Rochester Urges Denial of Motion to Exclude City’s ROW Spreadsheet

Rochester opposes Verizon’s motion, joined by plaintiffs Crown Castle and Extenet in the related cases, to exclude from evidence the spreadsheet created by Louie Tobias, the city’s director-telecommunications and special projects, on grounds it contains inadmissable hearsay, said the city’s memorandum of law Friday in U.S. District Court for Western New York in support of that opposition. The spreadsheet “is admissible as a public record,” and the motion should be denied, it said.

A single consolidated bench trial is scheduled to begin June 1 in the related infrastructure complaints brought by Crown Castle (docket 6:20-cv-06866), Extenet (6:20-cv-07129) and Verizon (6:19-cv-06583) (see 2212200065). All allege 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.

Tobias “was the central figure undertaking the analysis” of the city’s telecommunications costs before the FCC’s September 2018 order on accelerating wireless broadband deployment by removing barriers to infrastructure investment was to take effect in January 2019, said the memorandum. In conducting the cost analysis, Tobias obtained information from various city departments, “and ultimately included that information in the spreadsheet here at issue,” it said.

The departments gave Tobias information “about the time and resources spent annually in relation to work they perform related to telecommunications facilities” in the ROW, said the memorandum. The spreadsheet gives his “distribution of those costs across the number of small wireless facilities” in the ROW, or linear telecommunications facilities in the ROW, “to arrive at a per-facility or per-linear-foot cost,” it said.

The court should again deny the plaintiffs’ motion to exclude the spreadsheet as hearsay, just as it previously rejected their hearsay arguments in their motion for summary judgment, said the memorandum. “A record or statement of a public office is excepted from the hearsay rule where it sets out the public office’s activities,” it said. The spreadsheet “on its face” is an accounting of the activities of Tobias and his office in assessing whether Rochester’s fees “were equal to or less than a reasonable approximation of its objectively reasonable costs,” in compliance with the FCC’s September 2018 order, it said.

The spreadsheet “is admissible as a public record,” said the memorandum. The plaintiffs argue it was created in anticipation of litigation and thus should be excluded as inadmissible hearsay, the memorandum said. Even assuming such preparation could overcome the hearsay exception, the court previously said the summary judgment record “did not support such a conclusion,” it said. “The instant record does not support such a conclusion either.”

The “bottom line” is the evidence shows Rochester initiated its formal cost analysis in December 2018 in advance of the FCC’s order taking effect the following month, said the memorandum. That cost analysis “was memorialized in the spreadsheet here at issue,” beginning April 17, 2019, partly due to Verizon’s request that the city share its cost analysis, it said. The plaintiffs fail to establish the spreadsheet was created for the purpose of litigation, it said.

Patrick Beath, Rochester’s lead attorney in the cases, signed a separate declaration Friday opposing Extenet’s motion in limine (at the beginning) to exclude any expert testimony Tobias might provide at trial. Crown Castle and Verizon joined Extenet’s motion. The city has identified Tobias as a fact witness “and intends to produce him as such in the upcoming trial,” the declaration said. It’s not the city’s intent “to elicit expert testimony” from Tobias, it said.

Rochester plans to question Tobias about his knowledge of the city’s telecommunications code and the fees it contains, plus his understanding of the FCC’s September order, said Beath’s declaration. It also plans to ask him about the cost analysis he performed to “confirm” the city’s fees “are less than a reasonable approximation of objectively reasonable costs,” as the FCC order requires, it said.

Though his testimony will require Tobias to explain “the rationale and methods he used in undertaking his cost analysis,” plus the results and conclusions of that analysis, “all such testimony is allowable as lay opinion,” said Beath’s declaration. It’s Rochester’s position “that expert testimony is of little value” in the context of the FCC’s order, it said. The order “requires only a reasonable approximation of objectively reasonable costs, not an expert accounting,” it said.

It’s “premature” for now to determine the admissibility of Tobias’ testimony, “as much will depend on context,” said Beath’s declaration. Extenet argues Tobias' qualifying his analysis as conservative shouldn’t be allowed “because such a qualification is based upon purported technical expertise,” it said. Yet commentary about conservative vs. liberal analyses is used in everyday conversation, and requires “no specialized knowledge to understand in most contexts,” it said. “Objections on these lines should await trial.”