20260323Final_Order_No_36979.pdf

Office of the Secretary
Service Date
March 23,2026
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
WIRED OR WIRELESS, INC., ) CASE NO.AVU-E-25-11
Complainant, )
VS. ) ORDER NO. 36979
AVISTA CORPORATION, )
Respondent. )
On July 17, 2025, Wired or Wireless, Inc. ("WOW") filed a formal complaint with the
Idaho Public Utilities Commission ("Commission") against Avista Corporation ("Avista")
(collectively, the "Parties"). WOW alleged that Avista billed WOW for pole attachments located
in the State of Idaho in violation of Idaho Code § 61-538, regulations and orders of the
Commission, as well as federal laws and regulations ("Complaint"). Complaint at 1-2. WOW also
claimed that Avista had violated WOW's right to overlash another cable or wire to its existing
cables and wires; and that the Company had failed to maintain accurate records by failing to
conduct periodic pole audits.Id.
On August 28,2025,Avista filed an Answer to the Complaint("Answer")denying WOW's
allegations. Answer at 1. Avista claimed the Parties' Joint Use Master License Agreement
("JUMLA") was terminated and that a lawsuit was filed in the Superior Court of Washington
against WOW for breach of contract. Id. at 2. Avista believed that the issues presented in the
Complaint should be heard by the Washington Superior Court and further argued that the
Commission lacked jurisdiction over the matter under Idaho Code§ 61-538.Id. at 4.Avista argued
that if the Commission did have jurisdiction, it would derive from Idaho Code § 61-514,not Idaho
Code § 61-538. Id. at 5. Avista requested the Commission deny WOW's request for relief and
dismiss the Complaint, allowing Avista to further pursue the breach of contract claims in the
Washington Superior Court lawsuit.Id. 18-19.
On January 27, 2026, the Commission issued Final Order No. 36917 dismissing the
Complaint, finding that it lacked jurisdiction to consider the issues raised under either Idaho Code
§ 61-538 or Idaho Code § 61-514, or the statutory authority to impose the penalties or grant the
relief requested. Order No. 36917 at 11-12.
ORDER NO. 36979 1

On February 27, 2026, WOW filed a Petition for Clarification of Order No. 36917
("Petition"). WOW did not request reconsideration.
On February 24, 2026, Avista filed a Cross-Petition for Clarification and Reconsideration
(collectively, "Cross-Petitions").
On March 3,2026,WOW filed an Answer to Avista's Cross-Petitions("Petition Answer").
Based on our review of the record, the Commission now issues this Final Order denying
WOW's Petition and denying Avista's Cross-Petitions.
WOW'S PETITION FOR CLARIFICATION
WOW requested the Commission provide clarification on Order No. 36917. Petition at 1.
Specifically, WOW requested clarification on:
1. Whether the Commission did or did not have authority over pole attachments, as defined
in Idaho Code § 61-538,when provided by a utility to a telecommunications or broadband
company until July 1, 2025;
2. Whether the Commission has or has not 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) as
required by § 1.1405(b)(3) of the rules of the Federal Communications Commission
("FCC"), 47 C.F.R. § 1.1405(b)(3) or specifically addressing overlashing, as set forth in
§ 1.1416 of the FCC's rules, 47 C.F.R. § 1.1416; and
3. Whether the Commission's pending rulemaking proceeding, House Bill 180A Re: Pole
Attachments, Case No. RUL-U-25-01, does or does not contain a specific methodology for
determining "just and reasonable rates" for pole attachments or specifically address
overlashing.
Id. at 1-2.
WOW asserted that the issues raised in the Complaint were going to be mediated by the
FCC's Rapid Broadband Assessment Team ("RBAT"), as of February 3, 2026. Id. at 2.
Additionally, WOW stated that clarification from the Commission would assist the FCC in
providing assistance where the Commission cannot.Id. at 3.
ORDER NO. 36979 2

AVISTA'S CROSS-PETITION FOR CLARIFICATION AND
RECONSIDERATION
Avista requested that the Commission reject WOW's Petition and instead, clarify that the
Commission's dismissal of the Complaint was based on its lack of jurisdiction over the contract
dispute between the Parties. Cross-Petition at 1-2. Avista also requested that the Commission
reconsider its determination that it lacked jurisdiction under Idaho Code § 61-514. Id. at 2.
Avista argued that the Commission's specific jurisdiction over pole attachments is clear
from the language of Idaho Code § 61-538 and that the Commission's jurisdiction relies on a
complaint procedure rather than the adoption of specific rate formulas. Id. at 3-4. Accordingly,
Avista requested that the Commission deny WOW's Petition and instead provide clarification that
the dismissal was not because it lacked jurisdiction over all pole attachment cases, but because it
lacked jurisdiction over a contract dispute which could be settled in district court.Id. at 4.
Additionally, Avista requested that the Commission reconsider its finding that it lacked
jurisdiction under Idaho Code § 61-514. Id. at 5. Avista argued that the Commission's
determination that WOW was not a"utility" as defined under Idaho Code § 61-514 was incorrect.
Id. Evidence was provided that WOW's tariff sheets supply additional information describing
WOW as offering circuit-switched telecommunications,giving the Commission jurisdiction under
Idaho Code § 61-514 in 2023-2024. Id. Avista requested that the Commission provide a
determination that its use of the "old telecommunications" rate for pole attachments was
reasonable to calculate the annual pole attachment fees, or, in the alternative, clarify that the
Commission does not have jurisdiction under Idaho Code § 61-514 because the issues presented
were an issue of contract interpretation that is better suited for state court. Id. at 6.
WOW'S ANSWER TO AVISTA'S CROSS-PETITIONS
WOW asserted that the February 24, 2026, Cross-Petitions filed by Avista were
procedurally defective and should be dismissed by the Commission. Petition Answer at 1.
WOW argued that after the Commission issued Order No. 36917 on January 27, 2026,
dismissing the Complaint, any petition for reconsideration was required to be filed within 21 days
ORDER NO. 36979 3

pursuant to Idaho Code § 61-626(1) and Commission Rule 323.1 Id. at 2. WOW believed that
Avista did not file a timely petition for reconsideration. Id. Instead, it styled its filing as a "cross-
petition for reconsideration," despite the absence of any pending petition for reconsideration to
which WOW could respond. Id. Under the Commission's Rule of Procedure 323, IDAPA
31.01.01.323, and controlling authority, including Eagle Water Co. v. Idaho PUC, cross-petitions
are limited to issues raised in an existing petition for reconsideration. Id. at 2-3. WOW believed
that because it filed a timely petition for clarification, not reconsideration, Avista's filing
constituted an untimely and procedurally improper attempt to collaterally attack a final order. Id.
at 3.
WOW further argued that Avista's attempt to characterize its pleading as a"cross-petition
for clarification"was likewise unsupported by the Commission's rules.Id. Rule of Procedure 325,
IDAPA 31.01.0.325, permits petitions for clarification but does not authorize cross-petitions for
clarification, nor does it toll the deadline for reconsideration. Id. Wow believed that any request
for clarification was required to be filed within the same 21-day period applicable to petitions for
reconsideration.Id. at 3-4.WOW argued that Avista's failure to act within that timeframe rendered
its filing untimely. Id. at 4.
On the merits, WOW maintained that jurisdiction over its pole attachment disputes for
2023-2024 lay with the FCC, not the Commission, because Idaho law did not grant the
Commission authority over telecommunications pole attachments during the relevant period. Id.
at 6-7. WOW stated that it was seeking relief through the FCC's enforcement mechanisms,
including the RBAT process, under Section 224 of the Communications Act. Id. at 6. WOW
contended that Avista's attachment rates exceeded those permitted under FCC regulations and that
Avista's overlashing policies violated 47 C.F.R. § 1.1416,which prohibited utilities from requiring
prior approval or charging fees for certain overlashing activities. Id. at 7. The FCC possesses
authority to reduce unlawful rates, impose forfeitures, and enforce compliance, as recognized in
FCC v. Florida Power Corp. and Cavalier Telephone, LLC v. Virginia Electric & Power Co. Id.
WOW also rejected Avista's reliance on the FCC's former telecom rate formula, noting that the
1 Rule of Procedure 323,IDAPA 31.01.01.323,provides the ordering language required in final orders,which incudes
language describing the deadline to file a petition for reconsideration. The rules of procedure for filing a petition or
cross-petition for reconsideration are provided under Rule of Procedure 331,IDAPA 31.01.01.331.
ORDER NO. 36979 4

FCC's 2011 Order had concluded that the revised formula appropriately balanced broadband
deployment incentives and utility cost recovery.Id. at 8.
Finally, WOW asserted that Order No. 36917 correctly determined that the Commission
lacked jurisdiction under Idaho Code §§ 61-538 and 61-514. Id. at 8-9. The Commission had
concluded that Idaho Code § 61-514 applied only to public utilities and to access disputes where
no agreement existed, not to contractual billing disputes such as those presented by WOW, which
was not a public utility.Id. at 9. Accordingly, WOW maintained that Avista's Cross-Petition was
both procedurally improper and substantively without merit and should be dismissed in its entirety.
Id.
COMMISSION FINDINGS AND DECISION
The Commission has authority to adjudicate complaints alleging acts or omissions by
public utilities that violate the law or Commission order or rule.Idaho Code §§ 61-612, -618. The
Commission addresses informal and formal complaints through the process outlined in its
administrative rules and does not provide preferential treatment to any party participating in the
process. IDAPA 31.01.01.054 and .057.02.
Having reviewed the filings and the record in this matter,the Commission issues this Order
denying WOW's Petition and denying Avista's Cross-Petitions.
WOW's Petition
WOW seeks clarification on three issues. First, WOW asks whether the Commission
lacked authority over pole attachments, as defined by Idaho Code § 61-538, when provided by a
utility to a telecommunications or broadband company prior to July 1, 2025. This issue was
expressly addressed in Order No. 36917. Order No. 36917 explains:
. . .Idaho Code § 61-538 authorizes the Commission to assist in fixing rates,terms,
or conditions for pole attachments when the relevant parties are unable to reach
agreement. Prior to July 1, 2025, the statute applied only to disputes between a
public utility and a cable television company. Effective July 1, 2025, the Idaho
Legislature amended the statute to include disputes involving a provider of
telecommunication services or broadband. Order No. 36917 at 11.
Because Order No. 36917 clearly states the Commission's authority both before and after
the statutory amendment, further clarification is unnecessary.
ORDER NO. 36979 5

Second and third, WOW requests clarification regarding whether the Commission has
issued rules implementing the State's regulatory authority over pole attachments, including any
methodology for determining just and reasonable rates, and whether the Commission's pending
rulemaking proceeding addresses such methodology or overlashing. These requests do not seek
clarification of Order No. 36917, but instead request an advisory opinion concerning the
Commission's broader regulatory framework and an ongoing rulemaking proceeding.
Order No. 36917 resolved the jurisdictional issues presented in the Complaint based on the
record in this case. WOW's additional questions extend beyond the scope of that Order and seek
clarification outside the issues addressed in this matter. The Commission declines to issue advisory
opinions or to address matters properly considered in separate proceedings. Accordingly,WOW's
second and third requests are denied as beyond the scope of Order No. 36917.
Avista's Cross-Petitions
Clarification
Avista requests the Commission clarify that its dismissal of the Complaint was not based
on a lack of jurisdiction over all pole attachment matters, but rather on the absence of jurisdiction
to resolve a contract dispute. This was set forth in Order No. 36917.
In Order No. 36917, the Commission explained:
Under the amended version of Idaho Code § 61-538,the Commission's role is also
limited and inapplicable in the context WOW suggests. The statute permits
Commission involvement only when parties are unable to agree on rates or terms
during the formation of a new pole attachment agreement. Here, the Parties
successfully negotiated and executed the JUMLA in 2009, establishing mutually
agreed upon rates and terms. The Complaint does not seek to establish new rates or
terms but instead asks the Commission to interpret and enforce an existing
agreement and to adjudicate alleged contractual breaches. Idaho Code § 61-538
does not permit the Commission to review, interpret, or enforce existing contracts
where a meeting of the minds has occurred. As affirmed by the Supreme Court of
Idaho, the interpretation and enforcement of contractual rights are matters that
generally fall within the jurisdiction of the courts, not the Commission. Order No.
36917 at 11-12.
Order No. 36917 also states:
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
ORDER NO. 36979 6

of contract. The record reflects that the parties have an existing agreement
governing joint use of facilities. Order No. 36917 at 12.
Because the Order already articulates the basis for the Commission's decision, the
requested clarification would merely restate existing findings and is therefore denied.
Reconsideration
In reviewing the filings in this matter, we determine that Avista's Cross-Petition for
Reconsideration is untimely. Under the Commission's Rules of Procedure, a petition for
reconsideration must be filed within 21 days of the service date of a final order. Final Order No.
36917 was issued on January 27, 2026, making Avista's Cross Petition for Reconsideration filed
on February 24, 2026, untimely.
The filing of WOW's Petition for Clarification does not toll or extend the deadline for
seeking reconsideration. Nor does the rule permitting cross-petitions for reconsideration apply
here, as that provision is triggered only by a timely petition for reconsideration, not a petition for
clarification. Accordingly,Avista's Cross-Petition for Reconsideration is procedurally barred.
Even if the request were timely,the Commission would deny reconsideration on the merits.
Avista argues that the Commission should revisit its determination regarding jurisdiction under
Idaho Code § 61-514. However, Final Order No. 36917 addressed this issue and concluded that
the statute does not apply because the dispute arises from the interpretation and alleged breach of
an existing contract. This was the primary basis for the Commission's determination that it lacked
jurisdiction under Idaho Code § 61-514.
Any additional argument regarding whether WOW qualifies as a"public utility"would not
alter that conclusion. Even if WOW were considered a public utility, the Commission would still
lack jurisdiction to adjudicate contractual disputes governed by an existing agreement. Therefore,
reconsideration is not warranted.
ORDER
IT IS HEREBY ORDERED that WOW's Petition for Clarification is denied.
IT IS FURTHER ORDERED that Avista's Cross-Petitions for Clarification and
Reconsideration are denied.
THIS IS A FINAL ORDER. Any person interested in this Order may petition for
reconsideration within twenty-one (21) days of the service date of this Order. Within seven (7)
ORDER NO. 36979 7

days after any person has petitioned for reconsideration, any other person may cross-petition for
reconsideration. See Idaho Code § 61-626.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this 23'd day of
March, 2026.
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Gv�
EDWARD LODG , P SIDENT
JO R. HAMMOND JR., COMMISSIONER
1
DAYN HAKDIE, COMMISSIONER
ATTEST:
M/on'iA Ba rios- nchez
Commission Secretary
I:\Legal\ELECTRICWVU-E-25-11_WOW\orders\AVUE2511_denyclarif em.docx
ORDER NO. 36979 8