Rochester’s Cost Spreadsheet ‘Inadmissible’ at Trial, Says Crown Castle

Crown Castle “joins and adopts the legal reasoning” of motions by co-plaintiffs Extenet and Verizon to bar introduction at trial of Rochester’s “cost spreadsheet” and to preclude the city’s telecom director, Louie Tobias, who created the spreadsheet, “from offering expert opinion testimony,” said its memorandum of law Monday (docket 6:20-cv-06866) in U.S. District Court for Western New York. Common to the three complaints brought by Crown Castle, 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 (see 2302270007). A single bench trial on the three consolidated cases is scheduled to open June 1. The spreadsheet is “inadmissible” at trial because it doesn’t qualify for “the public records exception to hearsay,” and it was prepared “in anticipation of litigation,” said Crown Castle. Several other factors make the spreadsheet “inherently unreliable and untrustworthy,” it said. Any opinion testimony the city plans to induce from Tobias about the reasonableness of Rochester’s costs or fees also is inadmissible because he “has not been designated as, nor is he qualified to testify as, an expert witness,” it said. The court has determined the city bears the burden of proof at trial “to demonstrate that its fees are a reasonable approximation of its costs” to manage the public ROW, said Crown Castle. The spreadsheet and Tobias’ testimony figure prominently in Rochester’s efforts to meet its burden, the memorandum said.