HomeMy WebLinkAbout4b. Declaration of Garth T. Ashpaugh in Support of City of Renton's Opposition to Tracfone's Motion for Summary Judgment{KCO2357256.DOCX;1/07851.000003/ }
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON RE: TracFone Wireless, Inc. Administrative Appeal
DECLARATION OF GARTH T. ASHPAUGH IN SUPPORT OF RESPONDENT CITY OF RENTON’S OPPOSITION TO TRACFONE’S MOTION FOR SUMMARY JUDGMENT
I, Garth T. Ashpaugh, declare under penalty of perjury under the laws of the State of Washington 1
that the following is true and correct: 2
1. I am over the age of eighteen, and I am competent to testify in court as to the matters set 3
forth herein and make this declaration based upon my personal knowledge. 4
2. I am President and a Member of Ashpaugh & Sculco, CPAs, PLC (“A&S”), an accounting 5
and consulting firm my partner, Carolyn Sculco, and I formed in 1999. I am also a licensed Certified Public 6
Accountant in Florida (#0023193) and Missouri (#007098) and a member of the American Institute of 7
Certified Public Accountants. I am also a member of the National Association of Telecommunications 8
Officers and Advisors (“NATOA”), and I served on the Board of NATOA as its Secretary/Treasurer for 9
four terms and was made a Life Member. My experience with the telecommunications industry spans 10
decades, dating back to the early 1980’s and the divestiture of AT&T in the various so-called “baby bells” 11
(e.g., Pacific Northwest Bell, Bell South, etc.). I have been engaged in utility matters and regulation full-12
time for over twenty years. I have been a consultant since 1991 and have worked as an Audit Supervisor 13
with the Missouri Public Service Commission. My primary focus with A&S is working for local 14
governments on telecommunications and franchise matters. I previously provided my curriculum vitae and 15
Declaration of Garth T. Ashpaugh
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record of testimony as Exhibit 1 to my prior declaration in support of the City of Renton’s Motion for 1
Partial Summary Judgment, on file herein. 2
3. Page 2, Paragraph 8 of the Chesley Dillon Declaration misstates TracFone’s relationship 3
with its retailers. Specifically, it states: “TracFone's wholesale sales of prepaid wireless airtime are made 4
to retailers such as Walmart, Fred Meyer, and Target, who purchase the prepaid wireless airtime for the 5
purpose of reselling it at retail to end-users.” TracFone’s retailer agreements with Circle K and Rent-A-6
Center provide otherwise: 7
1. [BEGIN CONFIDENTIAL] 8
2. Circle K Retail Distribution Agreement– 9
3. WHEREAS, TracFone is in the business of distributing prepaid wireless 10
phones able to store rates and decrement a prepaid account under the registered 11
TracFone® and NET10® trademarks ("TracFones") and prepaid cellular airtime 12
cards/or codes for the airtime minutes to be loaded into the TracFones ("Airtime 13
Codes") to retailers; 14
4. WHEREAS, TracFone, through third party contractors, provides prepaid 15
wireless services and desires to appoint Retailer to sell TracFones, Airtime Codes 16
and Accessories ("Products"); and 17
5. c. Airtime Codes: Retailer may purchase Airtime Codes from TracFone at 18
the prices set forth below or at such other prices as may be established by TracFone 19
from time to time during the term of this Agreement. Retailer agrees to pay for 20
purchases of Airtime Codes based on daily retailer sales reports to be furnished to 21
TracFone by Retailer. All invoices for Airtime Codes shall be payable by Retailer 22
net fifteen (15) days from invoice date. Notwithstanding the foregoing, Retailer 23
shall pay for Airtime Codes, which are redeemed by TracFone end-users, but are 24
not included within the retailer sales reports provided as the source of invoicing 25
records hereunder. These additional Airtime Codes invoices will be rendered 26
periodically by TracFone throughout the term of this Agreement and shall be 27
payable net fifteen (15) days from date of invoice. 28
6. Rent-A-Center (“RAC”) Retail Distribution Agreement – 29
7. b. Products and Services: 30
(i) BYOP and BYOT (for TracFone branded SIM cards without airtime) [Bring 31
Your Own Phone" (BYOP) and "Bring Your Own Tablet" ("BYOT")] 32
8. At the inception of the Agreement and at RAC's option, for BYOP and 33
BYOT products, TracFone agrees to (i) ship the SIM cards at zero cost to RAC 34
stores and RAC DCs, or (ii) ship the SIM cards at zero cost to the third party 35
aggregator. Upon initial activation of SIM cards (through the third party 36
Declaration of Garth T. Ashpaugh
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aggregator), 30 day unlimited airtime plan will be provided to end user/customer 1
at no cost to RAC. 2
9. RAC shall not be permitted to resell, market or give away any of the SIM 3
cards to any third parties, other than end users/customers without TracFone's prior 4
written consent. 5
10. Safeway Retail Distribution Agreement 6
11. This Retail Distribution Agreement ("Agreement") is made and 7
entered into as of 2002 (the "Effective Date") by and between TracFone Wireless, 8
Inc., a Florida corporation, ("TracFone") and Safeway Inc., a Delaware 9
corporation, ("Safeway"). 10
12. Recitals 11
13. A. TracFone is in the business of distributing prepaid wireless 12
telephone handsets able to store rates and decrement a prepaid account under the 13
registered TracFone® trademark as further described in Exhibit B, Section II (each 14
such handset, a "TracFone®"), and prepaid cards for cellular airtime minutes 15
designed to be loaded into the TracFones®, as further described in Exhibit B, 16
Section II ("Airtime Cards"). 17
14. B. Safeway is a grocery retailer operating approximately 18
XXXX retail grocery stores throughout the continental United States (the 19
"Safeway Stores") and has a retail alliance with certain other retail grocery chains 20
identified on Exhibit A attached hereto (the "Partner Stores"). 21
15. C. TracFone desires to appoint Safeway to sell TracFones® and 22
Airtime Cards (collectively referred to herein as the "Products") and Safeway 23
desires to purchase the Products from TracFone for resale at such Safeway Stores 24
and Partner Stores as may participate in the sale of the Products, as determined by 25
Safeway from time to time hereunder (collectively, the "Participating Stores"). 26
16. Agreement 27
17. NOW, THEREFORE, in consideration of their mutual covenants 28
and promises herein contained and other good and valuable consideration, the 29
receipt and sufficiency of which is hereby acknowledged, the parties agree as 30
follows: 31
18. 1. TracFone Program. 32
19. 1.1 Permission to Resell. On the terms and conditions set forth 33
herein, TracFone hereby grants Safeway the right to purchase the Products and to 34
offer, sell and distribute (collectively, "resell") the Products through the 35
Participating Stores, and Safeway hereby accepts such right. 36
20. 1.3 Activation. As delivered to Safeway, none of the Products 37
will be enabled for purchases or be capable of being used for purchases 38
("Activated'). Upon Purchase of any Product by a retail customer of any 39
Participating Store (each, a "Customer"), Safeway shall transmit directly to 40
TracFone the necessary Product data to permit the Products to be Activated, 41
Declaration of Garth T. Ashpaugh
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pursuant to the methodology set forth in Exhibit B. TracFone will work with 1
Safeway, as necessary, to determine the format and method for transmitting 2
Product and activation data. Safeway will keep a log of its sales of the Products to 3
Customers hereunder. 4
21. 1.6 TracFone Customer Service. TracFone shall be responsible for all 5
Customer service in connection with all Products sold to Customers in connection 6
herewith. TracFone shall be responsible for all refunds, exchanges or credits 7
relating to and offered in connection with the Products sold to Customers. 8
TracFone shall provide Customer with at least the level of customer service 9
described in Exhibit B. Safeway will provide a Customer service contact for 10
TracFone to assist in the resolution of Customer complaints and disputes and 11
otherwise to assist TracFone with Customer service matters as set forth in Exhibit 12
B. 13
22. [END CONFIDENTIAL] 14
4. The highlighted portions of the excerpts above make it clear that the relationship between 15
TracFone and the retailer is not wholesale. 16
SIGNED this 12th day of February, 2021 at Trinity, Florida. 17
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By /s/Garth T. Ashpaugh 20
Garth T. Ashpaugh 21
Declaration of Garth T. Ashpaugh
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CERTIFICATE OF SERVICE 1
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I, Kenya Owens, an employee of Ogden Murphy Wallace, PLLC, certify that on the date below, I 3
filed and served the Declaration of Garth T. Ashpaugh in support of City of Renton’s Response in 4
Opposition to TracFone’s Motion for Summary Judgment via email on the following parties: 5
TracFone Wireless, Inc. 6 7 Scott Edwards 8 Lane Powell, PC 9 1420 5th Avenue, Suite 4200 10 Seattle, WA 98101 11 EdwardsS@LanePowell.com 12 13 Grant S. Degginger 14 Lane Powell, PC 15 1420 5th Avenue, Suite 4200 16 Seattle, WA 98101 17 DeggingerG@LanePowell.com 18
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I declare under penalty of perjury under the laws of the State of Washington that the foregoing is 20
true and correct. 21
Executed at Seattle, Washington this 12th day of February, 2021. 22
/s/ Kenya Owens 23
Kenya Owens 24
Legal Assistant 25 26
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