20040625Application.pdf

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Mary S. Hobson (ISB# 2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
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UTILITIES COf~lr,hSSION
Adam Sherr
Qwest
1600 ih Avenue - Room 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
adam. sherr~qwest. com
Attorneys for Qwest Corporation
APPLICATION OF QWEST
CORPORATION FOR APPROVAL OF THE
OPERATOR SERVICES AGREEMENT
AND DIRECTORY ASSISTANCE
AGREEMENT WITH IONEX
COMMUNICATIONS NORTH, INC. FOR
THE STATE OF IDAHO
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
CASE NO.~P' E- r: 01/ 17
APPLICATION FOR APPROVAL OF
OPERATOR SERVICES AGREEMENT
AND DIRECTORY ASSISTANCE
AGREEMENT
(Ionex Communications North, Inc.
Qwest Corporation ("Qwest") hereby files this Application for Approval of Operator
Services Agreement and Directory Assistance Agreement ("Agreements ). A copy of this
Agreement is submitted herewith.
These Agreements were 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"
BACKGROUND
In the past, review and analysis of directory assistance and operator services agreements
by state agencies and the FCC indicated to Qwest that agreements of this type did not fall within
APPLICATION FOR APPROVAL OF OPERA TOR SERVICES AGREEMENT AND DIRECTORY
ASSISTANCE AGREEMENT (Ionex Communications North, Inc.
Boise-171901.1 0029164-00016
Page 1
the Section 252 filing requirement. However, recent pronouncements by the FCC tell Qwest that
such agreements should be filed. Therefore Qwest files these Agreements in order to eliminate
any questions regarding to Qwest's compliance with Section 252.
By way of background, the Commission may wish to know that the Minnesota
Department of Commerce ("the Department") initiated an investigation into Qwest's agreements
with CLECs in the fall of 2001. The Department requested and Qwest provided all of its
agreements with CLECs executed after January 1 , 2000. The purpose of the Department's
investigation and review was to determine whether Qwest had entered into agreements with
CLECs that Qwest should have filed under Section 252. Qwest provided approximately 90
agreements to the Department, which included 20 standardized agreements for the provisioning
of directory assistance and operator services.
On February 14 2002, the Department identified eleven CLEC agreements that should
have been filed, and listed them in a complaint filed with the Minnesota Commission. None of
the standardized agreements relating to directory assistance or operator services were identified
by the Department in the complaint as agreements that should have been filed under Section 252.
In the fall of 2002, the FCC was reviewing Qwest's application for authority in nine
states to provide interLATA services pursuant to Section 271. As part of Qwest's application
the FCC reviewed Qwest's compliance with its obligations under Section 252 to file agreements
relating to section 251 services. In footnote 1746 of the nine-state 271 order, the FCC addressed
a directory assistance agreement and noted parenthetically that it was "not 251-related.In the
Matter of Application by Qwest Communications International, Inc. for Authorization To
Provide In-Region, InterLATA Services in the States of Colorado, Idaho, Iowa, Montana
Nebraska, North Dakota, Utah, Washington, and Wyoming, WC Docket No. 02 - 314 (reI. Dec.
, 2002), at footnote 1746.
The Arizona Commission and Staff also undertook an investigation into allegedly unfiled
agreements; Qwest provided the Arizona Staff with eight standardized directory assistance and
operator services agreements. In its testimony, filed February 21 , 2003, the Arizona Staff
identified only one of the directory assistance agreements and none of the operator services
agreements as falling within the Section 252 filing requirement. After the hearing and briefing
were completed in Arizona in May of2003, Qwest was willing to enter a compromise to remove
the question of whether the directory assistance agreement was subj ect to the filing requirement
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT AND DIRECTORY
ASSISTANCE AGREEMENT (Ionex Communications North, Inc.
Boise-171901.1 0029164-00016
Page 2
from further litigation in Arizona. Therefore, under Section 252 Qwest filed the eight-directory
assistance and operator service agreements, as well as four other form agreements relating to
ancillary services, for a total of twelve agreements, with the Arizona Commission on May 21
2003.
Based on the reviews of the Minnesota Department of Commerce and the Arizona Staff
and the FCC's footnote in the nine-state 271 order, Qwest concluded that standardized
agreements relating to directory assistance and operator services were not within the filing
requirement. Nevertheless, these reviews showed that the issue was not free from ambiguity.
What is of over-riding import, however, is that no CLEC has been denied the opportunity to
receive these standardized directory assistance or operator services. These services always have
been available to any requesting CLEC through Qwest's SGA T, provisions in other
interconnection agreements, through Qwest's website postings, or simply through contacts with
Qwest's wholesale organization.
The picture became more ambiguous on March 12 2004, when the FCC issued its Notice
of Apparent Liability (NAL) addressing Qwest's filing of the twelve Arizona agreements--eight
of which were agreements for directory assistance and operator services. The NAL alleged that
Qwest violated the filing requirement under Section 252 and should be assessed penalties for
failing to file the twelve Arizona agreements until May 21 2003. Qwest's response to the NAL
was due May 12, 2004.
Qwest does did not agree with the NAL regarding the Arizona agreements and it certainly
does not agree that the circumstances warrant penalties due to the ambiguities regarding
standardized agreements, and the mixed messages regarding directory assistance and operator
services agreements in particular. However, in order to place these issues behind it and to move
forward with other more current issues, Qwest determined not to contest the NAL and paid the
recommended penalty.
Because the NAL alleged that the directory assistance and operator services agreements
at issue in Arizona were within the section 252 filing requirement, and because Qwest has
decided not to contest this finding, Qwest is hereby making remedial filings of all directory
assistance and operator services agreements in each of its other thirteen in-region states.
The FCC granted Qwest a 30-day extension, or until May 12 2004, to respond to the NAL.
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT AND DIRECTORY
ASSISTANCE AGREEMENT (Ionex Communications North, Inc.
Boise-1 71901.1 0029164-00016
Page 3
stated above, any delay in the filing of these agreements had no discriminatory effect upon
CLECs because these standardized services have always been available to any requesting carrier
through commission-approved SGA Ts, opt-in opportunities relating to filed interconnection
agreements, postings on Qwest's website, and through contacts with Qwest's wholesale
organization.
CONCLUSION
Section 252( e )(2) of the Act directs that a state Commission may rej ect an agreement
reached through voluntary negotiations only if the Commission finds that: the agreement (or
portiones) 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.
Qwest respectfully submits that these Agreements provide no basis for either of these
findings, and, therefore requests that the Commission approve these Agreements. These
Agreements are 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. Qwest further requests that the Commission approve these Agreements without a
hearing. Because these Agreements were reached through voluntary negotiations, they do 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.
Respectfully submitted this 22nd day of June, 2004.
Qwest Corporation
~~~
Stoel Rives LLP
and
Adam Sherr
Attorneys for Qwest
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT AND DIRECTORY
ASSISTANCE AGREEMENT (Ionex Communications North, Inc.
Boise-171901.1 0029164-00016
Page 4
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of June, 2004, I served the foregoing
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT AND
DIRECTORY ASSISTANCE AGREEMENT upon all parties of record in this matter as
follows:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, Idaho 83720-0074
ji ewe1l~puc. state.id. us
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Sue E. Weiske
General Counsel
5710 LBJ Freeway - Suite 215
Dallas, TX 75240
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
/11~
Brandi L. Gearhart, LS
Legal Secretary to Mary S. Hobson
Stoel Rives LLP
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT AND DIRECTORY
ASSISTANCE AGREEMENT (Ionex Communications North, Inc.
Boise-171901.1 0029164-00016
Page 5
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OPERATOR SERVICES AGREEMENT
This Operator Services Agreement ("Agreement") is made and entered into by and between
Owest Corporation C'Owesr), a Colorado corporation , and lonex Communications North, Inc.
C'CLEC"), a South Dakota corporation. This Agreement may refer to CLEC or to Owest as a
Party ("Party") to this Agreement. The Operator Services provided in this Agreement (the
Services ) will be delivered in the state of Idaho.
WHEREAS, CLEC desires to purchase and Qwest desires to provide the Services as described
and set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises, mutual covenant, and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:
SCOPE OF AGREEMENT
This Agreement sets forth the terms and conditions for the provision of the Services by
Qwest to GLEC. The Services will be provided by live operators or computers andinclude the following:
Local Assistance - Provide assistance to CLEC's end user requesting help or
information on placing or completing local calls, connecting to home NPA
directory assistance, and provide such other information and guidance, including
referral to business office and repair numbers, as may be consistent with
Owest's customary practice for providing customer assistance.
1 .1 .1 .
1 .1 .
Emeraencv Assistance Provide assistance for handling the
emergency local and intraLA T A toll calls to emergency agencies of
CLEC's end user, including, but not limited to, police, sheriff, highway
patrol and fire. GLEC will be responsible for providing Owest with the
appropriate emergency agencies numbers and updates.
J3usv Line Ver!!y"'("BL V"- Performed when GLEC's end user requests
assistance from the operator to determine if the called line is in use.
The operator will not complete the call for the end user initiating the
BLV inquiry. Only one BLV attempt will be made per end user call, and
a charge will apply.
.Busy Line tmerrupt - Performed when CLEG's end user requests
assistance from the operator to interrupt a telephone call in progress
after BL V has occurred. The operator will interrupt the busy line and
inform the called party that there is a call waiting. The operator will only
interrupt the busy line and will not connect CLEC's end user and the
called party. The operator will make only one BLI attempt per end user
call and the applicable charge applies whether or not the called party
releases the line.
1.4 Quote Service - Provide time and charges to hotel/motel and other end
users of GLEC for guest/account identification.
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Coin 8efund ReQuests - Provide information regarding CLEC's end
users requesting coin refunds
IntraLA T A Toll Assistance - Qwest will direct CLEC's end user to contact their
carrier to complete intraLA T A toll calls.
1 .Brandina - Announces CLEC's name at the introduction and conclusion of the
call, where technically feasible. Qwest will record the Brand.
If this Agreement arises out of an interconnection agreement between the Parties
Interconnection Agreement"), then this Agreement will be interpreted consistent with
that Interconnection Agreement and the relationship of the Parties described therein.
Further, the expiration or termination of the Interconnection Agreement, unless otherwise
agreed in writing by the Parties, will also end this Agreement.
TERMS AND CONDITIONS
CLEC elects to receive the following Operator Services:
Local Assistance
Emergency Assistance
Busy Line Verify
Busy Line Interrupt
Quote Service
Coin Refund Requests
ntraLA T A Toll Assistance
Branding
Interconnection to Owest Services from an end office to Owest is technically feasible at
two distinct points on the trunk side of the switch. The first connection point is an
operator services trunk connected directly to Owest's Operator Services host switch.
The second connection point is an operator services trunk connected directly to a
remote Owest Operator Services switch.
Trunk provisioning and facility ownership will follow the guidelines recommended by the
Trunking and Routing, IOF and Switch sub-teams. All. trunk interconnections will
digital.
2.4 Operator Services interconnection will require a dedicated operator services type trunk
per NPA, between the end office and the interconnection point on Owest's switch.
Subject to availability and capacity, access may be provided via operator services trunks
purchased from Owest or provided by CLEC via collocation arrangements to route calls
to CLEC's platform.
The technical requirements of operator services type trunks and the circuits to connect
the positions to the host are covered in the Operator Services Systems Generic
Requirement (OSSGR), Bellcore Document No. FR-NWT-OOO271 , Section 6 (Signaling)
and Section 10 (System Interfaces) in general requirements form.
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CLEC will provide separate (not the local/intraLATA trunks) no-test trunks to Owest'
BL V-BLI validation hubs or to Owest's operator services switches.
Qwest will perform Services provided under this Agreement in accordance with
operating methods, practices, and standards in effect for all its end users. Nothing
this Agreement is intended to obligate Owest to provide any toll services to CLEC or
CLEC's end users.
It is understood that Owest will have no obligation to supply a Service where facilities or
technical abilities are limited. Owest, in its reasonable discretion, may modify and
change the nature, extent and detail of the Services from time to time during the term
hereof.
CLEC will complete the Qwes~ Operator Services/Directory Assistance Questionnaire
for Local Service Providers to request Services, and GLEG represents that the
information is true and correct to the best of its knowledge and belief.
Owest will maintain adequate equipment and personnel to reasonably perform the
Services. CLEC will provide and maintain the facilities necessary to connect its end
users to the place(s) where Owest provides the Services and to provide all information
and data needed or reasonably requested by Owest in order to perform the Services.
TERM AND TERMINATION
This Agreement arises out of an Interconnection Agreement between the Parties which
was approved by the Public Utilities Commission in the state of Idaho. This Agreement
will become effective upon the latest signature date, and will terminate at the same time
as the said Interconnection Agreement.
CHARGES
The charges for the Services provided by Owest under this Agreement are listed in
Exhibit A, attached hereto and incorporated herein by reference.
BILLING
Owest will track usage and bill GLEC, and CLEC will pay Qwest for the calls placed by
CLEC's end users and facilities.
Usage will be calculated according to Option A (Price Per Message) and Option B (Price
Per Work Second and Computer Handled Calls), as defined in Exhibit A, and Owest will
charge CLEC whichever is lower.
, due to equipment malfunction or other error, Owest does not have available the
necessary information to compile an accurate billing statement, Owest may render a
reasonably estimated statement, but will notify CLEC of the methods of such estimate
and cooperate in good faith with CLEC to establish a fair, equitable estimate. Owest will
render a statement reflecting actual billable quantities when and if the information
necessary for the billing statement becomes available.
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5.4 GLEC alone and independently establishes all prices it charges its end users for
Services provided by means of this Agreement, and Owest is not liable .or responsible
for the collection of any such amounts.
If Branding is selected, a non-recurring charge for studio set-up and recording will apply.
The non-recurring studio/recording charge will be assessed each time the brand
message is changed. The non-recurring charge to load the switches will be assessed
each time there is any type of change to the switch. (GLECs offering service in more
than one state will be assessed a one time only non-recurring charge for studio set-up
and recording.) The non-recurring charge(s) must be paid prior to commencement of
service.
Branding - Studio Set-up and Record Brand:
(Includes both front-end and back-end Brand)
$10 500.
I Branding - Load brand into Switch: (Per Switch) lJ 175.
PAYMENT
Amounts payable under this Agreement are due and payable within thirty (30) days after
the date of statement.
Unless prohibited by law, any amount due and not paid by the due date stated above will
be subject to a late charge equal to either i) 0.03 percent per day compounded daily for
the number of calendar days from the payment due date to and including, the date of
payment, that would result in an annual percentage rate of 120/0 or ii) the highest lawful
rate, whichever is less.
Should GLEG dispute any portion of the statement under this Agreement, GLEG will
notify Qwest in writing within thirty (30) days of the receipt of such billing, identifying the
amount and details of such dispute. GLEC will pay all amounts due. Both GLEC and
Owest agree to expedite the investigation of any disputed amounts in an effort to
resolve and settle the dispute prior to initiating any other rights or remedies.
CONFIDENTIAL INFORMATION
Confidential Information" means all documentation and technical and business
information, whether oral, written or visual, which is legally entitled to be protected from
disclosure, which a Party to this Agreement may furnish to the other Party or has
furnished in contemplation of this Agreement to such other Party. Each Party agrees (1)
to treat all such Confidential Information strictly as confidential and (2) to use such
Confidential I nformation only for purposes of performance under this Agreement or for
related purposes.
The Parties shall not disclose Confidential Information to any person outside their
respective organizations unless disclosure is made in response to, or because of an
obligation to, or in connection with any proceeding before any federal, state, or local
governmental agency or court with appropriate jurisdiction, or to any person properly
seeking discovery before any such agency or court. The Parties' obligations under this
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Section shall continue for one (1) year following termination or expiration of this
Agreement.
FORCE MAJEURE
With the exception of payment of charges due under this Agreement, a Party shall be
excused from performance if its performance is prevented by acts or events beyond the
Party's reasonable control, including but not limited to, severe weather and storms;
earthquakes or other natural occurrences; strikes or other labor unrest; power failures;
computer failures; nuclear or other civil or military emergencies; or acts of legislative
judicial, executive, or administrative authorities.
LIMITATION OF LIABILITY
aWEST SHALL BE LIABLE TO CLEC, AND CLEC ONLY, FOR THE ACTS OR
OMISSIONS OF OWEST, EXPRESSLY INCLUDING THE NEGLIGENT ACTS OR
OMISSIONS OF OWEST OR THOSE ATTRIBUTABLE TO OWEST, IN CONNECTION
WITH OWEST'S SUPPLYING OR CLEC'S USING THE SERVICES, BUT STRICTLY IN
ACCORDANCE WITH AND SUBJECT TO THE TERMS OF THIS AGREEMENT. IT IS
EXPRESSLY AGREED THAT OWEST'S LIABILITY TO CLEC, AND GLEC'S SOLE
AND ONLY REMEDY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE
SERVICES AND THIS AGREEMENT SHALL BE A REFUND TO CLEC OF THE
AMOUNT OF THE CHARGES BILLED AND PAID BY CLEC TO OWEST FOR FAILED
OR DEFECTIVE SERVICES. UNDER NO CI RCUMST ANCES OR THEORY
WHETHER BREACH OF AGREEMENT, PRODUCT LIABILITY, TORT, OR
OTHERWISE, SHALL OW EST BE LIABLE FOR LOSS OF REVENUE, LOSS OF
PROFIT, CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES OR INCIDENTAL
DAMAGES, AND ANY CLAIM FOR DIRECT DAMAGES SHALL BE LIMITED AS SET
FORTH ABOVE. UNDER NO CIRCUMSTANCES SHALL aWEST EVER BE LIABLE
TO CLEC'S END USERS FOR ANY DAMAGES WHATSOEVER.
10.INDEMNIFICATION
Each Party to this Agreement hereby indemnifies and holds harmless the other Party
with respect to any third-party claims, lawsuits, damages or court actions arising from
performance under this Agreement to the extent that the indemnifying Party is liable
responsible for said third-party claims, losses, damages, or court actions. Further
CLEC hereby indemnifies Owest from any claims made against it by CLEC's end user
due to CLEC's end user s use or attempted use of the Service , regardless of the cause
thereof excepting only, the intentional, malicious misconduct of Owest. Whenever any
claim shall arise for indemnification hereunder, the Party entitled to indemnification shall
promptly notify the other Party of the claim and, when known, the facts constituting the
basis for such claim. In the event that one Party to this Agreement disputes the other
Party'right to indemnification hereunder, the Party disputing indemnification shall
promptly notify the other Party of the factual basis for disputing indemnification.
Indemnification shall include, but is not limited to, costs and attorney fees.
11.LAWFULNESS OF AGREEMENT
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11.1. This Agreement and the Parties' actions under this Agreement shall comply with all
applicable federal , state, and local laws, rules, regulations, court orders, and
governmental agency orders. This Agreement shall only be effective when mandatory
regulatory filing requirements are met, if applicable. If a court or a governmental agency
with proper jurisdiction determines that this Agreement, or a provision of this Agreement
is unlawful, this Agreement, or that provision of this Agreement shall terminate on
written notice to CLEC to that effect.
11.2. If a provision of this Agreement is so terminated, the Parties will negotiate in good faith
for replacement language. If replacement language cannot be agreed upon, either
Party may terminate this Agreement.
12.GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the
state in which Services are delivered to the end user.
13.DISPUTE RESOLUTION
Any claim, controversy or dispute between the Parties shall be resolved by binding
arbitration in accordance with the Federal Arbitration Act, 9 U.C. 1-16, not state law.
The arbitration shall be conducted by a retired judge or a practicing attorney under the
rules of the American Arbitration Association. The arbitration shall be conducted in
Denver, Colorado. The arbitrator s decision shall be final and may be entered in any
court with jurisdiction. Each Party shall be responsible for its own costs.
14.DEFAULT
If a Party defaults in the performance of any substantial obligation herein, and such
default continues, uncured and uncorrected , for thirty (30) days after written notice to
cure or correct such default, then the non-defaulting Party may immediately terminate
this Agreement. Subject to Section 9 (Limitation of Liability) above, the non-defaulting
Party may also pursue other permitted remedies by arbitration as set forth above.
15.SUCCESSORS, ASSIGNMENT
Neither Party shall assign, sublet, or transfer any interest in this Agreement without the
prior written consent of the other Party, which consent shall not be unreasonably
withheld; provided, however, that Qwest may assign and transfer this Agreement to any
parent, subsidiary, successor, affiliated company or other business entity without the
prior written consent of CLEC.
16.AMENDMENTS TO AGREEMENT
The Parties may by mutual agreement and execution of a written amendment to this
Agreement amend, modify, or add to the provisions of this Agreement.
17.NOTICES
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Any notice to be given pursuant to this Agreement by either Party to the other shall be
writing and shall be deemed given when sent either by mail to the address listed below
or by facsimile with a confirmation copy sent by mail.
lonex Communications North, Inc.
Sue E. Weiske
General Counsel
5710 LBJ Freeway, #215
Dallas, TX 75240
Qwest Corporation
Director-nterconnect
1801 California Street, #2410
Denver, Colorado 80202
Copy to:
Owest Legal Department
General Counsel-Interconnection
1801 California Street, #3800
Denver, Colorado 80202
18.ENTIRE AGREEMENT
This Agreement, together with any jointly-executed written amendments, constitutes the
entire agreement and the complete understanding between the Parties. No other verbal
or written representation of any kind affects the rights or the obligations of the Parties
regarding any of the provisions in this Agreement.
IN WITNESS WHEREOF, each of the Parties has cau~ed this Agreement to be duly executed
for and on its behalf on the day and year indicated below:
lonex Communications North, Inc.~st Corporation
Signat re j.~--- f Cz.i .-L~ ;.
----
Signature
Sue E. Weiske
Name PrintedlTyped
Gregory J. Lawson
Name PrintedITyped
General Counsel
Title
Account Executive
Title
/0' :; c; . (..1 1"1 .
Date
/'-
-;J?-t"t-
Date
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EXHIBIT A
CHARGES
Idaho
Operator Handled Calling Card
OPTION A: Price Per Message $ 0.46 For each completed calling card call that
was dialed 0+ where the operator entered
the calling card number.
Machine Handled Call $ 0.
Station Call $ 0.
Person Call $2.
Connect to Directory Assistance $ 0.
Busy Line Verify $0.
Busy Line Interrupt $ 0.
Operator Assistance $0.
For each completed call that was dialed 0+
where the end user entered the required
information, such as calling card number.
For each completed station call, including
station sent paid, collect, 3rd number
special billing or 0- calling card call.
For each completed person-to-person call
regardless of the billing used by the end
user.
For each operator placed call to directory
assistance.
For each call where the operator
determines that conversation exists on
line.
For each call where the operator interrupts
conversation on a busy line and requests
release of the line.
For each local call completed or not, that
does not potentially generate an operator
surcharge. These calls include, but are not
limited to: calls given the ODD rate
because of transmission problems; calls
where the operator has determined there
should be no charge, such as Busy Line
Verify attempts where conversation was not
found on the line; calls where the end user
requests information from the operator, and
no attempt is made to complete a call; calls
for Quote service.
Completed call" as used in this Agreement shall be conclusively determined to mean that "end user makes contact
with the location, telephone number, person, or extension designated by the end user
A completed call shall be computed, calculated and recorded in accordance with the methods and practices of
Owest and the operating capacity and ability of Owest's measuring equipment.
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EXHIBIT A
(page 2)
CHARG ES
Idaho
OPTION B: Price Per Work Second and Computer Handled CallsOperator Handled $ 0.0181 Per operator work second for all operator
assisted Services and functions of Services.
Machine Handled $ 0.Per call for all Services which are handled
solely by computers and Owest equipment.
CLEC is charged per work second for all calls originating from its end user(s) and facilities that go to Qwest'
operator facilities for handling. Work second charging begins when Qwest's operator position connects with CLEC'
end user and terminates when the connection between Qwest's operator position and CLEC's end user is
terminated.
Calls without live operator intervention are computer (machine) handled and include, but are not limited to, credit
card calls where the end user enters the calling card number, calls originating from coin telephones where the
computer requests deposit of coins, additional end user key actions, recording of end user voice, etc.
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DIRECTORY ASSISTANCE AGREEMENT
This Directory Assistance Agreement ("Agreemenf') is made and entered into by and between
Owest Corporation ("Owest"), a Colorado corporation, and lonex Communications North, Inc.
CLEC"), a South Dakota corporation. This Agreement may refer to 'CLEC or to Owest as a
Party ("Party") to this Agreement. The Directory Assistance service(s) provided in this
Agreement (the "Services ) will be delivered in the state of Idaho.
WHEREAS, Qwest desires to provide the Services as described herein.
NOW THEREFORE, in consideration of the promises, mutual covenants, and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:
SCOPE OF AGREEMENT
. 1.The Directory Assistance service is a telephone number, voice information service that
Owest provides to other telecommunications carriers and its own end users. The
published and non-listed telephone numbers provided within the relevant geographic
area are only those contained in Owest's current Directory Assistance database. Owest
offers the following five separate options:
Local Directory Assistance Service - Permits CLEC's end users to receive
published and non-listed telephone numbers for their own NPA/LATA, whichever
is greater.
1 .National Directory Assistance Service - Permits CLEC's end users to receive
listings for the entire United States database.
1 .BrandinQ - Permits CLEC's end users to receive the service options in 1.1 and
2 branded with the brand of CLEC, where technically feasible. Call Branding
provides the announcement of CLEC's name to CLEC's end user during the
introduction of the call, and at the completion of the call. Owest will record the
Brand.
1 .4 Directory Assistance Call Completion Service - Permits CLEC's end users
connect to the requested local or intraLATA telephone number directly, where
available, without having to dial another call , using Owest's intraLATA toll
network. Call Completion is not available in the states of Iowa, Montana
Nebraska, South Dakota and Wyoming.
1 .Directory Assistance Call Completion Link Service - Permits CLEC's end user to
connect to the requested interLATA telephone number directly, where available,
without having to dial another call. Owest will return the end user to CLEC for
completion. Call Completion Link is not available in the states of Iowa, Montana,
Nebraska, South Dakota and Wyoming.
TERMS AND CONDITIONS
CLEC elects to receive the following Directory Assistance service options:
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2.4
Local Directory Assistance
National Directory Assistance
Branding
Directory Assistance Call Completion
Directory Assistance Call Completion Link
CLEC will complete the Qwest Operator Services/Directory Assistance Questionnaire
for Local Service Providers to request Services, and CLEC represents that the
information completed is true and correct to the best of its knowledge and belief.
Qwest's Directory Assistance database contains only those published and non-listed
telephone numbers provided to Owest by its own end users and other
telecommunications carriers.
Owest will provide access to the Services via dedicated multi-frequency (MF) operator
service trunks purchased from Qwest or provided by CLEC. These operator service
trunks will be connected directly to Qwest's Directory Assistance host switch or directly
to a remote Directory Assistance switch via the trunk side. GLEG will be required to
order or provide an operator service trunk for each NPA served.
Owest will provide and maintain the equipment and personnel necessary to perform the
Directory Assistance services specified in this Agreement. GLEC will provide and
maintain the equipment, facilities, lines and materials necessary to connect its
telecommunication facilities to an agreed upon Qwest's Operator Services switch.
TERM AND TERMINATION
This Agreement arises out of an Interconnection Agreement between the Parties which
was approved by the Public Utilities Commission in the state of Idaho. This Agreement
will become effective upon latest signature date, and will terminate at the same time as
the said Interconnection Agreement.
RATE ELEMENTS
The following per call rate is applicable for Local Directory Assistance service and
National Directory Assistance service, where selected by GLEG.
Local Directo Assistance
National Directo Assistance
$0.
$0.385
A non-recurring charge for studio set-up and recording will apply. The non-recurring
studio/recording charge will be assessed each time the brand message is changed.
The non-recurring charge to load the switches will be assessed each time there is any
type of change to the switch. (GLECs offering service in more than one state will be
assessed a one time only non-recurring charge for studio set-up and recording.) The
non-recurring charge(s) must be paid prior to commencement of Service.
Branding - Studio Set-up and Record $10,500.
Brand: (Includes both front-end and back-
end Brand)
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Branding - Load brand into Switch:
Switch)
(Per $175.
A per call rate for Directory Assistance Call Completion and Directory Assistance Call
Completion Link will be applicable. Additional charges for Qwest IntraLATA Toll
services also apply for completed intraLA T A toll calls. Additional charges for interLA T A
may apply from the interLA T A toll carrier.
Directo Assistance Call Com letion
Directo Assistance Call Com letion Link 085
BILLING
Owest will track and bill CLEC on a monthly basis for the number of calls placed to
Owest's Directory Assistance service by CLEC's end users. Owest will also track and
bill monthly the number of Call Completion requests.
For purposes of determining when GLEC is obligated to pay the per call rate, the call will
be deemed made and CLEC will be obligated to pay when the call is answered. An end
user may request and receive no more than two telephone numbers per Directory
Assistance call. Owest will not credit, rebate or waive the per call charge due to any
failure to provide a telephone number, or due to any incorrect information.
CLEC alone and independently establishes all prices it charges its end users for the
Directory Assistance and Call Completion Services provided by means of this
Agreement.
PAYMENT
Amounts payable under this Agreement are due and payable within thirty (30) days after
the date of invoice.
Unless prohibited by law, any amount due and not paid by the due date stated above will
be subject to a late charge equal to either i) 0.03 percent per day compounded daily for
the number of calendar days from the payment due date to and including, the date of
payment, that would result in an annual percentage rate of 120/0 or ii) the highest lawful
rate, whichever is less.
Should CLEC dispute any portion of the monthly billing under this Agreement, GLEC will
notify Owest in writing within thirty (30) days of the receipt of such billing, identifying the
amount and details of such dispute. CLEC will pay all amounts due. Both CLEC and
Owest agree to expedite the investigation of any disputed amounts in an effort to
resolve and settle the dispute prior to initiating any other rights or remedies.
CONFIDENTIAL INFORMATION
Confidential Information" means all documentation and technical and business
information, whether oral, written or visual, which is legally entitled to be protected from
disclosure, which a Party to this Agreement may furnish to the other Party or has
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furnished in contemplation of this Agreement to such other Party. Each Party agrees (1)
to treat all such Confidential Information strictly as confidential and (2) to use such
Confidential Information only for purposes of performance under this Agreement or for
related purposes.
The Parties shall not disclose Confidential Information to any person outside their
respective organizations unless disclosure is made in response to, or because of an
obligation to, or in connection with any proceeding before any federal, state, or local
governmental agency or court with appropriate jurisdiction, or to any person properly
seeking discovery before any such agency or court. The Parties' obligations under this
Section shall continue for one (1) year following termination or expiration of this
Agreement.
FORCE MAJEURE
With the exception of payment of charges due under this Agreement, a Party shall be
excused from performance if its performance is prevented by acts or events beyond the
Party s reasonable control, including but not limited to, severe weather and storms;
earthquakes or other natural occurrences; strikes or other labor unrest; power failures;
computer failures; nuclear or other civil or military emergencies; or acts of legislative,
judicial, executive, or administrative authorities.
LIMITATION OF LIABILITY
QWEST SHALL BE LIABLE TO CLEC AND CLEC ONLY FOR THE ACTS OR
OMISSIONS OF QWEST, EXPRESSLY INCLUDING THE NEGLIGENT ACTS OR
OMISSIONS OF OW EST OR THOSE ATTRIBUTABLE TO QWEST, IN CONNECTION
WITH QWEST'S SUPPLYING OR CLEC'S USING THE DIRECTORY ASSISTANCE
SERVICE, BUT STRICTLY IN ACCORDANCE WITH AND SUBJECT TO THE TERMS
OF THIS AGREEMENT. IT IS EXPRESSLY AGREED THAT QWEST'S LIABILITY TO
CLEC, AND CLEC'S SOLE . AND ONLY REMEDY FOR ANY DAMAGES ARISING IN
CONNECTION WITH THE SERVICES AND THIS AGREEMENT SHALL BE
REFUND TO CLEC OF THE AMOUNT OF THE CHARGES BILLED AND PAID BY
CLEC TO QWEST FOR FAILED OR DEFECTIVE SERVICES. UNDER NO
CIRCUMSTANCES OR THEORY, WHETHER BREACH OF AGREEMENT, PRODUCT
LIABILITY, TORT OR OTHERWISE, SHALL QWEST BE LIABLE FOR LOSS OF
REVENUE, LOSS OF PROFIT. CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES
OR INCIDENTAL DAMAGES. AND ANY CLAIM FOR DIRECT DAMAGES SHALL BE
LIMITED AS SET FORTH ABOVE. UNDER NO CIRCUMSTANCES SHALL QWEST
EVER BE LIABLE TO CLEC'S END USERS FOR ANY DAMAGES WHATSOEVER.
10.INDEMNIFICATION
Each Party to this Agreement hereby indemnifies and holds harmless the other Party
with respect to any third-party claims, lawsuits, damages or court actions arising from
performance under this Agreement to the extent that the indemnifying Party is liable or
responsible for said third-party claims, losses, damages, or court actions. CLEC is
indemnifying Qwest from any claim made against it by CLEC's end user s due to
CLEC's end user s use or attempted use of the Directory Assistance service. Whenever
any claim shall arise for indemnification hereunder, the Party entitled to indemnification
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11.
12.
13.
14.
15.
shall promptly notify the other Party of the claim and, when known, the facts constituting
the basis for such claim. In the event that one Party to this Agreement disputes the
other Party s right to indemnification hereunder, the Party disputing indemnification shall
promptly notify the other Party of the factual basis for disputing indemnification.
Indemnification shall include, but is not limited to, costs and attorneys' fees.
11.LAWFULNESS OF AGREEMENT
11.This Agreement and the Parties' actions under this Agreement shall comply with all
applicable federal state, and local laws, rules. regulations, court orders, and
governmental agency orders. This Agreement shall only be effective when mandatory
regulatory filing requirements are met, if applicable. If a court or a governmental agency
with proper jurisdiction determines that this Agreement, or a provision of this Agreement
is unlawful, this Agreement, or that provision of this Agreement shall terminate on
written notice to CLEC to that effect.
If a provision of this Agreement is so terminated , the Parties will negotiate in good faith
for replacement language. If replacement language cannot be agreed upon, either
Party may terminate this Agreement.
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the
state in which the Directory Assistance service is delivered to the end user.
DISPUTE RESOLUTION
Any claim, controversy or dispute between the Parties shall be resolved by binding
arbitration in accordance with the Federal Arbitration Act, 9 U.C. 1-16, not state law.
The arbitration shall be conducted by a retired judge or a practicing attorney under the
rules of the American Arbitration Association. The arbitration shall be conducted in
Denver, Colorado. The arbitrator s decision shall be final and may be entered in any
court with jurisdiction. Each Party shall be responsible for its own costs.
DEFAULT
If a Party defaults in the performance of any substantial obligation herein , and such
default continues , uncured and uncorrected, for thirty (30) days after written notice to
cure or correct such default, then the non-defaulting Party may immediately terminate
this Agreement. Subject to Section 9 (Limitation of Liability) above, the non-defaulting
Party may also pursue other permitted remedies by arbitration as set forth above.
SUCCESSORS, ASSIGNMENT
Neither Party shall assign, sublet, or transfer any interest in this Agreement without the
prior written consent of the other Party, which consent shall not be unreasonably
withheld; provided, however, that Owest may assign and transfer this Agreement to any
parent, subsidiary, successor, affiliated company or other business entity without the
prior written consent of GLEC.
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. "
16.AMENDMENTS TO AGREEMENT
The Parties may by mutual agreement and execution of a written amendment to this
Agreement amend, modify, or add to the provisions of this Agreement.
17.NOTICES
Any notice to be given pursuant to this Agreement by either Party to the other shall be in
writing and shall be deemed given when sent either by mail to the address listed below
or by facsimile with a confirmation copy sent by mail.
lonex Communications North, Inc,
Sue E. Weiske
General Counsel
5710 LBJ Freeway, #215
Dallas, TX 75240
awest Corporation
Director - Interconnect
1801 California Street , #2410
Denver, Colorado 80202
Copy to:
Owest Legal Department
General Counsel - Interconnection
1801 California Street, #3800
Denver, Colorado 80202
18.ENTIRE AGREEMENT
This Agreement, together with any jointly-executed written amendments, constitutes the
entire agreement and the complete understanding between the Parties. No other verbal
or written representation of any kind affects the rights or the obligations of the Parties
regarding any of the provisions in this Agreement.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed
for and on its behalf on the day and year indicated below:
lonex Communications North, Inc.
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Owest Corporation
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Sue E. Weiske
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Greaorv J. Lawson
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General Counsel
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Account Executive
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