8. Operational Support Systems

8.1. OSS 1

SBC-CA proposes that MCIm bear responsibility for any harm to SBC-CA's OSS if anyone (whether an MCIm employee or a third party) harms SBC-CA's OSS after gaining access to it through MCIm's workstations, systems, information or facilities.

MCIm opposes being required to indemnify SBC-CA, particularly in the absence of any underlying fault on MCIm's part.

Discussion

SBC-CA's language is adopted.

The damage at issue here would be as a result of access to SBC-CA's OSS through MCIm's workstations, systems, information or facilities. MCIm (not SBC-CA) controls access to SBC-CA's OSS through MCIm's facilities. Consequently, MCIm should bear responsibility for whatever harm results, if any, from that access.

MCIm argues SBC-CA's proposed language is unreasonable since it would require MCIm to indemnify SBC-CA even in the absence of any underlying fault on MCIm's part. To the contrary, as also found by the Michigan Commission in 2001, MCIm:

    " `is in the best position to ensure that its equipment and access to the OSS are not abused or misused. Even if a situation arises in which unauthorized access cannot be said to be [CLEC'S] direct fault, if the access is gained through [CLEC's] equipment or personnel, [CLEC] should be responsible for damages that result.'" (SBC-CA's Opening Brief, page 114, citing Michigan Commission order dated September 7, 2001 in Case U-12952, page 28.)

MCIm also argues that SBC-CA's proposed language is unnecessary since the parties have agreed to comprehensive indemnity provisions in the General Terms and Conditions (GT&C). This is not the case. The indemnity provisions of the GT&C do not cover damage caused to SBC-CA by a third party through MCIm's facilities as addressed here, and MCIm does not show specific language doing otherwise. Indeed, if the GT&C adequately covered the situation, MCIm would not have proposed its own language for OSS § 2.2. MCIm, however, proposes the Commission adopt:

    "In addition, MCIm agrees to indemnify and hold SBC CALIFORNIA harmless against any claim made by an end user customer of MCIm or other third party against SBC CALIFORNIA caused by or related to MCIm's use of any SBC CALIFORNIA OSS."

As a result, the only actual competing language presented for this arbitration is whether or not liability (a) is limited to MCIm's use of SBC-CA's OSS or (b) also extends to use by another party through MCIm's facilities of SBC-CA's OSS. As stated above, and as found by the Michigan Commission, SBC-CA's proposal is reasonable.

Finally, MCIm is also concerned that SBC-CA be required to demonstrate that it incurred damages. This is adequately covered by SBC-CA's proposed language, wherein SBC-CA has the burden to demonstrate that the damages were caused by unauthorized entry, access or use through MCIm's systems.

Therefore, SBC-CA's proposed language is adopted.

8.2. OSS 3

SBC-CA proposes that MCIm pay all costs caused by inaccurate ordering or usage of the OSS, unless such costs are already recovered through other charges assessed by SBC-CA to MCIm.

MCIm contends that SBC-CA's additional language is unnecessary since both parties have already agreed to use reasonable business efforts to submit orders that are correct and complete.

MCIm's proposed language is adopted.

SBC-CA's additional language is unnecessary. MCIm already has sufficient incentive to submit accurate and timely orders. Otherwise, service to its customers will be delayed, and MCIm will loose revenue and potential profit.

Further, MCIm already commits in agreed-to language to use reasonable business efforts to submit orders that are correct and complete, while SBC-CA commits to using reasonable business efforts to process MCIm's orders before rejecting those orders as inaccurate or incomplete. Parties also agree to conduct internal and independent reviews for accuracy. Thus, both parties are committed to reasonable actions along with reviews to test for accuracy.

There is no evidence of an increase in inaccurate orders or misuse of SBC-CA's OSS that would justify SBC-CA's proposed language. Both parties are already required to act in good faith under this ICA. (2006 ICA GT&C, § 1.4, agreed language). They also have the additional responsibility here to act in accordance with reasonable business efforts along with periodic reviews. (2006 ICA Appendix OSS, § 2.10, agreed language).

Finally, MCIm commits in agree-to language to being "responsible for all actions of its employees using any of SBC-CA's OSS systems." (2006 ICA OSS, § 2.10.) That is, if an MCIm employee uses any of SBC-CA's OSS systems and damages result, MCIm already says it is responsible for those actions. MCIm's language is not understood to be hollow. That is, being responsible for an action is understood in this ICA to also mean being responsible for the consequences of the action (at least to the extent not already recovered via other charges). As such, SBC-CA's proposed language is largely, if not completely, redundant.

Therefore, MCIm's proposed language is adopted.

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