REVISED RELEASE AND SETTLEMENT AGREEMENT
This Revised Release and Settlement Agreement (the "Agreement" or "Settlement") is entered into as of February 6, 2003, by and between SBC-Advanced Solutions, Inc., a Delaware corporation ("ASI"), Pacific Bell Telephone Company, a California corporation (hereafter referenced as "SBC California"), and the California ISP Association, a California non-profit corporation ("CISPA"), collectively ("the Parties"). This Agreement supercedes and replaces in all respects the Settlement Agreement previously entered into by CISPA, SBC -Advanced Solutions, Inc. and Pacific Bell Telephone Company entered as of August 12, 2002.
WHEREAS, ASI offers digital subscriber line transport services ("DSL Transport") to ISPs in California, and SBC California provides joint marketing services for the DSL Internet access services from its internet affiliate in California, Pacific Bell Internet Services (hereafter referenced as "SBCIS"); and
WHEREAS, on or about July 25, 2001, CISPA filed a complaint (the "Complaint") with the California Public Utilities Commission (the "Commission" or "CPUC") against SBC California and ASI (the "Defendants") alleging illegal discrimination in connection with DSL Transport services and alleging that ASI and SBC California are seeking to leverage their control over DSL infrastructure into a new monopoly in California with respect to the provision of broadband Internet access and delivery of Internet content; and
WHEREAS, ASI and SBC California deny the allegations in the Complaint; and
WHEREAS, the parties wish to resolve all remaining disputes without resorting to further litigation and to compromise and settle all disputes relating to conduct that was the basis of the claims made in the Complaint;
NOW, THEREFORE, in consideration of the promises contained in this Agreement, and for good and valuable consideration, the adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. ASI/SBC CALIFORNIA PRACTICES.
a. Broadband Capabilities Gateway ("BCG").
ASI has no current plan to deploy BCG. BCG is defined as an architecture that would enable ASI to deliver multiple, simultaneous sessions over a single DSL line (defined as the line between the NID ("network interface device") at an end user's home/business and the DSLAM/RT (digital subscriber line access multiplexer/remote terminal)) as well as to deliver varying bandwidth and quality of service on demand to each session. ASI agrees it shall not, without first obtaining the written consent of any affected ISP: (i) require migration from the single ATM PVC ("permanent virtual circuit") per subscriber model and use of the current VP ("virtual path") delivery method; (ii) implement multiple, simultaneous sessions and bandwidth or quality of service on demand capabilities on the ISP's end user line; (iii) transmit data over the bandwidth on the DSL line subscribed to and paid for by the ISP; and (iv) use information which identifies an end user of the ISP in order to market competing services to that end user. Refusal of an ISP to grant consent to any of these items will not be cause for termination of ASI's DSL Transport service. Nothing in this paragraph will be construed to entitle one ISP to grant or withhold authority affecting the services delivered to end users of any other ISP.
b. Grandfathering of Speeds.
In the event ASI elects to discontinue offering the Basic (384-1.5) and Premium (1.5-6.0) speed options (the "Two Speed Option"), ASI agrees, pursuant to this Agreement, to grandfather existing services using the Basic (384-1.5) and Premium (1.5-6.0) speed options and to set the price for the grandfathered Two Speed Option services as follows. The price offered for the Basic Speed shall not exceed the price for the 384-768 kbps speed, as it may change from time to time, and the price for the Premium Speed option shall not exceed the price for the 1.5-4.0 mbps speed, as it may change from time to time.
ASI will provide 60 days' written notice prior to the expiration of a period of time when ISPs may add new customers that would be eligible for the grandfathered price.
The grandfathered status will apply only to end user accounts so long as no change requests are initiated by the ISP or the end user for such account. This grandfathered status will not be lost if the ISP issues requests to: (i) move the end-user circuit to a new or upgraded ATM circuit of the ISP or due to transfer of end-user circuits to an ISP acquiring all or substantially all assets of the current ISP; (ii) to change an ATM VPI/VCI associated with the circuit; or (iii) other changes which do not affect the service offering selected for the end-user's circuit. This grandfathered status also will not be lost if the end-user makes changes to the underlying POTS service on the phone line at the existing location, including changing POTS service feature options, changes the phone number of the POTS line, or changes the billing name on the POTS account.
