Interim Determination Clause Samples

Interim Determination. We agree with TBI that BTC’s general terms for its retail customers are not, as a whole, applicable in a wholesale environment or appropriate for application to the retail customer of a Carrier. As such, the definition of, and all references, to “General Conditions” should be removed from BTC’s Draft MAIA. If BTC believes that portions of its General Conditions are reasonably applicable in the wholesale environment, BTC should include that text in its Core/Residential Compliance MAIA for review and approval by the Authority.

Interim Determination. 115. In response to the concerns expressed by TBI, our review of the language of this section indicates that it calls for the parties to work together to achieve a mutual agreement concerning any proposed amendments to the agreement proposed by either party. Resolution by mediation or the dispute resolution procedures presented in Clause 12 only becomes necessary as a last resort in the event that a mutual agreement cannot be reached.

Interim Determination. 131. We agree with BDC’s suggestion regarding their proposed change to the concluding language of Clause 19.1 and assume that the word "reasonably" was a typographical error. Accordingly, BCV should modify the concluding language of Clause 19.1 to read “…without the prior written consent of the other party, which consent shall not be unreasonably withheld.”

Interim Determination. Our reading of Clause 14 has persuaded us that the protections sought by TBI are currently contained within the language of the clause itself. Clause 14.8 prohibits the use of a CP’s confidential information by BCV to provide commercial advantage to BCV’s retail operations, unless a CP provides express written permission to do so. Moreover, the language contained in the Clause 14 confidentiality restrictions is such that it creates a strong fence around TBI’s confidential information, thereby restricting the use of this information solely for the purposes for which it was disclosed, thereby effectively barring its use for the solicitation of TBI’s customers. Finally, Clause 14.5 states that the provisions of Clause 14 shall remain in effect for two years after the termination of the A&I Agreement.

Interim Determination. The limited defined circumstances in which BCV seeks to be permitted to suspend service without prior notice appears to be reasonable. BCV’s proposed language is therefore approved. BDC’s argument that Clause 3.12 applies to situations where BCV is no longer eligible to provide the service is misplaced as this clause addresses situations in which the CP is no longer eligible to receive the service. We find BCV’s language requiring "reasonable endeavours" to provide prior notice reasonable under the limited circumstances addressed in this clause. Furthermore, we do not believe it is necessary to grant TBI’s request to insert language stating that suspension powers will be applied consistently as between BCV and CPs.

Interim Determination. 146. The Authority regards the point raised by TBI regarding assignment as a reasonable concern, particularly in light of the obligations established under the Remedies GD and the importance of ensuring continued and effective access and interconnection for the market.39 Accordingly, BTC should amend current Clause 19.2 of the Draft MAIA as indicated below:

Interim Determination. 169. The Remedies GD (paragraph 41(e)) states that for “…the Wholesale market for the transmission facilities used to deliver Subscription Television Services to End- Users…” (the subject of Annex 3C), BCV is required to supply only “…a Wholesale resale service….that is fit for the purpose of replicating (in content and quality of service) the Retail Subscription Television Services made available by BCV via its various Retail Subscription Television Service tier offerings.” Therefore, no modification is required. 170. However, the Authority notes that the text of the Remedies GD cited above requires BCV to replicate at the wholesale level any network or systems modifications it makes to facilitate its own provision of retail video service offerings including IPTV.

Interim Determination. TBI’s argument regarding Clause 3.6 seems misplaced as this clause addresses the terms of the CP terminating the A&I Agreement, not BCV. We note that ▇▇▇▇ did not protest the requirement of six months prior notice but BDC did because it wanted the opportunity to cancel the A&I Agreement prior to the imposition of a price change. We agree with BDC’s proposal for the reasons given by BDC. BCV should revise Clause 3.6 as shown below in Section 4.2.6.1.

Interim Determination. The language of Clause 24.2 relates only to those instances in which the RA expressly instructs BCV to modify the MAIA. The circumstances under which the RA would require modifications to BCV’s MAIA are strictly governed by the Remedies GD and, in the majority of cases, require the Authority to seek comments from any parties that may be affected by the modifications being proposed. However, in the interests of clarity, and to avoid confusion, BCV should modify the language of Clause 24.2 to make this clearer. Clause 24.3 also should be modified to ensure that any changes concerning SMP products are made available to all eligible CPs on a non-discriminatory basis in conformity with the Remedies GD and the ECA. 146. For the reasons set forth in paragraph 19 above, the Authority is of the view that the MAIA should make clear that either party may request the Authority to consider the need for a material modification of any material provision of the MAIA that comes to light after the Authority issues its Final Decision and Order. 147. To these ends, BCV should replace Clauses 24.2 and 24.3 with the following: