Resale Agreement - Southwestern Bell Telephone Co. and Birch Telecom of Missouri Inc.
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RESALE AGREEMENT BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND BIRCH TELECOM OF MISSOURI, INC.
This Agreement is between Southwestern Bell Telephone Company ("SWBT"),
a Missouri corporation, and Birch Telecom of Missouri, Inc. ("LSP")
(collectively, "the Parties" and singly, "Party") entered into this 21st day
of August, 1997.
WHEREAS, pursuant to the Telecommunications Act of 1996 (the "Act"),
the Parties wish to establish terms for the purchase by LSP of certain SWBT
retail telecommunications services and certain other services for resale by LSP
to its local exchange end users in the State of Missouri. Therefore, the Parties
hereby agree as follows:
I. DESCRIPTION AND CHARGES FOR SERVICES
A. Attached hereto as Exhibit A is a list of Telecommunications
Services currently available for resale at the wholesale
discount rate of thirteen and two-tenthS percent (13.2%) off
the retail rate for each service. Except as otherwise
expressed herein and consistent with SWBT's obligation
under Section 251(c)(4)(A) of the Act, LSP may resell other
Telecommunications Services offered by SWBT and not listed in
Exhibit A at the same discount. Exhibit B contains a list of
other services available for resale at the discount included
in the exhibit. In addition to the services listed in Exhibit
A and Exhibit B, LSP may resell custom service arrangements
(CSAs) /Individual Case Basis (ICB) offerings without discount
to the extent such service is a telecommunications service as
defined by the Act.
B. SWBT will make available to LSP for resale SWBT's Bill Plus
and Consolidated Billing service at a discount of five percent
(5%) off of SWBT's tariffed rate for each service (or in the
event either of these services is not tariffed, at the lowest
rate charged to any other local service provider or SWBT
subscriber.
C. SWBT shall make available for resale by LSP the following SWBT
services at SWBT's tariffed rate for each service (or in the
event a service is not tariffed, at the rate SWBT charges its
subscribers, except as otherwise provided herein):
- Construction Charges
- Distance Learning
- Connections with Terminal Equipment and Communication
Systems
- Maintenance of Service Charges
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- Suspension Services
- Telecommunications Service Priority Systems
- Access Services
- Cellular Mobile Telephone Interconnection Services
- Exchange Connection Services
- Shared Tenant Service
D. Suspension of Service discounts apply to the discounted rate
for the underlying service. When LSP resells Shared Tenant
Service, LSP will receive the discount associated with the
underlying service used in the shared tenant arrangement.
E. SWBT shall be under no obligation to offer the following for
resale:
- BDS/LAN
- Customer Provided Equipment
- Customized Billing Reports
- InLine(R) Products
- Inside Wiring
- Semi-Public Telephone Booths and Enclosures
- 911 Universal Emergency Number Equipment
F. Educational and Lifeline/Linkup services will be wholesale
priced at zero discount.
G. Grandfathered services are also available for resale at the
applicable wholesale discount to the same customers at the
same location to which SWBT offers the service.
H. Telecommunications Services will be resold to LSP on terms and
conditions that are reasonable and nondiscriminatory.
I. Unless otherwise provided in this Agreement, SWBT will perform
all of its obligations hereunder throughout the entire service
area where SWBT is the incumbent local exchange carrier. SWBT
will provide the services covered by this Attachment subject
to the availability of facilities in this state on a
nondiscriminatory basis with its other customers.
J. LSP may offer to resell Customer Initiated Suspension and
Restoral Service to their end users as outlined in the
corresponding retail tariff. SWBT will offer to LSP Company
Initiated Suspension Service for their own purposes at the
SWBT retail tariffed rate. Should LSP choose to suspend their
end user through Company Initiated Suspension Service, this
suspension period shall not exceed fifteen (15) calendar days.
If LSP
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issues a disconnect on their end user account within the
fifteen (15) day period, appropriate services will not be
billed for the suspension period. However, should LSP issue a
disconnect after the fifteen (15) day suspension period, LSP
will be responsible for all appropriate charges on the account
back to the suspension date. Should LSP restore their end
user, restoral charges at the SWBT retail tariffed rate will
apply and LSP will be billed for the appropriate service from
the time of suspension.
II. TERMS AND CONDITIONS FOR RESALE OF SERVICES
The following terms and conditions are applicable to all
services purchased under this Agreement.
A. Permitted Use of Resold Services by LSP and Its End Users
1. For services included in this Agreement, which are
offered through tariffs by SWBT to its end users, the
rules and regulations associated with the applicable
State General Exchange Tariff, Local Exchange Service
Tariff, and the other tariffs for the resold service
(such tariffs collectively referred to herein as
"corresponding tariffs") apply except as otherwise
provided herein.
2. LSP shall only sell Plexar(R) services to a single
end user.
3. Except where otherwise explicitly provided in the
corresponding tariffs or where SWBT permits sharing
or aggregation by its customers, LSP shall not permit
the sharing of a service or services by multiple end
users or the aggregation of traffic from multiple end
users onto a single service.
4. LSP shall only resell services purchased under this
Agreement to the same class of end users to whom SWBT
sells such services (e.g., residence service shall
not be resold to business end users). LSP may only
resell Lifeline Assistance, Link-Up, and other like
services to similarly situated customers who are
eligible for such services. Further, to the extent
LSP resells services that require certification on
the part of the buyer, LSP will ensure that the buyer
has received proper certification and complies with
all rules and regulations as established by the
Commission.
5. SWBT promotions of ninety (90) days or less shall not
be available to LSP for resale. For purposes of this
section, the duration of the promotion is the length
of the offering period during which the promotion may
be offered to the public, and the realization period
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during which any and all benefits from the promotion
must be realized or captured by the subscriber; the
subscriber must begin receiving the benefit during
the offering period.
a) When SWBT offers a promotion on a
Telecommunications Service available for
resale for longer than ninety (90) days,
SWBT shall provide LSP with notice of the
promotion, pursuant to Article XXIII. The
applicable discount rate for such
Telecommunications Service shall be applied
to the promotional rate.
b) Nothing in this Agreement shall require SWBT
to provide to LSP promotional service
elements that are not Telecommunications
Services such as CPE and Inside Wire
Maintenance Plans.
6. LSP shall not use a resold service to avoid the
rates, terms, and conditions of SWBT's corresponding
tariffs.
7. LSP shall not use resold local exchange telephone
service to provide access or interconnection services
to itself, interexchange carriers (IXCs), wireless
carriers, competitive access providers (CAPs), or
other telecommunications providers. Provided,
however, that LSP may permit its end users to use
resold local exchange telephone service to access
IXCs, wireless carriers, CAPs, or other retail
telecommunications providers.
8. If LSP is in violation of a provision of this
Agreement, SWBT shall notify LSP of the violation in
writing of the specific provision being violated. At
such time, LSP shall have thirty (30) days to correct
the violation and notify SWBT in writing that the
violation has been corrected. SWBT shall then bill
LSP for the charges which should have been collected
by SWBT, except that where the violation (i) results
from LSP's failure to exercise reasonable diligence
in overseeing the use of the resold services by its
customers; or (ii) was discoverable by the exercise
of reasonable diligence by LSP; or (iii) is a result
of intentional conduct by LSP, SWBT may at its option
collect from LSP the actual revenues collected by LSP
from its end users for the stated violation. If LSP
disputes the violation, it shall notify SWBT in
writing within fourteen (14) days of receipt of
notice from SWBT. Disputes shall be resolved as
outlined in the Dispute Resolution section of the
Agreement.
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9. SWBT will apply any Commission mandated end-user
charges including an End User Common Line (EUCL)
charge to each local exchange line resold under this
agreement. All federal rules and regulations
associated with EUCL charges, as found in Tariff FCC
73, also apply to such EUCL charges.
10. To the extent allowable by law, LSP shall be
responsible for Primary Interexchange Carrier (PIC)
change charges associated with such local exchange
line. LSP shall pay for PIC changes at the tariffed
rate.
11. SWBT is not required to make services available for
resale at wholesale rates to LSP for its own use.
SWBT, however, shall allow LSP to purchase SWBT's
Telecommunications Services and other services
available for resale as outlined in the exhibits to
this Agreement, as long as said services are not
resold exclusively or predominately to LSP, its
subsidiaries, or affiliates for their internal or
administrative use.
B. Use of SWBT Trademarks
Except where otherwise required by law, LSP shall not, without
SWBT's written authorization, offer the services covered by
this Agreement using the trademarks, service marks, trade
names, brand names, logos, insignia, symbols, or decorative
designs of SWBT or its affiliates. Nor shall LSP state or
imply that there is any joint business association or similar
arrangement with SWBT in the provision of telecommunications
services to LSP's own end users. LSP may brand services
included in this Agreement with its own brand name, but SWBT
shall not be responsible for providing such branding, except
as specifically provided in this Agreement or as LSP may
purchase branding service(s) pursuant to this Agreement or
otherwise.
C. Network and Service Order Conditions
1. SWBT shall provide the services covered by this
Agreement subject to availability of existing
facilities and on a nondiscriminatory basis with its
other customers. LSP shall resell the services
provided herein only in those service areas in which
such resale services or any feature or capability
thereof are offered at retail by SWBT as the
incumbent local exchange carrier to its end users.
2. When LSP converts an end user currently receiving
noncomplex
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service from the SWBT network, without any changes to
SWBT's network, LSP will be charged a per order
(i.e., per billable telephone number) conversion
charge of twenty-five dollars ($25.00) in Missouri.
Conversion orders processed and completed
electronically will be charged five dollars ($5.00)
per order until a final rate is established by the
Commission, at which time the rate established by the
Commission shall be the rate. Complex orders will be
charged at a rate of one hundred twenty-five dollars
($125.00). Complex services generally are those
services which have order specific or service
specific engineering requirements, or new services
that use a different platform than current
technology. Custom Services conversions (e.g., Plexar
Custom) will be handled on a Customer Specific
Proposal basis.
A request for conversion shall be handled
simultaneously by SWBT as a "disconnect" from SWBT or
another resale local service provider and an
"initiate" service for LSP. The charge set forth
herein shall apply.
When LSP converts an end user and adds or changes are
made to the network, the respective conversion charge
will apply, as well as any normal service order
charges associated with said changes. All
nonrecurring service connection charges, excluding
the conversion charge mentioned above, will be
charged at a discount for those services listed in
Exhibits A and B.
3. Except as provided in Sections (c)(1), (2) above, for
the purposes of ordering new service under this
Agreement, each request for service shall be handled
as a separate and initial request for service per
billable telephone number. The additional line rate
for Service Order Charges shall apply only to those
requests for additional residential service at the
end user's same location where a residential line is
currently provided on SWBT's network, regardless of
the nonfacilities based local service provider of
record.
4. Except as provided in section A of Article IV, for
purposes of this section, service orders for LSPs
shall be handled in the same fashion as SWBT requires
for its end users.
5. SWBT will make available such customer proprietary
network information ("CPNI") and all other SWBT
customer information as is currently available in the
2733 Report except for retail rates associated with
the customer's services.
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III. ADDITIONAL SERVICES
A. 911/E911
1. Access to the 911 or E911 service, available to SWBT
end users in the area(s) served by LSP, shall be made
available to LSP's end users. Where no 911 is
available, LSP end users will receive the same
emergency dialing services available to SWBT end
users.
2. LSP shall be responsible for collecting and remitting
all applicable 911 surcharges on a per line basis to
the Public Safety Answering Point (PSAP).
3. When requested by SWBT, LSP shall timely provide
accurate and complete information on each of LSP's
end users as needed for the provisioning of 911
service to LSPs end users. Such information shall be
in a format determined by SWBT.
B. Dialing Parity
1. Local Dialing Parity
SWBT agrees that local dialing parity shall be
available to LSP. For all call types associated with
the Resale services provided to LSP by SWBT under
this Agreement: (i) an LSP Customer will not be
required to dial any greater number of digits than a
similarly situated SWBT customer; (ii) the post-dial
delay (time elapsed between the last digit dialed and
the first network response), call completion rate and
transmission quality received by an LSP Customer will
be at least equal in quality to that received by a
similarly situated SWBT customers; and (iii) the LSP
Customer may retain its local telephone number if the
customer remains within the same wire center;
provided that (a) the customer is a retail customer
of SWBT, or (b) served by a SWBT resold line, or (c)
if the customer was previously served by another
facilities based carrier, provided that SWBT has the
right to have the number ported from the facilities
based carrier and LSP agrees to pay any charges
associated with porting such number, and (d) the
customer is neither under suspension for non-pay nor
disconnected prior to the conversion by LSP. End
users of SWBT and end users of LSP shall have the
same exchange boundaries; and such end users shall be
able to dial the same number of digits when making a
"local" call, and activating feature functionality.
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2. IntraLATA Toll Dialing Parity
SWBT agrees to make intraLATA toll dialing parity
available in accordance with Section 251(b)(3) of the
Telecommunications Act of 1996.
C. White Page Directories: Listings, Distribution and Information
Page
1. At LSP's request, SWBT shall provide
nondiscriminatory access to White Pages directory
listing and distribution services under the terms and
conditions described herein:
a) SWBT shall provide, at no additional charge,
a straight line listing in the appropriate
SWBT white pages for each of LSP's local
exchange service end users. Subscriber
listings are to be interfiled (interspersed)
with SWBT's and other LSP's subscriber
listings in the White Pages directory with
no discernible differentiation in the
listings to indicate to the reader that the
listings are served by another LSP.
Subscriber listing information shall,
however, remain the property of SWBT but
nothing herein contained shall in any manner
restrict or limit LSP's authority and right
to exercise complete dominion over its
subscriber lists and subscriber information
in its own databases. SWBT will provide
subscriber list information that includes
LSP customers to third parties on the same
terms and conditions and at the same rates
that SWBT provides its own subscriber list
information to third parties. Provision of
subscriber list information to third parties
will be solely at SWBT's discretion.
b) Additional Listing Services (e.g., foreign
and signature listings) can be purchased by
LSP for its end users on a per listing
basis. LSP shall pay SWBT for all such
listings provided to LSP's end users. The
discounts applicable to Listing Services are
contained in Exhibits A and B to this
Agreement.
c) LSP end users shall be entitled to one
directory per basic residential or business
line provided by SWBT pursuant to this
Agreement.
d) SWBT, or its agents shall deliver a White
Pages Directory
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to LSP end user's premises at the same time
that such directories are delivered to SWBT
end users. If an LSP's end user already has
a current SWBT directory, SWBT shall not be
required to deliver a new directory to that
end user until the new directories are
published for that end user's location.
e) LSP hereby releases SWBT from any and all
liability for damages due to errors or
omissions in LSP's subscriber listing
information as it appears in the White Pages
directory, including, but not limited to,
special, indirect, consequential, punitive,
or incidental damages except where SWBT has
engaged in willful misconduct or gross
negligence. To the extent LSP reimburses its
end user subscriber any listing charge due
to errors or omissions caused directly by
SWBT, SWBT shall reimburse LSP any
associated wholesale rate.
f) LSP shall indemnify, protect, save harmless
and defend SWBT (or SWBT's officers,
employees, agents, assigns, and
representatives) from and against any and
all losses, liability, damages, and expense
arising out of any demand, claim, suit, or
judgment by a third party in any way related
to any error or omission in LSP's subscriber
listing information as it appears in the
White Pages directory, including any error
or omission related to nonpublished or
nonlisted subscriber listing information;
provided, however, LSP shall not be required
to indemnify SWBT where SWBT has engaged in
gross negligence or willful misconduct. LSP
shall so indemnify regardless of whether the
demand, claim, or suit by the third party is
brought jointly against LSP and SWBT, and/or
against SWBT alone.
2. Information Page
a) At LSP's request, SWBT shall include in the
"Informational Page" section of SWBT's White
Pages directory, for those geographical
areas in which LSP provides local exchange
services, LSP's customer contact information
regarding emergency services, billing and
service information, repair services and
other pertinent information similar to that
provided by SWBT in its "Informational
Pages." Such information shall be included
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on the same page with other LSP information.
b) At LSP's option, LSP shall be provided a
single "Informational Page" (one side of one
page) in the informational section of the
White Pages directory covering a geographic
area where an LSP provides local exchange
service. This page shall be no different in
style, size, color and format than SWBT
"Informational Pages." Sixty (60) days prior
to the directory close date, LSP shall
provide to SWBT the "Informational Page" in
the form of camera-ready copy. The charges
associated with this service vary from
geographic market to market, and are charged
outside this Agreement. LSP may purchase
additional pages at the prevailing rates.
D. Directory Assistance (DA)
SWBT shall provide access to DA to LSP's end users. LSP shall
pay the charges associated with the use of such services by
LSP's end users. The discounts applicable to such services are
contained in Exhibits A and B, which is attached hereto and
made a part hereof.
E. Operator Services (OS)
1. SWBT shall provide access to Operator Services to
LSP's end users. LSP shall pay the charges associated
with the use of such services by LSP's end users. The
discounts applicable to such services are contained
in Exhibits A and B, which is attached hereto and
incorporated by reference.
2. SWBT shall provide Line Status Verification and Busy
Line Interrupt on calls made on SWBT's network to LSP
end users. LSP shall pay SWBT associated charges when
its end users request such services, with discounts
to apply as listed in Exhibits A and B.
IV. RESPONSIBILITIES OF SWBT
A. SWBT shall allow LSP to place service orders and receive phone
number assignments (for new lines). These activities shall be
accomplished by telephone call or facsimile until electronic
interface capability has been established. SWBT, with input
from LSP, shall provide interface specifications for
electronic access for these functions to LSP once such
electronic interfaces become technically feasible and are in
place.
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However, LSP shall be responsible for modifying and connecting
any of its systems with SWBT provided interfaces when such
interfaces become available, as outlined in Appendix OSS, if
and when LSP elects to use such interfaces.
B. SWBT shall implement LSP service orders within the same time
intervals SWBT uses to implement service orders for similar
services for its own end users.
C. LSP will have the ability to report trouble for its end users
to appropriate SWBT trouble reporting centers twenty-four (24)
hours a day, seven (7) days a week. LSP will be assigned a
customer contact center when initial service agreements are
made. LSP end users calling SWBT may be referred to LSP at the
number provided by LSP. In the case of such misdirected calls,
the provisions of Article IX, section A(2) shall apply.
Methods and procedures for ordering and trouble reporting are
outlined in the Handbook for Non-Switched Based Providers
dated 11/15/95, as amended by SWBT from time to time, except
that no such amendment may change any procedure set forth in
this Agreement without the written consent of LSP. Both
parties agree to abide by the procedures contained therein.
D. SWBT will respond to LSP's trouble reports and repair troubles
with processes and in time frames in which SWBT performs such
activities for its own end user customers. Subject to Article
XXII, upon LSP's request, SWBT will extend to LSP any
performance guarantees or specialized trouble handling on
repair procedures extended to any other local service provider
reseller to the extent such procedures are more favorable than
those provided to LSP under this Agreement on the same terms
and conditions that any of those services is offered to such
other local service provider.
E. On no less than sixty (60) days advance written notice, LSP
may request SWBT to make available to LSP on a daily basis in
a standard electronic format usage sensitive records SWBT will
bill to LSP arising out of the use of resold lines so that LSP
can bill its customers in a timely manner in order to maximize
LSP's collection. LSP agrees to pay SWBT three tenths of a
cent ($.003) per message for this service, plus other charges
outlined in Appendix OSS.
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES
Cooperation on Fraud
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SWBT shall not be liable to LSP for any fraudulent usage on LSP's end
users' accounts except where LSP has ordered toll or 900 blocking and
SWBT has failed to properly install or maintain the service. SWBT shall
not be considered to have properly installed or maintained the service
if notwithstanding the toll or 900 block, an end user successfully
completes toll or 900 calls designed to be blocked by the service,
provided however, where SWBT has failed to install or maintain toll or
900 blocking and fraudulent usage occurs, LSP shall make all reasonable
efforts to collect from its end user for such usage. SWBT shall not be
responsible to the extent of LSP's successful collection efforts.
The Parties agree to cooperate with one another to investigate,
minimize and take corrective action in cases of fraud. The Parties'
fraud minimization procedures are to be cost effective and implemented
so as not to unduly burden or harm one Party as compared to the other.
At a minimum, such cooperation shall include providing to the other
Party, upon request, information concerning end users who terminate
services to that Party without paying all outstanding charges, when
such end user seeks service from the other Party, except that neither
party shall be required to divulge any information that would result in
additional reporting, compliance, or any other legal obligations for
that Party. The Party seeking such information is responsible for
securing the end user's permission to obtain such information.
VI. CHANGES IN SUBSCRIBER CARRIER SELECTIONS
A. Prior to submitting an order under this Agreement, LSP shall
obtain end user authorization as required by applicable state
or federal laws and regulations, and assumes responsibility
for applicable charges as specified in Section 258(b) of the
Telecommunications Act of 1996. SWBT shall abide by the same
applicable laws and regulations.
B. Only an end user can initiate a challenge to a change in its
local exchange service provider. If an end user notifies SWBT
or LSP that the end user requests local exchange service, the
Party receiving such request shall be free to immediately
provide service to such end user. SWBT shall be free to
connect the end user to any local service provider based upon
the local service provider's request and local service
provider's assurance that proper end user authorization has
been obtained. LSP shall make authorization available to SWBT
upon request and at no charge.
C. When an end user changes or withdraws authorization, each
Party shall release customer-specific facilities in accordance
with the end user customer's direction or the direction of the
end user's authorized agent.
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Further, when an end user abandons the premise, SWBT is free
to reclaim the facilities for use by another customer and is
free to issue service orders required to reclaim such
facilities.
D. Neither Party shall be obligated by this Agreement to
investigate any allegations of unauthorized changes in local
exchange service (slamming) on behalf of the other Party or a
third party. If either Party, on behalf of the other, agrees
to investigate an alleged incidence of slamming, the
investigating Party shall charge the other Party a fifty
dollar ($50) investigation fee.
E. When SWBT receives an order from LSP for services under this
Agreement and SWBT is currently providing the same services to
another local service provider for the same end user, SWBT
shall notify the end user's local service provider of record
of such order coincident with processing the order. It shall
then be the responsibility of the local service provider of
record and LSP to resolve any issues related to the end user.
This paragraph shall not apply to new additional lines and
services purchased by an end user from multiple LSPs or from
SWBT.
F. On no less than sixty (60) days notice, LSP may request the
Local Disconnect Report. SWBT agrees to furnish to LSP the
Billing Telephone Number (BTN), Working Telephone Number
(WTN), and terminal number of all end users who have
disconnected LSP's service. LSP understands and agrees that
the CARE interface will be used to provide such information
and such information will only be available via the CARE
electronic data transmission. Information will be provided on
a per-WTN basis to be priced on a per-WTN basis. SWBT will
provide LSP no less than thirty (30) days notice prior to any
change of the per-WTN charge. SWBT grants to LSP a
non-exclusive right to use the information provided by SWBT.
LSP will not permit anyone but its duly authorized employees
or agents to inspect or use this information. LSP agrees to
pay SWBT ten cents ($0.10) per-WTN and any applicable
transmission charges for the Local Disconnect Report.
G. The LSP agrees to hold harmless and indemnify SWBT against any
and all liability and claims, including reasonable attorney's
fees, that may result from SWBT acting under this Article,
except where SWBT has engaged in willful misconduct or gross
negligence.
H. Nothing herein shall be interpreted to apply to conversion of
LSP end users pursuant to Article XII. (Termination of Service
to LSP).
VII. ADDITIONAL RESPONSIBILITIES OF LSP
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A. Payment of Rates and Charges
1. LSP is solely responsible for the payment of charges
for all services furnished under this Agreement
including, but not limited to, calls originated or
accepted at LSP's location and its end users' service
locations, except (x) charges for any retail services
provided directly by SWBT to the end user which SWBT
shall be responsible for billing; and (y) toll or 900
charges where LSP has ordered toll or 900 blocking
service designed to prevent such calls being
completed by the end user and SWBT has failed to
properly install or maintain the toll or 900 blocking
service. SWBT shall not be considered to have
properly installed or maintained the toll or 900
blocking service if notwithstanding the toll or 900
blocking service, an end user successfully completes
toll calls designed to be blocked by the service,
provided however, where SWBT has failed to install or
maintain toll or 900 blocking service and fraudulent
usage occurs, LSP shall make all reasonable efforts
to collect from its end user for such usage. LSP
shall be responsible to pay SWBT the appropriate
charges to the extent of LSP's successful collection
efforts.
Interexchange carried traffic (e.g., sent-paid,
information services and alternate operator services
messages) received by SWBT for billing to resold
end-user accounts will be returned as unbillable and
will not be passed on to LSP for billing. An
unbillable code returned with those messages to the
carrier will indicate that the messages originated
from a resold account, will not be billed by SWBT,
and give LSP's OCN, if any.
2. SWBT shall not be responsible for the manner in which
the use of resold service, or the associated charges
are allocated to others by LSP. All applicable rates
and charges for such services will be billed to and
shall be the responsibility of LSP, with the
exception of retail services provided directly to the
end user by SWBT as described in paragraph 1 above.
3. Compensation for all services shall be paid by LSP
regardless of LSP's ability or inability to collect
charges from its end user for such service. SWBT will
provide LSP with timely and accurate bills.
4. If LSP does not wish to be responsible for collect,
third number billed, toll, and information services
(e.g., 900) calls, it must order
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the appropriate blocking for the affected resold
line(s) under this Agreement and pay any applicable
charges. LSP acknowledges that blocking is not
available for certain types of calls, including 800
numbers.
B. Interfaces with SWBT
To the extent LSP elects to use them, LSP shall be responsible
for modifying and connecting any of its systems with
SWBT-provided interfaces as described in this Agreement.
C. Repair Contact Arrangements
LSP shall be responsible for providing to its end users and to
SWBT a telephone number or numbers that LSP's end users can
use to contact LSP in the event of service or repair requests.
In the event that LSP's end users contact SWBT with regard to
such requests, SWBT shall inform the end user that they should
call LSP and may provide LSP contact number. The provisions of
Article IX, section A(2) shall apply in the case of such
misdirected calls.
D. LSP Operating Company Number (OCN)
For the purposes of establishing service and providing
efficient and consolidated billing to the LSP, the LSP is
required to provide SWBT its authorized and nationally
recognized OCN.
E. Special Service Arrangements
For special service arrangements for LSP not covered under
this Agreement, special charges shall apply as provided in the
applicable corresponding tariffs.
F. Development of Branding and Customized Routing for Directory
Assistance and Operator Services
1. If LSP uses SWBT operator and/or directory assistance
service(s), LSP will:
a) provide its brand at the beginning of each
telephone call and before the consumer
incurs any charge for the call; and
b) disclose immediately to the consumer, upon
request a quote of its rates or charges for
the call.
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c) Where SWBT provides LSPs OS and DA services
via the same trunk, both the OS and DA calls
will be branded with the same brand. Since
SWBT's DA and OS utilize the same trunk
group, LSP will receive the same brand for
both DA/OS. Such branding will be provided
pursuant to section 2 below.
2. If LSP uses SWBT operator and/or directory assistance
service(s), SWBT will brand DA/OS in LSP's name based
upon the criteria outlined below:
a) LSP will provide SWBT with written
specification of its company name to be used
in creating LSP specific branding messages
for its DA/OS calls.
b) An initial nonrecurring charge applies per
load for the establishment of Call Branding
as well as a charge per subsequent load to
change the brand. In addition, a per call
charge applies for every DA/OS call handled
by SWBT on behalf of LSP when such services
are provided in conjunction with resale
services. Prices for Call Branding are as
outlined in Exhibit C, attached hereto and
incorporated herein.
3. RATES/REFERENCE INFORMATION - SWBT will provide LSP
DA/OS Rates/Reference Information based upon the
criteria outlined below:
a) LSP will furnish DA/OS Rates/ Reference
Information in a mutually agreed to format
or media thirty (30) days in advance of the
date when the DA/OS services are to be
undertaken.
b) LSP will inform SWBT, in writing, of any
changes to be made to such Rates/Reference
Information ten (10) working days prior to
the effective Rates/Reference change date.
LSP acknowledges that it is responsible to
provide SWBT updated Rates/Reference
Information in advance of when the
Rates/Reference Information is to become
effective.
c) In all cases when a SWBT operator receives a
rate request from a LSP end user, SWBT will
quote the applicable DA/OS rates as provided
by LSP.
d) An initial nonrecurring charge will apply
for loading of LSP's DA/OS Rates/Reference
Information as well as a charge for each
subsequent change to either the LSP's DA/OS
services Rates/ Reference Information as
outlined in Exhibit C, attached hereto and
incorporated herein.
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4. CUSTOMIZED ROUTING - SWBT shall also offer LSP the
opportunity to customize route DA/OS where
technically feasible. LSP agrees to pay SWBT
appropriate charges associated with customized
routing on an ICB basis.
VIII. NONEXCLUSIVITY
This Agreement is nonexclusive. LSP acknowledges that SWBT will be
providing the same or similar services to other local services
providers in accordance with negotiated agreements which will be filed
with the Commission. LSP also acknowledges that SWBT may, upon end user
request, provide any and all of the services provided to LSP under this
Agreement directly to the end users. SWBT acknowledges that LSP may
obtain the same or similar services from other local exchange
companies.
IX. SUPPORT SYSTEMS SERVICES
A. Support Systems Services
1. Transfer of Service Announcements (Intercept)
The Party formerly providing service to an end user shall
provide a Basic Referral announcement, reciprocally and free
of charge on the abandoned telephone number. The announcement
states that the called number has been disconnected or changed
and provides the end user's new telephone number to the extent
that it is listed. SWBT shall provide an intercept referral on
behalf of LSP to their end user as indicated on the
appropriate service order.
Basic Intercept Referral Announcements are to be provided on
residential numbers for a minimum of thirty (30) days where
facilities exist and the threat of telephone number exhaustion
is not imminent. LSP may order Special Intercept Referral
Service if a longer period is desired for the intercept.
Basic Intercept Referral Announcements for a single line
business end users and the primary listed telephone number for
Direct Inward Dial (DID) and "Centrex-type" end users, shall
be available for a minimum of thirty (30) days or the life of
the white pages directory, whichever is greater. LSP may order
Special Intercept Referral Service if a longer period is
desired for the intercept. If the threat of telephone number
exhaustion becomes imminent for a particular central office,
the service provider may reissue a disconnected number prior
to the expiration of the directory, but no
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earlier than thirty (30) days after the disconnection of the
business telephone number.
2. Coordinated Repair Calls
SWBT shall be responsible for repairing its own network.
However, LSP shall maintain telephone numbers where its end
user may call to report instances of trouble.
The Parties shall employ the following procedures for handling
misdirected repair calls:
a. The Parties shall inform their respective end users
of the correct telephone numbers to call to access
their respective repair bureaus.
b. To the extent the correct provider can be determined,
each Party shall refer misdirected repair calls to
the proper provider of local exchange service, at no
charge, and shall provide the end user the contact
telephone number provided by the other Party.
In responding to repair calls, neither Party shall
make disparaging remarks about each other, nor shall
they use these repair calls as the basis for internal
referrals or to solicit customers or to market
services. Either Party may respond with accurate
information in answering customer questions.
c. The Parties shall provide each other their respective
repair contact numbers.
B. Network Management Controls
Each Party shall provide a 24-hour contact number for Network
Traffic Management issues to the other. A FAX number must also
be provided to facilitate event notifications for planned mass
calling events. Additionally, both Parties agree that they
shall work cooperatively to attempt to conduct all such events
in such a manner as to avoid degradation or loss of service to
other end users.
C. Law Enforcement and Civil Process
SWBT and LSP shall handle law enforcement requests as follows:
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1) INTERCEPT DEVICES Local and federal law enforcement
agencies periodically request information or
assistance from local telephone service providers.
When either Party receives a request associated with
an end user of the other Party, it shall refer such
request to the appropriate Party, unless the request
directs the receiving Party to attach a pen register,
trap and trace or form of intercept on that Party's
own facilities, in which case that Party shall comply
with any valid request.
2) SUBPOENAS If a Party receives a subpoena for
information concerning an end user the Party knows to
be an end user of the other Party, it shall refer the
subpoena to the requesting entity with an indication
that the other Party is the responsible company.
Provided, however, if the subpoena requests records
for a period of time during which the receiving Party
was the end user's service provider, the receiving
Party will respond to any valid request.
3) EMERGENCIES If a Party receives a request from a law
enforcement agency for a temporary number change,
temporary disconnect or one way denial of outbound
calls for an end user of the other Party, the
receiving Party will comply so long as it is a valid
emergency request. If time and circumstances permit,
SWBT will make reasonable efforts, considering the
circumstances of the request, to consult with the LSP
prior to initiating any service change in response to
such request except when responding to a court order
requiring nondisclosure. If not bound by
nondisclosure, SWBT shall as promptly as circumstance
permit notify LSP of any change of service. In the
case of the LSP, LSP shall refer such request to SWBT
and SWBT shall honor such request in accordance with
this paragraph. However, neither Party shall be held
liable for any claims or damages arising from
compliance with such requests, and the Party serving
the end user agrees to indemnify and hold the other
Party harmless against any and all such claims.
D. Usage Data
On no less than sixty (60) days advance written notice, LSP
may request SWBT to make certain usage information available
to LSP on a daily basis via a mechanized feed. The information
will consist of usage sensitive charges SWBT will bill to LSP
arising out of the use of resold lines. LSP agrees to pay SWBT
three tenths of a cent ($.003) per message for this service.
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X. CALL TRACE
LSP end user's activation of Call Trace shall be handled by the SWBT
Call Trace Center (CTC) or its Annoying and Anonymous Call Bureau. SWBT
shall notify LSP of requests by its end users to provide the call
records to the proper authorities. Subsequent communication and
resolution of the case with LSP's end user (whether that end user is
the victim or the suspect) will be coordinated through the LSP.
LSP understands that for services where reports are provided to law
enforcement agencies (e.g., Call Trace) only billing number and address
information shall be provided. It shall be the LSP's responsibility to
determine whether to provide additional information necessary for any
police investigation to the extent that such information is in LSP's
possession. LSP shall indemnify SWBT against any claims that LSP's
efforts to produce or the actual production of information in LSP's
possession were insufficient and led to inadequate prosecution.
XI. TAXES
LSP shall be responsible for all federal, state or local, sales, use,
excise or gross receipts taxes or fees imposed on or with respect to
the services provided under this Agreement including those taxes and
fees imposed on SWBT. LSP shall reimburse SWBT for the amount of any
such taxes or fees which SWBT is required to pay or collect for
services provided to LSP hereunder.
XII. TERMINATION OF SERVICE TO LSP
A. All undisputed charges are payable to SWBT prior to the start
of the next bill cycle. If LSP fails to pay when due, any and
all undisputed charges billed to LSP under this Agreement,
including any late payment charges (Unpaid Charges), and any
portion of such charges remain unpaid more than fifteen (15)
days after the due date of such Unpaid Charges, SWBT shall
notify LSP in writing that in order to avoid having service
disconnected, LSP must remit all Unpaid Charges to SWBT within
fourteen (14) days.
B. If LSP disputes the billed charges, it shall inform SWBT in
writing as specified in Section XVIII(A) which portion of the
charges it disputes, including the specific details and
reasons for its dispute; pay SWBT all undisputed charges in
accordance with Section XII(A); and pay all disputed charges
into an interest bearing escrow account with a third party
escrow agent mutually agreed upon by the Parties prior to the
start of the next bill cycle. Any disputed charges for which
payment is not deposited
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into the escrow account prior to the start of the bill cycle
when payment of such charges would otherwise be due shall be
treated as Unpaid Charges in accordance with Section XII(A).
Late payment charges shall apply to any disputed charges for
which payment is not timely deposited into the escrow account,
and shall also be treated as Unpaid Charges in accordance with
Section XII(A) if not timely paid.
C. Disputes hereunder shall be resolved in accordance with the
procedures identified in Article XVIII (Dispute Resolution).
Failure of LSP to pay charges deemed owed to SWBT as a result
of the ruling in the arbitration shall be grounds for
termination under this Article.
D. If any LSP charges remain unpaid or undisputed at the end of
the fourteen (14) day period provided for in section A above,
SWBT shall notify LSP, and if required or requested by the
Commission, the Commission in writing, that unless all charges
are paid within sixteen (16) days, LSP's service shall be
disconnected and its end users shall be switched to SWBT local
service. SWBT will also suspend order acceptance at this time.
E. If any LSP charges remain unpaid or undisputed at the end of
the sixteen (16) day period provided for in section D above,
LSP shall, at its sole expense, notify its end users and if
required or requested by the Commission, the Commission, that
service may be disconnected and that each end user must
affirmatively select a new local service provider within five
(5) days. The notice shall also advise the end users that SWBT
will assume the end user's account at the end of the five (5)
day period should the end user fail to select a new local
service provider.
F. If any LSP charges remain unpaid or undisputed five (5) days
after the sixteen (16) day period provided for in section E
above, SWBT shall disconnect LSP and transfer all LSP's end
users who have not selected another local service provider
directly to SWBT's service. These end users shall receive the
same services provided through LSP at the time of transfer.
SWBT shall inform the Commission and the end user's IXC(s) of
Record of the names of all end users transferred through this
process. Applicable service establishment charges for
switching end users from LSP to SWBT shall be assessed to LSP.
G. Within five (5) days of the transfer, SWBT shall notify all
affected end users that because of LSP's failure to pay, their
service is now being provided by SWBT. SWBT shall also notify
the end users that they have thirty (30) days to select a
local service provider.
H. SWBT may discontinue service to LSP upon failure to pay
undisputed
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charges as provided in this Article, and shall have no
liability to LSP or LSP end users in the event of such
disconnection.
I. If any end user fails to select a local service provider
within thirty (30) days of the change of providers (80 days
past LSP's due date), SWBT shall terminate the end user's
service. SWBT shall notify the Commission and the end user's
IXC(s) of Record of the names of all end users whose service
has been terminated. The end user shall be responsible for any
and all charges incurred during the selection period.
J. Nothing herein shall be interpreted to obligate SWBT to
continue to provide service to any such end users. Nothing
herein shall be interpreted to limit any and all disconnection
rights SWBT may have with regard to such end users.
K. After disconnect procedures have begun, SWBT shall not accept
service orders from LSP until all unpaid charges are paid.
SWBT shall have the right to require a deposit equal to one
month's charges (based on the highest previous month of
service from SWBT) prior to resuming service to LSP after
disconnect for nonpayment.
XIII. 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: fire, explosion, power
failure, cable cuts, 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 Party affected shall, upon
giving prompt notice to the other Party, be excused from such
performance on a day-to-day basis to the extent of such interference
(and the other Party shall likewise be excused from performance of its
obligations on a day-for-day basis to the extent such Party's
obligations relate to the performance so interfered with). The affected
Party shall use its best efforts to avoid or remove the cause of
nonperformance and both Parties shall proceed to perform with dispatch
once the causes are removed or cease.
XIV. LIMITATION OF LIABILITY
SWBT's liability, if any, for its gross negligence or willful
misconduct is not
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limited by its corresponding tariffs. With respect to any other claim
or suit, by a LSP or any others, for damages arising out of mistakes,
omissions, interruptions, delays or efforts, or defects in transmission
occurring in the course of furnishing service hereunder, SWBT's
liability, if any, shall not exceed an amount equivalent to the
proportionate charge to the LSP for the period of service during which
such mistake, omission, interruption, delay, error, or defect in
transmission or service occurs and continues. In no event shall SWBT be
responsible for any special, indirect, consequential, or exemplary
damages. This liability shall be in addition to any amounts that may
otherwise be due to the LSP under corresponding tariffs as an allowance
for interruptions. However, any such mistakes, omissions,
interruptions, delays, errors, or defects in transmission or service
which are caused or contributed to by the negligence or willful act of
the LSP or which arise from the use of LSP-provided facilities or
equipment shall not result in the imposition of any liability
whatsoever upon SWBT.
SWBT shall be indemnified and held harmless by the LSP against claims
and damages arising from provision of the LSP's services or equipment
except those directly associated with the provision of local service to
the LSP which is governed by corresponding tariffs.
SWBT shall be indemnified and held harmless from all claims and damages
arising from the discontinuance of service for nonpayment to SWBT by
the LSP as provided for herein. Notice of discontinuance shall be as
specified in this Agreement.
SWBT shall have no liability to the end users of the LSP for claims
arising from the provision of the LSP's service to its end users
including, but not limited to, claims for interruption of service,
quality of service, or billing disputes.
When the lines or services of other companies and carriers are used in
establishing connections to and/or from points not reached by SWBT's
lines, SWBT is not liable for any act or omission of the other
companies or carriers.
Nothing contained in this Article shall limit SWBT's liability or
impose a duty of indemnity on LSP where SWBT has engaged in willful
misconduct or gross negligence with respect to conduct involved in the
claim against SWBT.
XV. NONDISCLOSURE
The Parties to this Agreement anticipate and recognize that they will
exchange or come into possession of data about each other's end users
and each other's business as a result of this Agreement which will be
designated as confidential by that Party. Each Party agrees (1) to
treat all such data as strictly confidential and (2) to use such data
only for purposes of performance under this Agreement. Each
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Party agrees not to disclose data on the other Party's end users or
business which has been designated as confidential to any person
without first securing the written consent of the other Party. The
foregoing shall not apply to information which is in the public domain.
If a court or governmental agency orders or a third party requests a
Party to disclose or to provide any data or information covered by this
Article, that Party will immediately inform the other Party of the
order or request both by telephone and overnighted mail before
disclosing the data or information. Notification and consent
requirements described above are not applicable in cases where a court
order requires the production of toll billing records of an individual
residence or business end user customer.
This Article will not preclude the disclosure by the Parties of
information or material described in this Article to consultants,
agents, or attorneys representing the respective Parties or the Office
of the Public Counsel for the State of Missouri, and the Commission or
its staff, or FCC staff, provided that these third parties are bound by
the same or comparable confidentiality requirements as the Parties to
this Agreement. The provisions of this Article will remain in effect
notwithstanding the termination of this Agreement, unless agreed to in
writing by both Parties.
Party agrees to indemnify the other for a breach of Section 222 by the
indemnifying Party.
XVI. PUBLICITY
The Parties agree not to use in any advertising or sales promotion,
press releases or other publicity matters any endorsements, direct or
indirect quotes, or pictures implying endorsement by the other Party or
any of its employees without such Party's prior written approval. The
Parties will submit to each other for written approval, prior to
publication, all publicity matters that mention or display one
another's name and/or marks or contain language from which a connection
to said name and/or marks may be inferred or implied.
XVII. ASSIGNMENT
Neither Party may assign, subcontract, or otherwise transfer its rights
or obligations under this Agreement except under such terms and
conditions as are mutually acceptable to the other Party (e.g., a
conversion charge will apply per billable telephone number) and with
such Party's prior written consent, which consent shall not be
unreasonably withheld provided that each Party may assign this
Agreement to a corporate affiliate (as defined in the Communications
Act) or an entity under common control or an entity acquiring all or
substantially all of its
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assets or equity by providing prior written notice to the other Party.
Assignment without consent shall be grounds for immediate termination
of this Agreement.
XVIII. DISPUTE RESOLUTION
A. Finality of Disputes
No claims shall be brought for disputes arising from this
Agreement more than twenty-four (24) months from the date of
occurrence which gives rise to the dispute. If any portion of
an amount due to SWBT under this Agreement is subject to a
bona fide dispute between the Parties, LSP shall within
fourteen (14) days of its receipt of the invoice containing
such disputed amount give notice to SWBT of the amounts it
disputes and include in such notice the specific details and
reasons for disputing each item. Nothing herein shall prevent
LSP from disputing amounts paid to SWBT for services provided
by SWBT within twenty-four (24) months of the bill date. LSP
shall pay when due (i) all undisputed amounts to SWBT and (ii)
all Disputed Amounts into an interest bearing escrow account
with a third party escrow agent mutually agreed upon by the
Parties. In the event LSP disputes an amount paid to SWBT, and
it is determined the amount was erroneously paid or billed,
SWBT shall return the amount along with interest from the date
of LSP's payment.
B. Alternative to Litigation
The Parties desire to resolve disputes arising out of this
Agreement without litigation. Accordingly, except for action
seeking a temporary restraining order or an injunction related
to the purposes of this Agreement, or suit to compel
compliance with this dispute resolution process, the Parties
agree to use the following alternative dispute resolution
procedure as their sole remedy with respect to any controversy
or claim of twenty-five thousand dollars ($25,000) or less,
arising out of or relating to this Agreement or its breach.
The procedures hereunder may be used with disputes for
twenty-five thousand dollars ($25,000) or more, if mutually
agreeable to the Parties.
1. Resolution of Disputes Between Parties to the
Agreement
At the written request of a Party, each Party will
appoint a knowledgeable, responsible representative
with authority to settle the matter to meet and
negotiate in good faith to resolve any dispute
arising under this Agreement. The location, form,
frequency, duration, and conclusion of these
discussions shall be left to the discretion of the
representatives. Upon agreement, the
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representatives may utilize other alternative dispute
resolution procedures such as mediation to assist in
the negotiations. Discussions and correspondence
among the representatives for purposes of settlement
are exempt from discovery and production and shall
not be admissible in the arbitration described below
or in any lawsuit without the concurrence of all
Parties. Documents identified in or provided with
such communications, which are not prepared for
purposes of the negotiations, are not so exempted
and, if otherwise admissible, may be admitted in
evidence in the arbitration or lawsuit.
2. Arbitration
If the negotiations do not resolve the dispute within
thirty (30) days of the initial written request, the
dispute shall be submitted to binding arbitration by
a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration
Association. A Party may demand such arbitration in
accordance with the procedures set out in those
rules. Discovery shall be controlled by the
arbitrator and shall be permitted to the extent set
out in this section. Each Party may submit in writing
to a Party, and that Party shall so respond, to a
maximum of any combination of thirty-five (35) (none
of which may have subparts) of the following:
(a) Interrogatories
(b) Demands to produce documents
(c) Requests for admission
Additional discovery may be permitted upon mutual
agreement of the Parties or upon good cause found by
the arbitrator. The arbitration hearing shall be
commenced within thirty (30) days of the demand for
arbitration. The arbitration shall be held in the
city where this Agreement was executed by SWBT. The
arbitrator shall control the scheduling so as to
process the matter expeditiously. The Parties shall
submit written briefs five (5) days before the
hearing. The arbitrator shall rule on the dispute by
issuing a written opinion within twenty (20) days
after the close of hearings. The opinion shall
contain findings of fact and conclusions of law based
on the evidence. The arbitrator has no authority to
order punitive or consequential damages. The times
specified in this section may be extended upon mutual
agreement of the Parties or by the arbitrator upon a
showing of good cause. Judgment upon the award
rendered by the arbitrator may be
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entered in any court having jurisdiction.
3. Costs
Each Party shall bear its own costs of these
procedures. A Party seeking discovery shall reimburse
the responding Party the reasonable costs of
production of documents (including search time and
reproduction costs). The Parties shall equally split
the fees of the arbitration and the arbitrator.
XIX. VERIFICATION REVIEWS
Each Party to this Agreement will be responsible for the accuracy and
quality of its data as submitted to the respective Party involved. Upon
reasonable written notice, each Party or its authorized representative
(providing such authorized representative does not have a conflict of
interest related to other matters before one of the Parties) shall have
the right to conduct a review and verification of the other Party to
give assurances of compliance with the provisions of this Agreement.
This includes on-site verification reviews at the other Party's or the
Party's vendor locations.
After the initial year of this Agreement verification reviews will
normally be conducted on an annual basis with provision for staged
reviews, as mutually agreed, so that all subject matters are not
required to be reviewed at the same time. Follow-up reviews will be
permitted between annual reviews where significant deviations are
found. During the initial year of the Agreement more frequent reviews
may occur but no more than quarterly.
The review will consist of an examination and verification of data
involving records, systems, procedures, and other information related
to the services performed by either Party as related to settlement
charges or payments made in connection with this Agreement as
determined by either Party to be reasonably required. Each Party,
whether or not in connection with an on-site verification review, shall
maintain reasonable records for a period of time no less than
twenty-four (24) months from the date such records are created and
provide the other Party with reasonable access to such information as
is necessary to determine amounts receivable or payable under this
Agreement.
Each Party's right to access information for verification review
purposes is limited to data not in excess of twenty-four (24) months in
age. Once specific data has been reviewed and verified, it is
unavailable for future reviews. Any items not reconciled at the end of
a review will, however, be subject to a follow-up review effort. Any
retroactive adjustments required subsequent to previously reviewed and
verified data will also be subject to follow-up review. Information
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of either Party involved with a verification review shall be subject to
the nondisclosure terms of this Agreement.
The Party requesting a verification review shall fully bear its costs
associated with conducting the review. The Party being reviewed will
provide access to required information, as outlined in this Article, at
no charge to the reviewing Party. Should the reviewing Party request
information or assistance beyond that reasonably required to conduct
such a review, the Party being reviewed may, at its option, decline to
comply with such request or may bill actual costs incurred in complying
subject to the concurrence of reviewing Party.
XX. COMPLIANCE WITH LAWS
The Parties believe in good faith that the Services to be provided
under this Agreement satisfy the requirements of the Act. In the event
a court or regulatory agency of competent jurisdiction should determine
that modifications of this Agreement are required to bring the Services
being provided hereunder into compliance with the Act, the affected
Party shall promptly give the other Party written notice of the
modifications deemed required. Upon delivery of such notice, the
Parties shall expend diligent efforts to arrive at an agreement
respecting such modifications required. If the Parties are unable to
arrive at such agreement, effective on the day either Party concludes
and gives notice that the Parties will not be able to arrive at any
agreement respecting such modifications, either Party may present the
matter to the Commission for arbitration. Either Party may request that
the Commission also arbitrate any other provision(s) of the Agreement
the Party believes may be affected by the ruling. The Parties agree to
submit themselves to the jurisdiction of the Commission for the
purposes of the arbitration, preserving all rights under law.
This Agreement is an integrated package that reflects a balancing of
interests critical to the Parties. It will be submitted to the
Commission and the FCC as a compliance filing, and the Parties will
specifically request that the Commission and the FCC refrain from
taking any action to change, suspend or otherwise delay implementation
of the Agreement. In the event the Commission or the FCC rejects any
portion or provision of this Agreement or subsequently issues a ruling
or order that results in a provision being contrary to law, or is
invalid for any reason, the Parties shall continue to be bound by the
terms of this Agreement, insofar as possible, except for the portion
rejected or subsequently determined to be unlawful, invalid, or
unenforceable. In such event, the Parties shall negotiate in good faith
to replace the rejected, unlawful, invalid, or unenforceable provision
and shall not discontinue service to the other Party during such period
if to do so would disrupt existing service being provided to an end
user. So long as the Agreement remains in effect, the Parties shall not
advocate before any legislative, regulatory, or other public forum that
any terms of this specific Agreement be
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modified or eliminated. Notwithstanding this mutual commitment,
however, the Parties enter into this Agreement without prejudice to any
positions they have taken previously, or may take in the future in any
legislative, regulatory, or other public forum addressing any matters,
including matters related to the types of arrangements prescribed by
this Agreement. In the event the Parties are unable to agree on a
replacement provision, the procedures in the previous paragraph shall
apply.
XXI. CERTIFICATION REQUIREMENTS
LSP warrants that it has obtained all certifications required in those
jurisdictions in which LSP has ordered services pursuant to this
Agreement. Subject to restrictions in Article II, section A. (Permitted
Use of Resold Service by LSP and Its End Users), LSP covenants that any
originating service provider utilizing the resold services under this
Agreement has obtained all required certification. Upon request by any
governmental entity, the LSP is required to provide proof of
certification.
XXII. EFFECT OF OTHER AGREEMENTS
The Parties agree that pursuant to the requirements of the
Telecommunications Act of 1996, a Party shall treat the other Party no
less favorably than it treats similarly situated local service
providers with whom such Party has an operational interconnection or
resale agreement which has been approved by the Commission. If either
Party enters into an agreement (the "Other Agreement") approved by the
Commission pursuant to Section 252 of the Act which provides for the
provision of arrangements covered in this Agreement to another
requesting Telecommunications Carrier, 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.
XXIII. NOTIFICATION
SWBT shall make telecommunications services that SWBT provides at
retail to subscribers who are not telecommunications carriers available
for resale consistent with its obligation under Section 251(c)(4)(A) of
the Telecommunications Act. SWBT will provide LSP notice of new
services or of price changes to existing services. The notice shall
advise LSP of the category in which such new service shall be placed
and the same discount already applicable to LSP in that category shall
apply to the new service.
SWBT currently uses the Accessible Letter process to notify LSP of such
changes to the services available for resale. Any change to the process
of notification to the LSP will provide no less notice than the current
Accessible Letter process.
<PAGE> 30
Page 30 of 33
XXIV. NOTICES
In the event any notices are required to be sent under the terms of
this Agreement, they shall be sent by registered mail, return receipt
requested to:
To SWBT: To LSP:
Patrick Halbach Gregory Lawhon
Southwestern Bell Telephone Senior Vice President and
One Bell Plaza General Counsel
208 S. Akard Birch Telecom, Inc.
Room 0523.13 1000 Walnut Street
Dallas, TX 75202 Suite 1220
Kansas City, MO 64106
XXV. BENEFICIARIES
This Agreement shall not provide any nonparty with any remedy, claim,
cause of action or other right.
XXVI. TERM
A. SWBT and LSP agree that the initial term of this Agreement
shall be for 90 days, and thereafter the Agreement shall
continue in force and effect unless and until terminated as
provided herein or superseded by a new Agreement between the
Parties. Either Party may terminate this Agreement by
providing written notice of termination to the other Party, at
least sixty (60) days in advance of the date of termination.
At the conclusion of the first term, this Agreement shall
continue without interruption unless terminated by either
Party. By mutual agreement, SWBT and LSP may amend this
Agreement to modify the term of this Agreement.
B. In the event the Agreement would otherwise terminate (other
than by being superceded by a new Agreement between the
Parties), LSP may elect to continue to operate under the terms
and conditions of the Agreement (or upon such other terms and
conditions as the Parties may agree) during a holdover period
as herein described ("Holdover Period") provided LSP complies
with the steps detailed herein. Within 10 days of receiving
notice of termination from SWBT, LSP shall send a request for
negotiations for a new resale agreement under Sections 251 and
252 of the Communications Act (to the extent resale is not
already part of a negotiation between the Parties). LSP may
then operate under the terms of this Agreement until the
Parties reach agreement or have completed the
<PAGE> 31
Page 31 of 33
processes provided for in Section 252 of the Communication Act
provided that if the Parties have not reached agreement, LSP
must seek arbitration at the earliest time permitted under
Section 252. In any event, SWBT may not terminate this
Agreement while any Agreement between the Parties that would
supercede this Agreement is pending approval at the
Commission.
C. Where this Agreement would terminate without being superceded
by a new agreement between the Parties, or there is no
Holdover Period in effect, and LSP has not made arrangements
to provide service over its own facilities to its end users,
the notification and transfer of end user procedures outlined
in Article XII, sections D to F (Termination of Service to
LSP) shall apply.
XXVII. EFFECTIVE DATE
The effective date of this Agreement shall be ten (10) days after the
date that the Commission approves this Agreement.
XXVIII. WAIVER
The failure of either Party to enforce or insist that the other Party
comply with any of the terms or conditions of this Agreement, or the
waiver by either Party in a particular instance of any of the terms and
conditions of this Agreement, shall not be construed as a general
waiver or relinquishment of the terms and conditions, but the Agreement
shall be and remain at all times in full force and effect.
XXIX. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY LSP WHEN
THIS DATA OR INFORMATION IS ACCESSED AND USED BY A THIRD PARTY.
XXX. RELATIONSHIP OF THE PARTIES
This Agreement shall not establish, be interpreted as establishing, or
be used by either Party to establish or to represent their relationship
as any form of agency, partnership or joint venture. Neither Party
shall have any authority to bind the other or to act as an agent for
the other unless written authority, separate from this
<PAGE> 32
Page 32 of 33
Agreement, is provided. Nothing in the Agreement shall be construed as
providing for the sharing of profits or losses arising out of the
efforts of either or both of the Parties. Nothing herein shall be
construed as making either Party responsible or liable for the
obligations and undertakings of the other Party.
XXXI. COMPLETE TERMS
This Agreement, together with its Attachments constitutes the entire
agreement between the Parties and supersedes all prior discussions,
representations or oral understandings reached between the Parties.
The corresponding tariffs and this Agreement (including the
Attachments) contain all of the applicable rates and charges to be paid
by the LSP to SWBT in connection with SWBT's provision of
telecommunications service to LSP for resale to its end user customers.
Neither Party shall be bound by any amendment, modification or
additional terms unless it is reduced to writing signed by an
authorized representative of the Party sought to be bound.
By their signatures in the space provided below, LSP and SWBT indicate
their acceptance of this Agreement. This agreement shall not bind LSP
and SWBT until executed by both Parties. This Agreement will be
governed by and interpreted in accordance with the laws of the State of
Missouri.
<PAGE> 33
Page 33 of 33
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT.
BIRCH TELECOM OF MISSOURI, INC. SOUTHWESTERN BELL TELEPHONE
AECN/OCN: __________ COMPANY
/s/Gregory C. Lawhon /s/Larry B. Cooper
--------------------------------- ----------------------------------
Signature Signature
Gregory C. Lawhon Larry B. Cooper
--------------------------------- ----------------------------------
Printed Name Printed Name
Senior Vice President and General Manager-
General Counsel Competitive Provider Account Team
--------------------------------- ----------------------------------
Position/Title Position/Title
August 18, 1997 August 21, 1997
--------------------------------- ----------------------------------
Date Date
<PAGE> 34
Page 34 of 33
RESALE AGREEMENT BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND BIRCH TELECOM OF MISSOURI, INC.
TABLE OF CONTENTS
I. DESCRIPTION AND CHARGES FOR SERVICES.......................................................... 1
II. TERMS AND CONDITIONS FOR RESALE OF SERVICES................................................... 3
A. Permitted Use of Resold Services by LSP and Its End Users............................ 3
B. Use of SWBT Trademarks............................................................... 5
C. Network and Service Order Conditions................................................. 5
III. ADDITIONAL SERVICES........................................................................... 7
A. 911/E911............................................................................. 7
B. Dialing Parity....................................................................... 7
C. White Page Directories: Listings, Distribution and Information Page................. 8
D. Directory Assistance (DA)............................................................ 10
E. Operator Services (OS)............................................................... 10
IV. RESPONSIBILITIES OF SWBT...................................................................... 10
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES.................................................... 12
VI. CHANGES IN SUBSCRIBER CARRIER SELECTIONS...................................................... 12
VII. ADDITIONAL RESPONSIBILITIES OF LSP............................................................ 14
A. Payment of Rates and Charges......................................................... 14
B. Interfaces with SWBT................................................................. 15
C. Repair Contact Arrangements.......................................................... 15
D. LSP Operating Company Number (OCN)................................................... 15
E. Special Service Arrangements......................................................... 15
F. Development of Branding and Customized Routing for Directory
Assistance and Operator Services................................................... 15
VIII. NONEXCLUSIVITY................................................................................ 17
IX. SUPPORT SYSTEMS SERVICES...................................................................... 17
A. Support Systems Services............................................................. 17
B. Network Management Controls.......................................................... 19
C. Law Enforcement and Civil Process .................................................. 19
D. Usage Data........................................................................... 20
X. CALL TRACE.................................................................................... 20
<PAGE> 35
XI. TAXES........................................................................................ 20
XII. TERMINATION OF SERVICE TO LSP................................................................ 20
XIII. FORCE MAJEURE................................................................................ 22
XIV. LIMITATION OF LIABILITY...................................................................... 23
XV. NONDISCLOSURE................................................................................ 24
XVI. PUBLICITY.................................................................................... 24
XVII. ASSIGNMENT................................................................................... 25
XVIII. DISPUTE RESOLUTION........................................................................... 25
A. Finality of Disputes................................................................ 25
B. Alternative to Litigation........................................................... 25
XIX. VERIFICATION REVIEWS......................................................................... 27
XX. COMPLIANCE WITH LAWS ....................................................................... 28
XXI. CERTIFICATION REQUIREMENTS................................................................... 29
XXII. EFFECT OF OTHER AGREEMENTS................................................................... 29
XXIII. NEW SERVICES................................................................................. 30
XXIV. NOTICES...................................................................................... 30
XXV. BENEFICIARIES................................................................................ 30
XXVI. TERM......................................................................................... 30
XXVII. EFFECTIVE DATE............................................................................... 31
XXVIII. WAIVER ...................................................................................... 31
XXIX. DISCLAIMER OF WARRANTIES..................................................................... 32
XXX. RELATIONSHIP OF THE PARTIES.................................................................. 32
XXXI. COMPLETE TERMS............................................................................... 32
<PAGE> 36
EXHIBIT A - TELECOMMUNICATIONS SERVICES LIST
EXHIBIT B - OTHER SERVICES LIST
EXHIBIT C - OS/DA PRICING - BRANDING, RATE & REFERENCE
<PAGE> 37
EXHIBIT A
PAGE 1 OF 5
SOUTHWESTERN BELL'S RESALE TELECOMMUNICATIONS SERVICES* LIST - BUSINESS
MISSOURI
RESALE DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
LOCAL EXCHANGE SERVICE
Business 1 Party 13.2% 13.2%
Business - Multi-Line Hunting 13.2% 13.2%
Business Measured 13.2% 13.2%
Business Measured (HTG Class of Service) 13.2% 13.2%
EXPANDED LOCAL CALLING
Mandatory EAS 13.2% 13.2%
Optional Metropolitan Calling Area 13.2% 13.2%
VERTICAL SERVICES
Auto Redial 13.2% 13.2%
Call Blocker 13.2% 13.2%
Call Forwarding 13.2% 13.2%
Call Forwarding - Busy Line 13.2% 13.2%
Call Forwarding - Busy Line/Don't Answer 13.2% 13.2%
Call Forwarding - Don't Answer 13.2% 13.2%
Call Return 13.2% 13.2%
Call Trace 13.2% 13.2%
Call Waiting 13.2% 13.2%
Calling Name 13.2% 13.2%
Calling Number 13.2% 13.2%
ComCall(R) 13.2% 13.2%
Personalized Ring (1 dependent number) 13.2% 13.2%
Personalized Ring (2 dependent numbers - 1st number) 13.2% 13.2%
Personalized Ring (2 dependent numbers - 2nd number) 13.2% 13.2%
Priority Call 13.2% 13.2%
Remote Access to Call Forwarding 13.2% 13.2%
Selective Call Forwarding 13.2% 13.2%
Simultaneous Call Forwarding 13.2% 13.2%
Speed Calling 8 13.2% 13.2%
Speed Calling 30 13.2% 13.2%
Three Way Calling 13.2% 13.2%
*Some Services not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 38
EXHIBIT A
PAGE 2 OF 5
RESALE DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
DID
DID (First Block of 100 - Category 1) 13.2% 13.2%
DID (First Block of 10 - Category 1) 13.2% 13.2%
DID (Ea. adl. block of 10 after first 10 - Category 1) 13.2% 13.2%
DID (Ea. adl. block of 100 after first 100 - Category 2) 13.2% 13.2%
DID (Ea. adl. block of 10 assigned over 1st 100 - Category 2) 13.2% 13.2%
DID (with Multifrequency) 13.2% 13.2%
DID (with Dual-Tone Multifrequency) 13.2% 13.2%
DID (1st 10 Trunks or access lines) 13.2% 13.2%
DID (11th thru 50th trunk or network access line) 13.2% 13.2%
DID (51st trunk or network access line) 13.2% 13.2%
TRUNKS
Analog Trunks 13.2% 13.2%
Digital Trunks 13.2% 13.2%
AIN
Area Wide Networking 13.2% 13.2%
Disaster Routing Service 13.2% 13.2%
Intelligent Redirect(sm) 13.2% 13.2%
Intellinumber 13.2% 13.2%
Positive ID 13.2% 13.2%
OTHER
Bundled Telecommunications Services (e.g., the Works) 13.2% 13.2%
Customer Alerting Enablement 13.2% 13.2%
Grandfathered Services 13.2% 13.2%
Hot Line 13.2% 13.2%
Hunting 13.2% 13.2%
Local Operator Assistance Service 13.2% 13.2%
Night Number associated with Telephone Number 13.2% 13.2%
Night Number associated with a Terminal 13.2% 13.2%
Promotions (Greater than 90 days) 13.2% 13.2%
Telebranch(R) 13.2% 13.2%
Toll Restriction 13.2% 13.2%
TouchTone 13.2% 13.2%
Voice Dial 13.2% 13.2%
Warm Line 13.2% 13.2%
*Some Services not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 39
EXHIBIT A
PAGE 3 OF 5
RESALE DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
ISDN
Digiline 13.2% 13.2%
Select Video Plus(R) 13.2% 13.2%
Smart Trunk(sm) 13.2% 13.2%
DIRECTORY ASSISTANCE SERVICES 13.2% 13.2%
TOLL
900 Call Restriction 13.2% 13.2%
IntraLATA MTS 13.2% 13.2%
MaxiMizer 800(R) 13.2% 13.2%
OutWATS 13.2% 13.2%
Toll Billing Exception (Billed Number Screen) 13.2% 13.2%
800 Service 13.2% 13.2%
OPTIONAL TOLL CALLING PLANS
1+ SAVER(sm) 13.2% 13.2%
1+ SAVER Direct(sm) 13.2% 13.2%
Community Optional Saver 13.2% 13.2%
Outstate Calling Area Service 13.2% 13.2%
PLEXAR(R)
Plexar I(R) 13.2% 13.2%
Plexar II(R) 13.2% 13.2%
Plexar Custom(R) 0.0% 0.0%
PRIVATE LINE
Analog Private Lines 13.2% 13.2%
Business Video Service 13.2% 13.2%
Digital Loop Service 13.2% 13.2%
DOVLink 13.2% 13.2%
Foreign Exchange Service 13.2% 13.2%
Foreign Serving Office 13.2% 13.2%
Frame Relay 13.2% 13.2%
Group Alerting Services 13.2% 13.2%
MegaLink II(R) 13.2% 13.2%
MegaLink III(R) 13.2% 13.2%
MicroLink I(R) 13.2% 13.2%
MicroLink II(R) 13.2% 13.2%
MultiPoint Video 13.2% 13.2%
Service Loop Facility Modification Service 13.2% 13.2%
*Some Services not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 40
EXHIBIT A
PAGE 4 OF 5
SOUTHWESTERN BELL'S RESALE TELECOMMUNICATIONS SERVICES* LIST - RESIDENCE
MISSOURI
RESALE DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
LOCAL EXCHANGE SERVICE
Life Line and Link Up America Services 13.2% 13.2%
Residence 1 Party 13.2% 13.2%
Residence Measured 13.2% 13.2%
EXPANDED LOCAL CALLING
Mandatory EAS 13.2% 13.2%
Optional Metropolitan Calling Area 13.2% 13.2%
VERTICAL SERVICES
Auto Redial 13.2% 13.2%
Call Blocker 13.2% 13.2%
Call Forwarding 13.2% 13.2%
Call Forwarding - Busy Line 13.2% 13.2%
Call Forwarding - Busy Line/Don't Answer 13.2% 13.2%
Call Forwarding - Don't Answer 13.2% 13.2%
Call Return 13.2% 13.2%
Call Trace 13.2% 13.2%
Call Waiting 13.2% 13.2%
Calling Name 13.2% 13.2%
Calling Number 13.2% 13.2%
ComCall(R) 13.2% 13.2%
Personalized Ring (1 dependent number) 13.2% 13.2%
Personalized Ring (2 dependent numbers - 1st number) 13.2% 13.2%
Personalized Ring (2 dependent numbers - 2nd number) 13.2% 13.2%
Priority Call 13.2% 13.2%
Remote Access to Call Forwarding 13.2% 13.2%
Selective Call Forwarding 13.2% 13.2%
Simultaneous Call Forwarding 13.2% 13.2%
Speed Calling 8 13.2% 13.2%
Three Way Calling 13.2% 13.2%
DIRECTORY ASSISTANCE SERVICES 13.2% 13.2%
<PAGE> 41
EXHIBIT A
PAGE 5 OF 5
RESALE DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
ISDN
Digiline 13.2% 13.2%
OTHER
Bundled Telecommunications Services (e.g., the Works) 13.2% 13.2%
Customer Alerting Enablement 13.2% 13.2%
Grandfathered Services 13.2% 13.2%
Hot Line 13.2% 13.2%
Local Operator Assistance Service 13.2% 13.2%
Promotions (Greater than 90 days) 13.2% 13.2%
Preferred Number Service 13.2% 13.2%
Toll Restriction 13.2% 13.2%
TouchTone 13.2% 13.2%
Voice Dial 13.2% 13.2%
Warm Line 13.2% 13.2%
TOLL
900 Call Restriction 13.2% 13.2%
Home 800(sm) 13.2% 13.2%
IntraLATA MTS 13.2% 13.2%
Toll Billing Exception (Billed Number Screen) 13.2% 13.2%
OPTIONAL TOLL CALLING PLANS
1+ SAVER(sm) 13.2% 13.2%
1+ SAVER Direct(sm) 13.2% 13.2%
Community Optional Saver 13.2% 13.2%
Outstate Area Calling Service 13.2% 13.2%
*Some Services not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 42
EXHIBIT B
PAGE 1 OF 1
SOUTHWESTERN BELL'S RESALE OTHER SERVICES* LIST
MISSOURI
RESALE DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
Additional Directory Listings 13.2% 13.2%
Prepaid Calling Cards 13.2% 13.2%
Bill Plus 5% 5%
Consolidated Billing 5% 5%
Access Services 0% 0%
Wireless Carrier Interconnection Services 0% 0%
Company Initiated Suspension Service 0% 0%
Construction Charges 0% 0%
Customer Initiated Suspension Service 0% 0%
Exchange Interconnection Service 0% 0%
Connections with Terminal Equipment and Communications 0% 0%
Equipment
Maintenance of Service Charges 0% 0%
Telecommunications Service Priority Systems 0% 0%
*Some Services not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 43
EXHIBIT C
PAGE 1 OF 1
APPENDIX RESALE
MISSOURI
OS/DA PRICING - BRANDING, RATE & REFERENCE
The following rates will apply for each service element:
A. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per
brand for the establishment of LSP specific Call Branding. A Per
Call charge also applies. When there are subsequent changes to
the branding announcement, an additional non-recurring charge
will also apply per TOPS, per brand, for each change.
Rate per initial load group $2,325.00
Rate per load for Brand change $2,325.00
Per Call $0.02
B. DIRECTORY ASSISTANCE RATE/REFERENCE
INFORMATION
An initial non-recurring charge applies per TOPS switch, per rate
schedule for the initial load of LSP's DA Services Rate/Reference
Information. An additional non-recurring charge applies per TOPS
switch, per rate schedule for each subsequent change to
Rate/Reference Information.
Rate per initial load $3,850.00
Rate per subsequent rate change $2,850.00
Rate per subsequent reference change $2,850.00
C. OPERATOR SERVICES RATE/REFERENCE
INFORMATION
An initial non-recurring charge applies per TOPS switch, per rate
schedule for the initial load of LSP's Operator Services
Rate/Reference Information. An additional non-recurring charge
applies per TOPS switch, per rate schedule for each subsequent
change to Rate/Reference Information.
Rate per initial load $3,850.00
Rate per subsequent rate change $2,850.00
Rate per subsequent reference change $2,850.00
Proprietary: Not for Use or Disclosure Outside the
Southwestern Bell Corporation
Family of Companies Except Under Written Agreement
<PAGE> 44
APPENDIX OSS-RESALE
<PAGE> 45
PAGE 2 OF 8
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
1. GENERAL CONDITIONS
1.1 This Appendix sets forth the terms and conditions under which SWBT
provides nondiscriminatory access to SWBT's operations support systems
"functions" to LSP for pre-ordering, ordering, provisioning, maintenance /
repair, and billing. Such functions will be made available as described herein
for Resold Services, as provided in this Interconnection Agreement.
1.2 The functions, for Resale, will be accessible via electronic
interface, as described herein, where such functions are available. Manual
access will be available to all pre-ordering, ordering, provisioning, and
billing functions via the Local Service Provider Service Center (LSPSC). LSP may
continue to use manual processes through SWBT to access OSS functions even after
the electronic interfaces are available. The provisions governing use of
electronic interfaces will apply at such time as LSP begins to utilize the
electronic interface. LSP may utilize this manual process for some OSS functions
and electronic access for other OSS functions. Repair and maintenance functions
are available via manual handling by the Local Service Provider Center (LSPC).
1.3 LSP agrees to utilize SWBT electronic interfaces, as SWBT defines
in its requirements, only for the functions described herein for the purposes of
establishing and maintaining Resale services. LSP agrees that such use will
comply with the summary of SWBT's Operating Practice No. 113, Protection of
Electronic Information, titled Local Service Provider Security Policies and
Guidelines.
1.4 LSP's access to OSS functions will only be utilized to view an end
user's Customer Proprietary Network Information (CPNI) under the conditions set
forth and agreed to in Exhibit A and elsewhere in this Appendix. Once the
conditions set forth in Appendix A are satisfied, LSP may access the end user's
CPNI pursuant to this section 1.4.
1.5 By utilizing electronic interfaces to access OSS functions, LSP
acknowledges and agrees to perform accurate and correct billing functions that
occur during ordering per the terms of this Agreement. Further, LSP recognizes
that such billing functions for conversion orders require viewing CPNI as
described in section 1.4 above. All exception handling must be requested
manually from LSPSC.
1.6 In areas where Resale service order transactions cannot be provided
via an electronic interface for the pre-order, ordering and provisioning
processes, SWBT and LSP will utilize manual processes until such time as the
transactions can be electronically transmitted, subject to section 1.2.
1.7 SWBT will provide a help desk function for electronic system
interfaces.
<PAGE> 46
PAGE 3 OF 8
1.8 SWBT and LSP will jointly establish interface contingency and
disaster recovery plans for the pre-order, ordering and provisioning of Resale
services.
1.9 SWBT reserves the right to modify or discontinue the use of any
system or interface as it deems appropriate.
1.10 If LSP elects to utilize industry standardized electronic
interfaces for Resale, SWBT and LSP agree to work together to implement the
guidelines issued by the Order and Billing Forum (OBF) and the
Telecommunications Industry Forum (TCIF) and conform to uniform industry
standards for electronic interfaces for pre-order, ordering, and provisioning.
Neither Party waives its rights in such forums in the implementation of the
standards. To achieve industry standard system functionality as quickly as
possible, the Parties acknowledge that SWBT may deploy these interfaces with
requirements developed in advance of industry standards. Thus, subsequent
modifications may be necessary to comply with emerging standards. LSP and SWBT
are individually responsible for evaluating the risk of developing their
respective systems in advance of standards and agree to support their own system
modifications to comply with new requirements.
1.11 If LSP determines that additional or different information and/or
functionality is required or desirable with respect to any of the OSS functions,
whether covered by this Agreement or otherwise, LSP shall request such
information or functionality from SWBT.
1.12 To the extent LSP feels that outages affecting its access to OSS
are excessive, the Parties agree that this matter may be raised as a dispute to
be handled per the Dispute Resolution Process of Article XVIII of the Resale
Agreement without prejudice to the other rights of either party.
2. PRE-ORDER
2.1 SWBT will provide access to pre-order functions to support LSP
ordering of Resale services via several electronic interfaces. The Parties
acknowledge that ordering requirements necessitate the use of current, real time
pre-order information to accurately build service orders. The following lists
represent pre-order information that will be available to LSP so that LSP order
requests may be created to comply with SWBT ordering requirements.
2.2 PRE-ORDERING FUNCTIONS FOR RESALE SERVICES WILL INCLUDE:
2.2.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the end
office where the customer is provisioned;
2.2.2 features and services to which the customer subscribes
(LSP agrees that LSP's representatives will not access the information specified
in this Subsection until after the
<PAGE> 47
PAGE 4 OF 8
customer requests that the customer's local exchange service provider be changed
to LSP and such request complies with the conditions of Exhibit A of this
Appendix.)
2.2.3 a telephone number (if the customer does not have one
assigned) with the customer on-line.
2.2.4 if a service call is needed to install the line or
service;
2.2.5 information regarding the dispatch / installation
schedule, if applicable;
2.2.6 PIC options for intraLATA toll (when available) and
interLATA toll;
2.2.7 address verification.
2.3. Electronic Access to Pre-Order Functions: Upon request by LSP for
electronic access to pre-ordering functions, SWBT will provide LSP access to one
or more of the following systems:
2.3.1 Residential Easy Access Sales Environment (R-EASE):
R-EASE is an ordering entry system through which SWBT will provide LSP access
for the functions of pre-ordering SWBT's Resale services so long as EASE is
utilized to order SWBT Residential Resale Services.
2.3.2 Business Easy Access Sales Environment (EASE): B-EASE is
an ordering entry system through which SWBT will provide LSP access for the
functions of pre-ordering SWBT's Resale services so long as such access is
utilized to order SWBT's Business Resale Services.
2.3.3 DataGate: DataGate is transaction-based data query
system through which SWBT will provide LSP access for the functions of gathering
pre-ordering information to support industry standardized ordering processes for
Residential and Business Resale services. When ordering Resale services, LSP's
representatives will have access to a pre-order electronic gateway provided by
SWBT for both consumer and business customers that provides real-time access to
SWBT's operations systems. This gateway shall be a Transmission Control
Protocol/Internet Protocol (TCP/IP) gateway and will allow the LSP
representatives to perform the pre-order functions for Resale services, as
described above. SWBT and LSP agree to work together to develop and implement an
electronic communication interface that will replace this initial pre-order
electronic interface consistent with industry standards developed by the OBF and
the TCIF.
2.3.4 VERIGATE is an Access Service Pre-order system that will
also provide access to the pre-ordering functions for Resale Services. VERIGATE
may be used in connection with electronic or manual ordering. VERIGATE preorder
functionality "features and services to which the customer currently subscribes"
will be made available by third quarter 1997.
<PAGE> 48
PAGE 5 OF 8
2.4 OTHER PRE-ORDER FUNCTION AVAILABILITY:
2.4.1 Where due dates are not available electronically, SWBT
will provide LSP with due date interval for inclusion in the service order
request.
2.4.2 In addition to electronic interface access to pre-order
information, upon request, SWBT will provide LSP pre-order information in batch
transmission for the purposes of back-up data for periods of system
unavailability. The parties recognize such information must be used to construct
order requests only in exception handling.
2.5 The provisions of section 1.2 shall apply with respect to the
functions addressed in this Section 2.
3. ORDERING/PROVISIONING
3.1 SWBT will provide access to ordering functions to support LSP
provisioning of Resale services via one or more electronic interfaces. Upon
request for electronic access to ordering functions, SWBT will provide LSP
access to one or more of the following systems or interfaces:
3.1.1 R-EASE is available for the generation of Residential
Resale services orders. Ordering Flows will be available via these systems for
the following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.1.2 B-EASE is available for the generation of Business
Resale services orders. Ordering Flows will be available via these systems for
the following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.1.3 SWBT will provide LSP with an Electronic Data
Interexchange (EDI) Interface for transmission of industry-standardized Resale
service order requests in formats as defined by the Ordering and Billing Forum
(OBF) and EDI mapping as defined by TCIF. EDI ordering functionality will be
made available as negotiated and implemented in timeframes mutually acceptable
to SWBT and LSP.
3.2 SWBT will provision Resale Services as prescribed in LSP order
requests. Access to status on such orders of Resale services will be provided
via the following electronic interfaces:
3.2.1 Order Status will allow LSP to check service order status.
3.2.2 In cases of industry-standardized EDI ordering, SWBT will provide
to LSP an
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EDI electronic interface for transferring and receiving orders, Firm Order
Confirmation (FOC), service completion, and, as available, other provisioning
data and information. SWBT will provide LSP with a FOC for each Resale order.
The FOC includes but is not necessarily limited to: purchase order number,
telephone number, Local Service Request number, due date, Service Order number,
and completion date. Upon work completion, SWBT will provide LSP with an 855 EDI
transaction based Order Completion that states when that order was completed.
When available, SWBT will provide LSP an 865 EDI transaction-based Order
Completion.
3.2.3 A file transmission may be provided to confirm order completions
for R-EASE or B-EASE order processing. This file will provide service order
information of all distributed and completed orders for LSP, regardless of order
entry mechanism.
3.3 The provisions of section 1.2 shall apply with respect to access to
the functions described in this Section 3.
4. MAINTENANCE/REPAIR
4.1 Two electronic interfaces are accessible to place, and check the
status of, trouble reports for Resale. Upon request, LSP may access these
functions via the following methods:
4.1.1 Trouble Administration (TA) system access provides LSP
with SWBT software that allows LSP to submit trouble reports and subsequently
check status on trouble reports for LSP end-users. TA will provide ability to
review the maintenance history of a converted Resale LSP account.
4.1.2 Electronic Bonding Interface (EBI) is an
industry-standardized interface that is available for trouble report submission
and status updates. This EBI will conform to ANSI standards T1:227:1995 and
T1.228:1995, Electronic Communications Implementation Committee (ECIC) Trouble
Report Format Definition (TFRD) Number 1 as defined in ECIC document
ECIC/TRA/95-003, and all standards referenced within those documents, as
mutually agreed upon by LSP and SWBT. Functions currently implemented will
include Enter Trouble, Request Trouble Report Status, Add Trouble Information,
Modify Trouble Report Attributes, Trouble Report Attribute Value Change
Notification, and Cancel Trouble Report, as explained in 6 and 9 of ANSI
T1.228:1995. LSP. SWBT will exchange requests over a mutually agreeable
X.25-based network.
4.2 The provisions of section 1.2 shall apply with respect to access to
the functions described in this Section 4.
5. BILLING
5.1 SWBT shall bill LSP for resold services. SWBT shall send associated
billing information to LSP as necessary to allow LSP to perform billing
functions. At minimum SWBT will provide LSP billing information in a paper
format or via magnetic tape, as agreed to between
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LSP and SWBT.
5.2 Upon request, electronic access to billing information for Resale
Services will also be available via the following interfaces:
5.2.1 LSP may receive Bill Plus(TM), an electronic version of
their electronic bill as described in and in accordance with SWBT's Local
Exchange Tariff.
5.2.2 LSP may receive a mechanized bill format via the
industry standards EDI.
5.2.3 LSP may also view billing information through the CNA -
Billing Inquiry interface.
5.2.4 SWBT shall provide the Usage Billable Records for Resale
Services via EMR industry standard format with a daily feed.
5.2.5 LSP may receive Local Disconnect Report records (via
CARE records) electronically that indicate when LSP's customers change their
local service provider.
5.3 The provisions of section 1.2 shall apply with respect to access to
the functions described in this Section 5.
6. REMOTE ACCESS FACILITY
6.1 LSP must access the following of SWBT's OSS interfaces via a LSP
Remote Access Facility (LRAF) located in Dallas, Texas: R-EASE, B-EASE, Trouble
Administration, DATAGATE and VERIGATE. Connection to the LRAF will be
established via a "port" either through dial-up or direct connection as
described in Section 6.2. LSP may utilize a port to access these interfaces to
perform the supported functions in any SWBT state where LSP has executed an
Appendix OSS and purchases System Access in that state.
6.2 LSP may use three types of access: Switched, Private Line, and
Frame Relay. For Private Line and Frame Relay connections, LSP shall provide its
own router, circuit, and two Channel Service Units/Data Service Units (CSU/DSU).
The demarcation point shall be the router interface at the LRAF. Switched Access
connections require LSP to provide its own modems and connection to the SWBT
LRAF. LSP shall pay the cost of the call if Switched Access is used.
6.3 LSP must use TCP/IP to access SWBT OSS via the LRAF. In addition,
each LSP shall have a valid Internet Protocol (IP) network address. A user-id
/password unique to each individual accessing an OSS shall be maintained to
access any SWBT OSS. Prior to establishing connectivity and as needed
thereafter, LSP must provide estimates regarding its volume of transactions,
number of concurrent users, desired number of private line or dial-up (switched)
connections, and length of a typical session.
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6.4 LSP shall attend and participate in implementation meetings to
discuss LSP LRAF access plans in detail and schedule testing of such
connections. SWBT shall make a Help Desk function available to assist LSP on an
ongoing basis in accessing SWBT OSS's over the LRAF.
7. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING AND REPAIR/
MAINTENANCE INTERFACES
7.1 If and when LSP uses electronic interfaces, LSP must participate
with SWBT in Operational Readiness Testing (ORT), which will allow for the
testing of the systems, interfaces, and processes for the ordering and
provisioning of Resale services. ORT will be completed in conformance with
agreed upon implementation dates. LSP and SWBT will also engage in such testing
as may be necessary for successful implementation of the manual processes
contemplated by Section 1.2.
7.2 Prior to live system usage, LSP must complete user training
sessions for SWBT-provided interfaces that affect SWBT network. Currently,
training is available and required for R-EASE, B-EASE, and Trouble
Administration. Training is also available for Order Status and Verigate.
Charges apply to training delivery.
8. RATES
8.1 LSP requesting access to one or more of the SWBT OSS functions
(i.e., preordering, ordering / provisioning, maintenance / repair, billing)
agrees to pay the following rate:
System Access $3,345.00 / month
8.2 LSP requesting functions via interfaces that require connection to
the Remote Access Facility, as described in section 6, agrees to pay the
following rate(s) depending upon on method of access utilized:
Remote Access Facility Access Methods
Direct Connection Per Port $1,580.00 / month
Dial Up Per Port $ 316.00 / month
8.3 LSP requesting the Bill Plus(TM), as described in 5.2.1, agrees to
pay applicable tariffed rate, less Resale discount.
8.4 LSP requesting the billing function for Usage Billable Records, as
described in 5.2.4, agrees to pay $.003 per message transmitted.
8.5 LSP requesting the Local Disconnect Report, as described in 5.2.5,
agrees to pay $0.10 per record transmitted.
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8.6 Should unforeseen modifications and costs to provision OSS
functions become required by SWBT or industry standards, SWBT reserves the right
to modify its rate structure. In addition, should LSP request custom development
of an exclusive interface to support OSS functions, such development will be
considered by SWBT on an Individual Case Basis (ICB) and priced as such.
9. EFFECTIVE DATE, TERM
9.1 The Term of this Appendix OSS will be coincident with the term of
the underlying Resale Agreement between the Parties and will be effective upon
approval by the Commission when it approves it as a part of the Resale
Agreement.
<PAGE> 53
EXHIBIT A
PAGE 1 OF 2
BLANKET CERTIFICATION FOR END-USER AUTHORIZATION FOR RELEASE OF
CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI)
The undersigned hereby agrees:
Before it may obtain CPNI of an end-user, whether via an independent request or
in the course of ordering SWBT's Resale services via manual and/or mechanized
interfaces, the undersigned must, at least, certify that "yes" (Y) it has
obtained Authorization for Release of CPNI and provide the name of the
individual authorizing the release of CPNI. By these indications, the
undersigned affirms that a current Authorization for the Release of CPNI has
been obtained from an end-user and that it includes the expressed content of the
language, "Minimum Scope." SWBT may then provide the CPNI referenced herein.
Minimum Scope: Authorization for the release of CPNI
1) An affirmative written request that substantially reflects the
following: "This document serves as instruction to all holders
of my local exchange telecommunications Customer Proprietary
Network Information (CPNI) to provide such information to the
undersigned. I understand that this CPNI includes the
following information: billing name, service address, billing
address, service and feature subscription, directory listing
information long distance carrier identity, and all pending
service order activity This Authorization remains in effect
until such time that I revoke it directly or appoint another
individual/company with such capacity or undersigned receives
notice to disconnect my local exchange service or notice that
a service disconnect has been performed. At and from such
time, this Authorization is null and void."
or
2) Authorization for change in local exchange service and release
of CPNI with documentation that adheres to all requirements of
state and federal law, as applicable.
------------------------------------------
Signed
------------------------------------------
Name (Typed/Printed)
------------------------------------------
Title
------------------------------------------
Company
------------------------------------------
Date
Proprietary: Not for Use or Disclosure Outside the Southwestern Bell Corporation
Family of Companies Except Under Written Agreement
<PAGE> 54
SOUTHWESTERN BELL TELEPHONE COMPANY BIRCH TELECOM OF MISSOURI, INC.
By:________________________________ By:____________________________________
(name printed or typed)
Signature:_________________________ Signature:_____________________________
Title:_____________________________ Title:_________________________________
(printed or typed) (printed or typed)
Date:______________________________ Date:__________________________________
Proprietary: Not for Use or Disclosure Outside the Southwestern Bell Corporation
Family of Companies Except Under Written Agreement