Interconnection Agreement [Amendment No. 1] - Southwestern Bell Telephone Co. and Birch Telecom of Kansas Inc.
AMENDMENT NO. 1 TO INTERCONNECTION AGREEMENT
BY AND BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
BIRCH TELECOM OF KANSAS, INC.
The Interconnection Agreement ("the Agreement") by and between
Southwestern Bell Telephone Company ("SWBT") and Birch Telecom of Kansas, Inc.
("CLEC") is hereby amended as follows:
(1) The Index of Appendices is amended to reflect that the following
appendices were amended December, 1999:
General Terms and Conditions
Appendix Unbundled Network Elements
Unbundled Network Elements Price Schedule
(2) The Index of Appendices is amended to reflect the addition of
the following appendix December, 1999:
FCC Merger Conditions
(3) General Terms and Conditions Section 22.2 is deleted and
replaced with a new Section 22.2 set forth below, which extends the termination
date of this agreement to January 12, 2001.
22.2 The initial term of this Agreement shall expire on January 12,
2001. Absent the receipt by one Party of written notice from the other Party at
least sixty (60) days prior to the expiration of the Term to the effect that
such Party does not intend to extend the Term of this Agreement, this Agreement
shall automatically renew and remain in full force and effect on and after the
expiration of the Term until terminated by either Party pursuant to Section
22.3, below.
(4) General Terms and Condition Section 30.18 Intervening Law is
deleted and replaced with a new Section 30.18 set forth below. General Terms and
Conditions, as amended, is attached in its entirety.
30.18 INTERVENING LAW. This Agreement is entered into as a result of
both private negotiation between the Parties and the incorporation of some of
the results of arbitration by the Kansas Corporation Commission. In the event
that any of the rates, terms and/or conditions herein, or any of the laws or
regulations that were
<PAGE>
the basis or rationale for such rates, terms and/or conditions in the Agreement,
are invalidated, modified or stayed by any action of any state or federal
regulatory or legislative bodies or courts of competent jurisdiction, including
but not limited to any decision by the Eighth Circuit relating to any of the
costing/pricing rules adopted by the FCC in its First Report and Order, IN RE:
IMPLEMENTATION OF THE LOCAL COMPETITION PROVISIONS IN THE TELECOMMUNICATIONS ACT
OF 1996, 11 FCC Rcd 15499 (1996)(e.g., Section 51.501, et seq.), upon review and
remand from the United States Supreme Court, in AT&T CORP. V. IOWA UTILITIES
BD., 119 S. Ct. 721 (1999) or AMERITECH V. FCC, No. 98-1381, 1999 WL 116994,
1999 Lexis 3671 (June 1, 1999), the affected provision shall be immediately
invalidated, modified, or stayed, consistent with the action of the legislative
body, court, or regulatory agency upon the written request of either Party. In
such event, the Parties shall expend diligent efforts to arrive at an agreement
regarding the appropriate conforming modifications to the Agreement. If
negotiations fail, disputes between the Parties concerning the interpretation of
the actions required or provisions affected by such governmental actions shall
be resolved pursuant to the dispute resolution process provided for in this
Agreement. Without limiting the general applicability of the foregoing, the
Parties acknowledge that on January 25, 1999, the United States Supreme Court
issued its opinion in AT&T CORP. V. IOWA UTILITIES BD., 119 S. Ct. 721 (1999)
and on June 1, 1999, the United States Supreme Court issued its opinion in
AMERITECH V. FCC, No. 98-1381, 1999 WL 116994, 1999 Lexis 3671 (1999). The
Parties further acknowledge and agree that by executing this Agreement, neither
Party waives any of its rights, remedies, or arguments with respect to such
decisions and any remand thereof, including its rights under this Intervening
Law paragraph.
(5) Appendix Unbundled Network Elements has been amended to add the
following language as Section 13.0 and 13.1 set forth below. Appendix Unbundled
Network Elements, as amended, is attached in its entirety.
13.0 RESERVATION OF RIGHTS
13.1 The Parties acknowledge and agree that the rates attached hereto
are subject to any legal or equitable rights of review and remedies (including
agency reconsideration and court review). If any reconsideration, agency order,
appeal, court order or opinion, stay, injunction or other action by any state or
federal regulatory body or court of competent jurisdiction stays, modifies, or
otherwise affects any of the rates, terms and conditions herein, then the
Parties shall expend diligent efforts to arrive at an agreement on conforming
modifications to this Agreement. If negotiations fail, disputes between the
Parties concerning the interpretation of the actions required or the provisions
affected shall be handled under the Dispute Resolution procedures set forth in
this Agreement. The Parties agree that any future Commission-set rates shall
apply to this Agreement on a prospective basis from the effective date of the
Commission Order. Neither Party
<PAGE>
waives its right to challenge the Commission UNE Cost Docket Orders or any other
regulatory requirement that affects the rates in this contract, nor is either
Party waiving its right to contend that any such law, rule, or regulatory
decision should be revised, eliminated or modified.
(6) The existing Appendix Pricing attached to Appendix UNE is
deleted and replaced with the two UNE Rate Tables attached hereto, one bearing
the effective date 07-01-1999 through 09-16-1999 (the "July 1, 1999 UNE Rate
Table"), the other bearing the effective date of 09-17-1999 (the "September 17,
1999 UNE Rate Table"). For the period from July 1, 1999 to September 16, the
July 1, 1999 UNE Rate Table, which reflects the UNE prices established by the
Commission in its February 12, 1999 Final Order in Docket No. 97-SCCC-149-GIT,
will be deemed to have been effect. No later than 30 days after the effective
date of this amendment, SWBT shall refund or credit to CLEC the difference
between the (i) amount paid by CLEC pursuant to the stricken Appendix Pricing
for the period July 1, 1999 through September 16, 1999, and (ii) the amount that
would have been paid during that same period pursuant to the July 1, 1999 UNE
Rate Table. For the period from September 17, 1999 forward, the September 17,
1999 UNE Rate Table, which reflects the UNE prices established by the Commission
in its September 17, 1999 Order on Reconsideration in Docket No.
97-SCCC-149-GIT, will be deemed to have been in effect. No later than 30 days
after the effective date of this amendment, SWBT shall refund or credit to CLEC
the difference between the (i) amount paid by CLEC pursuant to the stricken
Appendix Pricing for the period from September 17, 1999 to the effective date of
this amendment, and (ii) the amount that would have been paid during that same
period pursuant to the September 17, 1999 UNE Rate Table.
(7) EXCEPT AS MODIFIED HEREIN, ALL OTHER TERMS AND CONDITIONS OF THE
UNDERLYING AGREEMENT SHALL REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT, and
such terms are hereby incorporated by reference and the Parties hereby reaffirm
the terms and provisions thereof. The parties have prepared and attached to this
Amendment amended versions of the Agreement's General Terms and Conditions and
Appendix Unbundled Network Elements that are intended to reflect precisely the
modifications contained in this Amendment No. 1 to Interconnection Agreement.
Any changes to the Agreement in addition to, or different from, the
modifications contained herein are unintended and are void.
(8) This Amendment shall be filed with and is subject to approval by
the Commission and shall become effective ten (10) days following approval by
such the Commisssion.
<PAGE>
IN WITNESS WHEREOF, this Amendment to the Agreement was exchanged in
triplicate on this 24th day of January, 2000, by SWBT, signing by and through
its duly authorized representative, and CLEC, signing by and through its duly
authorized representative.
BIRCH TELECOM OF KANSAS, INC. *SOUTHWESTERN BELL TELEPHONE
COMPANY
AECN/OCN: 8856
By: /s/ Gregory C. Lawhon By: /s/ Sandy Kinney
-------------------------- --------------------------------
Title: Senior Vice President Title: President - Industry Markets
Name: Gregory C. Lawhon Name: Sandy Kinney
(Print or Type) (Print or Type)
*On January 25, 1999, the United States Supreme Court issued its opinion in AT&T
CORP. V. IOWA UTILITIES BOARD, 119 S. Ct. 721 (1999) and on June 1, 1999, the
United States Supreme Court issued its opinion in AMERITECH V. FCC, No. 98-1381,
1999 WL 116994, 1999 Lexis 3671 (June 1, 1999). By executing this amendment,
SWBT does not waive any of its rights, remedies or arguments with respect to
such decisions and any remands thereof, including its rights under Section 30.18
of the Interconnection Agreement between Birch Telecom of Kansas, Inc. and
Southwestern Bell.