15.1. Virtual Collo 1
Issue: Should the Virtual Collocation Appendix contain the sole and exclusive terms and conditions by which MCIm obtains Virtual Collocation from SBC-CA or should MCIm also be able to purchase from the tariff?
Virtual Collocation § 1.2
Positions
SBC-CA's proposes the same outcome here as with Physical Collocation Issue 1 (i.e., the Virtual Collocation Appendix contain the "sole and exclusive" terms for MCIm to obtain virtual collocation from SBC-CA pursuant to § 251(c)(6) of the Act, and that MCIm "waive any right" to purchase virtual collocation from SBC-CA's tariff).
MCIm says the dispute here is the same as in GT&C Issue 10. MCIm asserts it should be permitted to purchase from either the ICA or an approved tariff.
Discussion
MCIm's proposal is adopted.
This issue is the same as GT&C 10 and Physical Collocation 1. For all the reasons stated above for those issues, the same outcome is adopted.
15.2. Virtual Collo 3
Issue: Should the Virtual Collocation Appendix include an Indemnification provision when such provision is contained in the General Terms and Conditions?
Virtual Collocation § 11.1
Positions
SBC-CA says yes, and proposes one specific sentence that SBC-CA asserts is different in substance and scope from other indemnification provisions in the proposed ICA. Just as with Physical Collocation 5, SBC-CA says here it also seeks appropriate indemnification applicable to the unique circumstances of collocation.
MCIm says no, arguing that SBC-CA's proposal is duplicative of, or conflicts with, the comprehensive and agreed-upon language in the GT&C.
Discussion
SBC-CA's proposed sentence is adopted.
Just as with the outcome adopted for Physical Collocation 2, 3 and 5, SBC-CA's proposed sentence is adopted here.
MCIm argues that SBC-CA should be required to prove that special indemnity provisions here are not duplicative of, or in conflict with, those in the GT&C. SBC-CA convincingly does so by pointing out:
"The closest to a similar provision in the GT&C indemnification section is GT&C §16.1(a) which reciprocally indemnifies each party against, among other things, any loss to a third party caused by the negligence of the indemnifying party or its agents and subcontractors. In contrast, the Virtual Collocation indemnification sentence provides that MCIm will indemnify SBC-CA for any damage done to MCIm's virtually collocated equipment, regardless of fault or negligence, if SBC-CA permits MCIm to hire an approved contractor to remove virtually collocated equipment.
"Thus, while the GT&C indemnification provision protects both parties against losses to third parties caused by the indemnifying party's negligence, the Virtual Collocation indemnification sentence protects SBC-CA itself against losses to MCIm should MCIm's selected contractor, even without negligence, damage MCIm's virtually collocated equipment during the removal process.* This is a relatively common problem, since removing equipment, even with due care, often results in some damage to the removed equipment. SBC-CA should be protected against MCIm claims for damage to such equipment where the removal is done by someone other than SBC-CA and where SBC-CA is not grossly negligence. [sic] [footnote deleted.]"
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"* Agreed language in § 11.1 of Appendix Virtual Collocation already makes SBC-CA liable for damage caused to MCIm virtually collocated equipment caused by SBC-CA's gross negligence during removal."
(SBC-CA Opening Brief, pages 237-238, emphasis in original.)
Thus, SBC-CA's proposed sentence is adopted.
15.3. Virtual Collo 5
Issue: Should the Virtual Collocation Appendix include a Limitation of Liability requirement when such requirement is contained in the General Terms and Conditions?
Virtual Collocation §§ 14.1-14.5
Positions
SBC-CA says yes for the same reasons it stated under Physical Collocation 2 and 5.
MCIm says no for the same reasons stated with Physical Collocation 2, 3 and 5.
Discussion
SBC-CA's proposed language is adopted for the same reasons stated above under Physical Collocation 2, 3 and 5.
15.4. Virtual Collo 6
Issue: Should the Virtual Collocation Appendix include an Insurance requirement when such requirement is contained in the General Terms and Conditions?
Virtual Collocation §§ 14.6 et seq.
Positions
SBC-CA says yes for the same reasons it stated under Physical Collocation 3.
MCIm says no for the same reasons stated with Physical Collocation 2, 3 and 5.
Discussion
SBC-CA's proposed language is adopted for the same reasons stated above under Physical Collocation 2, 3 and 5.