20250128Memorandum ISO Respondents Motion for Summary Judgement.pdf

RECEIVED
Tuesday, January 28, 2025
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.arkoosh&arkoosh.com
Admin copy: erin.cecil(karkoosh.com
George Baker Thomson, Jr., Florida Bar No. 381561
Associate General Counsel
Ziply Fiber of Idaho, LLC, d/b/a Ziply Fiber
426 E. Casino Rd., ATTN: Legal
Everett, WA 98208
Telephone: [phone]
Email: george.thomson(a,ziply.com
Admitted Pro Hac Vice
Attorneys for Respondent
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
MIKE AYERS, Case No. CTC-T-24-01
Complainant, MEMORANDUM IN SUPPORT OF
RESPONDENT'S MOTION FOR
V. SUMMARY JUDGMENT
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
George Baker Thomson, Jr.,Pro Hac Vice counsel, and respectfully submits this Memorandum in
Support of Respondent's Motion for Summary Judgment.
I. INTRODUCTION
This case arises from a pro se Formal Complaint ("Complaint") from Michael Ayers
("Ayers") stating that his service from Ziply Fiber is deficient. The Idaho Public Utilities
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 1

Commission ("PUC" or"Commission") Staff has taken the stance that Ziply Fiber is in violation
of IDAPA 31.41.01.500.01 ("Rule 500"), which requires proper maintenance and repairs by a
telephone provider to ensure "safe, adequate and uninterrupted service."However, the PUC Staff
determination failed to consider several undisputable facts in its analysis.
First, Ziply Fiber is not the responsible party for maintenance and repairs to the poles on
which Ziply Fiber runs its service.Avista Corporation ("Avista") owns the poles.Avista's failure
to fulfill this duty is the factual cause of any deficiency Ayers is experiencing.
Second, such restoration or repair would violate the terms and conditions of Ziply Fiber's
publicly filed Idaho Competitive Exchange and Network Services Price List and its Network
Access Service Idaho Price List by requiring Ziply Fiber to undertake an unreasonable expense.
Third, the Idaho legislature has not given the PUC jurisdiction over telephone service
attachments on electric utility poles.
Fourth,Idaho does not have a carrier of last resort("COLR")obligation in rule or in statute.
Ziply Fiber is a PUC-designated Eligible Telecommunications Carrier ("ETC") obligating it to
provide broadband and voice service where Federal Communications Commission("FCC") High
Cost funds have been awarded to construct and maintain network assets. Ziply Fiber has not been
awarded FCC High Cost funds in its Elk City exchange, the subject area of Ayers'Complaint.
Fifth, Viasat Inc. ("Viasat"), is also an ETC. Viasat bid and, on or about August 28, 2018,
was awarded Connect America Fund Phase II Auction support in the amount of$4,402,039.90,
covering 3,607 locations in Idaho, which includes the subject area of this Complaint. The FCC
publishes information about the award area obligations and progress through the Universal Service
Administrative Company on the Connect America Fund Broadband Map
(hops://data.usac.org/publicreports/caf-maps.Viasat has reported deploying service in the subject
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 2

area of this Complaint in 2022 and, as such, holds the obligation to provide broadband and voice
service to the subject area of this Complaint.
Finally, according to the FCC National Broadband Map
(https://broadbandmap.fcc.gov/home), Starlink also provides broadband service in the subject area
of the Complaint. Starlink was also an ETC until relinquishing its designation in June 2024 after
having its FCC High Cost fund award reversed.
For these reasons, explained fiuther infra, Ziply Fiber asks that Ayers' Complaint be
dismissed as there are no disputable material facts and Ziply Fiber is not in violation of Rule 500.
II. FACTUAL BACKGROUND
On September 9, 2024, the Commission received the Complaint by Ayers. Compl. 1.
According to the Complaint,Ayers stated that his telephone service provided by Ziply Fiber was
deficient and that he submitted multiple "work orders"to fix the problem. Id. at 2.Ayers claimed
that attempts by Ziply Fiber representatives to fix the problem have been futile and the deficiencies
persist.Id.
Ziply Fiber attaches facilities to Avista-owned poles in Idaho.. Ziply Fiber provides
telephone service to Ayers through copper cables attached("Attachments")to Avista-owned poles.
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. Ziply Fiber's network is attached to Avista-owned poles that are in a severe state
of disrepair. It is not Ziply Fiber's obligation to maintain these 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
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 3

by Ayers and other customers served through these cables.
III. LEGAL ARGUMENT
A. Avista is the Responsible Party for Maintenance of the Utility Poles.
The cause-in-fact of the deficiencies that Ayers alleges in his Complaint is the condition of
the poles on which Ziply Fiber attaches its telephone service network. It is not Ziply Fiber's
responsibility to maintain these poles. Therefore, Ziply Fiber's actions, or alleged failures to act,
are not the cause-in-fact of the alleged deficiencies.
Avista's failure to maintain its poles appears to violate the duties of a utility provider
provided by statute: "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."I.C. § 61-302.
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.
(emphasis added).
Ziply Fiber submits that Avista's failure to maintain its poles constitutes both a cause "not
within the telephone company's control." Thus, it would be unreasonable for the Commission to
find fault in Ziply Fiber's maintenance of the poles themselves as the cause-in-fact of any alleged
deficiencies.
It also appears from communications with Commission Staff that Avista is taking a stance
that they have abandoned the poles. However, Ziply Fiber has not been notified of any
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 4

abandonment of the poles.
With these undisputable facts in mind, Ziply Fiber asserts that, as a matter of law, Ziply is
not the cause-in-fact of any alleged deficiencies of which Ayers complains.
B. Pursuant to Ziply Fiber's Published Rates, Terms, and Conditions of Service,
Ziply Fiber is Excused from Undertaking Unreasonable Expenses to Continue to
Furnish or Maintain Service to Ayers.
With Avista's responsibility to maintain the poles in disrepair established, the alternative
theory of curing alleged deficiencies must be addressed. Until Avista repairs or replaces its poles,
Ziply Fiber has no suitable facilities available without undertaking an unreasonable expense.
Therefore, it would be unreasonable for the PUC to find Ziply Fiber liable for installing new poles
in order to service Ayers' area.
As a threshold issue, the Commission adheres to the filed rate doctrine.' In Idaho, the filed
rate doctrine is codified, in relevant part, in statute by 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.
' 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.
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 5

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.'
Thus, Ziply Fiber's publicly filed ID Competitive Exchange and Network Services Price
List ("Price List"), filed with the Commission, contains the Company's filed rates, terms, and
conditions. The Price List at Section 2.2.2 states:
1. 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.
2. Such connections are also subject to the availability of required facilities.
Declaration of Jessica Epley in Support of Respondent's Motion for Summary Judgment ("Epley
Decl."), Ex.A at Sheet 36 (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 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
Price List. 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
2 See, e.g.,Phillips a Idaho Power Company, Case Number IPC-E-07-01, Order No. 30431, issued September 17,
2007.
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."'
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 6

realistic expectation that the return on investment from providing 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 Ziply Fiber's obligation to provide service at Rule A3 therein: "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."Epley Decl., Ex. B, at Sheet 16.
The Price List 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.
Epley Decl., Ex.A, at Sheet 65.
Here again, Ziply Fiber'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 Ayers has refused to pay(the admittedly
extraordinary) expense. Epley Decl.,¶2.
C. Even if Idaho had Codified Carrier of Last Resort Statutes, the Statutes Would
Not Apply to Ayers' Property.
Commission Staff has taken the stance that: (1) Idaho follows the "carrier of last resort"
principles; and (2) Ayers' only available service provider is Ziply Fiber. Both of these assertions
are patently false.
First, Idaho does not subscribe to the principles of carrier of last resort. "Idaho currently
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 7

does not have COLR statu[t]es . . . ."IDAHO PUBLIC UTILITIES COMMISSION, The Future ofldaho's
Universal Service and Its Relationship to Broadband Deployment, 23 (April 2015) (referring to
the absence of Idaho Code § 62-1401,et. seq.,proposed in failed Idaho House Bill No. 741). Epley
Decl., Ex. C.
Second, not only is Ayers not limited to only Ziply Fiber's voice service as its provider of
last resort, but Ziply Fiber paid for an available separate provider for Ayers. "A carrier of last
resort is a telecommunications carrier that commits (or is required by law) to provide service to
any customer in its service area that requests it, even if serving that customer would not be
economically viable at prevailing rates." Id. Ziply Fiber has provided and paid for the use of
Starlink for Ayers.
The Commission has designated ViaSat as an Eligible Telecommunication Carrier
("ETC") serving the Elk City exchange, among others. The PUC website lists both Starlink and
ViaSat as designated ETCs.Additionally,the FCC National Broadband Map indicates that Starlink
serves in Ayers' area. Epley Decl., ¶ 2, 9, Ex. F. 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."
I.C. § 62-610B. All ETCs share the duty to provide basic local exchange service at just and
reasonable rates; thus, Ayers has basic local exchange service available from at least one
competitive provider at Commission-designated just and reasonable rates. I.C. § 62-61 OD.
As a practical matter, although Idaho has no carrier of last resort statute, Ayers has two
other options for voice service at his address without taking into account the availability of mobile
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT-Page 8

telephone service from wireless ETCs.4 In fact, Ayers has multiple options available including
from at least one carrier who has received subsidies to provide that service.
D. The Idaho Legislature Failed to Provide the Commission Authority Over
Telecommunication Providers Such as Ziply Fiber.
Both the FCC and state public utility commissions can have jurisdiction over attachments
to utility poles, depending on the state.
Currently, Idaho, other states, and the District of Columbia have exercised "reverse
preemption," choosing to regulate their own pole attachment processes rather than default to the
FCC's standards under Section 224 of the Communications Act. See STATES THAT HAVE
CERTIFIED THAT THE YREGULATE POLE ATTACHMENTS,WC Docket No. 10-101, June 13,
2022.
The legislative vehicle reversing jurisdiction to secure jurisdiction in Idaho rather than in
the FCC, however, fails to embrace the circumstance before the Commission. Thus, the federal
government, not the State of Idaho, has jurisdiction to resolve any dispute regarding contesting
obligations between a utility owning poles and the attaching telephone company.
Idaho Code § 61-538, Idaho's attachment statute, addresses only attachments by "cable
television companies," statutorily defined as:
The term "cable television company" means any individual, firm, partnership,
corporation, company, association, or joint-stock association, and includes any
trustee, receiver, assignee, or personal representative thereof, which transmits
television signals for distribution to subscribers of its services for a fee by means
of wires or cables connecting its distribution facilities with the customer's
television receiver or the customer's equipment connecting to the customer's
receiver rather than by transmission of the television signal through the air.
The implementing regulation, IDAPA 31.01.01.151 necessarily also contains a similar
a The Future of Idaho's Universal Service and its Relationship to Broadband Deployment,Idaho Public Utilities
Commission,April 2015,p.23.Epley Decl.,Ex. C.There are eight wireless carriers listed as ETCs on the PUC
website.Id., Ex.G.
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 9

constraint to cable television. Ziply Fiber does not provide cable television services in Idaho.
Ziply Fiber attaches telephone communication lines to Avista-owned poles. Without
statutory authority reversely delegated to the Commission, FCC rules control pursuant to
47 U.S.C. § 224.
IV. CONCLUSION
For the four reasons given above, it is respectfully requested that the Commission grant
Ziply Fiber summary judgment upon the pending Complaint as a matter of law.
DATED this 281h day of January 2025.
ARKOOSH LAW OFFICES
C. Tom Arkoosh
Attorney for Respondent
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 10

CERTIFICATE OF MAILING
I HEREBY CERTIFY that on the 28th day of January 2025,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 secretgUkpuc.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—
C. Tom Arkoosh
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION FOR SUMMARY JUDGMENT—Page 11