Exhibit 10.11.3
AMENDMENT NO. 2
to the
INTERCONNECTION
AGREEMENT
between
BELL ATLANTIC – NEW
YORK
and
PAETEC COMMUNICATIONS,
INC.
This Amendment No. 2 is made and
effective this 28 th day of October, 1999, by and
between New York Telephone Co., d/b/a Bell Atlantic – New
York (“BA”), a New York corporation with offices at
1095 Avenue of the Americas, New York, New York 10036, and PaeTec
Communications, Inc. (“PaeTec”), a Delaware corporation
with offices at 290 Woodcliff Drive, Fairport, New York 14450. BA
and PaeTec may be referred to individually as a “Party”
and collectively as the “Parties”.
WITNESSETH
:
WHEREAS, BA and PaeTec are parties
to an Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 (the “Act”), effective
November 24, 1998 (the “Agreement”); and
WHEREAS, pursuant to the terms of
the Agreement, PaeTec has elected under Section 252(i) of the Act
to adopt the terms of the November 11, 1997 agreement between BA
and ACC National Telecom Corp. (the “Underlying
Terms”); and
WHEREAS, the Parties now desire to
amend the Agreement and the Underlying Terms to set forth the terms
and conditions that govern the Parties’ payment of
Intercarrier Compensation (as such term is hereinafter defined),
including compensation for Internet Traffic (as such term is
hereinafter defined);
NOW, THEREFORE, in consideration of
the promises and mutual agreements herein contained, the Parties
agree to amend the Agreement as follows:
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1.
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Add a new
Section 1.75 to the Underlying Terms as follows:
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“ 1.1.75
“Local Traffic” shall have the same meaning as
“Telephone Exchange Service Traffic.” “Internet
Traffic” (as such term is hereinafter defined) is not Local
Traffic or Telephone Exchange Service Traffic.
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2.
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Add a new Section 1.1.76 to the Underlying Terms
as follows:
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1.1.76 “Internet
Traffic” means any traffic that is transmitted to or returned
from the Internet at any point during the duration of a
transmission.
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3.
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Add a new Section 1.1.77 to the Underlying Terms
as follows:
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1.1.77 “Compensable Internet
Traffic” means dial-up switched Internet Traffic that is
originated by an end-user subscriber of one Party, is transmitted
by that Party to the switched network of the other Party, and then
is handed off by that Party to an Internet Service Provider which
has been assigned a telephone number or telephone numbers within an
NXX or NXXs which are within the same LATA as the originating
end-user subscriber. Internet Traffic over which telephony is
conducted is not Compensable Internet Traffic.
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4 .
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Delete
Section 1.1.57 of the Underlying Terms.
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5.
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Add a new Section 1.1.78 to the Underlying Terms
as follows:
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1.1.78 “Intercarrier
Compensation” refers to the remuneration received by one
Party (the “Receiving Party”) to recover its costs for
receiving and terminating Local Traffic or receiving and handing
off Compensable Internet Traffic that originates on the network of
the other Party (the “Originating Party”).
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6.
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Delete
existing Section 4.2 and insert a new Section 4.2 to the Underlying Terms as
follows:
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4.2 Geographic
Relevance
4.2.1 Interconnection Points
. The Parties shall establish physical Interconnection Points
(“IPs”) at the locations designated on Schedule 4.0,
which shall be revised from time to time in accordance with the
requirements of this Section. Each Party, as an Originating Party,
may request that the other Party, as a Receiving party, establish
IPs on the Receiving Party’s network that are
geographically-relevant to the NXXs (and associated rate centers)
that are assigned by the Receiving Party. In the case of BA as a
Receiving Party, to the extent PaeTec requests BA to establish a
geographically-relevant IP in addition to the BA-IPs at the BA
Tandems, the geographically-relevant IP shall be the BA end office
serving the Customer for whom the traffic is intended. In the case
of PaeTec as a Receiving Party, BA may request, and PaeTec will
then establish, geographically-relevant IPs by establishing a
PaeTec-IP at a Collocation site at each BA Tandem in a LATA (or, in
the case of a single Tandem LATA, at each BA End Office Host), for
those NXXs serving equivalent BA rate centers which subtend the BA
Tandem (or BA End Office Host). In any LATA in which BA agrees that
PaeTec may meet its obligation to establish geographically relevant
IPs through a Collocation site at fewer than all of the BA Tandems
(or BA End Office Host) in a LATA, including the LATAs identified
in Schedule 4.0, then BA shall determine and advise PaeTec as to
which PaeTec IP established at a Collocation site (or other
available PaeTec IP) BA will deliver traffic from each relevant
originating rate center or other originating location.
If PaeTec fails to establish a
geographically-relevant IP as provided herein within a commercially
reasonable time, then PaeTec shall bill and BA shall pay only the
applicable Inter-
2
carrier Compensation Rate for the relevant NXX,
as set forth in Section 7.0 below, less BA’s monthly
recurring rate for unbundled dedicated interoffice transport from
BA’s originating End Office to PaeTec’s IP.
Should either Party offer additional
IPs to any Telecommunications Carrier that is not a Party to this
Agreement, the other Party may elect to deliver traffic to such IPs
for the NXXs or functionalities served by those IPs. To the extent
that any such PaeTec-IP is not located at a Collocation site at a
BA Tandem (or BA End Office Host), then PaeTec shall permit BA to
establish physical interconnection at the PaeTec-IP, to the extent
such physical interconnection is technically feasible.
At any time that PaeTec establishes
a Collocation site at a BA End Office, then either Party may
request that such PaeTec Collocation site be established as the
PaeTec-IP for traffic originated by BA Customers served by that End
Office. Such request shall be negotiated pursuant to the Joint
Grooming Plan process, and approval shall not be unreasonably
withheld or delayed. To the extent that the Parties have already
implemented network interconnection in a LATA, then upon BA’s
request for a geographically-relevant PaeTec-IP, the Parties shall
negotiate a mutually-acceptable transition process and schedule to
implement the geographically-relevant IPs. If PaeTec should fail to
establish an IP at an end office Collocation site pursuant to
BA’s request, or if the Parties have been unable to agree
upon a schedule for completing a transition from existing
arrangements to geographically relevant PaeTec IPs or to an end
office Collocation site PaeTec IP within sixty (60) days following
BA’s request, PaeTec shall bill and BA shall pay the
applicable Intercarrier Compensation Rate for the relevant NXX, as
set forth in Section 7.0 below, less BA’s monthly recurring
rate for unbundled dedicated interoffice transport from BA’s
originating End Office to the PaeTec-IP.
Should PaeTec choose to obtain
transport from BA for Local and Compensable Internet Traffic from a
PaeTec-IP at a Collocation site to another PaeTec location, BA
shall bill and PaeTec shall pay, the applicable unbundled dedicated
interoffice transport and channel termination rates set forth
herein.
4.2.2 Trunking Architecture .
The Originating Party must establish direct trunking to a Receiving
Party’s end office (which may have a Tandem-routed overflow)
by self-provisioning, purchasing transport rated as unbundled
dedicated interoffice transport from the Receiving Party, or
purchasing from a third party if the Local and Compensable Internet
Traffic destined for that end office exceeds the equivalent of two
DSls for any three (3) months during any six (6) month period. For
purposes of this paragraph, BA shall satisfy its end office
trunking obligations by handing off traffic to a PaeTec IP. Should
PaeTec fail to comply with this end office trunking requirement,
then the Intercarrier Compensation rate to be pai
