20260224Avista Cross Petition.pdf

RECEIVED
February 24, 2026
IDAHO PUBLIC
UTILITIES COMMISSION
David J. Meyer I ISB No. 8317
Vice President& Chief Counsel for Regulatory&
Governmental Affairs
AVISTA CORPORATION
1411 E. Mission Ave.
Spokane,WA 99202
[phone]
[e-mail]
Eric B. Langley I ASB-8139-E66E pro hac vice
LANGLEY & BROMBERG LLC
2700 U.S. Highway 280, Suite 350E
Birmingham, Alabama 35223
[phone]
[e-mail]
Attorneys for Avista Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
WIRED OR WIRELESS, INC. )
Complainant, )
Case No.AVU-E-25-11
V. ) CROSS-PETITION
AVISTA CORPORATION, )
d/b/a Avista Utilities, )
Respondent. )
AVISTA CORPORATION'S CROSS-PETITION FOR
CLARIFICATION AND RECONSIDERATION
Avista Corporation d/b/a Avista Utilities ("Avista"), pursuant to Rules of Procedure ("RP")
33, 325, and 331, et. seq., and Idaho Code § 61-626,hereby respectfully petitions the Idaho Public
Utilities Commission ("Commission") to reject the February 17, 2026 petition for clarification
filed by Wired or Wireless, Inc. ("WOW") and instead clarify that its dismissal of WOW's

complaint is based upon the Commission's lack of jurisdiction over the contract dispute between
the parties. Avista also requests that the Commission reconsider its determination that it lacked
jurisdiction under Idaho Code § 61-514 over the rates, terms, and conditions for pole attachments
between the parties for the 2023-24 time period.
I. INTRODUCTION
The February 17, 2026 petition for clarification is WOW's latest attempt to delay
adjudication of Avista's state court complaint against WOW for unpaid pole attachment rental.
There is no legitimate dispute that, since July 1, 2025, the Commission has jurisdiction to
"establish and regulate the rates, terms, and conditions" for WOW's pole attachments whenever
the parties "are unable to agree" on those rates terms and conditions among themselves.' The
current dispute between the parties,though,relates primarily to the pole attachment rate that Avista
invoiced, and that WOW should have paid, during the 2023 and 2024 billing periods.
The unique posture of this case is born out of WOW's failure to seek an administrative
declaration—either in the Commission or in the Federal Communications Commission("FCC")
that the pole attachment rates Avista charged for those periods were unjust and unreasonable at the
time those rates were invoiced by Avista. Instead, WOW waited until Avista filed a lawsuit to
collect WOW's unpaid annual rental fees and only then used the FCC's Rapid Broadband
Assessment Team ("RBAT") process and later the Commission's complaint process to delay
adjudication of the state court complaint for as long as possible. The Commission can put an end
to this tactic now by clarifying that its January 27, 2026 Final Order simply recognized that the
Commission did not have jurisdiction to adjudicate what is fundamentally a contractual dispute
' Idaho Code § 61-538;see also WOW Complaint,¶¶4-5,Avista Answer,IT 4-5.
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between Avista and WOW—in other words, that there was never a failure to agree under either
Idaho Code § 61-538 or § 61-514.
II. THE COMMISSION INDISPUTABLY HAS JURISDICTION TO REGULATE
THE RATES TERMS AND CONDITIONS FOR POLE ATTACHMENTS.
When WOW initially filed its complaint, it apparently believed that the Commission had
jurisdiction to determine, through the complaint process, whether the rates charged for pole
attachments for the 2023-24 period were just and reasonable. However, now that the Commission
has dismissed its complaint and WOW is faced with the possibility of answering in state court for
its failure to pay anything in annual rental fees, WOW asks the Commission to "clarify" that the
Commission does not have (as in, does not currently have)jurisdiction over the rates, terms, and
conditions for pole attachments between the parties. This request is a transparent attempt to
prolong WOW's use of the regulatory process to delay the state court suit against it by pursuing
another regulatory complaint in the FCC.
Aside from the fact that WOW has already admitted in this proceeding that the Commission
has jurisdiction to regulate pole attachment rates, the Commission's jurisdiction is apparent from
the text of Idaho Code § 61-538:
Whenever a public utility and a provider of a telecommunications service or
broadband or a cable services company are unable to agree on the rates terms, or
conditions for pole attachments or the terms, conditions, or costs of production of
space needed for pole attachments, the commission shall establish and regulate the
rates,terms,and conditions and cost of providing space needed for pole attachments
. . . In determining and fixing the rates,terms, and conditions,the commission shall
consider the interest of the customer of the attaching provider of the
telecommunications service, broadband or cable services company, the public
utility on which the attachment is made, and the customers of the public utility.
In its Petition for Clarification,WOW implies that the Commission does not have jurisdiction over
pole attachment rates because the Commission has not adopted a specific rate formula similar to
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the formula adopted by the FCC.2 However, the Commission has chosen to regulate the rates and
terms applicable to pole attachments through a complaint procedure. This manner of regulating
pole attachments is neither prohibited nor unusual. In fact, several states that regulate pole
attachments do so primarily or exclusively through a complaint process.3 WOW cites no authority
to support its claim that the Commission lacks jurisdiction over pole attachments simply because
it has chosen to regulate through a complaint procedure rather than adopting a specific formula.
Accordingly, the Commission should reject WOW's suggestion that the Commission should
"clarify"that it lacks jurisdiction over pole attachment rates and instead clarify that its decision to
dismiss WOW's complaint was based on its determination that the parties' dispute was
fundamentally a contractual dispute properly adjudicated by the state court.4
III. THE COMMISSION SHOULD RECONSIDER ITS DETERMINATION THAT
IT LACKS JURISDICTION OVER THIS DISPUTE UNDER IDAHO CODE §
61-514.
Prior to July 1, 2025, the Commission's jurisdiction over pole attachments pursuant to
Idaho Code § 61-538 extended only to cable providers. In other words, had WOW filed its
complaint prior to July 1, 2025, the Commission would not have had jurisdiction under 61-538
because WOW is a telecommunications provider rather than a cable provider. For this reason,
Avista argued in its answer that the standard applicable to the present dispute was the standard
set forth in Idaho Code § 61-514, rather than 61-538.
2 WOW Petition,¶¶ 1-2.
3 See e.g. Fla. Admin. Code § 25-18.010; Mich. Comp. Laws § 460.6g(2); 220 Mass Code Regs.
§ 45.00, et. seq.
4 See January 27, 2026 Order, p. 12 ("The Commission finds that Idaho Code § 61-514 is not
applicable to the issues raised in the Complaint. The statute is intended to address circumstances
involving access to facilities where no agreement exists, not to settle disputes arising from the
interpretation of existing contracts, including billing disputes or alleged breaches of contract. The
record reflects that the parties have an existing agreement governing joint use of facilities.").
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In its January 27, 2026 Order,the Commission determined that it lacked jurisdiction under
Idaho Code § 61-514,which provides:
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 . . . poles . . . belonging to
another public utility, and that such use will not result in irreparable injury to the
owner or other users of such . . . poles . . . 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.
The Commission determined that WOW is not a"utility" subject to § 61-514 because"it provides
VoIP and broadband internet access services and does not provide circuit-switched
telecommunications transmission."5 However, WOW does provide (or at least "offers," which is
the sine qua non of"provision") circuit-switched telecommunications. WOW's tariff expressly
describes its access lines as "[a]n arrangement which connects the customer's location to a Wired
or Wireless, Inc. Company switching center or point of presence."6 WOW's tariff also specifically
asserts that it provides "operator-assisted service," which includes "[s]ervices . . . provided to
Customers and Users of exchange access lines which are presubscribed to the Company's
interexchange outbound calling services."7 Accordingly, because WOW represents that switched
telecommunications transmission is one of the services it provides to its customers,WOW qualifies
as a utility under the Commission's reading of§ 61-514 such that the Commission would have had
jurisdiction in 2023-2024 even if§ 61-538 had not been amended to grant it jurisdiction over the
pole attachment rates charged to telecommunications providers.
5 January 27, 2026 Order,p. 12.
6 Wired or Wireless, Inc., Telecommunications Services Tariff No. 1, Original Sheet No. 4 (Idaho
Pub. Utils. Comm'n, effective Nov. 5, 2020) ("WOW Tariff').
7 WOW Tariff, Original Sheet No. 18, § 3.2.5.
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Avista therefore requests that the Commission exercise its jurisdiction over this dispute
either because it previously had jurisdiction under§ 61-514 or because it currently has it under 61-
538—and rule that Avista's use of the "old telecom rate" to calculate the annual rental fee WOW
owes to Avista is reasonable.'As demonstrated in Avista's Answer in this matter, the old telecom
rate formula results in a more equitable allocation of costs between electric utilities and
telecommunications providers because the formula does not include the FCC's arbitrary cost
discount factors and therefore avoids providing telecommunications attachers with a subsidized
ride on poles at the expense of electric customers.9 In the alternative, Avista requests that the
Commission simply clarify that its determination not to exercise jurisdiction under§ 61-514—like
its decision to decline jurisdiction under § 61-538—is based solely on its determination that the
parties'dispute is fundamentally an issue of contractual interpretation properly adjudicated in state
court.
IV. CONCLUSION
Avista respectfully requests that the Commission clarify that its dismissal of WOW's
complaint was based on its determination that the Commission is not permitted to adjudicate a
contract dispute between the parties (and not based on its determination that it lacks jurisdiction to
regulate the rates, terms and conditions applicable to pole attachments) because § 61-538 clearly
provides the Commission with such jurisdiction as of July 1, 2025.
8 The"old telecom rate formula,"which was used by the FCC to calculate telecom pole attachment
rental rates from 1996-2011, calculates pole cost exactly the same as the FCC's cable rate formula.
The only difference between the two formulas is the manner in which the cost associated with the
pole is allocated. The old telecom rate formula allocates the unusable space on a pole (i.e., the
portion below ground and the portion required to obtain minimum ground clearance)more equally
among all attaching entities on the premise that all attachers benefit equally from this space.
9 See Avista Answer, p. 11 at¶ 16.
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Likewise,the Commission should reconsider its determination that WOW does not qualify
as a"utility"under the terms of the statute because WOW has represented to the Commission that
it provides switched telecommunications service. Because provision of these services qualifies
WOW as a "utility" based on the Commission's definition of that term, the Commission should
exercise its jurisdiction under§ 61-514 to hold that the pole attachment rates charged by Avista for
2023-24 are reasonable. In the alternative, the Commission should clarify that its decision not to
exercise jurisdiction under § 61-514 is due to its determination that the Commission cannot
adjudicate a contract dispute between Avista and WOW based on the interpretation of terms that
have already been agreed upon by the parties.
Dated: February 24, 2026 lsl Eric B. Langley
Eric B. Langley I ASB-8139-E66E (pro hac vice)
LANGLEY & BROMBERG LLC
2700 U.S. Highway 280, Suite 350E
Birmingham, Alabama 35223
[phone]
[e-mail]
David J. Meyer I ISB No. 8317
Vice President& Chief Counsel for Regulatory&
Governmental Affairs
AVISTA CORPORATION
1411 E. Mission Ave.
Spokane,WA 99202
[phone]
[e-mail]
Attorneys for Avista Corporation
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 241h day of February 2026, the foregoing Cross-Petition
for Clarification and Reconsideration was served 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
secretgUkpuc.idaho.gov
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Gregory M.Adams, ISB No. 7454
RICHARDSON ADAMS, PLLC
515 N. 271h Street
Boise, Idaho 83702
[phone]
greg&richardsonadams.com
Robert H. Jackson, D.C. Bar No. 388397
MARASHLIAN &DONAHUE, PLLC
1430 Spring Hill Rd, Suite 310
Tysons,VA 22102
[phone]
rhi na&commlawgroup.com
lsl Eric B. Langley
Eric B. Langley ASB-8139-E66E (pro hac vice)
LANGLEY & BROMBERG LLC
2700 U.S. Highway 280, Suite 350E
Birmingham, Alabama 35223
[phone]
[e-mail]
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