20260303Answer to Avista Petition.pdf

RECEIVED
March 03, 2026
Robert H. Jackson, D.C. Bar No. 388397 (pro hac vice) IDAHO PUBLIC
Marashlian& Donahue, PLLC UTILITIES COMMISSION
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. )
ANSWER OF WIRED OR WIRELESS, INC. TO AVISTA UTLITY'S
FEBRUARY 24, 2026 PETTION
Wired or Wireless, Inc. ("WOW"), by and through counsel, and pursuant to IDAPA
31.01.01.331.05, respectfully files this answer to the February 24, 2026 Petition of Avista Utility
("Avista"). WOW address both the procedural flaws in the Petition and,in the event that the Idaho
Public Utilities Commission ("Commission" or "PUC") were to ignore those deficiencies and
consider the Petition, the merits thereof.
I. Introduction
On January 27, 2026, the Commission issued a final Order("Order No. 36917"or"Order")
in the above-captioned proceeding. Among others,the Order dismissed WOW's formal complaint

for lack of jurisdiction based on the language of Idaho Code § 61-538 prior to July 1, 2025. Idaho
Code § 61-626(1) authorizes a party before the PUC to seek reconsideration of a final order within
21 days of such order. IDAPA 31.01.01.323.0La("Rule 323") states that the 21-day period begins
with service of the final order. In this case, Order No. 36917 was served electronically on the
Parties on January 27, 2026. Ergo, any petition for reconsideration must have been filed no later
than February 17, 2026. As explained below,where WOW filed no petition for reconsideration in
the first instance, Avista's "cross petition" for reconsideration is an untimely and procedurally
deficient attempt to collaterally attack the final order.
Separately, IDAPA 31.01.01.325 ("Rule 325") permits a party to file a petition for
clarification of any order of the Commission—here Order No. 36917. Here,WOW timely filed a
petition for clarification within 21 days of the final order, but Avista did not. Instead,Avista now
seeks to tardily file its own petition for clarification seven days later by labeling it a"cross petition
for clarification" even though no Commission rule allows for a "cross-petition for clarification."
In sum,the Commission's rules strongly suggest that petitions for clarification should not be used
for delay, and as explained below the Commission should reject Avista's Petition no matter how it
is labeled.
II. Avista's Petition Fails to Correspond with the Commission's Procedural Rules and,
Should be Dismissed
A. No Cross-Petition for Reconsideration Can be Filed unless There is a Petition for
Reconsideration
Avista styles its petition as a "cross-petition for reconsideration." In this case, this is a
misuse and distortion of Rule 323. The key language of this rule reads, "Within seven (7) days
after any person has petitioned for reconsideration, any other person may cross-petition for
reconsideration in response to issues raised in the petition for reconsideration." The Idaho
Supreme Court upheld the PUC's dismissal of a cross-petition for reconsideration that not only
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opposed issues raised in the other party's petition, but also sought reconsideration of other issues
decided by the PUC but not challenged by the other party. The Court wrote, "Because a cross-
petition for reconsideration will be granted only as to those issues that respond to an issue raised
in a petition for reconsideration,the scope of a cross-petition for reconsideration is limited to those
issues raised in a petition for reconsideration." Eagle Water Co. a Idaho PUC, 940 P.2d 1133,
1135 (Idaho 1997).
The rule permitting cross-petitions for reconsideration is inapplicable here because there is
no petition for reconsideration pending here. WOW's February 17, 2026 petition does not
challenge or seek reconsideration of any part of Order 36917. It simply seeks clarification.
Importantly, the rule governing petitions for clarification rule, Rule 325, expressly states:
"Petitions for clarification of final orders do not suspend or toll the time to petition for
reconsideration or appeal a final order." IDAPA 31.01.01.325. Ergo, there is no room under
Section 61-626 or PUC rules for Avista's cross-petition for reconsideration. Avista's filing,which
is simply a petition for reconsideration, is untimely and inconsistent with both the Idaho Code and
the Commission's rule. At a minimum, that portion of the filing must be dismissed.
B. The Rules do not Provide for a Cross-Petition for Clarification
Avista's attempt to characterize part of its petition as a "cross-petition for clarification"
fares no better. While the rule governing petitions for clarification does not contain an express
filing deadline, the context of rule governing petitions for clarification within the Commission's
rules leads to the conclusion that a petition for clarification should be filed within the same time
as a petition for reconsideration—within 21 days of the final order. See IDAPA 31.01.01.325 ("A
petition for clarification may be combined with a petition for reconsideration or alternatively stated
as a petition for clarification and/or reconsideration."). As a practical matter, if no petition for
reconsideration or clarification is filed within 21 days of a final order, the case would be closed,
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and the rules would then require a petition to rescind,alter,or amend the final order,which requires
an additional showing of changed circumstances since the order's issuance. See IDAPA
31.01.01.326. Avista's request for clarification was filed well after the 21-day deadline that the
Commission should apply here, and it is therefore an untimely and improper attempt by Avista to
seek clarification of the final order.
Further, there is nothing in the Commission's rules that provides for Avista's proposed
"cross-petition for clarification." Rule 325 only addresses petitions for clarification, but allows
any person to seek clarification. Unlike the rule governing reconsideration, the rules provide no
right to cross-petition for clarification—whether within the scope of the issues raised in a petition
for clarification or otherwise. Put simply, if Avista wished to seek its own different clarification
of the order,Avista's own petition for clarification should have been filed within 21 days of the
order. Avista's failure to do so delays WOW's opportunity to respond on the merits of Avista's
proposed clarification and delays the Commission's resolution of the matter. WOW acknowledges
that the Commission the Commission did address a cross-petition for clarification filed by Idaho
Power in Grand View PV Solar Two a Idaho Pow. Co., 2013 Ida. PUC LEXIS 144, at *2 (Idaho
PUC 2013). There, Grand View filed a petition for clarification, which was followed by Idaho
Power's cross-petition for clarification. Id. However, it does not appear that Grand View objected
to the pleading as inconsistent with Commission rules. Here, WOW does object, most especially
as Avista's pleading is most likely being filed for delay and to avoid Federal Communications
Commission ("FCC") jurisdiction.' Unlike in Grand New PV Solar, the procedural issue is
' Avista makes much of WOW's filing its complaint with the Commission as believing it had
jurisdiction over pole attachment rates under the prior language of Section 61-538 and now
agreeing that the Order No. 36917 has it right. Avista Petition at 3-4. The statement is true but it
must be placed into context. First, Congress decided that pole attachment contracts are different
from other business contracts such that either the FCC or, when specific conditions have been
adopted by a state, its utility commission, has jurisdiction over them under Section 224 of the
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squarely before the Commission here, and the Commission should hold that its rules do not allow
a party to cross-petition for clarification under the circumstances here.
Thus,Avista's cross-petition for clarification is untimely and procedurally improper under
the Commission's rules, and it should be rejected for that reason.
C. Avista's Petition for Clarification Was Filed for Delay and to Avoid Resolution of
the Dispute by the Federal Communications Commission
As explained in its February 17, 2026 Petition, WOW, in reliance on Order 36917, is
seeking to bring its complaints about Avista's policies and actions to the Enforcement Bureau of
the FCC, pursuant to Section 224 of the 34 Act, first utilizing the FCC's Rapid Broadband
Assessment Team ("RBAT") Review and Assessment process. Needless to say, WOW seeks
speedy relief, not only for its business success, but also for expanding broadband access to parts
of Rural Idaho — something that is in both the national and state interest. Avista has no business
interest in expanding broadband access but only in maximizing attachment revenues. However,
the PUC, state legislature, governor and the general public do.
It is crystal clear that Avista does not want to defend its actions, rates and policies, most
especially its policy of requiring permission and imposing fees for WOW's overlashing its own
cable to another one of WOW's own cables, before the FCC. Last year, Avista refused to
participate in a voluntary RBAT mediation. Avista also refused to join with WOW in seeking
Communications Act of 1934, as amended ("34 Act"), 47 U.S.C. § 224. Ergo, the Washington
state courts are not the proper forum to handle this dispute.
Next,WOW first attempted to bring the dispute to the FCC in early 2025. However,given Avista's
refusal to mediate there and the FCC staff's deference to its earlier certification of the PUC's
jurisdiction over pole attachment cases, it was impossible for WOW to continue its efforts in the
Nation's Capital. The only place to turn was the PUC. To do that, WOW was required to argue
the PUC had jurisdiction, as Congress did not intend its regulatory scheme for pole attachments to
apply in 49 states but not in Idaho. Under these facts and circumstances, WOW's support of the
PUC's decision on Section 61-538 is reasonable and consistent with the Section 224 regulatory
framework.
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clarification of Order 36917 so as to make it clear that order concluded FCC jurisdiction governed
WOW's complaint, something that would have started the RBAT process and brought Avista's rate
and practices to light before the FCC.
Since Idaho Code § 61-538 did not give the PUC jurisdiction over pole attachments
provided to telecom companies until July 1, 2025, the FCC has jurisdiction over such matters
including WOW's claims against Avista that were dismissed by the PUC on jurisdictional grounds.
Therefore, the rates charged by Avista must comply with the FCC's rate formulas. 47 C.F.R.
§1.1406(d). The FCC has the power to reduce a contract rate to "to the maximum rate allowed
under the statute [47 U.S.C. § 224(d)]." FCC a Florida Pow. Corp., 480 U.S. 425, 254 (1987).2
Such regulation does not constitute confiscation of the utility's property. Id. Avista's rates exceed
those permissible under the appliable FCC rule in 2023-24.
Likewise,the FCC has jurisdiction over Avista's overlashing policies for the period at issue.
47 C.F.R. § 1.1416(a)(1) prohibits a utility from requiring prior approval when an "existing
attacher [] overlashes its existing wires on a pole." Section 1.1416(c) states that a"utility may not
charge a fee to the party seeking to overlash for the utility's review of the proposed overlash."
Avista's practices and conduct violate Section 1.1416.
In addition to overriding the 2009 contract between the Parties and awarding WOW
damages for these violations, the FCC has the authority to impose forfeitures pursuant to Section
503 of the 34 Act, 47 U.S.C. § 503. Also applicable is Section 1.80(b)(11) of the FCC's rules,
Table 2 to Paragraph (b)(11) Violations Unique to the Service, 47 C.F.R. § 1.80(b)(11), sets a
base forfeiture of$7500 for each violation. Courts have recognized the FCC's authority in this
2 See also, Public Serv. Co. a FCC, 328 F.3d 675, 678 (10"' Cir. 2003) (rejecting the argument
that the FCC did not have jurisdiction to supersede state contract law by "directing the utility to
recalculate the number of unauthorized attachments and credit TCI for payments supposedly made
for unattached poles, intruded on the state court's jurisdiction over contract law.").
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area of the law. Cavalier Tel., LLC a Va. Elec. & Power Co., 303 F.3d 316, 321 (41h Cir. 2002).
Charging an excessive rate for every attachment or billing for nonexistent attachments constitutes
multiple violations that could well result in the base forfeiture amount being applied separately for
each attachment overbilled and for each non-existing attachment billed.
In addition, a favorable FCC ruling for WOW and/or a Notice of Apparent Liability
("NAL") against Avista would likely cause other telecommunications companies attaching to
Avista's poles to examine their situations and start similar actions against Avista. Moreover,
extending litigation increases the costs for a small company like WOW, such that it could
jeopardize its ability to continue operating. Delay through filing additional pleadings with the
Commission benefits Avista. The Commission should not tolerate it.
III. Dismissal on the Merits is also Warranted
While it is clear that Avista's Petition is procedurally deficient and should be dismissed,
WOW responds to their merits.
A. The FCC's "Old Telecom Pole Attachment Rate Formula
Avista argues that the FCC's "Old Telecom Pole Attachment Rate Formula" best balances
the interests of utility and telecom customers. Avista Petition at 6. This is wrong. In 2011, after
considering a detailed record, including the filings of the electric power industry, the FCC
determined that its new telecom formula "strikes the right balance between promoting broadband
and providing continued incentives for investment by pole owners consistent with section 224 of
the Act." Implementation of Section 224 of the Act, 26 FCC Red 5240, at ¶ 126 (2011) ("2011
Order"), aff'd American Electric Power Service Corp. a FCC, 708 F.3d 183 (D.C. Cir.); cent.
denied 571 U.S. 940 (2013).3 It further wrote "The utilities are incorrect in their assertions that
3 The FCC's consideration of both law and facts was considerable. 2011 Order at¶¶126-98. While
the Commission could theoretically conduct its own analysis of the issue, there is no reason to
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the section 224(e)(2) allocator apportions too little of the cost of unusable space to third-party
attachers and creates a subsidized rate." Id. at¶ 192.
Additionally, the FCC determined:
In conclusion, we find that the lower-bound telecom rate and the
make-ready fees together do not subsidize third-party pole attachers
because these rates recover more than the costs caused by attachers.
Specifically, these rates recover all the capital costs caused by
attachers, and an amount of maintenance and administrative costs
that exceeds the amount caused by attachers. Moreover, the pole
owner benefits from the extra capacity it obtains for free in the
make-ready process, in addition to recovering an amount greater
than the costs caused by the attachers. Id. at¶ 195.
This detailed analysis and conclusions, which were affirmed on judicial review, should simply be
used in Idaho.
B. The Commission's Decision on Jurisdiction with Respect to Section 61-538 is
Correct
The Commission concluded that it had no jurisdiction over WOW's complaint pursuant to
Section 61-626 because the statute prior to July 1, 2025 authorized the Commission to adjudicate
pole attachment complaints related to attachments provided by utilities to cable television
companies and the disputes in WOW's complaint concerned the years 2023-24. Order No. 36917
at 11. Neither does the amended Section 61-538 give the Commission jurisdiction over the matter
because neither party has proposed new rates or terms. Id. at l l-12. Nothing in Avista's Petition
provides any reason to doubt the soundness of the Commission's reasoning or conclusions.4
devote limited resources, both its own and those of the industries and the public to replicate the
FCC's conclusions.
Moreover, there was extensive participation in this FCC proceeding by both utility trade
associations, including the Edison Electric Institute ("EEI") and the Utilities Technology Council
("UTC"), with Avista being a member of both associations.
4 Avista's objections to WOW's argument that,while the PUC can clearly use is complaint process
to determine just and reasonable rates, terms and conditions for pole attachments, it must also use
guiding principles from Section 224 of the 34 Act, need not be addressed herein. Since the PUC
determined it had no jurisdiction over WOW's complaint, the issue is not before it.
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C. Section 61-514 Does not Apply
Avista argues that the Commission failed to apply Idaho Code § 61-514. Avista Petition at
4-6. The Commission concluded that Section 61-514 was inapplicable and did not give the
Commission jurisdiction over WOW's complaint. Order No. 36917 at 11. Specifically, the
Commission determined that "[Section 61-514] 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." Id. at 12. Further,
the PUC ruled that Section 61-514 applied only to"public utilities,"and found that WOW was not
a public utility. Id. This is supported by WOW's Response to the Answer of Avista Corp. at 5-7.
WOW incorporates its Response, including the exhibits thereto, into this document.
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IV. Conclusion
For the reasons set forth above, the Commission should dismiss Avista's Petition as
procedurally deficient. However, should the Commission consider the Petition, it should be
dismissed on the merits.
Respectfully submitted,
DATED this 3rd day of March, 2026
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: rhincommlaw_rgroup.com
Gregory M.Adams, ISB No. 7454 (local counsel)
Richardson Adams, PLLC
515 N. 271h Street Boise, Idaho 83702
Phone: [phone]
Email: gre richardsonadams.com
Attorneys for Wired or Wireless, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of March, 2026, 1 delivered true and correct copies of
the foregoing RESPONSE OF WIRED OR WIRELESS, INC. TO AVISTA UTLITY'S
FEBRUARY 24, 2026 PETTION to the following persons via the method of service indicated
below:
Electronic mail only
Idaho Public Utilities Commission
Monica Barrios-Sanchez, Secretary
secretgagpuc.idaho.gov
Idaho Attorney General's Office
Erika Melanson, Deputy Attorney General
erika.melansongpuc.Idaho.gov
Avista Corporation
David J. Meyer,Vice President and Chief Counsel
for Regulatory and Government Affairs
david.meyer(kavistacorp.com
Eric B. Langley, Counsel to Avista
Langley Bromberg
eric a,lac!, ngleybromberg com
Robert H. Jackson, D.C.
Marashlian& Donahue, PLLC
1430 Spring Hill Rd., Suite 310
Tysons,VA 22102
Phone: [phone]
Email: rhjgcommlawgroup.com
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