20250828EX 2 WOW April 25 2025 Counsel Letter.pdf

Exhibit 2
WOW's April 25, 2025 Counsel Letter

Eric Langley
2700 U.S. Highway 280
B R O M B E R G Suite 350E
Birmingham,AL 35223
205-783-5751
[e-mail]
May 22, 2025
VIA E-MAIL
Mr. Austin Rueschhoff
555 17th Street
Suite 3200
Denver, CO 80202
darueschhof&,hollandhart.com
Mr. Wiley Cason
420 L Street, Suite 550
Anchorage, AK 99501
w cg asonkhollandhart.com
Re: Avista Corporation v. Wired or Wireless, Inc.
Response and Counter-Offer for Settlement
Protected Under Rule of Evidence 408
Dear Austin and Wiley:
Thank you for your April 25, 2025 letter outlining Wired or Wireless, Inc.'s ("WoW")position on
Avista's attachment rate and its offer to settle the above-referenced lawsuit. Thanks also for the
benefit of our conversation via Teams on May 7, 2025. I apologize for the delay in our response,
which is completely related to my own schedule (not any delay on Avista's part). For the reasons
below, Avista respectfully declines WoW's April 25 offer. This letter will also confirm Avista's
position on the issues raised in your April 25 letter, and as discussed during our May 7 Teams
meeting.
First,Avista agrees that Idaho is a reverse preemption state and that the Idaho PUC has jurisdiction
over the ultimate question of whether any rate for pole attachments comports with state law.' As
we discussed on May 7,because the Idaho PUC has not established any particular rate formula for
pole attachments, Avista historically has used the FCC's separate formulas for CATV and
telecommunication carriers. Though those two formulas currently yield approximately the same
rate, that was not historically the case. Prior to the FCC's changes to the "telecom" formula in
2011 and again in 2015, the FCC's CATV rate formula and telecom rate formula yielded very
different rates.
For telecom attachments, Avista continued using what is now known as the "old" telecom rate
formula, even after the FCC's revisions to that formula, primarily because we believe it yields a
1 WoW's 8 unauthorized attachments in Washington,though,would fall under the authority of the
Washington Utilities and Transportation Commission.

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May 22, 2025
more equitable sharing of the cost of unusable space on a pole (which equally benefits all parties
attached to the pole). In short, as I believe I communicated in our May 7 Teams meeting, we
believe that the Idaho PUC would find Avista's methodology to be acceptable—if not preferable—
if confronted with the question.
Second, during our May 7 Teams meeting, you asked why the rate increased beginning with the
2023 billing year. The answer, which I believe I communicated during our meeting, is that 2023
(or perhaps shortly before then) was when Avista first came into knowledge that WoW was a
telecommunications carrier. In other words, Avista has been operating under the assumption that
WoW was a CATV but learned through correspondence with WoW and its own investigation that
WoW was in fact, a telecommunications carrier.
Settlement Counteroffer
As an initial matter, your April 25 offer of settlement addressed only the 2023 and 2024 annual
invoices. There is more at issue,though, than just the 2023 and 2024 annual invoices. As set forth
in the complaint, Avista's 2023 audit revealed 322 unauthorized attachments, which were the
subject of the December 14,2023 audit true-up invoice in the amount of$334,288.80. This amount
was calculated using the methodology for unauthorized attachment fees set forth in the parties'
contract. Previous correspondence has made clear that WoW disputes the number of both
authorized attachments and unauthorized attachments reported by the audit. I believe WoW's
position is that it has 561 attachments, 181 unauthorized of which were unauthorized.
For settlement purposes only, Avista offers the following terms:
• 2023 annual rental billing amount of$39,121.08;
• 2024 annual rental billing amount of$38,758.96;
• Avista agrees to annual billing (subject to additions, removals, and subsequent audits) at
the 561 attachment count;
• Audit True-Up Invoice at 50% discount($167,144.40);
• Parties' execution of a settlement agreement and mutual release; and
• WoW's execution of a new pole license agreement.
The proposed 2023 and 2024 annual rental payments are based on the attachment count proposed
by WoW (561). The 50% discount on the audit true-up invoice not only accounts for WoW's
claimed number of unauthorized attachments but also offers additional concession. We are also
proposing to use the 561 attachment count for purposes of going-forward billing, subject to
additions,removals, and/or subsequent audits. Further,we are proposing to waive accrued interest
on the outstanding amounts which,at this point(and considering the 18%contractual interest rate),
is substantial.
Also, assuming WoW wishes to continue using Avista's infrastructure for its attachments, Avista
requires a newly executed standard pole license agreement. This will eliminate any confusion
about contractual rights and obligations and will benefit WoW financially going forward. Avista's

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May 22, 2025
new agreement applies a single rate to all attachments, regardless of classification (CATV v.
telecom) as set forth below:
Idaho Washington
Avista Annual Pole Cost x Avista Annual Pole Cost x
Use Ratio Use Ratio
(per attachment rate) (per attachment rate)
Where: Annual Pole Cost (i.e., net bare per pole cost x annual carrying charge rate) is calculated
in accordance with the formula adopted and implemented by the Federal Communications
Commission for calculating annual pole cost, as modified (if at all) by order of the Washington
Utilities and Transportation Commission ("WUTC") or the Idaho Public Utilities Commission
("IPUC").
And where Use Ratio is calculated as follows:
Idaho Washington
1/12 feet=8.33% 1/13.5 feet=7.41%
The above rate formulas are, of course, subject to revision in the event of a regulatory change. As
you can see, the new pole license agreement would provide substantial annual rental savings to
WoW on a going-forward basis.
With respect to the pending litigation,though Avista is not amenable to stay,we are open to further
discussing the possibility of informal mediation with the Idaho PUC if the parties are unable to
reach a deal on their own.
Thank you for your attention to this matter. Please let me know if there are further questions I can
answer about Avista's position and proposed settlement terms. I look forward to hearing back
from you.
Sincerely,
/s/Eric B. Langley
Eric B. Langley