20250828Answer to Formal Complaint.pdf

11
RECEIVED
Avista Corp. August 28, 2025
1411 East Mission Ave., P.O. Box 3727 IDAHO PUBLIC
Spokane, WA 99220-0500 UTILITIES COMMISSION
Telephone: [phone]
Toll Free: 800-227-9187
August 28, 2025
Commission Secretary
Idaho Public Utilities Commission
11331 W. Chinden Blvd
Building 8, Suite 201-A
Boise, ID 83714
Re: Case No. AVU-E-25-11 —Avista Answer to Formal Complaint of Wired or Wireless, Inc.
Commission Secretary:
Avista Corporation, doing business as Avista Utilities, hereby submits for filing with the
Commission its answer to the formal complaint filed by Wired or Wireless, Inc. (WOW), as
required in the Summons issued in the above referenced case on August 8, 2025.
If you have any questions regarding this filing, please contact me at (509) 495-2782 or
shawn.bonfieldgavistacorp.com.
Sincerely,
1 Q1.5&V4W gm zeu
Shawn Bonfield
Sr. Manager of Regulatory Policy& Strategy

David J. Meyer, ISB No. 8317
Vice President& Chief Counsel
for Regulatory& Governmental
Affairs
AVISTA CORPORATION
1411 E. Mission Ave.
Spokane, WA 99202
[phone]
[e-mail]
Attorney for Avista Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
WIRED OR WIRELESS, INC. )
Complainant, )
Case No.AVU-E-25-11
V. ) ANSWER
AVISTA CORPORATION, )
d/b/a Avista Utilities, )
Respondent. )
AVISTA CORPORATION'S ANSWER
TO WIRED OR WIRELESS,INC.'S FORMAL COMPLAINT
INTRODUCTION
1. The allegations in the Complaint filed by Wired or Wireless, Inc. ("WOW") are
provably false. Without providing any actual evidence, WOW alleges that it has been unfairly
treated and severely harmed by Avista. However, the key facts in this case, many of which are
undisputed, can be summarized as follows:
■ WOW misrepresented to Avista through 2025 that it was a cable provider and
entitled to the cable rate, when in fact it was registered with the Commission as a
telecommunications provider (CLEC) and was marketing and providing telecom
services to Idahoans since at least 2020;1
1 See Who We Are, WIRED OR WIRELESS,INC.,https://wow-tel.com/about-us/(last visited Aug. 25,
2025) ("Wired or Wireless is a locally owned high-speed Internet and phone service provider that
Answer
Page 1

■ WOW has admitted that it owns at least 561 attachments on Avista's Poles (Avista's
2023 audit found 702);2
■ WOW has admitted that it owes Avista annual rent of at least $21.84 for each of
those attachments;'
■ Despite these admissions, WOW has paid nothing ($0.00) to Avista for gny
attachments since 2022 (a continuing breach of the parties' 2009 pole attachment
agreement); and
■ The last rental payment WOW made to Avista was in 2022 for 380 attachments,
despite WOW having at least 181 more pole attachments that it had not disclosed
to Avista(Avista's 2023 audit found 322).
Consequently, after numerous unsuccessful attempts by Avista to resolve these issues without
litigation (including settlement offers that waived the substantial interest WOW has accrued),
Avista terminated the parties' Joint Use Master License Agreement ("JUMLA") and filed a state
court lawsuit against WOW for both breach of contract and claims seeking equitable relief.4 As
alleged in the lawsuit, WOW owes Avista the total amount of $431,937.04 in unpaid invoices,
consisting of the 2023 Annual Rental Invoice ($49,053.12), the True-Up Rental Billing Invoice
arising from the unauthorized attachments detected in the 2023 audit($334,288.80), and the 2024
Annual Rental Billing Invoice ($48,595.12).
uses fixed wireless technology to connect homes and businesses to the internet."); Ex. 13 /In the
Matter of Wired or Wireless,Inc. 's App.for Cert. of Pub. Conven., &Necess. To Prou Basic Resold
& Facilities-Based Loc. Exchange Telecomm. Serv., Order on Certificate of Public Convenience
and Necessity, Case No. WOW-T 20-01, Certificate No. 532 (Nov. 19, 2020) (Wired or Wireless,
Inc. is authorized"to provide telecommunications services in the State of Idaho."); Ex. 1 /Avista's
June 21, 2024 Letter to WOW ("WoW is registered as a telecommunications provider (CLEC)
with the Idaho Public Service Commission. Moreover, on its website WOW advertises itself
exclusively as a telecommunications company.").
2 Ex. 7/Declaration of Jesse Butler,Attachment B, page 4 and Attachment C.
' Ex. 2 /WOW's April 25, 2025 Letter("[T]he maximum amount that Avista could be entitled to
charge,per telecom attachment, is $21.84 (in 2023)and$21.60 (in 2024)."); Complaint,¶ 16.This
amount is roughly 1/3 the rate Avista charges other telecom providers in Idaho.
4 Ex. 3 / Avista's Complaint, Avista Corp. a Wired Or Wireless, Inc., Case No. 25200560-32
(Superior Ct. WA., Cty. of Spokane).
Answer
Page 2

WOW's Complaint to the Commission also relies upon the wrong law to support its false
allegations. WOW claims the Commission's jurisdiction over the parties' dispute stems from
IDAHO CODE § 61-538. This is incorrect for at least two reasons. First,prior to July 1, 2025, § 61-
538 applied only to a "cable services company." It did not include "a provider of a
telecommunications service or broadband" as it does today. Thus, the Commission's jurisdiction
over the rates charged by Avista to WOW for 2023 and 2024 flowed from IDAHO CODE § 61-514
which provides in relevant part as follows:
Whenever the commission, after a hearing had upon its own motion or upon
complaint of a public utility affected, shall find that public convenience and
necessity require the use by one (1)public utility of the conduits, subways, tracks,
wires,poles,pipes or other equipment...and that such public utilities have failed to
agree upon such use or the terms and conditions or compensation for the same, the
commission may by order direct that such use be permitted, and prescribe a
reasonable compensation and reasonable terms and conditions for the joint use.5
Second, this dispute involves rentals charged to WOW for the 2023 and 2024 billing years, and
the Commission's authority to set rates for pole attachments upon presentation of a dispute is a
prospective power— not a retroactive power. See Lemhi Tel. Co. v. Mountain States Tel. & Tel.
Co., 571 P.2d 753, 759 (Idaho 1977) (holding, with respect to inter-carrier compensation rates
under Idaho Code § 61-513: "Clearly, the legislature intended to allow the Commission authority
only to prospectively determine rates.").
5 IDAHO CODE § 61-129 defines "public utility" to include "every common carrier, pipeline
corporation, gas corporation, electrical corporation, telephone corporation and water corporation,
as those terms are defined in this chapter and each thereof is hereby declared to be a public utility
and to be subject to the jurisdiction,control and regulation of the commission and to the provisions
of this act."IDAHO CODE § 61-121 defines "telephone corporation"to mean"every corporation or
person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, providing
telecommunication services for compensation within this state. Therefore, WOW is a "public
utility" for purposes of IDAHO CODE § 61-514.
Answer
Page 3

Alternatively, even if the Commission has jurisdiction to revise the rates retroactively, the
rate charged by Avista meets the "reasonable compensation" standard under IDAHO CODE § 61-
514 because it was calculated using the FCC's "old" telecom rate formula that was approved by
the FCC and utilized by utilities and attachers for many years. The FCC's "old" telecom formula
appropriately ensures that utility customers are not unfairly burdened with the costs of supporting
telecom attachments. In addition, the formula is "reasonable" and non-discriminatory considering
that it was the rate Avista charged to other telecom providers in Idaho, which they paid.
Furthermore,WOW's claims regarding overlashing and the pole audit are not only factually bereft
but also squarely at odds with the contract between the parties. WOW's Complaint should be
denied in its entirety. To the extent there are any remaining allegations in paragraph 1 of the
Complaint,Avista denies those allegations.
JURISDICTION
2. Avista admits that pursuant to the Pole Attachments Act(47 U.S.C. § 224),the FCC
has authority to regulate the rates, terms and conditions for "pole attachments"—as that term is
defined in the Pole Attachments Act—except where such matters are regulated by a State. Avista
denies any remaining allegations in paragraph 2.
3. With respect to the first sentence of paragraph 3, Avista admits that the recent
amendment to IDAHO CODE § 61-538, effective July 1, 2025, expanded the scope of attachments
subject to regulation by the Commission pursuant to § 61-538. With respect to the second sentence
of paragraph 3, Avista admits that WOW's complaint "regards" what are now defined as "pole
attachments" under § 61-538 but denies WOW's attachments to Avista's poles were "pole
attachments" as defined in § 61-538 during the periods at issue in Avista's state court lawsuit. As
explained in paragraph 1 above, the Commission's jurisdiction over the rates for WOW's
Answer
Page 4

attachments to Avista's poles prior to July 1, 2025 derives from IDAHO CODE § 61-514, not § 61-
538. Moreover, even though WOW now appears to contend that the Commission has "sole
jurisdiction" over the matters set forth in its complaint, this was not always the case. In a June 6,
2024 letter to Avista, WOW threatened to "involve every jurisdiction, legal entity and the public
in their defense"if Avista refused to apply the cable rate to WOW's invoices.6 Further,WOW filed
a Request for Rapid Broadband Assessment Team ("RBAT") Review and Assessment with the
FCC on March 10, 2025.' In its request for RBAT review, WOW asserted that the FCC had
jurisdiction because the Commission held jurisdiction over cable attachments only (not
telecommunication attachments). WOW stated:
It is important to note that in Idaho, where the affected pole attachments under
dispute are located, state law gives the Public Utilities Commission jurisdiction
over pole attachments provided by covered utilities to cable television
companies only. IDAHO CODE § 61-538. Accordingly, the FCC has jurisdiction
over poll [sic] attachments provided by Avista to WOWB
Avista denies any remaining allegations in paragraph 3.
GOVERNING LAW
4. Avista admits that the excerpted language of IDAHO CODE § 61-538 is accurately
quoted in paragraph 4,but denies any remaining allegations,and specifically denies the implication
that § 61-538 governs the rates charged by Avista to WOW for periods prior to July 1, 2025.
5. With respect to the first sentence of paragraph 5, Avista admits that § 61-538(3)
states "in determining and fixing the rates, terms, and conditions, the commission shall consider
the interest of the customers of the attaching provider of the telecommunications service,
6 Ex. 4/WOW's June 6, 2024 Letter,page 2.
7 Ex. 5 /Request for RBAT Review and Assessment.
8 Ex. 5 / Request for RBAT Review and Assessment, page 2, Section 3: "Alleged Statutory
Provision(s)Violated" (emphasis added).
Answer
Page 5

broadband or cable services company, the public utility on which the attachment is made, and the
customers of the public utility"but denies that § 61-538 is the right standard for the billing periods
at issue. The correct standard, § 61-514, includes no such language and instead requires only
"reasonable compensation and reasonable terms and conditions." With further respect to the first
sentence of paragraph 5, Avista denies that its "actions" have "impeded" or "made more
expensive" any "access to advanced communications services." It is particularly odd that WOW
would allege that Avista's actions have caused WOW's customers to experience an increase in the
cost of"access to advanced communications services"when WOW has refused to pay anything to
Avista for two years.9
With respect to the second and third sentences of paragraph 5, Avista admits that the
Commission has substantive rulemaking authority and further admits that there are no substantive
rules outlining the parameters of "reasonable compensation" under § 61-514 but denies any
remaining allegations. With respect to the fourth sentence of paragraph 5, Avista admits that the
FCC rules may be used as reference for state regulators but denies that the Commission should
blindly follow the FCC's substantive rules or apply them retroactively for the first time here. In
any event, the rental rate charged by Avista for WOW's attachments in 2023 and 2024 was
calculated using what is known as the FCC's "old telecom rate formula" a known formula in
9 While WOW's two-year trespass on Avista's poles should be surprising, it is consistent with
WOW's historical course of conduct that disregards both its contractual obligations and industry
standards. For instance, from 2019-2023,WOW replaced coaxial cable with fiber on Idaho's Hope
Peninsula without obtaining prior approval from Avista or notifying Avista that it was granted
CLEC status by the Commission in 2020. Upon discovering WOW's unauthorized work on Avista
poles,Avista found multiple WOW attachments to be in violation of the National Electrical Safety
Code("NESC")clearance requirements.WOW attempted to justify the NESC clearance violations
by using inaccurate measurements and combatively opposed pole replacements necessitated in
large part by WOW's violations. [Ex. 6/October 2023 WOW E-Mail Correspondence.]
Answer
Page 6

the industry used for the purposes of determining the rates for telecommunications attachments for
many years.10
6. Avista denies the allegations in paragraph 6 and further states as follows:
■ The rate charged by Avista specifically complied with 47 U.S.C. § 224(e), including
subsections(2)and(3). Section 224(e)provides the statutory parameters for the FCC's
"telecom rate"(i.e.,the rate applicable to telecommunications carrier attachments). As
shown in Exhibits C and D to WOW's complaint,Avista's rate calculations expressly
allocate the cost of unusable space (actually only 2/3 of it, consistent with § 224(e))
equally among all attaching entities. Though WOW claims that "Avista ignored the
existence of other attachers" for purposes of allocating certain costs, Exhibits C and D
plainly show that the"average numbers of attachers"used in Avista's calculation of the
rate was 2—a figure WOW admits is correct."
■ 47 C.F.R. § 1.1416 does not apply in Idaho, and there is no rule in Idaho addressing
overlashing. The JUMLA, on the other hand, expressly requires WOW to first obtain
approval from Avista before overlashing: "Whenever Licensee wishes to attach
Communication Facilities in or on Licensor's Structures on a new Route or Site or to
alter the location or Overlash any Attachments, Licensee shall first make written
application to Licensor, showing the Route or Site where Licensee's use is
requested[.]"12
■ Though 47 U.S.C. § 1302 includes the language quoted by WOW, § 1302—like §
224(e)—was part of the 1996 Telecom Act, and the rate formula utilized by Avista for
calculating the rate for telecom attachments was the formula developed by the FCC
immediately following the 1996 Telecom Act specifically to implement§224(e). Thus,
WOW's allegation that Avista's use of the FCC's original telecom rate formula"flouts
the intent of Congress" is an historical untruth.
7. Avista admits that IDAHO CODE § 61-706 and § 61-707 grant the Commission the
authority described in paragraph 7 but denies any remaining allegations. WOW's request for
penalties in this case teeters upon the precipice of bad faith. WOW has failed to cite any concrete
violation of"any provisions of the constitution of this state or of[the Public Utilities Laws]" by
10 Ex. 7/Declaration of Jesse Butler.
11 See Complaint,¶ 15 ("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 party, fail to divide Avista's
recoverable costs by two, and, therefore, charge WOW as if it were the only attaching party.").
12 Ex. B of Complaint/ § 2.2 of Exhibit G to the JUMLA.
Answer
Page 7

Avista, or any failure by Avista"to obey, observe or comply with any order, decision, decree, rule,
direction, demand or requirement or any part or provision thereof, of the commission" as required
by IDAHO CODE § 61-706. Avista denies any remaining allegations in paragraph 7.
FACTS
8. Upon information and belief,Avista admits that WOW is a Washington corporation
that does business in Idaho and is located at the address stated in paragraph 8.Avista further admits
that WOW is a telecommunications provider but denies that WOW has "561 confirmed pole
attachments on Avista's poles."Avista performed an audit pursuant to its rights in the JUMLA and
the audit revealed that WOW had 702 attachments.13 Avista denies any remaining allegations in
paragraph 8.
9. Upon information and belief, Avista admits that the "Complainant Contact"
information provided in paragraph 9 is correct.
10. Upon information and belief, Avista admits that the "Complainant Counsel"
information provided in paragraph 10 is correct.
11. With respect to the first sentence of paragraph 11, Avista admits that it is a
Washington Corporation authorized to operate in Idaho and admits that it receives mail at P.O. Box
3727, Spokane,WA 99220 but states that its business address is 1411 E.Mission Avenue, Spokane,
WA 99202. Avista admits the allegations in the second sentence of paragraph 11.
12. Avista denies that WOW has identified the appropriate "Respondent Contact"
information in paragraph 12. The appropriate information for purposes of this case is as follows:
13 The JUMLA provides: "Licensor may perform full or sample audits of Licensee's facilities
covered by this Joint Use Master License Agreement from time to time. Licensor will notify
Licensee prior to the scheduled start of the audit to allow Licensee to participate." [Ex. B to
Complaint/ § 3.6(a) of Exhibit G to the JUMLA]Avista provided WOW with notice of the audit
but WOW opted not to participate. [Ex. 7 /Declaration of Jesse Butler,¶6;Attachment A]
Answer
Page 8

M. Todd Colton Shawn Bonfield
Senior Counsel Senior Manager, Regulatory Policy & Strategy
1411 E. Mission Ave, MSC-08 1411 E. Mission Ave, MSC-27
Spokane,WA 99202 Spokane,WA 99202
509-495-2344 509-495-2782
Todd.coltongavistacorp.com shawn.bonfieldgavistacorp.com
Backiround
13. Avista admits that WOW operates a telecommunications network in the Hope and
Clark Fork, Idaho area but lacks knowledge or information sufficient to admit or deny the
remaining allegations in the first sentence of paragraph 13 and therefore denies the allegations.
With respect to the second sentence of paragraph 13,Avista admits that the parties executed the
JUMLA in 2009 to govern WOW's pole attachments but denies any remaining allegations. Avista
denies the allegations in the third sentence of paragraph 13 and states that the results of the 2023
pole audit indicate that WOW has 702 attachments to Avista's poles. Avista denies the allegations
in the fourth sentence of paragraph 13. WOW cites Section 3.1 of Exhibit G to the JUMLA for the
proposition that the JUMLA requires"the rates charged by Avista. . .to comply with FCC formulas
and all other applicable laws and regulations." This is incorrect. Section 3.1 of Exhibit G to the
JUMLA actually says:
a. Licensee's installations shall be in accordance with all state and local laws,rules
and regulations, including without limitation the National Electrical Safety
Code, and with Licensor's specifications and guidelines as they may from time
to time be prescribed by Licensor.
b. The Parties agree to take all reasonable actions as may be appropriate or
required to comply with all laws, rules, and regulations applicable to them
jointly or severally by reason of the transactions contemplated by this
Agreement.
c. This Agreement will in all respects be interpreted, construed and enforced in
accordance with the laws of the State of Washington, except that the laws of the
State in which an Attachment is located will apply in the case of any action for
unlawful or forcible detainer, ejectment, or similar action to remove Licensee's
Attachments from Licensor's Poles or Ducts.
Answer
Page 9

Nothing in the language above even remotely addresses the rates or the rate formulas. Moreover,
nothing in the language above imposes any sort of unilateral obligation on Avista. The only
unilateral obligation is within Section 3.La., which places an obligation on WOW to maintain its
attachments in accordance with the NESC,Avista's standards, and state and local laws.
14. Avista denies the allegations in paragraph 14, as explained further in paragraphs
15-19 infra.
The Rate Calculation
15. With respect to the first and second sentences of paragraph 15,Avista admits that
the FCC's telecom rate formula allocates 2/3 of the cost of the unusable space equally among all
attaching entities but denies any remaining allegations.14 With respect to the third sentence of
paragraph 15,Avista admits that the appropriate average number of attaching entities, for purposes
of calculating the telecom rate applicable to WOW's attachments is two,but denies any remaining
allegations. As reflected in Exhibits C and D to the Complaint. Avista used two attaching entities
in its calculation of the rate.
Avista denies the allegations in the fourth and fifth sentences of paragraph 15. WOW's math is
incorrect. As shown in Exhibits C and D to WOW's Complaint, Avista's pole attachment rate
calculations specifically allocate 2/3 of the cost of the unusable space equally among two attaching
entities:
----- -- - - - - SOURCEAL [TOTAL
U,%' FACTOR
A SPACE OCCUPIED BY ATTACHMENT FCC 1
8 TOTAL USABLE SPACE UTC 12.0
C AVERAGE POLE HEIGHT UTC 37.5
0 AVERAGE ER OF ATTACHERS PAT AL 2.0
E ♦ 0 2531
14 47 U.S.C. § 224(e)(2).
Answer
Page 10

As Line E of the above graphic from Exhibit C to the Complaint clearly shows,2/3 of the unusable
space (which is the "average pole height" minus the "total usable space") is divided by the two
attaching entities reflected in Line D."
16. Avista admits that the FCC's current telecom rate formula includes a "cost"
multiplier of 0.31 where there are two attaching entities, but Avista denies that this arbitrary cost
multiplier is appropriate for determining rates for telecommunications attachments in Idaho. As
set forth above, Avista uses the FCC's "old" telecom rate formula which does not include the
arbitrary cost discount in the FCC's current telecom rate formula. The unusable space on a pole is
the portion of the pole that is underground, as well as the portion above ground that is required to
obtain minimum grade clearance for overhead lines. Given that this space is of equal benefit to all
attachers (including the utility),the FCC's"old"telecom rate formula allocates this space in a way
that avoids utility customers bearing a disproportionate share of the cost of this space. In other
words, the "old" telecom rate formula avoids telecom attachers getting a "free ride" (or at least a
subsidized ride) on the backs of utility customers.
Prior to 1996, the federal Pole Attachments Act (which gives the FCC jurisdiction over
pole attachments where such matters are not regulated by the state) covered only cable television
system attachments. This is likely why the original version of IDAHO CODE § 61-538 covered only
cable television attachments—at the time it was adopted, jurisdiction over cable television
attachments was the only thing for a state to reverse preempt. In 1996, Congress expanded the
coverage of the Pole Attachments Act to include telecommunications carrier attachments;the 1996
amendment also included a new (and different) statutory rate formula for telecommunications
carrier attachments set forth in 47 U.S.C. § 224(e). This new statutory formula, as WOW seems
is Ex. C to Complaint,page 1.
Answer
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to acknowledge through its allegations in paragraphs 6 and 15 of the Complaint, allocates 2/3 of
the cost of unusable space equally among all parties attached to the pole.16 See 47 U.S.C. §
224(e)(2).
As initially implemented by the FCC following the 1996 amendments, the telecom rate
formula allocated the same pole cost as allocated through the"cable rate formula"(the rate formula
applicable to cable television providers) described in 47 U.S.C. § 224(d)(l)—the only difference
was the so-called "space allocation factor" which, because of the plain language of§ 224(e)(2),
allocated 2/3 of the cost of unusable space equally among all attaching entities. The rate yielded
by the § 224(e) formula varied depending upon the average number of attaching entities. For
example, if the average number of attaching entities was two, the telecom rate was approximately
324%higher than the cable rate; if the average number of attaching entities was 3,the telecom rate
was approximately 228% higher than the cable rate. In other words, as the number of attaching
entities went up, the cost allocated to each attaching entity went down. Up until 2011, the FCC
not only recognized that Congress created two separate formulas for two different types of
attachments but also recognized that Congress intended for the telecom rate to be higher than the
cable rate. In the Matter of Implementation of Section 703(e) of the Telecommunications Act of
1996 Amendment of the Commission's Rules and Policies Governing Pole Attachments, Report
and Order, 13 FCC Red 6777, ¶ 34 (1998) ("We note that in the one case where Congress
affirmatively wanted a higher rate for a particular service offered by a cable system, it provided
for one in section 224(e)" and noting that the FCC is "statutorily required to apply the higher
Section 224(e) rate"). Had Congress intended for cable television companies and
telecommunications companies pay the same rate, it could have simply adopted the 47 U.S.C. §
16 See 47 U.S.C. § 224(e)(2).
Answer
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224(d)(1) rate for telecommunications carriers. But the cable rate was originally established "to
spur the growth of the cable industry, which in 1978 was in its infancy." H. Rpt. 104-204, 91
(1995).As one court stated in 2011: "The FCC Cable Formula was developed to support a fledging
cable TV industry, which is no longer a fledgling industry."Public Util. Dist. No. 2 u Comcast of
Washington IV, Inc. 2011 Wash. Super. LEXIS 9, *14 (Dec. 12, 2011).
In 2011 and again in 2015, as a growing number of cable television companies began
offering telecommunications services and thus subjecting their attachments to the higher telecom
rate,the FCC took steps to manipulate the "cost" allocated through the telecom rate formula. The
cost factors that exist in the FCC's current telecom rate formula—such as the 0.31 cost factor
referenced above—exist solely to offset the additional share of cost mandated by 47 U.S.C. §
224(e)(2) such that the result of the "new" telecom rate formula is roughly equivalent to the rate
yielded by the cable rate formula. The introduction of the cost factors was an unabashed effort to
forcibly reduce the telecom rate in conflict with the spirit(if not the letter) of Section 224(e).
Because Avista believes that the "old" telecom rate formula results in a more equitable
allocation of costs for its customers and attaching entities,Avista used the old telecom rate formula
for purposes of calculating the rates applicable to attachments by telecommunications carriers.
Avista, though, admits (as alleged in the second sentence of paragraph 16) that the FCC's new
telecom rate formula would yield a per attachment rate of$21.84 for billing year 2023 and$21.63
for the 2024 billing year. The new telecom rate would shift more costs to utility customers than
the old telecom rate. Avista denies any remaining allegations in paragraph 16.
Overlashing
17. Avista denies the allegations in the first sentence of paragraph 17, as stated. Avista
admits that FCC rule 1.1416(a) prohibits a utility from requiring "approval"to overlash but notes
Answer
Page 13

that rule 1.1416(c) expressly allows a utility to require "advance notice"of overlash. Regardless,
the FCC rules do not apply in Idaho, and Idaho has no rule addressing overlashing. WOW also
fails to address the fact that the JUMLA expressly speaks to WOW's obligations with respect to
overlashing. Section 2.2.a. of Exhibit G to the JUMLA provides:
Whenever Licensee wishes to attach Communication Facilities in or on
Licensor's Structures on a new Route or Site or to alter the location or
Overlash any Attachments, Licensee shall first make written application to
Licensor, showing the Route or Site where Licensee's use is requested on maps
which may be obtained from Licensor and specifying the applicable information in
an RA or SA in the form of Exhibit H or Exhibit J attached hereto or as may from
time to time be prescribed by Licensor."
Avista denies the second and third sentences of paragraph 17 and notes that WOW has failed to
identify or provide gny facts supporting its allegations or that Avista operated in any way
unsupported by the JUMLA.
With respect to the allegation that Avista "issued stop-work orders," WOW was required
to cease work in April 2023 due to WOW's non-compliance with the JUMLA when Avista
discovered that WOW had replaced its cable without first notifying Avista.18 WOW's construction
activity occurred outside of Avista's permitting and engineering review process, and prevented
Avista from reviewing potential safety and code issues prior to access.19 The subsequent stop-work
orders in February and May of 2024 were entered due to WOW's default of non-payment,20 which
17 Ex. B to Complaint/ § 2.2.a"Application Procedure" of Exhibit G to the JUMLA.
18 Ex. 8 /E-mail Correspondence "Re: Stop Work Notification for Wired or Wireless Inc./Air-
Pipe."
19 Id.
20 Ex. 9 /30 Day Notice to Cure Defaults, page 2 ("WoW must not make any new attachments or
modify existing attachments on Avista's poles, and Avista will not process any attachment
applications from WOW, until resolution of these defaults."); Ex. 10 / Avista's May 15, 2024
Settlement Offer Letter ("Notwithstanding any prior conversations with Avista representatives
regarding work on WOW's existing infrastructure, WOW must not make any new attachments or
modify existing attachments on Avista's poles, and Avista will not process any attachment
applications from WOW, until all the above conditions of settlement are met.").
Answer
Page 14

authorized Avista to terminate the JUMLA and end WOW's use of Avista's poles.21 Therefore, all
of Avista's stop-work orders were within Avista's rights under the JUMLA. Avista denies the
allegations in the fourth sentence of paragraph 17 and notes that WOW alleges no facts in its
Complaint to support the allegation that any denial of access was discriminatory.
18. Avista denies all allegations in paragraph 18. The JUMLA is not "silent as to
WOW's right to overlash WOW's own cable." As quoted in paragraph 17 above, Section 2.2 of
Exhibit G of the JUMLA, clearly states that WOW may overlash only upon written application to
Avista. And Section 2.2.b. of JUMLA authorizes Avista to deny a request to overlash "due to
concerns for capacity, safety,reliability, or engineering considerations. ,22 Noticeably,WOW fails
to identify (1) any facts supporting the allegation that Avista "denied" WOW's right to overlash
WOW's own cables or (2) the provision of the JUMLA that Avista would have violated if it had
"denied"WOW's request to overlash.23
Pole Audit
19. The gist of WOW's argument in paragraph 19 is that Avista, rather than WOW,
should be keeping track of WOW's attachments through pole audits. But the JUMLA expressly
provides that it is WOW' obligation to report its number of attachments to Avista by May 1 each
year. Section 3.6.a(1) of Exhibit G to the JUMLA states:
Licensee shall deliver a written report to Licensor by May 1 of each year
enumerating the current number of Attachments by Route or Site. Such report
shall be in the form of Exhibit L attached hereto or as may be from time to time
prescribed by Licensor.... Licensor will notify Licensee prior to the scheduled start
21 Ex. B to Complaint/ § 3.8.a-b. of Exhibit G to the JUMLA.
22 Ex. B to Complaint/ § 2.2.b(3) of Exhibit G to the JUMLA.
23 WOW asserts in its footnote 6 that the FCC's rules would govern if the Commission found that
IDAHO CODE § 61-538 does not apply to this dispute. As explained in paragraphs 1, 3, 4 and 5
above,this is incorrect. Given the time period at issue in this dispute,the Commission's jurisdiction
flows from § 61-514.
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of the audit to allow Licensee to participate. Licensor will report the audit results
to Licensee within sixty (60) days of the audit completion.
WOW even goes so far to allege that it was Avista's failure to conduct poles audits, rather than
WOW's own breach of the JUMLA, that "was the likely cause" of WOW's unauthorized
attachments. WOW seems to have a problem understanding the concept of cause and effect
because the audit merely revealed the unauthorized attachments; it did not cause them. Avista
denies any remaining allegations in paragraph 19.
WOW's CLAIM FOR DAMAGES
20. Avista denies that any loss of customers by WOW was"due to Avista's actions"but
Avista lacks knowledge or information sufficient to admit or deny the remaining allegations in
paragraph 20 and therefore denies those allegations. To the extent footnote 8 in the Complaint
alleges, without any facts to support it, that Avista's actions made "WOW appear unreliable,
undermining customer trust,"Avista denies those allegations.
21. Avista denies the allegations in the first and second sentences of paragraph 21.
Avista lacks knowledge or information sufficient to admit or deny(but certainly has doubts about)
the allegations in the third sentence of paragraph 21 and therefore denies those allegations.
WOW's CLAIM FOR PENALTIES
22. WOW's demand for penalties is based on Idaho § 61-706, which states:
Any public utility which 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, under the
provisions of this act, in a case in which a penalty has not hereinbefore been
provided for, such public utility is subject to a penalty of not more than $2000 for
each and every offense.
Though WOW describes Avista's alleged conduct as"egregious,"it has failed to identify gny Idaho
statute, regulation, or rule, or Commission "order, decision, decree, rule, direction, demand or
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requirement" that Avista has supposedly violated. In fact, WOW does not even allege as much.
Instead, WOW's claim is best characterized as an alleged violation of FCC rules—which have
never been adopted by this Commission or the Idaho legislature. As set forth in paragraph 7 above,
WOW's argument that penalties should be assessed against Avista based on Avista's use of a rate
formula used by the FCC for 15 years—particularly in the absence of aM rate formula set by the
Commission—teeters on the precipice of bad faith.24
Despite the fact that Avista (not WOW)is the aggrieved party, in May 2024,Avista offered
to accept(for purposes of settlement)WOW's claimed number of attachments(561 total,with 181
unauthorized) instead of the 702 attachments revealed through the audit.25 This would have
reduced WOW's 2023 Annual Rental Billing amount from $49,053.12 to $39,121.08. Avista
further offered to compromise by removing the "three (3) times"multiplier under the JUMLA for
unauthorized attachments.26 This, in conjunction with the proposal to accept WOW's claimed
number of attachments,would have reduced WOW's True-Up Rental Billing from $334,288.80 to
$61,769.40. Id. On June 6, 2024, WOW refused these compromises, insisted that it was a cable
24 The best way to describe the state of the law under IDAHO CODE § 61-514 may be "wide open."
There is neither a formula applicable to attachments within the scope of§ 61-514 nor any guidance
on the manner in which the Commission intends to exercise its § 61-514 authority to establish
alternative "reasonable compensation" for such attachments. For this reason, Avista made the
reasonable choice to calculate this rate in the manner the FCC prescribed from 1996 through 2011
(i.e., what is now known as the"old"telecom rate formula). If WOW disagreed with this formula,
it was incumbent upon WOW to timely invoke the Commission's authority to establish"reasonable
compensation"under § 61-514. Furthermore, even with respect to pole attachments covered by §
61-538, there is no applicable formula. In 2002, the Commission opened a rulemaking procedure
to investigate the question of whether Idaho should adopt a formula under§ 61-538. However,the
proceeding was closed shortly thereafter due to a lack of interest. See Notice of Proceeding to
Determine Pole Attachment Rate Formula, Case No. GNR-E-02-2, Order No. 29010 and Decision
Memorandum: Dismissal of Pole Attachment Rate Formula Case, Case No. GNR-E-02-2, March
27, 2003.
25 Ex. 10/Avista's May 15, 2024 Settlement Offer Letter.
26 Id.
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provider, and demanded that the cable rate be applied to both invoices.27 Even after Avista filed its
state court lawsuit, Avista again offered reductions for the Annual Rental Billing as well as the
True-Up Rental Billing. Avista even proposed waving the accrued interest on the outstanding
invoices,which was substantial considering the contractual interest rate.28 WOW never responded
to this proposal. Avista denies any remaining allegations in paragraph 22.
23. Avista denies that it has violated any statutes, denies that it should be subject to
penalties or fines, and denies any remaining allegations paragraph 23. Avista also notes the irony
of WOW pretending to care about Avista's customers when WOW admits to enriching itself on the
backs of Avista's customers(by failing to properly report its attachments and by failing to pay LnX
pole attachment rental) for multiple years. In fact, it is because of Avista's customers that Avista
filed a lawsuit to recover the unpaid amounts from WOW. Any recovery by Avista will be a dollar-
for-dollar credit to Avista's revenue requirement.
WOW IS NOT ENTITLED TO THE RELIEF REQUESTED IN THE COMPLAINT
To the extent WOW's request for relief contains additional allegations against Avista,
Avista denies those allegations. Further, Avista respectfully requests that the Commission deny
WOW's request for relief, dismiss WOW's complaint with prejudice, and award Avista other such
relief as the Commission deems necessary and just under the circumstances. In specific response
to items A-G of the "Relief Requested"by WOW,Avista states as follows:
A. As set forth above, the appropriate rates for WOW's 702 attachments to Avista's
poles are the rates invoiced by Avista: $70.44 for billing year 2023; and $69.76 for billing year
2024.
27 Ex. 4/WOW's June 6, 2024 Letter,page 2.
28 Ex. 11 /Avista's May 22,2025 Letter,page 2; Ex. B of Complaint/§ 5.1 of JUMLA,"Payments
to Licensor."
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B. WOW is not entitled to a refund of any sort because it has paid nothing in annual
pole rental since Avista began charging WOW at the telecom rate in 2023. Further, even if WOW
had paid(which it has not),WOW would not be entitled to a refund.
C. The JUMLA between Avista and WOW has been terminated. WOW has no rights
to maintain its existing attachments on Avista's poles, let alone to install new facilities on Avista's
poles.
D. The purpose of Avista's 2023 audit was, in fact, to update its records and ensure
that attaching entities—like WOW—were paying for their attachments. Avista does not object to
a cooperative reconciliation of its records, but WOW is consistently uncooperative when it comes
to anything related to its facilities on Avista's poles.
E. The unauthorized attachment charges imposed by Avista come straight from
Section 3.6(2) of Exhibit G to of the JUMLA.Avista's termination of the JUMLA was a result of
WOW's uncured defaults (including but not limited to a complete lack of any good faith payment)
per Section 3.8.a of Exhibit G of the JUMLA.And the Washington Superior Court lawsuit filed by
Avista in January 2025 was simply to enforce its contractual rights. If WOW had legitimate
regulatory rights to vindicate through the Commission,WOW would have filed this case in January
2025 (if not at the time Avista first invoiced WOW at the telecom rate in October 2023). The
Commission should not interfere with Avista's enforcement of its contractual rights or the progress
of the Washington Superior Court lawsuit to enforce those rights.
F. Avista does not object to mediation supervised by the Commission should the
Commission believe it warranted.
G. As set forth above, there is no basis under the law or facts to impose penalties on
Avista. If any party's conduct warrants the imposition of penalties by the Commission, it should
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be the parry that(i)concealed its conversion to a telecom provider for 5 years, (ii)refused to make
any payment towards pole attachment rentals for two (2) years, and (iii) waited to file this
Complaint until (literally) the eve of the hearing on Avista's summary judgment motion in the
Washington Superior Court lawsuit.29
Respectfully Submitted,
Dated:August 28, 2025.
David J. Meyer, ISB No. 8317
Vice President& Chief Counsel for Regulatory&
Governmental Affairs
AVISTA CORPORATION
1411 E. Mission Ave.
Spokane,WA 99202
[phone]
[e-mail]
Attorney for Avista Corporation
29 Avista has no idea what WOW's reference to 47 C.F.R. § 1.1413 means in the context of
penalties. Section 1.1413 sets forth the FCC's procedural rules for an incumbent local exchange
carrier (ILEC) to file a pole attachment complaint against another utility. See 47 C.F.R. § 1.1413
(entitled"Complaints by incumbent local exchange carriers").
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 28th day of August 2025, served the foregoing Answer
upon all parties of record in this proceeding, by delivering it through electronic mail to the
addresses identified below:
Idaho Public Utilities Commission
Attn: Monica Barrios-Sanchez
Secretary
secretary(a,puc.idaho
Gregory M.Adams, ISB No. 7454
RICHARDSON ADAMS, PLLC
515 N. 27th Street
Boise, Idaho 83702
[phone]
[e-mail]
Robert H. Jackson, D.C. Bar No. 388397
MARASHLIAN &DONAHUE, PLLC
1430 Spring Hill Rd, Suite 310
Tysons,VA 22102
[phone]
rhi n commlawgroup.com
David J. Meyer, ISB No. 8317
Vice President& Chief Counsel for Regulatory &
Governmental Affairs
AVISTA CORPORATION
1411 E. Mission Ave.
Spokane,WA 99202
[phone]
[e-mail]
Answer
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