20250717Formal Complaint.pdf

RECEIVED
July 17, 2025
IDAHO PUBLIC
Gregory M.Adams, ISB No. 7454 (local counsel) UTILITIES COMMISSION
Richardson Adams, PLLC
515 N. 27th Street Boise,Idaho 83702 AVV-E-25-11
Phone: [phone]
Email: [e-mail]
Robert H. Jackson, D.C. Bar No. 388397 (pro hac vice pending)
Marashlian & Donahue, PLLC
1430 Spring Hill Rd., Suite 310
Tysons, VA 22102
Phone: [phone]
Email: [e-mail]
Attorneys for Wired or Wireless, Inc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
WIRED OR WIRELESS, INC., )
Complainant. ) Case No.
vs. )
AVISTA CORP., ) Formal Complaint
Respondent. )
INTRODUCTION
1. This is a formal complaint by Wired or Wireless, Inc. ("WOW") against Avista Corp.
("Avista"), filed pursuant to Idaho Administrative Code("IDAPA") § 31.01.01.054, .151,and .152
with the Idaho Public Utilities Commission("Commission"or"PUC"). In summary,WOW seeks
a declaration that Avista has billed WOW for pole attachments located in the State of Idaho in
violation of Idaho Code Section 61-538 and any applicable regulations and orders of the
Commission, as well as federal laws and regulations; that Avista has violated WOW's rights to
overlash another cable or wire to its existing cables and wires; and that Avista has failed to maintain
FORMAL COMPLAINT
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accurate records by failing to conduct periodic pole audits. WOW further seeks an order that sets
just and reasonable rates for its pole attachments and that imposes penalties pursuant to Idaho Code
§§ 61-701, et seq.
JURISDICTION'
2. Pole attachments (as well as access to conduits and ducts) are regulated by the Federal
Communications Commission ("FCC"), pursuant to Section 224 of the Communications Act of
1934, as amended("34 Act"),47 U.S.C. § 224,and the rules and regulations of the FCC,47 C.F.R.
§§ 1.1401 — 1.1415. However, Section 224(c) provides that the FCC shall not have jurisdiction
over pole attachment complaints where a state certifies that it regulates pole attachments. Public
Notice, "States that Have Certified that They Regulate Pole Attachments," 37 FCC Rcd 6724
(2022), See also, 47 C.F.R. § 1.1405(a).
3. Pursuant to Idaho Code Section 61-538, the PUC regulates attachments to public utilities'
poles in the State of Idaho and has expanded regulatory jurisdiction pursuant to the recent
amendment of Section 61-538.2 This complaint regards pole attachments within the State of Idaho.
Accordingly, the PUC appears to have sole jurisdiction over pole attachment complaints in Idaho.
GOVERNING LAW
4. As of July 1, 2025, Idaho Code Section 61-538(3)provides, in applicable part,
Whenever a public utility and a provider of a telecommunications
service or broadband . . . services company are unable to agree on
the rates, terms, or conditions for pole attachments or the terms,
' There is also a pending lawsuit in the State of Washington,Avista Corporation, d/b/a Avista Utilities v
Wired or Wireless, Inc. a/k/a Air-Pipe, No. 25-2-00560-32 (Wash. Sup. Ct. Spokane Cnty). However, as
explained herein, Congress has preempted the field(regulation of utility pole attachments) in Section 224
of the Communications Act of 1934, as amended("34 Act"), 47 U.S.C. § 224. That law permits states to
regulate pole attachments in lieu of the Federal Communications Commission ("FCC") under certain
circumstances(i.e.,"reverse preemption"). The Idaho Commission is such a state regulatory authority and
has exclusive jurisdiction over pole attachments to utility poles in Idaho.
2 See 2025 Idaho Sess. Laws,Chapter 325 (effective July 1,2025).
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conditions, or cost of production of space needed for pole
attachments, then the commission shall establish and regulate the
rates, terms, and conditions [for such attachments].
The floor for just and reasonable rates is "the additional costs of providing and maintaining pole
attachments" and the ceiling is "the associated capital cost and operating expenses of the public
utility attributable to that portion of the pole, duct, or conduit used for the pole attachment,
including a share of the required support and clearance space."Id.
5. The Commission must consider the interests of the attaching party's customers in setting
rates—here mainly unnerved and underserved rural Idahoans, whose access to advanced
communications services has been impeded and made more expensive by Avista's actions. Id.
The Commission also has substantive rulemaking authority. Id. at 61-538(5). The Commission
currently does not have any substantive rules addressing pole attachment rates. Accordingly, the
Commission should look at the substantive rules of the FCC for guidance.3
6. As explained above and in any forthcoming hearing,WOW submits that the following parts
of Section 224 of the 34 Act and FCC rules and regulations have been violated by Avista and, as
such, should be considered to be violations of Section 61-538 of the Idaho Code.
• 47 U.S.C. § 224(e)(1): This section requires that pole attachment rates be "just and
reasonable" by allocating costs proportionally based on the amount of usable space
occupied. Avista allocated costs to WOW that were previously allocated to other attachers
and overstated the number of its poles to which WOW is attached.
• 47 U.S.C. § 224(e)(2)&(3): This section establishes that the costs should be divided based
on the number of attaching entities and the space occupied. Avista ignored the existence
of other attachers and, as such, overcharged WOW.
3 The FCC's pole attachment rules were adopted and amended after lengthy rulemaking proceedings where
the interests and expertise of a broad base of stakeholders were received and considered by both the FCC
staff and Commissioners. There is no reason for the PUC not to take full advantage of the results of those
efforts. Many state regulatory commissions do the same. See, e.g.,Adoption of Federal Communications
Commission Regulations Pursuant to 52 Pa. Code§ 77.4,2024 WL 4494038 (Penn.PUC, Sept.26,2024).
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• 47 C.F.R. §§ 1.1406 and 1.1409(e)(2)(i). Avista chose this formula but misapplied it by
leaving out the multiplier for the number of attaching entities on its poles. WOW was not
the sole attaching party to the poles at issue, but was billed as if it were.
• 47 C.F.R. § 1.1416. This section gives attachers certain overlashing rights, which Avista
violated by requiring WOW to seek Avista's consent before overlashing, which both
increased the costs to WOW and delayed its ability to deploy facilities to bring broadband
access to unserved and underserved Idahoans.
• 47 U.S.C. § 1302. Avista's violations of federal and state law relating to pole attachments
flouts the intent of Congress for the FCC and this Commission to encourage the
"deployment on a reasonable and timely basis of advanced telecommunications capability
to all Americans ... by utilizing, ... methods that remove barriers to infrastructure
investment." Advanced Telecommunications Capability includes broadband services. Id.
at § 1302(d)(1).
7. Further, Idaho law gives the Commission authority to impose penalties on a utility that
"violates or fails to comply with any provisions of the constitution of this state or of this act, or
which fails, omits or neglects to obey, observe or comply with any order, decision, decree, rule,
direction, demand or requirement or any part or provision thereof,of the commission."Idaho Code
§ 61-706. Also, the Commission can treat such violations as continuing and impose additional
penalties. Id. at § 707.
FACTS AND AVISTA'S VIOLATIONS
Parties
8. Complainant: Wired or Wireless, Inc., is a Washington corporation, authorized to do
business in Idaho. Its business address is 17813 E. Appleway Ave., Spokane Valley, WA 99016.
WOW is a telecommunications provider operating in Idaho,with 561 confirmed pole attachments
on Avista's poles (Exhibit A: WOW Pole Audit, 2023).
9. Complainant Contact:
William B. Geibel, Jr.
President
Wired or Wireless, Inc.
17813 E Appleway Avenue
Spokane Valley,WA 99016
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Email: [e-mail]
Phone: [phone] x106
10. Complainant Counsel:
Gregory M.Adams, ISB No. 7454 (local counsel)
Richardson Adams, PLLC
515 N. 27th Street Boise,Idaho 83702
Phone: [phone]
Email: [e-mail]
Robert H. Jackson, D.C. Bar No. 388397 (pro hac vice pending)
Marashlian & Donahue, PLLC
1430 Spring Hill Rd., Suite 310
Tysons, VA 22102
Phone: [phone]
Email: [e-mail]
11. Respondent: Avista Corporation, is a Washington corporation authorized to operate in
Idaho. Its business address is PO BOX 3727, Spokane, WA 99220. Avista is a public utility and
controls poles used by WOW under the Joint Use Master License Agreement("JUMLA") (Exhibit
B: JUMLA, 2009).
12. Respondent Contact:
Heather Rosentrater David J. Meyer
President and CEO Vice President and Chief Counsel for
Avista Utilities Regulatory and Governmental Affairs
1411 E Mission Avenue, MSC-10 Avista Corporation
PO Box 3727 PO Box 3727
Spokane,WA 99220 1441 East Mission Avenue
Phone: [phone] Spokane,WA 99220-3727
Email: Phone: [phone]
[e-mail] Email: [e-mail]
Backaound
13. WOW, a small company with approximately 12 employees,operates a telecommunications
network with broadband connections, passing 1,500 homes in Hope and Clark Fork, Idaho. In
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2009, the Parties signed a pole attachment agreement (the Joint Use Master License
Agreement/JUMLA)that governs WOW's pole attachments. To provide services,WOW attaches
its cables and wires to 561 Avista poles (Exhibit A hereto). The JUMLA contains provisions that
require the rates charged by Avista to WOW for pole attachments to comply with FCC formulas
and all other applicable laws and regulations. (Exhibit B, Section 3.1).
14. Since 2019, WOW has faced barriers from Avista, including incorrect rate calculations,
overlashing denials, stop-work orders, and failure to maintain accurate pole audits, hindering
broadband deployment and, therefore, impeding the provision of broadband services to currently
un-/underserved Idahoans in these areas. The following describes these violations of both federal
and state law, along with breaches of JUMLA by Avista.
Rate Calculation Errors
15. The FCC's rate calculation rule, applicable as a matter of contract, requires the entity
providing access to its poles for cable and wire attachments to calculate the rate per attachment by
dividing recoverable costs by the number of separate parties attaching to the public utility's poles.
47 C.F.R. §§ 1.1406 and 1.1409(e)(2)(ii)(Exhibit C,Avista Rate Calculation,2023). For example,
in the event that there are three attachers to a pole, the recoverable costs must be divided by three.
For the 561 poles at issue, there were two companies attaching to Avista's poles, such that the
recoverable costs must be divided by two. However,Avista's pole attachment rate calculations for
WOW do not recognize the second attaching parry, fail to divide Avista's recoverable costs by two,
and, therefore, charge WOW as if it were the only attaching party. This occurred between 2023
and 2024.
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16. Turning to specifics, for two attaching entities, the multiplier should be 0.31,4 rather than
1.0,which would reduce the lawful rate for WOW. Avista's omission results in rates of$70.44 per
pole,compared to a corrected rate of$21.84(Exhibit D: Corrected Rate Calculation),overcharging
WOW by 322.5%.
Overlashina Rule Violations
17. The FCC's rules, 47 C.F.R. § 1.1416(a), prohibits a public utility from requiring prior
approval for a party already attached to a pole to overlash another cable or wire to the existing
cable or wire.5 Avista denied WOW the right to overlash existing facilities, imposed unauthorized
fees, and issued stop-work orders without valid safety or engineering justification. In 2014,Avista
quoted WOW$10 per foot for the "necessary engineering" for WOW to be allowed to overlash a
fiber optic cable to an existing WOW cable in Hope, Idaho. See also, 47 U.S.C. § 224(f), which
mandates nondiscriminatory access, something denied to WOW.
18. The JUMLA (Exhibit B, Section 2.4) allows Avista to require approval for third-party
overlashing but is silent as to WOW's right to overlash. At a minimum,Avista's denial of WOW's
right to overlash WOW's own cable violates the JUMLA. Moreover, 47 C.F.R. § 1.1416(a)
prohibits a public utility from requiring prior approval for any overlashing. It, therefore,
invalidates Exhibit B, Section 2.4 of the JUMLA. Stated in the alternative, Avista's pretext of
enforcing the JUMLA violates Section 224's provisions and the FCC's rules.6
'See 47 C.F.R. § 1.1406(d)(2)(i).
s The FCC's rule prohibiting a utility from requiring overlashers to conduct pre-overlashing engineering
studies or to pay utility's cost of conducting such studies was found to be a reasonable attempt to prevent
unnecessary costs for attachers. The court rejected the utilities' contention that rule undermined their
authority to deny pole access. City ofPortland a U.S.,969 F.3d 1020(9"'Cir.2020),cent. denied sub nom.,
City of Portland a FCC, 148 S.Ct. 2855 (2021).
6 Section 224 of the 34 Act and the FCC's rules would be applicable in the event that Idaho's revised law
governing the regulation of pole attachments provided to telecommunications companies was found to be
inapplicable to the initial dispute. But,in any event,FCC regulation can be informative to the Commission.
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Pole Audit Negligence
19. Pole audits, whereby the public utility periodically inventories the number of its poles
carrying the attaching party's attachments, are important to ensure proper billing and compliance
with Section 224 and the associated rules. From year to year, the number of poles bearing
attachments is likely to change. A service provider may attach to more poles to serve more
customers. A service provider may bury cable or place it in another entity's conduit, eliminating
a number of pole attachments. The FCC has recognized the industry practice of conducting regular
pole audits. Mile High Cable Partner, L.P. v Public Sere Co. of Colorado, 15 FCC Rcd. 11450,
at ¶¶ 7-9 (2000). However, Avista failed to maintain accurate pole attachment records or seek
annual reports of poles used by WOW from the Parties' initial business dealings (2009) going
forward. Avista's failure to conduct pole audits was the likely cause of Avista's claims that WOW
had unauthorized attachments.7
AVISTA HAS CAUSED SUBSTANTIAL DAMAGES TO WOW AND
RESIDENTS OF PARTS OF RURAL IDAHO
20. WOW's customer base in Hope/Clark Fork dropped from over 400 to fewer than 45 due to
Avista's actions, which impeded WOW's ability to upgrade to fiber. WOW's loss of customers
was exacerbated by a government-funded competitor that entered the market to address Avista's
delays prohibiting WOW to serve the market. With 1,500 homes passed, WOW could have
achieved over 1,000 customers per industry norms for areas without fiber competition and would
be better positioned financially to bring advanced services to rural Idaho.8
Evidence will show that, around the time WOW executed the JUMLA,Avista represented to WOW that
the JUMLA covered 377 pole attachments and charged WOW annually for approximately that number of
attachments.Avista did not conduct a pole audit for WOW system until 2022.
a Stop-work orders and delays make WOW appear unreliable,undermining customer trust.
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21. Avista's unlawful actions also harm the public. Had Avista not prevented WOW from
overlashing fiber cable and overcharged for attachments,WOW would have already connected the
residents of Hope and Clark Fork with high-speed broadband connections and associated services
and eliminated the need for government subsidy. The funds given to WOW's competitor could
have been awarded in other Idaho markets, further expanding the reach of broadband services in
rural Idaho and bringing both effectiveness and efficiency to the programs using taxpayer money
to expand broadband access.
PENALTIES MUST BE STRONG
22. Avista's conduct has been egregious. Despite many efforts by WOW to resolve the matter,
Avista refused to recognize the applicable laws and regulations,the financial impact on WOW,the
interests of those residents of rural Idaho who would have had broadband services from WOW,
and the public interest in bringing broadband service to residents of Idaho. Accordingly, the
Commission should impose penalties on Avista in an amount and manner that will cause a change
in Avista's operating practices. For example, the Commission should find violations and impose
sanctions for each pole attachment (561) that was billed incorrectly. Since Avista bills annually,
each incorrect bill should carry a sanction for each of the 561 incorrectly billed attachments. This
would yield 561 separate fines of$2,000 each' or $1,122,000 annually. Each month that Avista
failed to correct its records by conducting an accurate pole audit should draw a $2,000 penalty.
Each day that Avista has prevented WOW from exercising its overlashing rights should draw a
$2,000 penalty. Note that Section 61-707 of the Idaho Code permits the Commission to impose
fines on ongoing violations.
'Idaho Code § 61-706.
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23. Just as the FCC requires "[p]enalties and fines paid on account of violations of statutes"to
be booked to Account 32.7300 Nonoperating income and expense (that is a "below the line
account" chargeable to shareholders) and the Federal Energy Regulatory Commission requires
"payments by the[regulated] company for penalties or fines for violation of any regulatory statutes
by the company or its officials" to be booked to Account 426.3 (another below the line account),
the Commission should require Avista to book these penalties in a way that they are charged to
Avista's shareholders rather than its customers. Such a charge would certainly catch the attention
of both Avista's upper management and shareholders, such that the Company would likely make
more effort toward full compliance with pole attachment laws and regulations.
RELIEF REQUESTED
WOW respectfully requests the Idaho PUC to:
A. Direct Avista to recalculate pole attachment rates for 561 poles using the FCC formula,
including the 0.31 multiplier for 2 attaching entities, resulting in a rate of approximately $21.84
per pole (Exhibit D).
B. Require Avista to refund overcharges from the date of WOW's initial demand to Avista
(2019) or as far back in time as permitted by Idaho law,plus interest,per 47 C.F.R. § 1.1410(c).
C. Order Avista to lift stop-work orders and allow WOW to overlash existing facilities without
prior approval or fees, per 47 C.F.R § 1.1416(a).
D. Mandate Avista maintain accurate pole attachment records and reconcile discrepancies
with WOW's 2023 audit(Exhibit A).
E. Prohibit Avista from imposing penalties, canceling contracts, or pursuing lawsuits related
to this dispute until resolved.
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F. Facilitate PUC-supervised mediation to resolve any remaining or future disputes within 60
days, aligning with FCC's Accelerated Docket principles (47 C.F.R. § 1.736).
G. Impose penalties on Avista for willful violations,per 47 C.F.R. § 1.1413 and Idaho Code §
61-617 and § 61-701, et seq.
Respectfully submitted,
DATED this 17th day of July, 2025
& &4"-- -
Gr o M.Adams, ISB No. 7454 (local counsel)
Richardson Adams, PLLC
515 N. 27th Street
Boise,Idaho 83702
Phone: [phone]
Email: [e-mail]
Robert H. Jackson, D.C. Bar No. 388397 (pro hac vice pending)
Marashlian & Donahue, PLLC
1430 Spring Hill Rd., Suite 310
Tysons, VA 22102
Phone: [phone]
Email: [e-mail]
Attorneys for Wired or Wireless, Inc.
FORMAL COMPLAINT
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CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of July 2025, I delivered true and correct
copies of the foregoing Formal Complaint to the following persons via the method of
service indicated below:
Electronic mail only
Idaho Public Utilities
Commission Monica Barrios-
Sanchez, Secretary
[e-mail]
Avista Corporation
David J. Meyer,Vice
President and Chief Counsel
for Regulatory and
Government Affairs
[e-mail]
Gr o M.Adams, ISB No. 7454 (local
counsel)
Richardson Adams, PLLC
515 N. 271h Street
Boise,Idaho
83702
Phone: [phone]
Email: [e-mail]
FORMAL COMPLAINT
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