20060907Amendment.pdf

RECEIVED
2006 SEP - 7 PM 2: I 3
IDAHO PUB' I
UTILITIES COM~ilsSION
AMENDMENT NO.
TO THE
V2N :r-06-o7
INTERCONNECTION AGREEMENT
BETWEEN
VERIZON NORTHWEST INC.
AND
YMAX COMMUNICATIONS CORP.
This Amendment No.1 (the "Amendment") is made by and between Verizon Northwest
Inc. ('Verizon ), a Washington corporation with offices at 1800 41st Street, Everett, WA 98201
and Ymax Communications Corp., a corporation with offices at 223 Sunset Avenue, Suite 223
Palm Beach, FL 33480 ("Ymax ), and shall be deemed effective on August 31 2006 and in no
event later than the date on which the Agreement (as defined below) takes effect (the
Amendment Effective Date ). Verizon and Ymax are hereinafter referred to collectively as the
Parties" and individually as a "Party". This Amendment covers services in Verizon s service
territory in the State of Idaho (the "State
WITNESSETH:
WHEREAS, Verizon and Ymax, pursuant to Section 252(a)(1) of the Communications
Act of 1934, as amended (the "Act"), are filing concurrently herewith for Commission approval an
Interconnection Agreement under Sections 251 and 252 of the Act (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.C. Circuit Decision holds that the FCC has made no lawful impairment findingunder Section 251 of the Act; and
WHEREAS, on February 4, 2005, the FCC released an Order on Remand in WC Docket
No. 04-313 and CC Docket No. 01-338 (the "TRRO") setting forth rules that supplanted, effective
March 11 , 2005, the temporary rules set forth in the Interim Rules Order and addressing the
remanded issues raised in the D.C. Circuit Decision;
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WHEREAS in light of the foregoing developments, the Parties, pursuant to Section
252(a) of the Act, wish to amend the Agreement, effective as of the effective date of the
Agreement, in order to give contractual effect to the provisions set forth herein; and
NOW, THEREFORE in consideration of the promises and mutual agreements set forth
herein, the Parties agree to amend the Agreement, effective as of the effective date of the
Agreement, as follows:
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 aVerizon Statement of Generally
Available Terms and Conditions ("SGAT").
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 rUNEs ) and combinations of unbundled Network
Elements ("Combinations ) to Ymax 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 Ymax to the extent that
provision of access to such UNEs or Combinations is not required by the Federal
Unbundling Rules.
Ymax 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 Ymax.
Notwithstanding any other provision of the Agreement, this Amendment, or any
Verizon tariff or SGAT, to the extent Verizon becomes obligated to provide to
Ymax 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 Ymax 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
R. 9 51.319(a)(8) or 47 C.R.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.
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Discontinued Facilities.
Generally
Notwithstanding any other provision of the Agreement, this
Amendment, or any Verizon tariff or SGAT, 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; provided, however, that in
accordance with but only to the extent required by the TRRO (and only
for so long as, and to the extent that, the TRRO remains effective and
is not stayed, reversed, modified , or vacated), Verizon shall continue
during the applicable transition period specified in the TRRO (and not
beyond such period) to provide Ymax s embedded base of UNEs that,
as of March 11 , 2005, became Discontinued Facilities by operation of
the TRRO, and such embedded base of UNEs shall be subject to
FCC-prescribed rate increases pursuant to Section 3.5 below. To the
extent Verizon has not already ceased providing a particular
Discontinued Facility to Ymax, 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 Ymax may place 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
in cases where it has not already discontinued its acceptance of such
new orders, 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 a Discontinued Facility as to new orders that
Ymax may place, so as to give effect to Verizon s right to reject such
new orders immediately on that date.
The Parties acknowledge that Verizon , prior to the Amendment
Effective Date, has provided Ymax 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
Ymax, cease providing any such Discontinued Facilities.
This Section 3.1 is intended to limit any obligation Verizon might
otherwise have to provide to Ymax (or to notify Ymax 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 3.1 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 SGAT to cease
providing a facility that is or becomes a Discontinued Facility.
Ymax 10 TRRO Amendment 1-01SJ 102505.doc
1.4
Continuation of Facilities Under Separate Arranqement.To the extent Ymax
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), Ymax 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 Ymax 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 Ymax 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 Ymax.
The rates, terms , and conditions of any such arrangements shall apply and be
binding upon Ymax as of the date specified in the written notice issued by
Verizon. The Parties acknowledge that Verizon has , in such written notices
issued to Ymax 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. S 252(a)(1), or
47 C.R. Part 51 , and shaii not be subject to arbitration pursuant to 47 v.C. ~
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. S 252(b).
3.4 Pre-Existinq and Independent Discontinuance Riqhts. Verizon s 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 SGA T, 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 the TRRO or
subsequent orders, once effective, for unbundled network elements
combinations of unbundled network elements, or related services, by issuing to
Ymax a schedule of such rate increases and/or new charges, provided that the
rate provisions of such FCC orders 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
Ymax 10 TRRO Amendment 1-01SJ 102505.doc
the date established by the FCC, and shall be paid by Ymax in accordance with
the terms of the Amended Agreement. Verizon may, but shall not be required to
use a true-up to apply the rate increases or new charges effective as of the date
indicated in the schedule issued by Verizon. The Parties acknowledge that
Verizon, prior to the Amendment Effective Date, may have provided Ymax such a
schedule identifying rate increases or new charges for certain Discontinued
Facilities, and that no further notice or schedule is required for those rate
increases or new charges to take effect. Any such rate increases and new
charges that the FCC may establish shall be in addition to, and not in limitation
, 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.
shall be deemed an admission of Verizon (including, but not limited to, as to
whether this Amendment is required in order for Verizon to charge the FCC-
prescribed rate increases and new charges described herein) or limit Verizon
right to appeal, seek reconsideration of, or otherwise seek to have stayed
modified, reversed, or invalidated any limit the FCC may impose on Verizon
rates and charges.
Miscellaneous Provisions.
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 or substance of any term or provision of this Amendment.
4.4 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 SGAT, nothing contained in the
Agreement, this Amendment, or any Verizon tariff or SGAT shall limit either
Party s right to appeal, seek 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 SGAT, or Applicable Law.
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Joint Work Product.This Amendment is a joint work product, and any
ambiguities in this Amendment shall not be construed by operation of law againsteither Party.
Definitions. Notwithstanding any other provision in the Agreement or any Verizon
tariff or SGAT, the following terms, as used in the Amended Agreement, shall
have the meanings set forth below:
7.4
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.
Dark Fiber Loop.Consists of fiber optic strand(s) in a Verizon fiber
optic cable between Verizon s accessible terminal, such as the fiber
distribution frame, or its functional equivalent, located within a Verizon
wire center, and Verizon s accessible terminal located in Verizon
main termination point at an end user customer premises, such as a
fiber patch panel, and that Verizon has not activated through
connection to electronics that "light" it and render it capable of carrying
telecommunications services.
Dark Fiber Transport.An optical transmission Jacility within a LATA,
that Verizon has not activated by attaching multiplexing, aggregation
or other electronics, between Verizon switches (as identified in the
LERG) or wire centers. Dark fiber facilities between (i) a Verizon wire
center or switch and (H) a switch or wire center of Ymax or a third party
are not Dark Fiber Transport.
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 (H) a switch or wire center of Ymax or a third party
are not Dedicated Transport.
Discontinued Facility. Any facility that Verizon, at any time, has
provided or offered to provide to Ymax on an unbundled basis
pursuant to the Federal Unbundling Rules (whether under the
Agreement, a Verizon tariff, or a Verizon SGA T), 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) Mass Market Switching; (e) OCn Loops
and OCn Dedicated Transport; (f) DS1 Loops or DS3 Loops out of any
wire center at which the Federal Unbundling Rules do not require
Verizon to provide Ymax with unbundled access to such Loops; (g)
any OS 1 Loop or DS3 Loop that exceeds the maximum number of
such Loops that the Federal Unbundling Rules require Verizon to
provide to Ymax on an unbundled basis at a particular building
Ymax 10 TRRO Amendment 1-01SJ 102505.doc
location; (h) DS1 Dedicated Transport, DS3 Dedicated Transport, or
Dark Fiber Transport on any route as to which the Federal Unbundling
Rules do not require Verizon to provide Ymax with unbundled access
to such Transport; (i) any DS1 Dedicated Transport circuit or DS3
Dedicated Transport circuit that exceeds the number of such circuits
that the Federal Unbundling Rules require Verizon to provide to Ymax
on an unbundled basis on a particular route; OJ Dark Fiber Loops; (k)
the Feeder portion of a Loop; (I) Line Sharing; (m) any Call-Related
Database other than the 911 and E911 databases; (n) Signaling; (0)
Shared Transport; (p) FTTP Loops (lit or unlit); (q) Hybrid Loops
(subject to exceptions for TOM and narrowband services (Le.
equivalent to DSO capacity)); and (r) any other facility or class of
facilities as to which the FCC has not made a finding of impairment
that remains effective, or as to which the FCC makes (or has made) a
finding of nonimpairment.
DS1 Dedicated Transport.Dedicated Transport having a total digital
signal speed of 1.544 Mbps.
DS3 Dedicated Transport.Dedicated Transport having a total digital
signal speed of 44.736 Mbps.
DS1 Loop. A digital transmission channel, between the main
distribution frame (or its equivalent) in an end user s serving wire
center and the demarcation point at the end user customer s premises
suitable for the transport of 1.544 Mbps digital signals. This loop type
is more fully described in Verizon TR 72575, as revised from time to
time. A OS 1 Loop requires the electronics necessary to provide the
DS1 transmission rate. DS1 Loops are sometimes also known as DS1
Links
DS3 Loop. A digital transmission channel, between the main
distribution frame (or its equivalent) in an end user s serving wire
center and the demarcation point at the end user customer s premises
suitable for the transport of isochronous bipolar serial data at a rate of
44.736 Mbps (the equivalent of 28 DS1 channels). This Loop type is
more fully described in Verizon TR 72575, as revised from time to
time. A DS3 Loop requires the electronics necessary to provide the
DS3 transmission rate. DS3 Loops are sometimes also known as DS3
Links
Enterprise Switchinq.Local Switching or Tandem Switching that, if
provided to Ymax would be used for the purpose of serving Ymax
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 Ymax or a third party.
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.F.R. Part 51.
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. 9251 (c)(3) and 47 C.R. Part 51.
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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.FR ~ 51.319(d)(3)(ii).
FTTP Loop. A Loop consisting entirely of fiber optic cable, whether
dark or lit, that extends from the main distribution frame (or its
equivalent) in an end user s serving wire center to the demarcation
point at the end user's customer premises or to a serving area
interface at which the fiber optic cable connects to copper or coaxial
distribution facilities that extend to the end user s customer premises
demarcation point, provided that all copper or coaxial distribution
facilities extending from such serving area interface are not more than
500 feet from the demarcation point at the respective end users
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: (a) to or beyond the
multiunit premises' minimum point of entry (MPOE), as defined in 47
R ~ 68.105; or (b) to a serving area interface at which the fiber
optic cable connects to copper or coaxial distribution facilities that
extend to or beyond the multiunit premises' MPOE, provided that all
copper or coaxial distribution facilities extending from such serving
area interface are not mpre than 500 feet from the MPOE at the
multiunit premises.
Hvbrid Loop. A local Loop composed of both fiber optic cable and
copper wire or cable. An FTTP Loop is not a Hybrid Loop.
Line Sharinq. The process by which Ymax 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).
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Mass Market Switchinq. Local Switching or Tandem Switching that, if
provided to Ymax, would be used for the purpose of serving a Ymax
end user customer with 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 Junction 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.
YMAX COMMUNICATIONS CORP.VERIZON NORTHWEST INC.
By:By:
Printed: Peter Russo Printed: Gary Librizzi
Title: Director of Finance Title: Director - Negotiations
Ymax 10 TRRO Amendment 1-01SJ 102505.doc