20251125WOW Response to Avista Answer.pdf

RECEIVED
NOVEMBER 25, 2025
IDAHO PUBLIC
UTILITIES COMMISSION
Robert H. Jackson, D.C. Bar No. 388397 (pro hac vice)
Marashlian & Donahue, PLLC
1430 Spring Hill Rd., Suite 310
Tysons, VA 22102
Phone: [phone]
Email: [e-mail]
Gregory M. Adams, ISB No. 7454 (local counsel)
Richardson Adams, PLLC
515 N. 27th Street Boise, Idaho 83702
Phone: [phone]
Email: [e-mail]
Attorneys for Wired or Wireless, Inc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
WIRED OR WIRELESS, INC., )
Complainant, ) Case No.AVU-E-25-11
VS. )
AVISTA CORP., )
Respondent. )
RESPONSE OF WIRED OR WIRELESS, INC. TO THE ANSWER OF AVISTA CORP.
Wired or Wireless, Inc. ("WOW"), by and through counsel, and pursuant to the October
21, 2025 Order of the Idaho Public Utilities Commission("Commission" or"PUC"), respectfully
submits this Response to the August 28, 2025 Answer filed by Avista Corporation("Avista"). The
Commission's Order directed WOW to address the new matters raised in Avista's Answer.
Two principal new issues are presented in Avista's pleading,each concerning jurisdictional
and legal questions central to this dispute:
1. Whether Idaho Code § 61-538 governs the parties' pole attachment dispute, as WOW
maintains, or whether Idaho Code § 61-514 applies, as asserted by Avista; and
I1. Whether the so-called Federal Communications Commission ("FCC") "Old Telecom
Rate" applies to WOW's attachments, as argued by Avista.

WOW also provides limited additional responses to certain other statements and arguments
contained in Avista's Answer.
I. WHICH STATUTE APPLIES?
Avista correctly observes that, in a Request for Rapid Broadband Assessment Team
(RBAT)Review and Assessment filed by WOW on March 10,2025,WOW asserted that the FCC
retained jurisdiction because the Idaho Public Utilities Commission (PUC) had jurisdiction over
pole attachments for cable television companies only under the pre—July 1,2025 version of Section
61-538.1
Following communications among the parties and FCC staff, a videoconference was held
on March 18, 2025. During that conference, counsel for Avista advised both the FCC and WOW
that,because WOW had historically operated as a cable television company, the pre—July 1, 2025
version of Section 61-538 applied—thereby conferring jurisdiction on the Idaho Commission to
adjudicate the WOW—Avista dispute.
After considering the facts and arguments presented by the parties—including Avista's
decision not to participate in the RBAT process—and in light of the FCC's prior certification that
Idaho regulates pole attachments2 pursuant to Section 224(c) of the Communications Act of 1934,
as amended("34 Act"), 47 U.S.C. § 224(c), the FCC declined to commence the RBAT process.
Had the FCC agreed with WOW's jurisdictional position—that, under the pre-July 2025
version of Section 61-538, the FCC, rather than the Idaho Commission, possessed authority over
the dispute—the Commission would have directed WOW to file a pole attachment complaint under
1 See also, June 24, 2025 letter from WOW's Washington State litigation counsel to Avista,reproduced in
Avista's Answer Ex. 4.
2 See, e.g., Public Notice,"States That Have Certified That They Regulate Pole Attachments,"DA No. 92-
201, 7 FCC Rcd 1498 (1992).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 2

Section 1.1404 of its rules, 47 C.F.R. § 1.1404. In that case, the FCC likely would have initiated
RBAT proceedings consistent with the congressional intent underlying the program.
As the Commission is aware, Avista filed suit against WOW in Washington State Court
for Spokane County for an alleged breach of contract related to the pole attachments at issue,
Avista Corporation, d/b/a Avista Utilities v. Wired Or Wireless, Inc., a/k/a Airpipe, Case No. 25-
2-00560-32 (Wash. Supr. Ct., Spokane Cnty.). During communications among counsel in that
matter after the RBAT request was effectively denied,the parties agreed that Idaho was a so-called
"reverse preemption" state3 and that Idaho had jurisdiction over the pole attachments provided by
Avista to WOW in Idaho. Given all these factors,the Commission should simply either decide this
case or inform the FCC that the State of Idaho has no jurisdiction over this dispute.4
A. Section 224 of the 34 Act
Congress added Section 224 to the 34 Act in 1978.5 That law gave the FCC full jurisdiction
over pole attachments and related disputes, subject to "reverse preemption." It also directed the
FCC to adopt rules and procedures related to the same. Initial rules were adopted by the FCC in
1978.6 It is critical to note that both the 1978 version of Section 224 and the initial FCC rules only
covered pole attachments provided to cable television companies. Needless to say, there were no
Internet or broadband providers then.
3 Section 224(c)of the 34 Act provides that,when certain conditions are fulfilled by a state,the FCC,which
otherwise has exclusive jurisdiction over pole attachments and related disputes, the state shall have
exclusive jurisdiction over pole attachments and related disputes. This is often referred to as "reverse
preemption."See, e.g., Southern Co. v. FCC, 293 F.3d 1338, 1345 (1 lth Cir. 2002).
4 As the Commission is well aware,both parties have agreed to have the Commission mediate parts of this
dispute, and the Commission has prepared for this task. Mediation efforts must continue in an attempt to
resolve as many of these issues as possible.
5 Pole Attachments Act,Pub. L.No. 95-234, 92 Stat. 35 (1978).
6 Adoption of Rules for the Regulation of Cable Television Pole Attachments, 68 FCC 2d 1585 (1978).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 3

It was not until Congress passed the historic Telecommunications Act of 1996, 104 Pub.
L. 104, 110 Stat. 149 (1996) ("96 Act"),that FCC pole attachment authority was extended beyond
utility-cable TV company arrangements. The 96 Act, inter alia, amended Section 224(a)(4) by
adding after the word "system" the following: "or provider of telecommunications service" such
that pole attachments provided by "public utilities" to any entity other than cable TV companies
were now protected under federal law.7 The term "telecommunications" is defined in the 34 Act
to mean "the transmission, between or among points specified by the user, of information of the
user's choosing, without change in the form or content of the information as sent and received."
Section 3(50) of the 34 Act, 47 U.S.C. § 153(50).
It bears noting that prior to the enactment of the 96 Act, the FCC had already determined that a cable
television operator offering services beyond traditional video programming remained entitled to pay the
regulated cable television pole attachment rate, rather than an unregulated or higher rate. Texas Utilities
Electric Co. v. FCC, 997 F.2d 925, 927, 929(D.C. Cir. 1993).
Following the passage of the 96 Act, the FCC reaffirmed this interpretation of Section 224 of the 34 Act.
The FCC expressly held that the applicability of the regulated cable rate does not depend on the type of
service delivered over the cable facilities:
The definition of"pole attachment" does not turn on what type of service the attachment
is used to provide. Rather, a"pole attachment" is defined to include any attachment by a
"cable television system."Thus,the rates,terms and conditions for all pole attachments by
a cable television system are subject to the Pole Attachment Act.Under Section 224(b)(1),
the[FCC]has a duty to ensure that such rates,terms,and conditions are just and reasonable.
We see nothing on the face of Section 224 to support the contention that pole owners may
charge any fee they wish for Internet and traditional cable services commingled on one
transmission facility. 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 Rcd 6777,¶30 (1998) (footnotes omitted), aff'd in part, rev'd
in part, Gulf Power Co. v. FCC, 208 F.3d 1263 (1 lth Cir. 2000), rev'd, Nat'l Cable &
Telecomms.Assn v. Gulf Power Co., 534 U.S. 327 (2002).
The FCC's position was upheld in relevant part and ultimately vindicated by the Supreme Court.Although
the Eleventh Circuit initially reversed the FCC's application of its pole attachment rules to wireless
attachments, Gulf Power Co. v. FCC, supra, the Supreme Court later reversed that decision, holding that
the FCC had properly concluded that Section 224 applies to all attachments used to provide communications
services, including wireless and Internet-based services.Nat'l Cable & Telecommunications Ass'n v. Gulf
Power Co.,supra.
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 4

B. Section 61.514 Is Inapplicable Because WOW Is not a Public Utility under Idaho Law
Avista claims that Section 61-514 applies. What is now Section 61-514 was first enacted
in 1913. It addresses situations where two public utilities must share common plant or other assets
when the companies cannot agree on price, terms, and conditions for such sharing. The statute
specifically mentions the sharing of poles and conduits.However,it applies only when both parties
are "public utilities"under Idaho law. WOW is not a"public utility."
Section 61-129 defines a "public utility" as including "common carriers" and "telephone
corporations," among others.$ WOW is not a"common carrier,"as Section 61-113 makes it clear
that the term applies exclusively to railroads.9 Nor is WOW a "telephone corporation," because
that designation applies only to entities providing intrastate telecommunications services within
Idaho. Idaho Code § 61-121(1).
Section 61-121(2) defines "telecommunication service" as follows:
"Telecommunication service" means the transmission of two-way
interactive switched signs, signals, writing, images, sounds,
messages, data, or other information of any nature by wire, radio,
lightwaves, or other electromagnetic means (which includes
message telecommunication service and access service), which
originate and terminate in this state, and are offered to or for the
public, or some portion thereof, for compensation.10
A central factor in determining who qualifies as a public utility is whether the entity's
business is devoted to a public use—in other words, whether it holds itself out as serving the
general public. The Idaho Supreme Court long ago made this clear in Stoehr v. Natatorium Co.,
holding that a company becomes a public service corporation, and therefore subject to regulation
as a public utility, "only when and to the extent that the business of such corporation becomes
8 Idaho Code § 61-129.
9 Idaho Code § 61-113.
io Idaho Code § 61-121(2) (emphasis added).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 5

devoted to a public use."11 The Court reaffirmed this principle in Grever v. Idaho Telephone Co.,
explaining that a corporation becomes subject to Commission regulation "when the business of
the corporation becomes devoted to public use or when it holds itself out as ready, able and willing
to serve the public or some portion of the public."12
Yet, "holding out" to serve the public is not the only consideration. Not every business
open to the public is a public utility. A grocery store serves the public in the most literal sense—
selling to anyone who walks in—but no one would claim the local grocer is a"public utility."The
distinction lies in the type of service provided. Only those services traditionally considered"public
utility services"—such as electric power, water, gas, or circuit-switched telephone services—
qualify.
It is equally clear that not every communications service is a"telecommunications service"
subject to Commission regulation. The Idaho Public Utilities Commission has already held that
leasing dark fiber, for example, is not a "telecommunications service."13 Similarly, Voice over
Internet Protocol("VoIP")services,though functionally akin to telephony,are not circuit-switched
and therefore fall outside the Commission's regulatory jurisdiction.
The Commission has articulated the boundary of its authority with precision:
The Commission has utility jurisdiction over "telephone
corporations"; that is, over a company that provides
"telecommunications services"by transmitting [circuit] "switched"
information through PSTN [Public Switched Telephone Network]
assets.14
" Stoehr v. Natatorium Co.,200 P. 132, 133 (Idaho 1921).
12 Grever v. Idaho Telephone Co.,499 P.2d 1256, 1258 (Idaho 1972).
13 Petition of Idaho Power Co.for a Declaratory Order Determining the Jurisdiction of the Commission
over the Leasing of Fiber Optic Cable, 1994 Ida. PUC LEXIS 24, *5-6 (1994).
14 Application of Intermountain Infrastructure Group, LLC to Provide Facilities-Based Non-Basic
Telecommunications Service Throughout Idaho,2018 Ida.PUC LEXIS 115, *8 (2018).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 6

WOW's services—VoIP and broadband Internet access—do not involve circuit-switched
telecommunications or PSTN transmission. Consistent with this, the Commission's own website
specifies that it "has no jurisdiction over sewer operations, cable or satellite television, Internet
service providers, or cellular telephone companies."15
Because WOW does not provide circuit-switched intrastate telecommunications services,
it cannot be classified as a "telephone corporation" or "public utility" under Idaho law. The
Commission reaffirmed this in Intermountain Infrastructure Group, concluding that it "has no
jurisdiction to register or certify an entity, like IIG, that does not provide switched-based
telecommunications services in Idaho."16
Accordingly, Section 61-514 does not apply to WOW. Avista's claim rests on a statute
that, by its express terms and over a century of interpretation, applies only to disputes between
regulated public utilities. WOW is not one.
C. While WOW is not a Public Utility, It is a Telecommunications Company for Purposes of
Section 224
Although WOW is not a regulated telecommunications public utility under Idaho law, it is
nonetheless a telecommunications company for purposes of Section 224 of the 34 Act. WOW
provides"telecommunications services"within the meaning of the 34 Act,17 as it offers Voice over
Internet Protocol (VoIP) services that enable customers to make and receive voice calls over the
Internetactivities squarely encompassed within the definition of"telecommunications service"
in Section 3(50) of the Act.18
15 Idaho Public Utilities Commission, "About the Commission," available at
https://puc.idaho.gov/Page/Info/35 (visited Nov. 5,2025).
16Intermountain Infrastructure Group,2018 Ida. PUC LEXIS 115, *8 (2018).
17 47 U.S.C. § 224(a)(5).
18 47 U.S.C. § 153(50) (defining "telecommunications" as the transmission of information of the user's
choosing,without change in the form or content of the information as sent and received).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 7

Further, WOW holds a Certificate of Public Convenience and Necessity ("CPCN") issued
by the Idaho Public Utilities Commission,notwithstanding that its services are not circuit-switched
and therefore fall outside the traditional scope of regulated telecommunications utilities.See Wired
or Wireless, Inc. 's Application for Certificate of Public Convenience and Necessity to Provide
Basic Resold and Facilities-Based Local Exchange Telecommunications Service, 2020 Ida. PUC
LEXIS 202 (2020).19
Importantly, Idaho law imposes no requirement that a CPCN holder actually provide the
specific services authorized by its certificate.The Commission retains discretion to revoke a CPCN
for nonuse, but the mere existence of the certificate confers recognized status as a
telecommunications provider. See, e.g., Ezee Fiber Texas, LLC's Application for Certificate of
Public Convenience and Necessity to Provide Local and Long-Distance Telecommunications
Service in Idaho, 2025 Ida. PUC LEXIS 104, *7 (2025).20
At both the federal and state levels, regulators increasingly acknowledge that circuit-
switched telecommunications services—commonly referred to as time-division multiplexing
(TDM)—have become technologically obsolete and are being replaced by Internet Protocol (IP)—
based communications, including VoIP. The FCC and numerous state commissions have
recognized that legacy copper-based TDM networks are rapidly giving way to IP infrastructure
that supports modern broadband, voice, and multimedia services.
Regulating IP-based telecommunications services as if they were traditional circuit-
switched utilities is inconsistent with Idaho law, impractical as a matter of technology, and
19 Wired or Wireless, Inc.'s Application for Certificate of Public Convenience and Necessity to Provide
Basic Resold and Facilities-Based Local Exchange Telecommunications Service, 2020 Ida. PUC LEXIS
202 (2020).
20 Ezee Fiber Texas, LLC's Application for Certificate of Public Convenience and Necessity to Provide
Local and Long-Distance Telecommunications Service in Idaho,2025 Ida. PUC LEXIS 104, *7 (2025).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 8

counterproductive as a matter of policy. As Idaho's own Commission and courts have recognized,
regulatory jurisdiction must evolve with the technology it governs. Extending public utility
treatment to IP-based services—services that are inherently competitive, dynamic, and global—
would not only contravene the text and intent of Idaho's statutes, but would also stifle the very
innovation and investment those laws were designed to foster.
D. Congress Intended Telecommunications Companies Like WOW to Have Federal Rights
with Respect to Pole Attachments, and Either the PUC or the FCC Must Exercise
Jurisdiction
As discussed above, Congress intended telecommunications companies such as WOW to
possess specific statutory rights regarding access to utility poles. These rights are codified in
Section 224 of the 34 Act,and were expanded under the 96 Act to ensure nondiscriminatory access
for all telecommunications providers—not only those offering traditional circuit-switched
telephone service.21
This statutory protection is more vital today than ever. Federal and state policymakers are
united in their goal of extending broadband connectivity to all Americans, including those in rural
communities such as those served by WOW in Idaho. Congress and the FCC have repeatedly
recognized that fair and reasonable pole attachment access is essential to that effort.22 The
availability of poles, ducts, and conduits—on just and reasonable terms—is the lifeblood of
broadband competition,particularly for new market entrants seeking to bridge the digital divide in
underserved areas.
21 47 U.S.C. § 224(a)(5), (f); Implementation of Section 703(e) of the Telecommunications Act of 1996:
Amendment of the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd 6777, ¶¶
1-5 (1998).
22 See National Telecommunications and Information Administration(NTIA),Broadband Equity, Access,
and Deployment(BEAD)Program Notice of Funding Opportunity, 87 Fed. Reg. 33,454 (June 2,2022).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 9

Accordingly, either the Idaho PUC or the FCC must have jurisdiction over the present
dispute between WOW and Avista. The regulatory gap Avista proposes—whereby no agency has
jurisdiction over pole attachments for non—circuit-switched telecommunications providers—
contradicts both congressional intent and the plain structure of Section 224.
If the PUC were to determine that it lacks jurisdiction over pole attachments furnished by
investor-owned utilities to telecommunications companies until July 1,2025,it must formally cede
jurisdiction to the FCC and notify that agency pursuant to Section 224(c)of the 34 Act.23 The FCC
has made clear that "either the Commission or a certified state must have jurisdiction over pole
attachments; the statute does not contemplate a regulatory void.1124
Absent such action,telecommunications providers like WOW—who are neither traditional
circuit-switched carriers nor cable operators—would be left without any regulatory protection,
remedy, or forum for relief. That outcome would not only contravene the structure and purpose of
Section 224, but would also raise serious due-process concerns under the Fifth and Fourteenth
Amendments. Depriving WOW of a lawful means to protect its federally conferred property and
access rights,without notice or an opportunity to be heard,would amount to a denial of procedural
due process.See Goldberg v. Kelly, 397 U.S. 254,267 (1970);Mathews v. Eldridge,424 U.S. 319,
333 (1976).
Neither can such a result be squared with congressional intent. When Congress enacted the
1996 Act, no Idaho Senator or Member of the House of Representatives who supported the
23 47 U.S.C. §224(c)(allowing state assumption or cession of jurisdiction over pole attachments).The New
Jersey Board of Public Utilities retroceded its reverse preemption jurisdiction to the FCC when the Board
failed to decide a pole attachment complaint within the FCC's 180-day time limit. Petition of Fiber
Technologies Networks, LLC, for an Order Finding Unreasonable the Make-Ready Costs Imposed by
Verizon New Jersey Inc. on Fiber Technologies, LLC, Requiring Refunds, and Establishing Reasonable
Make-Ready Rates, Terms, and Conditions,2012 N.J. PUC LEXIS 235 (N.J. Bd. of Pub. Utils. 2012).
24 Implementation of Section 224 of the Act;A National Broadband Plan for Our Future,26 FCC Rcd 5240,
5245¶ 10 (2011).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 10

legislation—including its amendments to Section 224—could have contemplated that Idaho
telecommunications companies offering broadband or VoIP services would be denied pole
attachment protections simply because their networks employ modern IP-based technologies
rather than legacy circuit-switched systems.
Therefore, either the Idaho Commission or the FCC must exercise jurisdiction to safeguard
WOW's federal rights under Section 224. Anything less would undermine the federal statutory
framework designed to promote competition, accelerate broadband deployment, and ensure
equitable access to essential infrastructure.
E. The FCC's Certification of the Idaho Commission to Regulate Pole Attachments Remains
in Effect and Has not been Modified
Under Section 224 of the 34 Act,a state obtains authority to regulate pole attachments only
after the FCC determines that the state's certification satisfies the statutory criteria in Section
224(c)(2) and (c)(3).25 Once approved, the FCC formally designates that state as a "reverse-
preemption"jurisdiction and adds it to its official list of certified states. The FCC maintains and
periodically republishes this list in the Federal Register or through public notice.
Section 224(c) further provides that if a state later fails to meet the substantive or
procedural requirements for certification—whether by no longer regulating pole attachments or by
failing to maintain an adequate complaint process, the FCC may reassume jurisdiction over pole
attachments within that state.26 Such a change in status would necessarily be reflected in a public
notice or order withdrawing the state's certification.
25 47 U.S.C. § 224(c)(2)—(3).
26 Implementation of Section 224 of the Act;A National Broadband Plan for Our Future,Report and Order,
26 FCC Rcd 5240, 5244¶9 (2011) (explaining FCC authority to reassume jurisdiction if a state no longer
meets certification requirements).See also, Petition of Fiber Technologies Networks, LLC supra.
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 11

No such action has occurred with respect to Idaho. The FCC has never issued a public
notice rescinding or modifying the Idaho Public Utilities Commission's certification under Section
224(c). Accordingly, from the FCC's perspective, the Idaho Commission remains a certified
authority authorized to regulate pole attachments for both cable television and telecommunications
providers operating within the state.
That certification—and the jurisdiction it conveys—exists independently of the wording of
Idaho Code § 61-538. Even if the statutory text has evolved over time, the FCC's certification
continues to recognize the Idaho Commission as the competent state regulator under federal law.
Until the FCC affirmatively withdraws that certification, the Commission retains exclusive
jurisdiction in Idaho to regulate pole attachments under Section 224.
II. THE "OLD" TELECOM RATE
Avista's Answer makes repeated references to what it calls the "old" telecommunications
pole attachment rate.27 It claims this "old" rate was the rate charged to WOW, yet nowhere in its
pleading does Avista define the term or cite any specific FCC rule,order,or document establishing
such a rate. This omission prevents WOW from meaningfully responding to Avista's argument.
WOW respectfully urges the Commission to direct Avista to identify and provide a specific
citation to the FCC authority or document that defines this so-called "old" telecom rate and
explains its applicability.
From Avista's Answer(pages 11 and following), it appears that Avista may be referring to
the FCC's prior formula for calculating unusable space on a polea formula that historically
produced higher attachment rates for telecommunications carriers than for cable television
operators. Avista concedes (p. 13) that the FCC has twice modified the telecommunications
27 Avista Answer at 4 and passim.
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 12

formula since its inception, aligning it more closely with the cable rate such that the two are now
"roughly equivalent."
A. The Parties Ajzreed to Apply the Cable Rate to WOW's Attachments
There are several reasons why the so-called "old" telecom rate is irrelevant to both the
parties' 2009 contract(the "JUMLA") and to governing federal and state law.
The JUMLA expressly identifies WOW as a cable operator for purposes of pole
attachments. The recitals state:
WHEREAS Licensor is willing to provide space on its Poles and/or
in its Ducts (`Structures') for the use of television cable companies;
AND WHEREAS Licensee desires to use certain Structures to meet
its service requirements.28
The contract language demonstrates that the parties intended for WOW's attachments to
be treated as cable television attachments, not telecommunications attachments. This intent is
further confirmed by contemporaneous correspondence. In a September 1, 2009 email from
WOW's Bill Geibel,Jr. to Avista's Janine Seibel(attached as Response Exhibit 1),WOW advised
that it intended to provide Internet access using infrastructure previously owned by cable television
companies.With that knowledge,Ms. Seibel's September 3,2009 letter to Mr.Geibel,Jr. (attached
as Response Exhibit 2) discussed cable television attachments, and the executed JUMLA reflects
the same understanding.
Because the agreement was executed well after the enactment of the 1996
Telecommunications Act, Avista could have insisted on treating WOW as a telecommunications
carrier rather than a cable operator—but it did not. Instead, Avista knowingly entered into a
contract treating WOW as a cable operator for attachment purposes.
Section 4.3 of the JUMLA provides:
28 WOW Complaint,Ex. B at 2 of 5 (JUMLA).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 13

Applicable rates may be revised annually by Licensor using the
formulas in Exhibit A,Exhibit C and/or Exhibit E. Written notice of
the rate for the Contract Year will be available upon request by the
Licensee and delivered to Licensee thirty(30) days prior to the date
upon which the annual fee is due.
Page 2 of 5 of the JUMLA indicates that neither Exhibit C nor Exhibit E was included in
the executed agreement. Thus, Exhibit A—the only referenced exhibit included—sets forth the
applicable pole attachment rate formula. It follows that the rate to be applied under the JUMLA is
the cable rate formula specified in Exhibit A to the JUMLA.
Table 1
14. The rates for attachments will be recomputed annually using the formulas that follow:
14.1. Cable Attached to Licensor's Poles:
Pole Rate= Space Occupied by Cable x Net Investment in Poles x CarryingCharge
Total Usable Space Number of Poles
14.2. Equipment Attached to Licensor's Poles:
Equipment Rate=2 x Pole Rate
As explained below,Avista(or any party to a contract, for that matter), cannot unilaterally
change the terms of the contract at issue. However, even in the event that the rate calculation
formula could be updated by any FCC rule changes, Avista fails to use the formula correctly.
Avista ignored the FCC's November 2015 Order on Reconsideration in Implementation of Section
224 of the Act; A National Broadband Plan for Our Future, 30 FCC Rcd 13731, at¶ 3 (2015).29
There, the FCC wrote:
In this Order on Reconsideration, the Commission further
implements its policy of bringing parity to pole attachment rates at
or near the 47 C.F.R. § 1.1409(e)(1) cable rate formula level,
including rates that are calculated using the 47 C.F.R. § 1.1409(d)(2)
telecom rate formula. The 2077 Pole Attachment Order adopted cost
allocators in the telecom rate formula that were intended to closely
approximate the treatment of cost in the cable rate formula.
However, these allocators perform successfully only where poles
29 Review denied, Ameren Corp. v. FCC, 865 F.3d 1009 (8th Cir, 2017), cent. denied, 584 U.S. 961 (2018).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 14

have 5 attaching entities (0.66 percent of cost)or 3 attaching entities
(0.44 percent of cost). To build on that limited success, the
Commission now adds cost allocators for poles with 2 attaching
entities (0.31 percent of costs)and 4 attaching entities (0.56 percent
of cost). When the average number of attaching entities is a fraction,
the applicable cost allocator will be interpolated from the two closest
whole numbers. In this way, this Order on Reconsideration spares
cable operators that also provide a telecommunications service(e.g.,
broadband Internet access service) from having to pay attachment
rates that would be approximately 70 percent higher than the rate
they pay under the existing rules. Pole attachment rate parity at the
cable rate level also harmonizes regulatory treatment between
Commission-regulated states and states that set their own pole
attachment rates, which prevents any deterrence to investment in
Commission-regulated states. By keeping pole attachment rates
unified and low, the Commission furthers its overarching goal to
accelerate deployment of broadband by removing barriers to
infrastructure investment. (emphasis added).
Note the clear decision to "harmonize[] regulatory treatment between [FCC]-regulated states and
states that set their own pole attachment rates."Id. Since WOW is the second attaching party(Ziply
Fiber being the first), any formula used must contain the 0.31 discount factor. Nowhere in the
Order on Reconsideration or Subpart J of Part 1 of the FCC's rules does it even hint that this factor
should not be used in Idaho.
B. Under both Washington and Idaho Law, a Party to a Contract Cannot Unilaterally Change
Its Terms
As discussed above, the JUMLA treats WOW as a cable television operator for pole
attachment purposes.While the agreement allows Avista to revise rates upon notice, such revisions
must adhere to the agreed-upon cable rate methodology. A unilateral decision by Avista to impose
telecommunications rates instead would constitute a material modification of the agreement and
would be invalid absent mutual assent.
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 15

The JUMLA specifies that it is governed by Washington law.30 Under well-established
Washington precedent, a contract may be modified only through a mutual meeting of the minds
and supported by consideration. In Wagner v. Wagner, the Washington Supreme Court held that
"[m]utual modification of a contract by subsequent agreement arises out of the intentions of the
parties and requires a meeting of the minds."31 The court reaffirmed this principle in Hanson v.
Puget Sound Navigation Co. and Rosellini v. Banchero, explaining that"without a mutual change
of obligations or rights, a subsequent agreement lacks consideration and cannot serve as
modification of an existing contract.1132 Similarly, in Ebling v. Gove's Cove, the Court of Appeals
held there was "no mutual agreement" and therefore no modification when one party unilaterally
changed a commission rate.33 Idaho law is consistent. Even when one party acts under a mistake,
modification without mutual assent is invalid. Cline v. Hoyle&Assocs. Ins., 697 P.2d 1176, 1178
(Idaho 1985).34
C. While the PUC Has Jurisdiction over this Dispute, It Should Follow FCC Policies
Although Avista appears to concede that the Idaho Public Utilities Commission has
jurisdiction to adjudicate this complaint, it suggests that the Commission is free to decide the
matter however it chooses, even if doing so would favor utility customers over attaching entities.
That interpretation is incorrect and inconsistent with Idaho law.
Idaho courts interpret state statutes patterned after federal law in harmony with their federal
counterparts. In Girard v. Defenbach, the Idaho Supreme Court explained:
The general rule with relation to the construction of a statute adopted
from another jurisdiction, including a federal statute adopted by a
30 JUMLA § 3.1.c.
31 Wagner v. Wagner, 95 Wn.2d 94, 103, 621 P.2d 1279 (1980).
32 Hanson v. Puget Sound Nay. Co., 52 Wn.2d 124, 127, 323 P.2d 655 (1958); Rosellini v. Banchero, 83
Wn.2d 268, 517 P.2d 955 (1974).
33 Ebling v. Gove's Cove, 663 P.2d 132, 135 (Wash. Ct. App. Div. 1 1983).
34 Cline v. Hoyle&Assocs. Ins., 697 P.2d 1176, 1178 (Idaho 1985).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 16

state, is that it will be presumed to have been adopted with the
construction placed upon it by the courts of that state or country
before its adoption.35
The Court reaffirmed this principle in Collection Bureau, Inc. v. Dorsey,holding that when
Idaho adopts language from another jurisdiction, "we presume that our legislature intended to
adopt reasonable constructions of the statute that were established by [that jurisdiction's] courts
prior to its adoption in Idaho."36
When Idaho enacted Section 61-538 to govern pole attachments, it did so in response to
Congress's 1978 enactment of Section 224. Consistent with Girard, Section 61-538 should
therefore be construed consistently with the FCC's interpretation of Section 224.
Section 224(c)(2)(B) (1978)provided:
Each State which regulates the rates, terms, and conditions for pole
attachments shall certify to the Commission that—in so regulating
such rates, terms, and conditions, the State has the authority to
consider and does consider the interests of the subscribers of cable
television services, as well as the interests of the consumers of the
utility services.
This same principle endures in the current statute, which requires that state regulators "consider
the interests of the subscribers of the services offered via such attachments, as well as the interests
of the consumers of the utility services.1137
Avista's assertion (Answer at 11) that the Commission should favor electric ratepayers
over cable or telecommunications attachers is contrary to Section 224 and Idaho's established rules
of statutory construction. Were the Commission to adopt Avista's position and systematically"put
its thumb on the scale"in favor of electric customers, it would risk failing to meet the certification
35 Girard v. Defenbach, 61 Idaho 702, 710, 106 P.2d 1010, 1013 (1940).
36 Collection Bureau, Inc. v. Dorsey,249 P.3d 1150, 1154(2011).
37 47 U.S.C. § 224(c)(2)(B).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 17

standards of Section 224(c)(2) and thereby forfeiting jurisdiction over pole attachments—an
outcome clearly unintended by the Idaho Legislature.
Idaho precedent further underscores that contracts or conduct violating statutory mandates
are void as a matter of public policy. In Taylor v. Taylor,the Idaho Supreme Court reaffirmed that
"[a] contract which is made for the purpose of furthering any matter or thing prohibited by statute
is void," and that violations of such statutory prohibitions are illegal "without regard to the
ignorance of the parties."38 Thus, any interpretation of the JUMLA that places Avista's utility
customers' interests categorically above those of WOW's customers would be inconsistent with
both Section 224 and Idaho public policy.
Finally, FCC Rule Section 1.1405(b)(3)provides that, for a state to retain jurisdiction over
pole attachments, it must have "issued and made effective rules and regulations implementing the
state's regulatory authority over pole attachments (including a specific methodology for such
regulation which has been made publicly available in the state).1139 Idaho has not adopted such
detailed rules, yet the FCC continues to recognize Idaho as a certified state regulator. It must
therefore be presumed that the Commission applies FCC rules and precedent when adjudicating
pole attachment disputes. Consequently, Avista's claim (Answer at 7) that "47 C.F.R. § 1.1416
(relating to overlashing) does not apply in Idaho" is incorrect. The Commission's jurisdiction
derives from, and must be exercised consistently with, the federal regulatory framework that
underlies it.
38 Taylor v. Taylor,422 P.3d 1116, 1122 (Idaho 2018).
39 47 C.F.R. § 1.1405(b)(3).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 18

III. OTHER ISSUES
A. Overlashing
Avista asserts(Answer¶¶6, 17)that,notwithstanding the clear direction of Section 1.1416
of the FCC's rules, 47 C.F.R. § 1.1416, WOW has no right to overlash without Avista's prior
approval and payment of additional fees under the JUMLA. That contention is incorrect as a matter
of federal law and policy.
The FCC adopted Section 1.1416 in 2018 to establish clear national standards governing
overlashing—the practice of attaching additional fiber or cables to existing facilitiesto accelerate
broadband deployment and reduce unnecessary costs and delays.40 Nothing in the FCC's rule or
order suggests that Idaho was excluded from its application. To the contrary, the FCC stated that
while it was not altering the existing "reverse preemption" framework under Section 224(c), it
expected that some states"will seek to build on the rules that we adopt herein in order to serve the
particular needs of their communities.1141
The FCC also expressly prohibited utilities from charging fees for reviewing proposed
overlashing requests,explaining that"utilities may not charge a fee to the parry seeking to overlash
for the utility's review of the proposed overlash, as such fees will increase the costs of
deployment.1142 The FCC further codified its "longstanding policy that utilities may not require an
attacher to obtain its approval for overlashing.1143
40 Accelerating Wireline and Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment,Report and Order,33 FCC Rcd 7705(2018),codified at 47 C.F.R. § 1.1416("Overlashing Rule
Order").
41 Id. ¶ 10, 83 Fed. Reg.46,812 (2018).
42 Id. ¶95.
43 Id. ¶94.
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 19

In other words, federal law precludes the very requirements Avista seeks to impose. Its
demand for prior approval and new fees not only conflicts with FCC regulations, but directly
undermines the federal policy goal of removing barriers to broadband infrastructure investment.
The FCC's adoption of these rules did not arise in a vacuum. They were the product of
recommendations from the Broadband Deployment Advisory Committee (BDAC), a federal
advisory committee composed of stakeholders across the telecommunications ecosystem—
industry, local government, consumer groups, and utilities.aa The BDAC's analysis demonstrated
the real-world benefits of streamlined deployment, estimating that the "One-Touch Make-Ready"
and related pole access reforms "could result in approximately 8.3 million incremental premises
passed with fiber and about$12.6 billion in incremental fiber capital expenditures."as
Because the Idaho PUC has not adopted separate rules addressing overlashing, it should
apply the FCC's standards to ensure consistency with federal policy and Idaho's broadband
expansion objectives. To hold otherwise—by allowing Avista to charge additional fees or demand
preapproval for overlashing—would reintroduce the very costs and delays the FCC's reforms were
designed to eliminate, thereby impeding broadband deployment in Idaho's rural and underserved
communities.
B. Status of WOW's Payments
WOW would be amiss if it did not briefly address Avista's allegations about WOW's
nonpayment of attachment fees. Answer at 2, 14, 19-20. Given Avista's unilateral action in
attempting to modify the JUMLA without negotiation and its failure to use the 0.31 factor to
account for multiple attaching parties on Avista's poles, there was no meeting on the minds as to
as public Notice,"Broadband Deployment Advisory Committee Members and Meeting,"32 FCC Rcd 2093
(2017).
as Id. (BDAC estimates cited in the FCC's 2018 rulemaking record).
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 20

how much was owed by WOW to Avista. Moreover, the JUMLA does not address what duties, if
any, WOW has with respect to payments of disputed billing. Accordingly, WOW did not violate
the JUMLA by withholding payments for pole attachments.
IV. CONCLUSION
For the reasons explained above, the Commission must either take jurisdiction of this
matter or notify the FCC that Idaho does not have jurisdiction in this matter.46 If the former route
is taken, the Commission should decide this complaint promptly and grant the relief requested by
WOW in its Formal Complaint, as well as grant any and all other appropriate relief.
Respectfully submitted.
Wired or Wireless, Inc.
Robert H. Jackson, D.C. Bar No. 388397 (pro hac vice)
Marashlian& Donahue, PLLC
1430 Spring Hill Rd., Suite 310
Tysons, VA 22102
Phone: [phone]
Email: rhi(&,commlawgroup.com
Gregory M.Adams,ISB No. 7454 (local counsel)
Richardson Adams, PLLC
515 N. 27th Street
Boise,Idaho
83702
Phone: [phone]
Email: g_reg&richardsonadams.com
Dated: November 25, 2025
46 In any event, WOW urges the Commission to continue its mediation effort agreed to by the parties.
Prompt and fair settlement of this dispute can save the PUC,Avista and WOW considerable expenses and
permit WOW deliver high-speed Internet access to rural Idaho residents.
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 21

CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of November 2025,I delivered true and correct copies
of the foregoing Response of Wired or Wireless, Inc. to the Answer of Avista Corp. 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]
Eric B. Langley, ASB- 8139- E66E
LANGLEY& BROMBERG LLC
2700 U.S. Highway 280, Suite 350E
Birmingham,Alabama 35223
[e-mail]
Robert H. Jackson, D.C. Bar No. 388397 (pro hac vice)
Marashlian& Donahue, PLLC
1430 Spring Hill Rd., Suite 310
Tysons, VA 22102
Phone: [phone]
Email: rhigcommlawgroup.com
Response of Wired or Wireless,Inc.to the Answer of Avista Corp. 22