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Enron Mail |
Cc: david.leatherwood@enron.com, brad.cheney@enron.com, ron.holtz@enron.com,
richard.sanders@enron.com, wilson.dietrich@enron.com, kevin.kohnstamm@enron.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Bcc: david.leatherwood@enron.com, brad.cheney@enron.com, ron.holtz@enron.com, richard.sanders@enron.com, wilson.dietrich@enron.com, kevin.kohnstamm@enron.com X-From: Kenton Erwin X-To: dditto@hollandhart.com, sblack@hollandhart.com X-cc: David Leatherwood, Brad Cheney, Ron Holtz, Richard B Sanders, Wilson Dietrich, Kevin Kohnstamm X-bcc: X-Folder: \Richard_Sanders_Dec2000\Notes Folders\All documents X-Origin: Sanders-R X-FileName: rsander.nsf 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
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