texaltel conference - december 2005 stability of the t2a2 agreements: term, change in law, and opt...

TEXALTEL Conference - December 2005

Stability of the T2A2 Agreements:

Term, Change in Law, and Opt InBradford W. Bayliff

Casey, Gentz & Magness, L.L.P. [email protected]


Stability of the T2A2 Agreements:

Term, Change in Law, and Opt In

What is different from the T2A? Term of the Agreements Intervening Law/Change in Law

What is a Change in Law? What is the Change in Law process? What federal law changes could affect the T2A2? Will changes in Texas law affect these agreements?

Opting In May a CLEC opt into a agreement that is different from its

initial agreement? What are the opt in procedures?


What is different from the T2A?

Term of the Agreements The T2A term was less than 4 years New agreements range from 3 – 5 years

Intervening Law/Change in Law Original T2A had no formal Change in Law provision

It did have an amendments provision The new agreements include Change in Law provisions

and a process for Change in Law amendments Opting In

Different process for amended agreements


Term of the Agreements

CLEC Coalition, KMC, and Xspedius 3 years and 90 days

Birch 3 years

CLEC Joint Petitioners 5 years

MCI 5 years

Superseding Amendment affects Recip Comp, POIs, and Trunking Terms Expires June 30, 2007


Intervening Law/Change in Law

What is a change in law? Legally binding decision by a court of competent

jurisdiction Amendment of the FTA Amendment of PURA or other applicable Texas statute Federal or state regulatory action, rule regulatory action Other legal action that materially revises, reverses,

modifies or clarifies the meaning of the Act, an applicable Texas statute or any of the rules, regulations, Orders, or judicial decisions which otherwise materially affect the Agreements.


Intervening Law Process

CLEC Coalition and CJP Legally binding decision by a court of competent jurisdiction

The relevant action has not been stayed No request for a stay is pending Any deadline for requesting a stay has passed

Renegotiation Either party may request if it believes a Change in Law has occurred Request must be in writing

Negotiations end if Renegotiation is not concluded within 90 days after notice The parties don’t negotiate for a period of 15 business days The non-requesting party refuses to renegotiate on the ground that there

has been no Change in Law sufficient to require renegotiation If negotiations are not successful

Dispute resolution procedures will apply


Intervening Law Process

MCI Intervening laws may not modify or supersede the

Superseding Amendment If an action invalidates, modifies, or stays the enforcement

of laws or regulations that were the basis or rationale for any provisions of the agreement, the affected provision(s) are invalidated, modified or stayed upon the written request of either party The MCI ICA does not include a legally binding requirement

The parties have 60 days to negotiate conforming modifications

If the parties are unable to agree, disputes shall be resolved pursuant to the dispute resolution process in the agreement


Changes in Federal Law

What federal law changes may affect the T2A2? House IP and Broadband Services Bill Recip Comp FNPRM VoIP NPRM TRRO Appeal Qwest Forbearance Petition

The Qwest Petition will not affect the T2A2 A similar AT&T or Verizon Petition could affect the T2A2


House IP and Broadband Services Bill

What has been said about updating the FTA? Rep. Joe Barton, Chair of the House Energy and Commerce

Committee "Our nation’s telephone laws are based upon the principles of

common carriage and the belief that only incumbents can truly own the facilities that connect Americans."

"The notion behind America’s cable laws is that competition doesn’t exist, and since no competitive forces check the actions of a monopoly distributor of multichannel programming in many markets, that responsibility must fall to government."

"That is what brings us here today. The advance of technology has left the law behind. The statute no longer reflects the technological and competitive reality. Congress has a responsibility to update our communications laws and to ensure that Americans benefit from competitive forces and innovation."

"Updating the communications laws is one of my highest priorities."


House IP and Broadband Services Bill What has been said about updating the FTA?

Ed Whitacre, Chairman and CEO, SBC Communications, Inc. "Now what they would like to do is use my pipes free, but I ain't going to let

them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using."

"Why should they be allowed to use my pipes? The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo or Vonage or anybody to expect to use these pipes free is nuts."

Earl Comstock, President and CEO, COMPTEL "The proposed House bill remains fundamentally flawed. The revised draft

legislation released last week resolved previous ambiguities in a way that will create Internet gatekeepers. As SBC's Ed Whitacre made perfectly clear in a recent Business Week article, the Bell companies have every intention of extracting a fee for Internet content sent over their networks. The Bells and cable companies have a long history of blocking competitive access to their facilities. Allowing this proposed bill to advance any further will undermine the Internet and pave the way for the Bell companies to remonopolize the nation's communications networks."



Committee Staff has circulated a proposed staff discussion draft for comment

The draft creates three new regulatory regimes Broadband internet transmission services (BITS) Voice over internet protocol (VoIP) services Broadband video services (BVS)



The staff discussion draft creates common regulatory definition for broadband Internet transmission services (BITS) which includes Digital Subscriber Line (DSL) Cable modems Other broadband services.

Ensures network neutrality to prevent broadband providers from blocking subscriber access to lawful content

Provides a uniform, federal regulatory framework for BITS, VoIP, and BVS providers Except in some areas where state or local rules still apply, such as rights-of-way

Authorizes the FCC to determine that VoIP providers can be required to contribute to the Universal Service Fund

Develops a streamlined franchising process for broadband video providers Applies many current cable video requirements to broadband video providers Allows municipalities to develop and deploy BITS, VoIP and BVS

Municipalities cannot provide preferential treatment for these services Must comply with all regulations governing private-sector providers.

Ensures that VoIP subscribers have access to 9-1-1


Recip Comp FNPRM

CC Docket No. 01-92 The FNPRM seeks comment on reform proposals or

principles submitted by the telecommunications industry and interest groups The FNPRM begins the process of replacing the myriad

existing intercarrier compensation regimes with a unified regime designed for a market characterized by increasing competition and new technologies

Likely to address access charges and recip comp


Recip Comp FNPRM

The FCC stated that any new approach to Intercarrier Compensation should Promote economic efficiency

Encourage the development of efficient competition Preserve universal service Be competitively and technologically neutral Address the impact on network interconnection

rules How and where carriers interconnect Allocation of responsibilities for facilities to interconnect


VoIP NPRM

WC Docket No. 04-36 The NPRM asks broad-reaching questions about

IP-enabled services Categorization of IP-enabled services Jurisdiction over such services Regulatory classification of such services

Other regulations that would be impacted Universal service Access to telecommunications for the disabled Access charges

VoIP issues that may affect the T2A2 ICAs VoIP Interconnection with the PSTN Carrier Compensation


TRRO Appeal

DC Circuit 05-1095 CLECs are appealing

Impairment test for high-cap loops Elimination of unbundling for DS1 Nationwide finding of non-impairment for mass

market local switching Local switching rate increase


Qwest Forbearance Petition

WC Docket 04-233 Qwest sought relief from statutory and regulatory obligations that

apply to it as an ILEC Relieved of Section 251(c)(3) unbundling obligations for

transmission facilities where intermodal deployment is extensive Relieved Qwest of the obligation to provide UNEs to competitors

in 9 of Qwest's 24 wire center service areas in the Omaha MSA Six-month transition period permits carriers that use UNEs in the 9

wire centers to migrate existing customers to alternative facilities or arrangements

Retained other Section 251(c) requirements Interconnection Interconnection-related collocation obligations

Retained Section 271 obligations to provide wholesale access to local loops, local transport, and local switching at just and reasonable prices


Changes in Texas Law

Will changes in Texas law affect these agreements? Revisions to PURA

Recent revisions to PURA will not require amendments PUC Rule Revisions and Orders

Rule revisions unlikely to require amendments unless they are implementing FTA revisions

Interpretation Orders unlikely to require amendments Appeals of Docket No. 28821

Cbeyond, CJP, Logix, and XO all have pending appeals


Opting In

A CLEC may file a "short form" adoption of one of five ICAs that were approved in Docket No. 28821 The "short form" is available on CLEC Online Provide general CLEC info

Name, OCN, notices, etc. Identify which ICA is being adopted Identify which Recip Comp option is selected

MCI contract has option of Superseding Amendment The CLEC must take the ICA in its entirety If the CLEC has a Superseding Amendment, it must be

incorporated into the adopted ICA for the duration of the Superseding Amendment


Opting In

This "short form" process shall apply to each of the five 28821 ICAs for so long as the ICA remains as originally approved by the Commission If an ICA is subsequently amended, the ICA will

no longer be available under the "short form" process

AT&T will process an adoption request for those ICAs using its standard contract processing guidelines and Commission rules


Opting In

May a CLEC opt into an agreement that is different from its initial agreement? A CLEC with a T2A2 may opt into another ICA If a CLEC has executed a Superseding

Amendment, the amendment must be incorporated into the ICA it opts into for the duration of the Superseding Amendment


Internet Resources

House Broadband Bill http://energycommerce.house.gov/108/News/09152005_1642.htm http://energycommerce.house.gov/108/Hearings/11092005hearing1706/

hearing.htm Recip Comp FNPRM

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-33A1.pdf FCC VoIP NPRM

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-28A1.pdf Qwest Forbearance Petition

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-170A1.pdf Triennial Review Resources

http://www.fcc.gov/wcb/cpd/triennial_review/triennialremand.html PUC Rulemaking Projects

http://www.puc.state.tx.us/rules/rulemake/index.cfm CLEC Online

https://clec.sbc.com/clec/

texaltel conference - december 2005 stability of the t2a2 agreements: term, change in law, and opt...

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