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Appendix Poles, Conduits, and Rights-of-Way/SOUTHWESTERN BELL TELEPHONE, L.P.
Page 28 of 49
SBC TEXAS/CLEC JOINT PETITIONERS
082505
assigned, not designated as the maintenance duct, and not subject to applicable make-ready
requirements. Availability shall be based on the appropriate SBC TEXAS records to be maintained
by SBC TEXAS but which will be made available for viewing by CLEC on two business days notice
as provided in Section 7.03 of this Appendix. CLEC will bear all risks resulting from the possibility
that space which appears from the records to be available is not in suitable condition to be used by
CLEC.
(e) If SBC TEXAS fails to respond in writing within 30 days of SBC TEXAS’ documented receipt of a
license application pursuant to Section 9.02 of this Appendix, or within such other period of time as
may be mutually agreed upon in writing by the parties, CLEC may by written notice inquire whether
SBC TEXAS intends to deny CLEC’s request for access. After such notice has been given and
receipt by SBC TEXAS of a properly submitted license application has been confirmed, SBC
TEXAS’ failure to respond in writing within 15 days after receipt of the notice shall be deemed to
constitute approval of the request for access. In such event, CLEC shall be entitled to occupy the
space requested without the formality of a license; provided, however, that nothing contained in
this subsection shall authorize CLEC to occupy space already occupied or subject to a prior valid
space assignment to SBC TEXAS or any third-party; and provided further that nothing in this
subsection authorizes CLEC, without first obtaining SBC TEXAS’ written authorization, to (1) place
its facilities on any pole or in any duct or conduit that requires make-ready work (other than thirdparty
make-ready work arranged directly by CLEC) or (2) utilize any infrequent construction
technique or connectivity solution described in Section 6.03.
10.02 Obligation to Construct or Modify Facilities; Capacity Expansions. The parties agree that SBC TEXAS may
grant access subject to CLEC’s approval of such make-ready work or facilities modifications as may be
required to expand capacity to accommodate CLEC’s request, in which event CLEC shall either accept
such conditions, initiate good faith negotiations to explore other potential accommodations, or withdraw its
request for access. If SBC TEXAS does not offer to expand capacity and denies CLEC’s request for
access, SBC TEXAS shall promptly notify CLEC of such determination. SBC TEXAS shall not deny
CLEC’s request for access on lack of capacity grounds when capacity can be expanded as provided in this
section and in Section 6.03 of this Appendix dealing with infrequent construction techniques and
connectivity solutions:
(a) SBC TEXAS agrees to modify its outside plant facilities to the extent that the CLEC agrees to pay
for the modification at cost, such as but not limited to cable consolidations, as long as such
modifications are consistent with capacity, safety, reliability, and engineering considerations which
SBC TEXAS would apply to SBC TEXAS if the work were performed for its own benefit. SBC
TEXAS may recover from CLEC the costs of modifying its outside plant facilities for CLEC’s space.
SBC TEXAS will require payment of the full amount in advance, subject to the true-up of the
estimated costs with the actual costs. Reimbursement for the Creation or Use of Additional
Capacity - If any additional capacity is created as a result of make-ready work performed to
accommodate CLEC’s facilities, CLEC shall not have a preferential right to utilize such additional
capacity in the future and shall not be entitled to any fees subsequently paid to SBC TEXAS for
the use of such additional capacity. If SBC TEXAS utilizes additional space or capacity created at
the CLEC’s expense, SBC TEXAS will reimburse CLEC on a pro-rata basis for SBC TEXAS’
share, if any, of CLEC’s capacity expansion costs, to the extent reimbursement is required by
applicable rules, regulations, and commission orders. SBC TEXAS will notify the CLEC if any
entity, including SBC TEXAS, attaches facilities to additional capacity on SBC TEXAS’ Structure
created at the CLEC’s expense. SBC TEXAS shall not be required to collect or remit any such