Plaintiffs in ROW Fees Trial vs. Rochester Plan 6 Witnesses; City Plans Only 1

Crown Castle plans to call four fact witnesses and two expert witnesses in the consolidated bench trial with Extenet and Verizon that begins June 1 against the city of Rochester (see 2212200065), said the plaintiffs’ pretrial submissions Friday in U.S. District Court for Western New York.

Common to the three complaints brought by Crown Castle (docket 6:20-cv-06866), Extenet (6:20-cv-07129) and Verizon (6:19-cv-06583) are the allegations that Rochester’s wireless deployment fees significantly exceed a reasonable approximation of the city’s actual costs of maintaining the rights-of-way (ROW) used or occupied by telecom service providers, in violation of Section 253 of the Telecommunications Act. A second trial date is set for June 2, but when the trial resumes after that will hinge on the availability of expert witnesses.

Heading Crown Castle’s prospective witness list is Mike Dziulko, the company’s district director-design and construction, said the pretrial submissions. He’s expected to testify about Crown Castle’s existing operations in Rochester, including the construction and maintenance of its fiber facilities, and “the facts and circumstances” of Crown Castle’s “master license agreement” with the city, said the submissions.

Rochester Manager-Telecommunications Louie Tobias will appear as a deposition and live trial witness to testify about “the drafting and adoption” of the city’s code and ROW fees, said the submissions. His testimony is expected to cover the core issues in the case -- efforts by the city to “justify” its fees, and whether the fees reflect Rochester’s “reasonable costs” for its management of the public ROW, they said.

Crown Castle also expects to call Kamal Crues, assistant Rochester city engineer, as a deposition and live trial witness to testify about the city’s ROW “permitting regime,” fees and management costs, they said. Also on the witness list is an unnamed city records custodian to testify about the preservation, identification, production and authentication of documents, they said.

Two expert witnesses on the list are FTI Consulting's Senior Managing Director Brian Pitkin and Managing Director Robert Fisher. Their bios say each has “deep knowledge regarding costing methodologies in regulated industries generally, and the telecom, media, and technology sectors specifically.” Pitkin and Fisher have given expert testimony in telecom, cable, railroad and toll road proceedings before federal and state courts and regulatory commissions, they say.

Crown Castle, Extenet and Verizon collectively plan to introduce 325 exhibits into evidence at trial, said their submissions, introducing the exhibits “in their direct cases” or using them during cross-examination. Rochester, by comparison, plans to introduce 24 exhibits into evidence at trial, including five depositions and three expert reports, said the city’s pretrial submission. Tobias, Rochester’s telecommunications manager, is the city’s only planned live witness, it said.