Contract analysis

From: Elaine Forsythe <eforsythe@calderwoodharkness.com> To: James Whitford <jwhitford@northgatetelecom.co.uk> Cc: Catherine Ng <cng@northgatenetworks.com> Subject: FCC Evidentiary Hearing Debrief — Docket WC-23-0042 (In the Matter of Northgate Networks America Inc.)

**ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL / ATTORNEY WORK PRODUCT**

I am writing to report on the completion of the three-day FCC evidentiary hearing held January 22–24, 2024, before Administrative Law Judge Robert Fenwick in the Ridgepoint interconnection matter. What follows is a summary debrief of the proceedings and our assessment of how things stand as we move into the post-hearing briefing phase.

As you know, this hearing — originally scheduled for September 2023 and postponed to January 2024 due to FCC staffing constraints (per the August 28, 2023 postponement order) — addressed the complaint filed by Ridgepoint Communications Inc. (FCC Docket WC-23-0042). Ridgepoint alleges that Northgate Networks America Inc. violated interconnection obligations under Sections 251 and 252 of the Communications Act with res

Ridgepoint was represented by Victoria Hargrove and Daniel Stoyanov of Hargrove, Winslow & Burke LLP. Our team present at all three days included myself, Aaron Liu, and Monica Reyes.

**II. Summary of Northgate's Witness Testimony**

*Diane Okoro — U.S. President, Northgate Networks America Inc. (Day 1, January 22)*

Diane led off our presentation on Monday with an overview of Northgate's U.S. fiber-optic operations, covering approximately 42,000 route-miles across 18 eastern U.S. states, including the enterprise cloud-connectivity and SaaS-based network management platforms (NorthgateOS™). She then addressed the business rationale for the Wholesale Access Policy adopted in January 2020, which requires a minimum annual revenue co

Diane walked the ALJ through the capacity constraints at the 14 disputed facilities, all of which are at or above 85% utilization. She also provided context on the history of the Northgate-Ridgepoint relationship, including Ridgepoint's aggregate annual spend of approximately $1.8 million in FY 2021 — well below the $5 million WAP threshold.

On cross-examination, Hargrove focused on the prior Master Interconnection Agreement (executed June 15, 2015; expired June 14, 2020), under which Ridgepoint had been granted colocation at three facilities in northern Virginia, and on the decision not to renew. Diane handled this well, consistently framing the non-renewal as a function of the new WAP requirements rather than any anticompetitive intent. Hargrove also q

*Patrick Salazar — Chief Regulatory Officer, Northgate Telecommunications PLC (Day 2, January 23)*

Patrick provided regulatory context for Northgate's interconnection practices and compliance with Sections 251 and 252. He drew a clear distinction between the 14 newly requested facilities (where no prior colocation relationship existed with Ridgepoint) and the 3 legacy northern Virginia facilities under the expired MIA. He addressed Ridgepoint's interconnection requests submitted between March 2021 and August 2022,

Cross-examination focused on internal communications surrounding the WAP's adoption and whether capacity utilization data was selectively presented. Patrick was well-prepared and maintained consistency with his March 6, 2023 declaration filed in the district court stay motion. I did not observe any material concessions.

*Dr. Anton Berger — Senior Advisor, Torrence Policy Group LLC (Day 2 afternoon / Day 3, January 23–24)*

Dr. Berger provided expert opinion on the regulatory framework governing interconnection under Sections 251 and 252, relevant FCC precedent, and the commercial reasonableness standard applicable to Northgate's practices. He testified that Northgate's denial of colocation requests at the 14 facilities was consistent with FCC rules and commercially reasonable, given the documented capacity constraints (≥85% utilization

On cross-examination, Stoyanov attempted to undermine Dr. Berger's independence given his prior FCC role. Dr. Berger handled this effectively, noting that his departure from the FCC predated the adoption of the WAP by several years, and he was not challenged further on that point.

**III. Summary of Ridgepoint's Witness Testimony**

Ridgepoint presented testimony from Gregory Trent (CEO/Founder) and Samira Hashemi (COO), who testified about the impact of being denied access to the 14 facilities and Ridgepoint's asserted inability to serve enterprise customers in the Mid-Atlantic corridor. Their regulatory expert testified that Northgate's obligations under Section 251 required it to provide interconnection at any technically feasible point.

I should note that Dr. Leonard Kuo (Cavendish University), Ridgepoint's economic expert, did not testify at this hearing. His role is primarily relevant to the district court antitrust case and market definition issues, and Ridgepoint used separate regulatory witnesses for this FCC proceeding.

**IV. Assessment of Northgate's Performance**

Overall, my assessment is positive. Our witnesses were well-prepared and consistent in their testimony. The ALJ appeared receptive to Northgate's arguments regarding the commercial reasonableness of the WAP and the capacity utilization evidence. ALJ Fenwick asked probing questions of both sides but did not signal a clear lean toward either party.

Ridgepoint's strongest moments came during cross-examination of Diane regarding the prior MIA and the timing of the WAP's adoption in January 2020 — just months before the MIA's expiration on June 14, 2020 — which Hargrove attempted to characterize as suspicious. However, Diane credibly testified that the WAP applied company-wide and was not directed at Ridgepoint. I believe the record on this point is favorable to u

ALJ Fenwick issued the following post-hearing briefing schedule:

- **Post-hearing briefs due: March 15, 2024** - **Reply briefs due: April 12, 2024**

Aaron and Monica Reyes will take the lead on drafting, in coordination with Dr. Berger at Torrence Policy Group. We expect ALJ Fenwick's initial decision will follow some weeks or months after the reply briefs, though the ALJ did not provide a specific timeline. Either party may then seek review by the full Commission.

**VI. Implications for the District Court Litigation**

The district court action (*Ridgepoint Communications Inc. v. Northgate Networks America Inc.*, Case No. 1:22-cv-01487-CMW, E.D. Va., before Judge Claudia M. Wentworth) remains stayed pending resolution of the FCC proceeding. The Motion to Dismiss was denied without prejudice and may be renewed after the stay is lifted.

Once ALJ Fenwick issues his initial decision — and depending on whether either party seeks Commission review — the parties may move to lift the stay. We will continue to monitor and keep the team advised of timing. The next joint status report to Judge Wentworth, required every 90 days under the stay order, is upcoming, and Aaron will coordinate with Daniel Stoyanov at Hargrove, Winslow & Burke on the filing.

- **Calderwood & Harkness LLP total fees billed:** $1,931,000 (comprising $1,247,600 pre-stay and $683,400 during the dormancy/FCC phase) - **Ellsworth Economic Consulting (Dr. Narasimhan):** $412,000 - **Torrence Policy Group (Dr. Berger):** $187,500 (we expect a modest increase given hearing preparation and post-hearing briefing support) - **Candela discovery Solutions:** $294,000 (in maintenance mode during the st

All invoicing remains within the blended rate cap of $925/hour and the monthly ceiling of $275,000 per the engagement terms (Ref. No. C&H-2022-ATR-00419). I will provide a more detailed budget projection in the upcoming Q1 2024 quarterly report.

- Draft and file post-hearing brief (due March 15, 2024) - Draft and file reply brief (due April 12, 2024) - Continue monitoring FCC docket for ALJ Fenwick's initial decision - File next joint status report with Judge Wentworth - Stand ready to reactivate district court proceedings when warranted

James, Catherine — I would be happy to schedule a call at your convenience to discuss the hearing in greater detail. A more comprehensive written assessment will be included in the post-hearing brief itself and in the Q1 2024 quarterly client report, which we will circulate separately.

Please do not hesitate to reach out with any questions in the meantime.

Elaine Forsythe Partner Calderwood & Harkness LLP 1200 K Street NW, Suite 900 Washington, D.C. 20005 eforsythe@calderwoodharkness.com

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