In a filing with a Utah district court last week, the Utah Telecommunications Open Infrastructure Agency, or UTOPIA, responded to a lawsuit filed against it in June by Qwest Communications. Qwest’s suit accused UTOPIA--Utah’s multi-municipal wholesale fiber-to-the-premises (FTTP) network--of reckless, disruptive construction practices, illegal use of Qwest telephone poles and unfair competition by avoiding the need to pay the sales and property taxes subject to private competitors.

UTOPIA contracts with private service providers that offer retail service over its wholesale fiber network and claims Qwest can access that network along with other private providers if it chooses.

While UTOPIA admits to getting some tax benefits as a result of its being created by municipalities, it argued that any such help is offset by legislative restrictions on its accounting, record-keeping and fund-raising activities as well as by its accountability to elected officials and requirements for open meetings--none of which burden private companies.

Qwest also named the city of Riverton, Utah, as a defendant in its suit, citing the city’s requirement that developers build underground conduit for fiber, which Qwest called “competitively non-neutral and discriminatory,” and a violation of the Telecom Act of 1996. In its response, UTOPIA argued that the same conduit is available to Qwest.

“It is [Qwest’s] conduct in attempting to prevent UTOPIA from entering the market and competing through potentially lower prices and otherwise that is contrary to the…Federal Telecommunications Act, not Utopia’s existence,” UTOPIA said in its response.

As to Qwest’s charge that UTOPIA has illegally used Qwest’s telephone poles, UTOPIA admitted that it placed attachments on three poles it later learned were Qwest’s, calling that a “negligible percentage” of the 3900 poles it evaluated for its footprint and blaming the mistake on inadequate identification of the poles by Qwest. In a recent internal audit, Qwest said it found 91 of 139 poles to which UTOPIA’s network was attached were marked with metal tags identifying them as Qwest’s.

In response to Qwest’s claim that UTOPIA employs "reckless construction practices," including "negligently [cutting] Qwest cables" and service wires on several occasions, UTOPIA responded that it uses “many or most” of the same subcontractors Qwest uses for this work and that UTOPIA has corrected any damage it has caused.

Qwest’s complaint accused UTOPIA in particular of cutting cable in Murray City, Utah, in May, causing widespread service disruption and incurring damages Qwest estimated to be at least $400,000. UTOPIA admitted to that cable cut but blamed it on Qwest’s failure to adequately mark and identify its facilities.