20090508Amendment.pdf

Qwest
1600 7th Avenue, Room 3206
Seattle, Washington 98191
[phone]
Facsimile [phone] inU9 MAY -8 Pr1 2: 08
Maura E. Peterson
Paralegal
Regulatory Law Qwest~
Spirit of Service~
Via Overnight delivery
May 7, 2009
Jean Jewell, Secretary
Idaho Public Utilties Commssion
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Re: Case No. QWE-T-09-06
Application for Approval of Amendment to the Interconnection Agreement
NetTalk.Com, Inc.
Dear Ms. Jewell:
Enclosed for filing with this Commssion on behalf of Qwest Corporation is an original and
three (3) copies of the Application for Approval of Amendment to the Interconnection
Agreement. Qwest respectfully requests that this matter be placed on the Commission
Decision Meeting Agenda for expedited approvaL.
Please contact me if you have any questions concerning the enclosed. Thank you for your
assistance in this matt
mep
Enclosure
cc: Service list
Adam L. Sher (WSBA# 25291)
Qwest
1600 7th Ave, Room 1506
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
Adam.sher(?qwest.com
Qr-r::ï "L"" Vã,_.~
2909 M!H -8 PM 2= 08
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
APPLICATION OF QWEST
CORPORATION FOR APPROVAL OF
AN INTERCONNECTION AGREEMENT
PURSUANT TO 47 U.S.C. §252(e)
CASE NO.: QWE- T -09-06
APPLICATION FOR APPROVAL OF
AMNDMENT TO THE
INTERCONNECTION AGREEMENT
Qwest Corporation ("Qwest") hereby files this Application for Approval of Amendment
to the Interconnection Agreement ("Amendment"). The Amendment with NetTalk.Com, Inc.
("NetTalk") is submitted herewith.
This Amendment was reached through voluntary negotiations without resort to mediation
or arbitration and is submitted for approval pursuant to Section 252(e) of the Communcations
Act of 1934, as amended by the Telecommuncations Act of 1996 (the "Act").
Section 252( e )(2) of the Act directs that a state Commission may reject an amendment
reached through voluntar negotiations only if the Commission finds that: the amendment (or
portion(s) thereof) discrminates against a telecommunications carer not a pary to this
agreement; or the implementation of such an amendment (or portion) is not consistent with the
public interest, convenence and necessity.
Qwest respectfully submits ths Amendment provides no basis for either of these
findings, and, therefore requests that the Commission approve this Amendment expeditiously.
This Amendment is consistent with the public interest as identified in the pro-competitive
policies of the State ofIdaho, the Commission, the United States Congress, and the Federal
Communications Commission. Expeditious approval of this Amendment wil enable NetTalk to
interconnect with Qwest facilities and to provide customers with increased choices among local
telecommuncations serices.
APPLICATION FOR APPR.OV AL OF AMENDMENT TO THE INERCONNCTION AGREEMENT - Page 1
PERFORMANCE ASSURNCE PLAN AMENDMENT
Qwest further requests that the Commission approve this Amendment without a hearng.
Because ths.Amendment was reached though voluntar negotiations, it does not raise issues
requiring a hearng and does not concern other paries not a party to the negotiations.
Expeditious approval would fuher the public interest.
Respectfully submitted this 1fl day of May, 2009.
-rr :
APPLICATION FOR APPROVAL OF AMENDMEN TO THE INERCONNCTION AGREEMENT - Page 2
PERFORMANCE ASSURNCE PLAN AMENDMEN
CERTIFICATE OF SERVICE
I hereby certify that on this t day of May, 2009, I sered the foregoing
APPLICATION FOR APPROVAL OF AMENDMENT TO THE INTERCONNECTION
AGREEMENT upon all paries of record in this matter as follows:
Jean Jewell, Secretar
Idaho Public Utilties Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
jiewell(fuc.state.id. us
Hand Deliver
U. S. Mail
~ Overnight Delivery
Facsimile
Email
Keneth Hosfeld, EVP
NetTalk.Com, Inc.
1100 NW 163rd Drive
North Miami Beach, FL 33169
Hand Deliver
-- U. S. Mail
Overght Deliver
Facsimile
Email
Maura Peterson
Paralegal, Qwest
APPLICATION FOR APPROVAL OF AMENMENT TO TH INERCONNCTION AGREEMENT - Page 3
PERFOR.ANCE ASSURNCE PLAN AMENDMENT
Performance Assurance Plan (PAP) Amendment
to the Interconnection Agreement between
Qwest Corporation and
NetTalk.Com, Inc,
for the State of Idaho
RFr"E- ni't ~V'._J "j'
lU09HAY -8 PM 2= 37
This is an Amendment ("Amendment') to the Interconnection Agreement between
Corporation ("Qwest"), a Colorado corporation, and NetTalk.Com, Inc. ("CLEC"). CLEC and
Qwest shall be known jointly as the "Parties".
RECITALS
WHEREAS, CLEC and Qwest entered into an Interconnection Agreement ("Agreement") which
was approved by the Commission; and
WHEREAS, the Parties wish to amend the Agreement further under the terms and conditions
contained herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual terms, covenants and conditions contained
in this Amendment and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
Amendment Terms
The Agreement is hereby amended by adding terms and conditions as set forth in Attachment 1
and Exhibit K, to this Amendment, attached hereto and incorporated herein by this reference.
Effective Date
This Amendment shall be deemed effective upon approval by the Commission; however, the
Parties may agree to implement the provisions of this Amendment upon execution. To
accommodate this need, CLEC must generate, if necessary, an updated Customer
Questionnaire. In addition to the Questionnaire, all system updates wil need to be completed
by Qwest. CLEC wil be notified when all system changes have been made. Actual order
processing may begin once these requirements have been met. Additionally, Qwest shall
implement any necessary biling changes within two (2) billng cycles after the latest execution
date of this Amendment, with a true-up back to the latest execution date of this Amendment by
the end of the second biling cycle. The Parties agree that so long as Qwest implements the
billng changes and the true-up as set forth above, the CLEC's bils shall be deemed accurate
and adjusted without error.
April 14, 2009/kcd/ PAP Amd/NetTalk.Com,lID
Amendment to CDS-0901 09-0002
Last updated - 9/17/08 - hartl
Further Amendments
Except as modified herein, the provisions of the Agreement shall remain in full force and effect.
The provisions of this Amendment, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures from the provisions
of this Amendment may not be given without the writen consent thereto by both Parties'
authorized representative. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, wil be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
Entire Agreement
The Agreement as amended (including the documents referred to herein) constitutes the full
and entire understanding and agreement between the Parties. with regard to the subjects of the
Agreement as amended and supersedes any prior understandings, agreements, or
representations by or between the Parties, written or oral, to the extent they relate in any way to
the subjects of the Agreement as amended.
The Parties intending to be legally bound have executed this Amendment as of the dates set
forth below, in multiple counterparts, each of which is deemed an original, but all of which shall
constitute one and the same instrument.
NetTalk.Com, Inc, Qwest CorporationL~ ~~~Signature 1/ Signature
Kenneth Hosfeld L. T. ChristensenName PnntedfTyped Name Printed/yped
EVP
Title
Jj Æ/lt(7,pot
(
Direc~r - Wholesale ContractsTitle _I /
6 llP /i.LDate ~7
April 14, 2009/kcdl PAP Amd/NetTalk.Com,lID
Amendment to CDS.090109.0002
Last updated - 9/17/08 . hartl-
2
- ~ATTACHMENT 1
ATTACHMENT 1
Section 20.0 - SERVICE PERFORMANCE
20.2 The Qwest Performance Assurance Plan (QPAP) is attached as Exhibit K of this
Agreement. Subsequent changes to the QPAP submitted to the Commission wil be
incorporated into Exhibit K as soon as they are effective by operation of law or the effective date
as approved by Commission order, whichever is applicable, and without further Amendment to
this Agreement.
April 14, 2009/kcdl PAP Amd/NetTalk.Com,/ID
Amendment to CDS-0901 09-0002
Last updated - 9/17/08 - hartl
3
Exhibit K
2.0 Plan Structure
2.1 The PAP is a two-tiered, self-executing remedy plan. CLEC shall be provided
with Tier 1 payments if, as applicable, Qwest does not provide parity between the
service it provides to CLEC and that which it provides to its own retail customers, or
Qwest fails to meet applicable benchmarks.
2.1.1 As specified in section 7.0, if Qwest fails to meet parity and benchmark
standards on an aggregate CLEC basis, Qwest shall make Tier 2 payments to a
Fund established by the state regulatory commission or, if required by existing law, to
the state general fund.
2.2 As specified in sections 6.0 and 7.0 and Attachments 1 and 2, payment is
generally on a per occurrence basis, (Le., a set dollar payment times the number of
non-conforming service events). For the performance measurements which do not
lend themselves to per occurrence payment, payment is on a per measurement
basis, (Le., a set dollar payment). The level of payment also depends upon the
number of consecutive months òf non-conforming performance, (Le., an escalating
payment the longer the duration of non-conforming performance) unless otherwise
specified.
2.3 Qwest shall be in conformance with the parity standard when service Qwest
provides to CLEC is equivalent to that which it provides to its retail customers. The
PAP relies upon statistical scoring to determine whether any difference between
CLEC and Qwest performance results is significant, that is, not attributable to simple
random variation. Statistical parity shall exist when performance results for CLEC
and for Qwest retail analogue result in a z-value that is no greater than the critical z-
values listed in the Critical Z-Statistical Table in section 5.0.
2.4 For performance measurements that have no Qwest retail analogue, agreed
upon benchmarks shall be used. Benchmarks shall be evaluated using a "stare and
compare" method. For example, if the benchmark is for a particular performance
measurement is. 95% or better, Qwest performance results must be at least 95% to
meet the benchmark. Percentage benchmarks wil be adjusted to round. the
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 1-
Exhibit K
allowable number of misses up or down to the closest integer, except when a
benchmark standard and low CLEC volume are such that a 100% performance result
would be required to meet the standard and has not been attained in which case
section 3.1.2 applies.
3.0 Performance Measurements
3.1 The performance measurements that are in the PAP and either (1) subject to
the PAP payment mechanisms or (2) not subject to the PAP payment mechanisms
but subject to the Reinstatement/Removal Process set forth in section 3.2 below are
identified in Attachment 1 and sections 6.3 and 7.4. Each performance measurement
identified is defined in the Performance Indicator Definitions ("PIDs") included in the
SGAT at Exhibit B.
3.1 .1 On Attachment 1 , the measurements have been designated as Tier 1,
Tier 2, or both Tier 1 and Tier 2 and given a High, Medium, or Low
designation.
3.1.2 Where applicable elsewhere in the PAP, this provision modifies other
provisions and operates as follows: For any Tier 1 or Tier 2 benchmark or
non-interval parity performance sub-measure, Qwest shall apply one
allowable miss to a sub-measure disaggregation that otherwise would require
100% performance before the performance is considered as non-conforming
to standard (1) if at the CLEC-aggregate level, the performance standard is
met or (2) where the CLEC-aggregate performance must be 100% to meet
the standard, the CLEC-aggregate performance is conforming after applying
one allowable miss at that leveL.
3.2 The following measures, which are listed in Attachment 1 or section 7.4, are
not subject to the payment mechanisms of the PAP; however, they are subject to the
PID Reinstatement/Removal Process. All other measures listed in Attachment 1,
section 6.3 or section 7.4 are subject to the PAP payment mechanisms, but they are
not subject to the PID Reinstatement/Removal Process.
GA-3 Gateway Availabilty EB-TA
GA-4 System Availabilty EXACT
GA-7 Timely Outage Resolution following Softare Releases
PO-3 LSR Rejection Notice Interval
PO-5D Firm Order Confirmations (FOCs) On Time (ASRs for LIS Trunks)
PO-7 Billng Completion Notification Timeliness
PO-8 Jeopardy Notice Interval
PO-16 Timely Release Notifications
OP-17 Timeliness of Disconnects Associated with LNP Orders
MR-11 LNP Trouble Reports Cleared within Specified Timeframes
BI-4 Biling Completeness
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 2-
Exhibit K
NI-1 Trunk Blocking
NP-1 NXX Code Activation
3.3 PID Reinstatement/Removal Process: If Qwests performance for any sub-
measure of the PIDs listed in section 3.2 above does not conform to the established
PID standard as set forth in the PAP for three consecutive months, that sub-measure
will be reinstated (Le., be subject to the PAP payment mechanisms) subject to the
retroactive payment provision of section 3.3.2 and subject to the PAP payment
mechanisms effective in the month following the three consecutive months. The
determination of whether a PID sub-measure is reinstated is made no later than at
the end of the second month following the third consecutive month of non-conforming
performance. The sub-measure wil remain subject to the PAP payment mechanisms
until Qwests performance for that sub-measure satisfies the established standards
for three consecutive months. Effective the month following such conforming
performance, the sub-measure wil no longer be subject to the PAP payment
mechanisms but wil continue to be subject to the PID Reinstatement/Removal
Process. The determination of whether a PID sub-measure is removed from being
subject to the PAP payment mechanisms is made no later than the end of the second
month following the third consecutive month of conforming performance. Where
applicable elsewhere in the PAP, this PID Reinstatement/Removal Process modifies
other provisions and operates as follows:
3.3.1 Disaggregation and Reporting Levels: Performance wil be evaluated
at the lowest level of disaggregation defined in Exhibit B of the SGAT on a
CLEC-aggregated or other-aggregated basis such that performance is
evaluated for the purposes of administering the Reinstatement/Removal
Process on a statewide or regionwide level, as applicable per the PID.
3.3.2 Retroactive Payments: To calculate retroactive payments for the sub-
measures reinstated, PAP payment mechanisms wil be applied to the three
consecutive months in which the standard was missed, which triggered
reinstatement. These retroactive payments wil be made to applicable CLECs
or the Tier 2 Fund, depending upon the tier designation of the PID, at the end
of the third month after the month in which performance triggered re-
instatement.
3.3.2.1 Accounting for Payments: In support of retroactive payments
(section 3.3.2 above), Qwest wil account separately for PAP payments
that would have been made to individual CLECs or to the Tier 2 Fund
for a sub-measure as though it had been subject to the PAP payment
mechanisms, where automatic reinstatement applies, and account
separately in the same manner for the time between when it is
determined that a sub-measure met the standard for automatic removal
and the effective date of removal (the month following the three
consecutive "met" months). With regard to sub-measures that are
subsequently removed again through this process, any PAP payments
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 3-
Exhibit K
made during the three consecutive months which triggers automatic
removal will not be recovered by Qwest.
3.3.2.2 Interest: In the case of automatic reinstatement, retroactive
payments wil include interest calculated at the prime rate as reported in
the Wall Street Journal from the date a payment would have been
made to the date the payment is actually made.
3.3.2.3 Tracking: Qwest wil track and report service and payment
results, including retroactive and avoided (i.e., during periods of
removal) PAP payments and the disposition of the avoided payments
on a CLEC, PID sub-measure and aggregate basis each month.
3.3.3 Public Website: Qwest wil maintain a public website showing the
PAP status of each PID or sub-measure with respect to the applicabilty of the
PAP payment mechanisms (i.e., reinstated or removed), which eliminates the
requirement to make filings with the Commission to modify the PAP due to
the application of the PID Reinstatement/Removal Process.
4.0 Statistical Measurement
4.1 Qwest uses a statistical test, namely the modified "z-test," for evaluating the
difference between two means (i.e., Qwest and CLEC service or repair intervals) or
two percentages (e.g., Qwest and CLEC proportions), to determine whether a parity
condition exists between the results for Qwest and the CLEC(s). The modified z-
tests shall be applicable if the number of data points are greater than 30 for a given
measurement. For testing measurements for which the number of data points are 30
or less, Qwest wil use a permutation test to determine the statistical significance of
the difference between Qwest and CLEC.
4.2 Qwest shall be in conformance when the monthly performance results for
parity measurements (whether in the form of means, percents, or proportions and at
the equivalent level of disaggregation) are such that the calculated z-test statistics
are not greater than the critical z-values as listed in Table 1, section 5.0.
4.3 Qwest shall be in conformance with benchmark measurements when the
monthly performance result equals or exceeds the benchmark, if. a higher value
means better performance, and when the monthly performance result equals or is
less than the benchmark if a lower value means better performance.
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 4-
Exhibit K
The formula for determining parity using the modified z-test is:
z = DIFF / O'OIFF
Where:
DIFF = MQwest - MCLEC
MOWEST = Qwest average or proportion
MCLEC = CLEC average or proportion
O'OIFF = square root DO'°Qwest (1/ n CLEC + 1/ n Qwest))
(fQwest = calculated variance for Qwest
nOwest = number of observations or samples used in Qwest
measurement
nCLEC = number of observations or samples used in CLEC
measurement
The modified z-tests wil be applied to reported parity measurements that contain
more than 30 data points.
In calculating the difference between Qwest and CLEC performance, the above
formula applies when a larger Qwest value indicates a better level of performance. In
cases where a smaller Qwest value indicates a higher level of performance, the order
is reversed, Le., MCLEC - MOWEST.
4.3.1 For parity measurements where the number of data points is 30 or less,
Qwest wil apply a permutation test to test for statistical significance. Permutation
analysis wil be applied to calculate the z-statistic using the following logic:
Calculate the modified z-statistic for the actual arrangement of the data
Pool and mix the CLEC and Qwest data sets
Perform the following 1000 times:
Randomly subdivide the pooled data sets into two pools, one the same
size as the original CLEC data set (nCLEC) and one reflecting the
remaining data points, and one reflecting the remaining data points,
(which is equal to the size of the original Qwest data set or nOWEST).
Compute and store the modified z-test score (Zs) for this sample.
Count the number of times the z-statistic for a permutation of the data is
greater than the actual modified z-statistic
Compute the fraction of permutations for which the statistic for the rearranged
data is greater than the statistic for the actual samples
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 5-
Exhibit K
If the fraction is greater than a, the significance level ofthe test, the hypothesis of no
difference is not rejected, and the test is passed. The a shall be .05 when the critical
z value is 1.645 and .15 when the critical z value is 1.04.
5.0 Critical Z-Value
5.1 The following table shall be used to determine the critical z-value that is
referred to in section 6.0. It is based on the monthly business volume of the GLEC
for the particular performance measurements for which statistic testing is being
performed.
TABLE 1: CRITICAL Z-VALUE
CLEC volume LIS Trunks,UDITs,All Other
(Sample size)Resale, UBL-DS1 and DS-
3
1-10 1.04*1.645
11-150 1.645 1.645
151-300 2.0 2.0
301-600 2.7 2.7
601-3000 3.7 3.7
3001 and above 4.3 4.3
* The 1.04 applies for individual month testing for performance measurements
involving LIS trunks and DS-1 and DS-3 that are UDITs, Resale, or Unbundled
Loops. The performance measurements are OP-3d/e, OP-4d/e, OP-5a, OP-6-4/5,
MR-5a/b, MR-7d/e, and MR-8.
For purposes of determining consecutive month misses, 1.645 shall be used. Where
performance measurements disaggregate to zone 1 and zone 2, the zones shall be
combined for purposes of statistical testing.
6.0 Tier 1 Payments to CLEC
6.1 Tier 1 payments to CLEC shall be made solely for the performance
measurements designated as Tier 1 on Attachment 1. The payment amount for non-
conforming service varies depending upon the designation of performance
measurements as High, Medium, and Low and the duration of the non-conforming
service condition as described below. Non-conforming service is defined in section
4.0.
6.1.1 Determination of Non-Conforming Measurements: The number of
performance measurements that. are determined to be non-conforming and,
therefore, eligible for Tier 1 payments, are limited according to the critical z-value
shown in Table 1, section 5.0. The critical z-values are the statistical standard that
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 6-
Exhibit K
determines for each CLEC performance measurement whether Qwest has met
parity. The critical z-value is selected from Table 1 according to the monthly CLEC
volume for the performance measurement. For instance, if the CLEC sample size for
that month is 100, the critical z-value is 1.645 for the statistical testing of that parity
performance measurement.
6.2 Determination of the Amount of Payment: Tier 1 payments to CLEC, except
as provided for in sections 6.2.3, 6.3 and 10.0, are calculated and paid monthly
based on the number of performance measurements exceeding the critical z-value.
Payments will be made on either a per occurrence or per measurement basis,
depending upon the performance measurement, using the dollar amounts specified
in Table 2 below. The dollar amounts vary depending upon whether the performance
measurement is designated High, Medium, or Low and escalate depending upon the
number of consecutive months for which Qwest has not met the standard for the
particular measurement.
6.2.1 The escalation of payments for consecutive months of non-conforming
service wil be matched month for month with de-escalation of payments for every
month of conforming service. For example, if Qwest has four consecutive monthly
"misses" it wil make payments that escalate from month 1 to month 4 as shown in
Table 2. If, in the next month, service meets the standard, Qwest makes no
payment. A payment "indicatot' de..escalates down from month 4 to month 3. If
Qwest misses the following month, it wil make payment at the month 3 level of Table
2 because that is where the payment "indicatot' presently sits. If Qwest misses again
the following month, it will make payments that escalate back to the month 4 leveL.
The payment level wil de-escalate back to the original month 1 level only upon
conforming service suffcient to move the payment "indicatot' back to the month 1
leveL.
6.2.2 For those performance measurements listed on Attachment 2 as
"Performance Measurements Subject to Per Measurement Caps," excluding BI..3A,
payment to a CLEC in a single month shall not exceed the amount listed in Table 2
below for the "Per Measurement Cap" category. For those performance
measurements listed on Attachment 2 as "Performance Measurements Subject to
Per Measurement Payments," if any should be added at a later time, payment to a
CLEC wil be the amount set forth in Table 2 below under the section labeled "Per
Measurement Cap."
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 7-
Exhibit K
TABLE 2: TIER 1 PAYMENTS TO CLEC
Per Occurrence
Measurement Month 1 Month 2 Month 3 Month 4 Month 5 Month 6 Each
Group following
month
after
Month 6
add
Hiah $150 $250 $500 $600 $700 $800 $100
Medium $ 75 $150 $300 $400 $500 $600 $100
Low $ 25 $ 50 $100 $200 $300 $400 $100
Per Measurement
Cap
Measurement Month 1 Month 2 Month 3 Month 4 Month 5 Month 6 Each
Group following
month
after
Month 6
add
Hiah $25,000 $50,000 $75,000 $100,000 $125,000 $150,000 $25,000
Medium $10,000 $20,000 $30,000 $ 40,000 $ 50,000 $ 60,000 $10,000
Low $ 5,000 $10,000 $15,000 $ 20,000 $ 25,000 $ 30,000 $ 5,000
6.2.3 For the BI-3A performance measurement, the dollar payment amount for non-
conforming performance varies depending upon the Total Bil Adjustment Amount for
the CLEC. The payment amount is calculated using Table 2A below by multiplying
the per occurrence amount times the number of occurrences based on the Total Bil
Adjustment Amount,1 capped at the amount shown in the table for that Total Bil
Adjustment Amount. The escalation of payments for consecutive months as stated in
section 6.2.1 does not apply.
TABLE 2A: TIER 1 PAYMENTS TO CLECS FOR BI-3A
Total Bil Adjustment Per Occurrence Cap
Amount Amount
$0 - $0.99 $0 $0
$1 - $199.99 $1 $200
$200 - $999.99 $10 $5,000
$1,000 - $9,999.99 $10 $10,000
$10,000 - $49,999.99 $15 $15,000
$50,000 - $99,999.99 $20 $20,000
$100,000 and over $25 $25,000
6.3 For collocation, CP-2 and CP-4 performance measurements shall be relied
upon for delineation of collocation business rules. For purposes of calculating Tier 1
payments, collocation jobs and collocation feasibilty studies that are later than the
1 Tota Bil Adjustment Amount is determed by subtrctig the BI-3A numerator from the BI-3A denominator
as dermed in the BI-3 PID formula.
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26, 2007
- 8-
Exhibit K
due date wil have a per day payment applied according to Table 3. The per day
payment wil be applied to any collocation job in which the feasibilty study is provided
or the collocation installation is completed later than the scheduled date. The
calculation of the payment amount wil be performed by applying the per day
payment amounts as specified in Table 3. Thus, for days 1 through 10, the payment
is $150 per day. For days 11 through 20, the payment is $300 per day and so on.
TABLE 3: TIER.1 COLLOCATION PAYMENTS TO CLECS
Days Late Completion Date Feasibility Study
1 to 10 days $150/day $45/day
11 to 20 days $300/day $90/day
21 to 30 days $450/day $135/day
31 to 40 days $600/day $180/day
More than 40 days $1,000/day $300/day
6.4 A minimum payment calculation shall be performed by Qwest at the end of
each year for each CLEC with annual order volumes of no more than 1,200. The
payment shall be calculated by adding the applicable minimum payment amount in
Table 4 below for each month in which at least one payment was due to the CLEC.
To the extent that the actual CLEC payment for the year is less than the product of
the preceding calculation, Qwest shall make an additional payment equal to the
difference.
TABLE 4: MINIMUM PAYMENTS TO CLECS
Minimum Payment
Total Monthly Payment:Amount:
Less than $200 $ 0
Between $200 and $800 $1,500
Between $801 and $1,400 $ 2,000
Over $1,400 $ 2,500
7.0 Tier 2 Payments to the State
7.1 Payments to the State shall be limited to the performance measurements
designated in section 7.4 for Tier 2 per measurement payments and in Attachment 1
for per occurrence payments and which have at least 10 data points each month for
the period payments are being calculated. Similar to the Tier 1 structure, Tier 2
measurements are categorized as High, Medium, and Low and the amount of
payments for non-conformance varies according to this categorization.
7.2 Determination of Non-Conforming Measurements: The determination of non-
conformance wil be based upon the aggregate of all CLEC data for each Tier 2
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 9-
Exhibit K
performance measurement. Non-conforming service is defined in section 4.2 (for
parity measurements) and 4.3 (for benchmark measurements), except that a 1.645
critical z-value shall be used for Tier 2 parity measurements that have Tier 1
counterparts. The critical z-value is the statistical standard that determines for each
performance measurement whether Owest has met parity.
7.3 Determination of the Amount of Payment: Except as provided in section 7.4,
Tier 2 payments are calculated and paid monthly based on the number of
performance measurements failng performance standards for a third consecutive
month, or if two out of three consecutive months in the 12 month period have been
missed, the second consecutive month for Tier 2 measurements with Tier 1
counterparts. For Tier 2 measurements that do not have Tier 1 counterparts,
payments are calculated and paid monthly based on the number of performance
measurements exceeding the critical z-values, identified in section 5.1, in any single
month. Payment wil be made on either a per occurrence or per measurement basis,
whichever is applicable to the performance measurement, using the dollar amounts
specified in Table 5 or Table 6 below. Except as provided in section 7.4, the dollar
amounts vary depending upon whether the performance measurement is designated
High, Medium, or Low.
7.3.1 For those Tier 2 measurements listed on Attachment 2 as "Performance
Measurements Subject to Per Measurement Caps," payment to the State in a single
month shall not exceed the amount listed in Table 5 for the "Per Measurement Cap"
category.
TABLE 5: TIER 2 PAYMENTS TO STATE FUNDS
Per Occurrence
Measurement Group
High $500
Medium $300
Low $200
Per Me t Casuremenap
Measurement Group
High $75,000
Medium $30,000
Low $20,000
7.4 Performance Measurements Subject to Per Measurement Payment: The
following Tier 2 performance measurements shall have their performance results
measured on a region-wide (14 state) basis. Failure to meet the performance
standard, therefore, wil result in a per measurement payment in each of the Owest
in-region 14 states adopting this PAP. The performance measurements are:
GA-1: Gateway Availabilty -IMA-GUI
GA-2: Gateway Availabilty -IMA-EDI
GA-3: Gateway Availabilty - EB-TA
GA-4: System Availabilty - EXACT
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26, 2007
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Exhibit K
GA-6: Gateway Availabilty - GUI-Repair
PO-1: Pre-Order/Order Response Times
OP-2: Call Answered within Twenty Seconds -Interconnect Provisioning
Center
MR-2: Calls Answered within Twenty Seconds -'Interconnect Repair Center
GA-1 has two sub-measurements: GA-1A, and GA-1 D. PO-1 shall have two sub-
measurements: PO-1A and PO-18. PO-1A and PO-18 shall have their transaction
types aggregated together.
For these measurements, Qwest wil make a Tier 2 payment based upon monthly
performance results according to Table 6: Tier 2 Per Measurement Payments to
State Funds.
TABLE 6: TIER 2 PER MEASUREMENT PAYMENTS TO STATE FUNDS
Measurement Performance State Payment 14 State Payment
GA-1,2,3,4,6 1% or lower $1,000 $14,000
::1% to 3%$10,000 $140,000
::3% to 5%$20,000 $280,000
::5%$30,000 $420,000
PO-1 2 sec. or less $1,000 $14,000
::2 sec.to 5 $5,000 $70,000
sec.
::5 sec. to 10 $10,000 $140,000
sec.
::10 sec.$15,000 $210,000
OP-2/MR-2 1% or lower $1,000 $14,000
::1% to 3%$5,000 $70,000
::3% to 5%$10,000 $140,000
::5%$15,000 $210,000.
8.0 Step by Step Calculation of Monthly Tier 1 Payments to CLEC
8.1 Application of the Critical Z-Values: Qwest shall identify the Tier 1 parity
performance measurements that measure the service provided to CLEC by Qwest for
the month in question and the critical z-value from Table 1 in section 5.0 that shall be
used for purposes of statistical testing for each particular performance measurement.
The statistical testing procedures described in section 4.0 shall be applied. For the
purpose of determining the critical z-values, each disaggregated category of a
performance measurement is treated as a separate sub-measurement. The critical
z-value to be applied is determined by the CLEC volume at each level of
disaggregation or sub-measurement.
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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Exhibit K
8.2 Performance Measurements for which Tier 1 Payment is Per Occurrence:
8.2.1 Performance Measurements that are Averages or Means:
8.2.1.1 Step 1: For each performance measurement, the average or the mean that
would yield the critical z-value shall be calculated. The same denominator as the one
used in calculating the z-statistic for the measurement shall be used. (For
benchmark measurements, the benchmark value shall be used.)
8.2.1.2 Step 2: The percentage differences between the actual averages and the
calculated averages shall be calculated. The calculation is % diff = (CLEC result -
Calculated Value)/Calculated Value. The percent difference shall be capped at a
maximum of 100%. In all calculations of percent differences in sections 8.0 and 9.0,
the calculated percent differences is capped at 100%.
8.2.1.2 Step 3: For each performance measurement, the total number of data points
shall be multiplied by the percentage calculated in the previous step and the per
occurrence dollar amounts from the Tier 1 Payment Table shall determine the
payment to the CLEC for each non-conforming performance measurement.
8.2.2 Performance Measurements that are Percentages:
8.2.2.1 Step 1: For each performance measurement, the percentage that would yield
the critical z-value shall be calculated. The same denominator as the one used in
calculating the z- statistic for the measurement shall be used. (For benchmark
measurements, the benchmark value shall be used.)
8.2.2.2 Step 2: The difference between the actual percentages for the CLEC and the
calculated percentages shall be determined.
8.2.2.3 Step 3: For each performance measurement, the total number of data points
shall be multiplied by the difference in percentage calculated in the previous step,
and the per occurrence dollar amount taken from the Tier 1 Payment Table, to
determine the payment to the CLEC for each non-conforming performance
measurement.
8.2.3 Performance Measurements that are Ratios or Proportions:
8.2.3.1 Step 1: For each performance measurement the ratio that would yield the
critical z-value shall be calculated. The same denominator as the one used in
calculating the z-statistic for the measurement shall be used. (For benchmark
measurements, the benchmark value shall be used.)
8.2.3.2 Step 2: The absolute difference between the actual rate for the CLEC and
the calculated rate shall be determined.
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26, 2007
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Exhibit K
8.2.3.3 Step 3: For each performance measurement, the total number of data points
shall be multiplied by the difference calculated in the previous step, and the per
occurrence dollar amount taken from the Tier 1 Payment Table, to determine the
payment to the CLEC for each non-conforming performance measurement.
8.3 Performance Measurements for which Tier 1 Payment is Per Measure:
8.3.1 For each performance measurement where Qwest fails to meet the standard,
the payment to the CLEC shall be the dollar amount shown on the "per measure"
portion of Table 2: Tier 1 Payments to CLEC.
9.0 Step by Step Calculation of Monthly Tier 2 Payments to State Funds
9.1.1 Application of the Critical Z-Value: Qwest shall identify the Tier 2 parity
performance measurements that measure the service provided by Qwest to all
CLECs for the month in question. The statistical testing procedures described in
section 4.0 shall be applied, except that a 1.645 critical z-value shall be used for Tier
2 parity measurements that have Tier 1 counterparts. For Tier 2 parity
measurements that do not have Tier 1 counterparts, the statistical testing procedures
described section 4.0 shall be applied using the critical z-values identified in section
5.1.
9.1.2 To determine if Tier 2 payments for performance measurements listed on
Attachment 1 shall be made in the current month, the following shall be determined.
For Tier 2 measurements that have Tier 1 counterparts, it shall be determined
whether Qwest missed the performance standard for three consecutive months, or if
Qwest has missed the standard in any two out of three consecutive months for the 12
month period and for an additional two consecutive months. For Tier 2
measurements that do not have Tier 1 counterparts, it shall be determined whether
Qwest missed the performance standard for a single month. If any of these
conditions are met and there are at least 10 data points for the measurement in each
month, a Tier 2 payment wil be calculated and paid as described below and wil
continue in each succeeding month until Qwests performance meets the applicable
standard. For Tier 2 measures that have Tier 1 counterparts, the most recent three
months of nonconforming performance data that results in payment liabilty shall be
averaged to determine payment.
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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Exhibit K
9.2 Performance Measurements for which Tier 2 Payment is Per Occurrence:
9.2.1 Performance Measurements that are Averages or Means:
9.2.1.1 Step 1: The monthly average or the mean for each performance
measurement that would yield the critical z-value for each month shall be calculated.
The same denominator as the one used in calculating the z-statistic for the
measurement shall be used. (For benchmark measurements, the benchmark value
shall be used.)
9.2.1.2 Step 2: The percentage difference between the actual averages and the
calculated averages for the relevant month(s) shall be calculated. The calculation
for parity measurements is % diff = (actual average - calculated average)/calculated
average. The percent difference shall be capped at a maximum of 100%. In all
calculations of percent differences in section 8.0 and section 9.0, the calculated
percent difference is capped at 100%.
9.2.1.3 Step 3: For each performance measurement, the total number of data points
for the relevant month(s) shall be multiplied by the percentage calculated in the
previous step. The amount (average amount, if more than one month) (rounded to
the nearest integer) is then multiplied by the result of the per occurrence dollar
amount taken from the Tier 2 Payment Table to determine the payment to the State
for each non-conforming performance measurement.
9.3 Performance Measurements that are Percentages:
9.3.1 Step 1: For each performance measurement, the monthly percentage that
would yield the critical z-value for each month shall be calculated. The same
denominator as the one used in calculating the z-statistic for the measurement shall
be used. (For benchmark measurements, the benchmark value shall be used.)
9.3.1.2 Step 2: The difference between the actual percentages and the calculated
percentages for the relevant month(s) shall be calculated. The calculation for parity
measurement is diff = (CLEC result - calculated percentage). This formula shall be
applicable where a high value is indicative of poor performance. The formula shall be
reversed where high performance is indicative of good performance.
9.3.1.3 Step 3: For each performance measurement, the total number of data points
for the relevant month(s) shall be multiplied by the difference in percentage
calculated in the previous step. The amount (average amount, if morè than one
month)(rounded to the nearest integer) is then multiplied by the result of the per
occurrence dollar amounts taken from the Tier 2 Payment Table to determine the
payment to the State.
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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Exhibit K
9.4 Performance Measurements that are Ratios or Proportions:
9.4.1 Step 1: For each performance measurement, the ratio that would yield the
critical z-value for each month shall be calculated. The same denominator as the
one used in calculating the z-statistic for the measurement shall be used. (For
benchmark measurements, the benchmark value shall be used.)
9.4.1.1 Step 2: The difference between the actual rate for the GLEG and the
calculated rate for the relevant month(s) shall be calculated. The calculation is: diff =
(GLEG rate - calculated rate). This formula shall apply where a high value isindicative of poor performance. The formula shall be reversed where high
performance is indicative of good performance.
9.4.1.2 Step 3: For each performance measurement, the total number of data points
shall be multiplied by the difference calculated in the previous step for each month.
The amount (average amount, if more than one month)(rounded to the nearest
integer) is then multiplied by the result of the per occurrence dollar amounts taken
from the Tier 2 Payment Table to determine the payment to the State.
9.5 Performance Measurements for which Tier 2 Payment is Per Measure:
9.5.1 For each performance measurement where Qwest fails to meet the standard,
the payment to the State Fund shall be the dollar amount shown on the "per
measure" portion of the Tier 2 Payment Table.
10.0 Low Volume, Developing Markets
10.1 For certain qualifying performance standards, if the aggregate monthly
volumes of GLEGs participating in the PAP are more than 10, but less than 100,
Qwest wil make Tier 1 payments to GLEGs for failure to meet the parity or
benchmark standard for the qualifying performance sub-measurements. The
qualifying sub-measurements are the ADSL qualified loop product disaggregations of
OP-3, OP-4, OP-5a, MR-3, MR-5, MR-7, and MR-8. If the aggregate monthly GLEG
volume is greater than 100, the provisions of this section shall not apply to the
qualifying performance sub,:measurement.
1 0.2 The determination of whether Qwest has met the parity or benchmark
standards wil be made using aggregate volumes of GLEGs participating in the PAP.
In the event Qwest does not meet the applicable performance standards, a total
payment to affected CLEGs wil be determined in accordance with the high, medium,
low designation for each performance measurement (see Attachment 1) and as
described in section 8.0, except that GLEG aggregate volumes wil be used. In the
event the calculated total payment amount to GLECs is less than $5,000, a minimum
payment of $5,000 shall be made. The resulting total payment amount to GLEGs wil
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 15-
Exhibit K
be apportioned to the affected CLECs based upon each CLEC's relative share of the
number of total service misses.
10.3 At the six (6)-month reviews, Qwest wil consider adding to the above list of
qualifying performance sub-measurements, new products disaggregation
representing new modes of CLEC entry into developing markets.
11.0 Payment
11.1 Payments to CLEC, the State, or the Special Fund shall be made one month
following the due date of the performance measurement report for the month for
which payment is being made. Qwest wil pay interest on any late payment and
underpayment at the prime rate as reported in the Wall Street Journal. On any
overpayment, Qwest is allowed to offset future payments by the amount of the
overpayment plus interest at the prime rate.
11.2 Payment to CLEC shall be made via bil credits. Bil credits shall be identified
on a summary format substantially similar to that distributed as a prototype to the
CLECs and the Commissions. To the extent that a monthly payment owed to CLEC
under this PAP exceeds the amount owed to Qwest by CLEC on a monthly bil,
Qwest wil issue a check or wire transfer to CLEC in the amount of the overage.
Payment to the State shall be made via check or wire transfer.
11 .3 A Special Fund shall be created for the purpose of payment of an
independent auditor and audit costs as specified in section 15.0 and payment of
other expenses incurred by the participating Commissions in the regional
administration of the PAP.
11.3.1 Qwest shall establish the Special Fund as an interest bearing escrow account
upon the first FCC section 271 approval of the PAP applicable to a participating state
Commission. Qwest shall be authorized to withhold and deposit into the Special
Fund one-half of all Tier 2 payments. The cost of the escrow account wil be paid
for from account funds.
11.3.2 Commissions participating in the Special Fund shall appoint a person
designated to administer and authorize disbursement of funds. All claims against the
fund shall be presented to the Commissions' designates and shall be the
responsibilty of the participating Commissions.
11.3.3 Qwest shall advance funds to meet initial claims against the Special Fund to
the extent Tier 2 contributions are insuffcient. Such funds shall not exceed $500,000
and shall be reduced appropriately in the event that at least six states in which the
QPAP is in effect do not agree to participate in the Special Fund. Upon a
determination by the participating Commissions that the Special Fund has become
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 16-
Exhibit K
self-sustaining or is no longer required, Qwest shall be allowed to recover any such
advances plus interest at the rate that the escrow account would have earned.
11.3.4 Upon the execution of a memorandum of understanding with the Idaho
Commission, Qwest shall establish an Idaho Discretionary Fund as a separate
interest bearing escrow account. Qwest shall deposit into the Discretionary Fund the
remaining balance of Tier 2 payments after disbursement of Tier 2 payments to the
Special Fund pursuant to section 13.3.1. The Commission shall appoint a person
designated to administer and authorize disbursements of funds from the
Discretionary Fund. Disbursements from the Discretionary Fund shall be limited to
competitively neutral Idaho telecommunications initiatives. The costs of the
Discretionary Fund wil paid for from the account's funds.
12.0 Cap on Tier 1 and Tier 2 Payments
12.1 There shall be a cap on the total payments made by Qwest for a 12 month
period beginning with the effective date of the PAP for the State of Idaho. The
annual cap for the State of Idaho shall be 36% of ARMIS Net Return, recalculated
each year based upon the prior yeats Idaho ARMIS results , subject to any
applicable adjustment permitted pursuant to section 12.2. Qwest shall submit to the
Commission the calculation of each yeats cap no later than 30 days after submission
of ARMIS results to the FCC. CLEC agrees that this amount constitutes a maximum
annual cap that shall apply to the aggregate total of Tier 1 liquidated damages,
including any such damages paid pursuant to this Agreement, any other
interconnection agreement, or any other payments made for the same underlying
activity or omission under any other contract, order or rule and Tier 2 assessments or
payments made by Qwest for the same underlying activity or omission under any
other contract, order or rule.
12.2 The 36% annual cap may be increased to 44% or decreased to 30% of
ARMIS Net Return as follows:
12.2.1 An increase in the cap of a maximum of 4 percentage points at anyone time
(Le., first to 40 percent) shall occur upon order by the Commission if the cap has
been exceeded for any consecutive period of 24 months by that same 4 percent or
more, provided that: (a) the Commission has determined that the preponderance of
the evidence shows Qwest could have remained beneath the cap through
reasonable and prudent effort, and (b) the Commission has made that determination
after having available to it on the record the results of audits and root cause
analyses, and provided an opportunity for Qwest to be heard.
12.2.2 A decrease in the cap of a maximum of 4 percentage points at anyone time
shall occur upon order by the Commission after performance for any consecutive
period of 24 months in which total payments are 8 or more percentage points below
the cap amount, provided that: (a) the Commission has determined that the
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 17-
Exhibit K
preponderance of the evidence shows the performance results underlying those
payments results from an adequate Qwest commitment to meeting its responsibilties
to provide adequate wholesale service and to keeping open its local markets and (b)
the Commission shall have made that determination after providing all interested
parties an opportunity to be heard.
12.2.3 The provisions of 12.2.1 and 12.2.2 shall be in effect for the next 24 month
period commencing with the end of the 24 month period upon which the
Commission's order is based.
12.3 If the annual cap is reached, each CLEC shall, as of the end of the year, be
entitled to receive the same percentage of its total calculated Tier 1 payments. In
order to preserve the operation of the annual cap, the percentage equalization shall
take place as follows:
12.3.1 The amount by which any month's total year-to-date Tier 1 and Tier 2
payments exceeds the cumulative monthly cap (defined as 1/12th of the annual cap
times the cumulative number of months to date) shall be calculated and apportioned
between Tier 1 and Tier 2 according to the percentage that each bore of total
payments for the year-to-date. The Tier 1 apportionment resulting of this calculation
shall be known as the "Tracking Account."
12.3.2 The Tier 1 apportionment shall be debited against the monthly payment due
to each CLEC, by applying to the year-to-date payments received by each the
percentage necessary to generate the required total Tier 1 amount.
12.3.3 The Tracking Amount shall be apportioned among all CLECs so as to provide
each with payments equal in percentage of its total year to date Tier 1 payment
calculations.
12.3.4 This calculation shall take place in the first month that the year-to-date total
Tier 1 and Tier 2 payments are expected to exceed the cumulative monthly cap and
for each month of that year thereafter. Qwest shall recover any debited amounts by
reducing payments due to any CLEC for that month and any succeeding months, as
necessary.
13.0 Limitations
13.1 The PAP shall not become available in the State unless and until Qwest
receives effective section 271 authority from the FCC for that State.
13.2 Qwest wil not be liable for Tier 1 payments to CLEC in an FCC approved
state until the Commission has approved an interconnection agreement between
CLEC and Qwest which adopts the provisions of this PAP.
Qwest Idaho SGAT Third Revised; Sixth Amended Exhibit K, June 26, 2007
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Exhibit K
13.3 Qwest shall not be obligated to make Tier 1 or Tier 2 payments for any
measurement if and to the extent that non-conformance for that measurement was
the result of any of the following: 1) with respect to performance measurements with
a benchmark standard, a Force Majeure event as defined in section 5.7 of the SGAT.
Qwest wil provide notice of the occurrence of a Force Majeure event within 72 hours
of the time Qwest learns of the event or within a reasonable time frame that Qwest
should have learned of it; 2) an act or omission by a CLEC that is contrary to any of
its obligations under its interconnection agreement with Qwest or under federal or
state law; an act or omission by CLEC that is in bad faith. Examples of bad faith
conduct include, but are not limited to: unreasonably holding service orders and/or
applications, "dumping" orders or applications in unreasonably large batches,
"dumping" orders or applications at or near the close of a business day, on a Friday
evening or prior to a holiday, and failng to provide timely forecasts to Qwest for
services or facilties when such forecasts are explicitly required by the SGAT; 3)
problems associated with third-party systems or equipment, which could not have
been avoided by Qwest in the exercise of reasonable dilgence, provided, however,
that this third party exclusion wil not be raised in the State more than three times
within a calendar year. If a Force Majeure event or other excusing event recognized
in this section merely suspends Qwests abilty to timely perform an activity subject to
a performance measurement that is an interval measure, the applicable time frame in
which Qwests compliance with the parity or benchmark criterion is measured wil be
extended on an hour-for-hour or day-for-day basis, as applicable, equal to the
duration of the excusing event.
13.3.1 Qwest wil not be excused from Tier 1 or Tier 2 payments for any reason
except as described in Section 13.0. Qwest wil have the burden of demonstrating
that its non-conformance with the performance measurement was excused on one of
the grounds described in this PAP. A party may petition the Commission to require
Qwest to deposit disputed payments into an escrow account when the requesting
party can show cause, such as grounds provided in the Uniform Commercial Code
for cases of commercial uncertainty.
13.3.2 Notwithstanding any other provision of section 13 of this QPAP, Qwest shall
not be excused for failng to provide such performance that Qwest could reasonably
have been expected to deliver assuming that it had designed, implemented, staffed,
provisioned, and otherwise provided for resources reasonably required to meet
foreseeable volumes and patterns of demands upon its resources by CLECs.
13.4 Qwests agreement to implement these enforcement terms, and specifically
its agreement to pay any "liquidated damages" or "assessments" hereunder, wil not
be considered as an admission against interest or an admission of liabilty in any
legal, regulatory, or other proceeding relating in whole or in part to the same
performance.
13.4.1 CLEC may not use: 1) the existence of this enforcement plan; or 2) Qwests
payment of Tier -1 "liquidated damages" or Tier 2 "assessments" as evidence that
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
- 19-
Exhibit K
Qwest has discriminated in the provision of any facilities or services under Sections
251 or 252, or has violated any state or federal law or regulation. Qwests conduct
underlying its performance measures, however are not made inadmissible by its
terms.
13.4.2 By accepting this performance remedy plan, CLEC agrees that Qwests
performance with respect to this remedy plan may not be used as an admission of
liabilty or culpabilty for a violation of any state or federal law or regulation. (Nothing
herein is intended to preclude Qwest from introducing evidence of any Tier 1
"liquidated damages" under these provisions for the purpose of offsetting the
payment against any other damages or payments a CLEC might recover.) The terms
of this paragraph do not apply to any proceeding before the Commission or the FCC
to determine whether Qwest has met or continues to meet the requirements of
section 271 of the Act.
13.5 By incorporating these liquidated damages terms into the PAP, Qwest and
CLEC accepting this PAP agree that proof of damages from any non-conforming
performance measurement would be difficult to ascertain and, therefore, liquidated
damages are a reasonable approximation of any contractual damages that may
result from a non-conforming performance measurement. Qwest and CLEC further
agree that Tier 1 payments made pursuant to this PAP are not intended to be a
penalty. The application of the assessments and damages provided for herein is not
intended to foreclose other noncontractual legal and non-contractual regulatory
claims and remedies that may be available to a CLEC.
13.6 This PAP contains a comprehensive set of performance measurements,
statistical methodologies, and payment mechanisms that are designed to function
together, and only together, as an integrated whole. To elect the PAP, CLEC must
adopt the PAP in its entirety, in its interconnection agreement with Qwest. By
electing remedies under the PAP, CLEC waives any causes of action based on a
contractual theory of liabilty, and any right of recovery under any other theory of
liabilty (including but not limited to a state utilty regulatory commission or Federal
Communications Commission rule or order) to the extent such recovery is related to
harm compensable under a contractual theory of liabilty (even though it is sought
through a noncontractual claim, theory, or cause of action).
13.7 If for any reason a CLEC agreeing to this QPAP is awarded compensation for
the same harm for which it received payment under the QPAP , the court or other
adjudicatory body hearing such a claim may offset the damages resulting from such
claim against payments made for the same harm.
13.8 Qwest shall not be liable for both Tier 2 payments under the PAP and
assessments, sanctions, or other payments for the same underlying activity or
omission pursuant to any Commission order or service quality rules.
13.9 Whenever a Qwest Tier 1 payment to an individual CLEC exceeds $3 milion
in a month, Qwest may commence a proceeding to demonstrate why it should not be
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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Exhibit K
required to pay any amount in excess of the $3 milion. Upon timely commencement
of the proceeding, Qwest must pay the balance of payments owed in excess of $3
milion into escrow, to be held by a third-part pending the outcome of the
proceeding. To invoke these escrow provisions, Qwest must file, not later than the
due date of the Tier 1 payments, its application. Qwest wil have the burden of proof
to demonstrate why, under the circumstances, it would be unjust to require it to make
the payments in excess of $3 milion. If Qwest reports non-conforming performance
to CLEC for three consecutive months on 20% or more of the measurements
reported to CLEC and has incurred no more than $1 milion in liabilty to CLEC, then
CLEC may commence a similar proceeding. In any such proceeding CLEC wil have
the burden of proof to demonstrate why, under the circumstances, justice requires
Qwest to make payments in excess of the amount calculated pursuant to the terms of
the PAP. The disputes identified in this section shall be resolved in a manner
specified in the Dispute Resolution section of the SGAT with the CLEC.
14.0 Reporting
14.1 Upon receiving effective section 271 authority from the FCC for a state,
Qwest wil provide CLEC that has an approved interconnection agreement with
Qwest, a monthly report of Qwests performance for the measurements identified in
the PAP by the last day of the month following the month for which performance
results are being reported. However, Qwest shall have a grace period of five
business days, so that Qwest shall not be deemed out of compliance with its
reporting obligations before the expiration of the five business day grace period.
Qwest wil collect, analyze, and report performance data for the measurements listed
on Attachment 1 in accordance with the most recent version of the PIDs. Upon
CLEC's request, data files of the CLEC's raw data, or any subset thereof, wil be
transmitted, without charge, to CLEC in a mutually acceptable format, protocol, and
transmission medium.
14.2 Qwest wil also provide the Commission a monthly report of aggregate CLEC
performance results pursuant to the PAP by the last day of the month following the
month for which performance results are being reported. However, Qwest shall have
a grace period of five business days, so that Qwest shall not be deemed out of
compliance with its. reporting obligations before the expiration of the five business day
grace period. Individual CLEC reports of participating CLECs wil also be available to
the Commission upon request. By accepting this PAP, CLEC consents to Qwest
providing CLEC's report and raw data to the State Commission. Pursuant to the
terms of an order of the Commission, Qwest may provide CLEC-specific data that
relates to the PAP, provided that Qwest shall first initiate any procedures necessary
to protect the confidentiality and to prevent the public release of the information
pending any applicable Commission procedures and further provided that Qwest
provides such notice as the Commission directs to the CLEC involved, in order to
allow it to prosecute such procedures to their completion. Data files of participating
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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Exhibit K
CLEC raw data, or any subset thereof, wil be transmitted, without charge, to the
Commission in a mutually acceptable format, protocol, and transmission form.
14.3 In the event Qwest does not provide CLEC and the Commission with a
monthly report by the last day of the month following the month for which
performance results are being reported, Qwest wil pay to the State a total of $500 for
each business day for which performance reports are 6 to 10 business days past the
due date; $1,000 for each business day for which performance reports are 11 to 15
business days past the due date; and $2,000 for each business day for which
performance results are more than 15 business days past the due date. If reports
are on time but are missing performance results, Qwest wil pay to the State a total of
one-fifth of the late report amount for each missing performance measurement,
subject to a cap of the full late report amount. These amounts represent the total
payments for omitting performance measurements or missing any report deadlines,
rather than a payment per report. Prior to the date of a payment for late reports,
Qwest may file a request for a waiver of the payment, which states the reasons for
the waiver. The Commission may grant the waiver, deny the waiver, or provide any
other relief that may be appropriate.
14.4 To the extent that Qwest recalculates payments made under this PAP, such
recalculation shall be limited to the preceding three years (measured from the later of
the provision of a monthly credit statement or payment due date). Qwest shall retain
sufficient records to demonstrate fully the basis for its calculations for long enough to
meet this potential recalculation obligation. CLEC verification or recalculation efforts
should be made reasonably contemporaneously with Qwest measurements. In any
event, Qwest shall maintain the records in a readily useable format for one year. For
the remaining two years, the records may be retained in archived format. Any
payment adjustments shall be subject to the interest rate provisions of section 11 .1.
15.0 Integrated Audit Program/Investigations of Penormance Results
15.1 Audits of the PAP shall be conducted in a two-year cycle under the auspices
of the participating Commissions in accordance with a detailed audit plan developed
by an independent auditor retained for a two-year period. The participating
Commissions shall select the independent auditor with input from Qwest and CLECs.
15.1.1 The participating Commissions shall form an oversight committee of
Commissioners who wil choose the independent auditor and approve the audit plan.
Any disputes as to the choice of auditor or the scope of the audit shall be resolved
through a vote of the chairs of the participating commissions pursuant to Section
15.1.4.
15.1.2 The audit plan shall be conducted over two years. The audit plan wil identify
the specific performance measurements to be audited, the specific tests to be
conducted, and the entity to conduct them. The audit plan wil give priority to auditing
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26, 2007
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Exhibit K
the higher risk areas identified in the ass report. The two-year cycle wil examine
risks likely to exist across that period and the past history of testing, in order to
determine what combination of high and more moderate areas of risk should be
examined during the two-year cycle. The first year of a two-year cycle wil
concentrate on areas most likely to require follow-up in the second year.
15.1.3 The audit plan shall be coordinated with other audit plans that may be
conducted by other state commissions so as to avoid duplication, shall not impede
Qwests abilty to comply with the other provisions of the PAP and should be of a
nature and scope that can be conducted in accordance with the reasonable course of
Qwests business operations.
15.1.4 Any dispute arising out of the audit plan, the conduct of the audit, or audit
results shall be resolved by the oversight committee of Commissioners. Decisions of
the oversight committee of Commissioners may be appealed to a committee of the
chairs of the participating Commissions.
15.2 Qwest may make management processes more accurate or more efficient to
perform without sacrificing accuracy. These changes are at Qwests discretion but
wil be reported to the independent auditor in quarterly meetings in which the auditor
may ask questions about changes made in the Qwest measurement regimen. The
meetings, which wil be limited to Qwest and the independent auditor, wil permit an
independent assessment of the materiality and propriety of any Qwest changes,
including, where necessary, testing of the change details by the independent auditor.
The information gathered by the independent auditor may be the basis for reports by
the independent auditor to the participating Commissions and, where the
Commissions deem it appropriate, to other participants.
15.3 In the event of a disagreement between Qwest and CLEC as to any issue
regarding the accuracy or integrity of data collected, generated, and reported
pursuant to the PAP, Qwest and the CLEC shall first consult with one another and
attempt in good faith to resolve the issue. If an issue is not resolved within 45 days
after a request for consultation,CLEC and Qwest may, upon a demonstration of good
cause, (e.g., evidence of material errors or discrepancies) request an independent
audit to be conducted, at the initiating party's expense. The independent auditor wil
assess the need for an audit based upon whether there exists a material deficiency in
the data or whether there exists an issue not otherwise addressed by the audit plan.
for the current cycle. The dispute resolution provision of section 18.0 is available to
any party questioning the independent auditor's decision to conduct or not conduct a
CLEC requested audit and the audit findings, should such an audit be conducted. An
audit may not proceed until dispute resolution is completed. Audit findings wil
include: (a) general applicabilty of findings and conclusions (Le., relevance to
CLECs or jurisdictions other than the ones causing test initiation), (b) magnitude of
any payment adjustments required and, (c) whether cost responsibilty should be
shifted based upon the materiality and clarity of any Qwest non-conformance with
measurement requirements (no pre-determined variance is appropriate, but should
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26, 2007
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Exhibit K
be based on the auditots professional judgment). CLEC may not request an audit of
data more than three years from the later of the provision of a monthly credit
statement or payment due date.
15.4 Expenses for the audit of the PAP and any other related expenses, except
that which may be assigned under section 15.3, shall be paid first from the Tier 2
funds in the Special Fund. For Idaho, the remainder of the audit expenses wil be
paid by Qwest.
15.5 Qwest wil investigate any second consecutive Tier 2 miss to determine the
cause of the miss and to identify the action needed in order to meet the standard set
forth in the performance measurements. To the extent an investigation determines
that a CLEC was responsible in whole or in part for the Tier 2 misses, Qwest shall
receive credit against future Tier 2 payments in an amount equal to the Tier 2
payments that should not have been made. The relevant portion of subsequent Tier
2 payments wil not be owed until any responsible CLEC problems are corrected. For
the purposes of this sub-section, Tier 1 performance measurements that have not
been designated as Tier 2 wil be aggregated and the aggregate results wil be
investigated pursuant to the terms of this Agreement.
16.0 Reviews
16. 1 Every six (6) months, beginning six months after the effective date of section
271 approval by the FCC for the state of Idaho, Qwest, CLECs, or the Idaho Public
Utilties Commission may initiate a review of the performance measurements to
determine whether measurements should be added, deleted, or modified; whether
the applicable benchmark standards should be modified or replaced by parity
standards; and whether to move a classification of a measurement to High, Medium,
or Low, Tier 1 or Tier 2. The criterion for reclassification of a measurement shall be
whether the actual volume of data points was less or greater than anticipated.
Criteria for review of performance measurements, other than for possible
reclassification, shall be whether there exists an omission or failure to capture
intended performance, and whether there is duplication of another measurement.
Any disputes regarding adding, deleting, or modifying performance measurements
shall be resolved pursuant to a proceeding before the Commission and subject to
judicial review. No new performance measurements shall be added to this PAP that
have not been subject to observation as diagnostic measurements for a period of 6
months. Any changes made at the six-month review pursuant to this section shall
apply to and modify this agreement between Qwest and CLEC, subject to a stay,
modification or reversal upon appeal or judicial review.
16.1.1 Notwithstanding section 16.1, if any agreements on adding, modifying or
deleting performance measurements as permitted by section 16.1 are reached
between Qwest and CLECs participating in an industry Regional Oversight
Committee (ROC) PID administration forum, those agreements shall be incorporated
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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Exhibit K
into the OPAP and modify the agreement between CLEC and Owest at any time
those agreements are submitted to the Commission, whether before or after a six-
month review.
16.1.2 For the first twelve months that any changes made pursuant to paragraphs
16.1 or 16.1.1 are in effect, Owests liabilty for such changes shall be limited to 10%
of the monthly payments that Owest would have made absent the effect of such
changes as a whole. This provision shall be referred as "the 10% payment collar."
Such payment limitation shall be accomplished by factoring the payments resulting
from the changes to ensure that such payments remain within 10% of the payments
Owest would have made absent such changes.
16.1.3 In the event that the Commission adds, modifies, or reclassifies a
performance measurement that has not been agreed upon in the ROC PID
administration forum process in 16.1.1, the 10% payment collar shall remain in effect
unless removed by the Commission pursuant to this section. If, after a minimum of 6
months of payments to a CLEC, Owests payments have been limited by the 10%
payment collar to 80% or less of what the total payments would have been absent
the collar for the preceding 6-month period, the Commission may, upon motion by an
affected CLEC, conduct a record proceeding to determine whether the 10% payment
collar should be removed from any such performance measure. The Commission
can prospectively remove the 10% collar for Tier 1 payments to affected CLEC(s) for
any such performance measure upon a demonstration through a record proceeding
and a Commission determination that the total payments to the CLEC(s) under the
OPAP were inadequate to compensate CLEC(s) for actual harm incurred during the
same period and upon a determination that such change is otherwise necessary and
appropriate and in the public interest.
16.1.4 Notwithstanding section 16.1, any part may submit a root cause analysis to
the Commission requesting removal of a PID or sub-measure from the PAP or
requesting exemption of a PID or sub-measure from the application of the trigger
mechanism for reinstatement or subsequent removaL. In the analysis and
recommendations concerning the root cause analysis, the Commission is to consider,
at a minimum, whether the root cause analysis provides evidence of no harm, the
same harm as covered by other PID measures, non-Owest related causes, or other
factors which directly relate to the harm or circumstances specific to the PID or sub-
measure being analyzed.
16.2 Two years after the effective date of the first FCC 271 approval of the PAP,
the participating Commissions may conduct a joint review by a independent third
party to examine the continuing effectiveness of the PAP as a means of inducing
compliant performance. This review shall not be used to open the PAP generally to
amendment, but would serve to assist Commissions in determining existing
conditions and reporting to the FCC on the continuing adequacy of the PAP to serve
its intended functions. The expense of the reviews shall be paid from the Special
Fund.
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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Exhibit K
16.3 Qwest wil make the PAP available for CLEC interconnection agreements
until such time as Qwest eliminates its Section 272 affliate. At that time, the
Commission and Qwest shall review the appropriateness of the PAP and whether its
continuation is necessary. However, in the event Qwest exits the interLATA market,
that State PAP shall be rescinded immediately.
17.0 Voluntary Penormance Assurance Plan
This PAP represents Qwests voluntary offer to provide performance assurance.
Nothing in the PAP or in any conclusion of non-conformance of Qwests service
performance with the standards defined in the PAP shall be construed to be, of itself,
non-conformance with the Act.
18.0 Dispute Resolution
For the purpose of resolving disputes over the meaning of the provisions of the PAP
and how they should be applied, the dispute resolution provisions of the SGAT,
section 5.18, shall apply whether the CLEC uses the SGATin its entirety or elects to
make the PAP part of its interconnection agreements (Le., the unique dispute
resolution provisions of interconnection agreements should not apply).
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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Exhibit K
Attachment 1: Tier 1 and Tier 2 Penormance Measurements Subject to Per Occurrence
Payment
Performance Measurement Tier 1 Payments Tier 2 Payments
Low Med High Low Med HiQh
GATEWAY
Timely OutaQe Resolution GA-7 X
PRE-ORDER/ORDERS
LSR Reiection Notice Interval PO-3a X
Firm Order Confirmations On Time PO-S X X
Work Completion Notification Timeliness PO-6D X
BillnQ Completion Notification Timeliness PO-7D X
Jeopardy Notice Interval PO-8 X
Timelv Jeooardy Notices PO-9 X
Release Notifications PO-16 X
(Expanded)-Manual Service Order PO-20 X
Accuracy
ORDERING AND PROVISIONING
Installation Commitments Met OP-39 X X
Installation Intervals OP-4c,g X X
New Service Quality OP-X X
Sag,bd,9
Delayed Days OP-6e,g X X
Number Portability Timeliness OP-8 X X
Coordinated Cuts On Time -Unbundled OP-13a X X
Looos
LNP Disconnect Timeliness OP-17 X X
MAINTENANCE AND REPAIR
Out of Service Cleared within 24 hours MR-39 X
All Troubles Cleared within 4 hours MR-Sg X
Mean time to Restore MR-X
6ag,bg,cg,
df,ef
Reoair Reoeat Reoort Rate MR-79 X X
Trouble Rate MR-8g X X
LNP Trouble Reports Cleared within MR-11 X X
Soecified Timeframes
BILLING
Time to Provide Recorded UsaQe Records BI-1 X X
BillinQ Accuracy-Adiustments for Errors BI-3 X
BillinQ Comoleteness BI-4 X X
NEnNORK PERFORMANCE
Trunk BlockinQ NI-1 X X
NXX Code Activation NP-1 X X
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26, 2007
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ExhibitK
a. PO-3 is limited to PO-3a-1, PO-3b-1, and PO-3c.
b. PO-6 is included with PO-7 as two "familes:" PO-6a/PO-7a and PO-6b/PO-7b. Measurements within
each family share a single payment opportunity with only the measurements with the highest payment being
paid.
c. OP-4 is included with OP-6 as five "families:" OP-4a/OP-6-1, OP-4b/OP-6-2, OP-4c/OP-6-3, OP-4d/OP-
6-4, and OP-4e/OP-6-5. Measurements within each family share a single payment opportunity with only the
measurement with the highest payment being paid.
d. Section 3.1.2 applies to OP-5b only if the number of orders with trouble in OP-5a is no more than one.
e. For purposes of the PAP, OP-6a and OP-6b wil be combined and treated as one. The combined OP-6
breaks down to OP-6-1 (within MSA), OP-6-2 (outside MSA), OP-6-3 (no dispatch), OP-6-4 (zone 1), and
OP-6-5 (zone 2).
f. Applicable only to xDSL-1 capable loops.
g. Excludes the following product disaggregations as applicable to this PID: Resale Centrex, Resale
Centrex 21, Resale DSO (non-designed), Resale DSO (designed), Resale DSO, E911/911 Trunks, Resale
Frame Relay, Resale Basic ISDN (non-designed), Resale Basic ISDN (designed), Resale Basic ISDN,
Resale Primary ISDN (non-designed), Resale Primary ISDN (designed), Resale Primary ISDN, Resale PBX
(non-designed), Resale PBX (designed), Resale PBX, Sub-Loop Unbundling, UNE-P (POTS), UNE-P
(Centrex), and UNE-P (Centrex 21).
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26, 2007
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Exhibit K
Attachment 2: Performance Measurements Subject to Per Measurement Caps
Biling
Time to Provide Recorded Usage Records - BI-1 (Tier 1/Tier 2)
Biling Accuracy - Adjustments for Errors - BI-3 (Tier 1 )
Biling Completeness - BI-4 (Tier 1/Tier 2)
Qwest Idaho SGAT Third Revised, Sixth Amended Exhibit K, June 26,2007
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