally Omitted
2. Collocation
2.1 Definition
Subject to the availability of space, physical collocation
("collocation") is the right of COVAD to obtain dedicated space,
power and other associated resources as provided herein in the BELL
ATLANTIC Local Serving Office (LSO) serving wire centers and tandem
offices which are specified in NECA 4, as well as all other BELL
ATLANTIC premises as required under the Act and the Order
("Collocation Premises"), and to place equipment in such spaces to
interconnect with the BELL ATLANTIC network services and/or
unbundled Network Elements and/or interconnect to any other
interconnector located in such Collocation Premises through BELL
ATLANTIC facilities. Subject to Section 7.4 of the General Terms and
Conditions of this Agreement, BELL ATLANTIC shall provide to COVAD
collocation space necessary for the placement of equipment necessary
for interconnection and for access to unbundled Network Elements
according to applicable BELL ATLANTIC tariffs, including but not
limited to P.S.C. No. 900 Tariff, as in effect from time to time and
the terms of this Agreement. On COVAD's written request, BELL
ATLANTIC will provide virtual collocation, even if physical
collocation is available, but subject to and in accordance with
applicable tariffs and the terms of this Agreement; provided,
however, that BELL ATLANTIC agrees not to voluntarily file any
tariff provision with the Commission that is inconsistent with the
position that virtual collocation is available upon request even if
physical collocation is also available. Except for the provisions of
Section 2.4.23 of this Part III, the provisions of this Part III
shall not be applicable to collocation for solely interstate
purposes. Except for the provisions of Section 2.4.23 of this Part
III, if COVAD requests collocation for solely (100%) interstate
purposes, the same shall be governed by applicable FCC tariffs, and
whether a purpose constitutes interstate or intrastate shall be
determined according to applicable FCC rules and tariffs.
2.2 Technical Requirements
2.2.1 BELL ATLANTIC shall provide, upon request by COVAD, a license
to occupy space to meet COVAD's needs for placement of
equipment for interconnection, or access to unbundled Network
Elements pursuant to the requirements in this Agreement.
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2.2.2 BELL ATLANTIC shall provide intraoffice facilities (e.g., DS0,
DS1, and DS3 terminations) permitting electrical handoffs as
requested by COVAD to meet COVAD's need for placement of
equipment, interconnection, or provision of service. At such
time that OC3, OC12, OC48, and STS1 intraoffice facility
terminations become available in the Collocation Premises,
they shall be made available to COVAD for its fiber handoffs.
2.2.3 The standard hours for COVAD equipment and cable installations
in the collocated space shall be 9:00 AM to 5:00 PM, Monday
through Friday. In those instances where COVAD may reasonably
require expanded equipment and cable installation hours, it
shall make such request not less than two business days prior
to the requested date of access, which request shall be
promptly reviewed by BELL ATLANTIC and with respect to which
BELL ATLANTIC shall not unreasonably withhold its consent. Any
such outside-standard-hours access to the collocated space or
other associated BELL ATLANTIC space for equipment
installation is restricted to the collocation area and the
entire cable route, and may require COVAD's payment of costs
incurred by BELL ATLANTIC including costs for a security guard
or escort personnel. BELL ATLANTIC shall provide COVAD with
written security rules and regulations prior to COVAD's
commencement of installation at the collocated space.
2.2.4 BELL ATLANTIC shall not be obligated to permit collocation of
switching equipment in BELL ATLANTIC facilities. To the extent
the Commission determines in instances where COVAD has
demonstrated to the Commission that Remote Switching Modules
("RSMs") or Remote Line Modules ("RLMs") are used for
interconnection or access to unbundled Network Elements, COVAD
may locate such RSMs or RLMs in collocated space, on a space
available basis for use in conformance with all applicable FCC
orders. All RSMs and RLMs installed at BELL ATLANTIC
facilities shall be installed consistent with BELL ATLANTIC
requirements as set forth in Sections 2.2.31 through 2.2.34 of
this Part III for such equipment (e.g., grounding requirements
set forth in Appendix D). COVAD may collocate Digital
Subscriber Line Access Multiplexers (DSLAMs) in its collocated
space subject to the requirements of this Part III.
2.2.5 BELL ATLANTIC shall provide interconnection of COVAD to other
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carriers who have collocated space within the same BELL
ATLANTIC Collocation Premises (e.g., BELL ATLANTIC shall not
require COVAD to interconnect with other carriers outside the
BELL ATLANTIC Collocation Premises). Such COVAD to other
carrier interconnection shall be accomplished via BELL
ATLANTIC transmission facilities the price for which shall be
established by applicable tariffs, including but not limited
to P.S.C. No. 900 Tariff or, if there shall be none,
established on an individual case basis.
2.2.6 COVAD may select its own vendors for all required engineering
and installation services associated with its collocated
equipment (e.g., BELL ATLANTIC shall not require COVAD to
utilize BELL ATLANTIC's internal engineering or installation
work forces for the engineering and installation of COVAD's
collocated equipment). COVAD's vendors shall be (i) on the
then current BELL ATLANTIC approved vendors' list which will
be provided by BELL ATLANTIC to COVAD upon request, or (ii)
considered by BELL ATLANTIC for inclusion in such list, upon
COVAD's request.
2.2.7 BELL ATLANTIC shall provide under tariff basic telephone
service with a connection jack when ordered by COVAD from BELL
ATLANTIC for the collocated space for administrative purposes.
Upon COVAD's request, this service shall be available at the
COVAD collocated space within the same time frame in which
BELL ATLANTIC provides basic telephone service to its end-user
Customers served from the same central office.
2.2.8 BELL ATLANTIC shall provide adequate "stumble" lighting,
ventilation, power, heat, air conditioning, and other toll
grade environmental conditions suitable for transmission
equipment for COVAD's space and equipment in compliance with
Bell Communication Research (Bellcore) Network
Equipment-Building System (NEBS) standards TREOP000063. COVAD
may install its own AC/DC rack lighting in the collocation
space, subject to applicable standards. Notwithstanding BELL
ATLANTIC's obligation herein to provide "stumble" lighting
only, COVAD shall receive from BELL ATLANTIC the same level of
any greater lighting which BELL ATLANTIC may provide to any
other Telecommunications Carrier at the same Collocation area
within the same Collocation Premises.
2.2.9 To the extent that it has and makes such facilities available
to its own
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employees, in emergency situations, BELL ATLANTIC shall
provide access to washdown facilities within the Collocation
Premises on a twenty-four (24) hours per day, seven (7) days
per week basis for COVAD personnel and its designated agents.
COVAD employees and designated agents shall have standard
access to restrooms in the Collocation Premises, where
available. If desired, COVAD shall provide its own portable
eyewash stations within the collocated space.
2.2.10 Subject to its availability and technical feasibility, BELL
ATLANTIC shall provide all ingress and egress of fiber and
power cabling to COVAD collocated spaces in compliance with
COVAD's cable diversity requirements. The specific level of
diversity compliance and COVAD diversity requirements for each
site or unbundled Network Element will be provided in the
collocation request and, if BELL ATLANTIC determines that such
compliance will result in added expense, COVAD shall be so
advised and given an opportunity to decide whether or not it
wishes to pay for said added expense.
2.2.11 BELL ATLANTIC shall ensure protection of COVAD's proprietary
Customer information in accordance with the provisions of
Section 18 of the General Terms and Conditions of this
Agreement.
2.2.12 BELL ATLANTIC agrees that any collocation space furnished to
COVAD hereunder will be in compliance with OSHA requirements.
In the event COVAD becomes aware of any violation or
noncompliance with OSHA by BELL ATLANTIC in any collocation
area, COVAD will so notify BELL ATLANTIC and BELL ATLANTIC
shall remedy such situation as promptly as possible. In the
event COVAD requests collocation space in Collocation Premises
known to BELL ATLANTIC to contain asbestos or other similar
environmental condition, BELL ATLANTIC shall give prompt
verbal notification thereof to any one of the COVAD contacts
provided to BELL ATLANTIC, as required by subsection 2.2.20.5.
2.2.13 Except in the case of emergency situations, BELL ATLANTIC
shall provide COVAD with notice five (5) business days prior
to those instances where BELL ATLANTIC or its subcontractors
will engage in significant work activities that may affect
COVAD's collocation in the general area of the collocated
space occupied by COVAD, or in the general area of the AC and
DC power plants which support COVAD equipment. BELL ATLANTIC
will endeavor to inform COVAD by
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telephone of any emergency-related activity that BELL ATLANTIC
or its subcontractors may be performing in the general area of
the collocated space occupied by COVAD, or in the general area
of the AC and DC power plants which support COVAD equipment.
Notification of any emergency-related activity shall be made
as soon as possible so that COVAD can take any action required
to monitor or protect its service. COVAD shall attach to its
collocation space cage in a visible and easily accessible
location the COVAD methods of procedure (e.g., name and
contact telephone number(s)) for 24-hour contacts to be made
by BELL ATLANTIC to COVAD under this subsection.
2.2.14 BELL ATLANTIC shall prepare or cause to be prepared a basic
drawing of the collocation space, which drawing shall
specifically include (i) the dimensions of such space, (ii)
the location and proximity of such space to any walls and
other structures, (iii) the location of doors, ground bars and
AC convenience outlets, (iv) the location of the BELL ATLANTIC
Point of Termination Bays, and (v) to the best of its
knowledge without independent investigation, any physical
obstructions which may have a material adverse effect upon the
construction of the requested cage; provided, however, BELL
ATLANTIC will promptly notify COVAD in the event its becomes
aware of obstructions not otherwise noted previously. Such
drawings shall be provided by BELL ATLANTIC at a time mutually
agreed to by the Parties.
2.2.15 Except as otherwise provided in Section 2.4.57 below, BELL
ATLANTIC shall construct the collocated space in accordance
with COVAD's reasonable request regarding location of COVAD
collocation space cable access, ground bars, doors, and
convenience outlets which construction shall be consistent
with BELL ATLANTIC's engineering standards for its own similar
requirements. Convenience outlets will consist of 110 volts/20
amps feeding two duplex outlets per 100 square feet of
collocated space. Any COVAD request which cannot be
accommodated by BELL ATLANTIC will be indicated on the final
drawings prepared for such collocation space in accordance
with this Part III.
2.2.16 COVAD and BELL ATLANTIC will complete an acceptance
walk-through of all collocated space requested from BELL
ATLANTIC. Exceptions to the final drawings (as such drawings
may be modified by
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mutual agreement of the Parties) and in the Application for
Collocation that are noted by COVAD during this acceptance
walk-through shall be corrected by BELL ATLANTIC generally
within five (5) days after the walk-through but in no case
more than ten (10) days thereafter except in those instances
where significant space modifications are required (e.g., cage
reconstruction). The correction of these exceptions from the
original collocation request, which exceptions were not
subsequently agreed to by COVAD, shall be at BELL ATLANTIC's
expense.
2.2.17 After acceptance of COVAD's request for collocated space the
Parties shall mutually agree on a date for BELL ATLANTIC to
conduct a walk-through of the cable routes to be held prior to
commencement of collocated space construction.
2.2.18 BELL ATLANTIC shall provide detailed power cabling
connectivity information including the sizes and number of
power feeders to COVAD within five (5) business days of BELL
ATLANTIC's acceptance of the power provisioning bid associated
with the furnishing of collocated space in accordance with
COVAD's request therefor.
2.2.19 Intentionally Omitted.
2.2.20 COVAD shall request access to Collocation Premises for the
purposes set forth in Section 2.2.1 of this Part III in
accordance with the following procedures:
2.2.20.1 In order to request construction in collocated space,
COVAD shall submit to BELL ATLANTIC COVAD's
Application for Collocation (Appendix B) and the
applicable BELL ATLANTIC tariff fee(s) (the date of
receipt by BELL ATLANTIC of such Application and
fee(s) being hereinafter referred to as the "Start
Date").
(A) Within eight (8) business days of receipt by
BELL ATLANTIC of COVAD's Application (provided
the same shall be materially complete) and
applicable tariff fee, BELL ATLANTIC shall
respond to such Application by indicating
whether or not the request can be accommodated
or by providing COVAD with a Collocation
Schedule which shall set forth recurring
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charges and estimated design and construction
costs and providing results of a site survey.
(B) Within TWO (2) business days of receipt by
COVAD of such detailed costs estimate, COVAD
shall in writing accept or decline BELL
ATLANTIC's proposal and, if it shall accept
such proposal, it shall concurrently with such
acceptance provide BELL ATLANTIC with (i) a
payment equal to 50% of the total estimated
cost or such other payment as shall be required
in accordance with BELL ATLANTIC's applicable
tariff and (ii) an Insurance Certificate in the
form of Appendix C.
(C) Except in the event that COVAD changes its
Application for Collocation requirements after
they have been accepted by BELL ATLANTIC and
such change would, in the reasonable judgment
of BELL ATLANTIC, cause a construction or other
delay which would affect the turnover of
collocated space (in which case the penultimate
sentence of this subparagraph shall apply), or
in the event of Special Circumstances (as
defined below) detailed by BELL ATLANTIC for
COVAD, and subject to the circumstances
contemplated by Section 14 (Force Majeure) of
the General Terms and Conditions of this
Agreement and the limitations set forth in
Exhibit A of this Part III, the collocated
space shall be constructed, made ready and
turned over by BELL ATLANTIC to COVAD within
seventy-six (76) business days after the Start
Date or, when COVAD submits three or more
collocation applications in any one month, as
agreed by the Parties but in any event within
one hundred twenty (120) business days from the
Start Date. In the event of Special
Circumstances, such respective deadlines shall
be extended by no more than an additional
fifteen (15) business days (unless otherwise
mutually agreed to by the Parties). The
turnover interval shall be customized to
reflect the specific collocated space design
and construction work to be done. In those
instances where COVAD changes its requirements
which will affect the turnover of collocated
space, the interval for construction and
turnover of the collocated space shall be
extended to
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reflect these changes upon mutual agreement of
the Parties. For purposes of this subparagraph,
the term "Special Circumstances" shall mean
special, unusual or unanticipated conditions or
circumstances arising out of or required by
COVAD's Application for Collocation (excluding
changes made by COVAD to such Application after
such Application has been accepted by BELL
ATLANTIC) which could, in the reasonable
judgment of BELL ATLANTIC, cause a construction
or other delay in the turnover of collocated
space including, by way of illustration and
without limitation, major construction
obstacles, asbestos abatement procedures or
uncustomary modifications to the Collocation
Premises.
2.2.20.2 Any rights and remedies which COVAD may have as a
result of a failure by BELL ATLANTIC to comply with
the collocation turnover requirements of Section
2.2.20.1 hereof shall be governed exclusively by the
terms and conditions of this Agreement, including
Exhibit A to this Part III.
2.2.20.3 Within five (5) business days after the approval by
BELL ATLANTIC of COVAD's Application for Collocation
and payment by COVAD of the appropriate application
fee(s), BELL ATLANTIC shall provide the following
information to COVAD to the extent not previously
provided by BELL ATLANTIC:
2.2.20.4 Work restriction guidelines;
2.2.20.5 BELL ATLANTIC technical publication guidelines, if
any, that impact the design of the COVAD collocated
equipment. The Parties also agree that during the
Application for Collocation review, cage construction
and equipment installation processes each Party will
provide the other with a single point of contact name
and telephone number. Thereafter, each Party will
provide the other with contact names and telephone
numbers to the extent requested by the other Party
and to the extent necessary to complete such
processes and for ongoing collocation purposes; and
2.2.20.6 Escalation process for the BELL ATLANTIC
representatives (names, telephone numbers and the
escalation order) for any
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disputes or problems that might arise pursuant to
COVAD's collocation.
2.2.21 "Power," as referenced in this Part III, refers to any
electrical power source supplied by BELL ATLANTIC for COVAD
equipment. It includes all superstructure, infrastructure, and
overhead facilities, including, but not limited to, cable,
cable racks and bus bars. BELL ATLANTIC will supply power to
support COVAD equipment at equipment specific DC voltage
ranges. At a minimum, BELL ATLANTIC shall supply power to
COVAD at parity with that provided by BELL ATLANTIC to itself
for similar equipment requirements or to any third party. If
BELL ATLANTIC performance, availability, or restoration falls
below industry standards set forth in subsections 2.3.5
through 2.3.7 herein, BELL ATLANTIC shall bring itself into
compliance with such industry standards as soon as
technologically feasible.
2.2.21.1 Central office power supplied by BELL ATLANTIC into
the COVAD equipment area, shall be supplied in the
form of DC power feeders (cables) on cable racking
into the designated COVAD equipment area. The DC
power feeders (cables) shall support the requested
quantity and capacity of COVAD equipment within
acceptable industry standards. The termination
location shall be as requested by COVAD in the
collocation space.
2.2.21.2 For a fee to be set forth in the applicable
Collocation Schedule (Appendix A) and subject to
payment of any amounts required pursuant to Section
2.4.20, BELL ATLANTIC shall provide power as
requested by COVAD and where technically feasible, to
meet COVAD's need for placement of equipment,
interconnection, or provision of service.
2.2.21.3 The BELL ATLANTIC power equipment supporting COVAD's
equipment shall:
2.2.21.3.1 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;
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2.2.21.3.2 Have redundant power feeds with physical
diversity furnished at additional cost to
COVAD, and three (3) hour battery backup or,
at minimum, at parity with that provided for
similar BELL ATLANTIC equipment;
2.2.21.3.3 To the extent technically feasible, in the
determination of the applicable BELL
ATLANTIC vendor, and subject to the
reimbursement by COVAD of any costs incurred
by BELL ATLANTIC or its vendor, provide,
when made available by the vendor at the
particular Collocation Premises, the
capability for direct access to real time
alarm data arising from conditions that may
impact COVAD equipment in the collocation
space, including but not limited to power
plant alarms specific to the BELL ATLANTIC
power plants providing capacity to the
batteries, distribution, fuses and bays
within the COVAD collocation cage and
environmental alarms. To the extent that
access to alarm data is available in
accordance with the terms of this
subsection, BELL ATLANTIC shall also require
that the vendor provide COVAD with all
available information which COVAD may
utilize to connect to the alarms to
establish remote access to the COVAD work
center provided that (i) with respect to any
existing vendor arrangements, the vendor
shall have agreed to make such information
available to COVAD and (ii) with respect to
any new vendor arrangements, the agreement
with such vendor shall require such vendor
to provide COVAD with such information (and
BELL ATLANTIC agrees to request vendor to
include such a provision in its agreement
with BELL ATLANTIC).
2.2.21.3.4 BELL ATLANTIC will provide central office
ground, connected to a ground electrode
located at or on the outside of COVAD
collocated space; the ground electrode shall
be provided in accordance with accepted
industry standards relating to central
office grounding of transmission equipment
(e.g., current standards provide that the
ground electrode shall not be greater than
100 feet from the interconnector's cage);
COVAD may affix a connection to the BELL
ATLANTIC provided ground bar
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in order to provide COVAD's own ground bar
within the cage; and
2.2.21.3.5 For a fee to be set forth in the applicable
Collocation Schedule (Appendix A), and where
technically feasible, provide feeder
capacity and quantity to support the
ultimate equipment layout for COVAD
equipment in accordance with COVAD's
collocation request.
2.2.21.3.6 BELL ATLANTIC shall:
2.2.21.3.6.1 Pursuant to mutual agreement by
the Parties, provide an
installation sequence and
access that reflects individual
power requirements for each
collocated space specifically
with the understanding that
COVAD typically desires that
power be available before COVAD
begins installing its
equipment; BELL ATLANTIC agrees
that when COVAD installs its
own BDFB equipment in the
collocation space, said
equipment may be powered prior
to the installation of other
COVAD equipment;
2.2.21.3.6.2 Provide power plant alarms that
adhere to BELL ATLANTIC
standard practices;
2.2.21.3.6.3 Provide cabling that adheres to
Bell Communication Research
(Bellcore) Network
Equipment-Building System
(NEBS) standards TREOP000063;
and
2.2.21.3.6.4 Provide Lock OutTag Out and
other electrical safety
procedures and devices in
conformance with OSHA or
industry guidelines.
2.2.21.3.7 BELL ATLANTIC will provide COVAD with at
least 24-hours prior notice of any scheduled
AC or DC power work or related activity in
the collocated facility that will or is
likely to cause an outage or any type of
power disruption to COVAD equipment located
in the BELL ATLANTIC facility. At all times
prior to the date on which remote access is
provided to COVAD pursuant to subsection
2.2.21.3.3 above, BELL
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ATLANTIC agrees to provide promptly to COVAD
telephone notification of the occurrence of
all power failures or environmental
conditions affecting any Collocation
Premises within which COVAD maintains
Collocated Space, which power failures or
environmental conditions have the potential,
in the reasonable determination of BELL
ATLANTIC, to adversely affect the operation
of, or access to, COVAD's equipment located
in Collocated Space maintained by COVAD
within such Collocation Premises.
Notwithstanding the provisions of Section 17
of the General Terms and Conditions of this
Agreement, notice under this Section
2.2.21.3.7 may be either written, oral or
provided through electronic interface and
will be provided to those persons designated
pursuant to Section 2.2.20.5.
2.2.22 Intentionally Omitted.
2.2.23 BELL ATLANTIC will design and construct, at COVAD's expense,
a cage or room to establish a clear division between BELL
ATLANTIC's space and COVAD's collocated space.
2.2.24 BELL ATLANTIC shall provide collocated space that is in
material compliance with all Applicable Laws, including OSHA.
BELL ATLANTIC will notify COVAD of any non-compliant condition
to the extent such condition is brought to BELL ATLANTIC's
attention, and shall promptly remedy such condition to the
extent that such condition was caused by any negligent act or
failure to act of BELL ATLANTIC.
2.2.25 BELL ATLANTIC shall be permitted to conduct inspections at
irregular intervals of all or portions of the COVAD's
facilities, to determine that occupancies are authorized and
are installed and maintained in conformance with the required
standards set forth in this Agreement. BELL ATLANTIC will
provide COVAD with five (5) days' advance notice of such
non-emergency inspections, and COVAD's representatives shall
have the right to be present at the time of inspection.
2.2.26 After construction of the collocated space and to the extent
that
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they may be reasonably required to accommodate COVAD's use of
the collocated space, COVAD shall be permitted to conduct
inspections at irregular intervals of all or portions of the
BELL ATLANTIC Local Serving Office or other BELL ATLANTIC
location(s) including but not limited to power cable runs,
cable vaults, and cable risers used to connect COVAD's
Customers or its power to COVAD's facilities. COVAD will
provide BELL ATLANTIC with five (5) day's advance written
notice of such inspections, and BELL ATLANTIC's
representatives shall have the right to be present at the time
of inspection.
2.2.27 Subject to the satisfaction by COVAD of the conditions
contained elsewhere herein, BELL ATLANTIC grants COVAD a
license to occupy:
(i) the collocated space;
(ii) space within the cable riser, cable rack support
structure and cable vault designated by BELL ATLANTIC;
and
(iii) space within the access conduit within the riser in the
central office from the BELL ATLANTIC cable vault to the
COVAD cage.
The foregoing space requirements are more fully described in
the applicable Collocation Schedules, if any, the form of
which is attached hereto, made a part hereof and marked
Appendix A, as well as any such Collocation Schedules which
are later agreed to by the parties.
2.2.28 In connection with the collocated space made available
hereunder, BELL ATLANTIC will provide 110V A.C. power for
convenience outlets, lighting for frames, and "stumble"
lighting in the collocated space (as per Bellcore NEBS
document TREOP000063). BELL ATLANTIC will also provide 48 volt
battery-backed D.C. power for COVAD's equipment. The charges
for these items are listed in each Collocation Schedule.
Notwithstanding BELL ATLANTIC's obligation herein to provide
"stumble" lighting only, COVAD shall be entitled to receive
from BELL ATLANTIC the same level of any greater illumination
which BELL ATLANTIC may provide to any other
Telecommunications Carrier at the Collocation Premises.
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2.2.29 In the event COVAD occupies more than one collocated space
location within the same BELL ATLANTIC Collocation Premises,
COVAD will be permitted to interconnect its equipment
contained in such collocated spaces. At these BELL ATLANTIC
Collocation Premises, for noncontiguous collocated spaces BELL
ATLANTIC will provide to COVAD, at COVAD's expense, (i) cable
racking between COVAD's collocated space locations using BELL
ATLANTIC designated supporting structures, and (ii) connecting
cable installation. BELL ATLANTIC will provide the most direct
collocated space connection route possible. For contiguous
collocated spaces, COVAD will be responsible for supplying and
installing the cabling and cable racking between such COVAD
collocated space locations using BELL ATLANTIC designated
support structures.
2.2.30 COVAD shall be permitted to place in collocated space storage
cabinets, cross connect frames and work surfaces (e.g.,
tables). However, in no event shall COVAD place flammable or
hazardous materials in the collocation space. To help ensure
the availability of sufficient space for other
interconnectors, the storage cabinets and work surfaces shall
not take up more than 50% of collocated space and shall meet
BELL ATLANTIC central office environmental standards (NIP
74165 BELL ATLANTIC Central Office Environmental
Requirements), in effect at the time of COVAD's equipment
installation and as they may be modified from time to time,
copies of which will be provided (including all updates), to
COVAD at cost. COVAD shall be provided with a reasonable
period of time after receipt of NIP 74165 updates to comply
with their terms. COVAD will provide, install and maintain in
collocated space any repeaters which may be necessary as a
result of the physical distance between collocated space and
the office premises terminations of the BELL ATLANTIC network.
BELL ATLANTIC will employ the same procedures, aimed at
minimizing this distance, as it does in conjunction with its
own equipment.
2.2.31 All equipment permitted to be placed within COVAD's Collocated
Space shall comply with Bellcore Network Engineering Building
System (NEBS) General Equipment Requirements (TREOP000063),
the National Electric Code and Bellcore safety standards,
including GR-1089, in effect at the time of installation
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and as they may be modified from time to time. COVAD shall be
provided with a reasonable period of time after any update of
said standards, to comply with its modified terms.
2.2.32 COVAD's equipment and installation of COVAD's equipment shall
comply with the BELL ATLANTIC Information Standards for
Central Office Installation and Removal Procedures (NIP74160)
and with BELL ATLANTIC Workmanship Requirement Profile, and
BELL ATLANTIC's central office engineering environmental
standards (NIP74165), in effect at the time of installation,
and as they may be modified from time to time, as they relate
to fire, safety, health, environmental, and network
safeguards, copies of which will be provided (including all
updates), to COVAD at cost. COVAD shall have the right to
exceed the standards. COVAD shall be provided with a
reasonable period of time after receipt of any NIP74160, 74165
updates, to comply with their terms.
2.2.33 COVAD's facilities shall be placed, maintained, relocated or
removed in accordance with the applicable requirements and
specifications of the current editions of the National
Electrical Code (NEC), the National Electrical Safety Code
(NESC) and rules and regulations of the Occupational Safety
and Health Act (OSHA), and any governing authority having
jurisdiction in effect at the time of installation and as they
may be modified from time to time. All COVAD entrance
facilities and splices shall comply with Bellcore Generic
Specification for Optical Fiber and Optical Fiber cable
(TRTSY00020), Cable Placing Handbook (NX620020912NY), Cable
Splicing Handbook (NX620020911NY), Cable Maintenance Handbook
(NX620020913NY), and General Information Tools and Safety
(NY620020910NY) in effect at the time of installation, and as
they may be modified from time to time, as they relate to
fire, safety, health, environmental safeguards or interference
with BELL ATLANTIC services or facilities, copies of BELL
ATLANTIC documents will be provided (including all updates),
to COVAD at cost. The COVAD collocated space equipment shall
also comply with BELL ATLANTIC's central office engineering,
environmental and transmission standards in effect at the time
of installation as they may be modified from time to time, as
they relate to fire, safety, health, environmental safeguards,
or interference with BELL ATLANTIC services or facilities.
Where a difference in specification may exist, the more
stringent shall apply. COVAD's facilities shall
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not physically, electronically, or inductively interfere with
BELL ATLANTIC's or other interconnectors' or tenants'
facilities. COVAD shall have the right to exceed any of the
foregoing standards or technical requirements. With respect to
the foregoing BELL ATLANTIC standards documents which have
been updated and provided to COVAD, COVAD shall be provided
with a reasonable period of time after receipt of such updates
to comply with their modified terms. Insofar as the NEC, NESC
and OSHA requirements are concerned, COVAD shall be provided
with a reasonable period of time after updates to those
requirements, to comply with their modified terms.
2.2.34 While many of the standards and technical requirements for
COVAD's cable, equipment and facilities are set forth in
subsection 2.2.33 above, BELL ATLANTIC reserves the right to
reasonably specify the type of cable, equipment and
construction standards reasonably required in situations not
otherwise covered in this Agreement. In such cases, BELL
ATLANTIC will furnish to COVAD, promptly when it becomes
available, written material which will specify and explain the
required construction.
2.2.35 All work for which COVAD is responsible shall be performed by
BELL ATLANTIC authorized vendors. Such authorization will not
be unreasonably withheld or delayed.
2.2.36 BELL ATLANTIC reserves the right to prohibit all equipment and
facilities, other than cable, from its entrance manholes. No
splicing will be permitted in Manhole "O". COVAD shall provide
a length of underground fiber optic cable in Manhole "O" of
sufficient length to be pulled through the BELL ATLANTIC
central office premises conduit and into the office premises
cable vault splice location. COVAD is responsible for
placement of the cable facility within Manhole "O". COVAD is
responsible for the maintenance of the cable(s). BELL ATLANTIC
is responsible for maintaining its manholes.
2.2.37 COVAD is responsible for installing COVAD provided feeder
cable in the conduit space. BELL ATLANTIC may provide shared
conduit with dedicated inner duct. COVAD will not be permitted
to reserve space in the BELL ATLANTIC office premises conduit.
If new conduit is required, BELL ATLANTIC will negotiate with
COVAD to
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determine a further agreement to deal with the specific
location.
2.2.38 COVAD is responsible for installing and maintaining a splice
where its feeder cable meets its fire retardant inside riser
cable within the BELL ATLANTIC office premises cable vault or
designated splicing chamber; the splice in the office premises
cable vault shall be a mechanical splice, to avoid safety
hazards; no fusion splicing will be permitted. BELL ATLANTIC
will provide space and racking for the placement of an
approved secured fire retardant splice enclosure. COVAD shall
tag all entrance facilities to indicate ownership.
To avoid unnecessary reinforcements or arrangements, COVAD
agrees to size the facilities to meet three (3) year
forecasted demand, where feasible. COVAD will be accompanied
by qualified BELL ATLANTIC representatives in all manhole and
cable vault locations on a time and materials basis, as such
hourly charges are specified in applicable tariffs, including
but not limited to P.S.C. No. 900 and the Collocation
Schedule(s). COVAD will have access to all manhole and cable
vault locations as required for installation and emergency
maintenance repairs.
2.2.39 COVAD is responsible for placing its fire retardant riser
cable from the BELL ATLANTIC office premises vault to the
collocated space. COVAD is responsible for providing fire
retardant riser cables which shall comply with BELL ATLANTIC
practices and safety requirements for office premises cabling
(TRNWT000409 and National Electrical Code) in effect at the
time of installation and as they may be modified from time to
time, as they relate to fire, safety, health and environmental
safeguards, copies of which will be provided (including all
updates), to COVAD at cost. COVAD shall be provided with a
reasonable period of time after receipt of updates of the
foregoing requirements documents, to comply with their
modified terms. Within ten (10) days after BELL ATLANTIC's
confirmation of collocated space availability, BELL ATLANTIC
and COVAD will jointly determine the length of fire retardant
cable needed to reach from the splice in the cable vault to
COVAD's collocated space. Special arrangements will be agreed
upon to meet unusual conditions such as midspan splicing
requirements. BELL ATLANTIC will allocate common riser ducts
and common racking where possible. Added or special racking
rearrangements
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requested by COVAD will result in time and materials charges
as such hourly charges are specified in applicable tariffs,
including but not limited to P.S.C. No. 900 Tariff, and
Collocation Schedule(s). COVAD is responsible for all
maintenance of its communication cables. Where diverse cable
vaults permit diverse entrances into the BELL ATLANTIC office
premises by COVAD's cable, diverse, separated physically by a
minimum of six (6) feet, and where space in such diverse
entrances may be available, cable riser ducts and/or cable
racking shall be provided by BELL ATLANTIC.
2.2.40 Upon COVAD's request and where technically feasible and where
space permits, BELL ATLANTIC shall provide two (2) points of
entry to the Collocation Premises.
2.2.41 BELL ATLANTIC is also responsible for providing collocated
space in accordance with the terms in subsection 2.4 below.
COVAD will be responsible for accepting delivery, installation
and maintenance of its equipment within the collocated space.
2.2.42 COVAD may not construct substantial improvements or make
material alterations or repairs to the collocated space
without the prior written approval of BELL ATLANTIC, which
approval BELL ATLANTIC will not unreasonably withhold or
delay. Nothing herein, however, shall prevent COVAD from
making minor improvements and/or non-material alterations or
repairs to the collocated space without notice to and approval
from BELL ATLANTIC.
2.2.43 BELL ATLANTIC will designate point(s) of termination on cross
connect frames or similar devices as the point(s) of physical
demarcation between COVAD's facilities and BELL ATLANTIC's
facilities.
2.2.44 The cross connect frames where the point of termination(s) is
located will be provided at or near the collocated space.
COVAD will provide and be responsible for installing and
maintaining the connection cabling and associated cross
connections between the collocated space and the point of
termination. BELL ATLANTIC will provide and be responsible for
installing and maintaining all facilities on the BELL ATLANTIC
side of the point of termination. COVAD will pay a Maintenance
of Service Charge, as specified in BELL ATLANTIC's applicable
tariffs, including but not limited to
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P.S.C. No. 900 Tariff, whenever BELL ATLANTIC personnel are
required to identify a trouble as being on COVAD's side of the
point of termination, e.g., in the connection cabling or
associated cross connections.
2.2.45 If at any time BELL ATLANTIC determines that either COVAD's
equipment or its installation does not substantially meet the
requirements outlined in this Agreement, COVAD will be
responsible for the costs associated with the removal of
equipment or modification of the equipment or installation to
render it compliant. If COVAD fails to correct any
noncompliance with these standards within sixty (60) days'
written notice to COVAD, BELL ATLANTIC may have the equipment
removed or the condition corrected at COVAD's expense. If,
during the installation phase, BELL ATLANTIC reasonably
determines any COVAD activities or equipment are unsafe or in
violation of any applicable environmental or other laws or
regulations specified in this Agreement, BELL ATLANTIC has the
right to immediately stop the work or place it on hold.
However, when such conditions pose an immediate threat to the
safety of BELL ATLANTIC's employees, interfere with the
performance of BELL ATLANTIC's service obligations, or pose an
immediate threat to the physical integrity of the conduit
system or the cable facilities of BELL ATLANTIC, BELL ATLANTIC
may perform such work and/or take such reasonable action that
BELL ATLANTIC deems necessary without prior notice to COVAD.
The cost of said work and/or actions shall be borne by COVAD.
2.3 Technical References BELL ATLANTIC and COVAD shall comply with the
following standards:
2.3.1 Institute of Electrical and Electronics Engineers (IEEE)
Standard 383, IEEE Standard for Type Test of Class 1 E
Electric Cables, Field Splices, and Connections for Nuclear
Power Generating Stations.
2.3.2 National Electrical Code (NEC) use latest issue.
2.3.3 TANPL000286, NEBS Generic Engineering Requirements for System
Assembly and Cable Distribution, Issue 2, (Bellcore, January
1989).
2.3.4 TREOP000063 Network Equipment-Building System (NEBS) Generic
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Equipment Requirements, Issue 3, March 1988.
2.3.5 TREOP000151, Generic Requirements for 24, 48, 130, and 140
Volt Central Office Power Plant Rectifiers, Issue 1,
(Bellcore, May 1985).
2.3.6 TREOP000232, Generic Requirements for Lead-Acid Storage
Batteries, Issue 1 (Bellcore, June 1985).
2.3.7 TRNWT000154, Generic Requirements for 24, 48, 130, and 140
Volt Central Office Power Plant Control and Distribution
Equipment, Issue 2, (Bellcore, January 1992).
2.3.8 TRNWT000295, Isolated Ground Planes: Definition and
Application to Telephone Central Offices, Issue 2, (Bellcore,
July 1992).
2.3.9 TRNWT000840, Supplier Support Generic Requirements (SSGR), (A
Module of LSSGR, FRNWT000064), Issue 1, (Bellcore, December
1991).
2.3.10 TRNWT001275 Central Office Environment Installations/Removal
Generic Requirements, Issue 1, January 1993.
2.3.11 Underwriters' Laboratories Standard, UL 94.
2.4 Other Requirements
2.4.1 Intentionally Omitted
2.4.2 During the Term, as the same may be extended, COVAD may occupy
the collocated space set forth in the Collocation Schedule(s).
Occupancy for all space will be granted upon completion of the
design and construction work including "cut down" of BELL
ATLANTIC cabling at the point of termination based on the
requested interconnections identified by COVAD in its request
for collocation. In the event that BELL ATLANTIC is delayed in
providing occupancy to COVAD for any reason other than the
acts or omissions of COVAD which proximately give rise to the
delay, COVAD shall not be obliged to pay the occupancy/power
fees for such collocated space under this Agreement until the
date BELL ATLANTIC provides occupancy/power to COVAD.
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2.4.3 BELL ATLANTIC shall have the right to terminate a Collocation
Schedule at any time with respect to collocated space area of
the BELL ATLANTIC office premises which becomes the subject of
a taking by eminent authority having such power. BELL ATLANTIC
shall notify COVAD of such termination immediately after it
receives notice of the taking, and shall also identify the
schedule by which COVAD shall proceed to have COVAD's
equipment or property removed from the collocated space and
associated cable and conduit spaces. COVAD shall have no claim
against BELL ATLANTIC for any relocation expenses, any part of
any award that may be made for such taking or value of any
unexpired initial Collocation Schedule term or renewal periods
that results from a termination by BELL ATLANTIC under this
provision, or any loss of business from full or partial
interruption or interference due to any such termination.
Nothing herein shall be construed as preventing COVAD from
making its own claim against the eminent authority ordering
the taking of the collocated space area of the BELL ATLANTIC
office premises for COVAD's relocation expenses.
2.4.4 COVAD may, without cause and for its convenience, terminate a
Collocation Schedule as to any collocated space or portion
thereof (in 100 sq. ft. decrements), cable and conduit space
and D.C. power described in Appendix A by giving sixty (60)
days' prior written notice to BELL ATLANTIC. However, any
remaining collocated space licensed under this Agreement may
not be less than 100 square feet. COVAD is responsible for the
costs of any such partial termination (e.g., reconstructing
the collocated space).
2.4.5 COVAD shall have the option to renew its license to occupy any
of its collocated space and associated cable and conduit space
for the period(s) of time and on the terms and conditions to
be mutually agreed upon by COVAD and BELL ATLANTIC (the
"Renewal Period"). The Renewal Period will become the new term
of the Collocation Schedule at the time of execution of an
amendment thereto extending the period of occupancy. COVAD has
the option to further renew at the end of each Renewal Period
unless found to be in material breach of the terms and
conditions of the Collocation Schedule and this Agreement. If
agreement on renewal is not reached prior to the termination
date, and the collocated space is needed for other
interconnectors or BELL ATLANTIC, BELL ATLANTIC will so inform
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COVAD of that need and will provide COVAD with up to a three
(3) months grace period in which to renew its license. The
rates and fees applicable for that three (3) month period will
be those set forth in this Agreement or, if there shall be an
applicable tariff rate, in the applicable tariff rates,
including but not limited to P.S.C. No. 900 Tariff. If COVAD
fails to renew before the expiration of the Collocation
Schedule period of occupancy and if the collocated space is
not needed by BELL ATLANTIC or other interconnectors, BELL
ATLANTIC will permit COVAD to continue to occupy the
collocated space on a month-to-month basis for a maximum of
twelve (12) months in order to negotiate renewal terms and
conditions. The rates applicable to this month-to-month
license occupancy by COVAD shall be those set forth in this
Agreement or, if there shall be an applicable tariff rate, in
the applicable tariff rates, including but not limited to
P.S.C. No. 900 Tariff rates. COVAD's option to renew its
license to occupy the collocated space shall be contingent on
the election by BELL ATLANTIC to continue to own or lease the
premises in which the collocated space is located for the
duration of the Renewal Period(s), with such election to be
exercised at the sole discretion of BELL ATLANTIC. In no event
may any period of occupancy (including any by COVAD Renewal
Period) of any collocated space and associated cable and
conduit space extend beyond the Term (as the Term may be
extended by the Parties).
2.4.6 Intentionally Omitted
2.4.7 COVAD shall provide BELL ATLANTIC, together with a completed
Application for Collocation as described in subsection 2.2.20
above, the applicable tariff application fee for each
collocated space requested. This amount will be used to cover
the cost of the preconstruction survey and other associated
BELL ATLANTIC activities.
2.4.8 BELL ATLANTIC will process applications for collocated space
occupancy on a first-come, first-served basis as determined
through the receipt of the application fee in accordance with
the provisions of subsection 2.4.7 above.
2.4.9 After receipt of COVAD's Application for Collocation and
appropriate
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application fee(s) and upon request by COVAD, BELL ATLANTIC
will promptly make available to COVAD, at cost, any BELL
ATLANTIC-specific technical specifications and BELL ATLANTIC
office premises security rules and regulations documentation
which may be listed in this Part III. Updates to this
documentation will be furnished to COVAD when they become
available. BELL ATLANTIC and COVAD agree to work cooperatively
to develop an equipment layout (based on equipment dimension
data furnished by COVAD) that complies with the specifications
described in subsection 2.2.21.3 herein to be placed within
collocated space, in order to minimize space requirements in a
safe and economical manner. BELL ATLANTIC also agrees that,
within a reasonable period of time after BELL ATLANTIC's
acceptance of COVAD's collocation request, BELL ATLANTIC and
COVAD will conduct a walk-through of the planned COVAD cable
path. BELL ATLANTIC shall provide COVAD with sufficient
information and access to the cable path so that COVAD may
itself determine the length of cable required.
2.4.10 BELL ATLANTIC will conduct a preconstruction survey for each
COVAD request for collocated space to determine the
availability of such spaces to accommodate COVAD's facilities.
2.4.11 If COVAD shall at any point during cage construction withdraw
its request for collocated space or shall terminate this
Agreement, it shall be liable to BELL ATLANTIC for any and all
construction costs incurred as of the date of such withdrawal
or termination.
2.4.12 Intentionally Omitted
2.4.13 In the event BELL ATLANTIC determines that BELL ATLANTIC's or
any other entity's cable facilities in conduit cable spaces or
BELL ATLANTIC's office premises equipment need rearrangement
to accommodate the facilities of COVAD identified in its
Application for Collocation, BELL ATLANTIC will advise COVAD
of such proposed rearrangement, the estimated costs therefor
and, upon COVAD's agreement, include said reasonable costs in
the design and construction work charges. Best efforts will be
made to minimize the cost of such rearrangements.
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COVAD agrees to meet with BELL ATLANTIC on an as-needed basis
to review the design and construction work plans and schedules
for the collocated space, and installation of COVAD's
equipment within its collocated space.
2.4.14 Unless otherwise agreed to by the Parties in writing, the
COVAD collocated space floor plan layout agreed to by COVAD
and BELL ATLANTIC shall not be changed substantially after a
no-change freeze date which shall be mutually agreed to by the
Parties.
2.4.15 Prior to beginning installation work or occupancy, the Parties
shall sign the Design and Construction Work Completion Notice
(Appendix E) indicating acceptance of design and construction
work. BELL ATLANTIC will render a final bill to reconcile the
design and construction work estimate with actual costs when
those changes are known. Payment of the undisputed charges is
due within forty-five (45) days of receipt of the bill.
2.4.16 Before beginning any delivery, installation, replacement or
removal work for equipment and/or facilities located within
COVAD's collocated space, COVAD shall obtain BELL ATLANTIC's
written approval of COVAD's proposed scheduling of the work in
order to coordinate use of temporary areas and other building
facilities. BELL ATLANTIC may request additional information
before granting approval, and may require reasonable
scheduling changes. Such approval will not be unreasonably
withheld or delayed.
2.4.17 If BELL ATLANTIC requires that there be any acceptance testing
of COVAD's equipment installed in the collocated space, then
any and all applicable testing procedures shall be mutually
agreed to by the Parties and set forth in the applicable
Collocation Schedule.
2.4.18 COVAD shall have the right to use a portion of the BELL
ATLANTIC office premises and loading areas on a temporary
basis during COVAD's equipment installation work in the
collocated space. COVAD is responsible for protecting BELL
ATLANTIC's equipment and office premises flooring within the
staging area and along the staging route. COVAD will store
equipment and materials within collocated space when work is
not in progress (e.g., overnight). No
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storing of equipment and materials overnight will be permitted
in the staging area(s). The temporary staging area will be
vacated by COVAD and delivered to BELL ATLANTIC in broom clean
condition upon completion of COVAD's installation work,
ordinary wear and tear excepted.
2.4.19 If BELL ATLANTIC sells or leases the Collocation Premises with
collocated space or any portion thereof to a third party, BELL
ATLANTIC shall require that third party to comply fully with
the terms and conditions of this Agreement as it relates to
the provision of collocation for a minimum period of one (1)
year.
2.4.20 Within thirty (30) days of the receipt of the invoice
therefor, COVAD shall pay all reasonable charges incurred by
BELL ATLANTIC for collocation, which charges shall be based on
the applicable rates set forth in P.S.C. No. 900 Tariff.
Compensation to BELL ATLANTIC for collocation charges shall
also include (i) any special charges required as a result of
the type of equipment COVAD wishes to collocate (including any
equipment referred to in Section 2.2.4) provided that COVAD is
advised of these charges prior to their incurrence, and (ii)
any equipment required by BELL ATLANTIC to be installed in
order to prevent safety and quality problems (provided such
preventative measures are not applied in an unreasonable and
discriminatory fashion). Failure to make such payment after
notice and opportunity to cure within fifteen (15) days after
receipt of said notice, constitutes a material breach of this
Agreement.
2.4.21 Fees are exclusive of any applicable telecommunications,
utility or similar taxes. Those taxes will be applied, where
applicable. COVAD agrees to pay or reimburse BELL ATLANTIC for
any applicable taxes that are levied based on the transactions
hereunder. BELL ATLANTIC agrees to provide COVAD with
reasonable documentation to support billed amounts for taxes
within sixty (60) calendar days after receipt of COVAD's
written request.
2.4.22 The fees set forth in Appendix A are fixed for the term of the
Collocation Schedule. Fees for any Renewal Period shall be
negotiated and mutually agreed to by the Parties.
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2.4.23 The fees for design and construction work shall be paid by
COVAD in accordance with the following milestones:
Payment Milestone/Event
------- ---------------
FIRST INSTALLMENT First Installment will be paid at
(50% of total estimate) the time COVAD accepts BELL
ATLANTIC's proposal pursuant to
Section 2.2.20.1 of this Part III.
FINAL BILL Final Bill will be rendered based
(Reconciliation of upon actual costs and charges and
Fees) is payable within forty-five (45)
days of receipt of the bill, but no
sooner than BELL ATLANTIC's
completion of design and
construction work.
This payment schedule may be adjusted pursuant to section 17A
of the General Terms and Conditions of this Agreement.
2.4.24 COVAD shall reimburse BELL ATLANTIC for all repair or
restoration costs to BELL ATLANTIC's tangible office premises
associated with damage or destruction proximately caused by
COVAD's personnel, COVAD's agents, or COVAD's
suppliers/contractors or COVAD's visitors (other than BELL
ATLANTIC).
2.4.25 COVAD shall, at its sole cost and expense procure, maintain,
pay for and keep in force insurance as specified in
subsections 2.4.25.1 through 2.4.25.5 below, and underwritten
by insurance companies licensed to do business in the State of
New York having a BEST Insurance rating of at least AA-12.
BELL ATLANTIC shall be named as an additional insured on
COVAD's insurance certificate. BELL ATLANTIC shall also be
named as a loss payee (as its interests may appear) on all
applicable insurance policies required hereunder. COVAD's
agreement to provide the certificate of insurance shall
neither modify nor expand the liability limitations in this
Agreement, nor shall such agreement to insure be construed as
a pre-indemnification
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for any BELL ATLANTIC claim or demand.
2.4.25.1 Comprehensive general liability coverage on an
occurrence basis in an amount of $2 million
combined single limit for bodily injury and
property damage, with a policy aggregate of $2
million. Said coverage shall include the
contractual, independent contractors
products/completed operations, broad form property
and personal injury endorsements;
2.4.25.2 Umbrella/Excess Liability coverage in an amount of
$5 million excess of coverage specified in
subsection 2.4.25.1 above;
2.4.25.3 All Risk Property coverage on a full replacement
cost basis insuring all of COVAD's real and
personal property situated on or within BELL
ATLANTIC location(s);
2.4.25.4 Statutory Workers Compensation coverage; and
2.4.25.5 Employers Liability coverage in an amount of $2
million.
2.4.26 All insurance shall be in effect on or before the occupancy
date and shall remain in force as long as COVAD's facilities
remain within any collocated space governed by this Agreement.
If COVAD fails to maintain the coverage required by this
Agreement, BELL ATLANTIC may pay the premiums thereon and
shall be reimbursed by COVAD for said premiums which have been
paid. Any increase in insurance limits requested by BELL
ATLANTIC during a Renewal Period shall be subject to
negotiations by the Parties.
2.4.27 COVAD shall submit its evidence of insurance prior to the
commencement of the work called for in the Agreement. COVAD
shall arrange for BELL ATLANTIC to receive thirty (30) days
advance notice of cancellation from COVAD's insurance company.
Notice of any cancellation should be forwarded to New York
Telephone, 1095 Avenue of the Americas, Room 3925, New York,
New York 10036, Attention: Risk Management.
2.4.28 COVAD shall also conform to the recommendation(s) made by BELL
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ATLANTIC's fire insurance company which BELL ATLANTIC has
already agreed to or to such recommendations it shall
hereafter agree to. Any such recommendations shall be
immediately furnished to COVAD in writing, with any and all
written updates promptly provided by BELL ATLANTIC to COVAD
from time to time. COVAD shall be given a reasonable amount of
time to comply with the foregoing recommendations.
2.4.29 Failure to comply with the provisions of subsections 2.4.25
through 2.4.28 above after written notice by BELL ATLANTIC to
COVAD and an opportunity to cure said default within thirty
(30) days after receipt of said notice, will be deemed a
material breach of this Agreement.
2.4.30 Any mechanic's lien filed against the BELL ATLANTIC office
premises or the real property of which such office premises
are a part for work claimed to have been done for, or
materials claimed to have been furnished to COVAD, shall be
discharged of record by COVAD within thirty (30) days
thereafter, at COVAD's expense, by payment, deposit, bond or
court order.
2.4.31 BELL ATLANTIC may require COVAD to post a form of reasonable
performance bond or security deposit if BELL ATLANTIC
determines, in its reasonable and sole judgment, that there is
a credit risk associated with COVAD's ability to pay design
and construction work/occupancy and power fees hereunder. If
COVAD shall fail to pay any sum demanded by BELL ATLANTIC as
due under the provisions of this Part III, BELL ATLANTIC shall
have the right, without prior notice to COVAD forthwith, to
apply any or all amounts on deposit with it for collocation to
payment of the sum due, whether or not BELL ATLANTIC exercises
or has exercised any option it may have to terminate the
applicable collocation arrangement. If any such amounts are
applied to payment of sums due to BELL ATLANTIC under this
Part III, COVAD shall restore to its deposit the amounts so
applied within thirty (30) days after notice to COVAD of such
application.
2.4.32 The initial license granted to COVAD for collocated space is
subject to a minimum requirement of 100 square feet and a
maximum of 400 square feet per collocation cage. Additional
space will be provided on an as-needed basis where feasible if
COVAD's existing space is being
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"efficiently used" as defined in subsections 2.4.34 and 2.4.35
below. COVAD can request additional space in increments of 100
square feet, unless otherwise agreed to by BELL ATLANTIC, by
completing a new Application for Collocation following the
procedures described above.
2.4.33 In connection with an existing collocated space license for a
minimum of 100 square feet, COVAD has the option to reserve
either 100 square feet, 200 square feet, or 300 square feet of
space in the same BELL ATLANTIC office premises which will be
partitioned at some future date ("Reserved Space") for a
maximum total of 400 square feet per collocation cage. BELL
ATLANTIC will make best efforts to assign the Reserved Space
so that it is contiguous with the collocated space.
Reservation of space pertains only to floor space. COVAD may
not reserve cable or conduit spaces. BELL ATLANTIC will
reserve the space until such time as BELL ATLANTIC requires
the Reserved Space.
2.4.34 For purposes of this Agreement, "efficiently used" shall mean
that substantially all of the floor space (no more than 50%
used for storage cabinets and work surfaces in accordance with
subsection 2.2.32 above) is taken up by COVAD's equipment,
placed no greater than 20% above the minimum distances
permitted by NEBS.
2.4.35 If collocated space is needed to accommodate other
interconnectors or BELL ATLANTIC's service to its end-user
Customers, BELL ATLANTIC will take back from COVAD collocated
space that is not being "efficiently used" (except for 100
square feet of such space), upon ninety (90) days advance
written notice to COVAD and any opportunity for COVAD, during
this notice period to place equipment in the collocated space
so that it is "efficiently used" and not subject to being
taken back by BELL ATLANTIC. However, COVAD shall have placed
some equipment within that 100 square feet that it
interconnected to BELL ATLANTIC's network.
2.4.36 COVAD will supply BELL ATLANTIC with a list of its employees
or approved vendors who require access. The list will include
social security numbers of all such individuals. All
individuals shall be U.S. citizens.
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2.4.37 BELL ATLANTIC will issue non-employee photo identification for
each COVAD employee/vendor listed in accordance with
subsection 2.4.36 above. These cards will have a uniquely
colored background. BELL ATLANTIC will issue access cards to
each listed employee/vendor where access card systems are
available. This card will permit access to the location of
COVAD's collocated space. COVAD is responsible for returning
cards of its terminated employees/vendors. All cards shall be
returned upon termination of the applicable Collocation
Schedule.
2.4.38 Where card access is not available, a BELL ATLANTIC escort may
be required.
2.4.39 COVAD employee/vendor(s) shall display identification cards at
all times.
2.4.40 BELL ATLANTIC will provide, on a time and materials basis,
card access to COVAD's collocated space where requested by
COVAD and where access systems are available. Such time and
materials charges are set forth in Appendix A.
2.4.41 Where COVAD provides the security device for its collocated
space, COVAD will provide access for BELL ATLANTIC in the
event of an emergency and to perform its required housekeeping
and equipment inspection activities. Any housekeeping and
equipment inspection activities shall be conducted in the
presence of COVAD's representatives.
2.4.42 During the installation phase, or for subsequent maintenance,
COVAD or its approved vendor will have access to its
collocated space and any room or area required by them to
necessitate the installation. COVAD may be escorted in areas
outside its collocated space by qualified BELL ATLANTIC
employees for these occasions.
2.4.43 In the event of work stoppages, separate entrances will be
established for COVAD, where possible. This will assure that
one Party's work stoppage does not impinge upon the other
Party's normal work
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operations. Failure to provide such separate entrances shall
not render BELL ATLANTIC liable to COVAD for any claim for
damages.
2.4.44 Upon termination of COVAD's license for its collocated space
or any 100 sq. ft. portion thereof, COVAD shall remove its
equipment from that space within sixty (60) days. Upon removal
by COVAD of all its equipment from the collocated space or
portion thereof, COVAD shall restore that collocated space to
a broom clean condition, normal wear and tear and removal of
the cage excepted. Due to physical and technical constraints,
removal of cable is at BELL ATLANTIC's option.
2.4.45 Should COVAD wish to move equipment from one collocated space
to another, COVAD will be responsible for removing and
transporting its equipment to the new site and installing it.
2.4.46 Should BELL ATLANTIC need to install additional facilities in
any conduit system in which COVAD occupies conduit space for
the purpose of meeting its own service requirements or for
providing for other interconnectors, BELL ATLANTIC will, after
notifying COVAD of the additional occupancy, use its best
efforts to avoid rearrangement of COVAD's facilities, however,
if such rearrangement cannot be so avoided, BELL ATLANTIC
shall rearrange COVAD's facilities in the conduit system as
reasonably determined by BELL ATLANTIC so that the additional
facilities of BELL ATLANTIC, or other interconnectors, may
also be accommodated.
2.4.47 In an emergency, BELL ATLANTIC will use reasonable efforts to
notify COVAD, but nevertheless may rearrange COVAD's
facilities occupying a conduit, manhole, cable vault, riser
system or cable support structure without prior notification.
Such rearrangement will be at COVAD's expense to the extent
that such emergency is caused by any act or omission on the
part of COVAD, its employees, agents, or vendors. Otherwise
BELL ATLANTIC, not COVAD, will be liable for the rearrangement
expense.
2.4.48 Where COVAD intends to modify, move, replace or add to
equipment or facilities within or about the collocated space
after the first installation is complete and requires special
consideration (e.g., use of freight elevators, loading dock,
staging area, etc.), COVAD shall
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request and receive written consent from BELL ATLANTIC. Such
consent will not be unreasonably withheld or delayed.
2.4.49 COVAD will provide emergency access to its collocated space at
all times to allow BELL ATLANTIC to react to emergencies, to
maintain the space (where applicable) and to ensure compliance
with OSHA/BELL ATLANTIC regulations and standards related to
fire, safety, health, and environmental safeguards.
2.4.50 If the collocated space, cable space, or conduit space or any
part thereof shall be damaged by fire or other casualty, COVAD
shall give prompt notice thereof to BELL ATLANTIC and the
applicable Collocation Schedule shall continue in full force
and effect except as hereinafter set forth.
2.4.51 If the collocated space, cable space or conduit space is
partially damaged or rendered partially unusable by fire or
other casualty not caused by COVAD, the damages thereto shall
be repaired by and at the expense of BELL ATLANTIC. The
occupancy/power fees, until such repair shall be substantially
completed, shall be apportioned from the day following the
casualty according to the part of the collocated space, cable
space or conduit space which is usable.
2.4.52 If the collocated space, cable space or conduit space is
totally damaged or rendered substantially unusable by fire or
other casualty not caused by COVAD, then the occupancy/power
fees shall be proportionately paid up to the time of the
casualty and thenceforth shall cease until the date when the
collocated space, cable space or conduit space shall have been
repaired and restored by BELL ATLANTIC, subject to BELL
ATLANTIC's right to elect not to restore the same as
hereinafter provided.
2.4.53 If the collocated space, cable space, or conduit space is
rendered wholly unusable through no fault of COVAD, or
(whether or not the demised premises are damaged in whole or
in part) if the building shall be so damaged that BELL
ATLANTIC shall decide to demolish it or to rebuild it, then,
in any of such events, either Party may elect to terminate the
applicable Collocation Schedule by written notice to the other
given within ninety (90) days after such fire or casualty
specifying
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a date for the expiration of the said Collocation Schedule,
which date shall not be more than sixty (60) days after the
giving of such notice, and upon the date specified in such
notice the period of occupancy/Renewal Period of the
Collocation Schedule shall expire as fully and completely as
if such date were the date set forth above for the termination
of said Collocation Schedule and COVAD shall quit, surrender
and vacate the premises without prejudice however to each
Party's rights and remedies against the other under the
Agreement provisions in effect prior to such termination, and
any occupancy/power fees owing shall be paid up to such date
and any payments of license fees made by COVAD which were on
account of any period subsequent to such date shall be
returned to COVAD. Unless either party shall serve a
termination notice as provided for herein, BELL ATLANTIC shall
make the repairs and restorations under the conditions of
subsections 2.4.51 and 2.4.52 hereof, with all reasonable
expedition subject to delays due to adjustment of insurance
claims, labor troubles and causes beyond BELL ATLANTIC's
reasonable control. After any such casualty, COVAD shall
cooperate with BELL ATLANTIC's restoration by removing from
the collocated space as promptly as reasonably possible, all
of COVAD's salvageable inventory and movable equipment,
furniture and other property. COVAD's liability for
occupancy/power fees shall resume upon occupancy by COVAD or
thirty (30) days after written notice from BELL ATLANTIC that
the collocation space is restored.
2.4.54 COVAD's employees and vendors with access to BELL ATLANTIC's
servicing wire center(s) shall at all times adhere to the
rules of conduct established by BELL ATLANTIC for the
servicing wire center(s) and BELL ATLANTIC's personnel and
vendors, copies of which shall be provided to COVAD within a
reasonable period of time following receipt of COVAD's request
therefor.
BELL ATLANTIC reserves the right to make changes to such
procedures and rules to preserve the integrity and operation
of BELL ATLANTIC's network and facilities or to comply with
Applicable Laws. BELL ATLANTIC shall provide COVAD with thirty
(30) days' prior written notice of changes to the procedures
and rules to preserve the integrity and operation of the BELL
ATLANTIC network and facilities. In addition, since laws and
regulations are beyond the control of BELL ATLANTIC, BELL
ATLANTIC will provide COVAD with written notice to
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comply with Applicable Laws at the same time it notifies its
own personnel and vendors.
In the event of a BELL ATLANTIC work stoppage, COVAD's
employees, authorized agents and contractors will comply with
the emergency operating procedures established by BELL
ATLANTIC.
2.4.55 Nothing contained herein shall relieve either Party from
liability that may exist as a result of damage from fire or
other casualty caused by that Party's negligence or willful
misconduct.
2.4.56 Both Parties agree and warrant that, in the performance of
this Agreement, neither will discriminate or permit
discrimination in employment against any person or group of
persons on the grounds of sex, race, age, religion, national
origin or handicap in any manner prohibited by the laws of the
United States or any state or local government having
jurisdiction.
2.4.57 To the extent BELL ATLANTIC is not prohibited under Applicable
Laws, BELL ATLANTIC shall permit COVAD to subcontract the
construction of physical collocation arrangements with
contractors approved by BELL ATLANTIC. To the extent any such
subcontracting is permitted hereunder, BELL ATLANTIC shall
approve any contractors requested by COVAD based on the same
criteria it uses in approving contractors for its own purposes
and shall not unreasonably withhold or delay approval of such
contractors.
2.5 Virtual Collocation
2.5.1 Service Description
Virtual Collocation provides for the interconnection of BELL
ATLANTIC-provided facilities, services and unbundled Network
Elements to the network of COVAD, wherein BELL ATLANTIC exercises
exclusive physical control over the central office-based
equipment/facilities that terminate COVAD's circuits. BELL ATLANTIC
dedicates this equipment to the exclusive use of COVAD and provides
all the required installation, maintenance, and repair services
necessary to assure proper operation of virtually collocated
facilities
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and equipment. Such work will be performed by BELL ATLANTIC under
the direction of COVAD at rates and charges determined on an
Individual Case Basis, as specified in Section 2.5.8 below.
Virtual Collocation provides for the interconnection of BELL
ATLANTIC-provided facilities, unbundled Network Elements and
services to COVAD-provided fiber optic facilities without the
physical placement of the COVAD's equipment in a physical
collocation arrangement known as a multiplexing node. Virtual
Collocation will be provided by means of splicing COVAD's fiber
optic cable to a BELL ATLANTIC fiber at a splice area in the central
office designated by BELL ATLANTIC.
2.5.2 Virtual Collocation interconnection will be offered via SONET
OC3, OC12, and OC48 levels with interconnection to
service/elements at DS3, STS-1 and DS1 electrical tributaries
interconnected at DSX bays. Also available will be OC3 level
optical connections to the fiber distribution frame (FDF), and
as options or add-ons to the arrangement, dedicated DS3/DS1
and DS1/DS0 multiplexing arrangements. Such arrangements (the
appropriate mix) will be set at the time of original order and
installation.
2.5.3 Requests for connections to BELL ATLANTIC services and
unbundled Network Elements shall be processed in essentially
the same manner as a physically collocated multiplexing node.
This service is subject to the availability of space and
facilities in each central office where Virtual Collocation is
requested.
2.5.4 BELL ATLANTIC is responsible to install and maintain but not
test the transmission equipment that will be dedicated to
COVAD's use. COVAD has the responsibility to remotely monitor
and control its circuits terminating in BELL ATLANTIC's
central office, however, COVAD will not enter BELL ATLANTIC's
central office under Virtual Collocation arrangements. All
physical servicing of the virtually collocated equipment will
be performed by BELL ATLANTIC or its agents.
2.5.5 At such time that BELL ATLANTIC's tariff(s) for Virtual
Collocation
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become effective, the terms and conditions of such tariff(s),
as amended from time to time, shall control and govern the
provision of Virtual Collocation to COVAD, and the provision
of this Agreement governing Virtual Collocation shall be
rendered null and void.
2.5.6 SONET (Synchronous Optical Network) arrangements are provided
at the OC3, OC12 and OC48 bit rates.
2.5.7 Regulations
2.5.7.1 As an interconnector, COVAD provides fiber-optic
facilities through BELL ATLANTIC entrance manholes
for connection to BELL ATLANTIC facilities or
unbundled Network Elements located in a central
office, serving wire center, tandem switching
location, remote nodes, as well as all buildings or
similar structures owned or leased by BELL ATLANTIC
that house BELL ATLANTIC's network facilities.
2.5.7.2 Virtual Collocation will be offered on a first come,
first served basis. This service is subject to the
availability of space and facilities in each central
office where Virtual Collocation is requested. BELL
ATLANTIC will require a non-refundable application
fee ($2,500.00) per Virtual Collocation request, per
central office or other BELL ATLANTIC location where
COVAD wishes to establish Virtual Collocation.
2.5.7.3 COVAD may select transmission equipment from a menu
of existing approved equipment. If COVAD specifies
equipment not normally used by BELL ATLANTIC, the
Bona Fide Request procedure will be followed by
COVAD. If BELL ATLANTIC agrees to implement the
Request, special arrangements will be made to order
the requested equipment. All equipment to be
installed in BELL ATLANTIC central offices must
comply with the Bellcore Network Equipment Building
System (NEBS) Generic Equipment Requirements
(Documented in GR-000063-CORE), Electromagnetic
Compatibility and Electrical
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Safety Generic Criteria for Network
Telecommunications Equipment (GR-1089-CORE) and BELL
ATLANTIC CO environmental and transmission standards
in effect at the time of equipment installation. The
equipment must also comply with BELL ATLANTIC Digital
Environmental Requirements (NIP 74165), as they
relate to fire, safety, health, environmental, and
network safeguards. COVAD must provide BELL ATLANTIC
documentation demonstrating the above requirements.
2.5.7.4 BELL ATLANTIC reserves the right to remove facilities
and equipment from its list of approved products if
such products, facilities and equipment are
determined to be no longer compliant with NEBS
standards or Electromagnetic Compatibility and
Electrical Safety Generic Criteria for Network
Telecommunication Equipment (GR-1089-CORE).
2.5.7.5 All COVAD entrance facilities and splices must comply
with Bellcore Generic Specification for Optical Fiber
and Optical Fiber Cable (TR-TSY-00020), Generic
Requirements for Cable Entrance Splice Closures for
Copper Cable (TR-NWT-001058), Cable Entrance Facility
(CEF) and Building Planning Provisions
(BR-760-200-030) and Blue Book Manual of Construction
Procedures (SR-TAP-001421) and BELL ATLANTIC Cable
Entrance Facility Distribution Services Engineering
guidelines as they relate to fire, safety, health,
environmental safeguards and interference with BELL
ATLANTIC services and facilities.
2.5.7.6 BELL ATLANTIC will install, maintain, and repair
COVAD-designated equipment under the same intervals
and with the same failure rates for the performance
of similar functions for comparable BELL ATLANTIC
equipment. Costs for training BELL ATLANTIC
technicians will be charged to COVAD if COVAD
specifies equipment that BELL ATLANTIC does not use
in its network.
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2.5.7.7 BELL ATLANTIC shall designate a BELL ATLANTIC manhole
used to enter a BELL ATLANTIC building (known as
manhole zero) to which COVAD will run fiber optic
cable. COVAD will provide the transmission equipment
at its site outside the central office and the
associated transport fiber into manhole zero with
enough length to reach BELL ATLANTIC designated
splice area. COVAD will be responsible to pull the
fiber into and through the vault to the splice point
and mount the appropriate splice enclosure or shelf
which is provided by COVAD as specified by BELL
ATLANTIC. This point of splice, which allows outside
fiber to plenum type fiber connections, will become
the physical point of interconnection to the Virtual
Collocation arrangement.
2.5.7.8 Cabling from the physical interface point back toward
COVAD becomes COVAD's responsibility for all
servicing and COVAD maintains full ownership.
2.5.7.9 BELL ATLANTIC reserves all rights to terminate,
modify or reconfigure the provision of service to
COVAD if, in the discretion of BELL ATLANTIC,
provision of service to COVAD may in any way
interfere with or adversely affect BELL ATLANTIC's
network or its ability to service its other
Interconnectors. This shall include, but not be
limited to, splicing the COVAD-owned portion of the
cable to another BELL ATLANTIC fiber optic cable.
2.5.7.10 In the event of a transmission failure, the
obligation to determine fault location, regardless of
whether the fiber span is equipped with optical
regeneration equipment, lies with the Party
controlling the transmitting end. It is the
responsibility of the Party controlling the receiving
end to report incoming signal loss to the Party
controlling the transmitting end.
2.5.7.11 A clear distinction must be made between troubles
reported on BELL ATLANTIC services/unbundled Network
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Elements connected to the virtually collocated
equipment and reports of troubles with the collocated
equipment itself. The former can be handled using
standard BELL ATLANTIC technicians and processes. The
latter will require specially trained technicians
familiar with the collocated equipment. The latter
will be billed on a time and materials basis.
2.5.7.12 If COVAD requires a connection to BELL ATLANTIC
optical services or elements, such services and
elements will be provided an optical path from the
FDF (Fiber Distribution Frame). These
services/elements will be cross-connected at the FDF
using a transmit and receive fiber. This connection
may not be purchased by COVAD without direct
association to an offered service or unbundled
Network Element, within the terms and conditions of
that unbundled Network Element.
2.5.7.13 Virtual Collocation is available via SONET or other
suitable optical facilities with interconnection to
unbundled Network Elements at DS3, STS-1, DS1
electrical tributaries and OC3. COVAD will provide
the transmission equipment at its site and the
associated transport fiber to the BELL ATLANTIC
designated splice point in the central office.
2.5.7.14 In the event COVAD has designated transmission
equipment for its dedicated use that is not normally
used by BELL ATLANTIC, the contractual arrangement
will be made for a period of no less than five years
to be used as the useful life of the equipment in
developing rates. Terminations of the Virtual
Collocation arrangement using this specific
transmission equipment before the end of the five
year period will result in a termination charge equal
to the number of months remaining to reach five years
multiplied by the monthly rate.
2.5.7.15 If COVAD fails to pay the charges COVAD will be
subject to suspension or termination of service for
nonpayment, as
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specified elsewhere in this Agreement. Late payments
shall be subject to a monthly late charge if payment
is not received by the due date. The late charge will
be calculated based on 1.5% per month of the unpaid
amount.
2.5.7.16 Installation interval for Virtual Collocation will be
determined on an Individual Case Basis since Virtual
Collocation is dependent on the type of equipment and
particular arrangement that COVAD requests.
2.5.8 Rates and Charges
Rates and Charges are determined on an Individual Case Basis
(ICB) after receipt of an application fee as specified in Part
IV. The application fee will be applied to the non-recurring
fees for the arrangement if COVAD accepts and proceeds with
the arrangement.
3. Rights of Way
BELL ATLANTIC shall provide to COVAD access to its rights of way ("ROW"),
conduits, ducts and pole attachments on the terms and conditions
including, without limitation, prices, consistent with the terms and
conditions in its current license agreements ("License Agreements"). BELL
ATLANTIC agrees to abide by the Commission's decision in Case No.
95-C-0341 with respect to access by COVAD to BELL ATLANTIC's ROW,
conduits, ducts and pole attachments and shall, to the extent required by
the Commission in that decision, amend such License Agreements and
applicable tariffs.
4. Dark Fiber
BELL ATLANTIC shall not be required to provide or lease dark fiber (i.e.,
fiber optic transmission facilities that are deployed but are not equipped
at either end with electronics and are not in use).
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Exhibit A to Part III
1. Physical Collocation Turnover Failure
Pursuant to Part III Section 2 for Collocation, COVAD shall order physical
collocation space and BELL ATLANTIC shall provide such space. Subject to
the limitations set forth in subsection (3) below, if BELL ATLANTIC fails
to turnover a physical collocation space in accordance with the
installation intervals specified in Part III Section 2 ("Turnover
Failure") and such Turnover Failure continues beyond 120 business days
from the Start Date, BELL ATLANTIC shall credit COVAD five hundred U.S.
dollars ($500) per business day beginning on the 121st business day from
the Start Date. Such credits shall continue until BELL ATLANTIC provides
the turnover of the physical collocation space. In the event the total
credit for the Turnover Failure of any particular collocation space
exceeds the cumulative payments that COVAD has paid to BELL ATLANTIC for
that collocation space, those credits will not be applied until COVAD's
payments for that collocation space exceed the credit for the delayed
turnover of that particular collocation space. Notwithstanding the
foregoing, at no time shall the total credit exceed 30% of the total
nonrecurring charges for the particular physical collocation space.
2. Joint Planning and Forecasts
The Parties agree to work cooperatively to forecast, plan and administer
COVAD's collocation space requirements. Within 60 days of the Effective
Date of this Agreement, COVAD shall submit a one year forecast of its
collocation space demand including a prioritization of such demand by
location, the space required and the general characteristics of the
physical collocation space required (including power requirements,
equipment to be placed in the collocation space and the types and
quantities of terminations). COVAD shall update its forecast quarterly
thereafter. Initially, the Parties shall meet within 90 days of the
Effective Date of this Agreement to review COVAD's forecast and undertake
joint planning for collocation. Thereafter, the Parties shall meet
quarterly to review such forecasts and undertake joint planning.
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3. Limitations
The following limitations shall apply to the credits set forth in
subsection (1):
a) If BELL ATLANTIC's Turnover Failure is caused, directly or
indirectly, by a Delaying Event, the installation intervals shall be
extended twice as long as the Delaying Event was in effect. A
"Delaying Event" means (i) a failure by COVAD to perform any of its
obligations set forth in this Agreement; (ii) any delay , act or
failure to act by COVAD or its customer, agent, vendor, affiliate,
representative or subcontractor; (iii) any Force Majeure Event; or
(iv) such other delay, act or failure to act upon which the Parties
may agree.
b) If COVAD submits more than one (1) collocation application in any
one day, the Start Date shall be that date for the first collocation
application submitted on that date. The Start Date for each
successive collocation application submitted on that date shall be
the next business day following the Start Date for the immediately
preceding application. By way of example only, if COVAD submits
three applications on January 1, the first Start Date will begin on
January 1, the second on January 2 and the third on January 3.
c) Credits will only apply to the first ten (10) physical collocation
applications submitted in any one month, provided that credits will
not apply to more than five (5) physical collocation applications
submitted in that month for Collocation Premises with insufficient
conditioned collocation space.
d) If at any time COVAD has ten (10) or more collocation spaces which
have not become materially operational ("Non-Operational Cages")
within a period of sixty (60) business days from the date on which
BELL ATLANTIC completed such collocation spaces, then, for each day
that the number of Non-Operational Cages exceeds nine (9) cages,
COVAD shall waive one day's credit for any Turnover Failure relating
to any collocation application in progress or completed during the
period that the number of Non-Operational Cages exceeded nine (9)
cages. For purposes of this Agreement, "materially operational"
means that COVAD has installed all necessary equipment in the
collocation space and has ordered the necessary services from BELL
ATLANTIC within the appropriate time frames to permit COVAD to
provide telecommunications services to its customers.
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4. Sole Remedy
In the absence of gross negligence or willful misconduct, the credit
described herein shall be the sole and exclusive remedy available for any
Turnover Failure by BELL ATLANTIC regardless of the existence or
availability of any other remedy procedure or process available to COVAD
at law or equity, and shall apply irrespective of any other determinations
made with respect to other carriers in PSC Case No. 97-C-0139.
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Appendix A
COLLOCATION SCHEDULE
CONTRACT # ___________________
CAGE # ___________________
PARTITIONED SPACE # ___________________
(ACTL #)
THIS COLLOCATION SCHEDULE IS MADE THIS ____ DAY OF _________, 19 ___, AND
SUBJECT TO ALL DEFINITIONS, TERMS AND CONDITIONS OF THE INTERCONNECTION
AGREEMENT DATED ______________, 19 ___, BETWEEN NEW YORK TELEPHONE AND
________________________________ (INTERCONNECTOR).
A. APPLICATION FEE FOR OCCUPANCY $_________
B. COLLOCATION SPACE(S) MONTHLY LICENSING FEES
NYT CENTRAL OFFICE _________________________________________________
____________________________________________________________________
FLOOR: ____________________________
RATES AND FEES - SPACES:
(AXB) MONTHLY
A B ANNUAL LICENSE
RATE AREA LICENSE FEE FEE
---- ---- ----------- -------
1. PARTI-
TIONED
SPACE _______ ________ ___________ _________
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MONTHLY
2. CABLE # OF FIBER ANNUAL LICENSE
SPACE RATE CABLES LICENSE FEE FEE
---- ---------- ----------- --------
PRIMARY ROUTE
SPACE _________ __________ __________ __________
PER CABLE PER
LINEAR(1)
FOOT _________ __________ __________ __________
ALTERNATE
ROUTE
SPACE PER
CABLE PER
LINEAR(5) FOOT _________ ___________ ___________ __________
MONTHLY
3. CONDUIT ANNUAL LICENSE
SPACE RATE* DISTANCE LICENSE FEE FEE
---- -------- ----------- -------
PRIMARY
ROUTE ___________ ___________ ____________ __________
- ----------
(1) LINEAR FOOTAGE IS COMPUTED AS THE SUM OF THE LENGTHS AS FOLLOWS:
1. HORIZONTALLY - FROM THE CABLE VAULT ENTRANCE WALL AS RUN TO THE
RISER LEADING TO THE HIGHER FLOORS IN THE BUILDING.
2. VERTICALLY - FROM THE ENTRANCE HEIGHT IN THE VAULT, AS RUN, TO THE
PHYSICAL TERMINATION AT THE POINT OF TERMINATION.
3. HORIZONTALLY - FROM THE RISER ON THE COLLOCATED INTERCONNECTOR'S
FLOOR, AS RUN, TO THE POINT OF TERMINATION.
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ALTERNATE
ROUTE ___________ ___________ ____________ __________
RATES AND
FEES- POWER ___________ ___________ ____________ __________
(AXB) MONTHLY
A B ANNUAL LICENSE
RATE AREA** LICENSE FEE FEE
---- ---- ----------- -------
4. D.C. POWER
(48 VOLT
WITH
BATTERY
BACK-UP) ___________ ___________ ____________ __________
MONTHLY
LICENSE
RATE AREA** LICENSE FEE FEE
---- ---- ----------- -------
5. EMER-
GENCY A.C.
POWER
(OPTIONAL) ___________ ___________ ____________
(5) CONDUIT RATES & DESCRIPTION
RATE 1: $ /DUCT FT./PER MONTH X 12 MONTHS = $
- -----------------------------------------------------
$_____ PER DUCT FOOT IS APPLIED WHERE THE INTERCONNECTOR'S CABLE EXCEEDS 1.1"
IN OUTSIDE DIAMETER OR WHERE THE INTERCONNECTOR HAS PLACED TWO OR MORE CABLES
WITHIN A SINGLE DUCT REGARDLESS OF SIZE.
RATE 2: $. /DUCT FT./PER MONTH X 12 MONTHS = $
- -----------------------------------------------------
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$._____ PER DUCT FOOT IS APPLIED WHERE THE INTERCONNECTOR HAS ONLY ONE CABLE IN
A DUCT AND THAT CABLE IS EQUAL TO OR LESS THAN 1.1" IN OUTSIDE DIAMETER. IN THAT
EVENT, NYT RESERVES THE RIGHT TO USE OR TO LICENSE OTHERS TO USE THE REMAINDER
OF THE USABLE SPACE WITHIN THAT DUCT.
** D.C. POWER AND EMERGENCY A.C. POWER FEES ARE DETERMINED BY THE AREA OF
PARTITIONED SPACE ABOVE.
OCCUPANCY FEE
OCCUPANCY FEE REPRESENTS THE TOTAL ANNUAL/MONTHLY LICENSE AND POWER FEES
DESCRIBED ABOVE.
$____________________ TOTAL ANNUAL $____________ TOTAL PER MONTH
TIME AND MATERIALS $ ______________
ESCORT FEE $ ______________
C. COLLOCATION SPACE(S) NON RECURRING CHARGES
1. DESIGN AND CONSTRUCTION
THIS SCHEDULE DEPICTS THE ACCOUNTING OF THE DESIGN AND CONSTRUCTION
WORK ESTIMATE FOR WORK NYT SHALL ARRANGE, MANAGE, AND PERFORM TO
EITHER CONSTRUCT OR PREPARE THE PARTITIONED SPACE, CABLE SPACE,
VAULT SPACE, AND CONDUIT SPACE FOR TURNOVER TO THE INTERCONNECTOR
FOR OCCUPANCY AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE
INTERCONNECTION AGREEMENT. THE FOLLOWING CHARGES APPLY:
TOTAL ESTIMATE FIRST INSTALLMENT
(50% OF ESTIMATE)
$ _______________ $ ________________
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2. SECURITY FEE
THE AMOUNT OF $___________ (AT THE VALUE OF SIX MONTHS OF OCCUPANCY
FEES) SHALL BE HELD BY NYT. FOR THE DURATION OF THE AGREEMENT AND
SHALL BE RETURNED TO THE INTERCONNECTOR, WITH INTEREST AS DESCRIBED
IN. AND, UPON COMPLETION OF THIS AGREEMENT LESS ANY AMOUNTS DUE AND
OWED BY THE INTERCONNECTOR AT THE TIME OF TERMINATION.
D. TURNOVER OF SPACE(S)
THE INTERVAL FOR TURNOVER OF SPACES SHALL BE IN ACCORDANCE WITH THE TERMS
OF THE INTERCONNECTION AGREEMENT.
E. TERMS
THE TERM OF THIS AGREEMENT SCHEDULE SHALL COMMENCE AS OF THE OCCUPANCY
DATE.
APPROVED BY:
_______________________________ NEW YORK TELEPHONE
(INTERCONNECTORS NAME)
_______________________________ ______________________________
NAME - TYPE OR PRINT NAME - TYPE OR PRINT
_______________________________ ______________________________
SIGNATURE SIGNATURE
_______________________________ ______________________________
DATE DATE
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NOTE:
1. THE TOTAL ESTIMATE IS BASED ON KNOWN COSTS PRIOR TO DETAILED ENGINEERING
REVIEW. A FINAL BILL WILL BE RENDERED TO RECONCILE THE ESTIMATE WITH THE
ACTUAL COSTS. NYT SHALL INFORM INTERCONNECTOR OF ANY ADDITIONAL COSTS
WHICH COULD SIGNIFICANTLY ALTER THE FINAL BILL FROM THE TOTAL ESTIMATE AS
THESE COSTS BECOME KNOWN.
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Appendix B
Application for Collocation
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Appendix C
Form of Insurance Certificate
Insurance Certificates meeting the requirements of this Agreement will be
submitted per collocation request.
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Appendix D
Technical References and Generic Criteria
for Network Telecommunication Equipment
Technical References:
GR-003 Network Equipment Building Requirements
TR-NWT-001089 - Electromagnetic Compatibility and Electrical Safety
Generic Criteria for Network Telecommunication Equipment
TR-NWT-000078 - Generic Physical Design Requirements for Telecommunications
Products and Equipment.
TR-NWT-00513 - Power & Isolated Ground Planes.
TR-NWT-000295 - Isolated Ground Planes Definition & Application to Telephone
Central Offices
NIP 74160 - BELL ATLANTIC Information Standards for Central Office Installation
and Removal Procedures.
NIP 74162 - BELL ATLANTIC Information Standards for Central Office Grounding
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Appendix E
Form of Design and Construction Work Completion Notice
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PART IV: PRICING SCHEDULE
A. UNBUNDLED NETWORK ELEMENTS
<TABLE>
<CAPTION>
FCC Element Rate Elements Rate Unit Final Rates
- -------------------------------------------------------------------------------------------
Major Rest of
LINK (Local Loop)(2) City State
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
2 Wire Analog Per Link/Mo 12.49 19.24
- -------------------------------------------------------------------------------------------
2 Wire Conditioned Per Link/Mo 21.02 28.26
- -------------------------------------------------------------------------------------------
4 Wire Analog Per Link/Mo 27.67 41.37
- -------------------------------------------------------------------------------------------
4 Wire Conditioned Per Link/Mo 98.32 112.29
- -------------------------------------------------------------------------------------------
2 Wire ADSL Per Link/Mo TBD* TBD*
- -------------------------------------------------------------------------------------------
2 Wire HDSL Per Link/Mo TBD* TBD*
- -------------------------------------------------------------------------------------------
4 Wire HDSL Per Link/Mo TBD* TBD*
- -------------------------------------------------------------------------------------------
DS3 Loop Per Link/Mo 911.00 911.00
- -------------------------------------------------------------------------------------------
DS3 Loop Mileage Per 1/4 mile/Link/Mo 20.10 20.10
- -------------------------------------------------------------------------------------------
SWITCHING Statewide
- -------------------------------------------------------------------------------------------
LOCAL
- -------------------------------------------------------------------------------------------
Local Ports
- -------------------------------------------------------------------------------------------
o Analog Line Port Port/Mo 2.50
- -------------------------------------------------------------------------------------------
o Digital Port Per DSO equivalent/Mo 2.50
- -------------------------------------------------------------------------------------------
o ISDN-BRI Port Port/Mo 11.77
- -------------------------------------------------------------------------------------------
o Dedicated. Per DSO equivalent/Mo 6.75
Digital Trunk
- -------------------------------------------------------------------------------------------
o ISDN-PRI DS1 Port/Mo 184.64
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Usage
- -------------------------------------------------------------------------------------------
o Common Trunk-Day Per MOU .000879
- -------------------------------------------------------------------------------------------
</TABLE>
- ----------
(2) Includes NID
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<PAGE>
<TABLE>
<CAPTION>
FCC Element Rate Elements Rate Unit Final Rates
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
o Common Trunk- Per MOU .000214
Even.
- -------------------------------------------------------------------------------------------
o Common Trunk- Per MOU .000095
Night
- -------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
FCC Element Rate Elements Rate Unit Final Rates
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
o Usage-Day Per MOU .003806
- -------------------------------------------------------------------------------------------
o Usage-Even. Per MOU .001837
- -------------------------------------------------------------------------------------------
o Usage-Night Per MOU .001508
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Port Additives:
- -------------------------------------------------------------------------------------------
o Centrex Per Port/Mo .45
- -------------------------------------------------------------------------------------------
o Ringmate Per Port/Mo .52
- -------------------------------------------------------------------------------------------
o Three-Way Calling Per Port/Mo .16
- -------------------------------------------------------------------------------------------
TANDEM
- -------------------------------------------------------------------------------------------
Tandem Ports
- -------------------------------------------------------------------------------------------
o Digital Dedicated Per DSO equivalent/Mo 5.28
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Usage
- -------------------------------------------------------------------------------------------
o Common Trunk-Day Per MOU .001958
- -------------------------------------------------------------------------------------------
o Common Trunk-Even. Per MOU .000476
- -------------------------------------------------------------------------------------------
o Common Trunk-Night Per MOU .000229
- -------------------------------------------------------------------------------------------
o Usage-Day Per MOU .001156
- -------------------------------------------------------------------------------------------
o Usage-Eve. Per MOU .000741
- -------------------------------------------------------------------------------------------
o Usage-Night Per MOU .000670
- -------------------------------------------------------------------------------------------
</TABLE>
146
<PAGE>
<TABLE>
<CAPTION>
FCC Element Rate Elements Rate Unit Final Rates
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
TRANSPORT ---------------------- (Source NY PSC 916 Tariff) ----------------
- -------------------------------------------------------------------------------------------
o OC-48 Rate/Mo = Fixed + Per mile 9,768 +
Charge 375.81/mile
- -------------------------------------------------------------------------------------------
o OC-12 Rate/Mo = Fixed + Per mile 4,145 +
Charge 241.21/mile
- -------------------------------------------------------------------------------------------
o OC-3 Rate/Mo = Fixed + Per mile 1,365 +
Charge 60.31/mile
- -------------------------------------------------------------------------------------------
o DS-3 Rate/Mo = Fixed + Per mile 911 + 20.10/mile
Charge
- -------------------------------------------------------------------------------------------
o DS-1 Rate/Mo = Fixed + Per mile 110 + .72/mile
Charge
- -------------------------------------------------------------------------------------------
o CO Multiplexing Per arrangement per central Per PSC No. 916
office/Mo Tariff
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Common
- -------------------------------------------------------------------------------------------
o Usage-Day Per MOU .001040
- -------------------------------------------------------------------------------------------
o Usage-Even Per MOU .000548
- -------------------------------------------------------------------------------------------
o Usage-Night Per MOU .000000
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
SIGNALING
- -------------------------------------------------------------------------------------------
Signal Transfer Point
- -------------------------------------------------------------------------------------------
o STP Port Per port/Mo 775.22
- -------------------------------------------------------------------------------------------
o Signaling Link Per DSO/Mo 31.97
- -------------------------------------------------------------------------------------------
Signaling Query
- -------------------------------------------------------------------------------------------
o 800 Service Per query .001265
- -------------------------------------------------------------------------------------------
o LIDB Service Per query .001411
- -------------------------------------------------------------------------------------------
</TABLE>
147
<PAGE>
<TABLE>
<CAPTION>
FCC Element Rate Elements Rate Unit Final Rates
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Reciprocal Local Switch - Meetpoint A
Compensation
- -------------------------------------------------------------------------------------------
o Usage-Day Per MOU .004685
- -------------------------------------------------------------------------------------------
o Usage-Even. Per MOU .002051
- -------------------------------------------------------------------------------------------
o Usage-Night Per MOU .001603
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Tandem - Meetpoint B
- -------------------------------------------------------------------------------------------
o Usage-Day Per MOU .010797
- -------------------------------------------------------------------------------------------
o Usage-Even. Per MOU .004292
- -------------------------------------------------------------------------------------------
o Usage-Night Per MOU .002731
===========================================================================================
</TABLE>
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<PAGE>
B. OTHER RATES (See Section A for unbundled Network Element Rates)
I. Reciprocal Compensation
End Office Rate ("Meetpoint A"):
Local Switching Usage Rate
+ Local Switching Common Trunk Rate
-----------------------------------
End Office Rate
Tandem Rate ("Meetpoint B"):
End Office Rate
+ Tandem Switching Usage
+ 2 Tandem Common Trunk Rates
+ Common Transport
------------------
Tandem Rate
A credit will be given for one Tandem Trunk if a dedicated tandem port is
used. Subject to provisions identified in Subsection 10.6 (g)
II. Information Services Fees
Billing and Collecting Fee (per message) = $.08
Blocking Service **
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<PAGE>
III. BLV/BLVI Traffic*
Unbundled Line Rate*
$1.00 per Busy Line Verification
$2.25 per Busy Line Verification Interrupt
IV. Transit Service
A. Transit Service
- ----------
* True-Up. With respect to the items marked with an asterisk, such items
shall, on an interim basis, be the charges currently noted in this Part IV
(the "Interim Rates"). On the earliest of the date (the "Rate
Determination Date") on which (x) any permanent rate and/or rate
structures for such items are approved or adopted by the Commission in
Cases 95-C-0657, 94-C-0095 and 91-C-1174 or other applicable effective
Commission orders, decisions, rules or regulations or (y) the Parties
shall agree to any such permanent rate and/or rate structures for such
items, the rates and/or rate structures so adopted or approved or agreed
upon (each, a "Permanent Rate") shall apply in lieu of the Interim Rates
with respect to such items. Within 90 days after the Rate Determination
Date of any Permanent Rate with respect to any item (i) if the aggregate
amounts paid by COVAD for such item under this Agreement during the period
commencing with the filing by BELL ATLANTIC of the applicable cost(s) or
rate with the Commission prior to the Rate Determination Date shall exceed
the amount which would have been payable by COVAD if the Permanent Rate
(which may be zero) had been applicable during such period, then BELL
ATLANTIC shall refund to COVAD such excess or (ii) if the aggregate
amounts paid by COVAD for such item under this Agreement during such
period commencing with the filing by BELL ATLANTIC of the applicable
cost(s) or rate with the Commission prior to the Rate Determination Date
shall be less than the amount which would have been payable by COVAD if
the Permanent Rates had been applicable during such period, then COVAD
shall pay such deficiency to BELL ATLANTIC. This Part IV shall be amended
to reflect the determination of Permanent Rates for any given items.
The prices marked with a double asterisk will, on an interim basis, be
zero, subject to true-up, if any, in accordance with the provisions of the
preceding paragraph once Permanent Rates, if any, have been established.
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<PAGE>
Rate = Sum of applicable tandem switching usage rate and any
additional tandem common trunk or tandem port charges rates in
Section A of this Part IV.
B. Dedicated Transiting Service: Cage to Cage
Two times the appropriate Service Access Charges as set forth in
applicable tariffs.
V. Interim Number Portability
As per the P.S.C. 914 Tariff. Terminating IXC access charges shall be
shared as required by the Commission between BELL ATLANTIC and COVAD
pursuant to meet-point billing arrangements between the Parties using
special estimated studies until such time as actual meet-point billing
records are available.
VI. IntraLATA 800
A. Reciprocal Compensation (refer to I above).
B. Compensation for records exchanged per record (see Section XI.B.1).*
C. 800 Database inquiry: $.001265 per database inquiry.
VII. Intentionally Omitted
VIII. 911/E911 Interconnection
A. Monthly Rate = $252 per month for an unequipped DS1 Port and $100
per month per voice grade trunk activated and equipped on the DS1
port.*
B. $.05 per line per month for UNE switched lines.*
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<PAGE>
IX. [Intentionally Omitted]
X. Directory Assistance and Operator Services-Network Elements
. (A) Directory Assistance Services
(1) Directory Assistance
Per Request
-----------
Each Request for Information per one telephone
number, with BELL ATLANTIC branding $0.39
Each Request for Information per one telephone
number, with COVAD branding $0.39
Each Request for Information per one telephone
number, without branding $0.33
Branding surcharge per call (if applicable) $0.06
(2) Directory Assistance Call
Completion (DACC) #:
Each Request for Information per one telephone
number, with COVAD branding or with BELL ATLANTIC
branding plus call completion $0.58
Each Request for Information per one telephone
number, without branding plus call completion $0.52
DACC Surcharge per call $0.19
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
(3) Record Charges
EMR format - per record charge $.0102
(4) Direct Access to Directory Assistance (DADA)
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<PAGE>
Monthly Access Charge $4000
Each Search Request $0.038
Rate
----
(B) Inward Operator Services#
(1) BLV, Per work second $0.02
(2) BLV/I, Per work second $0.02
(3) Branding surcharge, per call
(if applicable) $0.06
(C) 0+/Mechanized Operator Calls #
(1) Calling Card, Per request $0.125
(2) Collect, Per request $0.159
(3) Third Number, Per request $0.159
(4) Branding surcharge, per call
(if applicable) $0.06
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
(D) 0- Operator Handled Calls #
(1) Per work second $0.015
Plus
(2) Collect & Bill to Third Number,
Per request $0.007
(3) Branding surcharge, per call
(if applicable) $0.06
# These rates are in addition to the UTTC, TTSC & UNRCC or UCRCC charges.
(E) Operator Emergency Bulletin Service,
Per 132 LATA bulletin, per year $81.18
Recurring Non-recurring
--------- -------------
(F) TOPS Trunk Ports $524.88 $315.06
Service Access Charge,
Per TOPS Port $4.31 N/A
(G) IOF mileage for Dedicated Trunk $110.00 $525.00
Transport
Mileage charge, per mile per month $0.72
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<PAGE>
Day Evening Night
--- ------- -----
Shared Trunk Port
- per MOU $0.000879 $0.000214 $0.000095
Unbundled Local Switching
- per MOU $0.003806 $0.001837 $0.001508
Unbundled Tandem Transport (UTTC)
- per MOU $.001040 $.000548 $.00000
Tandem Transit Switching (TTSC)
- per MOU $0.006472 $0.003093 $0.002528
Telephone Company Reciprocal
Compensation (UNRCC)
- per MOU $0.006085 $0.003451 $0.003003
TC Reciprocal Compensation (UCRCC)
- per MOU $0.006085 $0.003451 $0.003003
XI. Miscellaneous and Non-Recurring Charges
A. Unbundled Network Elements
1. Switch Port Additives
SMDI (per month) - $30.00 per port plus,
if transport is ordered,
$33.39 plus $3.89
per mile*
2. Non-Recurring Charges
SVGAL - $82.05 per line*
$85 per dispatch as required*
NID - $85 per dispatch*
Trunk Installation - $288 per DS1*
Service Order Charge - $105 per order*
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<PAGE>
Engineering Charge - $80 per order*
Expedited Trunk
Installation - **
Expedited Service
Order Charge - **
Expedited Engineering
Charge - **
Engineering Labor
Rate - **
Translations Engineer
Labor Rate - **
Service Represen-
tative Labor Rate - **
Technician Labor
Rate - **
Testing & Other
Labor Rate - **
SS7 Point Code
Change - $136.87 per first point code*
$15.80 each additional*
Dispatch-In (false) - $59 per dispatch*
Dispatch-Out (false) - $147.06 per dispatch*
ADSL or HDSL Non-Recurring Charges TBD*
B. Miscellaneous
1. Call Usage Detail Service:
Record Processing (all records) $0.00429 per record*
Data Transmission - UNE **
Tape Cartridge - UNE **
2. Emergency Bulletin Service:
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<PAGE>
NYT $3000 per initial data plus
$250/monthly update*
3. Intentionally Omitted:
4. Operations Systems Access:
Per Transaction Charge - **
Monthly Data Access - **
Operations Support Charge - per MOU $.0014*
(Single charge per MOU for any single
element)
5. Other
Record Change Charge - **
Duplicate Bill Charge - $.12/page(paper),$14/disk,*
$15.96/tape*
$.0015/record*
Data Entry Search - **
Call Blocking - **
Design Change Charge - $113.98 per order*
AIN Query Launch Charge - **
New Rate Elements, OSS and Databases **
Special Construction/ICB requests - **
6. Intentionally Omitted
XII. A. Collocation*3
1.Cage - 1st 100 ft. - per P.S.C. 900 Tariff
- ----------
(3) Including conditioning charges.
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<PAGE>
2. Cage - Add. ft. - per P.S.C. 900 Tariff
3. Cable Space - per P.S.C. 900 Tariff
4. Space - per P.S.C. 900 Tariff
5. Basic DW Power - per P.S.C. 900 Tariff
6. Additional Power - Individual Case Basis
7. Application Fee per P.S.C. 900 Tariff
B. Virtual Collocation
Application fee: $2,500.00
Other Charges: ICB
XIII. Customized Routing/Network Design Request
Unbundled Network Elements - Individual Case Basis
Prices for non-standard offering will be on an Individual Case Basis.
XIV. Alternate Billed Calls
Billing and Collection Fee - $.05 per call
XV. NID $.58 per month*
XVI. Branding
914 Branding Fee $.05 per message*
XVII. Additional Charges:
Additional charges which are filed with the Commission shall apply, at a
zero rate, on an interim basis. Such charges shall be trued-up as
specified in this part IV, Section B, footnote entitled "True-Up."
Provided, further, that, if any rate element is a duplicate of a rate
element identified by a single asterisk in this Part IV, Section B, BELL
ATLANTIC may assess the charge identified by the single asterisk, rather
than a zero charge.
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<PAGE>
XVIII. Electronic Copies
Electronic copies of SAG TBD
Electronic copies of NPA-NXX Features & Facilities TBD
RATE APPLICATION RULES
1. General
(a) Rates for elements, services or activities not listed in this Part
IV shall be applied pursuant to tariffs or Commission approved rates
(subject to any appropriate cost methodology, for unbundled Network
Elements and other services) or, if there shall not be a tariff or
Commission approved rate covering such elements, services or
activities, such rates as the Parties shall agree. Such rates shall
be applied as of the date of filing or submission of the proposed
rates with the Commission, subject to true-up back to the date of
such submission or filing. For those unbundled Network Elements and
other services required to be provided by BELL ATLANTIC pursuant to
Section 251 of the Act, the rates for such unbundled Network
Elements and services shall be in accordance with the Act and
applicable effective decisions, orders, rules and regulations of the
Commission. Nothing in this subparagraph shall be construed as a
waiver by COVAD of its right to contest proposed rates in
appropriate proceedings before the Commission.
(b) Those rates set forth in Part IV that are marked with a double
asterisk are interim rates and no provision in these Rate
Application Rules is intended to limit, nor shall any such provision
be deemed to limit, the right of
153
<PAGE>
COVAD to challenge before the Commission the imposition of a
tariffed rate other than zero with respect to such item or the right
of BELL ATLANTIC to seek approval from the Commission of a tariffed
rate other than zero with respect to such item.
(c) If either Party cannot measure time of day for purposes of rendering
its bill to the other Party the other Party will, upon request (to
the extent possible), provide verifiable time of day factors to the
billing Party for use in rendering its bill.
(d) Day, evening, and night shall be defined as provided in the P.S.C.
915 Tariff for Local Services and in the P.S.C. 914 tariff for all
other services and elements provided under this Agreement.
(e) Billable traffic exchanged pursuant to this Agreement shall be
measured for terminating usage charges in actual conversation
seconds, where available, and measured for originating usage charges
in actual access seconds. Access seconds include conversation
seconds plus a non-conversation time additive, which includes the
message attempts ("NCTA"), consistent with current practices. Where
the originating usage measured contains only conversation seconds,
the Parties will agree on a methodology to convert and bill in
access seconds, which will include an NCTA. The Parties shall agree
on the calculation of the NCTA. The total conversation seconds and
access seconds per chargeable traffic types shall be totaled for the
entire processing cycle and then rounded to the next higher whole
minute.
(f) The terms and provisions of this Part IV and of Attachment 6,
including, without limitation, the rates for unbundled Network
Elements provided, shall be subject to, and interpreted in all
respects consistently with, the applicable call flows diagram(s)
annexed hereto as Exhibit A (the "Call Flows Diagrams").
2. Reciprocal Compensation
(a) Charges for Reciprocal Compensation shall be billed in accordance
with Attachment 6. Reciprocal Compensation for the termination of
this traffic shall be charged at rates specified in Part IV to this
Agreement.
(b) In lieu of the Reciprocal Compensation arrangement referred to above
and where permitted by state law or Commission regulation or order,
the
154
<PAGE>
parties may mutually agree to adopt a bill and keep compensation
arrangement or such other mutually agreed upon compensation
arrangement.
(c) Reciprocal Compensation shall be priced depending on whether the
traffic terminates at the carrier's end office ("Meetpoint A") or at
the carrier's tandem point of interconnection ("Meetpoint B").
(d) Where either Party uses a single trunk to carry Reciprocal
Compensation Traffic and other types of traffic, such Party shall
provide the other Party with verifiable factor(s) identifying the
percentage(s) of such different traffic types which shall be used to
determine the number of minutes of that trunk group that will be
charged at each applicable rate. Factors may be updated as
appropriate not more often than quarterly by the Party providing
such factors to reflect the actual mix of traffic.
3. Unbundled Network Elements
(a) "BELL ATLANTIC Shared Transport Rate" shall be the blended rate of
common direct transport and common transport through tandem switched
arrangements, as described in Exhibit A to this Part IV.
(b) "Call Usage Detail Service" rates for record processing, data
transmission and tape cartridge (as specified in Section XI.B of
this Part IV) shall apply for end-user call-detail records
transferred.
(c) When the unbundled Local Switching Network Element is provided,
COVAD shall pay rates in this Part IV for the appropriate line port
charge, the appropriate local switching usage charge, and the
appropriate local switching common trunk charge, based on time of
day, where applicable.
(d) When the unbundled Tandem Switching Network Element is provided,
COVAD shall pay rates in this Part IV for the appropriate tandem
switching usage and appropriate tandem trunk or port charges, based
on time of day, where applicable.
(e) Unbundled Local Switching Network Elements and Tandem Switching
Network Elements do not include the price for STP usage charges,
155
<PAGE>
CENTREX, Ring-Mate or Three-Way Calling, which will be charged
separately.
(f) Where COVAD provides its own loops to the integrated digital line
port, the integrated digital line port, dedicated local switch trunk
port and dedicated tandem trunk port rates can be derived by
multiplying the Local Switching Digital Line Port, Local Switching
Digital Trunk Port and Tandem Switching Digital Trunk rates by a
factor of nineteen (19), respectively.
(g) To the extent COVAD orders multiplexers to complete service at a
level different from the dedicated transport level ordered, separate
multiplexer rates shall apply.
(h) Overflow billing from dedicated switching will be billed as BELL
ATLANTIC Shared Transport. Where actual overflow MOU cannot be
determined, BELL ATLANTIC will bill based on an estimate of overall
traffic, as calculated in a special study with respect to overflows.
The methodology for such special study shall be developed jointly by
the Parties.
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<PAGE>
4. Transient Tandem Process and Pricing
(a) COVAD may use BELL ATLANTIC's tandem switch to terminate COVAD local
traffic on other local carriers' networks where such local carriers
are connected to the same BELL ATLANTIC tandem, or to receive local
traffic originating on such other local carriers' networks. This
local traffic will route between local carriers through BELL
ATLANTIC's tandem switch. When COVAD is the originating carrier
terminating calls to another carrier, COVAD shall be responsible for
paying BELL ATLANTIC for tandem switching, except to the extent that
COVAD has already paid for tandem switching via the BELL ATLANTIC
Shared Transport rate, plus a blended charge which reflects a pass
through of monthly Reciprocal Compensation terminating local carrier
charges paid by BELL ATLANTIC to the terminating local carrier that
is based upon actual local carrier rates in effect for terminating
compensation from the previous month multiplied times actual minutes
of use for the given month. Since the charges for each month are
calculated using actual rates from the previous month, the initial
month under this Agreement will be estimated and based upon a local
study. Parameters will be developed to insure that if actuals are
collected in the month succeeding the initial month which differ
from the estimated value by more than two thousand dollars, BELL
ATLANTIC will credit COVAD for that amount which COVAD has overpaid
or COVAD will pay BELL ATLANTIC for that amount which COVAD has
underpaid. The prices for transient tandem switching, including all
applicable associated operations support charges, are set forth in
this Part IV.
(b) When COVAD is the terminating carrier using its own (not unbundled
Network Element) switching facilities, BELL ATLANTIC shall pay COVAD
all terminating Reciprocal Compensation for local and toll based
upon actual minutes of use and rates in effect for that month. The
Parties will work cooperatively on billing disputes and
uncollectible issues.
5. Links
To the extent COVAD orders a transmission interface at a level different
from the level provided for the unbundled Link type ordered, separate
multiplexer rates shall apply. When COVAD orders IDLC Links, additional
charges may apply as set forth in Section 2.9.1(a) and (g) of Part II to
this Agreement.
6. Intentionally Omitted
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<PAGE>
7. Information Services
Information Services (e.g., "976" calls). For information services, the
Party ("Originating Party") shall bill and collect such information
provider charges and remit an amount equal to such charges to the Party
("Terminating Party") to whose information platform the Information
Services Traffic terminated less the Information Services Billing and
Collection Fee set forth in Part IV. Except for Local Services Calls, upon
request by the Terminating Party, the Originating Party shall provide
originating call detail in unrated EMR format to the Terminating Party, at
the charges specified in Part IV. Where such originating call detail is
received, the Terminating Party shall provide the Originating Party with a
rated record. The Originating Party shall pay the Terminating Party in
full regardless of uncollectible items; provided, however, for each of its
Customer's lines COVAD shall receive the forgiveness policy of two credits
for each customer line after which: a)when the Originating Party provides
its own local switch, the Originating Party will block all such
Information Services calls originated by its Customer, b) when COVAD
provides service via unbundled Network Elements or through resold Local
Services, COVAD will request blocking and BELL ATLANTIC will provide
blocking service at the prices set forth in Part IV. If COVAD provides its
own Information Services, and BELL ATLANTIC buys such services, COVAD will
provide to BELL ATLANTIC the same forgiveness policy, if any, that it
applies to its customers.
BELL ATLANTIC and COVAD will work cooperatively to share Customer
information regarding forgiveness for Information Services calls.
As requested by the Terminating Party, the Originating Party will provide
information required by the Terminating Party to process the Originating
Party's adjustment.
If, based upon review of adjustments related to Information Services
forgiveness, the Terminating Party observes Originating Party adjustments
that are greater than normal, the Terminating Party may request that the
Originating Party share its adjustment information with the Terminating
Party related to the Customer account in question to indicate the number
of Information Services adjustments related to forgiveness that the
Originating Party has processed for the account in question. If, after a
review of these records, the Originating Party has processed more
incidences of forgiveness than the forgiveness policy permits for the
account in question, the Originating Party will reimburse the Terminating
Party for forgiveness incidences that the Originating Party processed that
would give the Customer more than the number of forgiveness incidences
permitted, if the Terminating Party can demonstrate that the Terminating
Party, or another carrier, notified the Originating Party of the
Customer's forgiveness history prior to the Customer migrating to the
Originating Party.
158
<PAGE>
159
<PAGE>
EXHIBIT A TO PART IV
LOCAL AND TOLL CALL FLOWS AND INTERCARRIER BILLING IN THE
COMPETITIVE TELECOMMUNICATIONS ENVIRONMENT
This Exhibit A covers those call flows and billing 1) between BELL ATLANTIC
(hereinafter referred to as ILEC) and COVAD (hereinafter referred to as COVAD
UNE), 2) between two CLECs (one of which is COVAD), and 3) between COVAD UNE and
interexchange carriers (IXCs). These call flows cover scenarios when the CLEC
provides service to end users 1) through total service resale (TSR), 2) through
the unbundled network elements (UNE), or 3) through facility based networks
(FBN).
This Exhibit A covers the call flows, UNE rate applications and billing for each
of the following call types:
Local Calls, Intra-Switch
Local Calls, Inter-Switch
Toll Calls, IntraLATA
Toll Calls, Intrastate (InterLATA)
Toll Calls, Interstate (InterLATA)
Local 800 Calls
Notwithstanding any references to TSR or Local Services in this Exhibit A,
nothing in this Exhibit A shall govern or otherwise affect the terms and
conditions of Local Services.
Flat rated, monthly recurring charges and non-recurring UNE charges for
switching and the Local Loop are not noted in these descriptions because they
are not dependent on the call flows. Signaling and STP charges are not covered
in this Exhibit A. Such charges shall be applied pursuant to Part IV of this
Agreement.
COVAD shall bill all IXCs in accordance with the terms set forth in Call Flow
Diagrams 21-28; provided, however, that at COVAD's option, the Parties shall
negotiate in good faith to reach agreement on a billing and collection
arrangement under which BELL ATLANTIC would perform local transport usage
billing to interexchange carriers on COVAD's behalf.
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<PAGE>
161
<PAGE>
PART V: INTERCONNECTION
Except for Reciprocal Compensation arrangements which shall be determined
exclusively by the terms and conditions of this Agreement, BELL ATLANTIC shall
provide COVAD with interconnection services pursuant to the N.Y. P.S.C. No. 914
Tariff, as amended from time to time. The Parties shall compensate each other
for transport and termination of Reciprocal Compensation Traffic in an equal and
symmetrical manner at the rates provided in Part IV.
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<PAGE>
ATTACHMENT 1: DEFINITIONS
Definitions
"AAA" means American Arbitration Association.
"Act" or "Telecommunications Act" means the Communications Act of 1934 (47
U.S.C. 153(R)), as amended by the Telecommunications Act of 1996, and as from
time to time interpreted in the duly authorized rules and regulations of the FCC
or a Commission within its state of jurisdiction.
"Asymmetrical Digital Subscriber Line" means a transmission technology which
transmits an asymmetrical digital signal using one of a variety of line codes as
specified in ANSI standards T1.413-1995-007R2.
"As Defined in the Act" means as specifically defined by the Act and as from
time to time interpreted in the duly authorized rules and regulations of the FCC
or the Commission.
"As Described in the Act" means as described in or required by the Act and as
from time to time interpreted in the duly authorized rules and regulations of
the FCC or the Commission.
"Automatic Number Identification" means a Feature Group D signaling parameter
which refers to the number transmitted through a network identifying the billing
number of the calling party.
"Branding" means the initial identification by the BELL ATLANTIC OSDAS automated
system responding to a COVAD end-user call, of the local service provider for
such end user. Additionally, BELL ATLANTIC operators or automated systems shall
not provide any conflicting brand for such OSDAS calls.
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"BRI-ISDN" means 2-Wire ISDN-Compatible Digital Loop.
"Calling Party Number" is a Common Channel Interoffice Signaling ("CCIS")
parameter which refers to the number transmitted through a network identifying
the calling party.
"CCS" means one hundred (100) call seconds.
"Central Office Switch" means a switch used to provide Telecommunications
Services, including, but not limited to:
(a) "End Office Switches" which are used to terminate Customer
station Links for the purpose of interconnection to each other and to
trunks; and
(b) "Tandem Office Switches" which are used to connect and switch
trunk circuits between and among other Central Office Switches.
A Central Office Switch may also be employed as a combination End
Office/Tandem Office Switch.
"CLASS features" means certain CCIS-based features available to Customers
including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification; Call Return and future CCIS-based offerings.
"Commission" or "PSC" means the New York Public Service Commission.
"Common Channel Interoffice Signaling" means the signaling system, developed for
use between switching systems with stored-program control, in which all of the
signaling information for one or more groups of trunks is transmitted over a
dedicated high-speed data link rather than on a per-trunk basis and, unless
otherwise agreed by the Parties, the CCIS used by the Parties shall be SS7.
"Cross Connection" means a connection provided at the digital signal cross
connect, Main Distribution Frame or other suitable frame or panel to another
suitable frame, panel or piece of equipment.
"Customer" means a third-party residence or business end user subscribing to
Telecommunications Services provided by either of the Parties.
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"Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
"Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal in the
time-division multiplex hierarchy.
"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.
"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.
"Direct Customer Access Service" is an electronic interface system provided by
BELL ATLANTIC to facilitate the ordering, provisioning and maintenance of
various interconnection arrangements.
"Exchange Access" is As Defined in the Act.
"Exchange Message Record" means the standard used for exchange of
Telecommunications message information among Telecommunications providers for
billable, nonbillable, sample, settlement and study data. EMR format is
contained in Bellcore Practice BR-010-200-010 CRIS Exchange Message Record.
"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.
"High-Bit Rate Digital Subscriber Line" means a transmission technology which
transmits up to a DS1-level signal, using any one of the following line codes: 2
Binary / 1 Quartenary ("2B1Q"), Carrierless AM/PM, Discrete Multitone ("DMT"),
or 3 Binary / 1 Octel
("3B1O").
"Information Service Traffic" means Local Traffic or IntraLATA Toll Traffic
which originates on a Telephone Exchange Service line and which is addressed to
an information service provided over a Party's information services platform
(e.g., 976).
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"Integrated Services Digital Network" means a switched network service that
provides end-to-end digital connectivity for the simultaneous transmission of
voice and data. Basic Rate Interface-ISDN ("BRI-ISDN") provides for a digital
transmission of two 64 kbps bearer channels and one 16 kbps data channel
("2B+D").
"Loss" or "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).
"Main Distribution Frame" means the distribution frame of the Party providing
the Link (or Loop) used to interconnect cable pairs and line and trunk equipment
terminals on a switching system.
"Numbering Plan Area" means the 3-digit code which occupies the A, B, C
positions in the 10-digit NANP format which applies throughout NANP area. NPAs
are in the form of "NXX," where N is the number from 2 to 9 and X is a number
from 0 to 9. In the NANP, NPAs are classified as either geographic or
non-geographic. The common examples are NPAs in the N00 format, e.g., 800. N00
codes are commonly referred to as service access codes (SACs).
"NXX" means the three-digit code which appears as the first three digits of a
seven digit telephone number.
"Point of Termination Bay" means the intermediate distributing frame system
which serves as the point of demarcation for collocated interconnection.
"Public Service Answering Point" means an answering location for 911 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 Service Agencies such as
police, fire or emergency medical agencies or by employees of a common bureau
serving a group of such entities.
"Rate Center" means the specific geographic point which has been designated by a
given LEC as being associated with a particular NPA-NXX code which has been
assigned to the LEC for its provision of Telephone Exchange Service. The Rate
Center is the finite geographic point identified by a specific V&H coordinate,
which is used by that LEC to measure, for billing purposes, distance-sensitive
transmission services associated with the specific Rate Center.
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"Reciprocal Compensation" is As Described in the Act, and refers to the payment
arrangements that recover costs incurred for the transport and termination of
Telephone Exchange Service Traffic.
"Reciprocal Compensation Call" or "Reciprocal Compensation Traffic" means a
Telephone Exchange Service Call completed between the Parties, which qualifies
for Reciprocal Compensation pursuant to the terms of this Agreement and
prevailing Commission or FCC rules that may exist, except that ISP Traffic is
not a Reciprocal Compensation Call or Reciprocal Compensation Traffic.
"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.
"Synchronous Optical Network" 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.
"Telecommunications" is As Defined in the Act.
"Telecommunications Carrier" is As Defined in the Act.
"Telecommunications Service" is As Defined in the Act.
"Telephone Exchange Service" is As Defined in the Act.
"Telephone Exchange Service Call" or "Telephone Exchange Service Traffic" means
a call completed between two Telephone Exchange Service Customers of the Parties
located in the same LATA in the State of New York, originated on one Party's
network (including COVAD's use of unbundled switching) and terminated on the
other Party's facilities-based network where such call was not carried by a
third party as either a presubscribed call (1+) or a casual dialed (10XXX or
101XXXX) call, and where such call is not ISP Traffic.
"Telephone Relay" means a service provided to speech and/or hearing-impaired
callers that enables such callers to type a message into a telephone set
equipped with a keypad and message screen and to have a live operator read the
message to a
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recipient and to type recipient's response message to the speech or
hearing-impaired caller.
Acronyms
"ACD" means Automatic Call Distributor.
"ADSL" means Asymmetrical Digital Subscriber Line.
"AIN" means Advanced Intelligent Network.
"ANI" means Automatic Number Identification.
"BACR" means billing account cross reference.
"BAR" means billing account reference.
"BDFB" means Battery Distribution Fuse Bay.
"BLV" means Busy Line Verification.
"BLVI" means Busy Line Verification and Interrupt.
"CABS" means Carrier Access Billing System.
"CPN" means Calling Party Number.
"CIC" means carrier identification code.
"CCIS" means Common Channel Interoffice Signaling.
"CCL" means common carrier line.
"COS" means class of service.
"DCAS" means Direct Customer Access Service.
"EBCDIC" means extended binary-coded decimal interchange code.
"ECSRRS" means Electronic Customer Service Record Retrieval Service.
"EFT" means electronic funds transfer.
"EMR" means Exchange Message Record.
"HDSL" means High-Bit Rate Digital Subscriber Line.
"INP" means Interim Number Portability.
"ISDN" means Integrated Services Digital Network.
"IPPPs" means Independent Public Payphone Providers.
"ISDN" means Integrated Services Digital Network.
"IXC" means Interexchange Carrier.
"LATA" means Local Access and Transport Area.
"LEC" means Local Exchange Carrier.
"LERG" means Local Exchange Routing Guide.
"LIDB" means Line Information Database.
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"LSO" means Local Serving Office.
"MDF" means Main Distribution Frame.
"MECAB" means Multiple Exchange Carrier Access Billing.
"MECOD" means Multiple Exchange Carriers Ordering and Design.
"MLT" means Mechanized Loop Testing.
"MPB" means meet-point billing.
"NECA" means National Exchange Carrier Association.
"NID" means Network Interface Device.
"NPA" means Numbering Plan Area.
"OBF" means the Ordering and Billing Forum.
"OSDAS" means Operator Services and Directory Assistance Services.
"OSHA" means the Occupational Safety and Health Act.
"OSS" means Operations Support Systems.
"PAL" means Public Access Line.
"POT Bay" means Point of Termination Bay.
"PSAP" means Public Service Answering Point.
"RIC" means residual interconnection charges.
"RLM" means Remote Line Module.
"ROW" means rights of way.
"RSM" means Remote Switching Module.
"SCP" means Service Control Point.
"SMS" means Service Management Systems.
"SONET" means Synchronous Optical Network.
"SPOC" means single point of contact.
"SPOI" means Signaling Points of Interconnection.
"STP" means Signaling Transfer Points.
"TSR" means total service resale.
"WTNs" means working telephone numbers.
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ATTACHMENT 2 - OPERATIONS PLAN & IMPLEMENTATION TEAM
The Parties understand that the arrangements and the provision of services
described in this Agreement shall require technical and operational cooperation
between the Parties. Accordingly, the Parties shall jointly develop a plan (the
"Operations Plan") which shall further define and detail the processes to be
used by the parties in the areas of (1) provisioning and ordering (including pre
order), (2) maintenance, repair and testing, (3) billing and recording, (4)
provision of customer usage data, and (5) network security. The Operations Plan
will include, among other things, provisions concerning the following:
(a) agreement on physical architecture for the interconnection of the
Parties' networks;
(b) the respective duties and responsibilities of the Parties with
respect to the administration and maintenance of interconnection
trunk groups, including but not limited to standards and procedures
for notification and discoveries of trunk disconnects:
(c) disaster recovery provision escalations;
(d) access to all necessary OSS functions, including interfaces and
gateways:
(e) procedures that specify the requisite time period(s) in which BELL
ATLANTIC shall give COVAD notice and the applicable information and
specifications regarding any changes to interfaces of the OSS
functions;
(f) escalation procedures for provisioning and maintenance;
(g) single points of contact for provisioning and maintenance;
(h) service ordering and provisioning procedures, including provision of
the trunks and facilities;
(i) provisioning and maintenance support;
(j) conditioning of collocation spaces;
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(k) joint engineering and design requirements for high usage situations,
including End Office to End Office trunks.
(l) procedures and processes for Directories and Directory Listings;
(m) service referral procedures, including procedures for handling
misdirected inquiries and calls and procedures for handling
out-of-service or irate Customers;
(n) training;
(o) billing, including measurements, rating and validation process;
(p) network planning components, including system architecture, planning
SONET equipment configuration, fiber hand-off, test and acceptances
of SONET ring, trunking, signaling, interface points, and augment
process;
(q) joint systems readiness and operational readiness plans;
(r) security;
(s) [intentionally omitted]
(t) such other matters as the Parties may agree.
(u) single point of contact for collocation spaces.
The Operations Plan shall provide that operational interfaces will be capable of
supporting orders for all unbundled Network Elements specified in this
Agreement. The initial mutual interconnection of the Parties' networks, and the
provision of unbundled Network Elements, collocation and other services covered
by this Agreement, is not dependent upon completion of the Operations Plan.
Implementation Team.
The Parties agree to form a team (the "Implementation Team") which shall
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develop and identify those processes, guidelines, specifications, and
standards to be followed in the provision of the services covered by this
Agreement and the specific implementation obligations of each Party.
Within thirty (30) days after the Effective Date of this Agreement or as
mutually agreed to by both parties, each Party shall designate those
persons to be members of the Implementation Team. Those persons designated
by each of the Parties shall only be persons with technical or operational
responsibilities for implementation of this Agreement. At their option,
the Parties may establish such other working groups as they may designate.
The processes described herein and the agreements reached by the Parties
in the Implementation Plan shall not relieve either Party of any
obligations imposed by law.
Implementation Plan.
Within four (4) months after the Effective Date or as mutually agreed to
by both parties, the Implementation Team shall reach agreement on items to
be included in the Implementation Plan, which shall include (i) processes,
procedures, and milestone agreements, (ii) documentation of the various
items described in this Agreement which are to be included in the
Implementation Plan, including the matters specified above, and (iii) any
other matters agreed upon by the Implementation Team.
Action of Implementation Teams.
The Implementation Plan may be modified from time to time by the
Implementation Team as they deem appropriate. If the Implementation Team
is unable to agree upon a change, the then-existing provisions of the
Implementation Plan shall remain in full force and effect.
Further Coordination and Performance.
Except as otherwise agreed upon by the parties, on a mutually agreed-upon
date and time, but not less than once each quarter during the Term of this
Agreement, the Implementation Team shall discuss planning issues, forecast
issues, and the performance of the Parties under this Agreement. At each
such meeting the Parties will discuss: (i) the administration and
maintenance of the interconnections and trunk groups provisioned under
this Agreement, including future plans; (ii) any areas in which
performance may be improved; (iii) any problems that were encountered
during the preceding quarter or anticipated in the upcoming quarter; (iv)
the reasons underlying any such problem and the
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effects, if any, that such problem had, has or may have on the performance
of the Parties; and (v) the specific steps taken or proposed to be taken
to remedy such problem. Such meeting shall also include an Operational
Review, which shall address the service cycle of pre-ordering, ordering,
provisioning, maintenance and billing, to assure:
(a) that interfaces and processes are operational and that service for
the unbundled Network Elements, as applicable, are successfully
completed;
(b) the accuracy rate for bills for the wholesale bill validation
process.
In addition to the foregoing, the Parties through their
representatives on the Implementation Team will meet to discuss any
matters that relate to the performance of this Agreement, as may be
requested from time to time by either of the Parties. If upon such
review it is determined that the requirements of this Agreement are
not being met, either Party may invoke the dispute resolution
procedure described in Section 16 of the General Terms & Conditions
of this Agreement.
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ATTACHMENT 3
[Intentionally Omitted]
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ATTACHMENT 4
[Intentionally Omitted]
ATTACHMENT 5
[Intentionally Omitted]
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ATTACHMENT 6 - BILLING AND RECORDING
1) DEFINITIONS
"CABS" refers to the Carrier Access Billing System which is contained 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-001869, 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 services.
"EMR" refers to the Exchange Message Record System used among LECs 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.
"MECAB" refers to the Multiple Exchange Carrier Access Billing document
prepared under the direction the Billing Committee of the OBF. The
Multiple Exchange Carrier Access Billing document, published by Bellcore
as Special Report SR-BDS-000983, contains the recommended guidelines for
the billing of access and other services provided by two or more LECs
(including LECs and ALEC's), or by one LEC or ALEC 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 under the auspices of the Billing Committee of the OBF.
The MECOD document, published by Bellcore as Special Report SR STS-002643,
establishes recommended guidelines for processing orders for access and
other services which is to be provided by two or more LECS (including LECS
and ALEC's), or by one LEC or ALEC in two or more states within a single
LATA.
"OBF" refers to 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).
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2) GENERAL
a) This Attachment describes the requirements for BELL ATLANTIC and
COVAD to bill and record the charges to each other covered by this
Agreement. BELL ATLANTIC shall bill and record charges to COVAD for
unbundled Network Elements, Reciprocal Compensation, Transient
Tandem, Interim Number Portability and, in addition, BELL ATLANTIC
shall bill record charges in accordance with this Attachment 6. This
Attachment does not apply to services provided for resale under the
PSC No. 915 Tariff.
b) COVAD shall bill record charges to BELL ATLANTIC for Reciprocal
Compensation, Transient Tandem, Interim Number Portability and, in
addition, COVAD shall bill record charges in accordance with this
Attachment 6.
c) This Section also describes the Meet Point Billing arrangement
between BELL ATLANTIC and COVAD.
d) Nothing herein is intended to supersede any provisions in the P.S.C.
915 Tariff.
3) BILLABLE INFORMATION AND CHARGES
a) BELL ATLANTIC will bill and record in accordance with this Agreement
those charges COVAD incurs as a result of COVAD purchasing from BELL
ATLANTIC unbundled Network Elements, as set forth in this Agreement.
Each bill shall be formatted in accordance with CABS and in a few
cases CRIS. It is both parties understanding that a majority of
bills will be in a CABS format. For those CRIS billed services, both
parties will review the practicality of migrating those services
from a CRIS billed format to a CABS billed format. Each such
unbundled Network Element purchased by COVAD shall be assigned a
separate and unique billing code or other descriptive identifier in
the form agreed to by the parties and such code or identifier shall
be provided to COVAD on each bill in which charges for such
unbundled Network Element appears. Each such billing code or
identifier shall enable COVAD to identify the unbundled Network
Element(s) as described in Part IV (Pricing Schedule) to this
Agreement ordered by COVAD. Each bill shall also set forth the
quantity of each such unbundled
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Network Element, provided and billed to COVAD. All charges billed to
COVAD must indicate the state from which such charges were incurred.
b) BELL ATLANTIC shall provide COVAD monthly bill(s) that include all
charges incurred by and credits and/or adjustments due to COVAD for
those unbundled Network Elements, covered by this Agreement. Each
bill provided by BELL ATLANTIC to COVAD shall include: (1) all
non-usage sensitive charges incurred for the period beginning with
the day after the current bill date and extending to, and including,
the next bill date, (2) any known unbilled non-usage sensitive
charges for prior periods, (3) unbilled usage sensitive charges for
the period beginning with the last bill date and extending up to,
but not including, the current bill date, (4) any known unbilled
usage sensitive charges for prior periods, and (5) any known
unbilled adjustments.
c) The Bill Date, as defined herein, must be present on each bill
transmitted by the parties, must be a valid calendar date and no
more than one calendar year old. Charges contained on a bill may be
more than one calendar year old to the extent permitted by law. In
addition, on each bill where "Jurisdiction" is identified, local
(Reciprocal Compensation traffic as defined in Attachment 1) shall
be separately identified with the industry standard jurisdictional
indicator.
d) BELL ATLANTIC shall bill COVAD for each unbundled Network Element
supplied by BELL ATLANTIC to COVAD pursuant to this Agreement at the
rates set forth in this Agreement. BELL ATLANTIC will bill COVAD
based on the actual charges incurred, provided, however, for those
usage based charges where actual charge information is not
determinable by BELL ATLANTIC because the jurisdiction (i.e.,
interstate, interstate/interLATA, intrastate, intrastate/intraLATA,
local) of the traffic is unidentifiable, the parties will jointly
develop a process to determine the appropriate charges. Measurement
by the parties of terminating usage charges shall be in accordance
with Part 1(e) of the Rate Application Rules in Part IV of this
Agreement.
e) Each party shall provide the other party at no additional charge a
contact person for the handling of any billing questions or problems
that may arise during the implementation and performance of the
terms and conditions of this Attachment.
f) The following arrangements shall apply to call usage detail records
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provided by one Party ("the Providing Party") to the other
("Receiving Party") using a direct local exchange usage data feed
when the message recording date for such records is over 60 days
old, except as provided in (i) through (iv) below:
(i) The Providing Party shall apply a 0.5% discount ("Late Usage
Discount") to the charge otherwise applicable to the provision of
such records except that the Late Usage Discount shall not apply to
usage records for Unbundled Network Elements until six months after
the Effective Date of this Agreement and shall not apply at all to
Alternate Billed Calls.
(ii) The Late Usage Discount shall also not apply unless the Receiving
Party notifies the Providing Party that it has not received the
usage records within five (5) business days of the time the
Receiving Party discovers, or should have discovered using
reasonable business practices, that it has not received the usage
records.
(iii) The Late Usage Discount shall not apply if the delay in provision of
the usage records is not directly caused by the Providing Company.
(iv) The Late Usage Discount shall only apply where the late usage
hinders the Receiving Party's ability to promptly bill its
customers.
4) MEET POINT BILLING ("MPB")
This section applies only when COVAD is a facilities-based carrier
utilizing its own local switch (not unbundled Network Element switching)
i.e. not to the Point of Interconnection unbundled Network Element
arrangements described in Call Flows Diagram Nos. 21-28 (see Part IV). MPB
as addressed in these provisions pertains to those arrangements where the
only tandem switch involved is BELL ATLANTIC's used solely by BELL
ATLANTIC. Other tandem arrangements including multiple tandem arrangements
involving the Parties and alternate tandem providers will be addressed by
the Parties in the Operations Plan.
a) COVAD and BELL ATLANTIC will establish meet-point billing ("MPB")
arrangements in accordance with the Meet Point Billing guidelines
adopted by and contained in the OBF's MECAB and MECOD documents,
except as modified herein. Both parties will use their best
reasonable 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 to reflect the MPB
arrangements identified in this Agreement, in MECAB and in
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MECOD.
b) COVAD and BELL ATLANTIC each seek to implement the "Multiple
Bill/Single Tariff" option (where each party bills separately from
its own tariff). For all traffic covered by the MPB arrangement,
COVAD and BELL ATLANTIC shall bill the IXC's applicable elements, as
specified in d) below, at the rates specified in each party's
tariff. In implementing the "Multiple Bill/Single Tariff" scenario
the recording party will provide the records to the other party at
the applicable call usage detail service charges, set forth in Part
IV of this Agreement. The other party will not charge the recording
party for the return of the summary record.
c) BELL ATLANTIC and COVAD shall provide to each other the billing
name, billing address, and carrier identification code ("CIC") of
the IXCs that may utilize any portion of each other's network in a
COVAD/BELL ATLANTIC MPB arrangement in order to comply with the MPB
Notification process as outlined in the MECAB document. Each party
shall provide to the other such information in the format and via
the medium that the parties agree. If either party does not
initially record sufficient bill detail for any IXC traffic that
will utilize a portion of its network in a COVAD/BELL ATLANTIC MPB
arrangement, and for whom either party must supply to the other MPB
billing information, each party agrees that it will assist the other
in resolving these billing matters to allow that party to obtain
reimbursement from the IXC by providing as much billing detail as is
available to the other party, and by participating in any studies or
discussions required to obtain supporting detail.
d) BELL ATLANTIC and COVAD agree that in an MPB arrangement where one
party provides local transport and the other party provides the end
office switching, the party who provides the end office switching is
entitled to bill any residual interconnection charges ("RIC") and
common carrier line ("CCL") or loop charges associated with the
traffic. The parties further agree that in those MPB situations
where one party sub-tends the other party's access tandem, the party
providing the access tandem is only entitled to bill the entrance
facility charges, access tandem fee and any associated local
transport charges and any applicable tariff charges. The parties
also agree that the party who provides the end office switching is
entitled to bill end office switching fees, associated local
transport charges, RIC and CCL or loop charges, as appropriate, and
such other applicable tariff charges. The provisions of this
paragraph 4(d) shall be subject to and in accordance with the
orders, rules and regulations of the FCC, as in effect from time to
time.
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e) BELL ATLANTIC and COVAD will record and transmit MPB information in
accordance with the EMR industry standards and in the transmission
medium set forth in this Attachment. BELL ATLANTIC and COVAD will
coordinate and exchange the billing account reference ("BAR") and
billing account cross reference ("BACR") numbers for the MPB
arrangements described in this Agreement. Each party will notify the
other if the level of billing or other BAR/BACR elements change,
resulting in a new BAR/BACR number.
f) Meet Point Billing Liability:
(i) These liability provisions do not apply to the Point of
Interconnection unbundled Network Element arrangements (see
Part IV,Call Flows Diagram Nos. 21-28) nor do they apply to
arrangements involving alternate tandem providers. Records for
the purpose of this Section 4 mean MPB records which shall
only be provided in EMR industry standard format. Both parties
will monitor and control their recording process to insure
that MPB records are distributed to the other party within 10
calendar days of their creation.
(ii) For a period of six months per tandem, from the time that
COVAD first sends or receives MPB traffic through a BELL
ATLANTIC tandem which COVAD subtends, the Parties agree that
they will work cooperatively to resolve issues that may arise
pertaining to receipt of billable records and will attempt to
provide each other with billable records or reconstruct
missing records, however, neither Party will be liable to the
other during that time period for failing to provide the other
Party with billable records or missing records.
(iii) For the remainder of the first year per tandem, there will be
a true up in which each Party will look at the number of non
billable or missing records relative to the total records (for
BELL ATLANTIC total records shall be records associated with
the tandem and for COVAD total records shall be records
associated with the sum of the end offices subtending that
tandem) provided by the other Party during that six month
period. If greater than 15% of the records for that period are
not received or not billable, the recording Party will be
liable for a settlement payment as described in paragraph v
below.
(iv) For the remainder of the Term of the Agreement, there will be
annual true ups in which each Party will look at the number of
non billable or missing records relative to the total records
(for BELL ATLANTIC total records shall be records associated
with the tandem and for
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COVAD total records shall be records associated with the sum
of the end offices subtending that tandem) provided by the
other Party during that annual period. If greater than 5% of
the records for that period are not received or not billable,
the recording Party will be liable for a settlement as
described in paragraph v below. At the end of the first annual
true up period, the Parties will review the data and may
mutually agree to change the liability percentages.
(v) For each true up period where settlement payment is required,
the recording Party will provide the receiving Party with a
settlement payment based upon what the estimated MPB revenues
for the receiving party would have been for the missing or
non-billable records. The settlement will not include a)
revenues associated with records where COVAD or its
affiliates, parent or subsidiaries is the interexchange
carrier delivering traffic to or receiving traffic from the
BELL ATLANTIC tandem, b) calls for which the recording Party
is not responsible for loss of records, or for the records
being non billable (e.g., such as when the records have been
sent by the recording Party but lost by the receiving Party,
or damaged by the receiving Party) or c) where the recording
Party did not receive notification of missing or non billable
records from the receiving Party within the following
timeframes:
1. Two business days from receipt of records that records
are missing from a pack, per switch
2. Seven business days from receipt of records that records
are missing CICs, or contain missing or corrupted data
3. Seven business days from receipt of records that records
were not received based upon a verification of volumes
process per switch (matching the Party's own switch
records with the records received from the recording
Party, and subtracting the difference in the amount of
messages and minutes between the records)
(vi) Any settlement payment made by the recording party under this
Section 4 shall be the sole and exclusive remedy of the
receiving party for damages related directly or indirectly to
these MPB recording arrangements. No other penalties,
liquidated damages, or payments for any breach of these MPB
recording arrangements shall apply.
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<PAGE>
g) Neither COVAD nor BELL ATLANTIC will charge the other for the
services rendered or for information provided pursuant to Section 4
of this Attachment except those MPB charges specifically set forth
herein. Each party will provide the other a single point of contact
to handle any MPB questions and will not charge for billing
inquiries.
h) Retroactive adjustments such as jurisdictional factor changes by the
IXC switched access customer, if applied, will be passed through to
both parties. The parties will "true up" the revenues by rerating
and reallocating the amounts due or payable to each party. The costs
associated with making these retroactive adjustments shall be
allocated between the parties based upon the relative percentages
that each party had received of the MPB revenues. The parties will
agree on the best method for making the adjustments.
5) COLLOCATION
Collocation (as defined in Part III of this Agreement) billing should
occur on a bill with the label Collocation Building Expenses. The CABS
format would mirror the bill structure for a Miscellaneous bill. The
ongoing fees (described in Part III of this Agreement) for COVAD to
collocate (i.e., space, power, etc.) should be provided for as described
in the existing CABS documents for how to render an Expanded
Interconnection bill. For a mechanized CABS bill, the Type of Account
field should be populated with a value of "E" as per the CABS
specifications.
6) RECIPROCAL COMPENSATION
a) Charges for Reciprocal Compensation should be billed on a switched
bill. In a CABS format, local usage will be separately identified
and displayed in the Usage Sections of the bill. The Jurisdiction
Indicator will be the industry standard for Reciprocal Compensation.
The face page of the bill will reflect a breakdown of Interstate,
Intrastate and Local (Reciprocal Compensation) dollars. A Summary of
Jurisdiction Charges will be provided at the account level. Further,
the traffic exchanged pursuant to this Attachment shall be measured
for terminating usage charges in actual conversation seconds and
measured for originating usage charges in actual access seconds. The
total conversation seconds and access seconds per chargeable traffic
types shall be totaled for the entire processing cycle and then
rounded to the next whole minute. Reciprocal Compensation for the
termination of this traffic shall be charged at rates specified in
Part IV to this Agreement.
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<PAGE>
b) In lieu of the Reciprocal Compensation arrangement described above
and where permitted by state law or Commission regulation or order,
the Parties may elect to adopt a bill and keep compensation
arrangement or such other mutually agreed upon compensation
arrangement.
7) TRANSIENT TANDEM PROCESS AND PRICING
(a) COVAD may use BELL ATLANTIC's tandem switch to terminate COVAD local
traffic on other local carriers' networks where such local carriers
are connected to the same BELL ATLANTIC tandem, or to receive local
traffic originating on such other local carriers' networks. This
local traffic will route between local carriers through BELL
ATLANTIC's tandem switch. When COVAD is the originating carrier
terminating calls to another carrier, COVAD shall be responsible for
paying BELL ATLANTIC for tandem switching, except to the extent that
COVAD has already paid for tandem switching via the BELL ATLANTIC
Shared Transport rate, plus a blended charge which reflects a pass
through of monthly Reciprocal Compensation terminating local carrier
charges paid by BELL ATLANTIC to the terminating local carrier that
is based upon actual local carrier rates in effect for terminating
compensation from the previous month multiplied times actual minutes
of use for the given month. Since the charges for each month are
calculated using actual rates from the previous month, the initial
month under this Agreement will be estimated and based upon a local
study. Parameters will be developed to insure that if actuals are
collected in the month succeeding the initial month which differ
from the estimated value by more than two thousand dollars, BELL
ATLANTIC will credit COVAD for that amount which COVAD has overpaid
or COVAD will pay BELL ATLANTIC for that amount which COVAD has
underpaid. The prices for transient tandem switching, including all
applicable associated operations support charges, are set forth in
this Part IV to this Agreement.
(b) When COVAD is the terminating carrier using its own (not unbundled
Network Element) switching facilities, BELL ATLANTIC shall pay COVAD
all terminating Reciprocal Compensation for local and toll based
upon actual minutes of use and rates in effect for that month. The
Parties will work cooperatively on billing disputes and
uncollectible issues.
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<PAGE>
8) LOCAL NUMBER PORTABILITY
a) In accordance with the terms and conditions set forth in this
Attachment 6, each party shall record and provide to the other all
call detail information associated with a call to a party's local
exchange customer whose telephone number has been ported from the
other party under INP as further described in Section 19 of the
General Terms and Conditions of this Agreement.
b) When an IXC terminates an InterLATA or IntraLATA toll call to either
party's local exchange customer whose telephone number has been
ported from one party to the other, the parties agree that the party
to whom the number has been ported shall receive revenues from those
IXC access charges associated with end office switching, local
transport, RIC and CCL, as appropriate, and such other applicable
charges. The party from whom the number has been ported shall be
entitled only to receive any entrance facility fees, access tandem
fees and appropriate local transport charges, and any INP fees
(i.e., such as RCF charges) set forth in this Agreement. Such access
charge payments will be adjusted to the extent that the paying party
has already paid Reciprocal Compensation for the same minutes of
use. When a call for which access charges are not applicable is
terminated to a party's local exchange customer whose telephone
number has been ported from the other party, the parties agree that
the Reciprocal Compensation arrangements described in this
Attachment shall apply.
215
<PAGE>
9) ISSUANCE OF BILLS - GENERAL
a) BELL ATLANTIC and COVAD will issue all bills for services and
facilities covered by this Agreement in accordance with the terms
and conditions set forth in this Section. BELL ATLANTIC and COVAD
will establish monthly billing dates ("Bill Date") for each Billing
Account Number ("BAN"), as further defined in the CABS documents,
which Bill Date shall be the same day month to month. Each BAN shall
remain constant from month to month, unless changed as agreed to by
the parties. Each Party shall provide the other Party at least
thirty (30) calendar days written notice prior to changing, adding
or deleting a BAN. The Parties will provide one billing invoice
associated with each BAN. Each invoice must contain an invoice
number (which will vary from month to month). On each bill
associated with a BAN, the appropriate invoice number and the
charges contained on such invoice must be reflected. All bills are
due within the timeframes specified in Section 10.1 and 10.2 of the
General Terms and Conditions of this Agreement
b) Except as otherwise provided below, when BELL ATLANTIC and COVAD
issue CABS bills they shall contain such billing data and
information in accordance with CABS Version 26.0, or such later
versions of CABS as are published by Bellcore, or its successor. For
meet-point billing arrangements as set forth in Section 4 of this
Attachment, such billing data and information shall also conform to
the standards set forth in the MECAB document, or such later
versions as are adopted by Bellcore, or its successor. For as long
as and to the extent that CABS standards have not been established
with respect to formatting, such billing data and information may be
formatted in a CRIS billed format or in such other format or formats
as shall be reasonable under the circumstances, subject to the
approval of the receiving Party, which approval shall not be
unreasonably withheld. It is both parties understanding that a
majority of bills will be in a CABS format. For those CRIS billed
services, both parties will review the practicality of migrating
those services from a CRIS billed format to a CABS billed format.
BELL ATLANTIC has indicated that they have not completely adopted
CABS Version 26.0 yet but agree to provide COVAD with a differences
list for any variance from Version 26.0.
c) Payment by the Parties will be based on the full detailed version of
the bill. If either party requests an additional copy(ies) of a
bill, such party shall pay the other party a reasonable fee per
additional bill copy, unless such copy was requested due to errors,
omissions, or corrections or the failure of the
216
<PAGE>
transmission to comply with the specifications set forth in this
Agreement.
d) To avoid transmission failures or the receipt of billing information
that cannot be processed, the parties shall provide each other with
their respective process specifications and edit requirements. COVAD
shall comply with BELL ATLANTIC's processing specifications when
COVAD transmits billing data to BELL ATLANTIC. BELL ATLANTIC shall
comply with COVAD's processing specifications when BELL ATLANTIC
transmits billing data to COVAD. COVAD and BELL ATLANTIC shall
provide each other reasonable notice if a billing transmission is
received that does not meet such party's specifications or that such
party cannot process. Such transmission shall be corrected and
resubmitted to the other party, at the resubmitting party's sole
expense, in a form that meets the specifications set forth in this
Attachment. The payment due date for such resubmitted transmissions
will be twenty (20) days from the date that the transmission is
received in a form that can be processed and that meets the
specifications set forth in this Attachment.
10) ELECTRONIC TRANSMISSIONS
a) BELL ATLANTIC and COVAD agree that each party will transmit CABS
billing information and data in the appropriate CABS format
electronically via Connect: Direct (formerly known as Network Data
Mover) to the other party at the location specified by such party.
The parties agree that a T1.5 or 56kb circuit to Gateway for
Connect: Direct is required. COVAD data centers will be responsible
for originating the calls for data transmission via switched 56kb or
T1.5 lines. If BELL ATLANTIC has an established Connect: Direct link
with COVAD, that link can be used for data transmission if the
location and applications are the same for the existing link.
Otherwise, a new link for data transmission must be established.
BELL ATLANTIC must provide COVAD its Connect: Direct Node ID and
corresponding VTAM APPL ID before the first transmission of data via
Connect: Direct. COVAD will supply to BELL ATLANTIC its RACF ID and
password before the first transmission of data via Connect: Direct.
Any changes to either party's Connect: Direct Node ID must be sent
to the other party no later than twenty-one (21) calendar days
before the changes take effect.
b) The following dataset format shall be used as applicable for those
CABS charges transmitted via Connect: Direct in CABS format:
217
<PAGE>
Production Dataset
- --------------------------------------------------------------------------------
AF25.AXXXXYYY.AZZZ.DDDEE Production Dataset Name
================================================================================
AF25 = Job Naming Convention
- --------------------------------------------------------------------------------
AXXXX = Numeric Company Code
- --------------------------------------------------------------------------------
YYY = BELL ATLANTIC Remote
- --------------------------------------------------------------------------------
AZZZ = RAO (Revenue Accounting Office)
- --------------------------------------------------------------------------------
DDD = BDT (Billing Data Tape with or without CSR)
Or
CSR (Customer Service Record)
- --------------------------------------------------------------------------------
EE = 01 thru 31 (Bill Period) (optional)
or
GA (US Postal-State Code)
- --------------------------------------------------------------------------------
Test Dataset
- --------------------------------------------------------------------------------
AF25.ATEST.AXXXX.DDD Test Dataset Name
================================================================================
AF25.ATEST = Job Naming Convention
- --------------------------------------------------------------------------------
AXXXX = Numeric Company Code
- --------------------------------------------------------------------------------
DDD = BDT (Billing Data Tape with or without CSR)
Or
CSR (Customer Service Record)
- --------------------------------------------------------------------------------
11) TAPE OR PAPER TRANSMISSIONS
a) In the event either party does not have Connect: Direct capabilities
upon the effective date of this Agreement, such party agrees to
establish Connect: Direct transmission capabilities with the other
party within the time period mutually agreed and at the establishing
party's expense. Until such time, the parties will transmit billing
information to each other via magnetic tape or paper, as agreed to
by COVAD and BELL ATLANTIC. Billing information and data contained
on magnetic tapes or paper for payment shall be sent to the parties
at the following locations. The parties
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<PAGE>
acknowledge that all tapes transmitted to the other party via U.S.
Mail or Overnight Delivery and which contain billing data will not
be returned to the sending party.
TO COVAD:
- ----------------------------------------------------
Tape COVAD
Transmissions via ____________________
U.S. Mail:
att: ________________
- ----------------------------------------------------
Tape COVAD
Transmissions via _____________________
Overnight
Delivery:
att: ________________
- ----------------------------------------------------
- ----------------------------------------------------
Paper COVAD
Transmissions via _____________________
U.S. Mail:
att: ________________
- ----------------------------------------------------
- ----------------------------------------------------
Paper COVAD
Transmissions via _____________________
Overnight
Delivery:
att: : ________________
- ----------------------------------------------------
219
<PAGE>
TO BELL ATLANTIC:
- ----------------------------------------------------
Tape Transmissions BELL ATLANTIC
1095 Avenue of the Americas
Fourteenth Floor
New York, NY 10036
Attn: CLEC Billing
- ----------------------------------------------------
- ----------------------------------------------------
Paper BELL ATLANTIC
Transmissions
1095 Avenue of the Americas
Fourteenth Floor
New York, NY 10036
Attn: CLEC Billing
- ----------------------------------------------------
b) Each Party will adhere to the tape packaging requirements set
forth in this subsection. When a third party is utilized, the
billing party will work to ensure conformance to the tape
packaging requirements set forth in this subsection. In
addition, the Parties shall provide each other reasonable notice
if a billing transmission is received that does not meet such
party's specifications or that such Party cannot process. Such
transmission shall be corrected and resubmitted to the other
Party, at the resubmitting Party's sole expense, in a form that
can be processed. The payment due date for such resubmitted
transmissions will be twenty (20) days from the date that the
transmission is received in a form that can be processed and that
meets the specifications set forth in this Attachment. Each
Party will clearly mark on the outside of each shipping container
its name, contact and return address.
c) All billing data transmitted via tape must be provided on a
cartridge (cassette) tape and must be of high quality, conform to
the parties' record and label standards, 9-track, odd parity,
6250 BPI, group coded recording
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<PAGE>
mode and extended binary-coded decimal interchange code ("EBCDIC").
Each reel of tape must be 100% tested with full width certification
and permanent error free at final inspection. COVAD reserves the
right to destroy a tape that has been determined to have
unrecoverable errors. COVAD also reserves the right to replace a
tape with one of equal or better quality.
d) Billing data tapes shall have the following record and label
standards. The dataset serial number on the first header record
of an IBM standard tape label also shall have the following
format.
-----------------------------------------------------
CABS BOS
=====================================================
Record length 225 bytes (fixed length)
-----------------------------------------------------
Blocking factor 84 records per block
-----------------------------------------------------
Block size 18,900 bytes per block
-----------------------------------------------------
Labels Standard IBM Operating
System
-----------------------------------------------------
e) The serial would be determined by the sending company, to meet
IBM standard label format requirements. The dataset name as well
as each party's name, address and contact shall further identify
the tape. The external and internal label should be the same.
f) Tape labels shall conform to IBM OS/VS Operating System Standards
contained in the IBM Standard Labels Manual (GC26-3795-3). IBM
standard labels are 80-character records recorded in EBCDIC, odd
parity. The first four characters identify the labels:
-------------------------------------------------------------------
Volume 1 Volume label
-------------------------------------------------------------------
HDR1 and HDR2 Data set header labels
-------------------------------------------------------------------
EOV1 and EOV2 Data set trailer labels (end-of-volume for
multi-reel files)
-------------------------------------------------------------------
EOF1 and EOF2 Data set trailer labels (end-of-data-set)
-------------------------------------------------------------------
The HDR1, EOV1, and EOF1 labels use the same format and the
HDR2, EOV2, and EOF2 labels use the same format.
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<PAGE>
g) The Standard Volume Label Format (Vol. 1) is described below:
------------------------------------------------------------------
FIELD NAME CONTENTS
------------------------------------------------------------------
Label Identifier The characters "VOL" identify this label as
(3 bytes) a volume label.
------------------------------------------------------------------
Label Number The relative position of this label within a
(1 byte) set of labels of the same type; it is
always a 1 for the IBM standard volume label.
------------------------------------------------------------------
Volume Serial A unique identification code, normally
Number (6 bytes) numeric characters (000001-999999), but may
be alpha-numeric; if fewer than 6
characters, must be left-justified. This
same code should also appear on the external
(flat) surface of the volume for visual
identification.
------------------------------------------------------------------
Reserved (1 byte) Reserved for future use - should be recorded
as blanks.
------------------------------------------------------------------
VTOC Pointer Direct-access volumes only. This field is
(10 bytes) not used for tape volumes and should be
recorded as blanks.
------------------------------------------------------------------
Reserved (10 bytes) Reserved for future use - should be recorded
as blanks.
------------------------------------------------------------------
Owner Name and Indicates a specific customer, person,
Address installation, department, etc., to which the
Code(10 bytes) volume belongs. Any code or name is
acceptable.
------------------------------------------------------------------
Reserved (29 bytes) Reserved for future use - should be recorded
as blanks.
------------------------------------------------------------------
h) The IBM Standard Dataset Label 1 Format (HDR1, EOV1, EOF1) is
described below:
-------------------------------------------------------------------
FIELD NAME CONTENTS
-------------------------------------------------------------------
Label Identifier (3 bytes) Three characters that identify the
label are:
o HDR Header label (at the
beginning of a dataset)
o EOV Trailer label (at the end
of a tape volume, when the
dataset continues on another
volume)
o EOF Trailer label (at the end
of a dataset).
-------------------------------------------------------------------
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<PAGE>
-------------------------------------------------------------------
Label Number (1 byte) The relative position of this label
within a set of labels of the same
type; it is always a 1 for dataset
label 1.
-------------------------------------------------------------------
Dataset Identifier The rightmost 17 bytes of the dataset
(17 bytes) name (includes GnnnnVnn if the dataset
is part of a generation data group).
If the dataset name is less than 17
bytes, it is left-justified and the
remainder of this field is padded with
blanks.
-------------------------------------------------------------------
that BA offers such ULLs to any Telecommunications
Carrier in the state of New York. Nothing in the preceding sentence or elsewhere
in this Section is intended to obligate Bell Atlantic to provide ADSL-2W,
HDSL-2W and HDSL-4W ULLs as of a specific date (other than as may be required by
Applicable Laws) or to constitute a waiver of any right Covad
2
<PAGE>
may have to obtain such Loops. In the event that a change in Applicable Law
requires Bell Atlantic to provide ADSL-2W, HDSL-2W and HDSL-4W ULLs or other
types of DSL-compatible Loops, the Parties will negotiate in good faith a
non-discriminatory, commercially reasonable schedule for the availability of
each such type of Loop consistent with Applicable Law.
4. The Interconnection Agreement is hereby amended by adding the following
Volume Sequence Number A number (0001-9999) that indicates
(4 bytes) the order of volume within the
multi-volume group created at the same
time. This number is always 0001 for
a single volume dataset.
-------------------------------------------------------------------
Dataset Sequence Number A number (0001-9999) that indicates
(4 bytes) the relative position of the dataset
within a multi-dataset group. This
number is always 0001 for a single
dataset organization.
-------------------------------------------------------------------
Generation Number If the dataset is part of a generation
(4 bytes) data group, this field contains a
number from 0001 to 9999 indicating
the absolute generation number (the
first generation is recorded as
0001). If the dataset is not part of
a generation data group, this field
contains blanks.
-------------------------------------------------------------------
223
<PAGE>
-------------------------------------------------------------------
Version Number Of If the dataset is part of a generation
Generation (2 bytes) data group, this field a number from
00 to 99 indicating the version number
of the generation (the first version
is recorded as 00). If the dataset is
not part of a generation data group,
this field contains blanks.
-------------------------------------------------------------------
Creation Date (6 bytes) Year and day of the year when the
dataset was created. The date is
shown in the format byyddd where:
o b = blank
o yy = year(00-99)
o ddd = day(001-366)
-------------------------------------------------------------------
Expiration Date (6 bytes) Year and day of the year when the
dataset may be scratched or
overwritten. The data is shown in the
format byyddd where:
o b = blank
o yy = year (00-99)
o ddd = day (001-366)
-------------------------------------------------------------------
Dataset Security (1 byte) A code number indicating the security
status of the dataset is as follows:
o 0 No password
protection
o 1 Password protection
Additional identification
of the dataset is required
before it can be read,
written, or deleted
(ignored if volume is
RACF-defined)
o 3 Password protection
Additional identification
of the dataset is required
before it can be read,
written, or deleted
(ignored if volume is
RACF-defined).
-------------------------------------------------------------------
Block Count (6 bytes) This field in the trailer label shows
the number of data blocks in the
dataset on the current volume. This
field in the header label is always
zeros (000000).
-------------------------------------------------------------------
System Code (13 bytes) Unique code that identifies the system.
-------------------------------------------------------------------
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<PAGE>
-------------------------------------------------------------------
Reserved (7 bytes) Reserved for future use - should be
recorded as blanks.
-------------------------------------------------------------------
i) The IBM Standard Dataset Label 2 Format (HDR2, EOV2, EOF2) always
follows dataset label 1 and contains additional information about
the associated dataset as described below:
--------------------------------------------------------------------
FIELD NAME CONTENTS
--------------------------------------------------------------------
Label Identifier (3 bytes) Three characters that identify the label
are as follows:
o HDR Header label (at the
beginning of a dataset)
o EOV Trailer label (at the
end of a tape volume, when
o the dataset continues on
another volume)
o EOF Trailer label (at the
end of a dataset).
--------------------------------------------------------------------
Label Number (1 byte) The relative position of this label
within a set of labels of the same type;
it is always a 2 for dataset label 2.
--------------------------------------------------------------------
Record Format (1 byte) An alphabetic character that indicates
the format of records in the associated
dataset as follows:
o F Fixed length
o V Variable length
o U Undefined length.
--------------------------------------------------------------------
Block Length (5 bytes) A number up to 32760 that indicates the
block length, in bytes. Interpretation
of the number depends on the following
associated record format in Field 3:
o Format F - Block length
(must be a multiple of the
logical
o record length in Field 5)
o Format V - Maximum block
length (including the 4 byte
o length indicator in the
block)
o Format U - Maximum block
length.
--------------------------------------------------------------------
225
<PAGE>
--------------------------------------------------------------------
Record Length (5 bytes) A number that indicates the record
length, in bytes. Interpretation of the
number depends on the following
associated record format in Field 3:
o Format F - Logical record
length
o Format V - Maximum logical
record length (including the
o 4 byte length indicator in
the records)
o Format U - Zeros.
--------------------------------------------------------------------
Tape Density (1 byte) A code indicating the record density of
the tape, as follows:
Recording Density
DEN Value 9-Track Tape
--------- ------------
3 1600 (PE)
4 6250 (GCR)
PE - is for phase encoded mode
GCR - is for group coded recording
mode.
--------------------------------------------------------------------
Dataset Position (1 byte) A code, indicating a volume switch, is
as follows:
0 - No volume switch has occurred
1 - A volume switch previously
occurred.
--------------------------------------------------------------------
Job/Job Step (17 bytes) Identification of the job and job step
that created the dataset. The first 8
bytes contain the name of the job, the
ninth byte is a slash (/), and the final
8 bytes contain the name of the job step.
--------------------------------------------------------------------
Tape Recording Technique A code or blanks indicating the tape
(2 bytes) recording technique used. This field is
recorded as blanks for 9-track tape.
The only technique available for 9-track
tape is odd parity and no translation.
--------------------------------------------------------------------
Control Characters A code indicating whether a control
(1 byte) character set was used to create the
dataset and the type of control
characters used:
A Contains ASCII control
characters
M Contains machine control
characters
b Contains no control
characters.
--------------------------------------------------------------------
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<PAGE>
--------------------------------------------------------------------
Reserved (1 byte) Reserved for future use - should be
recorded as blanks.
--------------------------------------------------------------------
Block Attribute (1 byte) A code indicating the block attribute
used to create the dataset:
B Blocked records
S Spanned records
R Blocked and spanned records
b No blocked and no spanned
records.
--------------------------------------------------------------------
Reserved (8 bytes) Bytes 40-42 - reserved for future use
-should be blanks. Bytes 43-47 - (3420
tape units only) serial number of
creating tape unit. Blank for other
units.
--------------------------------------------------------------------
Checkpoint Dataset In VS2-Release 2, this byte contains the
(1 byte) identifier character C if the dataset is
a checkpoint dataset; the byte is blank
if the dataset is not a check point
dataset or in other releases of the VS
systems.
--------------------------------------------------------------------
Reserved (32 bytes) Reserved for future use - should be
recorded as blanks.
--------------------------------------------------------------------
12) TESTING REQUIREMENTS
a) The Parties shall send bill data in the appropriate mechanized
format (e.g., CABS) for testing to ensure that bills can be
processed and that bills comply with the requirements of this
Attachment. After receipt of the test data the receiving Party
will notify the sending party whether or not the billing
transmission meets testing specifications. If the transmission
fails to meet the receiving Party's testing specifications, the
sending Party shall make the necessary corrections. At least one
(1) set of testing data must meet the receiving party's testing
specifications prior to the sending party sending a mechanized
production bill for the first time via electronic transmission.
Thereafter, the sending Party may begin sending the receiving
party mechanized production bills on the next Bill Date, or
227
<PAGE>
within ten (10) days, whichever is later, unless otherwise agreed
to in writing.
b) At least 30 days prior to changing transmission mediums (e.g.,
from paper to mechanized), the sending Party shall send bill
data in the appropriate mechanized format for testing to ensure
that the bills can be processed and that the bills comply with
the requirements of this Attachment. The sending party agrees
that it will not send bill data in the new mechanized format
until such bill data has met the testing specifications as set
forth in this subsection.
c) BELL ATLANTIC shall provide to COVAD's Company Manager, located
at: COVAD; ________________________________________________,
BELL ATLANTIC originating or state level company code so that it
may be added to COVAD's internal tables at least thirty (30)
calendar days prior to testing or prior to a change in BELL
ATLANTIC's originating or state level company code. COVAD shall
provide to the designated BELL ATLANTIC representative, COVAD's
originating or state level company code so that it may be added
to BELL ATLANTIC's internal tables at least thirty (30) days
prior to testing or prior to a change in COVAD's originating or
state level company code.
d) During the testing period, each party shall transmit to the other
billing data and information via paper transmission to the
respective addresses as set forth in Section 10 of this Attachment.
Each party shall send test tapes to the other at the following
locations:
-------------------------------------------------------
Test Tapes: COVAD
___________________
___________________
___________________
___________________
___________________
BELL ATLANTIC
[TO BE DESIGNATED BY
BELL ATLANTIC IN
WRITING]
-------------------------------------------------------
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<PAGE>
13) ADDITIONAL REQUIREMENTS
a) The parties agree that if they transmit data in a mechanized
format, they will also comply with the following specifications
which are not contained in CABS guidelines but which are
necessary for the parties to process billing information and
data:
(1) The BAN shall not contain embedded spaces or low values.
(2) The Bill Date shall not contain spaces or non-numeric values.
(3) Each bill must contain at least one detail record.
(4) Any "From" Date should be less than the associated "Thru"
Date and neither date can contain spaces.
(5) The Invoice Number must not have embedded spaces or low
values.
14) [Intentionally Omitted]
15) PAYMENT OF CHARGES
Payments shall be made in U.S. Dollars via a clearing house ("ACH") to
the other party's bank account. At least thirty (30) days prior to the
first transmission of billing data and information for payment, BELL
ATLANTIC and COVAD shall provide each other the name and address of its
bank, its account and routing number and to whom billing payments
should be made payable. If such banking information changes, each
party shall provide the other party at least sixty (60) days written
notice of the change and such notice shall include the new banking
information. The parties will render payment via ACH (EFT). COVAD will
provide BELL ATLANTIC with one address to which such payments shall be
rendered and BELL ATLANTIC will provide to COVAD with only one address
to which such payments shall be rendered. In the event COVAD receives
multiple and/or other bills from BELL ATLANTIC which are payable on
the same date, COVAD may remit one payment for the sum of all such
bills payable to BELL ATLANTIC's bank account specified in this
subsection and COVAD will provide BELL ATLANTIC with a payment advice.
Each Party shall provide the other Party with a contact person for the
handling of billing payment questions or problems.
229
<PAGE>
Access bills and bills for Unbundled Network Elements under this
Agreement will be provided as separate bills with separate amounts due.
16) BILLING DISPUTES
a) Billing disputes shall be handled in accordance with the
procedures set forth in Section 10.3 of the General Terms and
Conditions of the Agreement.
b) The Parties agree to establish a process by which closure of a
specific billing period will occur by joint agreement. The
Parties agree that a bill closure process will be established
within twelve months of the execution of this Agreement.
17) LATE PAYMENT CHARGES
a) Late payment charges shall be as set forth in Section 10.2 of the
General Terms and Conditions of this Agreement.
18) ADJUSTMENTS
Adjustments for incorrect charges and overcharges shall be set forth in
the appropriate section of the bill pursuant to CABS standards and/or
CRIS standards for the billing format being utilized.
230
<PAGE>
19) RECORDING OF CALL INFORMATION
a) When COVAD purchases unbundled Network Elements from BELL
ATLANTIC, the Parties agree to record call information in
accordance with this subsection. To the extent technically
feasible, each Party will record all call detail information
associated with every call originated from or terminated to the
other Party's local exchange customer through each Party's tandem
or end office switches for purposes of either party billing
terminating or originating charges including access charges, to
IXCs, ILEC, CLECs or ICOs, except that in cases where the
receiving Party does not need such data (e.g., Call Flows 2, 4,
7, 10, 11) the recording Party is not required to record all call
detail. These records shall be provided at a Party's request and
shall be formatted pursuant to Bellcore standards and the terms
and conditions of this Agreement. These records shall be
transmitted to the other Party daily in EMR format via Connect:
Direct, provided however that if COVAD and BELL ATLANTIC do not
have Connect: Direct capabilities, such records shall be
transmitted as the parties agree. BELL ATLANTIC and COVAD agree
that they will retain, at each Party's sole expense, copies of
all EMR records transmitted to the other Party for at least 45
days after transmission to the other party.
b) BELL ATLANTIC and COVAD shall provide to each other the billing
name, billing address, and carrier identification code ("CIC") of
the CLEC, ICO or IXCs that may utilize any portion of each
other's network in a COVAD/BELL ATLANTIC Meet Point Billing,
Reciprocal Compensation or Transient Tandem arrangement. Such
information shall be provided to each other in the format and via
the medium that the parties agree. If either party does not
initially record sufficient bill detail for any CLEC, ICO or IXC
traffic that will utilize a portion of its network in a
COVAD/BELL ATLANTIC Meet Point Billing, Reciprocal Compensation
or Transient Tandem arrangement, and for whom either Party must
supply to the other billing information, each Party agrees that
it will assist the other Party in resolving these billing matters
to allow that party to obtain reimbursement from the CLEC, ICO or
IXC by providing as much billing detail as is available to the
other Party, and by participating in any studies or discussions
required to obtain supporting detail.
c) The Parties agree that they will provide each other a single
person to contact regarding any data exchange problems.
231
<PAGE>
232
<PAGE>
Page 1
APPENDIX I
CARRIER BILLING MANAGEMENT
COST ESTIMATE BY SUPPORT FUNCTION TO DO COVAD/BELL ATLANTIC MEET-POINT
BILLING--BASED UPON A ONE YEAR TERM
- -------------------------------------------------------------------------------
FUNCTION TIME UNIT COST/
UNIT*
- -------------------------------------------------------------------------------
CUSTOMER CARE .75 hr INQUIRY $26.93
o Receive call from IXC or BELL
ATLANTIC
o.. Log Inquiry into Lotus Notes
o.. Research problem/determine
resolution
o.. Communicate resolution to "TBD" @ that
originator time
o.. If other than $ adjustment,
input change
o.. Collection of delinquent
payments
- -------------------------------------------------------------------------------
BILLING ADJUSTMENT .50 hr ADJUSTMENT $17.95
o.. Receive/Initiate call to BELL
ATLANTIC
o.. Obtain adjustment amount and
authorization
o.. Determine Phrase code or reason
for adjustment
o.. Access Billing System/input
adjustment
o.. Calculation of Late Payment
Penalty, when applicable
o.. Validate adjustment report
o.. Verify Adjustment on Bill prior
to release
- -------------------------------------------------------------------------------
233
<PAGE>
Page 2
- -------------------------------------------------------------------------------
RECEIVABLES "SETUP" AND POSTING .50 hr REPORT $17.95
...Receivable "Set-up"
o.. Access Billing System and
create Bill rendered report
o.. Send Bill Rendered report to
BELL ATLANTIC (Setup)
- -------------------------------------------------------------------------------
...Payment Posting .25 hr PAYMENT $8.97
o.. Receive payment details from
BELL ATLANTIC
o.. Access Billing System/input
payment details
o.. Determine prior months balances
o.. Validate payment report
o.. Verify payment posted on bill
prior to release
- -------------------------------------------------------------------------------
BILLING TABLE INPUT AND MAINTENANCE
...Initial One-Time activities or Multiple
inputs TO BE
o.. Receive IXC Profile data; NEGOTIATED
Name/Address/Contact AT THAT
o.. Receive Tariff and Late Payment TIME
Penalty rates from BELL ATLANTIC
o.. Confirm current NPA/NXX and MPB
%'s with BELL ATLANTIC
o.. Access Billing System/input
profile, NPA,NXX & MPB %'s,
Tariff and Late Payment Penalty
Rates
o.. Validate profile and table data
- -------------------------------------------------------------------------------
234
<PAGE>
Page 3
- -------------------------------------------------------------------------------
...Maintenance or Single inputs Profile No Charge
o.. Receive "new/changed" IXC .50 hr BAN
Profile data;
Name/Address/Contact All NPA/NXX $8.97
o.. Receive "new/changed" Tariff Oth. TARIFF RATE
and Late Payment rates from .25 hr
BELL ATLANTIC
o.. Confirm "new/changed" NPA/NXX
and MPB %'s with BELL ATLANTIC
o.. Access Billing System/input
"new/changed" data
o.. Validate profile and table data
- -------------------------------------------------------------------------------
MESSAGE PROCESSING/BILL CREATION/MAILING MSG TIER
RATE
SCHE-
DULE
- -------------------------------------------------------------------------------
DOES NOT INCLUDE ANY COSTS RELATED TO PRE-BILL CERTIFICATION
235
<PAGE>
BA Shared Transport
[GRAPHIC OMITTED]
Shared Transport =
% TDM Routed (LSCTO + CMNxpt1 + TCT1 + TDM Usage + TCT2 + CMNxpt2)
+
% Direct Routed (LSCTO + CMNxpt3)
<PAGE>
- --------------------------------------------------------------------------------
LOCAL CALLS - INTRASWITCH
- --------------------------------------------------------------------------------
UNBUNDLED NETWORK ELEMENTS
When CLECs provide local exchange service through UNE arrangements the call
flows using a single switch are as follows. These scenarios assume that all
CLECs are providing service through UNE and an ILEC switch.
- --------------------------------------------------------------------------------
1. ACII UNE Originating and ILEC Terminating
[GRAPHIC OMITTED]
ILEC bills two UNE local switching usage charges to ACII UNE and a Record
Processing Charge
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
2. ILEC Originating and ACII UNE Terminating
[GRAPHIC OMITTED]
Usage charges do not apply to ACII UNE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3. ACII UNE Originating and CLEC Terminating
[GRAPHIC OMITTED]
ILEC bills two UNE local switching usage charges to ACII UNE and a Record
Processing Charge. These charges apply regardless of any billing arrangements
between ACII UNE and CLEC UNE.
- --------------------------------------------------------------------------------
<PAGE>
TOTAL SERVICE RESALE/UNBUNDLED NETWORK ELEMENTS
When one carrier provides local exchange service through a TSR arrangement and
ACII UNE provides local exchange service through UNE arrangements, the call
flows using a single switch are as follows:
- --------------------------------------------------------------------------------
4. TSR Originating and ACII UNE Terminating
[GRAPHIC OMITTED]
Usage charges do not apply to ACII UNE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
5. ACII UNE Originating and TSR Terminating
[GRAPHIC OMITTED]
ILEC bills two UNE local switching usage charges to ACII UNE and a Record
Processing Charge. These charges apply regardless of any billing arrangements
between ACII UNE and CLEC UNE.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
LOCAL CALLS - INTERSWITCH
- --------------------------------------------------------------------------------
UNBUNDLED NETWORK ELEMENTS
When ACII UNE and another CLEC provide local exchange service through UNE
arrangements the call flows through two switches are as follows. These scenarios
assume that both the ACII UNE and the other CLEC are providing service through
UNE and ILEC switches:
- --------------------------------------------------------------------------------
6. ACII UNE Originating and ILEC Terminating
[GRAPHIC OMITTED]
ILEC bills originating ACII UNE for Local Switching Usage Charge, BA Shared
Transport Charge, Reciprocal Compensation Charge and a Record Processing Charge.
The Reciprocal Compensation Charge is billed to the originating ACII UNE at the
Meetpoint A rate.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
7. ILEC Originating and ACII UNE Terminating
[GRAPHIC OMITTED]
No usage charges apply to ACII UNE.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
8. ACII UNE Originating and CLEC UNE Terminating
[GRAPHIC OMITTED]
ILEC bills ACII UNE for Local Switching Usage Charge, BA Shared Transport
Charge, Reciprocal Compensation Charge and a Record Processing Charge. The
Reciprocal Compensation Charge is billed to the originating ACII UNE at the
Meetpoint A rate. These charges apply regardless of any billing arrangements
between ACII UNE and CLEC UNE.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
9. ACII UNE Originating and ACII UNE Terminating
[GRAPHIC OMITTED]
ILEC bills originating ACII UNE for Local Switching Usage Charge, BA Shared
Transport Charge, Reciprocal Compensation Charge and a Record Processing Charge.
The Reciprocal Compensation Charge is billed to the originating ACII UNE at the
Meetpoint A rate. Terminating ACII UNE will not bill ILEC reciprocal
compensation charges.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
10. CLEC UNE Originating and ACII UNE Terminating
[GRAPHIC OMITTED]
No usage charges apply to ACII UNE.
- --------------------------------------------------------------------------------
<PAGE>
TOTAL SERVICE RESALE [LOCAL SERVICES] UNBUNDLED NETWORK ELEMENTS
When a CLEC provides local exchange service using TSR arrangements and ACII UNE
provides local exchange service using UNE arrangements, the call flows between
two switches are as follows:
- --------------------------------------------------------------------------------
11. TSR Originating and ACII UNE Terminating
[GRAPHIC OMITTED]
No usage charges apply to ACII UNE.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
12. ACII UNE Originating and TSR Terminating
[GRAPHIC OMITTED]
ILEC bills originating ACII UNE for Local Switching Usage Charge, BA Shared
Transport Charge, Reciprocal Compensation Charge and a Record Processing Charge.
The Reciprocal Compensation Charge is billed to the originating ACII UNE at the
Meetpoint A rate. These charges apply regardless of the billing arrangements
between ACII UNE and TSR.
- --------------------------------------------------------------------------------
<PAGE>
UNBUNDLED NETWORK ELEMENTS/FACILITY BASED NETWORK
When ACII UNE provides local exchange service through UNE arrangements and
another CLEC provides local exchange service through its facility based network
(FBN), the call flows are as follows:
- --------------------------------------------------------------------------------
13. ACII UNE Originating to CLEC (FBN) Terminating
[GRAPHIC OMITTED]
ILEC will bill originating ACII UNE Local Switching Usage Charge, BA Shared
Transport Charge, Co Carrier/FBN Charge at a blended rate (pass thru charge to
the originating end, calculated in accordance with methodology set forth for
transient tandem service in this Part IV and attachment 6) and a Record
Processing Charge. These charges apply regardless of any billing arrangements
between ACII UNE and CLEC B.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
14. CLEC (FBN) Originating to ACII UNE Terminating
[GRAPHIC OMITTED]
No charges shall apply to ACII UNE. ACII UNE shall not charge ILEC Reciprocal
Compensation.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
TOLL CALLS - INTRALATA
- --------------------------------------------------------------------------------
UNBUNDLED NETWORK ELEMENTS
When ACII UNE provides local exchange service through UNE arrangements, the
intraLATA call flows are as follows. These scenarios assume that the originating
ACII UNE is also the intraLATA toll provider:
- --------------------------------------------------------------------------------
15. ACII UNE Originating to ILEC Terminating
[GRAPHIC OMITTED]
ILEC bills originating ACII UNE for Local Switching Usage Charge, BA Shared
Transport Charge, Reciprocal Compensation Charge and a Record Processing Charge.
The UNE Reciprocal Compensation Charge is billed to the originating ACII UNE at
the Meetpoint A rate.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
16. ILEC Originating to ACII UNE Terminating
[GRAPHIC OMITTED]
No usage charges apply to ACII UNE. ACII UNE shall not charge ILEC reciprocal
compensation.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
17. ACII UNE Originating to CLEC UNE Terminating
[GRAPHIC OMITTED]
ILEC bills originating ACII UNE for Local Switching Usage Charge, BA Shared
Transport Charge, Reciprocal Compensation Charge and a Record Processing Charge.
The UNE Reciprocal Compensation Charge is billed to the originating ACII UNE at
the Meetpoint A rate. These charges apply regardless of any billing arrangements
between ACII UNE and CLEC UNE.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
18. ACII UNE Originating to ACII UNE Terminating
[GRAPHIC OMITTED]
ILEC bills originating ACII UNE for Local Switching Usage Charge, BA Shared
Transport Charge, Reciprocal Compensation Charge and a Record Processing Charge.
The UNE Reciprocal Compensation Charge is billed to the originating ACII UNE at
the Meetpoint A rate. Terminating ACII UNE will not bill ILEC Reciprocal
Compensation Charges.
- --------------------------------------------------------------------------------
<PAGE>
UNBUNDLED NETWORK ELEMENTS/FACILITY BASED NETWORKS
When ACII UNE provides local exchange service through UNE arrangements and
another CLEC provides local exchange service through its facility based network,
the call flows for intraLATA toll calls are as follows:
- --------------------------------------------------------------------------------
19. ACII UNE Originating to CLEC (FBN) Terminating
[GRAPHIC OMITTED]
ILEC will bill originating ACII UNE Local Switching Usage Charge, BA Shared
Transport Charge, Co Carrier/FBN Charge at a blended rate (pass thru charge to
the originating end calculated in accordance with methodology set forth for
transient tandem service in this Part IV and in attachment 6) and a Record
Processing Charge. These charges apply regardless of any billing arrangements
between ACII UNE and CLEC.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
20. CLEC (FBN) Originating to ACII UNE Terminating
[GRAPHIC OMITTED]
No charges shall apply to ACII UNE. ACII UNE shall not charge ILEC Reciprocal
Compensation.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
TOLL CALLS INTRASTATE/INTERLATA
- --------------------------------------------------------------------------------
The following call flows assume that all calls are routed to an IXC point of
presence. The IXC may be the ACII IXC or another, non-affiliated IXC.
UNBUNDLED NETWORK ELEMENTS
When a CLEC provides local exchange service through UNE arrangements, the call
flows for intrastate/interLATA toll calls are as follows:
- --------------------------------------------------------------------------------
21. ACII UNE Originating to ACII's IXC
[GRAPHIC OMITTED]
BA charges ACII UNE one UNE local switching charge, common trunk usage,and a
record processing charge. If IXC has usage based transport, UNE transport
charges apply. If IXC has dedicated transport, no UNE transport charges apply.
ACII UNE bills access charges to IXC. The distribution of IXC access charge
revenues is in accordance with Applicable Laws.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
22. ACII UNE Originating to a Non-Affiliated IXC
[GRAPHIC OMITTED]
BA charges ACII UNE one UNE local switching charge, common trunk usage,and a
record processing charge. If IXC has usage based transport, UNE transport
charges apply. If IXC has dedicated transport, no UNE transport charges apply.
ACII UNE bills access charges to IXC. The distribution of IXC access charge
revenues is in accordance with Applicable Laws.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
23. ACII UNE Terminating from ACII's IXC
[GRAPHIC OMITTED]
BA charges ACII UNE one UNE local switching charge, common trunk usage,and a
record processing charge. If IXC has usage based transport, UNE transport
charges apply. If IXC has dedicated transport, no UNE transport charges apply.
ACII UNE bills access charges to IXC. The distribution of IXC access charge
revenues is in accordance with Applicable Laws.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
24. ACII UNE Terminating from Non-Affiliated IXC
[GRAPHIC OMITTED]
BA charges ACII UNE one UNE local switching charge, common trunk usage,and a
record processing charge. If IXC has usage based transport, UNE transport
charges apply. If IXC has dedicated transport, no UNE transport charges apply.
ACII UNE bills access charges to IXC. The distribution of IXC access charge
revenues is in accordance with Applicable Laws.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
TOLL CALLS - INTERSTATE
- --------------------------------------------------------------------------------
The following call flows assume that all calls are routed to an IXC point of
presence. The IXC may be the CLEC's own IXC or another, non-affiliated IXC.
UNBUNDLED NETWORK ELEMENTS
When a CLEC provides local exchange service through UNE arrangements, the call
flows for interstate toll calls are as follows:
- --------------------------------------------------------------------------------
25. ACII UNE Originating to ACII's IXC
[GRAPHIC OMITTED]
BA charges ACII UNE one UNE local switching charge, common trunk usage,and a
record processing charge. If IXC has usage based transport, UNE transport
charges apply. If IXC has dedicated transport, no UNE transport charges apply.
ACII UNE bills access charges to IXC. The distribution of IXC access charge
revenues is in accordance with Applicable Laws.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
26. ACII UNE Originating to a Non-Affiliated IXC
[GRAPHIC OMITTED]
BA charges ACII UNE one UNE local switching charge, common trunk usage,and a
record processing charge. If IXC has usage based transport, UNE transport
charges apply. If IXC has dedicated transport, no UNE transport charges apply.
ACII UNE bills access charges to IXC. The distribution of IXC access charge
revenues is in accordance with Applicable Laws.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
27. ACII UNE Terminating from ACII's IXC
[GRAPHIC OMITTED]
BA charges ACII UNE one UNE local switching charge, common trunk usage,and a
record processing charge. If IXC has usage based transport, UNE transport
charges apply. If IXC has dedicated transport, no UNE transport charges apply.
ACII UNE bills access charges to IXC. The distribution of IXC access charge
revenues is in accordance with Applicable Laws.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
28. ACII UNE Terminating from Non-Affiliated IXC
[GRAPHIC OMITTED]
BA charges ACII UNE one UNE local switching charge, common trunk usage,and a
record processing charge. If IXC has usage based transport, UNE transport
charges apply. If IXC has dedicated transport, no UNE transport charges apply.
ACII UNE bills access charges to IXC. The distribution of IXC access charge
revenues is in accordance with Applicable Laws.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
LOCAL 800 CALLS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
29. ACII UNE Originating and ILEC Terminating Local
800 Service
[GRAPHIC OMITTED]
No usage charges apply to ACII UNE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
30. ILEC Originating and ACII UNE Terminating
Local 800 Service
[GRAPHIC OMITTED]
ILEC bills terminating ACII UNE two Local Switching Usage Charges, 800 Database
Query Charge and a Record Processing Charge.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
31. ACII UNE Originating and ILEC Terminating Local
800 Service
[GRAPHIC OMITTED]
No usage charges apply to ACII UNE. ACII UNE shall not charge ILEC Reciprocal
Compensation.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
32. ILEC Originating and ACII UNE Terminating Local 800
[GRAPHIC OMITTED]
ILEC bills terminating ACII UNE Local Switching Usage Charge, BA Shared
Transport Charge, Reciprocal Compensation Charge, 800 Database Query Charge and
a Record Processing Charge. Reciprocal Compensation Charge is billed to
terminating ACII UNE at the Meetpoint A rate.
- --------------------------------------------------------------------------------
<PAGE>
AMENDMENT TO INTERCONNECTION AGREEMENT
This amendment is made by and between COVAD Communications Co.,
d/b/a COVAD Communications Co., a California corporation, having an office at
3650 Bassett St., Santa Clara, CA 95054 ("COVAD"), and New York Telephone
Company, d/b/a BELL ATLANTIC, a New York corporation, having an office at 1095
Avenue of the Americas, New York, New York 10036 ("BA").
WHEREAS, BA and COVAD (individually a "Party" and collectively the
"Parties") have entered into an agreement for the interconnection of their
telecommunication networks (the "Interconnection Agreement") dated December 16,
1997; and
WHEREAS, the Parties desire to amend that agreement as set
forth herein,
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, BA and COVAD agree as follows:
1. The Interconnection Agreement is hereby amended by deleting the
first three paragraphs of Section 2.9.1(g) and adding the following three
paragraphs at the start of Section 2.9.1(g):
(g) ADSL and HDSL Compatible Local Loops
At COVAD's request, BELL ATLANTIC will provide ADSL and HDSL
Compatible Local Loops, described in paragraph (4) of this subsection,
after successful completion of a Technical Trial, if necessary, and an
Operational Trial for Two-Wire ADSL, Two-Wire HDSL and Four-Wire HDSL
Compatible Local Loop types. A Technical Trial is required prior to an
Operational Trial; however, the Technical and/or operational Trial may or
may not involve COVAD and may or may not take place in New York. Upon
COVAD's request, BELL ATLANTIC will advise COVAD as to the status of any
technical and/or operational trial(s) then being conducted or already
completed by BELL ATLANTIC in any state. The Parties agree that if such
technical or operational trials are being or have been conducted by BA,
then BA shall in its sole discretion decide whether there is a need for a
Technical and/or Operational Trial with COVAD in New York. The ADSL and
HDSL Compatible Local Loops must terminate on a NID at a customer premises
and in COVAD's Collocation space.
For each of the 2-wire ADSL, 2-wire HDSL, and 4-wire HDSL types of
unbundled Local Loops, if BELL ATLANTIC makes generally available in any
of its service territories in the state of New York an ADSL or HDSL
service that
1
<PAGE>
utilizes such Local Loop type, or if BA successfully completes a Technical
Trial (whether that provided for in herein or a trial with another
Telecommunications Carrier) for such unbundled Local Loop type, then the
Technical Trial otherwise required by Section 2.9.1(g)(1) will not be
required for such unbundled Local Loop type. BELL ATLANTIC may also waive
the need for the Operational Trial, and BELL ATLANTIC will then provide
Covad, and Covad may utilize, such unbundled Local Loop types, subject to
the provisions of section 2.9.1 below. BELL ATLANTIC shall exercise its
best efforts to utilize all technical data available to it to satisfy its
requirement to conduct a Technical Trial. BELL ATLANTIC shall share with
COVAD, upon COVAD's written request, the technical trial results related
to potential interference issues of any ADSL or HDSL technical trial that
BELL ATLANTIC has undertaken with another Telecommunications Carrier in
its service territory, to the extent that the information is not
proprietary to the other Telecommunications Carrier. The results of such
other Technical Trials may be used to satisfy the Technical Trial required
under Section 2.9.1(g)(1).
If a Technical Trial is not required, but BELL ATLANTIC has
determined that an Operational Trial is necessary, COVAD may request an
Operational Trial in accordance with Section 2.9.1(g)(1), provided that
COVAD agrees to (i) conform to BELL ATLANTIC's published technical
standards, guidelines or procedures that result from other technical
trials or that are used in the general deployment of such service(s), and
(ii) use technology that is substantially similar to that underlying the
technical data subject to the other technical trials, relied on by BELL
ATLANTIC, or used in the general deployment of such service(s).
This Amendment becomes effective upon signature by each of the
Parties, and may be executed in counterparts.
COVAD Communications Co. NEW YORK TELEPHONE Company
By: By:
------------------------------ -------------------------------
Printed: Charles J. McMinn Printed: Jacob J. Goldberg
------------------------ -------------------------
Title: President and CEO Title: President - Telecom
-------------------------- ---------------------------
Industry Services
---------------------------
Date: Date:
---------------------------- ----------------------------
2
<PAGE>
AMENDMENT TO INTERCONNECTION AGREEMENT
This amendment is made by and between New York Telephone Company,
d/b/a/ Bell Atlantic-New York ("BA"), a New York corporation with offices at
1095 Avenue of the Americas, New York, New York 10036 and COVAD Communications
Co., d/b/a COVAD ("COVAD"), a California corporation with offices at 2330
Central Expressway, Santa Clara, CA 95050-2516.
WHEREAS, BA and COVAD (individually a "Party" and collectively the
"Parties"), have entered into an Interconnection Agreement (the "Interconnection
Agreement") dated December 16, 1997; and
WHEREAS, the Parties desire to amend that agreement as set forth
herein,
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, BA and COVAD agree as follows:
1. The Interconnection Agreement is hereby amended by adding the following as
Section 2.6 of Part III:
2.6 Covad may collocate Digital Subscriber Line Access Multiplexers
("DSLAM"s) in its collocated space, subject to the requirements of this Section.
Covad may install any equipment allowed by Applicable Laws, including Remote
Switching Modules ("RSM"s) and DSLAMs in its Collocation space unless and until
the FCC, the Commission, or a court of competent jurisdiction determines that
incumbent LECs need not permit Collocation of such equipment, in which event BA
must allow Covad a reasonable transition period for removing, replacing or
modifying such equipment, or for otherwise negotiating a mutually satisfactory
alternative arrangement with BA. Covad agrees that any such equipment must
comply with National Equipment Building System ("NEBS") Level III. Covad agrees
that such RSM or DSLAM equipment as may be collocated at BA premises will not be
used to provide switching functionality unless such use is specifically approved
by the Commission.
1
<PAGE>
BA will permit Covad to install, maintain, repair and use ATM
cross-connect equipment in BA Premises where Covad has established a physical
Collocation arrangement, provided that such equipment will be used to support
pre-defined point-to-point Private Virtual Connections ("PVC"s) between the
Premises-collocated equipment and other points off BA's network. The ATM
cross-connect equipment shall be used exclusively for aggregating and
transporting traffic and will not under any circumstances be used for dynamic
routing or switching of traffic. BA shall have the right at its own expense to
audit Covad's use of such collocated equipment, and if it finds that Covad is
using the equipment for switching of Local Traffic or other uses prohibited
hereunder, BA may either invoke the dispute resolution provisions of this
Agreement, or notify Covad in writing and Covad shall then remove such equipment
from BA's Premises.
2. The Interconnection Agreement is hereby amended by adding the following as
Section 2.7 of Part III:
2.7 Collocation shall be made available to Covad on BA Premises as
required by Applicable Law and in a manner that is at parity to the priorities
that BA provides to persons who are permitted to collocate, including BA's
Affiliates that are required to collocate. Pursuant to applicable Tariff, or to
Schedule 2.7 until such time as an approved Tariff is effective, BA will provide
Covad with shared cage Collocation, in which Covad can collocate equipment in
another collocating entity's physical Collocation arrangement. Upon request by
Covad for shared cage Collocation, the Parties will negotiate expeditiously and
in good faith to resolve any operational, provisioning and billing issues that
are not covered by an applicable Tariff or Schedule 2.7. Notwithstanding any
other provision of this Agreement, BA will provide Covad with alternative
Collocation arrangements (including "cage-less" physical Collocation) to the
extent that such arrangements are required by Applicable Law, and may consider
other alternative arrangements proposed by Covad. BA shall provide Collocation
at additional locations for placement of equipment necessary for Interconnection
or for access to unbundled Network Elements to the extent required by Applicable
Law.
3. The Interconnection Agreement is hereby amended by adding the following as
Section 2.11 in Part II:
2.11 The unbundled Network Elements and rates specified in this Agreement
shall be made available by BA to Covad purusant to and to the extent required by
Applicable Law. Unless otherwise provided in this Agreement, the unbundled
Network Elements specified in this Agreement shall be made available by BA to
Covad for ordering and provisioning on the Effective Date. To the extent
required by Applicable Law, and notwithstanding anything to the contrary in this
Section, BA will offer Covad nondiscriminatory access to ADSL-2W, HDSL-2W, and
HDSL-4W ULLs to the extent that BA offers such ULLs to any Telecommunications
Carrier in the state of New York. Nothing in the preceding sentence or elsewhere
in this Section is intended to obligate Bell Atlantic to provide ADSL-2W,
HDSL-2W and HDSL-4W ULLs as of a specific date (other than as may be required by
Applicable Laws) or to constitute a waiver of any right Covad
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<PAGE>
may have to obtain such Loops. In the event that a change in Applicable Law
requires Bell Atlantic to provide ADSL-2W, HDSL-2W and HDSL-4W ULLs or other
types of DSL-compatible Loops, the Parties will negotiate in good faith a
non-discriminatory, commercially reasonable schedule for the availability of
each such type of Loop consistent with Applicable Law.
4. The Interconnection Agreement is hereby amended by adding the following as
Schedule 2.7:
SCHEDULE 2.7
COLLOCATION: SHARED CAGE ARRANGEMENT
1. Service Description
(A) Shared Cages provide an additional option to Covad for
Interconnection and access to unbundled Network Elements. Shared
Cages refers to an arrangement in which a Collocation node is shared
by two CLECs purusant to terms and onditions agreed to by those
CLECs.
(B) For established collocation nodes, the initial CLEC is the
"Collocator of Record" ("COR"), or "host" collocator; the other
collocator participating in the sharing arrangement is referred to
in this Agreement as the "guest". When two collocators request
establishment of a new Collocation node, to be used as a Shared
Cage, one of the participating CLECs must agree to be the COR and
the other to be the guest. The host collocator is BA's customer, and
has all of the rights and obligations applicable under this
Agreement and the applicable Tariff to CLECs purchasing
Collocation-related services, including, without limitation, the
obligation to pay all applicable charges, whether or not the COR is
reimbursed for all or any portion of such charges by the guest.
Neither this Agreement, nor any actions taken by BA or the COR in
compliance with this Agreement or the applicable Tariff, shall
create a contractual, agency, or any other type of relationship
between BA and the guest collocator in a sharing arrangement; and BA
does not assume any liability or obligation to the guest for any
actions of the COR. The two involved collocators are solely
responsible for determining whether to share a cage, and if so upon
what terms and conditions.
2. Shared Cage Arrangement
(A) The host CLEC must notify BA in writing of its intention to share
its cage space and provide BA with a certificate of insurance from
the guest before the guest occupies the cage.
(B) All orders for Telecommunications Services or unbundled Network
Elements must be placed by or on behalf of the COR. The host and
guest may agree that such orders may be placed by the guest on
behalf of the host, but in such case BA must be provided with an
acceptable Letter of Authorization explicitly authorizing the guest
to place such orders. Where an order is placed by the guest in
conformity with this section BA will send bills for the ordered
services to the guest, and will
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<PAGE>
accept payments from the guest on the COR's account. Notwithstanding
such ordering and billing arrangements, the obligation to pay BA for
such services remains exclusively with the COR, regardless of
whether the guest complies with its obligations under its contract
with the COR to make payments to the COR or to BA. BA may pursue any
available rights and remedies against the COR in the event of
non-payment, without first seeking payment from the guest,
regardless of whether the services for which payment is due are
being used by the COR or by the guest.
(C) All terms and conditions for Physical Collocation as described in
applicable Tariffs and in Section 13.0 of this Agreement will apply.
In addition, the following terms and conditions will apply to shared
cages:
(1) The guest must be a CLEC.
(2) The host and guest must each be collocating for the purpose of
interconnecting to BA or accessing BA's unbundled Network Elements.
(3) In its use of a Shared Cage, the guest must comply with the same
BA rules and regulations and municipal/zoning regulations as are
applicable to the COR.
(4) The COR assumes the responsibility for the guest's violation of
all Tariff regulations and other requirements related to a Shared
Cage arrangement, and will be liable for any damage or injury to BA
caused by the conduct of the guest, to the same extent as the COR
would be liable if it had engaged in such conduct itself. The COR
will also indemnify BA against any third-party claims resulting from
the guest's conduct, to the same extent as it would be responsible
for such indemnification if it had engaged in such conduct itself.
(5) The host and guest will participate in Method of Procedure (MOP)
meetings detailing the installation work to be performed by the
guest. This shall be completed for all Physical Collocation
equipment installation. The host shall prominently display the
signed MOP at the multiplexing node while any installation functions
are performed.
(6) The host must provide BA's designated representative(s) with a
list of the names of all technicians who will need access to the
Shared Cage for support, maintenance and repair purposes. The host
is responsible for supplying such representative(s) with the
required completed non-employee ID badge application forms and all
appropriate indentification material for its employees/agents as
well as those of the guest.
(7) BA will issue only one identifying cage and POT Bay CLLI code
and provide it to the host. The host will assume connecting facility
assignment (CFA) responsibilities.
(8) All occupancy and specific cage construction communications
(e.g., cage augments, cage access or deployment requirements) will
be between the host and BA as specified in this Agreement.
(9) The host will remain responsible for all costs associated with
the cage (e.g., cage construction, POT Bay installation). BA will
not split bill any of the rate elements associated with the
Collocation cage between the host and its tenant (e.g., recurring
square foot charges, power, cable racking).
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This Amendment becomes effective upon signature by each of the Parties,
and may be executed in counterparts.
NEW YORK TELEPHONE COVAD
COMPANY COMMUNICATIONS CO.
By: By:
------------------------------------ --------------------------------
Printed: Jeffrey A. Masoner Printed: Dhruv Khanna
------------------------------ --------------------------
Title: Vice President - Interconnection Title: V.P. - General Counsel
-------------------------------- ----------------------------
Services Policy & Planning
--------------------------------
Date: 12/9/98 Date: 12/4/98
--------------------------------- -----------------------------
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<PAGE>
Exhibit 10.20
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of September 1, 1998 between HarvardNET, Inc., a Delaware corporation
(the "Company"), and those entities whose names appear on the signature pages
hereof (the "Holders").
This Agreement is made in connection with the Securities Purchase
Agreement, dated the date hereof (the "PURCHASE AGREEMENT") between the Company
and the Holders, pursuant to which the Holders are acquiring Series A Preferred
Stock, of the Company. The execution of and delivery of this Agreement is a
condition precedent to the obligations of the Holders under the Purchase
Agreement.
Unless otherwise defined herein, capitalized terms so used herein and not
defined shall have the same meaning as provided in the Purchase Agreement.
The parties hereby agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"BUSINESS DAY" means any day, other than a Saturday, Sunday or legal
holiday, on which banks in the State of New York are open for business.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of
the Company, as constituted on the date hereof, any shares into which such
Common Stock shall have been changed, or any shares resulting from any
reclassification of such Common Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute thereto, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
"HOLDERS" means the Holders referred to in the Preamble and any other
person holding Registrable Securities to whom these registration rights have
been assigned pursuant to Section 9(f) of this Agreement.
"MAJOR PURCHASERS" means any Holder who, at the time of measurement
thereof, holds 10% or more of the Registrable Securities.
"PERSON" shall mean an individual, partnership, corporation,
association, trust, joint venture, unincorporated organization and any
government, governmental department or agency or political subdivision thereof.
"PURCHASERS" means any person who holds Registrable Securities.
"REGISTRABLE SECURITIES" means (i) the Common Stock held by any
Holder issued or issuable pursuant to the conversion of Series A Preferred
Stock; (ii) any Common Stock or other
<PAGE>
securities issued or issuable pursuant to the conversion of, or with respect to,
Series A Preferred Stock held by any Holder upon any stock split, stock
dividend, recapitalization, or similar event; and (iii) securities issued in
replacement or exchange of any of the securities issued in clauses (i) or (ii)
above; PROVIDED, HOWEVER, that shares of Common Stock that are Registrable
Securities shall cease to be Registrable Securities upon any sale pursuant to a
registration statement or Rule 144 under the Securities Act. Wherever reference
is made in this Agreement to a request or consent of holders of a certain
percentage of Registrable Securities, the determination of such percentage shall
include shares of Common Stock issuable upon conversion of the Series A
Preferred Stock even if such conversion has not been effected.
"REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration, filing, listing and National Association of Securities
Dealers, Inc. ("NASD") fees, all fees and expenses of complying with securities
or blue sky laws, all word processing, duplicating and printing expenses, all
messenger and delivery expenses, any transfer taxes, the fees and expenses of
the Company's legal counsel and independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, fees and disbursements of one counsel for
all of the Holders, and any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities; PROVIDED, HOWEVER, that Registration
Expenses shall not include underwriting discounts and commissions.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute thereto, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the time.
"SERIES A PREFERRED STOCK" means the Series A Preferred Stock, $.01
par value per share, of the Company, as constituted on the date hereof, any
shares into which such Series A Preferred Stock shall have been changed or any
shares resulting from any reclassification of such Series A Preferred Stock.
2. REGISTRATION.
(a) REQUESTED REGISTRATION. At any time following the 180th day after the
consummation of the Company's initial public offering of shares of Common Stock,
any Major Purchaser may deliver to the Company a written request that the
Company effect the registration under the Securities Act of all or part of the
Registrable Securities held by such person (a "REQUESTED REGISTRATION"). Upon
the delivery of such request, the Company will use its best efforts to effect
the registration under the Securities Act of the Registrable Securities that the
Company has been so requested to register in accordance with this Section 2(a)
within sixty (60) days after receipt of such request or within thirty (30) days
after receipt of such request if the Company is qualified to file a registration
statement on Commission Form S-3 or any successor or similar short-form
registration statement (collectively, "COMMISSION FORM S-3"); PROVIDED, HOWEVER,
that (i) the Company shall not be obligated to effect a Requested Registration
pursuant to this Section 2(a) during the 180 day period immediately following
the commencement of a public offering of the Company's equity securities and
(ii) the Company shall not be obligated to effect a Requested Registration on
Commission Form S-1 if the anticipated aggregate offering price of the
Registrable Securities and
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<PAGE>
other securities to be sold in such registration is less than $1,000,000 unless
the requesting Major Purchasers pay the Registration Expenses incurred with
respect to such registration. The Company must effect an unlimited number of
registrations pursuant to this subdivision (a) to the extent such registrations
may be effected on Commission Form S-3, but the Company shall not be obligated
to effect more than three Requested Registrations hereunder other than on
Commission Form S-3. Subject to subdivision (f), the Company may include in such
Requested Registration other securities of the Company for sale, for the
Company's account or for the account of any other person, subject to the
managing underwriter, if any, determining that the inclusion of such additional
shares will not interfere with the orderly sale of the underwritten securities
at a price range acceptable to the Holder making a request under this Section
2(a).
(b) INCIDENTAL REGISTRATION. If the Company for itself or any of its
security holders shall at any time or times after the date hereof determine to
register under the Securities Act any shares of its capital stock or other
securities (other than (i) the registration of an offer, sale or other
disposition of securities solely to employees of, or other persons providing
services to, the Company, or any subsidiary pursuant to an employee or similar
benefit plan and (ii) registrations incident to a merger, acquisition or other
transaction of the type described in Rule 145 under the Securities Act or a
comparable or successor rule, registered on Form S-4 or similar or successor
forms), on each such occasion the Company will notify each Holder of such
determination at least thirty (30) days prior to the filing of such registration
statement, and upon the request of any Holder given in writing within twenty
(20) days after the receipt of such notice, the Company will use its best
efforts as soon as practicable thereafter to cause any of the Common Stock
specified by any such Holder to be included in such registration statement to
the extent such registration is permissible under the Securities Act and subject
to the conditions of the Securities Act and this Agreement (an "Incidental
Registration").
(c) REGISTRATION STATEMENT FORM. The Company shall, if permitted by law,
effect any registration requested under Section 2 by the filing of a
registration statement on Commission Form S-3 and shall use its best efforts to
take any action necessary to maintain its eligibility to utilize Commission Form
S-3 to permit resales as requested by the Holders with respect to "Transactions
Involving Secondary Offerings" as described in General Instruction I.B.3 of
Commission Form S-3.
(d) EXPENSES. The Company shall pay all Registration Expenses incurred in
connection with any Incidental Registration and, except as otherwise specified
in Section 2(a), any Requested Registrations.
(e) EFFECTIVE REGISTRATION STATEMENT. A Requested Registration or an
Incidental Registration requested pursuant to Section 2(a) or Section 2(b),
respectively, shall not be deemed to have been effected unless it has become
effective with the Commission; provided that the Company shall be deemed to have
satisfied its obligations hereunder with respect to any Requested Registration
other than on Form S-3 if the Significant Holder(s) requesting the same
thereafter withdraw such request prior to such Requested Registration becoming
effective with the Commission. Notwithstanding the foregoing, a registration
statement will not be deemed to have been effected if: (i) after it has become
effective with the Commission, such registration is interfered with by any stop
order, injunction, or other order or requirement of the Commission or other
governmental
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<PAGE>
agency or any court proceeding for any reason other than a misrepresentation or
omission by any Holder; or (ii) the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied, other than solely by reason of some act or
omission by any Holder.
(f) PRIORITY IN REGISTRATION. If any registration to which this Agreement
is applicable is an underwritten registration, and the managing underwriters
shall give written advice to the Company that, in their opinion, market
conditions dictate that no more than a specified maximum number of securities
(the "UNDERWRITER'S MAXIMUM NUMBER") could successfully be included in such
registration, then the Company and the Holders will be able to participate in
such offering in the following order of priority: (A) in the case of a Requested
Registration (i) first, there shall be included in such registration that number
of Registrable Securities requested to be included therein by the Purchasers,
PRO RATA in accordance with their relative holdings of Registrable Securities,
that does not exceed the Underwriter's Maximum Number, (ii) second, there shall
be included in such registration those securities that the Company proposes to
offer and sell for its own account to the full extent of the remaining portion
of the Underwriter's Maximum Number, and (iii) third, there shall be included in
such registration that number of shares of Common Stock that Holders other than
the Purchasers shall have requested to be included in such offering, PRO RATA in
accordance with such Holder's relative holdings of Common Stock, to the full
extent of the remaining portion of the Underwriter's Maximum Number; and (B) in
the case of an Incidental Registration: (i) the Company shall be entitled to
include in such registration that number of securities that the Company proposes
to offer and sell for its own account in such registration and which does not
exceed the Underwriter's Maximum Number; (ii) second, there shall be included in
such registration that number of Registrable Securities requested to be included
therein by the Purchasers, PRO RATA in accordance with their relative holdings
of Registrable Securities, to the full extent of the remaining portion of the
Underwriter's Maximum Number, and (iii) third, there shall be included in such
registration that number of shares of Common Stock that Holders other than the
Purchasers shall have requested to be included in such offering, PRO RATA in
accordance with such Holder's relative holdings of Common Stock, to the full
extent of the remaining portion of the Underwriter's Maximum Number. If the
number of shares of Common Stock requested to be included in an underwritten
offering exceeds the then remaining portion of the Underwriter's Maximum Number
as provided in clauses (A) and (B) of this Section 2(f), as the case may be,
then the Holders whose aggregate request so exceeds the then remaining portion
of the Underwriter's Maximum Number may include shares of Common Stock in such
underwritten offering PRO RATA in accordance with the relative number of shares
originally requested to be included in such offering by such Holders in the
writing delivered in accordance with Section 2(a) or Section 2(b), as the case
may be.
(g) Notwithstanding anything in paragraphs (a) and (b) of this Section 2,
the Company shall have the right to delay any registration pursuant to paragraph
(a) or (b) of this Section 2 for up to ninety (90) days if such registration
would, in the judgment of the Company's Board of Directors, substantially
interfere with any material transaction being considered at the time of receipt
of the request from the Holders.
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<PAGE>
3. REGISTRATION PROCEDURES.
(a) If and whenever the Company is required to use its best efforts to
effect the registration of any shares of Common Stock under the Securities Act
as provided in Section 2, the Company, as expeditiously as possible and subject
to the terms and conditions of Section 2, will:
(i) prepare and file with the Commission the requisite registration
statement to effect such registration and use its best efforts to cause such
registration to become and remain effective;
(ii) permit any Holder which, in the reasonable judgment of the
Holder, might be deemed to be an underwriter or a controlling person of the
Company, to participate in the preparation of such registration statement and to
require the insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such Holder and its counsel should be
included;
(iii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until the
earlier of such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement or the expiration of 180 days
after such registration statement becomes effective;
(iv) furnish to the Holders such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, as the purchaser or any Holder of Common Stock to be
sold under such registration statement may reasonably request;
(v) use its best efforts to register or qualify all Common Stock
covered by such registration statement under such other United States state
securities or blue sky laws of such jurisdictions as any Holder of Common Stock
to be sold under registration statement shall reasonably request, to keep such
registration or qualification in effect for so long as such registration remains
in effect, and take any other action that may be reasonably necessary or
advisable to enable the Holder of Common Stock to be sold under such
registration statement to consummate the disposition in such jurisdictions of
the securities owned by such Holder, except that the Company shall not for any
such purpose be required to (a) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements of
this subdivision (v) be obligated to be so qualified, or (b) subject itself to
taxation in any such jurisdiction.
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<PAGE>
(vi) use its best efforts to cause all Common Stock covered by such
registration statement to be registered with or approved by such other United
States state governmental agencies or authorities as may be necessary to enable
the Holder of Common Stock to be sold under such registration statement to
consummate the intended disposition of such Common Stock;
(vii) in the event of the issuance of any stop order suspending the
effectiveness of the registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(viii) in the case of an underwritten public offering, use it best
efforts to furnish (1) an opinion, dated the effective date of the registration
statement, of the independent counsel representing the Company for the purposes
of such registration, addressed to the underwriters, in form and substance
customarily issued to underwriters in connection with an underwritten public
offering and (2) a letter, dated the effective date of the registration
statement, from the independent certified public accountants of the Company,
addressed to the underwriters stating that they are independent certified public
accountants within the meaning of the Securities Act and that in the opinion of
such accountants, the financial statements and other financial data of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereto, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act.
(ix) immediately notify the Holders of Common Stock included in such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made, and at the request of the Holders promptly prepare and furnish
to the Holders a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the
Holders of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder, and not file any amendment
or supplement to such registration statement or prospectus to which any Holder
shall have reasonably objected in writing on the grounds that such amendment or
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<PAGE>
supplement does not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder, having been furnished
with a copy thereof at least two business days prior to the filing thereof;
(xi) provide a transfer agent for all Common Stock covered by such
registration statement not later than the effective date of such registration
statement; and
(xii) use its best efforts to list all Common Stock covered by such
registration statement on any securities exchange (or on NASD's NASDAQ) on which
any of the Company's issued and outstanding securities are then listed.
(b) The Company may require each Holder of Common Stock to be sold under
such registration statement, at the Company's expense, to furnish the Company
with such information and undertakings as it may reasonably request regarding
such Holder and the distribution of such securities as the Company may from time
to time reasonably request in writing.
(c) Each Holder, by execution of this Agreement, agrees (A) that upon
receipt of any notice of the Company of the happening of any event of the kind
described in subdivision (a)(ix) of this Section 3, such Holder will forthwith
discontinue its disposition of Common Stock pursuant to the registration
statement relating thereto until the receipt by such Holder of the copies of the
supplemented or amended prospectus contemplated by subdivision (a)(ix) of this
Section 3 and, if so directed by the Company, will deliver to the Company all
copies other than permanent file copies, then in possession of the Holders of
the prospectus relating to such Common Stock current at the time of receipt of
such notice and (B) that it will immediately notify the Company, at any time
when a prospectus relating to the registration of such Common Stock is required
to be delivered under the Securities Act, of the happening of any event as a
result of which information previously furnished by such Holder to the Company
for inclusion in such prospectus contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
under which they were made. In the event the Company or any such Holder shall
give any such notice, the period referred to in subdivision (a)(iii) of this
Section 3 shall be extended by a number of days equal to the number of days
during the period from and including the giving of notice pursuant to
subdivision (a)(ix) of this Section 3 to and including the date when such Holder
shall have received the copies of the supplemented or amended prospectus
contemplated by subdivision (a)(ix) of this Section 3.
4. UNDERWRITTEN OFFERINGS.
(a) UNDERWRITTEN OFFERING. In connection with any underwritten offering
pursuant to a registration requested under Section 2(a), the Company will enter
into an underwriting agreement with the underwriters for such offering, such
agreement to be in form and substance reasonably satisfactory to Major
Purchasers holding in the aggregate 60% or more of the Registrable Securities in
their reasonable judgment and to contain such representations and warranties by
the Company and such other terms as are customarily contained in agreements of
that type, including, without limitation, indemnities to the effect and to the
extent provided in Section 6. Each Holder proposing to distribute shares of
Common Stock in a registration in accordance with Section 2
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<PAGE>
shall, if requested by the underwriters thereof, be required to enter into an
underwriting agreement containing customary representations and warranties
regarding such Holder and its intended method of distribution and any other
representation required by law, and containing customary indemnification and
contribution provisions.
(b) SELECTION OF UNDERWRITERS. If a Requested Registration pursuant to
Section 2(a) involves an underwritten offering, then the Company shall select
the underwriter from underwriting firms of national reputation, subject to the
reasonable approval of the Holders of a majority of the Registrable Securities
to be included in such registration.
(c) HOLDBACK AGREEMENTS. Each Holder agrees, if so requested by the
managing underwriter or the Company in connection with the Company's initial
public offering and with a registration effected in accordance with Section 2,
not to effect any public sale or distribution of Series A Preferred Stock or
Common Stock (including, without limitation, making any short sale of, or
granting any option for the purchase of, any Registrable Securities) or sales of
any such securities pursuant to Rule 144 or Rule 144A under the Securities Act,
during the seven (7) days prior to and the 180 days after the Company's initial
public offering or any underwritten registration pursuant to Section 2 has
become effective (except as part of such underwritten registration) or, if the
managing underwriter advises the Company that, in its opinion, no such public
sale or distribution should be effected for a period of not more than 180 days
after such underwritten registration in order to complete the sale and
distribution of securities included in such registration and the Company gives
notice to such effect to such Holders of such advice, each Holder shall not
effect any public sale or distribution of Series A Preferred Stock or Common
Stock or sales of such securities pursuant to Rule 144 or Rule 144A under the
Securities Act during such period after such underwritten registration, except
as part of such underwritten registration, whether or not such Holder
participates in such registration.
5. PREPARATION, REASONABLE INVESTIGATION.
In connection with the preparation and filing of each registration
statement under the Securities Act, the Company will give the Holders of Common
Stock to be sold under such registration statement, the underwriters, if any,
and their respective counsel and accountants, drafts and final copies of such
registration statement, each prospectus included therein or filed with the
Commission and each amendment thereof or supplement thereto, at least 5 business
days prior to the initial filing thereof with the Commission and at least one
business day prior to any other subsequent filing or amendment, and will give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such Holders and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration under
the Securities Act pursuant to Section 2 of any Common Stock covered by such
registration, the Company will, and hereby does, indemnify and hold harmless
each Holder of Common Stock to be sold under
-8-
<PAGE>
such registration statement, each such Holder's legal counsel, each other person
who participates as an underwriter in the offering or sale of such securities
(if so required by such underwriter as a condition to including the Common Stock
of the Holders in such registration) and each other person, if any, who controls
any such Holder or any such underwriter within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which the Holders or underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained therein
or any document incorporated therein by reference, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or arise out of any violation by the Company of any rule
or regulation promulgated under the Securities Act or state securities law
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, and the Company will reimburse
the persons seeking indemnification hereunder for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; PROVIDED,
HOWEVER, that the Company shall not be liable to any person seeking
indemnification hereunder in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such person.
(b) INDEMNIFICATION BY THE HOLDERS. Each Holder that sells any Common Stock
in any registration as contemplated by this Agreement shall, severally, and not
jointly and severally, indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this Section 6) the Company,
each director of the Company, each officer of the Company, each underwriter, if
any, and each other person, if any, who controls the Company within the meaning
of the Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if, and only if, such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished in writing to the Company directly by such
person or entity specifically for use therein; PROVIDED, HOWEVER, that the
obligation of any Holder hereunder shall be limited to an amount equal to the
net cash proceeds received by such Holder upon the sale of Common Stock sold in
the offering covered by such registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by a party seeking
indemnification in accordance with this Section 6 (an "Indemnified Party") of
notice of the commencement of any action or proceeding involving a claim
referred to in the preceding subdivisions of this Section 6, such Indemnified
Party will, if a claim in respect thereof is to be made against a party required
to provide indemnification (an "Indemnifying Party"), give written notice to the
latter of the commencement of such action, PROVIDED, HOWEVER, that the failure
of any Indemnified Party to give
-9-
<PAGE>
notice as provided herein shall not relieve the Indemnifying Party of its
obligation under the preceding subdivisions of this Section 6, except to the
extent that the Indemnifying Party is actually prejudiced by such failure to
give notice. In case any such action is brought against an Indemnified Party,
unless in such Indemnified Party's reasonable judgment a conflict of interest
between such Indemnified and indemnifying parties may exist in respect of such
claim, the Indemnifying Party shall be entitled to participate in and to assume
the defense thereof, jointly with any other Indemnifying Party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such Indemnified Party, and after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party shall not be liable to such Indemnified Party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. Without the
consent of the Indemnified Party, no Indemnifying Party shall consent to entry
of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation, and, without the consent of the Indemnifying Party, no Indemnified
Party shall consent to the entry of any judgment or enter into any settlement
with respect to any claim or litigation with respect to which such Indemnified
Party seeks indemnity hereunder.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified in the
preceding subdivisions of this Section 6 (with appropriate modifications) shall
be given by the Company and each Holder of Registrable Securities included in
any registration statement with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority, other than the Securities Act.
(e) INDEMNIFICATION PAYMENT. The indemnification required by this Section 6
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
(f) SURVIVAL OF OBLIGATIONS. The obligations of the Company and of the
Holders under this Section 6 shall survive the completion of any offering of
Common Stock under this Agreement.
(g) CONTRIBUTION. If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an Indemnified Party, then each
Indemnifying Party shall contribute to the amount paid or payable to such
Indemnified Party as a result of the losses, claims, damages or liabilities
referred to in this Section 6 an amount or additional amount, as the case may
be, in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party or parties on the one hand and the Indemnified Party on the
other in connection with the statements or omissions which resulted in such
losses, claims, demands or liabilities as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party or parties on the one hand or the
Indemnified Party on the other and the parties' relative, intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid to an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this Section 6(g) shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any
-10-
<PAGE>
action or claim which is the subject of this Section 6. No person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
7. COVENANTS RELATING TO RULE 144.
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration after such time as
a public market exists for the Common Stock, the Company agrees:
(a) to make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public;
(b) to use its best efforts to then file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act, as amended (at any time after it has become
subject to such reporting requirements); and
(c) so long as a Holder owns any Common Stock, to furnish to the
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
90 days after the effective date of the first registration statement filed by
the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements) a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company as a
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing a Holder to sell any such securities without
registration.
8. OTHER REGISTRATION RIGHTS.
The Company represents and warrants that, except as provided in this
Agreement, it has not granted to any Person any right to require the Company to
register shares of the Company's capital securities under the Securities Act or
to participate in any manner in any registration or public offering of the
Company's capital securities under the Securities Act.
9. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there may be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder and that each party may be irreparably harmed by any such failure, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement.
-11-
<PAGE>
(b) NOTICES. All demands, requests, notices and other communications
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
United States first class mail, postage prepaid, and to the parties hereto at
the following address or at such other address as any party hereto shall
hereafter specify by notice to the other party hereto:
(i) if to the Company, addressed to:
HarvardNET, Inc.
One Harbour Place
Portsmouth, NH 03801
Attention: William Southworth, Chairman
Facsimile No.: (617) 532-2002
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Thomas S. Ward, Esq.
Facsimile No.: (617) 526-5000
(ii) if to the Holders, to their addresses set forth on Schedule 1
attached hereto
Except as otherwise provided herein, all such demands, requests, notices and
other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third business day after the mailing
thereof.
(c) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts, without
regard to conflicts of law principles thereof.
(d) HEADINGS. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for convenience only, and do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(e) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter, including, without limitation, any
registration or similar rights granted under (i) the subscription agreement
pursuant to which any Holder acquired Common Stock, (ii) the Agreement and Plan
of Merger dated as of November 12, 1997 by and between the Company and Internet
Northeast, a Maine corporation, or (iii) in any other agreement between or among
the Company and any of its stockholders. This Agreement
-12-
<PAGE>
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and
Purchasers holding not less than 60% of the voting power represented by the
Series A Preferred Stock or Registrable Securities held by all of the
Purchasers; PROVIDED, HOWEVER, that no amendment may be made to any provision
hereof without the prior written consent of the majority of Holders (as measured
by their relative holdings of Common Stock), if any, whose rights hereunder
would be adversely affected thereby differently than other Holders' rights would
be adversely affected thereby. Each Holder shall be bound by any amendment or
waiver effected in accordance with this Section 9(e), whether or not such Holder
has consented to such amendment or waiver. Without limitation of the foregoing,
solely with the written consent of the Company and Purchasers holding not less
than 60% of the voting power represented by the Registrable Securities held by
all of the Purchasers, this Agreement may be amended or amended and restated so
as to afford to other persons who become stockholders of the Company
registration rights that are senior in right to those granted to the Purchasers
hereunder so long as the relative registration rights of the Purchasers and the
other Holders hereunder are not amended in connection therewith.
(f) ASSIGNABILITY. This Agreement and all of the provisions hereof will be
assigned, without the consent of the Company, by any Holder to, and shall inure
to the benefit of, any purchaser, transferee or assignee of any Registrable
Securities (and in the case of Holders that are not Purchasers, any Common
Stock), unless the Holder specifies otherwise in connection with any particular
purchase, transfer or assignment. However, the Company shall not be required to
recognize any such purchaser, transferee or assignee as a Holder under this
Agreement unless and until either (i) such person becomes the holder of record
of the securities so purchased, transferred or assigned or (ii) the Company
receives written notice of such purchase, transfer or assignment.
(g) COUNTERPARTS. This 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.
-13-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
HARVARDNET, INC.
By: /s/ William Southworth
-----------------------------------
Name:
Title:
MEDIA/COMMUNICATIONS PARTNERS III
LIMITED PARTNERSHIP
By: M/C III L.L.C., its General Partner
By: /s/ James Wade
-----------------------------------
Duly Authorized Signatory
M/C INVESTORS L.L.C.
By: /s/ James Wade
-----------------------------------
Duly Authorized Signatory
CHESTNUT STREET PARTNERS, INC.
By: /s/ James Wade
-----------------------------------
Duly Authorized Signatory
FTT VENTURES LIMITED
By: /s/ Donald Heaton
-----------------------------------
Name:
----------------------------
Title: Treasurer
<PAGE>
FIDELITY INVESTORS II LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC,
its General Partner
By:
Name: /s/ Donald Heaton
----------------------------
Title:
/s/ Jeffrey Osborn
--------------------------------------
Jeffrey Osborn
ROBERT T. VASAN TRUST U/D/T DATED
4/10/97
By: /s/ Robert Vasan
-----------------------------------
Robin Vasan, Trustee
/s/ Martin D. H. Bloom
--------------------------------------
Martin D. H. Bloom
/s/ William Southworth
--------------------------------------
William Southworth
/s/ Barbara Southworth
--------------------------------------
Barbara Southworth
-2-
<PAGE>
/s/ Barry Unger
--------------------------------------
Barry Unger
/s/ Brent Paine
--------------------------------------
Brent Paine
BUZBY-VASAN TRUST 1997
By: /s/ David Buzby
----------------------------------
Trustee
/s/ Mark E. Hopper
--------------------------------------
Mark E. Hopper
/s/ Joseph B. Miele
------------------------------------
Joseph B. Miele
/s/ Aaron Burnett
------------------------------------
Aaron Burnett
/s/ Roger W. Ach III
------------------------------------
Roger W. Ach III
-3-
<PAGE>
-----------------------------------
Scott A. Balfour
-4-
<PAGE>
PETER M. KENDRICK TRUST
By: /s/ Peter M. Kendrick
---------------------------------
Peter M. Kendrick, Trustee
-5-
<PAGE>
SCHEDULE 1
NAME AND ADDRESS OF HOLDER
MEDIA/COMMUNICATIONS PARTNERS III LIMITED PARTNERSHIP
75 State Street
Boston, Massachusetts 02110
Telephone No.: (617) 345-7200
Facsimile No.: (617) 345-7201
Attention: James F. Wade
and Peter H.O. Claudy
with a copy, which shall not constitute notice, to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Facsimile No.: (617) 439-4170
Attention: Leonard Q. Slap, Esq.
M/C INVESTORS L.L.C.
75 State Street
Boston, Massachusetts 02110
Telephone No.: (617) 345-7200
Facsimile No.: (617) 345-7201
Attention: James F. Wade
and Peter H.O. Claudy
with a copy, which shall not constitute notice, to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Facsimile No.: (617) 439-4170
Attention: Leonard Q. Slap, Esq.
CHESTNUT STREET PARTNERS, INC.
(a Small Business Investment Company licensed
by the U.S. Small Business Administration)
75 State Street
Boston, Massachusetts 02110
Telephone No.: (617) 345-7200
Facsimile No.: (617) 345-7201
Attention: James F. Wade
and Peter H.O. Claudy
with a copy, which shall not constitute notice, to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Facsimile No.: (617) 439-4170
Attention: Leonard Q. Slap, Esq.
<PAGE>
NAME AND ADDRESS OF HOLDER
FTT VENTURES LIMITED
c/o Fidelity Capital
82 Devonshire Street
Boston, MA 02109
Attention: Robert C. Ketterson, Vice President Telephone No.: Telephone No:
(617) 563 4159
Facsimile No.: (617) 476-5805
OR, IF BY HAND, TO:
100 Summer Street
25th Floor
Boston, MA 02110
with a copy to, which shall not constitute notice, to:
Sullivan and Worcester, LLP
One Post Office Square
Boston, MA 02109
Facsimile No.: (617) 338-2880
Attention: Karen L. Linsley, Esq.
FIDELITY INVESTORS II LIMITED PARTNERSHIP
c/o Fidelity Capital
82 Devonshire Street
Boston, MA 02109
Attention: Robert C. Ketterson, Vice President
Telephone No. (617) 563 4159
Facsimile No.: (617) 476-5805
OR, IF BY HAND, TO:
100 Summer Street
25th Floor
Boston, MA 02110
with a copy to, which shall not constitute notice, to:
Sullivan and Worcester, LLP
One Post Office Square
Boston, MA 02109
Facsimile No.: (617) 338-2880
Attention: Karen L. Linsley, Esq.
JEFFREY OSBORN
41582 Spring Valley Lane
Leesburg, VA 20175
Telephone No.: (703) 327-2094
Facsimile No.: (703) 327-3131
-2-
<PAGE>
NAME AND ADDRESS OF HOLDER
ROBERT T. VASAN TRUST
2690 Millenium Circle
Reno, NV 89512
Telephone No.: (617) 493-8546
Facsimile No.: None
MARTIN D.H. BLOOM
50 Eton Court, Eton Avenue
London NW3 3HJ England
Telephone No.: 011 44 171 586-3518
Facsimile No.: 011 44 171 483-2657
with a copy to, which shall not constitute notice, to:
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, MA 02110
Facsimile No.: (617) 248-7100
Attention: George W. Thibeault, Esq.
WILLIAM SOUTHWORTH
91 Ann Lee Road
Harvard, MA 01451
Telephone No.: (617) 262-4200
Facsimile No.: (617) 531-2002
BARBARA SOUTHWORTH
91 Ann Lee Road
Harvard, MA 01451
Telephone No.: (617) 262-4200
Facsimile No.: (617) 531-2002
BRENT PAINE
5 Pumpkin Circle
Exeter, NH 03833
Telephone No.: (603) 778-9674
Facsimile No.: [ ]
SCOTT A. BALFOUR
95 Bowery Beach Road
Cape Elizabeth, ME 04107
Telephone No.: (207) 761-7779
Facsimile No.: (207) 879-1416
PETER M. KENDRICK TRUST
4 Landing Woods Lane
-3-
<PAGE>
NAME AND ADDRESS OF HOLDER
Falmouth, ME 04107
Telephone No.: (207) 781-5206
BARRY UNGER
189 Richdale Avenue
Suite B-9
Cambridge, MA 02140
Telephone No.: (617) 868-1950
Facsimile No.: (617) 497-6209
BUZBY-VASAN 1997 TRUST
1373 3rd Avenue
San Francisco, CA 94122
Telephone No.: (415) 664-9790
Facsimile No.: (415) 664-9781
MARK E. HOPPER
17 Stonebridge Circle
New Castle, ME 04553
Telephone No.: (207) 563-2155
Facsimile No.: (207) 879-1416
JOSEPH B. MIELE
26 Oak Street
South Portland, ME 04106
AARON BURNETT
10 Florence Road
Gray, ME 04039
Telephone No.: (207) 657-4727
Facsimile No.: (207) 531-2009
ROGER W. ACH III
6 Greenview Street
Framingham, MA 01701
Telephone No.: (508) 820-1857
Facsimile No.: (617) 531-2002
-4-
<PAGE>
Exhibit 10.21
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
The REGISTRATION RIGHTS AGREEMENT (the "Agreement") originally made
as of September 1, 1998 among HARVARDNET INC., a Delaware corporation, and the
other parties signatory thereto is hereby amended as follows, effective May 28,
1999:
1. Except as otherwise provided herein, all capitalized terms which have defined
meanings in the Agreement have the same meanings herein as therein.
2. (a) The definition of "Registrable Securities" in the Agreement shall be
deleted and the following substituted therefor:
"REGISTRABLE SECURITIES" means (i) the Common Stock
held by any Holder including any Common Stock issued or
issuable pursuant to the conversion of Series A Preferred
Stock or upon the exercise of the Warrants; (ii) any Common
Stock or other securities issued or issuable pursuant to the
conversion of, or with respect to, Series A Preferred Stock or
Warrants held by any Holder upon any stock split, stock
dividend, recapitalization, or similar event; and (iii)
securities issued in replacement or exchange of any of the
securities issued in clauses (i) or (ii) above; PROVIDED,
HOWEVER, that the shares of Common Stock that are Registrable
Securities shall cease to be Registrable Securities upon any
sale pursuant to a registration statement or Rule 144 under
the Securities Act. Wherever reference is made in this
Agreement to a request or consent of holders of a certain
percentage of Registrable Securities, the determination of
such percentage shall include shares of Common Stock issuable
upon conversion of the Series A Preferred Stock and upon
exercise of the Warrants even if such conversion or exercise
has not been effected.
(b) "SERIES A PREFERRED STOCK" means the Series A-1 Preferred
Stock and Series A-2 Preferred Stock, par value $.01 per share, of the Company
as constituted on the date hereof, any shares into which such Preferred Stock
shall have been changed or any shares resulting from any reclassification of
such Preferred Stock.
(c) "WARRANTS" means warrants, each of which initially entitle
the holder thereof to purchase one share of Common Stock, subject to adjustment,
issued in connection with the Credit Agreement dated as of May 28, 1999 among
HarvardNET, Inc. and the Initial Lenders named therein.
3. Morgan Stanley Senior Funding, Inc. (the "Additional Purchaser") is
hereby added as an additional Purchaser and an additional Holder.
4. All other terms of the Agreement, as heretofore in effect, are
hereby approved, ratified and confirmed.
IN WITNESS WHEREOF, this First Amendment to the Registration Rights
Agreement is hereby executed as of the date first written above by the Company,
the Additional Purchaser and
<PAGE>
Purchasers holding not less than 60% of the voting power represented by the
Series A Preferred Stock or Registrable Securities held by all of the
Purchasers.
HARVARDNET INC.
By: /s/ Mark Washburn
-------------------------------------
Name: Mark Washburn
Title: President and Chief Executive
Officer
MEDIA/COMMUNICATIONS PARTNERS III
LIMITED PARTNERSHIP
By: M/C III L.L.C., its General Partner
By: /s/
-------------------------------------
Duly Authorized Signatory
M/C INVESTORS L.L.C.
By: /s/
-------------------------------------
Duly Authorized Signatory
M/C VENTURE PARTNERS IV, L.P.
By: /s/
-------------------------------------
Duly Authorized Signatory
CHESTNUT STREET PARTNERS, INC.
By: /s/
-------------------------------------
Duly Authorized Signatory
FTT VENTURES LIMITED
-2-
<PAGE>
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
FIDELITY INVESTORS II LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC,
its General Partner
By:
Name: /s/
--------------------------------
Title:
------------------------------------------
Jeffrey Osborn
ROBERT T. VASAN TRUST U/D/T DATED
4/10/97
By: /s/
-------------------------------------
Robert T. Vasan, Trustee
------------------------------------------
Martin D. H. Bloom
------------------------------------------
Barry Unger
------------------------------------------
Brent Paine
-3-
<PAGE>
------------------------------------------
Mark E. Hopper
------------------------------------------
Joseph B. Miele
------------------------------------------
Aaron Burnett
------------------------------------------
Roger W. Ach III
------------------------------------------
Scott A. Balfour
ROBERT T. VASAN TRUST U/D/T DATED
4/10/97
By:
--------------------------------------
Robin Vasan, Trustee
BUZBY-VASAN 1997 TRUST
By:
--------------------------------------
David Buzby, Trustee
WILLIAM H. SOUTHWORTH AND BARBARA
A. SOUTHWORTH, AS JOINT TENANTS WITH
RIGHTS OF SURVIVORSHIP
By: /s/ William H. Southworth
--------------------------------------
William H. Southworth
By: /s/ Barbara A. Southworth
--------------------------------------
Barbara A. Southworth
-4-
<PAGE>
PETER M. KENDRICK TRUST
By:
--------------------------------------
Peter M. Kendrick, Trustee
ADDITIONAL PURCHASER:
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Lucy Golbraith
--------------------------------------
-5-
<PAGE>
/s/ Mark Washburn
------------------------------------------
Mark Washburn
/s/ Todd DeSisto
------------------------------------------
Todd DeSisto
/s/ Eric Peterson
------------------------------------------
Eric Peterson
/s/ James Newman
------------------------------------------
James Newman
-6-
<PAGE>
SCHEDULE 1
NAME AND ADDRESS OF HOLDER
MEDIA/COMMUNICATIONS PARTNERS III LIMITED PARTNERSHIP
75 State Street
Boston, Massachusetts 02110
Telephone No.: (617) 345-7200
Facsimile No.: (617) 345-7201
Attention: James F. Wade
and Peter H.O. Claudy
with a copy, which shall not constitute notice, to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Facsimile No.: (617) 439-4170
Attention: Leonard Q. Slap, Esq.
M/C INVESTORS L.L.C.
75 State Street
Boston, Massachusetts 02110
Telephone No.: (617) 345-7200
Facsimile No.: (617) 345-7201
Attention: James F. Wade
and Peter H.O. Claudy
with a copy, which shall not constitute notice, to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Facsimile No.: (617) 439-4170
Attention: Leonard Q. Slap, Esq.
CHESTNUT STREET PARTNERS, INC.
(a Small Business Investment Company licensed
by the U.S. Small Business Administration)
75 State Street
Boston, Massachusetts 02110
Telephone No.: (617) 345-7200
Facsimile No.: (617) 345-7201
Attention: James F. Wade
and Peter H.O. Claudy
with a copy, which shall not constitute notice, to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Facsimile No.: (617) 439-4170
Attention: Leonard Q. Slap, Esq.
<PAGE>
NAME AND ADDRESS OF HOLDER
FTT VENTURES LIMITED
c/o Fidelity Capital
82 Devonshire Street
Boston, MA 02109
Attention: Robert C. Ketterson, Vice President Telephone No.: Telephone No:
(617) 563 4159
Facsimile No.: (617) 476-5805
OR, IF BY HAND, TO:
100 Summer Street
25th Floor
Boston, MA 02110
with a copy to, which shall not constitute notice, to:
Sullivan and Worcester, LLP
One Post Office Square
Boston, MA 02109
Facsimile No.: (617) 338-2880
Attention: Karen L. Linsley, Esq.
FIDELITY INVESTORS II LIMITED PARTNERSHIP
c/o Fidelity Capital
82 Devonshire Street
Boston, MA 02109
Attention: Robert C. Ketterson, Vice President
Telephone No. (617) 563 4159
Facsimile No.: (617) 476-5805
OR, IF BY HAND, TO:
100 Summer Street
25th Floor
Boston, MA 02110
with a copy to, which shall not constitute notice, to:
Sullivan and Worcester, LLP
One Post Office Square
Boston, MA 02109
Facsimile No.: (617) 338-2880
Attention: Karen L. Linsley, Esq.
-2-
<PAGE>
JEFFREY OSBORN
41582 Spring Valley Lane
Leesburg, VA 20175
Telephone No.: (703) 327-2094
Facsimile No.: (703) 327-3131
ROBERT T. VASAN TRUST
2690 Millenium Circle
Reno, NV 89512
Telephone No.: (617) 493-8546
Facsimile No.: None
MARTIN D.H. BLOOM
50 Eton Court, Eton Avenue
London NW3 3HJ England
Telephone No.: 011 44 171 586-3518
Facsimile No.: 011 44 171 483-2657
with a copy to, which shall not constitute notice, to:
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, MA 02110
Facsimile No.: (617) 248-7100
Attention: George W. Thibeault, Esq.
WILLIAM SOUTHWORTH
91 Ann Lee Road
Harvard, MA 01451
Telephone No.: (617) 262-4200
Facsimile No.: (617) 531-2002
BARBARA SOUTHWORTH
91 Ann Lee Road
Harvard, MA 01451
Telephone No.: (617) 262-4200
Facsimile No.: (617) 531-2002
BRENT PAINE
5 Pumpkin Circle
Exeter, NH 03833
Telephone No.: (603) 778-9674
Facsimile No.: [ ]
-3-
<PAGE>
SCOTT A. BALFOUR
95 Bowery Beach Road
Cape Elizabeth, ME 04107
Telephone No.: (207) 761-7779
Facsimile No.: (207) 879-1416
PETER M. KENDRICK TRUST
4 Landing Woods Lane
Falmouth, ME 04107
Telephone No.: (207) 781-5206
BARRY UNGER
189 Richdale Avenue
Suite B-9
Cambridge, MA 02140
Telephone No.: (617) 868-1950
Facsimile No.: (617) 497-6209
BUZBY-VASAN 1997 TRUST
1373 3rd Avenue
San Francisco, CA 94122
Telephone No.: (415) 664-9790
Facsimile No.: (415) 664-9781
MARK E. HOPPER
17 Stonebridge Circle
New Castle, ME 04553
Telephone No.: (207) 563-2155
Facsimile No.: (207) 879-1416
JOSEPH B. MIELE
26 Oak Street
South Portland, ME 04106
AARON BURNETT
10 Florence Road
Gray, ME 04039
Telephone No.: (207) 657-4727
Facsimile No.: (207) 531-2009
ROGER W. ACH III
6 Greenview Street
Framingham, MA 01701
Telephone No.: (508) 820-1857
Facsimile No.: (617) 531-2002
-4-
<PAGE>
MARK WASHBURN
6 Whitetail Lane
Sudbury, MA 01776
JAMES NEWMAN
2 Maude Terrace
Walpole, MA 02081
TODD DESISTO
11 Hugh Strain Road
Cohasset, MA 02025
ERIC PETERSON
141 Rosemont Drive
North Andover, MA 01845
MORGAN STANLEY SENIOR FUNDING, INC.
1585 Broadway
New York, NY 10036
Telephone No.:
Facsimile No.:
With a copy, which shall not constitute notice, to:
SHEARMAN & STERLING
599 Lexington Avenue
New York, NY 10022
Telephone No.: (212) 848-4000
Facsimile: (212) 848-7179
Attention: Andrew R. Schleider, Esq.
-5-
<PAGE>
Exhibit 21.1
Subsidiaries
HarvardNet -- Virginia, Inc.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-1 of our
reports dated June 10, 1999 relating to the financial statements and financial
statement schedule of HarvardNET Inc. and the financial statements of Internet
Northeast, and of our report dated May 14, 1999 relating to the financial
statements of the Network Services Division of Comstor Corporation, which appear
in such Registration Statement. We also consent to the references to us under
the headings "Experts" and "Selected Financial Data" in such Registration
Statement.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
June 11, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM HARVARDNET,
INC. AUDITED FINANCIAL STATEMENTS FOR THE FISCAL YEARS ENDED DECEMBER 31, 1997
AND 1998 AND THE UNAUDITED STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED
MARCH 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C> <C>
<PERIOD-TYPE> YEAR YEAR 3-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1998 MAR-31-1999
<PERIOD-START> JAN-01-1997 JAN-01-1998 JAN-01-1999
<PERIOD-END> DEC-31-1997 DEC-31-1998 MAR-03-1999
<CASH> 426 5,239 8,975
<SECURITIES> 0 0 0
<RECEIVABLES> 168 175 546
<ALLOWANCES> 25 50 83
<INVENTORY> 0 0 0
<CURRENT-ASSETS> 597 5,643 10,127
<PP&E> 229 1,057 1,704
<DEPRECIATION> 0 0 0
<TOTAL-ASSETS> 3,958 8,853 16,049
<CURRENT-LIABILITIES> 364 1,007 985
<BONDS> 0 0 0
0 0 0
0 0 0
<COMMON> 0 0 0
<OTHER-SE> 0 0 0
<TOTAL-LIABILITY-AND-EQUITY> 3,958 8,853 16,049
<SALES> 0 0 0
<TOTAL-REVENUES> 1,381 4,282 1,600
<CGS> 0 0 0
<TOTAL-COSTS> 0 0 0
<OTHER-EXPENSES> 0 0 0
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 0 0 0
<INCOME-PRETAX> 0 0 0
<INCOME-TAX> 0 0 0
<INCOME-CONTINUING> 0 0 0
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> (139) (1,260) (1,300)
<EPS-BASIC> 0 0 0
<EPS-DILUTED> 0 0 0
</TABLE>
