Riding roughshod

Seattle politicians side with Qwest against Sound Transit.

HOW MUCH DO Seattle’s state legislators Ed Murray and Phyllis Kenney hate Sound Transit?

Enough, maybe, to pass a bill that could add as much as $20 million to the agency’s 14-mile light-rail project and give local phone monolith Qwest a handout that could save the company millions.

The legislation, filed in the House, would force Sound Transit to pay to move Qwest’s phone and fiber optic lines, the final obstacle for Sound Transit’s 1.6-mile Tacoma light-rail line. But the bill could also have a devastating effect on the 14-mile light-rail “starter” system from the city of SeaTac to downtown Seattle, because the agency didn’t factor the estimated $20 million cost of moving the lines into the project’s $2.1 billion budget. “Our cost estimating was done assuming that Qwest would follow the law, which says [private utilities have] to pay for [relocation] when they’re in the public right of way,” says Sound Transit spokesperson Geoff Stuckart.

State Reps. Ed Murray, D-Seattle (Capitol Hill) and Phyllis Gutierrez Kenney, D-Seattle (Sand Point), have both signed onto the bill, but neither returned calls requesting comment on the matter.

Qwest spokesperson Michael Dunne explains the rational for the bill. “We believe what [Sound Transit is] trying to do is force our customers to pay for some of their [cost] overruns,” Dunne says. “We don’t have millions of dollars lying around to throw into this. If we ultimately pay this, our customers are going to have to pay to pick up this tab.”

Pierce County Executive and Sound Transit board member John Ladenburg, who spent years battling the company as Pierce County prosecutor, isn’t crying for Qwest. Neither is Will Patton of the Seattle city attorney’s office, who says Qwest has repeatedly challenged cities’ rights to make them move their lines—and has lost every time. Qwest “sometimes argues that they have a prehistoric right to be” in the public right-of-way, Patton says, but courts haven’t bought that argument. Down in Pierce County, Qwest’s attempts to force county taxpayers to move its lines have been defeated twice in the past five years.

Why, one might wonder, should Qwest have to pay? For one thing, it gets to use city right of way for free, saving the company millions of dollars it would otherwise have to spend to buy space in people’s front yards and parking lots. As far as Sound Transit is concerned, Ladenburg says, moving utility lines is a small price for Qwest to pay to use Tacoma’s and Seattle’s city streets. “This is the cost of them being in the right of way; instead of having a lease or paying rent, they pay whenever they need to move,” Ladenburg says.

The battle shaping up now in Olympia has a parallel in U.S. District Court, where Qwest has sued Sound Transit to force the agency to pay to move its lines. Last week, the agency filed a countersuit, denying all of Qwest’s claims and seeking a judgment forcing the company to move the lines. Complicating matters further, Sound Transit and Qwest are also still technically in mediation, a process that started just days before Qwest filed its suit in late January. Sound Transit representatives were hardly charmed by Qwest’s assurances that the suit “in no way diminishes our resolve to successfully mediate this matter,” as the cover letter enclosed with the lawsuit states. “They turned around and sued us at the last minute,” Ladenburg fumes. “They haven’t negotiated in good faith.”

Qwest’s suit claims that only cities can regulate the use of right of way; since Sound Transit isn’t a city, it can’t order Qwest to move its lines. Sound Transit has responded that because the agency partners with cities like Tacoma and Seattle, those cities can issue an order on its behalf, which is what the city of Tacoma has done.

Precedent—a long string of lawsuits and the fact that utilities have historically paid to move their own lines—would appear to be on Sound Transit’s side. But Qwest has deep pockets, perseverance, and powerful supporters. This year, more than half the members of the 19-member House telecommunications committee signed on as co-sponsors of the Qwest legislation. Moreover, the legislation passed out of the telecom committee “almost unanimously,” according to state Rep. Jeff Morris, D-Sedro-Woolley, sponsor of the bill. Morris believes that now that legislators are familiar with the issue, they may be ready to vote for the bill after years of indecision. “We’d like to put a wooden stake in the heart of this issue,” Morris says.