20020410Application.pdf

17933 N.W.Evergreen Pkwy
PO.Box 1100
'Beaverton,OR 97076April5,2002
Ms.Jean D.Jewell
Idaho Public Utilities Commission |472 W.Washington
Boise,Idaho 83720
Re:Adoption of VarTec Telecom,Inc./Verizon Northwest Inc.Interconnection AgreementbyExcelTelecommunications,Inc.
Dear Ms.Jewell:
Enclosed for filing with the Commission under Section 252(i)of the Telecommunications Actof1996aretheoriginalandfivecopiesofExcelTelecommunications,Inc.'s adoption of thearbitratedInterconnectionAgreementbetweenVerizonNorthwestInc.("Verizon")f/k/a GTENorthwestIncorporatedandVarTecTelecom,Inc.("Terms").The enclosure includes an
adoption letter signed by both Verizon Northwest Inc.and Excel Telecommunications,Inc.which is self-explanatory,and which sets forth the manner in which the Terms will be applied
in Excel Telecommunications,Inc.'s case.
As the enclosed letter explains,Verizon is not voluntarilyentering into the Excel
Telecommunications,Inc.and does not waive any rights and remedies it has concerning itspositionastotheillegalityorunreasonablenessoftheTerms.Verizon contends that certain
provisions of the Terms may be void or unenforceableas a result of the United States EighthCircuitcourtofAppealsJulyandOctober,1997 decisions,the Supreme Court of the United
States'decision of January 25,1999 and the remand of the pricing rules to the United StatesEighthCircuitCourtofAppeals.Any modification to the underlyingTerms shall
automatically apply Excel Telecommunications,Inc.Verizon is preserving its legal positionsineveryrespectastotheTermsinthehandsExcelTelecommunications,Inc.,as well as in
the hands of VarTec Telecom,Inc.
Ms.Jean Jewell
April 5,2002
Page 2
All parties to Cause are being served with a copy of this letter.If they would like a copy of
the adoption agreement,they should contact Renee Willer at 503/645-7909.
Sincerely,
Allan T.Thoms
ice President -Public Policy &External Affairs
ATT:ckw
c:Michael Engel -KelleyDrye &Warren,LLP
MissyBlankenship -Verizon
Steven J.Pitterle
Director -Negotiations
Network Services
600 Hidden Ridge HQE03B67
P.O.Box 152092
Irving,Texas 75038
Phone [phone]
Fax [phone]
[e-mail]
March 4,2002
Mr.Jim Timmer
Chief Financial Officer
Excel Telecommunications,Inc.
8750 N.Central Expressway,Suite 200
Dallas,TX 75231
Re:Requested Adoption Under Section 252(i)of the TA96
Dear Mr.Timmer:
Verizon Northwest Inc.,f/k/a GTE Northwest Incorporated ("Verizon"),has received
your letter stating that,under Section 252(i)of the Telecommunications Act of 1996 (the
"Act"),Excel Telecommunications,Inc.("Excel")wishes to adopt the terms of the
Interconnection Agreement between VarTec Telecom,Inc.d/b/a VarTec Telecom
("VarTec")and Verizon that was approved by the Idaho Public Utilities Commission (the
"Commission")as an effective agreement in the State of Idaho,as such agreement exists
on the date hereof after giving effect to operation of law (the "Terms").I understand
Excel has a copy of the Terms.Please note the followingwith respect to Excel's
adoption of the Terms.
1.By Excel's countersignature on this letter,Excel hereby represents and agrees to
the followingthree points:
(A)Excel adopts (and agrees to be bound by)the Terms of the
VarTec/Verizon agreement for interconnection as it is in effect on the date
hereof after giving effect to operation of law,and in applying the Terms,
agrees that Excel shall be substituted in place of VarTec Telecom,Inc.
d/b/a VarTec Telecom and VarTec in the Terms wherever appropriate.
EXCELTELECOMMUNICATIONS-ID 252SIN l1260LDOC l
(B)Notice to Excel and Verizon as may be required under the Terms shall be
provided as follows:
To:Excel Communications,Inc.
Attention:Chris Kelly,General Counsel
8750 N.Central Expressway,Suite 200
Dallas,TX 75231
Telephone number:214-863-8000
FAX number:214-863-8215
To Verizon:
Director-Contract Performance &Administration
Verizon Wholesale Markets
600 Hidden Ridge
HQEWMNOTICES
Irving,TX 75038
Telephone Number:972-718-5988
Facsimile Number:972-719-1519
Internet Address:[e-mail]
with a copy to:
Vice President and Associate General Counsel
Verizon Wholesale Markets
1515 N.Court House Road
Suite 500
Arlington,VA 22201
Facsimile:703-351-3664
(C)Excel represents and warrants that it is a certified provider of local
telecommunications service in the State of Idaho,and that its adoption of
the Terms will cover services in the State of Idaho only.
2.Excel's adoption of the VarTec Terms shall become effective on March 18,2002.
Verizon shall file this adoption letter with the Commission promptlyupon receipt
of an original of this letter countersigned by an authorized officer of Excel.The
term and termination provisions of the VarTec/Verizon agreement shall govern
Excel's adoption of the Terms.The Excel/Verizon agreement is currently
scheduled to terminate on November 27,2003.
3.As the Terms are being adopted by you pursuant to your statutory rights under
section 252(i),Verizon does not provide the Terms to you as either a voluntaryor
negotiatedagreement.The filing and performance by Verizon of the Terms does
not in any way constitute a waiver by Verizon of any position as to the Terms or a
portion thereof,nor does it constitute a waiver by Verizon of all rights and
EXCELTELECOMMUNICATIONS-ID 252SIN ll2601.DOC 2
remedies it may have to seek review of the Terms,or to seek review in any way of
any provisions included in these Terms as a result of Excel's 252(i)election.
4.On January 25,1999,the Supreme Court of the United States ("Court")issued its
decision on the appeals of the Eighth Circuit's decision in lowa Utilities Board.
Specifically,the Supreme Court modified several of the FCC's and the Eighth
Circuit's rulings regarding unbundled network elements and pricing requirements
under the Act.AT&T Corp.v.Iowa Utilities Board,119 S.Ct.721 (1999).Certain
provisions of the Terms may be void or unenforceable as a result of the Court's
decision of January 25,1999,the United States Eighth Circuit Court of Appeals'
decision in Docket No.96-3321 regarding the FCC's pricing rules,and the current
appeal before the U.S.Supreme Court regarding the FCC's new UNE rules.
Moreover,nothing herein shall be construed as or is intended to be a concession or
admission by Verizon that any provision in the Terms complies with the rights and
duties imposed by the Act,the decisions of the FCC and the Commissions,the
decisions of the courts,or other law,and Verizon expressly reserves its full right to
assert and pursue claims arising from or related to the Terms.
5.Verizon reserves the right to deny Excel's adoption and/or application of the
Terms,in whole or in part,at any time:
(a)when the costs of providing the Terms to Excel are greater than the costs
of providing them to VarTec;
(b)if the provision of the Terms to Excel is not technically feasible;and/or
(c)to the extent that Verizon otherwise is not required to make the Terms
available to Excel under applicable law.
6.For avoidance of doubt,please note that adoption of the Terms will not result in
reciprocal compensation payments for Internet traffic.Verizon has always taken
the position that reciprocal compensation was not due to be paid for Internet
traffic under section 251(b)(5)of the Act.Verizon's position that reciprocal
compensation is not to be paid for Internet traffic was confirmed by the FCC in
the Order on Remand and Report and Order adopted on April 18,2001 ("FCC
Internet Order"),which held that Internet traffic constitutes "information access"
outside the scope of the reciprocal compensation obligations set forth in section
251(b)(5)of the Act.'Accordingly,any compensation to be paid for Internet
traffic will be handled pursuant to the terms of the FCC Internet Order,not
pursuant to adoption of the Terms.2 ÀÍOTCOver,in light of the FCC Internet
Order,even if the Terms include provisions invoking an intercarrier
compensation mechanism for Internet traffic,any reasonable amount of time
permitted for adopting such provisions has expired under the FCC's rules
i Order on Remand and Report and Order,In the Matters of:Implementation of the Incal Competition
Provisions in the Telecommunications Act of 1996 and Intercarrier Compensation for ISP-Bound Traffic,
CC Docket No.99-68 (rel.April 27,2001)¶44.
2 For your convenience,an industry letter distributed by Verizon explaining its plans to implement the FCC
Internet Order can be viewed at Verizon's Customer Support Website at URL www.verizon.com/wise
(select Verizon East Customer Support,Resources,Industry Letters,CLEC).
EXCELTELECOMMUNICATIONS-ID 252SIN 112601.DOC 3
implementing section 252(i)of the Act.3 In fact,the FCC Internet Order made
clear that carriers may not adopt provisions of an existing interconnection
agreement to the extent that such provisions provide compensation for Internettraffic.4
7.Should Excel attempt to apply the Terms in a manner that conflicts with
paragraphs 3-6 above,Verizon reserves its rights to seek appropriate legal and/or
equitable relief.
8.In the event that a voluntaryor involuntarypetition has been or is in the future
filed against Excel under bankruptcy or insolvency laws,or any law relating to
the relief of debtors,readjustment of indebtedness,debtor reorganization or
composition or extension of debt (any such proceeding,an "Insolvency
Proceeding"),then:(i)all rights of Verizon under such laws,including,without
limitation,all rights of Verizon under 11 U.S.C.§366,shall be preserved,and
Excel's adoption of the Verizon Terms shall in no way impair such rights of
Verizon;and (ii)all rights of Excel resulting from Excel's adoption of the
Verizon terms shall be subject to and modified by any Stipulations and Orders
entered in the InsolvencyProceeding,including,without limitation,any
Stipulation or Order providing adequate assurance of payment to Verizon
pursuant to 11 U.S.C.§366.
'See,e.g.,47 C.F.R.Section 51.809(c).
4 FCC Internet Order ¶82.
EXCELTELECOMMUNICATIONS -ID 252SIN ll2601.DOC 4
Please arrange for a duly authorized representative of Excel to sign this letter in the space
provided below and return it to the undersigned.
Sincerely,
VERIZONNORTHWESTINC.
Steven J.Pitter
Director -Neg iations
Network Services
Reviewed and countersigned as to points A,B,and C of paragraph 1:
EXCEL TELECOMMUNICATIONS,INC.
(S NAT )
ŠlUNT NAME)
c:R.Ragsdale -Verizon
EXCELTELECOMMUNICATIONS-ID252SINI12601 5