20250828EX 3 Avista Complaint.pdf

Exhibit 3
Avista's Complaint

COPY
Original Filed
JAN 312025
1
TIMOTHY W. FITZGERALD
2 SPOKANE COUNTY CLERK
3
4
5
6 SUPERIOR COURT, STATE OF WASHINGTON, COUNTY OF SPOKANE
7 AVISTA CORPORATION, d/b/a AVISTA )
UTILITIES, a Washington public utility ) NO.A8 5 2' n 0 5 6 0 3
corporation, )
p ) COMPLAINT
9
Plaintiff; )
10 )
V. )
11 )
WIRED OR WIRELESS, INC., a/k/a AIR- )
12 PIPE, a Washington corporation, )
13 Defendant. )
14
Plaintiff Avista Corporation, d/b/a Avista Utilities, by and through its attorneys
15
16 of record, Piskel Yahne Kovarik, PLLC,hereby alleges as follows:
17 I. PARTIES AND JURISDICTION
18 1. Plaintiff Avista Corporation d/b/a Avista Utilities ("Avista"), is a
19 Washington public utility corporation, with its principal place of business in Spokane,
20 Washington. At all times pertinent hereto, Avista was, and is, duly authorized to
21 conduct business in the states of Washington and Idaho.
22 2. Defendant Wired or Wireless, Inc., a/k/a Air-Pipe ("WOW"), is a
23
Washington corporation with its principal place of business in Spokane Valley,
24
Washington, and upon information and belief is a provider of internet and
25
COMPLAINT- 1 PY 11iskeJ XOJ77lC,Kovarik,1'1J,C
612 V1'.Mein Ave.,Ste.20
Ktam>-erx Spokane,11`A 99201
p 509.321.5930/F 509.321.5935

telecommunications services authorized to do business in the states of Washington
1
and Idaho.
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3 3. Jurisdiction and venue are proper in this Court.
II. FACTS
4
5 4. On or about October 8, 20og, Avista entered into a Joint Use Master
6 License Agreement (the "Agreement") with WOW, which allowed WOW to attach its
7 wireline communications equipment ("Attachments") to Avista's utility poles
8 ("Structures") in exchange for payment and subject to the terms and conditions of the
9 Agreement.,
10 5. The Agreement requires WOW to comply with Avista's application and
11
approval process for all Attachments, including payment of associated costs, and to
12
pay all rental fees and invoices. Additionally, Paragraph 12 of Exhibit A of the
13
Agreement requires WOW to report all new Attachments on the tenth day of each
14
month. Furthermore, Section 3.6(a) of Exhibit G to the Agreement further requires
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WOW to report the number of its Attachments to Avista by May 1 each year.
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6. In or around 2018, WOW, under the direction of its president, William
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18 B. Geibel, Jr. ("Mr. Geibel"), expressed interest in expanding its network of
19 Attachments in Hope, Idaho by overlashing new fiber optic equipment to existing
20 coaxial cables on Avista's Structures ("Hope Project").
21 7. However, Avista discovered that WOW had already begun installing
22 Attachments to Avista's Structures before applying for such Attachments according to
21 the Agreement. Avista personnel then met with WOW representatives to reiterate the
24 application process for obtaining approval to install Attachments on Avista's
25 1 In this context, "Attachment" means a placement of wow's communications equipment, such a
coaxial,fiber optic,or similar cable on Avista's Structures.
COMPLAINT- 2 P 7-
1'iskstl l'uLnc Korurik,1111.0
I� 612 W.Main Ave.,Ste.1' 20
La.+yer!t Spokane, 1`A 99201
F'509.121.5930/F 500-321.5935

Structures.
1
8. On or around August 15, 2019, WOW submitted its first application
2
3 ("Route Application") for Attachments at the Hope Project, which requested approval
4 for overlashing fiber optic equipment to existing Attachments on 25 of Avista's
5 Structures. After conducting necessary reviews, Avista approved the Route
6 Application.
9. However, after Avista approved WOW's initial Route Application for the
8 Hope Project, WOW did not report any related or new Attachments, and did not
9 communicate with Avista any further regarding the Hope Project.2
10 10. Thereafter, Avista discovered that WOW installed Attachments without
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delivering monthly new Attachment reports to Avista, or providing Avista the
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opportunity to inspect the new Attachments. Furthermore, WOW bypassed the
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application and approval process for several additional Attachments, and failed to
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deliver annual Attachment reports as required by the Agreement.
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11. In or around April 2023,Avista contacted WOW to discuss the violations
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caused by its unauthorized Attachments. While discussing the unauthorized
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18 Attachments with Avista's Joint Use Department, Mr. Geibel stated words to the
19 following effect: "[ilf I had to apply to do all this[permitting and make-ready work]
20 I'd never make any money."Avista informed WOW of its intent to conduct an audit of
21 the Attachments on Avista's Structures.
22 12. In 2023, Avista conducted a system-wide audit of its Structures in
23 accordance with Section 3.6 of Exhibit G of the Agreement. The audit revealed that
24
2 The approved Route Application required a make-ready pole replacement at a shared cost.WOW's
2 5 estimated portion of this cost was$2,75o,and most of the cost was allocated to Avista.To date,WOW has
failed and refused to pay its portion of the shared cost.
COMPLAINT- 3
YiskO Y+3hne Kovarik,Pl.l.0
612 W.pok ,N Ste,20
KLa.vrrrs Spokane, 99201
V 509.321.5930/F 509.321.5935

WOW installed 314 unauthorized WOW Attachments in Hope, Idaho, and 8
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unauthorized WOW Attachments in Spangle, Washington, for a total of 322
2
3 unauthorized Attachments.
4 13. On October 25, 2023, Avista sent WOW its annual Attachment fee
5 invoice ("2023 Annual Rental Billing Invoice") in the amount of$49,053.12. The 2023
6 Annual Rental Billing Invoice included the 322 additional Attachments discovered
7 during Avista's 2023 audit, all charged at the applicable rates per Attachment type.
8 Payment was due by November 24, 2023, but WOW failed and refused to pay.
9 14. On December 14, 2023, in accordance with Section 3.6 of Exhibit G of
10 the Agreement, Avista issued an invoice back billing for WOW's unauthorized
11 Attachments ("True-Up Rental Billing Invoice") for $334,288.80, charged at the
12
applicable rates per Attachment type. Payment was due by January 13, 2024, but
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WOW failed and refused to pay.
14
15. When confronted with the results of the 2023 audit, WOW did not
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dispute that it had unauthorized Attachments. Instead, WOW claimed it only had 181
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unauthorized Attachments. WOW has not substantiated its count of 181 unauthorized
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18 Attachments, nor has it pointed to any specific inaccuracy of Avista's 2023 audit.
19 16. On February 13, 2024, in accordance with Section 3.8(a) of Exhibit G of
20 the Agreement, Avista sent WOW written notice of WOW's defaults and failures to
21 perform according to the Agreement, citing WOW's failure to pay the 2023 Annual
22 Rental Billing Invoice and the True-Up Rental Billing Invoice, as well as its
23 unauthorized Attachments. WOW did not cure said defaults or failures to perform
24 within 3o days of the February 13, 2024 written notice, as required by Section 3.8(a)
25
COMPLAINT-4 P �7'
1'iskcl YaUne Kocnrik,1'ld.G
K 612 W.Hain Ave., .20
In++�cr Spokane,\M1'A 99201
Y 5W.321.5930/H 509.321.5935

of Exhibit G.
1
17. Thereafter, Avista made numerous efforts to work with WOW regarding
2
3 its multiple defaults and breaches of the Agreement. Unfortunately, Avista's efforts
4 were in vain, as WOW refused to cooperate in good faith, comply with the Agreement's
5 terms, remedy its defaults, or engage in a meaningful resolution.
6 18. On December 23, 2024, Avista, through counsel, sent a letter to WOW
7 formally terminating the Agreement in accordance with Section 3.8 of Exhibit G, and
8 informed WOW that it must remove all Attachments from Avista's Structures within
9 sixty(6o) days.
10 19. WOW has engaged in a persistent pattern of breaching the Agreement
11
while speciously disputing and challenging its performance obligations thereunder,
12
such as failing to obtain Avista's approval for its Attachments, ignoring its payment
13
obligations, and contesting applicable Attachment rates. Indeed, WOW has either
14
ignored or contested the Agreement and Avista's attempts to uphold it, including
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Avista's demand for removal of WOW's Attachments. WOW continues to maintain its
16
Attachments on Avista's Structures without payment. As such, WOW has materially
17
18 breached the Agreement by expressing repudiation of its promises.
19 20. In addition to WOW's failure to pay the 2023 Annual Rental Billing
20 Invoice and the True-Up Rental Billing Invoice, WOW's continued failure to comply
21 with the Agreement has caused Avista to incur administrative and legal costs.
22 21. Despite Avista's good faith efforts to work with WOW to resolve these
23 issues, WOW continuously fails to cooperate, and refuses to perform its obligations
24 under the Agreement.
25
COMPLAINT- 5
11iF1:41 Yf11111C!Kovurik,P1J.0
612 W,Spokane,
Ave., 20
K �n,vrcrs SpokTne,A'1'A 99201
P 509.321.5930/F 500.321.5935

III. CAUSES OF ACTION
1
First Cause of Action
2 (Breach of Contract)
3 22. Avista incorporates by reference the allegations above as if fully set forth
4
herein.
5
23. Avista and WOW entered a written contract, the Agreement, wherein
6
WOW agreed to comply with the Attachment application process and reporting
requirements, pay rental fees and invoices, and remove its Attachments from Avista's
8
Structures upon termination of the Agreement or failure to cure defaults.
9
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24. Avista has performed all terms and conditions and has satisfied its
11 obligations under the Agreement, or such terms, conditions, and obligations have been
12 waived.
13 25. WOW materially breached the Agreement. For example, but without
14 limitation, WOW:
15 a. Installed unauthorized Attachments on Avista's Structures, bypassing
16 the Attachment application and approval process;
17 b. Failed to comply with the Attachment reporting requirements; and
18 c. Failed to pay the 2023 Annual Rental Billing Invoice and the True-Up
19
Rental Billing Invoice.
20
26. Furthermore, in response to Avista's attempts to uphold the Agreement,
21
including Avista's demand for removal of WOW's Attachments, WOW has persistently
22
disputed, challenged, and contested its obligations while continuing to use Avista's
23
Structures for its own benefit. WOW's ongoing, contentious conduct demonstrates its
24
25 unwillingness and refusal to perform according to the Agreement, including removal
COMPLAINT- 6
Yiskca Y'nhue Koviirik,Y1.LC
K 612 b1'.Hain Ave.,Ste.20
�mv)cr. Spokane.1tiA 99201
Y 509.321.5930/F 500-321.5935

of its Attachments from Avista's Structures.As such, WOW has materially breached by
1
2 repudiation of its promises.
3 27. WOW's ongoing challenges to the Agreement and Avista's attempts to
4 uphold it has obstructed the intended purpose of the Agreement, and constitute a
5 material breach, depriving Avista of its contractual rights.
6 28. As a direct and proximate result of WOW's material breaches of the
7 Agreement, Avista has incurred losses and damages in an amount to be determined
8 according to proof at trial.
9 Second Cause of Action
10 (Breach of the Implied Duty of Good Faith and Fair Dealing)
11 29. Avista incorporates by reference the allegations above as if fully set forth
12 herein.
13 30. Implied by law into the terms of the Agreement is the implied duty of
14 good faith and fair dealing. WOW owed Avista the implied duty of good faith and fair
15 dealing, including, without limitation, the duty to cooperate so that Avista would obtain
16 the full benefit of performance and faithfulness to an agreed common purpose
17 consistent with Avista's justified expectations under the Agreement.
18
31. WOW has materially breached its implied duty of good faith and fair
19
dealing. For example, WOW failed to comply with the Attachment application and
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reporting processes, pay invoices, and otherwise cooperate with Avista.
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32. Furthermore, in response to Avista's attempts to uphold the Agreement,
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including Avista's demand for removal of WOW's Attachments, WOW has persistently
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disputed, challenged, and contested its obligations while continuing to use Avista's
24
25 Structures for its own benefit. WOW's ongoing, contentious conduct demonstrates its
COMPLAINT- 7 P�
Yizkel Yhhnc Kocurik,Pl.l_C
K 612\M.pok 20
lax�i•rc 51)O�iFIt1C,�1'A 99201
1)509.321.5930/F 5M.321.5935

unwillingness and refusal to perform according to the Agreement and remove its
1
Attachments from Avista's Structures. As such, WOW has materially breached by
2
3 repudiation of its promises.
4 33• As a direct and proximate result of WOW's material breaches of its
5 implied duty of good faith and fair dealing, Avista has incurred losses and damages in
6 an amount to be determined according to proof at trial.
7 Third Cause of Action
(Specific Performance)
8
34• Avista incorporates by reference the allegations set forth above, as if fully
9
10 set forth herein.
11 35• Avista and WOW entered a written contract, the Agreement, wherein
12 WOW agreed to remove all Attachments from Avista's Structures upon termination of
13 the Agreement, or upon failure to cure defaults after written notice.
14 36. WOW has consistently demonstrated its unwillingness and refusal to
15 perform under the Agreement, including its obligation to remove its Attachments from
16 Avista's Structures. Indeed, WOW has persistently disputed and contested its
17 obligations while continuing to knowingly breach the Agreement. WOW continues to
18 maintain its Attachments on Avista's Structures without payment or Avista's approval.
19
37. Washington and Idaho both recognize equitable relief in the form of
20
specific performance, and the Court has within its discretion the ability to grant specific
21
performance of the Agreement.
22
38. Avista is entitled to specific performance of the terms of the Agreement
23
requiring WOW, at its own expense, to remove all Attachments from Avista's Structures
24
25 in Washington and Idaho upon domestication of judgment as necessary.
COMPLAINT- 8 P
Yiskel Yahnc ICo��arik,PLL.0
K 612 LV.pok Spokane.
Ste.201
I m.rrre Spokane,WA 9920]
P 509.321.59301 F 50q.321.5935

1 Fourth Cause of Action
(Trespass)
2
3 39. Avista incorporates by reference the allegations set forth above as if fully
4 set forth herein.
5 40. WOW has intentionally invaded Avista's possessory interest in its
6 Structures by unlawfully installing unauthorized Attachments on Avista's Structures
7 without Avista's license, permission, or invitation.
8 41. WOW's intentional actions include, but are not limited to, installing and
9 maintaining unauthorized Attachments on Avista's Structures in violation of the
10 Agreement, failing to report its Attachments to Avista, and using Avista's Structures for
11
WOW's Attachments without payment.
12
42. Furthermore, WOW continues to maintain its Attachments on Avista's
13
Structures without payment or Avista's approval. WOW's ongoing adversarial conduct,
14
such as speciously disputing, challenging, and contesting the Agreement, demonstrates
15
its intent to unlawfully maintain its Attachments on Avista's Structures.
16
17
43• WOW knew or reasonably should have known that its actions would
18 interfere with Avista's lawful and exclusive right to control and possess its Structures.
19 44• As a direct and proximate result of WOW's wrongful conduct, Avista has
20 incurred damages in an amount to be proven at trial. Furthermore, Avista is entitled to
21 injunctive relief requiring WOW to remove all Attachments from Avista's Structures in
22 Washington and Idaho upon domestication of judgment as necessary.
23
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25
COMPLAINT- 9
1'iskcl}Salux Ktaarik,PIJ,C
K (112 ti1'.ldk Ste.20
taa,ecv Spokane,
nc.11`A 99201
P 509.321.5930/F 5019.321.5935

Fifth Cause of Action
1 (Ejectment)
2 45. Avista incorporates by reference the allegations set forth above as if fully
3 set forth herein.
4
46. Avista is the lawful owner of its Structures, and holds a valid, superior,
5
and subsisting interest in and exclusive rights to possess and control its Structures.
6
47. WOW has no ownership interest in or right to possession or control of
Avista's Structures.
s
48. WOW has wrongfully and unlawfully occupied and utilized Avista's
9
10 Structures without permission or lawful authority by:
11 a. Installing Attachments to Avista's Structures without proper applications
12 or approvals as required under the Agreement; and
13 b. Using Avista's Structures for WOW's unauthorized Attachments without
14 payment.
15 49. Furthermore, WOW has continued to assert control over Avista's
16 tructures by maintaining its Attachments thereon while withholding payment to
17 vista and speciously disputing, challenging, and contesting its performance
is
bligations. WOW's ongoing adversarial conduct demonstrates its intent to unlawfully
19
ilaintain its Attachments on Avista's Structures, rather than adhere to its contractual
20
obligations and remove its Attachments therefrom.
21
50. As the lawful owner of its Structures, Avista's title and rights to exclusive
22
possession and control of its Structures are superior to any claims asserted by WOW
23
24 or those acting under WOW's direction.
25 51. Avista is entitled to a judgment requiring WOW to remove all
COMPLAINT- 10 ��
1'isket Y++hno Kacarik,I'IJ.C:
612 W. in 519.20
Spokane.A1A 99201K P 509.321.5930
/F 50.9.321.5935

Attachments from Avista's Structures in Washington and Idaho upon domestication of
1
2 judgment as necessary.
3 52. Avista further seeks an injunction preventing WOW from entering or
4 interfering with Avista's Structures in the future, and any additional equitable or
5 injunctive relief deemed appropriate by the Court.
6 IV. PRAYER FOR RELIEF
7 WHEREFORE, Plaintiff Avista prays for relief against Defendant WOW as
8 follows:
9 1. For judgment against WOW in an amount to be proven at trial;
10 2. For preliminary and permanent injunctive relief requiring WOW to
11 remove all. Attachments from Avista's Structures, and to refrain from further
12
unauthorized use of Avista's Structures, in Washington and Idaho upon domestication
13
of judgment as necessary;
14
3. For a Writ of Assistance and/or any other required court order to enforce
15
the Court's judgment against WOW, which authorizes and directs the Bonner County
16
Sheriff to remove WOW's Attachments from Avista's Structures;
17
18 4. For a Writ of Assistance and/or any other required court order to enforce
19 the Court's judgment against WOW, which authorizes and directs the Spokane County
20 Sheriff to remove WOW's Attachments from Avista's Structures;
21 5. For pre judgment interest at the highest rate allowed by law;
22 6. For post judgment interest at the highest rate allowed by law;
23 7, For reasonable attorney fees and costs incurred herein pursuant to
24 applicable law,the Agreement, and/or equity; and
25
COMPLAINT- 11 P �
11iskel 1'+1ina I+orarik,P1J_C
(i12 W.
� 207
Spokne,NLA 99'
01
11509.321.593()/F 509.3-11.5935

8. For any additional relief as the Court deems just and equitable.
1
DATED this 31St day of January 2025.
2
PI NE KOV ,
3
4
r
5 Asf7N T. PISKEL,WSBA 43539
TROY D. SIMS,WSBA #58354
6 Attorneys for Plaintiff
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COMPLAINT- 12 P �
Yiskc•t Y+iluio[Covurik,YI,I.(:
012 V.; 20
Kay Spokane.N1A 0920
1
9.321.3930
/P 5(1).321.5935