20050210Application.pdf

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Conley E. Ward (ISB No. 1683)
GIVENS PURSLEY LLP
601 W. Bannock Street
O. Box 2720
Boise, ID 83701-2720
Telephone No. [phone]
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Attorneys for Applicant Midvale Telephone Exchange, Inc.
S:\CLIENTS\1614\79\Application.DOC
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JOINT APPLICATION OF MIDV ALE
TELEPHONE EXCHANGE, INC. AND
SPRINT SPECTRUM L.P. FOR APPROVAL
OF A WlRELINE INTERCONNECTION
AGREEMENT PURSUANT TO 47 U.C. 9
252(E).
rf) ~ 05-0'Docket No. ,n --
APPLICATION FOR APPROVAL OF AN
INTERCONNECTION AGREEMENT
Midvale Telephone Exchange, Inc. ("Midvale ) and Sprint Spectrum L.P. ("Sprint"
hereby jointly file this Application for Approval of an Interconnection Agreement executed on
November 2, 2004 (the "Agreement"). A copy of the Agreement is attached hereto as Exhibit A.
This Agreement was reached through voluntary negotiations without resort to mediation
or arbitration and is submitted for approval pursuant to Section 252( e) of the Communications
Act of 1934, as amended by the Telecommunications Act of 1996 (the "Act"
Section 252(e)(2) of the Act directs that a state Commission may reject an Agreement
reached through voluntary negotiations only if the Commission finds that: the Agreement (or
portions( s) thereof) discriminates against a telecommunications carrier not a party to this
agreement; or the implementation of such an Agreement (or portion) is not consistent with the
public interest, convenience and necessity.ORIGINAL
APPLICA TION FOR APPROVAL OF AN INTERCONNECTION AGREEMENT - Page 1 of 3
Midvale and Sprint respectfully submit this Application provides no basis for either of
these findings and, therefore, jointly request that the Commission approve this Application
expeditiously. This Application is consistent with the public interest as identified in the pro-
competitive policies of the State of Idaho, the Commission, the United States Congress, and the
Federal Communications Commission. Expeditious approval of this Application will enable
Midvale to interconnect with Sprint facilities and to provide customers with increased choices
among local telecommunications services.
Midvale and Sprint further request that the Commission approve this Application without
a hearing. Because this Application was reached through voluntary negotiations, it does not raise
issues requiring a hearing and does not concern other parties not a party to the negotiations.
Expeditious approval would further the public interest.
RES PECTFVLL Y S VB MITTED this Ay ofF e bruary 2005.
ard
or Midvale Telephone Exchange
APPLICA TION FOR APPROVAL OF AN INTERCONNECTION AGREEMENT - Page 2 of 3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this Of'h day of February 2005 , I caused to be served
a true and correct copy of the foregoing document by the method indicated below and addressed
to the following:
'/..
S. Mail
Hand Delivered
Overnight Mail
Facsimile
Electronic Mail
Jean Jewell
Idaho Public Utilities Commission
472 W. Washington Street
O. Box 83720
Boise, ID 83720-0074
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Conley E. Ward
APPLICA TION FOR APPROVAL OF AN INTERCONNECTION AGREEMENT - Page 3 of 3
EXHIBIT A
TRAFFIC EXCHANGE AGREEMENT
By and Between
Midvale Telephone Exchange , Incorporated
And
Sprint Spectrum L.
Table of Contents
1. DEFINITIONS. ............................... ........ .....................
...... .............. .................. ................... ..................... .....
2. RURAL TELEPHONE COMPANY. ........ ......................................... ......."............... .................... ................. 53. TRAFFIC EXCHANGE. .................................................................................................................................
4. FACILITIES....................................................................................................................................................5. RATES AND CHARGES..
.............................................................................. .....
..................... ......".... .......... 76. BILLING AND PAYMENT OF CHARGES. ..................................................................................................7. IMPAIRMENT OF SERVICE. ............. ......................
....... ............................. ........ .......... ........
........ .............. 98. TROUBLE REPORTING. .......
..... ............ ......... ...... ............... ........... ...................,.............. ....... ........... .......
1 09. TERM AND TERMINATION. ..
..... ............................ .................................... ..... ........ ..... ............................
10. LIABILITY UPON TERMINATION. ..
....... ...... ...... ........... ............... ......... .............................................. ....
11. AMENDMENTS..
........................... .......... .......... ........ .................... ................ ..... .................................. ...... .
12. ASSIGNMENT.
......... ....... .................. .................................... .......... .......... ............................ .......... .......... ..
13. AUTHORITY................................................................................................................................................
14. BINDING EFFECT.
.......... .................. .................... ............ .............. .......... ....... ....................... ............ ....... .
15. COMPLIANCE WITH LAWS AND REGULATIONS. ...............................................................................
16. ENTIRE AGREEMENT. ..
................. ...................... ............. .............. ..,..... ......... ...... ....... .......... .............. ....
17. EXPENSES
....... ........... ......... .................... .................. ............................... ............................. ............ ......... .
18. FORCE MAJEURE.
......... ................. ....................... ............... ..... ....... .......... ....... ........ ......"............... ........ ..
19. GOVERNING LAW. ...
......... ................... ................... ........................... ............ ............... .......... .............. ....
20. INDEPENDENT CONTRACTOR RELATIONSHIP. .................................................................................
21. LIABILITY AND INDEMNITY. .................................................................................................................
21.Indemnification.
............................................. ... .., ..... ...................................................... ..........................
21.Disclaimer.
............ ......... .........,............................. ................ .......................... ............................... ..........
21.Limitation of Liability.
................................... ..... ..................................................... ..... ......................... ...
21.Relationship to Prices...................................................
............................................................................
21.Survival.
..................... ............. ................... .... ..................... ....................... ......................,.............. ..........
21.Notice and Procedure.
.... ..................... ........................ ....................................... .......... .......... ..................
22. DISPUTE RESOLUTION............. .......................... ................ ........
............... ..... ....... ...................... .......... ...
22.Alternative to Litigation................................................
............................................................................
22.Negotiations.
........................ .......................... ..................... ........ ....... ........................... ... ................ .........
22.Savings Clause...................................................
.......................................................................................
22.Continuous Service.
"""""""""""""""""""""""""""'"..............................................,..........................
23. CONFIDENTIAL INFORMATION.
........................... ............. ....... ............. ............. ..................... .......... ...
23.Identification.
.......................................,................."""""""""""""""""""""""""""""""....................
23.Handling.
........................................................,.........................................,.........................,.....................
23.Exceptions.
"""""""""""""""""""""""""""".......................................................................................
23.Survival.
................................................ ......... ... .............................,.................. ...... ................... ...............
24. NOTICES......................................................................................................................................................25. REGULATORY AGENCY CONTROL .......................................................................................................
26. SEVERABILITY. .........................................................................................................................................27. CHANGE OF LAW PROVISION........................... ............
........... ........ ...... .............. ................ ............ ...... .
28. ISP TRAFFIC. ............. ........... ........................... ........ ........................... ........... ......
........... ............ ........ ....... ..
29. PATENTS.
........... ........... .......................... .............. ............. ........ ..................... ........ ........................ ........ ....
30. COUNTERPARTS........................................................................................................................................
31. CONSTRUCTION.
.......... ............ .......................... ................ ....... ........... .......... .............. ....... ..... ........ ....... ..
ATTACHMENT 1 COMPANY RATES .................................................................................................................
This Traffic Exchange ("Agreement"), is entered into by and between Midvale Telephone
Exchange, Incorporated, an Idaho corporation ("Company ) and Sprint Spectrum L., a Delaware
limited partnership d/b/a Sprint PCS ("Sprint PCS"), (each referred to as a "Party" and collectively
as "Parties ). This Agreement is effective as of January 1 2004.
WHEREAS , Sprint PCS is authorized by the Federal Communications Commission
FCC") to provide commercial mobile radio service ("CMRS"); and
WHEREAS, Company is a provider of local exchange service; and
WHEREAS, Sprint PCS terminates Telecommunications Traffic that originates from
Company s End Users, and Company terminates Telecommunications Traffic that originates from
Sprint PCS' sEnd Users; and
WHEREAS, Sprint PCS provides a point of interconnection in the Company s service areas
or interconnects with Company s network via a third party tandem switch; and
WHEREAS , the Parties wish to establish a compensation arrangement that compensates
each other for terminating Telecommunications Traffic that originates on the other Party s network.
NOW, THEREFORE, IN CONSIDERATION of the covenants contained herein, the Parties
hereby agree as follows:
DEFINITIONS.
1.1 Act" means the Communications Act of 1934, as amended.
1.2 An "Affiliate" of a Party means a person, corporation or other legal entity that, directly
or indirectly, owns or controls a Party, or is owned or controlled by, or is under
common ownership or control with another Party. For purposes of this definition, the
term "own" means to have an equity interest (or the equivalent thereof) in more than 10
percent.
1.3 Central Office" means a switching facility from which Telecommunications Services
are provided, including, but not limited to:
1.3.An "End Office Switch" or "End Office" used to among other things
terminate Telecommunications Traffic to End Users.
2 "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. A switch may
be both an End Office Switch and a Tandem Switch.
3 "Mobile Switch Center" or "MSC" is a switching facility that provides
tandem and end office switching capability.
1.4 CMRS" means Commercial Mobile Radio Service as defined in the Act.
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
Confidential Information" shall have the meaning ascribed in Section 23.
Commission" refers to the state telecommunications regulatory commission within a
state.
End User" means, with respect to Sprint PCS , any subscriber to wireless service
furnished by Sprint PCS or by another entity reselling Sprint PCS' s wireless service.
With respect to Company, "End User" means any subscriber to wireline local exchange
service furnished to the End User by Company or by another entity reselling
Company s wireline local exchange service, and further means any casual user of
Company s wireline local exchange service. Sprint PCS and Company are each deemed
to be subscribers to their own wireless service or wireline local exchange service
respectively, for purposes of this definition.
Information Service Provider" or "ISP" means any person or entity, including but not
limited to an Internet service provider, which provides information services.
ISP traffic" means traffic originated by one Party s End Users and delivered to the
other Party for transport and/or termination to an ISP.
Interconnection.as defined in 47 C.R. 9 51.5, is the physical linking of two
networks for the mutual exchange of traffic. This term does not include the transport
and termination of traffic.
Interexchange Carrier" or "IXC" means a carrier that provides or carries, directly or
indirectly, intraLA T A or interLA T A telecommunications services.
Local Exchange Carrier" is as defined in the Act at 47 U.C. ~ 153(26).
Local Exchange Routing Guide or "LERG" means the Telcordia reference
customarily used to identify NP A-NXX routing and homing information.
Maior Trading Area" or "MTA" means the service areas based on the Rand McNally
1992 Commercial Atlas & Marketing Guide, 123rd edition, at pages 38-39. 47 C.R. 9
24.202(a).
POI" means Point of Interconnection.
PSTN" means the Public Switched Telephone Network.
Reciprocal Compensation" means a compensation arrangement between two carriers
in which each carrier receives compensation from the other carrier for the transport and
termination of Telecommunications Traffic on the terminating carrier s network
facilities for Telecommunications Traffic that originates on the network facilities of the
other carrier. 47 C.R. .~ 51.701(E).
Tandem Switch" or "Tandem Office" is when Company provides tandem switching at
the Company switch for traffic between Sprint PCS and a Company end office
subtending the Company switch. '
1.19
1.20
1.21
1.22
Telecommunication Services" shall have the meaning set forth in 47 ~ U.C. 153(46).
Telecommunications Traffic" for purposes of compensation under this Agreement is
that traffic which originates and terminates within the same Major Trading Area
MTA"). For purposes of determining whether traffic originates and terminates within
the same MTA, and is therefore subject to Reciprocal Compensation under this
Agreement, shall be determined by the location of the End Office serving the landline
End User and the location of the cell site that serves the mobile End User when the call
is originated. When Company terminates traffic of roamers using Sprint PCS facilities
(including facilities of affiliates of Sprint PCS) within the MT A, this traffic shall be
included in Sprint's Net Balance of Traffic, as defined in Section 6, below, and will be
billed to Sprint PCS by Company. Sprint PCS may bill the appropriate charges to the
originating carrier, which billing will not affect compensation between Company and
Sprint PCS.
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 station or telephone.
Usage Factors" are those factors set out in Attachment
RURAL TELEPHONE COMPANY.
2.1 Company is a "rural telephone company" as defined in the Act, 47 U.C. ~ 153(37).
This Agreement is entered into as a compensation arrangement under 47 U.C. 9
332. It is not intended to constitute an interconnection agreement for purposes of
Company s exemption from certain interconnection duties as set forth in the Act.
Company further asserts that, pursuant to Section 251 (f)( 1) of the Act, Company is
exempt from Section 251 (c) of the Act. Notwithstanding such exemption, Company
has entered into and accepted this Agreement for purposes of exchanging traffic, as
defined herein, with Sprint PCS. The execution of this Agreement does not in any
way constitute a waiver or limitation of either Company s or Sprint PCS' s rights
under Section 251(f)(1) or 251(f)(2). Accordingly, Company expressly reserves the
right to assert its right to an exemption or waiver and modification of Section 251 ( c)
of the Act, in response to other requests for interconnection by Sprint PCS or any
other carrier. Further, Sprint does not waive its right to challenge the rural status of
Company under this Agreement.
Nothing in this Agreement shall be construed to prevent Company from treating a
call which is interexchange in nature but which terminates in the same MT A as the
location of the landline End User as a toll call for purposes of assessing an
interexchange carrier (other than Sprint PCS) that carries the call access rates or from
charging the landline End User toll rates.
TRAFFIC EXCHANGE
The traffic subject to this Agreement shall be that Telecommunications Traffic which
originates from an End User on the network of one Party and is delivered to the other
,,/
Party for termination to an End User on the network of the other Party. Such traffic
includes that traffic which is delivered via a third party tandem switch.
Company shall permit its End Users within a given Rate Center to dial the same
number of digits to call a Sprint PCS NPA-NXX in any Rate Center that would be
required of the same End User to call a landline end-user in the same Rate Center as
the Sprint PCS NPA-NXX. Sprint PCS shall permit its End Users within a given
Rate Center to dial the same number of digits to call a Company NPA-NXX in any
Rate Center that would be required of the same End User to call a Sprint PCS End
User in the same Rate Center as the Company NP A - NXX. Nothing in this
Agreement shall be construed to alter or otherwise affect in any manner the local
calling areas offered or the rates charged by either Party to its End Users.
FACILITIES.
Each Party shall construct, equip, maintain and operate its network in accordance
with good 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.
Each Party shall be solely responsible for any charges the third-party tandem
provider may assess for transiting traffic, if any, that originates on said Party
network. If traffic exchanged between Company and Sprint PCS reaches 200 000
minutes per month for three consecutive months Company and Sprint PCS will
discuss providing a direct connection between the Parties.
It shall be the responsibility of each Party to program and update its own switches
and network systems pursuant to the LERG guidelines to recognize and route
Telecommunications Traffic to the other Party s assigned NXX codes, provided
routes are established between the parties. Neither Party shall impose any fees or
charges whatsoever on the other Party for programming and updating its own
switches for purposes of routing Telecommunications Traffic.
4.4 The Parties expect that where feasible, Telecommunications Traffic will be delivered
to each involved network with CCS/SS7 protocol and the appropriate ISUP/TCAP
message to facilitate full interoperability and billing functions. In-band signaling
may be used if CCS/SS7 is not available.
RATES AND CHARGES.
The Parties hereby agree to the following rates for the facilities and services to be
provided pursuant to this Agreement. The Parties agree the rates set forth herein
shall be deemed effective as of January 1 , 2004.
Rate Elements
1.1 Local Network Usage -The Parties agree to compensate each other for
terminating traffic that originates on the other Partynetwork. The rates for this compensation
5.4
arrangement are identified in Attachment 1 , which is
hereby incorporated by reference.
Tandem Switching-For Sprint PCS's Telecommunications Traffic that is
transported to a Company end office via a Company
tandem, Sprint PCS will compensate Company for the
tandem switched traffic at rates identified in
Attachment
InterMT A Traffic-The Parties contemplate that they may exchange
InterMT A traffic under this Agreement. Compensation
for InterMTA traffic shall be subject to the appropriate
tariff access rates. Termination of InterMTA MOUs
shall be based on the Usage Factors set out on
Attachment
Until such time as Company is capable of measuring terminating traffic, Company
shall bill Sprint PCS based upon a terminating to originating ratio using the net
billing method in Section 6.
The Parties will exchange billing information on a monthly basis. Company will
prepare its bill in accordance with its existing Carrier Access Billing System (CABS)
billing systems. Except when net billing is used as described in Section 6, Sprint
PCS will prepare its bill in accordance with OBF industry standards. The Parties
will make an effort to conform to current and future OBF standards, as they apply to
wireline and wireless traffic. Since Company is not capable of measuring, or does
not have access to a measurement of traffic originating on Sprint PCS's network, the
parties agree to bill each other based upon an assumed Usage Factor set forth in
Attachment 1 , in the manner described in Section 6.
When measurement of traffic is available, conversation time will be determined from
actual usage recordings. Conversation time 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 minutes of
use are aggregated at the end of the billing cycle and then rounded to the nearest
whole minute.
BILLING AND PAYMENT OF CHARGES.
Each net bill shall be prepared as follows:
First, using the Traffic Factors set forth on Attachment 1 , the
Company will establish the Mobile-to- Land minutes based upon the
originating Land-to-Mobile minutes. To this total amount of Mobile-
to-Land minutes, the Company will then apply the InterMTA Factor
set forth on Attachment 1 and will bill the resultant number of
minutes by applying thereto the rates set forth in Company s access
services tariffs. Of the number of interMT A minutes resulting from
6.4
application of the InterMTA factor, one-half will be billed according
to the Company s intrastate access services tariff and one-half will be
billed according to the Company s interstate access services tariff.
1.2 The remaining Mobile-to-Land minutes calculated according to the
Mobile-to-Land Factor will be multiplied by the Local Call
Termination Rate set forth on Attachment 1 and the result when
added to the bill for interMT A minutes, shall be Sprint PCS' gross
obligation to Company. The Land-to-Mobile minutes will be
multiplied by the Local Call Termination Rate set forth on
Attachment 1 , with the result being the Company s gross obligation to
Sprint PCS. The Company then will subtract the Company s gross
obligation to Sprint PCS from the Sprint PCS gross obligation to the
Company, with the resulting difference being the amount of the net
bill to be rendered by the Company to Sprint and to be paid by Sprint
to the Company.
Nonrecurring charges will be billed upon completion of the work activity for which
the charge applies; monthly recurring charges will be billed in advance; and Local
Network Usage and access usage will be billed in arrears. All bills will be due when
rendered and will be considered past due thirty (30) calendar days after the bill date.
The Parties agree that they will each make a good faith effort to resolve any billing
dispute.
If any undisputed amount due on the billing is not received by the billing Party by
the payment due date, the billing Party may charge, and the billed Party agrees to
pay, interest on the past due balance at a rate equal to the lesser of one and one-half
percent (1-1/2%) per month or the maximum nonusurious rate of interest under
applicable law. Late payment charges shall be included on the next or subsequent
InVOIce.
If any portion of an amount due to a billing Party under this Agreement is subject
bona fide dispute between the Parties, the billed Party shall within thirty (30) days
of its receipt of the invoice containing such disputed amount give notice to the billing
Party of the amounts it disputes ("Disputed Amounts ) and include in such notice the
specific details and reasons for disputing each item. The billed Party shall pay all
undisputed amounts to the billing Party by the due date. The balance of the Disputed
Amount shall thereafter be paid with appropriate late charges, if the disputed amount
is sustained, upon final determination of such dispute.
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 and
surcharges 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.
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) days prior written notice to the audited Party, (b) subject
to 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 connected with the services, facilities or equipment of the other Party
pursuant to this Agreement shall not interfere with or impair service over any facilities of the
other Party, its affiliated companies, or its connecting and concurring carriers involved in its
services, cause damage to their plant, violate any applicable law or regulation regarding the
invasion of privacy of any communications carried over the Party s 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 remedy promptly the Impairment of Service, then the Impaired Party may at its
option temporarily discontinue the use of the affected circuit, facility or equipment until the
circumstance or condition giving rise to the Impairment of Service is eliminated or otherwise
resolved.
TROUBLE REPORTING.
In order to facilitate trouble reporting, 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.
8.2 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 TERMIN A TI ON.
10.
This Agreement shall take effect as of January 1 , 2004, 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, until replaced
by another agreement or terminated by either Party upon ninety (90) days written
notice to the other.
This Agreement shall continue in full force and effect until superseded by
successor agreement upon expiration of the one (1) year term. Either Party may
request the negotiation of a successor agreement by written notice to the other Party
no earlier than sixty (60) days prior to the expiration of the one (1) year term, and
this Agreement shall renew on a month-to-month basis until the negotiation of a
successor agreement is executed between the Parties.
Notwithstanding Section 9.1 and 9.2 above, this Agreement shall be terminated in
the event that:
9.3.the FCC revokes, cancels, does not renew or otherwise terminates Sprint
PCS's authorization to provide CMRS in the area served by Company, or the
Commission revokes, cancels or otherwise terminates Company
certification or authority to provide local service; or
9.3.either Party becomes bankrupt or insolvent, makes a general assignment for
the benefit of, or enters into any arrangement, with creditors, files a voluntary
petition under any bankruptcy, insolvency or similar laws, or proceedings are
instituted 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.
9.4 Either Party shall have the right to terminate this Agreement upon written notice to
the other Party in the event:
9.4.a Party is in arrears in the payment of any undisputed amount due under this
Agreement for more than sixty (60) days, and the Party does not pay the
undisputed amount in full within fifteen (15) business days of the other
Party s written demand for payment; or
9.4.a Party is in material breach of the provisions of this Agreement and that
breach continues for a period of thirty (30) days after receipt by it of the other
Party s written notification to the breaching Party of such breach, including a
reasonably detailed statement of the nature of the breach.
LIABILITY UPON TERMINATION.
10.Termination of this Agreement, or any part hereof, for any cause shall not release
either Party from (1) 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
11.
omission occurring prior to the termination, or (2) from any obligation which is
expressly stated in this Agreement to survive termination.
AMEND MENTS.
11.1
12.
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"
includes Attachment 1 hereto and shall include future amendments, modifications
and supplements to this instrument.
ASSIGNMENT.
12.1
12.
Any assignment by either Party of any right, obligation, or duty arising under, or of
any interest in this Agreement, without the written consent of the other Party, which
consent shall not be unreasonably withheld, shall be void, except that either Party
may assign its rights, obligations, liabilities and duties under this Agreement to any
entity that is, or in the case of an assignment that was immediately preceding such
assignment was, a wholly owned subsidiary or affiliate of that Party without consent
but with written notification to the other Party. The effectiveness of an assignment
shall be conditioned upon the assignee s written assumption of the rights, obligations
liabilities and duties of the assigning Party s performance under this agreement.
Notwithstanding the foregoing, no consent shall be required for the assignment of
this Agreement in the context of the sale of all or substantially all of the assets or
stock of either of the Parties.
Nothing in this Agreement shall prohibit Sprint PCS from enlarging its CMRS
network through management contracts with third-parties for the construction and
operation of a CMRS system under the Sprint PCS brand name and license. Traffic
originating on such extended networks shall be treated as Sprint PCS's 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
PCS Telecommunications Traffic" when it originates on such extended network and
terminates on Company s network, and as "Company Telecommunications Traffic
when it originates upon Company s network and terminates upon such extended
network. Such Telecommunications Traffic traversing on such extended networks
shall be subj ect to the terms, conditions, and rates of this Agreement.
13.AUTHORITY.
13.Each person whose signature appears on this Agreement represents and warrants that
he or she has authority to bind the Party on whose behalf he or she has executed this
Agreement.
14.BINDING EFFECT.
14.This Agreement shall be binding on and inure to the benefit of the respective
successors and permitted assigns of the Parties.
15.COMPLIANCE WITH LAWS AND REGULATIONS.
15.Each Party shall comply with all federal, state, and local statutes, regulations, rules
ordinances judicial decisions, and administrative rulings applicable to its
performance under this Agreement.
16.ENTIRE AGREEMENT.
16.
17.
This Agreement constitutes the entire agreement of the Parties pertaining to the
subject matter of this Agreement and supersedes all prior agreements, negotiations
proposals, and representations, whether written or oral, and all contemporaneous oral
agreements, negotiations, proposals, and representations concerning such subject
matter. No representations, understandings, agreements, or warranties, expressed or
implied, have been made or relied upon in the making of this Agreement other than
those specifically set forth herein.
EXPENSES.
17.Except as specifically set out in this Agreement, each Party shall be solely
responsible for its own expenses involved in all activities related to the subject of this
Agreement.
18.FORCE MAJEURE.
18.
19.
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, labor
difficulties, including without limitation, strikes, slowdowns, picketing, or boycotts
unavailability of equipment from vendor, changes requested by the other Party, 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 prevention, 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.
GO VERNIN G LAW.
19.This Agreement shall be governed by and construed in accordance with the domestic
laws of the state of Oregon as well as the Communications Act of 1934, as amended
and other federal laws, and shall be subject to exclusive jurisdiction of the courts
and/or regulatory commission of such state, except to the extent that the
Communications Act of 1934, as amended, and other federal laws provide for federal
jurisdiction.
19.The terms and conditions of this Agreement shall be subject to any and all applicable
laws, rules or regulations that subsequently may be adopted by federal, or applicable
state or local, governmental authority. Any modifications to this Agreement
occasioned by such changes shall be effected through good faith negotiations
concerning modifications to this Agreement, subject to Sections 24.1 and 27.
below.
20.INDEPENDENT CONTRACTOR RELATIONSHIP.
20.1
21.
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 of labor, hours of labor, health
and safety, working conditions and payment of wages. Each Party shall also be
responsible 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.
LIABILITY AND INDEMNITY.
21.1
21.2
Indemnification.
21.1.1 Each Party ("Indemnifying Party ) agrees to indemnify, defend, and hold
harmless the other Party ("Indemnified Party ) from all losses, claims
demands, damages, expenses, suits, or other actions, or any liability
whatsoever, including, but not limited to, costs and attorney s fees, whether
suffered, made, instituted, or asserted by any other Party or person, for
invasion of privacy, personal injury to or death of any person or persons, or
for losses, damages, or destruction of property, whether or not owned by
others, to the extent proximately caused by the indemnifying Party
negligence or willful misconduct, regardless of form of action.
Disclaimer.
21.2.1 EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS
OR WARRANTIES TO THE OTHER PARTY CONCERNING THE
SPECIFIC QUALITY OF ANY SERVICES OR FACILITIES PROVIDED
UNDER THIS AGREEMENT. EACH PARTY DISCLAIMS, WITHOUT
LIMITATION ANY WARRANTY OR GUARANTEE
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
ARISING FROM COURSE OF PERFORMANCE, COURSE
DEALING, OR FROM USAGES OF TRADE.
21.3
21.4
21.5
21.6
Limitation of Liability.
21.3.A Party s liability, whether in tort or otherwise, for matters arising under, or
pertaining to, this Agreement or the performance of the Parties hereunder
shall be limited to direct damages, which shall not exceed the pro rata portion
of the monthly charges for the services or facilities for the time period during
which the services or facilities provided pursuant to this Agreement are
inoperative, not to exceed in total the monthly charges payable by the liable
Party to the other Party. Under no circumstance shall a Party be responsible
or liable to the other Party for indirect, incidental, or consequential damages
including, but not limited to economic loss or lost business or profits or
damages arising from the use or provisioning of services hereunder.
Relationship to Prices.
21.4.1 The prices for services provided under this Agreement are set in express
reliance upon the enforceability of this Section 21 , and this Section 21
constitutes an essential element of the bargain.
Survival.
21.5.1 The prOVISIons of this Section 21 shall survIve any termination of this
Agreement.
Notice and Procedure.
21.6.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 to the Indemnifying Party defense of such claim, lawsuit or
demand.
21.6.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
resulting from said action. Further, the Indemnifying Party shall bear all costs
and expenses, including reasonable attorneys' fees, the Indemnified Party
incurs in defending and/or settling the action.
21.6.3 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, which election shall relieve the other Party from any further
liability or obligation to the Party making the election with respect to the
claim, lawsuit or demand, or the subject matter thereof.
21.6.4 The Parties will cooperate in every reasonable manner with the defense or
settlement of any claim, demand, or lawsuit subject to indemnification
pursuant to this Section 21.
21.5 Neither Party shall accept the terms of a settlement that involves or references
the other Party in any manner without the other Party s prior written
approval.
22.DISPUTE RESOLUTION.
22.
22.2
22.
Alternative to Litigation.
22.1.1 The Parties desire to resolve disputes an sIng 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 alternative dispute resolution
procedures with respect to any controversy or claim between them arising out
of or relating to this Agreement or its breach.
Negotiations.
22.1.1 At the written request of a Party, each Party will appoint a knowledgeable
responsible representative to meet and negotiate in good faith to resolve any
dispute arising out of or relating to this Agreement. The location, format
frequency, duration, and conclusion of these negotiations 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 and, if otherwise admissible, be admitted in evidence, in the
arbitration or lawsuit.
Savings Clause.
22.Either Party may determine, in its own judgment, that negotiations are not
producing measurable results and may then avail themselves of any remedy
they may have under law, including, but not limited to, resort to complaint to
the appropriate administrative agency or court action. The Parties may agree
to submit the matter to arbitration on such terms and conditions as may be
mutually agreed upon by the Parties.
22.4 Continuous Service.
22.4.1 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 obligations (including making payments in accordance with
Section 6) in accordance with this Agreement.
23.CONFIDENTIAL INFORMATION.
23.
23.
Identification.
23.1.1 Either Party may disclose to the other proprietary or confidential customer
technical, or business information in written, graphic, electronic, oral or other
tangible or intangible forms ("Confidential Information
).
In order for
information to be considered Confidential Information under this Agreement
it must be marked "Confidential" or "Proprietary," or bear a marking
similar import or, if transmitted electronically, be so identified in the
accompanying transmittal. Orally or visually disclosed information shall be
deemed Confidential Information only if contemporaneously identified as
such and reduced to writing and delivered to the other Party with a statement
or marking of confidentiality within thirty (30) calendar days after oral or
visual disclosure. The following information shall be deemed Confidential
Information, whether or not marked as such: orders for services, usage
information in any form, and Customer Proprietary Network Information
CPNI") as that term is defined by the Act and the rules and regulations of
the FCC and Commission.
Handling.
23.2.1 In order to protect such Confidential Information from improper disclosure
each P arty agrees:
23.1 That all Confidential Information shall be and shall remain the
exclusive property of the Party from whom or from whose
representative(s), the Confidential Information is obtained ("Source
23.1.2 To limit access to such Confidential Information to authorized
employees and representatives who have a need to know the
Confidential Information for performance of this Agreement;
23.3 To keep such Confidential Information confidential and to use the
same level of care to prevent disclosure or unauthorized use of the
received Confidential Information as it exercises in protecting its own
Confidential Information of a similar nature;
23.1.4 Except as otherwise permitted by this Section 23, and where
required by federal or applicable state law, not to copy, publish, or
disclose such Confidential Information to others or authorize anyone
23.
23.4
24.
else to copy, publish, or disclose such Confidential Information to
others without the prior written approval of the Source;
23.5 To destroy or return promptly any copies of such Confidential
Information to the Source(s) upon receipt of a written request to do so
from the other Party; and
23.6 To use such Confidential Information only for purposes of fulfilling
work or services performed hereunder and for other purposes only
upon such terms as may be agreed upon between the Parties in
writing.
Exceptions.
23.3.1 These obligations shall not apply to any Confidential Information that was
legally in the recipient's possession prior to receipt from the Source, was
received in good faith from a third party not subject to a confidential
obligation to the Source, now is or later becomes publicly known through no
breach of confidential obligation by the recipient was developed by the
recipient without the developing persons having access to any of the
Confidential Information received in confidence from the Source, or that is
required to be disclosed pursuant to subpoena or other process issued by a
court or administrative agency having appropriate jurisdiction; provided
however, that, with respect to disclosure pursuant to subpoena or other
process, the recipient shall give as much prior notice as possible to the Source
and shall reasonably cooperate if the Source deems it necessary to seek
protective arrangements.
Survival.
23.4.1 The obligation of confidentiality and, restriction on use with respect to
Confidential Information disclosed by one Party to the other shall survive any
termination of this Agreement for a period of three (3) years from the date of
the initial disclosure of the Confidential Information.
NOTICES.
24.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
S. 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. Notice may also be
provided by facsimile, which shall be effective on the next business day following
the date of transmission. 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 by
giving notice in compliance with this section:
To: Sprint PCS
Attn: Law and Regulatory Affairs
6200 Sprint Parkway
KSOPHT0101-Z2060
Overland Park, KS 66251
To: Midvale Telephone Exchange
Incorporated
Attn: Lane Williams, President
2205 Keithley Creed Road
Midvale, ID 83645
With a copy (which shall not constitute
notice) to:
With a copy (which shall not
constitute notice) to:
Sprint PCS
Director, Wholesale Interconnection Management
Mailstop: KSOPHN0212
6450 Sprint Parkway
Overland Park, KS 66251
Richard A. Finnigan
Law Office of Richard A. Finnigan
2405 Evergreen Park Drive SW
Suite B-
Olympia, W A 98502
25.REGULATORY AGENCY CONTROL.
25.
26.
This Agreement shall at all times be subject to changes, modifications, orders, and
rulings by the FCC and/or the Commission to the extent the substance of this
Agreement is or becomes subject to the jurisdiction of such agency.
SEVERABILITY.
26.
27.
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 without penalty or liability for such termination upon written notice to
the other Party.
CHANGE OF LAW PROVISION.
27.1 To the extent that the existing rules applicable to this Agreement are vacated
dismissed, stayed or materially changed or modified, then this Agreement shall be
amended to reflect such legally binding modification or change of the existing rules.
Upon the effective date of any legislative, regulatory, judicial or other legal action
that has a material effect on any term in this Agreement, or the ability of Sprint PCS
or Company to perform any material terms of this Agreement, Sprint PCS or
Company may, on thirty (30) days' written notice require that such terms be
renegotiated, and the Parties shall renegotiate in good faith such mutually acceptable
new terms as may be required. Any rates, terms or conditions thus developed or
28.
modified shall be substituted in place of those previously in effect and shall be
deemed to have been effective under this Agreement as of the effective date of the
order by the Court Commission or FCC whether such action was commenced
before or after the effective date of this Agreement. In the event that such new tenns
are not renegotiated within ninety (90) days after such notice, the Dispute shall be
referred to the Dispute Resolution procedure set forth in Section 22.
ISP TRAFFIC.
28.1 This compensation arrangement shall not apply to traffic that tenninates to an ISP
provider on a Party s network.
29.PATENTS.
29.1
29.
30.
No license under any patent is granted by Sprint PCS to Company, or by Company
to Sprint PCS , or shall be implied or arise by estoppel with respect to any circuit
apparatus, system, or method used by either of them in connection with any facilities
service or arrangements fumished under this Agreement.
Each Party warrants that it has the requisite authority to utilize all necessary patents
for the provisioning of its service.
COUNTERP ARTS.
30.1 This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
31.CONSTRUCTION.
31.1 It is agreed and understood that both Parties negotiated the tenns and conditions of
this Agreement. This Agreement shall not be construed more favorably for one Party
or the other.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of
the date signed by both Parties.
By: Sprint PCS By: Midvale Telephone Exchange
Incorporated
~~~",
Name: Lane Williams
By:lV.t~~~
Name: W. Richard Morris
Title: V.P. Law & External Affairs
Date:
Title: President
11- -alf Date:I b (jF!l- Dt.f
Attachment 1 Rates
Traffic Factors
Land-to-Mobile
Mobile-to-Land
Net Balance of Traffic .44
Usa e Factors
Percent Local Usage (PLU)
Inter MT A F actor
Com ensation Rates
Local Call Termination Rate 019 per minute of use
InterMTA Usage Termination Rate Per Access Service Tariff
IntraState Switched Access 0581 **
InterState Switched Access NECA Band 8*
*This factor will be applied as 50% interstate usage and 50% intrastate usage.
**Rates will change as tariff changes are made. Company will inform Sprint PCS at the time tariff
changes occur.