20061218Application.pdf

Conley E. Ward (ISB No. 1683)
Michael C. Creamer (ISB No. 4030)
GIVENS PURSLEY LLP
601 West Bannock Street
O. Box 2720
Boise, Idaho 83701-2720
Office: [phone]
Fax: [phone]
www.givenspursley.com
Attorneys for Fremont Telcom Co.
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UTILItIES CO:::;\SSIU,
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Case No.t:t -ob-
APPLICA nON FOR APPROV AL OF
NEGOTIATED AGREEMENT BETWEEN
FREMONT TELCOM CO. AND CONTACT
COMMUNICATIONS , INC.
ApPLICATION FOR ApPROVAL OF
NEGOTIATED AGREEMENT
Fremont Telcom Co. ("Fremont"), through its attorneys Givens Pursley LLP
hereby files this Application for Approval of Negotiated Agreement ("Agreement") between
Fremont and Contact Communications, Inc. ("Contact"). A copy ofthe Agreement is submitted
herewith.
This Agreement was reached through voluntary negotiations between Fremont
and Contact 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 ifthe Commission
finds that: the agreement discriminates against a telecommunications carrier not a party to the
agreement; or the implementation of the agreement is not consistent with the public interest
convenience and necessity.
ApPLICA nON FOR ApPROVAL OF NEGOTIATED AGREEMENT
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Fremont 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 Fremont Telcom Co.
FairPoint Communications, Inc.
Attn: Peter Nixon, Chief Operating Officer
521 East Morehead Street, Suite 250
Charlotte, NC 28202
With copy to:
Robin Tuttle, Assistant General Counsel, Regulatory Affairs
FairPoint Communications, Inc.
521 East Morehead Street, Suite 250
Charlotte, NC 28202
For Contact Communications, Inc.
Contact Communications, Inc.
Attn: Director, Interconnection Facilities
937 West Main Street
Riverton, WY 82501
This Agreement does not affect the rights of non-parties and expeditious approval
would further the public interest. Therefore, Fremont requests that the Commission approve this
Agreement without a hearing.
DATED this 18th day of December 2006.
MIchael C. Creamer
Attorneys for Fremont Telcom Co.
ApPLICA nON FOR ApPROVAL OF NEGOTIATED AGREEMENT
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Page 2 of 3
CERTIFICATE OF SERVICE
I hereby certify that on this 18th day of December 2006, 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
u.S. Mail
Facsimile
Overnight Mail
Hand Delivery
E-mail
Contact Communications, Inc.
Attn: Director, Interconnection Facilities
937 West Main Street
Riverton, WY 82501
u.S. Mail
Facsimile
Overnight Mail
Hand Delivery
E-mail
Lffic/udt!
MIChael C. Creamer
ApPLICA nON FOR ApPROVAL OF NEGOTIATED AGREEMENT
S:\CLIENTS\5703\4IApplication for Approval. DOC
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MUTUAL TRAFFIC EXCHANGE AGREEMENT
By and Between
FREMONT TELCOM CO.
And
CONTACT COMMUNICATIONS, INC.
Introduction - Agreement
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TABLE OF CONTENTS
Scope of Agreement
Definitions
Connection Arrangements
Compensation For EAS Traffic
Compensation For Intra-LATA Toll Traffic
Compensation For Facilities
Billing Requirements
Physical Interconnection In a Direct Trunking Scenario
Trunk Forecasting
Network Management
Office Code Translations
SS7 Signaling
Term of Agreement
Limitation of Liability
Indemnification
Force Majeure
Agency
Non-Disclosure of Proprietary Information
Notices
Severability
Assignment
Entire Agreement
Multiple Counterparts
Dispute Resolution
Governing Law
Joint Work Product
Taxes
Survival
Publicity
Miscellaneous
Schedule 1
MUTUAL TRAFFIC EXCHANGE AGREEMENT
This Mutual Traffic Exchange Agreement ("Agreement") is made effective as of the l7...afday
of November, 2006 by and between Fremont Telcom Co. ("Fremont"), an Idaho corporation with offices
at 110 East Main Street, S1. Anthony, Idaho 83445 and Contact Communications, Inc. ("Contact"), a
Wyoming Corporation with offices at 937 West Main Street, Riverton, Wyoming 82501. Fremont and
Contact may also be referred to herein singularly as a "Party" or collectively as the "Parties.
RECITALS
WHEREAS, Fremont is an incumbent local exchange carrier ("ILEC") and Contact is a competitive local
exchange carrier ("CLEC") and both Parties are authorized by the Idaho Public Utilities Commission
Commission ) to provide telecommunications services in the State ofIdaho; and
WHEREAS, the Parties recognize that certain end users have mutual calling demands and interests
between certain separate communities as defined by the applicable EAS regulations of the Commission
for which the provision of non-toll rated calling services is in the public interest; and
WHEREAS, the Parties recognize that the ability to provide two-way EAS calling between separate
communities to their respective customers under a specific rate plan is dependent on the terms underwhich the Parties exchange EAS Traffic; and
WHEREAS, the specific exchange areas between which customers of the Parties exchange EAS calls are
each separate and mutually exclusive geographic areas; and
WHEREAS, Fremont's ILEC service responsibilities and network do not and cannot extend beyond the
boundaries of its physical service area; and
WHEREAS, if Contact desires to provide Local Exchange Service within Fremont's ILEC serving
territory pursuant to Sections 251 or 252 of the Act, an additional agreement will be required.
WHEREAS, the Parties desire to enter into an agreement regarding the termination of EAS Traffic
between the Parties ' networks.
NOW THEREFORE, in consideration of the mutual obligations set forth below, the Parties agree to the
following terms and conditions:
Scope of Agreement
1.1 Contact and Fremont agree to exchange all EAS Traffic, as specified in Schedule 1
attached hereto, originating on either Party's network and terminating on the other
Party's network by transiting such traffic through a third party LEC tandem, in
accordance with Section 3.3, or, by virtue of a direct trunking methodology as specified
in Section 3.4.
1.2 All EAS Traffic exchanged between the Parties shall be compensated on a Bill and Keep
basis, in accordance with Section 4 below.
2.3
2.4
1.3 Neither Party shall terminate intra-LATA or inter-LATA toll switched access traffic or
originate untranslated toll-free traffic, including but not limited to
550/55X/555/800/888/877/866 traffic, over EAS Traffic trunks. However, to the extent
any toll switched traffic is exchanged and terminated over EAS Traffic trunks, it shall be
billed in accordance with Section 5 below.
1.4 Each Party agrees that it will not knowingly provision any of its services in a manner that
permits the arbitrage and/or circumvention of the application of applicable switched
access charges by the other Party. If any arbitrage is identified, each Party also agrees to
take all reasonable steps to terminate and/or reroute any service to one of its end users
that permits that user to arbitrage and/or circumvent the application of applicable
switched access charges by the other Party.
Definitions
Except as otherwise specified herein, the following definitions will apply to an sections contained
in this Agreement. Additional definitions that are specific to the matters covered in a particular
section may appear in that section.
2.1 Act.as used in this Agreement, means the Communications Act of 1934 (47 U.
Section 151 ~.), as amended by the Teleconununications Act of 1996, and as from
time to time interpreted in the duly authorized rules and regulations of the Federal
Conununications Commission ("FCC") or the Commission.
Commission means the Idaho Public Utilities Conunission.
Customer. End User or End User Customer means the residence or business subscriber
that is the ultimate user of telecommunications services provided by either ofthe Parties,
and, for purposes of this Agreement, that may place or receive EAS Traffic calls.
DS 1 is a digital signal rate of 1.544 Megabits per second ("Mbps
DS3 is a digital signal rate of 44.736 Mbps.
Extended Area Service ("EAS"is a service arrangement whereby End Users that obtain
Local Exchange Service in a specific local service exchange area are provided the ability
to place and receive interexchange calls to End Users that obtain Local Exchange
Service in another mutually exclusive specific local service exchange area on the basis of
terms, conditions and charges that are distinct from the terms applicable to message toll
service and exchange service and where compliance with an applicable Commission-
prescribed BAS regulations has been demonstrated.
EAS Traffic means two-way traffic that fails within the definition of "EAS" that is
exchanged between the Parties.
Interconnection in this Agreement is as defined in the Act.
Intra-LATA Toll Traffic in this Agreement is as defined in the Act.
Local Access and Transport Area ("LATA"has the same meaning as that contained in
the Act.
Local Exchange Service means the provision of telephone exchange traffic or exchange
access that originates and tenninates within the local calling area boundary as established
and derIDed by the Commission.
Intentionally left blank.
Point of Interconnection (pOI) means the physical location(s) at which the Parties
networks meet for the purpose of exchanging EAS Traffic.
Connection Arrangements
Each Party shall be responsible for the cost and any requirements associated with the
establishment, including but not limited to, if applicable, ordering processes and access
service request processes of providing trunks from its network to the POI for EAS Traffic
which that Party originates. The POI must be at Fremont's exchange boundary. Each
Party will be responsible for its portion of the construction to the POI.
The Parties acknowledge that Contact may lease facilities from Fremont or an alternate
third party provider, or, construct its own facilities in order to achieve connection at the
POI. The Parties also acknowledge that at the time of execution of this Agreement, traffic
exchanged between the Parties for tennination on the other Party's network is at a level
that is de minimis and therefore may not justify direct trunking between the Parties. The
Parties may agree to establish direct trunking for exchange of EAS Traffic prior to-
exceeding the threshold level set forth in Section 3.4 below.
Therefore, in consideration of the above, Contact shall make all necessary arrangements
with Qwest to purchase the per minute transport service from the Qwest tandem to the
POI in order to exchange such de minimis EAS Traffic. Such de minimis BAS Traffic
shall be exchanged through the existing transit traffic arrangements, utilizing the network
of Qwest, in accordance with the relevant transit traffic terms and conditions as agreed to
individually between each Party and Qwest.
3.4 Should the total EAS Traffic volume between the Parties exceed (one hundred and eighty
thousand) 180,000 minutes in any month ("Threshold Level") Contact shall direct trunk
to Fremont's service area boundary for the exchange of EAS Traffic. The Parties shall
monitor the EAS Traffic level and Contact shall, within 30 (thirty) days of the BAS
Traffic volume exceeding (one hundred and eighty thousand) 180,000 minutes per
month, submit to the provisioning carrier a completed Access Service Request ("ASR"
to provision the required trunk group. If Fremont is not the provisioning carrier, then
Contact shall, simultaneous with submitting the ASR to the provisiorring carrier, provide
a copy of the ASR to Fremont. Where such direct trunking has been established, the
Parties agree that unless otherwise mutually agreed to the contrary in accordance with
Section 3.3 , the direct trunk shall be utilized for the exchange ofEAS Traffic only.
Should traffic levels exceed one hundred thousand ("100 000") minutes per month, upon
request, but no more than quarterly, the Parties shall provide to each other an ad hoc
study of the available switch data relevant to this Agreement. Such data may be
aggregated at the NP AINXX level, and, shall include message count and minutes of use.
Such aggregated data may be requested either on a monthly or daily summary basis. It is
also agreed that if there is a reasonable follow-up request to the ad hoc study or a material
change to either traffic patterns and/or volumes, the Parties will not unreasonably deny
additional requests for studies.
Compensation for EAS Traffic
Fremont and Contact agree to tenninate each other s BAS Traffic on a Bill and Keep basis of
compensation. "Bill and Keep" shall mean that the originating Party has no obligation to pay
terminating charges to the terminating Party for terminating the EAS Traffic subject to this
Agreement.
Compensation for Intra-LATA Toll Traffic
If any toll switched access traffic is exchanged or terminated over EAS Traffic trunks
compensation for termination of Contact's tol1 traffic shall be calculated by applying Fremont's
Intra-LATA access rates as set forth in Fremont's applicable Intra-LATA access tariff or price list
as filed with the Commission. As rates change, the latest effective rates will be used.
Compensation for Facilities
Should Contact lease faciHties from Fremont in order to achieve connection at the POI, as
specified in Section 3.2 above, Contact agrees to pay Fremont the applicable published or price
listed tariff rates for the lease of such facilities.
Traffic Identifiers and Audits
7.1 To ensure proper implementation of this Agreement, the Party delivering traffic to the
POI shall provide the Automatic Number Identification ("ANI") or Calling Party Number
CPN") (or similar industry standard traffic elements) for all traffic (the "Traffic
Identifiers ) in order that the terminating Party can properly identify the telephone
number associated with the End User placing the call. Where the Traffic Identifiers are
not provided in the direct trunking arrangement described in Section 3.2, the tenninating
Party shall assess, and the originating Party shall pay, access charges pursuant to the
terminating Party's applicable tariff or like mechanism. Where the Traffic Identifiers are
not provided but the originating Party's OCN is provided utilizing the Qwest tandem
arrangement described in Section 3.3, the terminating Party shan assess, and the
originating Party shall pay, accesS" charges pursuant to the terminating Party's applicable
tariff or like mechanism. Upon request, Contact will work jointly with Fremont
including participating in meetings and / or calls with Qwest, in order to investigate the
cause of missing Traffic Identifiers.
Any EAS Traffic originated from Fremont's multi-party lines in a rate center is exempt
from the requirements of Section 7.1. However, Fremont's toll calls from a rate center in
which Fremont has multi-party lines, should contain OCN CPN and/or ANI and
therefore should still be included under the tenns of Section 7.
Each Party shall keep six (6) months of usage records for the traffic delivered by it to the
POI. Either Party may request an audit of usage data on not less than thirty (30) business
days' written notice. Any such audit shall be accomplished during normal business hours
at the office of the Party being audited. Audits may be performed by a qualified
independent auditor or consultant paid for by the Party requesting the audit. Audits
conducted pursuant to this Section 7.3 by Contact shall be requested within six (6)
months of having received billing from Fremont.
Physical Arrangements In A Direct Trunking Scenario
8.1 The Parties agree that all EAS Traffic exchanged between them shall be transmitted on
trunks solely dedicated to such traffic. Neither Party shall terminate Intra-LATA nor
inter-LATA toll switched access traffic or originate untranslated toll-free traffic,
including but not limited to 550/55X1555/800/888/877/866 traffic, over EAS Traffic
trunks. EAS Traffic exchange shall be provided via two-way trunks where technically
and operationally feasible unless both Parties agree to implement one-way trunks.
A POI is a negotiated point of Interconnection, limited to the mterconnection of facilities
between one Party's switch and the other Party's switch. The actual physical POI and
facilities used will be subject to negotiations between the Parties, but must be at the
exchange boundary. Each Party will be responsible for its portion of the construction to
the POI. Neither Party shall construct facilities that require the other Party to build
unnecessary facilities.
8.3 The Parties will mutually agree on the appropriate sizing for facilities based on the
standards set forth below. The capacity of mterconnection facilities provided by each
Party will be based on mutual forecasts and sound engineering practice, as mutually
agreed to by the Parties. The Interconnection facilities provided by each Party shall be
formatted using Bipolar 8 Zero Substitution ("B8ZS"
8.4 The electrical interface at the POI (s) will be DSI or DS3 as mutually agreed to by the
Parties. When a DS3 interface is agreed to by the Parties, Fremont will provide any
multiplexing required for DS I facilities or trunking at its end and Contact will provide
any OS I multiplexing required for facilities or trunking at its end.
The Parties will interconnect their networks using Signaling System 7 ("SS7") as defined
in applicable industry standards including ISDN user part ("ISUP") for trunk signaling
and Transaction Capabilities Application Part ("TCAP") for common channel signaling
based features in the Interconnection of their networks.
Fremont and Contact will engineer all BAS Traffic trunks using a network loss plan
conforming to ANSI T1.508-1998 and ANSI T1.508-1998 Supplement A, as may be
amended or updated from time to time.
NIl codes (including but not limited to, 411 , 611, & 911) shall not be sent between the
networks of the Parties over the EAS Traffic trunk groups.
At the time direct connection is established between the Parties, as specified in Section
3.4, each Party shall provide the other with a point of contact for the reconciliation of
trunk forecasts, escalation for ordering and provisioning related matters.
Trunk Forecasting
The Parties will work towards the development of joint forecasting responsibilities for traffic
utilization over EAS. Traffic trunk groups covered in this Agreement. Orders for trunks that
exceed forecasted quantities for forecasted locations will be accommodated as facilities and/or
equipment becomes available. Parties will make all reasonable efforts and cooperate in good
faith to develop alternative solutions to accommodate orders when facilities are not available.
Inter-company forecast information must be provided by the Parties to each other upon
reasonable request, per Section 8.8 above.
10.
10.1
Network Management
10.
10.3
Protective Controls
Either Party may use protective network traffic management controls such as 7-digit and
IO-digit code gaps on traffic toward each other s network, when required to protect the
public switched network from congestion due to facility failures, switch congestion or
failure or focused overload. Contact and Fremont will immediately notify each other of
any protective control action planned or executed.
Mass Calling
Contact and Fremont will cooperate and share pre-planning information regarding
cross-network c;:all-ins expected to generate large or focused temporary increases in call
volumes. The promotion of mass calling services is not in the best interest of either
Party. If one Party's network is burdened repeatedly more than the other Party'
network, the Parties will meet and discuss the cause and impact of such calIing and wilI
agree on how to equitably share the costs and revenues associated with the calls and on
methods for managing the call volume.
Network Harm
Neither Party wilI use any service related to or using any of the services provided in this
Agreement in any manner that interferes with third parties in the use of their service,
prevents third parties from using their service, impairs the quality of service to other
carriers or to either Party's Customers; causes electrical hazards to either Party'
personnel, damage to either Party's equipment or malfunction of either Party's billing
equipment (individually and collectively, "Network Harm ). If a Network Harm will
occur or if a Party reasonably determines that a Network Harm is imminent, such Party
will, where practicable, notify the other Party that temporary discontinuance or refusal of
service may be required; provided, however, wherever prior notice is not practicable
such Party may temporarily. discontinue or refuse service forthwith, if such action is
reasonable under the circumstances. In case of such temporary discontinuance or refusal
such Party will:
(a) Promptly notify the other Party of such temporary discontinuance or refusal;
(b) Afford the other Party the opportunity to correct the situation which gave rise to such
temporary discontinuance or refusal; and
(c ) Inforrn the other Party of its right to bring a complaint to the Commission or Federal
Communications Commission ("FCC"
11.Office Code Translations
11.1 It shall be the responsibility of each Party to program and update its own switches and
network systems in accordance with the Local Exchange Routing Guide ("LERG") in
order to recognize and route traffic to the other Party's assigned NXX codes at all times.
11.2 Local Number Portability ("LNP"provides an End User of local exchange
telecommunications service the ability to retain its existing telephone number when
changing from one local exchange telecommunications carrier to another. The Parties
recognize that some of the traffic to be exchanged under this Agreement may be destined
for telephone numbers that have been ported.
11.3 In such cases, when more than one carrier is involved in completing the call, the N-
carrier has the responsibility to determine if a query is required, to launch the query, and
to route the call to the appropriate switch or network in which the telephone number
resides.
11.4 The Parties shall provide LNP query, routing, and transport services in accordance with
rules and regulations as prescribed by the FCC and the guidelines set forth by the North
American Numbering Council ("NANC"
12.SS7 Signaling
Fremont and Contact shall interconnect their SS7 networks either directly or through third
parties. Fremont and Contact further agree to exchange, either directly or through third-parties
TCAP messages that are necessary to provide call management features. The Parties agree to set
message screening parameters so as to accept messages from any switching systems destined to
any signaling point in the SS7 network with which the Parties have a legitimate signaling
relation. The Parties further agree to exchange and load point code information in a reasonable
and timely manner in accordance with standard industry practices. Neither Party shall bill the
other Party for exchange of these TCAP messages.
13.Term of Agreement
This Agreement shall commence when fully executed and have an initial term of one (1) year.
This Agreement shall automatically renew for successive one (1) year periods, unless either Party
gives written notice at least sixty (60) days prior to the expiration of the initial, or any renewal
term, of its desire not to renew. If such notice is given, this Agreement shall not renew.
14.Limitation of Liability
14.1 Except for the willful or intentional misconduct or gross negligence of one or both
Parties, the Parties agree to limit liability in accordance with this Section. The liability
of either Party to the other Party for damages arising out of (i) failure to comply with a
direction to install, restore or terminate facilities, or (ii) failures, mistakes, omissions,
interruptions, delays, errors, or defects occurring in the course of furnishing any services
arrangements, or facilities hereunder shall be determined in accordance with the tenus of
the applicable tariff(s) of the providing Party. In the event no tariff(s) apply, the
providing Party's liability shall not exceed an amount equal to the pro rata monthly
14.
15.
15.1
.... .- .. . .........
charge for the period in which such failures, mistakes, omissions, interruptions, delays,
errors, or defects. . Because of the mutual nature of the exchange of traffic arrangement
between the Parties pursuant to this Agreement, the Parties acknowledge that the amount
of liability incurred under this Section may be zero. Neither Party shall be liable to the
other in connection with the provision or use of services offered under this Agreement
for any indirect, incidental, special or consequential damages including but not limited to
damages for lost profits or revenues, regardless of the form of action, whether in
contract, warranty, strict liability, or tort, including without limitation, negligence of any
kind, even if the other Party has been advised of the possibility of such damages;
provided that the foregoing shall not limit a Party's liability with respect to its
indemnification obligations under Section 15 of this Agreement.
Except in the instance of harm resulting from an intentional or grossly negligent action or
willful misconduct, the Parties agree that neither Party shall be liable to the customers of
the other Party in connection with its provision of services to the other Party under this
Agreement. Nothing in this Agreement shall be deemed to create a third Party
beneficiary relationship between the Party providing the service and the customers of the
Party purchasing the service. In the event of a dispute involving both Parties with a
customer of one Party, both Parties shaH assert the applicability of any limitations on
liability to customers that may be contained in either Party's applicable tariff(s).
Indemnification
Each Party (the "Indemnifying Party") shall release, indemnify, defend and hold harmless
the other Party ("Indemnified Party") from and against all losses, claims, demands
damages, expenses (including reasonable attorney s fees), suits or other actions, or any
liability whatsoever related to the subject matter of this Agreement, (i) whether suffered
made instituted, or asserted by any other party or person, relating to personal injury to or
death of any person, or for loss, damage to, or destruction of real and/or personal
property, whether or not owned by others, incurred during the term ofthis Agreement and
to the extent proximately caused by the act(s) or omission(s) of the Indemnifying Party,
regardless of the form of action, or (ii) suffered, made, instituted, or asserted by its own
customer(s) against the other Party arising out of the other Party's provisioning of
services to the Indemnifying Party under this Agreement, except to the extent caused by
the gross negligence or willful misconduct of the Indemnified Party, or (m) arising out of
the libel, slander, invasion of privacy, misappropriation of a name or likeness.
Notwithstanding the foregoing, nothing contained herein shall affect or limit any claims
remedies, or other actions the Indemnifying Party may have against the Indemnified
Party under this Agreement, any other contract, or any applicable tariff\:s), regulation or
laws for the Indemnified Party's provisioning of said services.
15.The Indemnified Party shall (i) notify the Indemnifying Party promptly in writing of any
written claims, lawsuits, or demand by third parties for which the Indemnified Party
alleges that the Indemnifying Party is responsible under this Section and (ii) tender the
defense of such claim, lawsuit or demand to the Indemnifying Party, (ill) assert any and
all provisions in its tariff that limit liability to third parties as a bar to any recovery by the
third party claimant in excess of such limitation. The Indemnified Party also shall
cooperate in every reasonable manner with the defense or settlement of such claim,
demand, or lawsuit. The Indemnifying Party shall keep the Indemnified Party
reasonably and timely apprised of the status of the claim, demand or lawsuit. In no event
shall the Indemnifying Party settle or consent to any judgment pertaining to any such
action without the prior written consent of the Indemnified Party, which consent shall
... -. ....- .-._..._mm
not be unreasonably withheld, delayed or conditioned. The Indemnified Party shall have
the right to retain its own counsel, at its expense, and participate in but not direct the
defense, except that if the Indemnifying Party does not promptly assume or diligently
pursue the tendered action, then the Indemnified Party may proceed to defend or settle
said action at the expense of the Indemnifying Party.
15.3 The Indemnifying Party shall not be liable under this Section for settlements or
compromises by the Indemnified Party of any claim, demand, or lawsuit unless the
Indemnifying Party has approved the settlement or compromise in advance, and such
approval by the Indemnifying Party shall not be unreasonably withheld, or unless the
defense of the claim, demand, or lawsuit has been tendered to the Indemnifying Party in
writing and the Indemnifying Party has failed to promptly undertake the defense.
16.Force Majeure
Neither Party shall be liable for any delay or failure in performance of any part of this Agreement
from any cause beyond its control and without its fault or negligence, regardless of whether such
delays or failures in performance were foreseen or foreseeable as of the date of this Agreement
including, without limitation, acts of God, acts of civil or military authority, embargoes
epidemics, war, terrorist acts, riots, insurrections, fITes, explosions, earthquakes, nuclear
accidents, floods, power failure or blackouts, or adverse weather conditions, labor unrest
including without limitation, strikes, slowdowns, picketing, or boycotts. In the event of any such
excused delay in the performance of a Party's obligation(s) under this Agreement, the due date
for the performance of the original obligation(s) shall be extended by a term equal to the time lost
by reason of the delay. In the event of such delay, the delaying Party shall perform its
obligations at a performance level no less than that which it uses for its own operations.
17.Agency
Nothing contained herein shall constitute the Parties as joint venturers, partners, employees or
agents of one another, and neither Party shall have the right or power to bind or obligate the other.
18.Nondisclosure of Proprietary Information
18.The Parties agree that it may be necessary to exchange with each other certain
confidential information during the term of this Agreement including, without limitation,
technical and business plans, technical information, proposals, specifications, drawings
procedures, orders for. services, usage information in any form, customer account data,
call detail records, and Customer Proprietary Network Information ("CPNI") as that term
is defined by the Communications Act of 1934, as amended, and the rules and regulations
of the FCC and similar information (collectively, "Confidential Information
Confidential Information shaH include (i) all information delivered in written form and
marked "confidential" or "proprietary" or bearing mark of similar import; (ii) oral
information, if identified as confidential or proprietary at the time of disclosure and
confITmed by written notification within ten (10) days of disclosure; and (iii) information
derived by the Recipient (as hereinafter defined) from a Disclosing Party's (as hereinafter
defined) usage of the Recipient's network. The Confidential Information shall remain the
property of the Disclosing Party and is deemed proprietary to the Disclosing Party.
Confidential Information shaH be protected by the Recipient as the Recipient would
protect its own proprietary information, including but not limited to protecting the
Confidential Information from distribution, disclosure, or dissemination to anyone except
employees or duly authorized agents of the Parties with a need to know such information
and which the affected employees and agents agree to be bound by the terms of this
Section. Confidential Information shall not be disclosed or used for any purpose other
than to provide service as specified in this Agreement, or upon such other terms as may
be agreed to by the Parties in writing. For purposes of this Section, the Disclosing Party
shall mean the owner of the Confidential Information, and the Recipient shall mean the
party to whom Confidential Information is disclosed.
18.Recipient shall have no obligation to safeguard Confidential Information (i) which was in
the Recipient's possession free of restriction prior to its receipt from Disclosing Party, (ii)
after it becomes publicly known or available through no breach of this Agreement by
Recipient, (Hi) after it is rightfully acquired by Recipient free of restrictions on the
Disclosing Party, or (iv) after it is independently developed by personnel of Recipient to
whom the Disclosing Party's Confidential information had not been previously disclosed.
Recipient may disclose Confidential Information if required by law, a court, or
governmental agency, provided that Disclosing Party has been notified ofthe requirement
promptly after Recipient becomes aware of the requirement, and provided that Recipient
undertakes all reasonable lawful measures to avoid disclosing such information until
Disclosing Party has had reasonable time to obtain a protective order. Recipient agrees to
comply with any protective order that covers the Confidential Information to be
disclosed.
18.Each Party agrees that Disclosing Party would be irreparably injured by a breach of this
Agreement by Recipient or its representatives and that Disclosing Party shall be entitled
to seek equitable relief, including injunctive relief and specific performance, in the event
of any breach of this paragraph. Such remedies shaH not be exclusive, but shall be in
addition to all other remedies available at law or in equity.
19.Notices
Notices given by one Party to the other under this Agreement shall be in writing and delivered by
hand, overnight courier or pre-paid first class mail certified D.S mail, return receipt requested
and shall be effective when received and properly addressed to:
For Contact:
Contact Communications, Inc.
Attention: Director, Interconnection Facilities
937 West Main Street
Riverton, WY 82501
[phone]
20.
21.
........
.....---m_.._._.....-...........
For Fremont:
FairPoint Communications, Inc.
Attention: Peter Nixon, Chief Operating Officer
521 East Morehead Street, Suite 250
Charlotte, North Carolina 28202
704-344-8150
With a copy to:
Robin Tuttle, Assistant General Counsel, Regulatory Affairs
FairPoint Communications, Inc.
521 East Morehead Street, Suite 250
Charlotte, North Carolina 28202
704-344-8150
or to such other location as the receiving Party may direct in writing.
All compensation payable pursuant to this Agreement shall be payable within thirty (30) days of
the bill date. Any amounts not paid when due shall accrue interest from the date such amounts
were due at the highest rate of interest that may be charged under applicable law.
Severability
If any part of this Agreement is held to be unenforceable or invalid in any respect under law or
regulation, such unenforceability or invalidity shall affect only the portion of the Agreement
which is unenforceable or invalid. In all other respects this Agreement shaH stand as if such
invalid provision had not been a part thereof, and the remainder of the Agreement shan remain in
full force and effect, unless removal of that provision results in a material change to this
Agreement. In such a case, the Parties shaH negotiate in good faith for replacement language.
replacement language cannot be agreed upon, either Party may request dispute resolution
pursuant to Section 24.
Assignment
This Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their
respective successors and pennitted assigns. Any assignment or transfer (whether by operation of
law or otherwise) 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 shaH be void ab initio.provided however
that such consent shall not be unreasonably withheld, conditioned or delayed. Either Party may
assign this Agreement to a corporate affiliate or an entity under common control or an entity
acquiring all or substantially all of its assets or equity, whether by sale, merger, consolidation or
otherwise or in connection with a financing transaction by providing prior written notice to the
other Party of such assignment or transfer.
22.Entire Agreement
This Agreement, including all attachments and subordinate documents attached hereto or
referenced herein, all of which are hereby incorporated by reference herein, constitute the entire
matter thereof, and supersede all prior oral or written agreements, representations, statements
negotiations, understandings, proposals, and undertakings with respect to the subject matter
thereof.
23.Multiple Counterparts
This Agreement may be executed in counterparts and each of which shall be an original and all of
which shall constitute one and the same instrument and such counterparts shall together constitute
one and the same instrument.
24.
24. I
Dispute Resolution
24.
24.
24.4
24.
No claims will be brought for disputes arising from this Agreement more than twenty-
four (24) months from the date of occurrence that gives rise to the dispute.
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 dispute resolution procedure set forth in
this Section with respect to any controversy or claim arising out of or relating to this
Agreement or its breach.
At the written request of a Party, each Party will appoint a good faith representative
having the authority to resolve such dispute arising under this Agreement. The location
form, frequency, duration and conclusion of these discussions will 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 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 as
evidence in the arbitration or lawsuit.
If the negotiations do not resolve the dispute within sixty (60) days of the initial written
request, either Party may submit the dispute to either the Commission, or upon mutual
agreement to the American Arbitration Association ("AAA") for binding arbitration
pursuant to their respective rules and practices of the entity to which the dispute is
submitted for handling such disputes.
The prevailing Party will have all costs expended under this Section reimbursed by the
losing Party, or, in such circumstances where there is no clear and obvious prevailing
Party, the costs and expenses will be paid as allocated by the arbitration decision.
25.Governing Law
To the extent not governed by, and construed in accordance with, the laws and regulations of the
United States, this Agreement shall be governed by, and construed in accordance with, the laws
and regulations of the state of Idaho, without regard to its conflicts of laws principles.
26.Joint Work Product
This Agreement is the joint work product of the Parties and has been negotiated by the Parties
and shall be fairly interpreted in accordance with its terms and, in the event of any ambiguities
no inferences shan be drawn against either Party.
27.Taxes
Each Party shall be responsible for any and an taxes and surcharges arising from its conduct
under this Agreement and shan, consistent with Section 15, indemnify and hold harmless the
other Party for its failure to pay and/or report any applicable taxes and surcharges.
28.Survival
The Parties' obligations under this Agreement which by their nature are intended to continue
beyond the termination or expiration of this Agreement shall survive the termination or expiration
of this Agreement.
29.Publicity
Neither Party nor its subcontractors or agents shall use the other Party's trademarks, service
marks, logos, company name or other proprietary trade dress in any advertising, press releases
publicity matters or other promotional materials without such Party's prior written consent.
30.Miscellaneous
30.1 By entering into this Agreement, the Parties agree that this Agreement is not an
Interconnection agreement pursuant to 47 U.s.C. Section 251 or 252, and the Parties shall
not be estopped from asserting, at any time, that this Agreement is not an Interconnection
agreement in any legislative, regulatory, or other public forum addressing any related
matters. Moreover, Fremont does not waive, nor shan it be estopped from asserting, any
rural exemption that it may have pursuant to 47 U.C. Section 251(f).
30.This Agreement does not apply to traffic that originates and terminates within the same
local exchange; traffic that originates, terminates, or is carried on third-party networks
not expressly contemplated by this Agreement; or any traffic originated or terminated by
users of commercial mobile radio services or paging services.
30.3 Amendments.This Agreement may not be amended, modified, or supplemented, except
by written instrument signed by both Parties.
30.4
30.
30.
30.
30.
No License.
Nothing in this Agreement shall be construed as the grant of a license, either express or
implied, with respect to any patent, copyright, trademark, trade name, trade secret or any
other proprietary or intellectual property now or hereafter owned, controlled or licensable
by either Party. Neither Party may use any patent, copyrightable materials, trademark
trade name, trade secret or other intellectual property right of the other Party except in
accordance with the tenDS of a separate license agreement between the Parties granting
such rights.
Independent Contractors.The Parties to this Agreement are independent contractors.
Neither Party is an agent, representative, or partner of the other Party. Neither party will
have any right, power or authority to enter into any agreement for, or on behalf of, or
incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement
will not be interpreted or construed to create an association, agency, joint venture or
partnership between the Parties or to impose any liability attributable to such a
relationship upon either Party.
No Warranties.EXCEPT AS EXPRESSLY SET FORTH IN TIllS AGREEMENT,
NEITHER PARTY MAKES AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENT A nONS OR WARRANTIES, EXPRESS OR
IMPLIED REGARDING ANY MATTER SUBJECT TO TIllS AGREEMENT
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM
COURSE OF DEALING OR COURSE OF PERFORMANCE.
Default.If either Party believes the other is in breach of this Agreement or otherwise in
violation of law, it will first give thirty (30) days notice of such breach or violation and an
opportunity for the allegedly defaulting Party to cure. Thereafter, the Parties wiIl employ
the dispute resolution and arbitration procedures set forth in this Agreement.
30.Waiver.Any failure on the part of a Party hereto to comply with any of its obligations
agreements or conditions hereunder may be waived by written documentation by the
other Party to whom such compliance is owed. No waiver of any provision of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall
any waiver constitute a continuing waiver.
Regulatory Changes.If a federal or state regulatory agency or a court of competent
jurisdiction issues a rule, regulation, law or order (collectively, "Regulatory
Requirement") which has the effect of canceling, changing, or superseding any material
term or provision of this Agreement then the Parties shall negotiate in good faith to
modify this Agreement in a manner consistent with the form, intent and purpose of this
Agreement and as necessary to comply with such Regulatory Requirement.
30.10 No Third Party Beneficiaries.This Agreement shall not be deemed to provide any third
party with any benefit, remedy, claim, right of action or other right.
30.11 Headings.The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
30.12 Regulatory Approval.The Parties understand and agree that this Agreement may be
required to be filed with the Commission. In the event that filing is required, each Party
covenants and agrees to fully support approval of this Agreement by the Commission
without modification. The Parties, however, reserve the right to seek regulatory relief
and otherwise seek redress from each other regarding performance and implementation
of this Agreement. In the event the Commission rejects this Agreement in whole or in
part, the Parties agree to meet and negotiate in good faith to arrive at a mutually
acceptable modification of the rejected portiones).
IN WITNESS WHEREOF, the Parties agree that the effective date of this Agreement is the date first
written above, and each" Party warrants that it has caused this Agreement to be signed and delivered by its
duly authorized representative.~c-~
igna re
Steven A. Mossbrook
Typed or Printed Name
~CO"
Signature
~eA-er Go. N1'XOn
Typed or Printed Name
President
Typed or Printed Title
ce/'
//--/~ -p?~
Date Date
Schedule 1
Contact Switch Contact Tandem Fremont Switch Fremont
CLLI CODE NPA-NXX CLLI Code CLLI CODE NP A-NXX
CODES CODES
(xxx - x)(xxx-x)
IDFLIDMAGTO 208-719 PCTLIDMA4GT STATIDMADSO 208-558
208-624
208-652
208-458