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JTiLI'\'IES CU\"l jSSION
17933 N.W. Evergreen PkwyO. Box 1100
Beaverton, OR 97076 '
October 26 , 2004
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, Idaho 83702
yz;(, 1~ tftf' II
RE: Amendment 1 to the agreement between Verizon Northwest Inc. & American
Fiber Network, Inc.
Dear Ms. Jewell,
Enclosed for Commission approval amendment 1 to the agreement between Verizqn
Northwest Inc. American Fiber Network, Inc. This amendment makes
changes to UIe
agreement based on the TRO Order. Please call me at [phone] if you shoul
have any questions.
Sincerely,
"'
Renee M. Willer
Verizon Northwest Inc.
Enclosure
AMENDMENT NO.
to the
INTERCONNECTION AGREEMENT
between
VERIZON NORTHWEST INC.
F/KfA GTE NORTHWEST INCORPORATED
and
AMERICAN FIBER NETWORK, INC.
This Amendment No.1 (the "Amendment") is made by and between Verizon Northwest Inc.
flk/a GTE Northwest Incorporated ("Verizon ) , a Washington corporation. with offices at 1800 41 st Street
Everett, Washington 98201 , and American Fiber Network, Inc., a corporation with offices at 9401 Indian
Creek Pkwy, St. 140, Overland Park, Kansas 66210 ("AFN"), and shall be deemed effective on
October 12, 2004 (the "Amendment Effective Date ). Verizon and AFN are hereinafter referred to
collectively as the "Parties" and individually as a "Party . This Amendment covers services in Verizon
service territory in the State of Idaho (the "State
WITNESSETH:
WHEREAS, pursuant to an adoption letter dated June 23, 2000 (the "Adoption Letter"), AFN
adopted in the State of Idaho, the interconnection agreement between New Edge Network Inc. and
Verizon (such Adoption Letter and underlying adopted interconnection agreement referred to herein
collectively as the "Agreement"); and
WHEREAS, the Federal Communications Commission (the "FCC") released an order on
August 21 2003 in CC Docket Nos. 01-338, 96-, and 98-147 (the "Triennial Review Order" or "TRO"
which became effective as of October 2, 2003; and
WHEREAS, on March 2, 2004, the U.S. Court of Appeals for the District of Columbia Circuit (the
C. Circuit") issued a decision affirming in part and vacating in part the TRO (the "C. Circuit
Decision ); and
WHEREAS, on August 20 2004, the FCC released an Order in WC Docket No. 04-313 and CC
Docket No. 01-338 (the "Interim Rules Order") setting forth certain interim rules regarding the temporary
reinstatement of unbundling obligations for certain network elements with respect to which the D.
Circuit Decision holds that the FCC has made no lawful impairment finding under Section 251 of the Act;
and
WHEREAS, pursuant to Section 252(a) of the Communications Act of 1934, as amended, (the
Act") , the Parties wish to amend the Agreement in order to give contractual effect to the provisions of
the TRO and certain aspects of the D.C. Circuit Decision as set forth herein; and
NOW, THEREFORE, in consideration of the promises and mutual agreements set forth herein
the Parties agree to amend the Agreement as follows:
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Amendment to Aqreement.The Agreement is amended to include the following provisions
which shall apply to and be a part of the Agreement notwithstanding any other provision of the
Agreement or a Verizon tariff or a Verizon Statement of Generally Available Terms and
Conditions ("SGA T'
General Conditions.
Notwithstanding any other provision of the Agreement, this Amendment, or any Verizon
tariff or SGAT: (a) Verizon shall be obligated to provide access to unbundled Network
Elements ("UNEs ) and combinations of unbundled Network Elements ("Combinations
to AFN under the terms of this Amended Agreement only to the extent required by the
Federal Unbundling Rules, and (b) Verizon may decline to provide access to UNEs and
Combinations to AFN to the extent that provision of access to such UNEs or
Combinations is not required by the Federal Unbundling Rules.
AFN may use a UNE or a Combination only for those purposes for which Verizon is
required by the Federal Unbundling Rules to provide such UNE or Combination to AFN.
Notwithstanding any other provision of the Agreement, this Amendment, or any Verizon
tariff or SGA T, to the extent yerizon becomes obligated to provide to AFN pursuant to
the Federal Unbundling Rules a Discontinued Facility or a UNE, Combination, or related
service that, as of the Amendment Effective Date, Verizon is not required to provide to
AFN under the Amended Agreement and the Federal Unbundling Rules, the rates
terms, conditions for such Discontinued Facility, UNE, Combination, or related service
shall be as provided in an applicable Verizon tariff that Verizon, after the Amendment
Effective Date, establishes or revises to provide for such rates, terms, and conditions, or
(in the absence of an applicable Verizon tariff that Verizon, after the Amendment
Effective Date, establishes or revises to provide for such rates, terms, and conditions) as
mutually agreed by the Parties in a written amendment to the Amended Agreement. For
the avoidance of doubt, notwithstanding any other provision of the Agreement, this
Amendment, or any Verizon tariff or SGA T, Verizon , unless and until such time as
Verizon is required to do so by an applicable Verizon tariff that Verizon, after the
Amendment Effective Date, establishes or revises to provide for the applicable rates
terms, and conditions or by a mutually agreed written amendment to the Amended
Agreement setting forth the applicable rates, terms, and conditions, shall not be required
under the Amended Agreement (a) to perform any routine network modification that the
Agreement does not expressly and specifically require Verizon to perform (including, but
not limited to, any routine network modification required under 47 C.F.R. 9 51.319(a)(8)
or 47 C.9 51.319(e)(5)), (b) to commingle, or to permit the commingling of, UNEs or
Combinations with other wholesale services obtained from Verizon under a Verizon
access tariff, separate non-251 agreement, or otherwise, or (c) to offer or provide, for
any period of time not required under Section 3 of this Amendment, any facility that is or
becomes a Discontinued Facility.
Discontinued Facilities.
Generally.Notwithstanding any other provision of the Agreement, this Amendment, or
any Verizon tariff or SGA T, Verizon shall not be obligated to offer or provide access on
an unbundled basis at rates prescribed under Section 251 of the Act to any facility that is
or becomes a Discontinued Facility, whether as a stand-alone UNE, as part of a
Combination, or otherwise. To the extent Verizon has not already ceased providing a
particular Discontinued Facility to AFN, Verizon, provided it has given at least ninety (90)
days written notice of discontinuance of such Discontinued Facility, will continue to
provide such Discontinued Facility under the Amended Agreement only through the
effective date of the notice of discontinuance, and not beyond that date. To the extent a
facility is (or becomes) a Discontinued Facility only as to new orders that AFN may place
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for such a facility, Verizon, to the extent it has not already discontinued its acceptance of
such new orders and provided it has given at least ninety (90) days written notice of its
intention to do so, may reject such new orders on the effective date of the notice of
discontinuance and thereafter. Verizon may, but shall not be required to, issue the
foregoing notice in advance of the date on which the facility shall become
Discontinued Facility as to new orders that AFN may place, so as to give effect to
Verizon right to reject such new orders immediately on that date. The Parties
acknowledge that Verizon, prior to the Amendment Effective Date, has provided AFN
with any required notices of discontinuance of certain Discontinued Facilities, and that
Verizon, to the extent it has not already done so pursuant to a pre-existing or
independent right it may have under the Agreement, a Verizon SGA T or tariff, or
otherwise, may, at any time and without further notice to AFN, cease providing any such
Discontinued Facilities. This Section 3.1 is intended to limit any obligation Verizon might
otherwise have to provide to AFN (or to notify AFN of the discontinuance of) any facility
that is or becomes a Discontinued Facility, and nothing contained in this Section 3.1 or
elsewhere in this Amendment shall be deemed to establish in the first instance or to
extend any obligation of Verizon to provide any facility or Discontinued Facility. This
Section 3.shall apply notwithstanding anything contained in the Agreement, this
Amendment, or any Verizon tariff or SGA T, but without limiting any other right Verizon
may have under the Agreement, this Amendment, or any Verizon tariff or SGA T
cease providing a facility that is or becomes a Discontinued Facility.
Continuation of Facilities Under Separate Arranqement.To the extent AFN wishes to
continue to obtain access to a Discontinued Facility under a separate arrangement (e.
a separate agreement at market-based rates, an arrangement under a Verizon access
tariff, or resale), AFN shall have promptly undertaken and concluded such efforts as
may be required to secure such arrangement prior to the date on which Verizon is
permitted to cease providing the Discontinued Facility; provided , however, that in no
event shall AFN's failure to secure such an arrangement affect Verizon s right to cease
providing a facility that is or becomes a Discontinued Facility. If Verizon is permitted to
cease providing a Discontinued Facility under this Section 3 and AFN has not submitted
an LSR or ASR, as appropriate, to Verizon requesting disconnection of the Discontinued
Facility and has not separately secured from Verizon an alternative arrangement to
replace the Discontinued Facility, then Verizon , to the extent it has not already done so
prior to execution of this Amendment, shall reprice the subject Discontinued Facility by
application of a new rate (or, in Verizon s sole discretion, by application of a surcharge)
to be equivalent to access, resale, or other analogous arrangement that Verizon shall
identify in a written notice to AFN. The rates, terms, and conditions of any such
arrangements shall apply and be binding upon AFN as of the date specified in the
written notice issued by Verizon. The Parties acknowledge that Verizon has, in such
written notices issued to AFN prior to the Amendment Effective Date, identified such
arrangements to replace certain Discontinued Facilities and that Verizon, to the extent it
has not already done so, may implement such arrangements without further notice.
Limitation With Respect to Replacement Arranqements Notwithstanding any other
provision of this Amended Agreement, any negotiations regarding any replacement
arrangement or other facility or service that Verizon is not required to provide under the
Federal Unbundling Rules shall be deemed not to have been conducted pursuant to the
Amended Agreement, 47 U.C. 3 252(a)(1), or 47 C.R. Part 51 , and shall not be
subject to arbitration pursuant to 47 U.C. 3 252(b). Any reference in this Amended
Agreement to Verizon s provision of a facility, service, or arrangement that Verizon is not
required to provide under the Federal Unbundling Rules is solely for the convenience of
the Parties and shall not be construed to require or permit arbitration of such rates
terms, or conditions pursuant to 47 U.C. 3252(b).
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3.4 Pre-Existinq and Independent Discontinuance Riqhts. Verizon rights as
discontinuance of Discontinued Facilities pursuant to this Section 3 are in addition to
and not in limitation of, any rights Verizon may have as to discontinuance of
Discontinued Facilities under the Agreement, a Verizon tariff or SGAT, or otherwise.
Nothing contained herein shall be construed to prohibit, limit, or delay Verizon s exercise
of any pre-existing or independent right it may have under the Agreement, a Verizon
tariff or SGAT, or otherwise to cease providing a Discontinued Facility.
Implementation of Rate Chanqes. Notwithstanding any other provision of the Amended
Agreement (including, but not limited to, the rates and charges set forth therein), Verizon
may, but shall not be required to, implement any rate increases or new charges that may
be established by the FCC in its Interim Rules Order or subsequent rulemakings, once
effective, for unbundled network elements, combinations of unbundled network
elements, or related services , by issuing to AFN a schedule of such rate increases
and/or new charges, provided that the rate provisions of such FCC orders and/or
rulemakings are not subject to a stay issued by any court of competent jurisdiction. Any
such rate increases or new charges shall take effect on the date indicated in the
schedule issued by Verizon , but no earlier than the date established by the FCC, and
shall be paid by AFN in accordance with the terms of the Amended Agreement. Any
such rate increases and new charges that the FCC may establish shall be in addition to
and not in limitation of, any rate increases and new charges that the Idaho Public
Utilities Commission may approve or that Verizon may otherwise implement under the
Amended Agreement or applicable tariffs. Nothing set forth in this Section 3.5 shall be
deemed an admission of Verizon or limit Verizon s right to appeal, seek reconsideration
, or otherwise seek to have stayed, modified, reversed, or invalidated any limit the
FCC may impose on Verizon s rates and charges.
Miscellaneous Provisions.
4.4
Conflict between this Amendment and the Aqreement.This Amendment shall be
deemed to revise the terms and provisions of the Agreement to the extent necessary to
give effect to the terms and provisions of this Amendment. In the event of a conflict
between the terms and provisions of this Amendment and the terms and provisions of
the Agreement this Amendment shall govern, provided, however, that the fact that a
term or provision appears in this Amendment but not in the Agreement, or in the
Agreement but not in this Amendment, shall not be interpreted as, or deemed grounds
for finding, a conflict for purposes of this Section 4.
Counterparts. This Amendment may be executed in one or more counterparts, each of
which when so executed and delivered shall be an original and all of which together
shall constitute one and the same instrument.
Captions.The Parties acknowledge that the captions in this Amendment have been
inserted solely for convenience of reference and in no way define or limit the scope
substance of any term or provision of this Amendment.
Scope of Amendment.This Amendment shall amend , modify and revise the Agreement
only to the extent set forth expressly herein. As used herein, the Agreement, as revised
and supplemented by this Amendment, shall be referred to as the "Amended
Agreement". Nothing in this Amendment shall be deemed to amend or extend the term
of the Agreement, or to affect the right of a Party to exercise any right of termination it
may have under the Agreement.
Reservation of Riqhts. Notwithstanding any contrary provision in the Agreement, this
Amendment, or any Verizon tariff or SGA T, nothing contained in the Agreement, this
Amendment, or any Verizon tariff or SGA T shall limit either Party's right to appeal, seek
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reconsideration of or otherwise seek to have stayed, modified, reversed or invalidated
any order, rule, regulation, decision, ordinance or statute issued by the Idaho Public
Utilities Commission, the FCC, any court or any other governmental authority related to
concerning or that may affect either Party s rights or obligations under the Agreement
this Amendment, any Verizon tariff or SGA T, or Applicable Law.
Joint Work Product.This Amendment is a joint work product, and any ambiguities in this
Amendment shall not be construed by operation of law against either Party.
Definitions. Notwithstanding any other provision in the Agreement or any Verizon tariff
or SGA T, the following terms, as used in the Amended Agreement, shall have the
meanings set forth below:
Call-Related Databases. Databases , other than operations support systems
that are used in signaling networks for billing and collection, or the
transmission , routing, or other provision of a telecommunications service.
Call-related databases include, but are not limited to, the calling name
database, 911 database, E911 database line information database, toll free
calling database, advanced intelligent network databases, and downstream
number portability databases.
Dedicated Transport. A DS1 or DS3 transmission facility between Verizon
switches (as identified in the LERG) or wire centers, within a LATA, that is
dedicated to a particular end user or carrier. Transmission facilities or
services provided between (i) a Verizon wire center or switch and (ii) a switch
or wire center of AFN or a third party are not Dedicated Transport.
Discontinued Facility. Any facility that Verizon, at any time, has provided or
offered to provide to AFN on an unbundled basis pursuant to the Federal
Unbundling Rules (whether under the Agreement, a Verizon tariff, or a
Verizon SGAT), but which by operation of law has ceased or ceases to be
subject to an unbundling requirement under the Federal Unbundling Rules.
By way of example and not by way of limitation, Discontinued Facilities
include the following, whether as stand-alone facilities or combined with other
facilities: (a) any Entrance Facility; (b) Enterprise Switching; (c) Four-Line
Carve Out Switching; (d) OCn Loops and OCn Dedicated Transport; (e) the
Feeder portion of a Loop; (f) Line Sharing; (g) any Call-Related Database
other than the 911 and E911 databases, that is not provisioned in connection
with AFN's use of Verizon s Mass Market Switching; (h) Signaling or Shared
Transport that is provisioned in connection with AFN's use of Verizon
Enterprise Switching or Four-Line Carve Out Switching; (i) FTTP Loops (lit or
unlit); CD Hybrid Loops (subject to exceptions for narrowband services (Le.
equivalent to DSO capacity); and CD any other facility or class of facilities as to
which the FCC has not made a finding of impairment that remains effective or
otherwise addressed in the Interim Rules Order or similar order, or as to
which the FCC has made a finding of nonimpairment.
7.4 Enterprise Switchinq. Local Switching or Tandem Switching that, if provided
to AFN would be used for the purpose of serving AFN's customers using DS1
or above capacity Loops.
Entrance Facility. A transmission facility (lit or unlit) or service provided
between (i) a Verizon wire center or switch and (ii) a switch or wire center of
AFN or a third party.
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7.7
7.10
7.12
Federal UnbundlinQ Rules . Any lawful requirement to provide access to
unbundled network elements that is imposed upon Verizon by the FCC
pursuant to both 47 U.C. ~ 251 (c)(3) and 47 C.R. Part 51 , or pursuant to
the Interim Rules Order (but only once effective and only to the extent not
stayed, vacated, reversed, modified or otherwise rendered ineffective by the
FCC or a court of competent jurisdiction). Any reference in this Amendment
to "Federal Unbundling Rules" shall not include an unbundling requirement if
the unbundling requirement does not exist under both 47 U.C. ~ 251(c)(3)
and 47 C.R. Part 51 , or under the Interim Rules Order.
Feeder.The fiber optic cable (lit or unlit) or metallic portion of a Loop
between a serving wire center and a remote terminal or feeder/distribution
interface.
Four-Line Carve Out SwitchinQ . Local Switching that Verizon is not required
to provide pursuant to 47 C.R. ~ 51.319(d)(3)(ii).
FTTP Loop. A Loop consisting entirely of fiber optic cable, whether dark or lit
that extends from (a) the main distribution frame (or its equivalent) in an end
user s serving wire center to (b) the demarcation point at the end user
customer premises; provided, however, that in the case of predominantly
residential multiple dwelling units (MDUs), an FTTP Loop is a Loop consisting
entirely of fiber optic cable, whether dark or lit, that extends from the main
distribution frame (or its equivalent) in the wire center that serves the multiunit
premises, to or beyond the multiunit premises minimum point of entry
(MPOE), as defined in 47 C.R ~ 68.105.
Hybrid Loop. A local Loop composed of both fiber optic cable and copper
wire or cable.
Line SharinQ.The process by which AFN provides xDSL service over the
same copper Loop that Verizon uses to provide voice service by utilizing the
frequency range on the copper loop above the range that carries analog
circuit-switched voice transmissions (the High Frequency Portion of the Loop,
or "HFPL"). The HFPL includes the features, functions, and capabilities of the
copper Loop that are used to establish a complete transmission path between
Verizon s main distribution frame (or its equivalent) in its serving Wire Center
and the demarcation point at the end user's customer premises.
Local SwitchinQ. The line-side and trunk-side facilities associated with the
line-side port, on a circuit switch in Verizon s network (as identified in the
LERG), plus the features, functions, and capabilities of that switch, unbundled
from loops and transmission facilities, including: (a) the line-side Port
(including the capability to connect a Loop termination and a switch line card
telephone number assignment, dial tone, one primary directory listing, pre-
subscription , and access to 911); (b) line and line group features (including all
vertical features and line blocking options the switch and its associated
deployed switch software are capable of providing that are provided to
Verizon s local exchange service Customers served by that switch); (c) usage
(including the connection of lines to lines, lines to trunks, trunks to lines, and
trunks to trunks); and (d) trunk features (including the connection between the
trunk termination and a trunk card).
Mass Market SwitchinQ Local Switching or Tandem Switching that, if
provided to AFN, would be used for the purpose of serving a AFN end user
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customer with three or fewer DSO Loops. Mass Market Switching does not
include Four Line Carve Out Switching.
Siqnalinq Signaling includes, but is not limited to, signaling links and
signaling transfer points.
Tandem Switchinq. The trunk-connect facilities on a Verizon circuit switch
that functions as a tandem switch, plus the functions that are centralized in
that switch, including the basic switching function of connecting trunks to
trunks, unbundled from and not contiguous with loops and transmission
facilities. Tandem Switching creates a temporary transmission path between
interoffice trunks that are interconnected at a Verizon tandem switch for the
purpose of routing a call. A tandem switch does not provide basic functions
such as dial tone service.
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IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed as of the
Amendment Effective Date.
AMERICAN FIBER NETWORK, INC.VERIZON NORTHWEST INC.,
F/KIA GTE NORTHWEST INCORPORATED
By:
jlI t#--By:
~..
Printed: Robert E. Heath Printed: John C. Peterson
Title: EVP Title: Director - Contract Performance and
Administration
AFN 10 Amd 1 - Interim Rule Version - 091304.doc