Drafting Telecom Services Agreements: Structuring Key Provisions, Anticipating Legal Pitfalls, Mitigating Risks

Telecommunications technologies (wireline, wireless, broadband) are constantly evolving, creating ongoing challenges for counsel negotiating telecom services contracts. Business and technology attorneys must be aware of emerging telecom technologies and changes in market-based pricing and service standards, and understand how to effectively negotiate contract terms that take these factors into account.

Well-drafted telecom services agreements address rates and terms, upgrade paths, termination rights, service levels, billing, security, liability issues, and more. Business and technology counsel must understand current trends and common challenges in negotiating terms in order to provide useful guidance to their clients. Best practices on procurement strategies will also be highlighted.

Listen as our panel experienced in negotiating and drafting telecom services agreements outlines recommended best practices. The panel will examine provisions commonly included in the agreements and potential legal pitfalls facing businesses engaged in contract negotiations.

1. Telecom terminology/lexicon for attorneys
2. Regulatory overlay: Communications Act—What’s regulated? What’s not? Relevance to enterprise deals
   1. Title II, Title III and information services
   2. Universal Service Fund (USF) and state transaction taxes
   3. FCC vs. state regulation (disappearing tariffs)
   4. Domestic, international and rest-of-world services
3. Major service agreements/schedules
   1. Wireline
   2. Wireless
   3. Satellite services
   4. Managed services
   5. Data center/collocation
4. Role of consultants and RFPs
   1. Who are these consultants?
   2. Role in the procurement process
   3. Value of telecom RFPs
5. MSA core provisions
   1. Contracting parties (capturing affiliates/joint ventures)
   2. Precedence of documents/online documents
   3. Dispute resolution
   4. SLAs (basis for escalated remedies) (service and provisioning)
   5. Partial termination/remedies
   6. Transition (@expiration & @termination)
   7. Carrier form agreements vs. customer-provided
   8. Third-party services (subject to service provider control and obligations)
   9. Indemnities
   10. Force majeure/loss of legal authority
   11. Privacy/CPNI/confidentiality
   12. Open internet/broadband privacy concepts
   13. Carrier obligations vs. policies (privacy, AUP)
6. Schedule-specific provisions
   1. SLAs/remedies
   2. Pricing
   3. Service-specific commitments and incentive targets
   4. Provisioning
   5. Smartphone costs
   6. Competitive pricing reviews
   7. Technology uplift provision
   8. Unique aspects of non-core services

The panel will review these and other key issues:

• How do telecom agreements differ from other technology contracts? To what extent does regulation matter—and how? Does the recent controversy over net neutrality affect these deals?
• What are some of the distinguishing deal points that one encounters in negotiating enterprise contracts for wireline, wireless, broadband internet fiber (dark and lit), data center and colocation, and WiFi services?
• What are the benefits of a request for proposal (RFP)? What is the proper role of consultants?
• What are the typical contract documents and how do customers address service provider’s online terms and conditions?
• What happens when deals break down? Arbitration vs. litigation vs. mediation? What remedies actually work?