20241119Answer.pdf

RECEIVED
Tuesday, November 19, 2024
C. Tom Arkoosh, ISB No. 2253 IDAHO PUBLIC
ARKOOSH LAW OFFICES UTILITIES COMMISSION
913 W. River Street, Suite 450
P.O. Box 2900
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
Email: tom.arkooshkarkoosh.com
Admin copy: erin.cecilkarkoosh.com
Attorneys for Respondent
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
MIKE AYERS, Case No. CTC-T-24-01
Complainant, ANSWER
V. )
ZIPLY FIBER OF IDAHO, LLC, d/b/a
ZIPLY FIBER, )
Respondent. )
COMES NOW the Respondent, Ziply Fiber of Idaho, LLC, d/b/a Ziply Fiber ("Ziply
Fiber"), by and through its counsel of record, C. Tom Arkoosh of Arkoosh Law Offices, and
respectfully submits this Answer to the Formal Complaint ("Complaint") of Mike Ayers to the
Idaho Public Utilities Commission ("PUC" or "Commission"). Ziply Fiber received the Summons
and Complaint in this case via Certified USPS mail on October 31, 2024, and its response is due
on or before November 21, 2024.
Ziply Fiber operates in the Elk City exchange as an incumbent local exchange carrier under
a Certificate of Public Convenience and Necessity issued by the Commission.
Ziply Fiber moves the Commission to dismiss this Complaint on the grounds that(1)Ziply
Fiber's compliance with the Commission's repair service standards and restoration of service rule
depends on circumstances outside Ziply Fiber's control, and(2) such restoration or repair without
ANSWER—Page 1

a customer contribution to construction would violate the terms and conditions of Ziply Fiber's
publicly filed ID Competitive Exchange and Network Services Price List, as well as its Network
Access Service Idaho Price List by requiring Ziply Fiber to undertake an unreasonable expense.
Such violations would run afoul of both statute and the Commission's adoption of the filed rate
doctrine in Idaho.
Given that the Complaint is not in standard form (as a pro se pleading), Ziply Fiber will
respond to Mr. Ayers' allegations in narrative form rather than with denials and/or admissions.
However, to the extent that Mr. Ayers' Complaint alleges violations of the Commission's
Telephone Customer Relations Rules, Ziply Fiber denies those allegations for the reasons set out
below.
THE ROOT CAUSE OF THE TROUBLE WITH COMPLAINANT'S LINE IS
THE FAILURE OF AVISTA CORPORATION TO MAINTAIN ITS UTILITY POLES
TO WHICH ZIPLY FIBER'S CABLES ATTACH
Ziply Fiber provides telephone service to Mr. Ayers through copper cables attached to
poles owned by Avista Corporation ("Avista"). Ziply Fiber attaches facilities to Avista poles in
Idaho via a Joint Use Agreement ("Agreement") between Ziply Fiber and Avista. This service
location is remote, located along State Highway 14, approximately 11 miles west of Elk City. The
highway itself is in a canyon winding along the Clearwater River. The route is largely aerial, and
Ziply Fiber is attached to Avista Power utility poles that are in a severe state of disrepair, in
violation of the aforementioned Agreement between the parties, and of Commission rules. In
pertinent part,Avista signed on to the following language in the Agreement: "Owner shall maintain
its Joint Use Poles in a safe and serviceable condition and in accordance with Code, and shall be
responsible for replacement, reinforcement or repair of said poles as necessary for continued
compliance with Code." To date, Avista has not complied with its responsibilities under the
ANSWER—Page 2

Agreement to repair or replace the faulty poles. Many of the decrepit poles have collapsed,placing
Ziply Fiber cables and electronics on the ground and,in some cases,into standing or running water.
In turn,the cables and repeaters have sustained sheathing damage and water intrusion,resulting in
the service issues experienced by Mr. Ayers and other customers served through these cables. The
Agreement has provisions for Avista's discontinuance of the use of joint-use poles; however, if
Avista has, in fact, abandoned the poles, the requisite notice and transfer of ownership
contemplated under the Agreement has not been accomplished. Ziply Fiber has no record of notice
of Avista's abandonment of these poles, nor does Ziply Fiber have any transfer of ownership
documents (as contemplated in the Agreement) in a Ziply Fiber system of records.
Avista's failure to maintain its poles also appears to violate Idaho Code § 61-302 (Duties
of Public Utilities), which states, "Every public utility shall furnish, provide and maintain such
service, instrumentalities, equipment and facilities as shall promote the safety,health, comfort and
convenience of its patrons, employees and the public, and as shall be in all respects adequate,
efficient,just and reasonable."
In addition, the Commission's Telephone Customer Relations Rule 502.02 states:
Extenuating Circumstances. Following disruption of telephone service caused by
natural disaster or other causes not within the telephone company's control and
affecting large groups of customers, or in conditions where the personal safety of
an employee would be jeopardized, the telephone company is required to use
reasonable judgment and diligence to restore service, giving due regard for the
needs of various customers.
Ziply Fiber submits that Avista's failure to maintain its poles constitutes both a cause "not
within the telephone company's control" as well as a condition where the personal safety of Ziply
Fiber employees would be jeopardized if those employees attempted to repair downed poles in
rugged and(in parts)near-impassable terrain.
ANSWER—Page 3

IDAHO ADHERES TO THE FILED RATE DOCTRINE
The Commission has cited and adhered to the filed rate doctrine in a number of its decisions
and orders over the years.' In Idaho,the filed rate doctrine is established(in part)in statute at Idaho
Code § 61-310:
No common carrier except as in this act otherwise provided shall charge, demand,
collect or receive a greater or less or different compensation for the transportation
of persons or property, or for any service in connection therewith than the rates,
fares and charges applicable to such transportation as specified in its schedules filed
and in effect at the time; nor shall any such carrier refund or remit in any manner
or by any device any portion of the rates, fares or charges so specified except upon
order of the commission as hereinafter provided, nor extend to any corporation or
person any privilege or facility in the transportation of passengers or property
except such as are regularly and uniformly extended to all corporations and persons.
In order to remain in strict compliance with the filed rate doctrine demanded by the statute
cited above,Ziply Fiber must adhere to its Competitive Exchange and Network Services Price List
and its Idaho Price List for Network Access Services filed with the Commission. That this
Commission has adopted the filed rate doctrine is a settled question.'
ZIPLY FIBER'S PUBLISHED RATES, TERMS,AND CONDITIONS OF
SERVICE EXCUSE IT FROM UNDERTAKING UNREASONABLE EXPENSES TO
CONTINUE TO FURNISH OR MAINTAIN SERVICE
Ziply Fiber's publicly filed ID Competitive Exchange and Network Services Price List,
filed with the Commission, which contains the Company's filed rates, terms, and conditions, at
1 The U.S. Supreme Court has enshrined the filed rate doctrine in case law: The classic statement of the "filed rate
doctrine,"as it has come to be known is explained in Louisville Nashville R. Co. a Maxwell,237 U.S.94,35 Ct.494,
59 LEd. 853 (1915)reads:
Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge.
Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice
of it, and they as well as the carrier must abide by it, unless it is found by the Commission to be
unreasonable.Ignorance or misquotation of rates is not an excuse for paying or charging either less
or more than the rate filed.This rule is undeniably strict and it obviously may work hardship in some
cases,but it embodies the policy which has been adopted by Congress in the regulation of interstate
commerce in order to prevent unjust discrimination.
Z See, e.g.,Phillips v Idaho Power Company, Case Number IPC-E-07-01, Order No. 30431, issued September 17,
2007.
ANSWER—Page 4

Section 2.2.2 states:
The Company's obligation to furnish service or to continue to furnish service is
dependent on its ability to obtain, retain, and maintain suitable rights and facilities,
without unreasonable expense, and to provide for the installation of those facilities
required incident to the furnishing and maintenance of that service. Such
connections are also subject to the availability of required facilities.
[emphasis added].
In this case, Ziply Fiber cannot continue to furnish service without unreasonable expense.
Ziply Fiber's estimate of the cost to repair the downed poles and maintain service to Mr. Ayers
and others on the same cable is $2,164,945.59. For the Commission to order Ziply Fiber to expend
this amount without any customer contribution to said construction would violate the filed rate
doctrine by forcing Ziply Fiber to undertake an unreasonable expense in contravention of its
published rates, terms, and conditions of service. The extraordinary cost to resolve this situation,
which resulted from circumstances outside Ziply Fiber's control, would self-evidently be an
unreasonable expense.3 There is no realistic expectation that the return on investment from
providing Mr. Ayers basic telephone service at regulated rates would ever amortize a $2.16+
million expense during a commercially reasonable time period.
Moreover, Ziply Fiber's Idaho Price List for Network Access Services, filed with the
Commission as well,recites the Company's obligation to provide service at Rule A3: "The utility's
obligation to furnish service is dependent upon its ability to secure and retain without unreasonable
expense suitable facilities and rights for the construction and maintenance of the necessary pole
lines, circuits, and equipment."
Until Avista repairs or replaces its poles, Ziply Fiber has no suitable facilities available
3 The Cornell Law School Legal Information Institute defines unreasonable: "The term `unreasonable'refers to any
action or result that exceeds a reasonable expectation, or refers to anything beyond what would be considered
`common sense."'
ANSWER—Page 5

without undertaking an unreasonable expense. The same page of the Idaho Price List for Network
Access Services also makes clear that there may be a customer contribution required in advance
for providing services and facilities:
An applicant for telephone service may be required to pay in advance at the time
application for service is made,the service charges applicable,together with at least
one month's charges for the services, equipment, and facilities applied for, and
where necessary, in the opinion of the utility,the estimated amount of construction
and installation charges.
Here again, the Company's obligation to provide service is conditioned on the avoidance
of unreasonable expense and provides that Ziply Fiber may request charges for the costs of
equipment and facilities in advance. Ziply Fiber has done so here, and Mr. Ayers has refused to
pay(the admittedly extraordinary) expense.
MR. AYERS HAS ADDITIONAL BASIC EXCHANGE SERVICE
OPTIONS AVAILABLE
The Commission has designated ViaSat as an ETC serving the Elk City exchange, among
others.Additionally,the FCC National Broadband Map indicates that both HughesNet and Starlink
serve in Mr. Ayers' area.'Idaho statutes provide a definition of universal service that all ETCs are
required to provide: "`Universal service' means basic local exchange service and other
telecommunication services designated by the commission as services which should be widely
available to consumers in all regions of the state at just and reasonable rates."5 All ETCs share the
duty to provide basic local exchange service at just and reasonable rates;thus, Mr. Ayers has basic
local exchange service available from at least one competitive provider at Commission-designated
just and reasonable rates.6 As a practical matter,although Idaho has no carrier of last resort statute,
4 https:/ibroadbandmap.fcc.goy/provider-detail/fixed?version=dec2023&zoom=8.85&vlon=-
115.234169&vlat=48.629484&providers=270063_50_on%2 C270063_70_on%2C270063_71_on&br—r&speed=0_0
&pct_cvg=0
s Idaho Statutes§ 62-610B.
6 Idaho Statutes§62-610D.
ANSWER—Page 6

Mr. Ayers has three other options for basic local exchange service at his address without taking
into account the availability of mobile telephone service.' If the Commission dismisses his
Complaint, Mr. Ayers will not be left without service options.
PRAYER FOR RELIEF
For the reasons expressed above in this Answer, including its rights to avoid unreasonable
expense under its filed rates, terms, and conditions in its Price Lists, the unavailability of suitable
facilities, and in accordance with the filed rate doctrine, Ziply Fiber respectfully requests that the
Commission dismiss Mr. Ayers' Complaint.
DATED this 19th day of November 2024.
ARKOOSH LAW OFFICES
C. Tom Arkoosh
Attorney for Respondent
The Future of Idaho's Universal Service and its Relationship to Broadband Deployment, Idaho Public Utilities
Commission,April 2015,p.23.
ANSWER—Page 7

CERTIFICATE OF MAILING
I HEREBY CERTIFY that on the 19th day of November 2024, I served a true and correct
copy of the foregoing document(s)upon the following person(s), in the manner indicated:
Commission Secretary U.S. Mail, Postage Prepaid
Idaho Public Utilities Commission Overnight Courier
11331 W. Chinden Blvd., Building 8, Hand Delivered
Suite 201-A(83714) Via Facsimile
P.O. Box 83720 X_ Email:
Boise, ID 83720-0074 secretgakpuc.idaho.gov
Michael L. Duval U.S. Mail, Postage Prepaid
Deputy Attorney General Overnight Courier
Idaho Public Utilities Commission Hand Delivered
11331 W. Chinden Blvd., Building 8, Via Facsimile
Suite 201-A(83714) X_ Email:
P.O. Box 83720 michael.duval(kpuc.idaho.gov
Boise, ID 83720-0074
Mike Ayers X_ U.S. Mail, Postage Prepaid
5140 Hwy 14 Overnight Courier
Grangeville, ID 83530 Hand Delivered
Via Facsimile
X Email: meayers987kgmail.com
C. Tom Arkoosh
ANSWER—Page 8