20070530Application.pdf

,- ,
Conley E. Ward (ISB No. 1683)
Michael C. Creamer (ISB No. 4030)
GIVENS PURSLEY LLP
60 I West Bannock Street
O. Box 2720
Boise, Idaho 83701-2720
Office: [phone]
Fax: [phone]
www.givenspursley.com
Attorneys for Albion Telephone Company, Inc.
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Case No.AL8;1-o7-O~
APPLICATION FOR APPROVAL OF
NEGOTIATED AGREEMENT BETWEEN
ALBION TELEPHONE COMPANY, INC.
AND SPRINT SPECTRUM L.P. d/b/a
SPRINT PCS NEXTEL WEST
CORPORATION NPCR, INC. d/b/a
NEXTEL PARTNERS
ApPLICATION FOR ApPROVAL OF
NEGOTIATED AGREEMENT
Albion Telephone Company, Inc. ("Albion ), through its attorneys Givens
Pursley LLP, hereby files this Application for Approval of Negotiated Agreement ("Agreement"
between Albion and Sprint Spectrum L.P. d/b/a Sprint PCS Nextel West Corporation NPCR, Inc.
d/b/a Nextel Partners ("Sprint"). A copy ofthe Agreement is submitted herewith.
This Agreement was reached through voluntary negotiations between Albion and
Sprint and is submitted for Commission review and approval pursuant to Section 252( e) of the
Telecommunications Act of 1996.
Section 252( e )(2) of the Telecommunications Act of 1996 directs that a state
Commission may reject an agreement reached through voluntary negotiations if the Commission
finds that: the agreement discriminates against a telecommunications carrier not a party to the
ApPLICA nON FOR ApPROVAL OF NEGOnA TED AGREEMENT
S:\CLIENTS\1255\36\Application for ApprovaLDOC
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agreement; or the implementation of the agreement is not consistent with the public interest
convenience and necessity.
Albion respectfully submits that the Agreement does not discriminate and is
consistent the public interest, and, therefore requests that the Commission approve this
Agreement expeditiously. Approval of this Agreement will enable the parties to implement the
Agreement and provide their respective customers with increased local telecommunications
services choices.
The designated representative of each Party, for purposes of responding to
inquiries in this matter is:
For Albion Telephone Company, Inc.
Mike Dolezal
Albion Telephone Company, Inc.
O. Box 98
Albion, ID 83311
With copy to:
Conley E. Ward
Michael C. Creamer
Givens Pursley LLP
601 W. Bannock Street
O. Box 2720
Boise, ID 83701-2720
F or Sprint:
Sprint
Attn: Manager, ICA Solutions
O. Box 7954
Shawnee Mission, KS 66207-0954
With copy to:
Sprint
Legal/Telecom Management Group
O. Box 7966
Shawnee Mission, KS 66208-0966
ApPLICA nON FOR ApPROVAL OF NEGOnA TED AGREEMENT
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Page 2 of 4
This Agreement does not affect the rights of non-parties and expeditious approval
would further the public interest. Therefore, Albion requests that the Commission approve this
Agreement without a hearing.
DATED this 30th day of May 2007.
GIVENS PURSLEY LLP
Michael C. Creamer
Attorneys for Albion Telephone Company, Inc.
ApPLICA nON FOR ApPROVAL OF NEGOnA TED AGREEMENT
S:\CLIENTS\1255\36\Application for ApprovaLDOC
Page 3 of 4
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of May 2007 , I served a true and correct copy of the
foregoing by delivering it to the following individuals by the method indicated below, addressed
as stated.
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ID 83720-0074
S. Mail
Facsimile
Overnight Mail
Hand Delivery
E-mail
Sprint
Attn: Manager, ICA Solutions
O. Box 7954
Shawnee Mission, KS 66207-0954
S. Mail
Facsimile
Overnight Mail
Hand Delivery
E-mail
Sprint
Legal/Telecom Management Group
O. Box 7966
Shawnee Mission, KS 66207-0966
S. Mail
Facsimile
Overnight Mail
Hand Delivery
E-mail
Michael C. Creamer
ApPLICATION FOR ApPROVAL OF NEGOTIATED AGREEMENT
S:\CLIENTS\1255\J6\Application for ApprovaLDOC
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RECIPROCAL COMPENSATION
AGREEMENT
By and Between
Albion Telephone Company, Inc.
and
Sprint Spectrum L.P. d/b/a Sprint PCS
N extel West Corporation
NPCR, Inc. d/b/a N extel Partners
F or the State of Idaho
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TABLE OF CONTENTS
EFINITI 0 NS .
..................... ........ ............. ....... .................... ...... ..........
................ 1
INTER CO NNECTI ON.. .......... .............. .............. ..................... ................... ........ 3
RATES AND CHARGES .....................................................................................
BILLING AND PAYMENT OF CHARGES ..................................................... 6
LATE PAYMENT CHARGES............................................................................ 8
AUDITS ................................................................................................................. 8
IMPAIRMENT OF SERVICE ............................................................................ 9
TROUBLE REPORTING.... ........
........... ...............
............................... ............... 9
TERM AND TERMINATION .......................................................................... 10
LIABILITY UPON TERMINATION............................................................... 11
AMENDMENTS ................................................................................................. 11
ASSI GNMENT .................................................................................................... 12
FO R CE MAJEURE .......... .......................... ........... ......... ........... ............... .......... 12
GO VERNIN G LAW. ............... ................ ........... ..................................... ........... 13
INDEPENDENT CONTRACTOR RELATIONSHIP .................................... 13
IND EMNIFI CA TI 0 N ...... ..... ........................ ......... .................. ............. ............. 13
LIMIT A TI ON OF LIABILITY........................................................................ 14
DISPUTE RESO L UTI ON ................................................................................. 15
CONFIDENTIAL INFO RMA TI 0 N ................................................................. 16
N OTI CES . .............. ........ ..... ................................. ....................... ........................ 17
SEVERABILITY ................................................................................................ 18
MOST FAVORED NATIONS ........................................................................... 19
SIGNA TURES..................................................................................................... 19
This Reciprocal Compensation Agreement ("Agreement"), is entered into by and
between Albion Telephone Company, Inc., an Idaho corporation ("ALBION"), Sprint
Spectrum L.P. d/b/a Sprint PCS , a Delaware limited partnership, Nextel West
Corporation, a Delaware corporation, and NPCR, Inc. d/b/a Nextel Partners, a Delaware
corporation, (collectively referred to herein as "Sprint Nextel"), with offices at 6200
Sprint Parkway, Overland Park, Kansas 66251 (each referred to as a "Party" and
collectively as "Parties ). This Agreement shall be deemed effective as of the date it is
signed by both Parties (the "Effective Date
WHEREAS, Sprint Nextel is a Commercial Mobile Radio Service provider
licensed by the FCC; and
WHEREAS, ALBION is an incumbent Local Exchange Carrier ("LEC") in the
State ofldaho; and
WHEREAS, the Parties exchange Telecommunication Traffic between their
networks and wish to establish Reciprocal Compensation arrangements regarding such
traffic as required under 47 US.C. gg 251(a) and 251(b)(5); and
NOW, THEREFORE, IN CONSIDERATION of the covenants contained herein
the Parties hereby agree as follows:
DEFINITIONS
Any term used in this Agreement that is not specifically defined herein shall have
the definitions assigned to it (if any) in the Act. Any term used in this Agreement that is
not defined herein or in the Act shall be interpreted in light of its ordinary meaning and
usage, including any special or technical meaning or usage that such term may have
within the telecommunications industry.
1.1.Act" means the Communications Act of 1934 (47 US.C. 151 et. seq.), as
amended and interpreted in the rules and regulations of the FCC.
1.2.Commercial Mobile Radio Service
" ("
CMRS") is as defined at 47 C.R g
20.
1.3.Confidential Information" shall have the meaning ascribed in Section 19.
1.4.End Office Switch" or "End Office" means the telephone company switch
to which a telephone subscriber is connected that actually delivers dial tone
to that subscriber, and also establishes line to line, line to trunk, and trunk
to line connections.
1.5.
1.6.
1.7.
1.8.
1.9.
1.10.
1.11.
12.
1.13.
FCC" means the Federal Communications Commission.
Interconnection" is direct or indirect connection through automatic or
manual means (by wire, microwave, or other technologies such as store and
forward) to permit the transmission or reception of messages or signals to
or from points in the public switched network. 47 US.C. g 20.
Interconnection Facilities" are the facilities or combination of facilities
circuits, service arrangements, trunks, and trunk groups used to deliver
Telecommunications Traffic between the ALBION switch and the Sprint
Nextel MSC. 47 U.C. g 20.
Interconnection Point" ("IP") means any technically feasible point of
demarcation where the exchange of traffic between two carriers takes place.
Local Exchange Carrier" or "LEC" means any person that is engaged in
the provision of telephone exchange service or exchange access. Such term
does not include a person insofar as such person is engaged in the provision
of a commercial mobile service under Section 332(c), except to the extent
that the FCC finds that such service should be included in the definition of
such term. 47 US.C. g 153 (26).
Major Trading Area" or "MT A" means the service areas based on the
Rand McNally 1992 Commercial Atlas & Marketing Guide, 123rd edition
at pages 38-39. 47 C.R. g24.202(a).
Mobile Switching Center" or "MSC" is a switching facility that is an
essential element of the CMRS network which performs the switching for
the routing of calls between and among its mobile subscribers and
subscribers in other mobile or landline networks. The MSC is used to
interconnect trunk circuits between and among End Office Switches and
Tandem Switches, aggregation points, points of termination, or points of
presence, also coordinates inter-cell and inter-system call hand-offs, and
records all system traffic for analysis and billing.
Reciprocal Compensation" means a compensation arrangement between
two carriers in which each of the two carriers receives compensation from
the other carrier for the Transport and Termination on each carrier
network facilities of Telecommunications Traffic that originates on the
network facilities of the other carrier. 47 c.F.R. g 51.701(E).
Commission" refers to the Idaho Public Utilities Commission.
1.14.
1.15.
Tandem Switch" or "Tandem Office" is a switching facility that is used to
interconnect trunk circuits between and among End Office Switches
aggregation points, points of termination, or points of presence.
Telecommunications Traffic is that traffic which originates and
terminates within the same MTA. For purposes of determining whether
traffic originates and terminates within the same MT A, and therefore
whether the traffic is subject to reciprocal compensation, the location of the
point of interconnection between the two carriers at the beginning of the
call shall be used to determine the location of the mobile caller or called
party.
1.16. "Termination" means the switching of Telecommunications Traffic at the
terminating Party s End Office Switch, or equivalent facility, and delivery
of such traffic to the called Party s premises.
1.17.Transport" means the transmission and any necessary tandem switching of
Telecommunications Traffic subject to Section 251(b)(5) of the Act from
the Interconnection Point between the Parties to the terminating carrier
End Office Switch that directly serves the called party, or equivalent facility
provided by a carrier other than an incumbent LEC.
INTERCONNECTION
This Agreement sets forth the rights and obligations of each Party to establish
Interconnection to the extent described in this Agreement, to enable the exchange of
Telecommunications Traffic between the networks of both Parties, and the Reciprocal
Compensation rates to be charged for the exchange of such traffic pursuant to Section 251
and 252 of the Act.
2.2.
Interconnection Point - The default Interconnection Point shall be at any
mutually agreed upon tandem to which both Parties are connected
including any third-party Tandem Switch. Each Party shall be responsible
for its own cost, including the cost of providing facilities from its network
to the Interconnection Point, for the traffic that Party originates. Either
Party shall be allowed to establish a different Interconnection Point for the
traffic which that Party originates, provided that the new Interconnection
Point does not increase the cost of transporting or terminating traffic for the
other Party.
Traffic Exchanged
The scope of the traffic subject to this Agreement shall be
limited to that Telecommunications Traffic that originates from
a subscriber on the network of one Party and is delivered to a
2.4.
subscriber on the network of the other Party including, but not
limited to, Telecommunications Traffic that is delivered via a
third-party Tandem Switch.
2.2.2.The exchange of traffic between the Parties that is not
Telecommunications Traffic as defined herein shall be
accomplished using the existing toll telephone network.
The Parties agree that the exchange of traffic on ALBION'
extended area calling service (EAS) routes shall be considered
Telecommunications Traffic and compensation for the
Termination of such traffic shall be paid pursuant to the terms
of this Agreement. An NXX assigned to Sprint Nextel that is
associated with an ALBION rate center shall be included in any
EAS optional calling scope, or similar program to the same
extent as any other NXX in the same rate center. EAS routes
are those exchanges within a telephone exchange s local calling
area, as defined in ALBION's general subscriber tariff.
General Provisions
Each Party shall construct, equip, maintain and operate its network in
accordance with generally accepted engineering practices for telephone
systems and in compliance with all applicable rules and regulations, as
amended from time-to-time, of any regulatory body empowered to regulate
any aspect of the facilities contemplated herein.
LERG Updates
It shall be the responsibility of each Party to program and update its own
switches and network systems pursuant to the Local Exchange Routing
Guide (LERG) guidelines to recognize and route traffic to the other Party'
assigned NXX codes at all times. Neither Party shall impose any fees or
charges whatsoever on the other Party for such activities.
SS7
SS7 Out of Band Signaling (CCS/SS7) shall be the signaling of choice
where technically feasible for both Parties.
RATES AND CHARGES
The Parties agree to compensate one another for Telecommunications
Traffic terminating on the network of one Party that originates on the other
3.4.
Party s network at the rate set forth in Attachment 1. The Parties agree the
rates shall become effective as of the Effective Date.
If the Telecommunications Traffic exchanged between the Parties is
roughly balanced and falls within an agreed upon threshold ("Traffic
Balance Threshold"), the Parties shall move to a bill and keep arrangement.
The Parties agree that for purposes of this Agreement, the Traffic Balance
Threshold is reached when the Telecommunications Traffic exchanged
between the parties falls between 55% / 45% in either the wireless-to-
landline or landline-to-wireless direction. When the actual usage data for
three (3) consecutive months indicates that the Telecommunications Traffic
exchanged falls within the Traffic Balance Threshold, then either Party may
provide the other Party a written request, along with verifiable information
to support such request, to eliminate billing for Reciprocal Compensation
on an actual MOU basis. Upon written consent by the Party receiving the
request, which shall not be withheld unreasonably, no billing for Reciprocal
Compensation will ensue on a going forward basis from the date of the
request. In the event the Parties do not agree to the provisions of this
section, either Party may invoke the Dispute Resolution procedures as set
forth in Section 19.
Notwithstanding the provisions of Section 6 herein, each Party shall, upon
reasonable notice to the other Party, have the right to audit all billing and
traffic records to verify their accuracy and consistency with the terms of
this Agreement whenever the auditing Party believes the ratio of
terminating to originating traffic between the Parties has become
substantially disproportionate. Under no circumstance will either Party be
responsible for compensation for chat-line or conference calling traffic.
Transit Traffic
Telecommunications Traffic that originates on either Party's network and
terminates on the other Party's network via a third-party tandem (indirect
traffic) will be charged at the network usage rate for Termination as set
forth in Attachment 1. The originating Party is responsible for, and agrees
to pay, any transit charges that may be assessed by the third-party tandem
provider to deliver the originating Party s Telecommunications Traffic to
the other Party.
3.4.The compensation rate for indirect traffic shall be subject to
renegotiation between the Parties upon the written request
either Party if a transiting (third-party tandem)
telecommunications provider, whose facilities or services are
used in the Transport and Termination in connection with such
traffic, changes its applicable rates, terms or conditions for those
intermediary services.
BILLING AND PAYMENT OF CHARGES
Measurement Standards
1.1.F or purposes of billing compensation for the exchange of
Telecommunications Traffic, billed minutes of use (MOU) will
be based upon conversation time. Conversation time will be
determined from actual usage recordings. Usage measurement
begins when the terminating recording switch receives answer
supervision from the terminating end user. The measurement of
terminating call usage ends when the terminating entry switch
receives or sends a release message, whichever occurs first.
Measured MOUs are aggregated at the end of the billing cycle
and then rounded to the nearest whole minute.
1.2.Any required mileage measurement shall be based on the
industry standard Vertical and Horizontal Coordinate (V &H)
mileage measurement process.
Bill Exchange
4.2.Format
ALBION will prepare its bill in accordance with its existing CABS /
SECABS billing systems. Sprint Nextel will prepare its bill in accordance
with the OBF (CABS BOS) industry standards. The Parties will make an
effort to conform to current and future OBF (CABS BOS) standards
insofar as is reasonable.
4.2.Timing
The Parties will exchange billing information on a monthly basis. All bills
will be due when rendered and will be considered past due thirty (30) days
after the bill date.
Billing Disputes
The Parties agree that they will each make a good faith effort to resolve
any billing dispute. If any portion of an amount due to a billing Party
under this Agreement is subject to a dispute between the Parties, the billed
Party shall, within thirty (30) days of its receipt of the invoice containing
such disputed amount or discovery of a billing error, give written notice to
the billing Party of the amount it disputes ("Disputed Amount") and
include in such notice the specific details and reasons for disputing each
item. However, billed Party may not dispute any amount more than 12
months from date of billing.
4.2.
4.2.3.4.
4.2.4.
The Billed Party shall pay all undisputed amounts to
billing Party when due.
If the dispute is resolved in favor of the billed Party
and the billed Party has withheld payment of the
disputed amount, no interest, or penalties will apply.
If the dispute is resolved in favor of the billed Party
and the billed Party has paid the disputed amount, the
billing Party will issue credit or reimbursement to the
billed Party of the amounts paid in accordance with the
terms of the resolution of the dispute.
If the dispute is resolved in favor of the billing Party
and the billed Party has withheld payment of the
disputed amount then such amount shall bear interest at
the rate for late payments as set forth in Section 5
herein from the due date until payment is rendered.
any payments withheld shall be due and payable within
thirty (30)'days of resolution of the dispute.
Submission of Billings
The Parties will submit billing information to each other at the addresses
set forth below. Separate billings will be forwarded by Albion to Sprint
Nextel for each Operating Code Number used by Sprint Spectrum L.P.
Nextel West Corporation, and NPCR, Inc., respectively, who each shall be
deemed an individual "billed Party" with respect to their obligation to pay
billed amounts and for purposes of resolving billing disputes.
Albion:
Albion Telephone Company, Inc.
Attn: Julie Lumb
225 West North Street
O. Box 98
Albion, ID 83311
Sprint Nextel (Sprint PCS Accounts)
Sprint Nextel Access Verification
P. O. Box 6827
Shawnee Mission, Kansas 66207-0942
Sprint Nextel (Nextel Accounts)
KSOPHL0412 -4A309
P. O. Box 7942
Overland Park, KS 66207-0942
Taxes
The billing Party shall charge and collect from the billed Party, and the
billed Party agrees to pay to the billing Party, appropriate federal, state
and local taxes where applicable, except to the extent the billed Party
notifies the billing Party and provides appropriate documentation that the
billed Party qualifies for a full or partial exemption.
LATE PAYMENT CHARGES
If any undisputed amount due on a billing statement issued by one Party is not
received by the other Party on the payment due date, then the billing Party may charge
and the billed Party agrees to pay, at the billing Party's option, interest on the past due
balance at a rate equal to one and one-half percent (1 Yz%) per month. Late payment
charges shall be included on the next statement, except that late payment charges accrued
on a Disputed Amount shall be due and owing as provided in a final determination of
such dispute without the need for inclusion on the billing Party s monthly statement.
AUDITS
Either Party may conduct an audit of the other Party's books and records
pertaining to the services provided under this Agreement no more than once per twelve
(12) month period to evaluate the other Party s accuracy of billing, data and invoicing in
accordance with this Agreement. Any audit shall be performed as follows: (a) following
at least thirty (30) business days prior written notice to the audited Party, (b) subject to
the reasonable scheduling requirements and limitations of the audited Party, (c) at the
auditing Party's sole expense, (d) of a reasonable scope and duration, (e) in a manner so
as not to interfere with the audited Party s business operations, and (f) in compliance with
the audited Party s security rules.
IMPAIRMENT OF SERVICE
The characteristics and methods of operation of any circuits, facilities or
equipment of either Party that are connected with the services, facilities or
equipment of the other Party pursuant to this Agreement shall not interfere
with or impair the service provided over any facilities of the other Party, its
affiliated companies, or its connecting and concurring carriers involved in
providing its services. Neither shall the characteristics and methods of
operation of the same circuits, facilities or equipment cause damage to the
other Party s network, violate any applicable law or regulation regarding
the invasion of privacy of any communications carried over the Party
facilities, or create hazards to the employees of either Party or to the public
(each hereinafter referred to as an "Impairment of Service
If either Party causes an Impairment of Service, the Party whose network or
service is being impaired (the "Impaired Party ) shall promptly notify the
Party causing the Impairment of Service (the "Impairing Party") of the
nature and location of the problem and that, unless promptly rectified, a
temporary discontinuance of the use of any circuit, facility or equipment
may be required. The Impairing Party and the Impaired Party agree to work
together to attempt to promptly resolve the Impairment of Service. If the
Impairing Party is unable to promptly remedy the Impairment of Service
then the Impaired Party may at its option temporarily discontinue the use of
the affected circuit, facility or equipment.
TROUBLE REPORTING
In order to facilitate trouble reporting and to coordinate the repair of
Interconnection Facilities, trunks, and other Interconnection arrangements
provided by the Parties under this Agreement, each Party has established a
single point of contact available 24 hours per day, seven days per week, at
telephone numbers to be provided by the Parties. Each Party shall call the
other at these respective telephone numbers to report trouble with
connection facilities, trunks, and other Interconnection arrangements, to
inquire as to the status of trouble ticket numbers in progress, and to escalate
trouble resolution.
1.1.24 Hour Network Management Contact
For ALBION:
NOC Contact Number:
Gary Earl 208-312-3236
gary(illatcnet.net
For SPRINT NEXTEL:
Contact Number:
Email:
888-859-1400
NM C- N OCCManagers~sprint.com
NMC- NOCCSupervisors~sprint.com
Before either Party reports a trouble condition, it must first use its
reasonable efforts to isolate the trouble to the other Party s facilities
service, and arrangements. Each Party will advise the other of any critical
nature of the inoperative facilities, service, and arrangements and any need
for expedited clearance of trouble. In cases where a Party has indicated the
essential or critical need for restoration of the facilities, services or
arrangements, the other Party shall use its best efforts to expedite the
clearance of trouble.
TERM AND TERMINATION
This Agreement shall commence on the Effective Date and have an initial
term of one year, unless earlier terminated as provided for in this
Agreement, and shall continue in force and effect thereafter, for successive
one-year terms unless replaced by another agreement or terminated by
either Party upon written notice to the other Party (sixty) 60 days ' prior to
the end of the current term.
Notwithstanding Section 9., this Agreement shall be terminated in the
event that:
the FCC revokes, cancels, does not renew or otherwise
terminates Sprint Nextel' authorization to provide CMRS in the
area served by ALBION, or the State Commission revokes
cancels, or otherwise terminates ALBION'certification to
provide local service;
9.2.Either Party shall have the right to terminate this Agreement at
any time upon written notice to the other Party in the event:
9.2.the other Party is in arrears in the payment of any
undisputed amount due under this Agreement for more
than ninety (90) days, and the Party does not pay such
sums within ten (10) business days of the other Party
written demand for payment;
9.2.2.the other Party is in material breach of the provisions
of this Agreement and that breach continues for a
period of thirty (30) days after the non-breaching Party
notifies the breaching Party of such breach, including a
reasonably detailed statement of the nature of the
breach; or
the other Party becomes bankrupt, or insolvent, makes
a general assignment for the benefit of, or enters into
any similar arrangement with creditors, or files a
voluntary petition under any bankruptcy, insolvency or
similar laws, or proceedings are instituted against it
under any such laws seeking the appointment of a
receiver, trustee or liquidator instituted against it which
are not terminated within sixty (60) days of such
commencement. .
Upon expiration or request for termination of this Agreement, either Party
may make written request to negotiate a new Agreement, pursuant to
Section 252 of the Act. Upon receipt of such request to negotiate, the same
terms, conditions, and rates set forth in this Agreement will continue in
effect, as were in effect at the end of the latest term, or renewal, so long as
negotiations are continuing pursuant to the Act. If either Party initiates an
arbitration or mediation before the appropriate State Commission or FCC
pursuant to Section 252 of the Act" this Agreement will continue in effect
only until the issuance of an Order, whether a final non-appealable order or
not, by the State Commission or FCC resolving the issues set forth in such
arbitration or mediation request. If neither Party files for arbitration or
mediation and the parties have not mutually agreed to continue
negotiations, then the Agreement shall immediately terminate.
10.LIABILITY UPON TERMINATION
Termination of this Agreement, or any part hereof, for any cause shall not release
either Party from any liability which at the time of termination had already accrued to the
other Party or which thereafter accrues in any respect to any act or omission occurring
, prior to the termination or from an obligation which is expressly stated in this Agreement
to survive termination.
11.AMENDMENTS
Any amendment, modification, or supplement to this Agreement must be in
writing and signed by an authorized representative of each Party. The term "this
Agreement" shall include future amendments, modifications, and supplements.
12.ASSIGNMENT
12.1. Any assignment by either Party of any right, obligation, or duty, in whole or
in part, or of any interest, without the written consent of the other Party,
which consent shall not be unreasonably withheld, shall be void, except that
either Party may assign all of its rights, and delegate its obligations
liabilities and duties under this Agreement, either in whole or in part, to any
entity that is, or that was immediately preceding such assignment, a
Subsidiary or Affiliate of that Party without consent, but with written
notification. The effectiveness of an assignment shall be conditioned upon
the assignee s written assumption of the rights, obligations, and duties of
the assigning Party.
12.2. Nothing in this Agreement shall prohibit Sprint Nextel from enlarging its
CMRS network through management contracts with third-parties for the
construction and operation of a CMRS system under the Sprint and or
Nextel brand name and license. Traffic originating on such extended
networks shall be treated as Sprint PCS traffic subject to the terms
conditions, and rates of this Agreement. Traffic traversing such extended
networks shall be deemed to be and treated under this Agreement as "Sprint
Nextel telecommunications traffic" when it originates on such extended
network and terminates on ALBION's network, and as "ALBION
telecommunications traffic" when it originates upon ALBION's network
and terminates upon such extended network. Telecommunications traffic
traversing on such extended networks shall be subject to the terms
conditions, and rates of this Agreement.
12.3. Either Party may enter into subcontracts with third-parties or affiliates as
defined in the Act for the performance of any of its duties or obligations
under this Agreement.
13.FORCE MAJEURE
In the event performance of this Agreement, or any obligation hereunder, is either
directly or indirectly prevented, restricted, or interfered with by reason of fire, flood
earthquake or like acts of God, wars, revolution, civil commotion, explosion, acts of
public enemy, embargo, acts of the government in its sovereign capacity, or any other
circumstances beyond the reasonable control and without the fault or negligence of the
Party affected, the Party affected, upon giving prompt notice to the other Party, shall be
excused from such performance on a day-to-day basis to the extent of such prevention
restriction, or interference (and the other Party shall likewise be excused from
performance of its obligations on a day-to-day basis until the delay, restriction or
interference has ceased); provided however, that the Party so affected shall use diligent
efforts to avoid or remove such causes of nonperformance and both Parties shall proceed
whenever such causes are removed or cease.
14.GOVERNING LAW
14.1. This Agreement shall be governed by and construed and enforced in
accordance with the Act, the applicable laws of the state of Idaho and the
applicable Commission and FCC Rules and Regulations as amended. The
Parties agree that venue for any actions that may be brought by either Party
to enforce or interpret this Agreement shall be the State Commission or
state or federal district courts in the State of Idaho, where appropriate.
14.2.The terms and conditions of this Agreement shall be subject to any and all
applicable laws, rules, regulations or guidelines that subsequently may be
adopted by any federal, state or local governmental authority. Any
modifications to this Agreement that may be necessitated by changes in
applicable law shall be effected through good faith negotiations concerning
modifications to this Agreement.
15.INDEPENDENT CONTRACTOR RELATIONSHIP
The persons implementing this Agreement on behalf of each Party shall be solely
that Party's employees or contractors and shall be under the sole and exclusive direction
and control of that Party. They shall not be considered employees of the other Party for
any purpose. Each Party shall remain an independent contractor with respect to the other
and shall be responsible for compliance with all laws, rules and regulations involving, but
not limited to, employment oflabor, hours oflabor, health and safety, working conditions
and payment of wages. Each Party shall also be responsible for its own expenses
involved in all activities related to the subject of this Agreement and for payment of
taxes, including federal, state and municipal taxes, chargeable or assessed with respect to
its employees, such as Social Security, unemployment, workers' compensation, disability
insurance, and federal and state withholding. Each Party shall indemnify the other for any
loss, damage, liability, claim, demand, or penalty that may be sustained by reason of its
failure to comply with this provision.
16.INDEMNIFICATION
16.Each Party (the "Indemnifying Party") shall indemnify and hold harmless
the other Party ("Indemnified Party") from. and against loss, cost, claim
liability, damage, and expense (including reasonable attorney s fees) to
customers and other third parties for:
16.1.1.damage to tangible personal property or for personal injury
proximately caused by the negligence or willful misconduct of
the Indemnifying Party, its employees, agents or contractors;
16.1.2.claims for infringement of patents arising from combining the
Indemnified Party s facilities or services with, or the using of the
Indemnified Party's services or facilities in connection with
facilities of the Indemnifying Party.
16.2. Notwithstanding this indemnification provision or any other provision in
the Agreement, neither Party, nor its parent, subsidiaries, affiliates, agents
servants, or employees, shall be liable to the other for Consequential
Damages (as defined in Section 20.3).
16.3. The Indemnified Party will notify the Indemnifying Party promptly and in
writing of any claims, lawsuits, or demands by customers or other third
parties for which the Indemnified Party alleges that the Indemnifying Party
is responsible under this section, and, if requested by the Indemnifying
Party, will tender the defense of such claim, lawsuit or demand.
16.If the Indemnifying Party does not promptly assume or
diligently pursue the defense of the tendered action, then the
Indemnified Party may proceed to defend or settle said action
and the Indemnifying Party shall hold harmless the Indemnified
Party from any loss, cost liability, damage and expense.
16.3.2.In the event the Party otherwise entitled to indemnification from
the other elects to decline such indemnification, then the Party
making such an election may, at its own expense, assume
defense and settlement of the claim, lawsuit or demand.
16.The Parties will cooperate in every reasonable manner with the
defense or settlement of any claim, demand, or lawsuit.
16.4. Neither Party shall accept the terms of a settlement that involves or
references the other Party in any matter without the other Party s approval.
17.LIMITATION OF LIABILITY
17.1. No liability shall attach to either Party, its parents, subsidiaries, affiliates
agents, servants, employees, officers, directors, or partners for damages
arising from errors, mistakes, omissions, interruptions, or delays in the
course of establishing, furnishing, rearranging, moving, terminating,
changing, or providing or failing to provide services or facilities (including
the obtaining or furnishing of information with respect thereof or with
respect to users of the services or facilities) in the absence of gross
negligence or willful misconduct.
17.2. Except as otherwise provided in Section 19, no Party shall be liable to the
other Party for any loss, defect, or equipment failure caused by the conduct
of the first Party, its agents, servants, contractors or others acting in aid or
concert with that Party, except in the case of gross negligence or willful
misconduct.
17.3. Except as provided in Section 19, no Party shall be liable to the other Party
for any indirect, special, consequential, incidental or punitive damages
including but not limited to loss of anticipated profits or revenue or other
economic loss in connection with or arising from anything said, omitted or
done hereunder (collectively, "Consequential Damages ), even if the other
Party has been advised of the possibility of such damages.
17.4. DISCLAIMER
EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER PARTY
MAKES ANY REPRESENTA nONS 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, NEITHER
PARTY ASSUMES ANY RESPONSIBILITY WITH REGARD TO THE
CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY THE
OTHER PARTY WHEN THIS DATA OR INFORMATION IS
ACCESSED AND USED BY A THIRD-PARTY.
18.DISPUTE RESOLUTION
Except as provided under Section 252 of the Act with respect to the negotiation or
approval of this Agreement by the Commission, the Parties desire to resolve disputes
arising out of or relating to this Agreement without litigation. Accordingly, except for
action seeking a temporary restraining order or an injunction related to the purposes of
this Agreement, or suit to compel compliance with this dispute resolution process, the
Parties agree to use the following dispute resolution procedures with respect to any
controversy or claim arising out of or relating to this Agreement or its breach.
18.1. Informal Resolution of Disputes
At the written request of a Party ("Informal Resolution Request"), each
Party will appoint a knowledgeable responsible representative
empowered to resolve such dispute, to meet within thirty (30) days of such
written request, and negotiate in good faith to resolve any dispute arising
out of or relating to this Agreement. The Parties intend that these
negotiations be conducted by non-lawyer, business representatives. The
location, format, frequency, duration, and conclusion of these discussions
shall be left to the discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute resolution procedures
such as mediation to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of these
negotiations shall be treated as Confidential Information developed for
purposes of settlement, exempt from discovery, and shall not be
admissible in the arbitration described below or in any lawsuit without the
concurrence of all Parties. Documents identified in or provided with such
communications, which are not prepared for purposes of the negotiations
are not so exempted and may, if otherwise discoverable, be discovered or
otherwise admissible, be admitted in evidence, in the arbitration or
lawsuit.
18.2. Formal Dispute Resolution
If negotiations fail to produce an agreeable resolution within ninety (90)
days of the date of an Initial Resolution Request, then either Party may
proceed with any remedy available to it pursuant to law, equity or agency
mechanisms; provided, that upon mutual agreement of the Parties such
disputes may also be submitted to binding arbitration. In the case of
arbitration, each Party shall bear its own costs. The Parties shall equally
split the fees of any mutually agreed upon arbitration procedure and the
associated arbitrator.
18.Continuous Service
The Parties shall continue providing services to each other during the
pendency of any dispute resolution procedure, and the Parties shall
continue to perform their payment obligations (including making payments
in accordance with Section 4 , and 6) in accordance with this Agreement.
19.CONFIDENTIAL INFORMATION
During the exercise and fulfillment of the Parties' obligations under this
Agreement it may become necessary for the Parties to disclose proprietary or confidential
information to one another. Any information of one Party (a Disclosing Party) that it
furnished or made available or otherwise disclosed to the other Party, its employees
contractors or agents (a "Receiving Party) regardless of form pursuant to this Agreement
Confidential Information ) shall be deemed the property of the Disclosing Party.
Confidential information, if written, shall be clearly and conspicuously marked
Confidential" or "Proprietary" or other similar notice, and if oral or visual, shall be
confirmed in writing as confidential by the Disclosing Party to the Receiving Party within
ten (10) days after disclosure except that the following information shall be deemed
Confidential Information, whether or not marked as such: oral or written negotiation
orders for services, usage information in any form and Customer Proprietary Network
Information as that term is defined in the Act and rules and regulations of the FCC.
Unless Confidential Information was previously known by the Receiving Party free of
any obligation to keep it confidential, or has been or is subsequently made public by an
act not attributable to the Receiving Party, or is explicitly agreed in writing not to be
regarded as confidential, such information: (I) shall be held in confidence by each
Receiving Party; (ii) shall be disclosed to only those persons who have a need for it
connection with the provision of services required to fulfill this Agreement and shall be
used by those persons only for such purposes; and (iii) may be used for other purposes
only upon such terms and conditions as may be mutually agreed to in advance of such use
in writing by the Parties.
19.
19.2.
20.
If any Receiving Party is required by any governmental authority or by
applicable law to disclose any Confidential Information, then such
Receiving Party shall provide the Disclosing Party with written notice of
such requirement as soon as possible and prior to such disclosure. The
Disclosing Party may then seek appropriate protective relief from all or part
of such requirement. The Receiving Party shall use all commercially
reasonable efforts to cooperate with the Disclosing Party in attempting to
obtain any protective relief which such Disclosing Party chooses to obtain.
In the event of the expiration or termination of this Agreement for any
reason whatsoever, each Party shall return to the other Party or destroy all
Confidential Information and other documents, work papers and other
material (including all copies thereof) obtained from the other Party in
connection with this Agreement and shall use all reasonable efforts
including instructing its employees and others who have had access to such
information, to keep confidential and not to use any such information
unless such information is now, or is hereafter disclosed, through no act
omission or fault of such Party, in any manner making it available to the
general public.
NOTICES
Any notice to a Party required or permitted under this Agreement shall be in
writing and shall be deemed to have been received on the date of service if served
personally, on the date receipt is acknowledged in writing by the recipient if delivered by
regular US. mail, or on the date stated on the receipt if delivered by certified or registered
mail or by a courier service that obtains a written receipt. Upon prior immediate oral
agreement of the Party s designated representatives identified below, notice may also be
provided by facsimile, Internet or electronic messaging system, which shall be effective
on the next business day following the date of transmission. The Party sending the
facsimile, Internet or Electronic messaging system notice will verbally notify the other
Party about the notice immediately following the communication being sent. The Party
receiving the notice by facsimile will provide written confirmation to the other Party. Any
notice shall be delivered using one of the alternatives mentioned in this section and shall
be directed to the applicable address indicated below or such address as the Party to be
notified has designated:
SPRINT NOTICES:
Business Name:
Attention:
Mailing Address::
City, State, Zip Code:
With a Copy to:
ALBION NOTICES
Business Name:
Attention:
Mailing Address::
City, State, Zip Code:
Sprint
Manager, ICA Solutions
P. O. Box 7954
Shawnee Mission, KS 66207-0954
Mailstop: KSOPHA0310-3B268
6330 Sprint Parkway
Overland Park, KS 66251
[phone] (overnight mail only)
Sprint
Legal/Telecom Management Group
P. O. Box 7966
Shawnee Mission, KS 66207-0966
Mailstop: KSOPHN0214-2A568
6450 Sprint Parkway
Overland Park, K~ 66251
[phone] (overnight mail only)
Albion Telephone Company, Inc.
Attn: Mike Dolezal
O. Box 98
Albion, ID 83311
Either Party may unilaterally change its designated representative and/or address
for the receipt of notices by giving prior written notice to the other Party.
21.SEVERABILITY
If any provision of this Agreement is held by a court or regulatory agency of
competent jurisdiction to be unenforceable, the rest of the Agreement shall remain in full
force and effect and shall not be affected unless removal of that provision results in a
material change to this Agreement. If a material change as described in this paragraph
occurs as a result of action by a court or regulatory agency, the Parties shall negotiate in
good faith for replacement language. If replacement language cannot be agreed upon
within a reasonable period, either Party may terminate this Agreement provided; however
that either party may make written request that services continue to be provided pursuant
to the terms of this Agreement during the negotiation of a new Agreement as provided for
in Section 9.3 of this Agreement.
22.MOST FAVORED NATIONS
Upon receipt of a bona fide request for interconnection from Sprint Nextel, and
consistent with provisions of the Act, including 47 US.C. g 251(c) and 47 US.C. g
251(f), Albion agrees to provide interconnection services and/or network element
arrangements ("Services ) to Sprint Nextel that is/are at least equal in quality to that
provided to itself or to any subsidiary, affiliate, or to any other party to which Albion
provides Services on comparable rates, terms and conditions.
23.BINDING EFFECT
This Agreement and all of the covenants, provisions and conditions herein
contained shall inure to the benefit of and are binding upon the Parties their successors
and assigns
24.SIGNATURES
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
Sprint Spectrum L.P. d/b/a Sprint PCS, Nextel
West Corporation, and NPCR, Inc. d/b/a
B~ pr f.wy L:J ey
Printed:Gary B. Lindsey
Title:Director - Access Solutions
Date:IU /I rr 2;J '20()1
irL c
Printed:
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Title: ~eva..1 !h~.. ~e.fr
'5' /~t.f/O7Date:
RECIPROCAL COMPENSATION AGREEMENT
BETWEEN ALBION AND SPRINT NEXTEL
ATTTACHMENT I
TERMINATING RECIPROCAL COMPENSATION RATES
Termination (per minute)02000
Albion OCN: 2213
Sprint PCS OCN: 8720
NexteiOCN: 6232
Nextel Partners OCN: 4822