Subject: Upcoming Feb. 28 Broadwing hearing in Laramie state court: our responses to Broadwing's defenses and counterarguments
From: [email-masked]
To: [email-masked], [email-masked]
Cc: [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked]
Date: Wed, 23 Feb 2000 01:18:00 -0800 (PST)

Here are my preliminary thoughts about Broadwing's likely responses to our 
claims, and how we might respond to them.  I'd like to discuss these with 
you, Dave, sometime this week, as well as your thoughts about the likely 
course of the arguments.  I'd also invite Brad and Ron to add to or modify my 
statements, below, if they are not accurate.  Dave and Steve, now that we're 
in this thing, I want to hit as hard as we can, taking full advantage of the 
shock value of these truly awful facts, and do everything reasonably possible 
to obtain a preliminary injunction stopping Broadwing's construction, or at 
the very least ordering them to stop construction (in Wyoming, and, if 
possible, in Colorado) until they have executed and complied with a 
construction coordination agreement.    

Broadwing Arguments:  1.  As to several cuts, EBS refused to even mark their 
line.

 Answer:  True, as to the first two cuts only, and even in those cases 
Broadwing's contractor continued ripping us up when they should have stopped; 
it is their obligation to protect our system, no matter what we do.

2.  EBS' line wasn't properly marked.  The line weaves left and right, and 
was marked as if it were laid in a straight line.

 Answer:  True, in some cases, but Broadwing's contractor was the same 
company that laid EBS' line only a few months earlier, and therefore knew the 
location of EBS' line.  Also, Broadwing knows that the sloping and rocky 
terrain causes the plow to wander somewhat, and Broadwing knew, especially 
after the first few cuts, that it was too close to EBS' line.

[Note to Dave:  Should we have named our own locating service?  We have 
discussed a claim against them, earlier, but I didn't think about whether 
they should have been named as a defendant.  What do you think?  It doesn't 
relate to the injunction, does it, but it does relate to the damage action.]

3.  EBS didn't have enough inspectors out to protect its system.

 Answer:  EBS did have inspectors nearby, though we cannot have a person with 
every plow at every minute.  In some cases where our inspector told the 
Broadwing contractor to stop work because the EBS cable was in danger of 
imminent harm, Broadwing did not stop, and the cable was cut.  So it isn't 
clear that more inspectors would have helped, since Broadwing ignored them 
anyway.

4.   Some cuts must be expected, when a cable is being laid close to an 
existing cable.

 Answer:  The number of Broadwing cuts (8 or 9, and growing!) is far and 
above the usual number that would be anticipated.  Clearly Broadwing has been 
negligent in its disregard for EBS' existing facility.  All Broadwing wants 
to do is the push through quickly.  Its contractors clearly behave in a 
negligent manner.  For example, when we hired Mears Construction in Texas, 
and they cut another company's cable, they stopped, and immediately examined 
the damage, contacted the cable's owner, and offered to repair the damage.  
When Mears was working for Broadwing in Wyoming, however, and Mears cut the 
EBS cable, Mears didn't contact EBS and kept on working, and even kept on 
damaging additional EBS facilities.

5.  EBS' damages are only its actual cost to repair the cuts.

 Answer:  No!  first, there have been so many cuts that EBS must in some 
cases replace entire segments of cable (because too many splice repairs 
results in too much communications signal loss), which is very expensive 
($275,000 per reel of cable).  Also, EBS is close to lighting its system 
(i.e., carrying traffic); when that happens, EBS' damages will be 
consequential:  lost profits, lost additional business, lost business 
reputation, etc.

6.  Uinta County is the true culprit, since it forced us to be only 3' away 
from EBS' cable.

 Answer:  It is true that the county's proximity requirement contributed to 
the problem.  That requirement is bad engineering practice, but results from 
the county's over-arching desire to maximize right of way revenue at all 
costs, without regard to actual construction realities.  Unfortunately, the 
county is immune.  Broadwing, however, is still responsible for protecting 
existing facilities, and is clearly responsible for all damages that result.  
There are numerous construction measures that Broadwing could and should have 
taken, to reduct the risk of damaging the EBS line:  for example, it should 
have dug periodic "potholes" to find out exactly where the line was, in order 
to avoid it.  It could have dug trenches to lay the cable, wherever it was 
too close for plowing.  In every case, Broadwing merely did what was easist 
and cheapest, without regard to EBS' line's security.  This is not acceptable 
construction practice; it is instead the practice of a fly-by-night operation 
that does not demonstrate basic regard for others' property.

7.   Broadwing is committed to avoiding any damage to EBS' facilities.

 Answer:  That is completely untrue.  While Broadwing has made numerous 
statements to EBS personnel which indicate that this is true, Broadwing's 
statements to EBS have repeatedly been proved to be either knowingly false 
statements or based on misunderstood inaccurate reports from its own field 
personnel.  Broadwing refused to sign, or even to negotiate, a "construction 
coordination agreement" which EBS supplied to Broadwing, which is designed to 
promote communication and cooperation, and prevent further damage.  (EBS 
signed such an agreement with AT&T, after EBS' contractor cut AT&T's cable.)

EBS has exhausted all its options with Broadwing, and must have relief from 
the court.  The timing of this hearing is critical, as EBS is about to light 
up its system, and cannot do so until the new cable is installed (to replace 
all the cut cable), and will suffer much greater damages once EBS traffic is 
interrupted.

--Kenton