20250828EX 13 Declaration of Elizabeth Rau.pdf

Exhibit 13
Declaration of Elizabeth Rau

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SUPERIOR COURT,STATE OF WASHINGTON-COUNTY OF SPOKANNE
AV'ISTA CORPORATION, a Washington
public utility corporation; } NO. 25-2-00560 32
� Plaintiff; )
DECLARATION OF ELISABETH
J RAU IN SUPPORT OF
]U V. PLAINTIFF'S MOTION FOR
SUMMARY JUDGAIENT
11 WIRED OR WIRELESS, INC., a
Washington corporation, ].
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Defendant.
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I,ELISABETH RAU,hereby declare as follows:
1. I am over the age of 18,have personal knowledge of the matters.set forth
17 herein; and am Competent to testify.
i 2, I am the Program Manager for Avista Corporation's ("Avis&')Joint Use.
19 Department; and oversee the billing, account records, and agreements governing
20 third-party entities—known as Licensees—who are authorized to. instdll and maintain
corruuunications equipment ("Attachments") on Avista's utility pops ("Structures")
ii under joint use arrangenientsl
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25 ,In this Context,'AttachmenY'means a placement or Connection of WOW's communications equipment,
such as coaxial,fiber optic,or similar equipment onAvista's Structures.
DECLARATION OF ELISABETH RAU IN
SUPPORT OF PLAINTIFF'S MOTION FOR (02 W.aIhhi
SUMMARY JUDGMENT-1

3. In my capacity .as Program Manager, I am familiar with the October 8,
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2009 Joint Use Master License Agreement CAgreement")between Avista,as licensor,
and Defendant Wired or Wireless, Inc. ("Defendant" or "WOW"), as licensee. I
4 regularly review the Agreement to carry out my duties.
4. Attached hereto as Exhibit A, in-pertinent part, is a true and correct
e copy of the Agreement. This document is maintained in the regular course of Avista's
7 business..
8 5. As Program Manager, I .have personal. knowledge of .Avista's billing
9 practices, records management, and contractual enforcement processes under the
10 Agreement with WOW. I regularly review and maintain billing records that reflect the
1- rates charged to WOW for its Attachments on Avista's utility poles.
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6. Avista's billing records are created and stored in the ordinary course of
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business by Avista personnel with knowledge of the underlying data.
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q, The invoices Avista issues to a licensee are based on the number of
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Attachments associated with said licensee, and the applicable rate for the type of each
17 Attachment.The same methodology was applied to the invoices issued to WOW.
18 8. The Agreement requires licensees to annually report the number of
19 .Attachments on Avista's Structures, as this information directly affects the billing
>c calculations. The applicable rates per Attachment vary by the state in which the
21. Attachments are located.
27 g. Avista's invoices are generated using information from Avista's records,
2 1 Attachment reports from licensees, audits, and licensee communications. To date,
24 WOW has not provided Avista with any reports of its Attachments on Avista's utility
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Boles.
DECLARATION OF ELISABETH RAU IN
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SUPPORT OF PLAINTIFF'S MOTION FOR 0121 NN „v„„a„ 1,r.gin;
Lttuyra� Spy:ksm WA:'r.13111
SUMMARY JUDGMENT-2 00 i 11.!ins

10. Prior to 2023, Avista invoiced WOW for 38o Attachments based on the
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information in Avista's records. These Attachments were billed at the rate applicable
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3 to cable television ("CATV") service providers. Around this time, however, Avista
A discovered that WOW was actually providing telecommunication services, which
triggered a different rate classification to be applied to WOW's Attachments.
6 11. In 2023, Avista carried out a system-wide audit of its utility poles and
7 Attachments thereon,which was conducted by.VentureSum Corporation, a third-party
s vendor that pro-vides pole attachment audit services.Avista's 2o23.audit revealed that
9 WOW has 702 total Attachments on Avista's Structures. Of these, 322 were
1c unreported and therefore unauthorized, including 314 in Hope, Idaho, and 8 in
11 Spangle, Washington. Attached as Exhibit B is a true and correct copy of the 2023
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Avista audit summary report of WOW's Attachments,
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12. The results of the 2023 audit, and WOW's status as a telecommunication
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service provider, were incorporated into Avista's billing system and :reflected in the
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subsequent invoices issued to WOW.
17 13. On October 25, 2023, Avista issued to WOW its 2023 Annual Rental
18 Billing Invoice in the amount of $49,053,12, which included charges for the 322
.3 unreported Attachments discovered in the audit, and the per-Attachment rate for
20 telecommunication service providers. Payment was due by November 24, 2023•WOW
21 failed to make payment.Attached hereto as Exhibit C is a true and correct copy of the
22 2023 Annual Rental Billing Invoice.
23 14. On December 14, 2023, Avista issued a back:billing invoice (the "True-
24 Up Rental Billing Invoice") to WOW in the amount of $334,288.80, covering the
unreported Attachments at the applicable rates, as permitted by Section 3.6 of Exhibit
DECLARATION OF ELISABETH RAU IN P Iq,�,,.j W1111.kotmtiA.11�_3;
SUPPORT OF PLAINTIFF'S MOTION FOR 012 t%.:,inbi Aw..Sue.207
SUMMARY
77+{�JUDGMENT
].mar rr, Spokntw,WA 9!1$01
SUlVllVlAR a/ DGMENT-3 K 1,:,in!.3_11.+!130 1'509,321.593.5

to the Agreement. Payment was due by January 13, 2024.WOW main failed to pay.
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Attached as Exhibit D is a true and correct copy of the True-Up Rental Billing
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3 Invoice.
4 15. On November 26,2024, Avista issued to WOW its 2024 Annual Rental
5 Billing Invoice in the amount of $48,595.12. This invoice reflected the 702 total
6 Attachments identified in Avista's 2023 audit and the per;Attachment rate for
telecommunication service providers. Payment was due by December 26, 2024, but
B WOW has failed to make any payment toward this invoice.Attached hereto as Exhibit
9 E is a true and correct copy of the 2024 Annual Rental Billing Invoice.
1 16. WOW did not provide any audit reports to 'contradict the accuracy of
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Avista's audit.
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7: Avista is aware that WOW has referenced an internal spreadsheet of its
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own, identif,ing only 561 Attachments on Avista's Structures. Attached hereto as
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Exhibit F is a copy of the document that.I understand to be WOW's spreadsheet of its
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Attachment count. To my knowledge, WOW did not provide this document to Avista
17 prior to the above-captioned lawsuit.
18 18. The document attached as Exhibit F appears to be an annotated version
19 of Avista's audit report attached as Exhibit B. Based on my review, the document
20 attached as Exhibit F does not accurately reflect WOW's actual number of
21 Attachments on Avista's utility poles.
22 19. Avista's audit report, as detailed in Exhibit R, is the accurate record of
23 WOW's Attachments.
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DECLARATION OF ELISABETH RAU IN P VW'i.€Yallab•KIIIIUA,€'€1.r
SUPPORT'OF PLAINTIFF'S MOTION FOR r€2 W.1u;� a;•..af .�u7
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SUMMARY JUDGMENT-4 pau;�.ssi.aar,;n r•so:r;i_i.,ix-,

zo. To date, WOW has made no payments at all toward the outstanding
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balance (even for the 561 .Attachments that it claims), and has not provided any
3 documentation to substantiate its claims or dispute Avista's audit findings.
4 I declare under penalty of perjury under the laws of the State of Washington
that the foregoing is true and correct.
G SIGNET)this] 'day of,June_2025 in Spokane,Washington.
8 rip ,
ELISABETH RAU
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DECLARATION OF ELISASETH RAU IN 1, �7 r,,��M 1,11"le K1,k nrik.t�t.r.c
SUPPORT OF PLAINTIFF'S MOTION FOR M 2 Wr X11,611 Avo.,Sip,2117
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SUMMARY JUDGMENT-5 t ;;crl;ts1s41::n rsuir,:�'r:;,;a

CERTIFICATE OF SERVICE
2 I HEREBY CERTIFY that on theZOday of June 2025, I caused to be served a
a true and correct copy of the foregoing document to the below individuals as follows:
4 Q HAND DELIVERY William G. Cason
7 U.S.MAIL Ashley A. Peck
L 1 OVERNIGHT MAIL Holland&Hart LLP
F-1 FAX TRANSMISSION 420 L Street, Suite SSU
61 If ENTAIL Anchorage,AK 995oi
(]E-SERVICE [e-mail]
-7 aapecl(@hollandliart.conz
s Attorrmeys for Wired or Wireless,Inc.
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DECLARATION OF ELISABETH RAU IN
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SUPPORT OF PLAINTIFF'S MOTION FOR M!\V, 4urfiu W',Sit..sn;
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SUMMARY JUDGMENT-6