Contract analysis

I. Purpose and Scope of Memorandum This memorandum is prepared to guide the comprehensive preparation of Northgate Networks America Inc. ("NNA") witnesses for the three-day FCC evidentiary hearing before Administrative Law Judge Robert Fenwick, currently scheduled for January 22–24, 2024, in FCC Docket No. WC-23-0042. The hearing arises from a complaint filed by Ridgepoint Communications Inc. ("Ridgepoint") on Februa

II. Witness Identification and Hearing Schedule A. Northgate Fact Witnesses NNA will present two fact witnesses at the FCC evidentiary hearing. Each witness has been selected based on her or his direct knowledge of the facts at issue and her or his ability to speak authoritatively to the key themes identified in Section III below.

1. Diane Okoro — U.S. President, Northgate Networks America Inc. Name: Diane Okoro Title: U.S. President, Northgate Networks America Inc. Business Address: 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, VA 22182 Role and Relevance: Ms. Okoro is the senior business executive responsible for all of NNA's U.S. operations, including commercial strategy, wholesale partnerships, and facility management. Ms. Okoro

2. Patrick Salazar — Chief Regulatory Officer, Northgate Telecommunications PLC Name: Patrick Salazar Title: Chief Regulatory Officer, Northgate Telecommunications PLC Business Address: 14 Broadwall Lane, London SE1 9PQ, United Kingdom. Mr. Salazar also maintains a U.S. office at NNA's headquarters at 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, VA 22182. Role and Relevance: Mr. Salazar is the senior regu

3. Dr. Anton Berger — Senior Advisor, Torrence Policy Group LLC Name: Dr. Anton Berger Title: Senior Advisor, Torrence Policy Group LLC Business Address: 7925 Jones Branch Drive, Suite 510, McLean, VA 22102 Background: Dr. Berger is a former Deputy Bureau Chief of the FCC's Wireline Competition Bureau, where he served for approximately eight years prior to entering the private sector. He is widely recognized as an au

III. Key Themes for All Witnesses The following six themes should be woven throughout the testimony of each NNA witness. These themes have been developed to align with NNA's Answer and Affirmative Defenses, the Pre-Hearing Brief, and the broader defense strategy in the stayed district court antitrust action. Each witness will address these themes from a different vantage point — Ms. Okoro from a business and commerci

IV. Witness Preparation Outline — Diane Okoro A. Background and Qualifications Ms. Diane Okoro serves as U.S. President of Northgate Networks America Inc., a position she has held since March 2018. In this role, she is responsible for all aspects of NNA's U.S. operations, including commercial strategy, wholesale and enterprise sales, network planning and engineering, facility management, and regulatory affairs. She r

1. Genesis and Rationale of the Wholesale Access Policy (WAP) Ms. Okoro will testify that the Wholesale Access Policy was adopted in January 2020 following an internal operational review that commenced in the third quarter of 2019. The review was prompted by growing demand for colocation access at NNA's key facilities, particularly in the Mid-Atlantic corridor, and the recognition that NNA's finite physical infrastru

2. Ridgepoint's Interconnection Requests Ms. Okoro will testify that between March 2021 and August 2022, Ridgepoint submitted interconnection and physical colocation requests for fourteen specific NNA central-office and meet-me-room facilities located in the Mid-Atlantic corridor. Each request sought physical colocation access — i.e., the right to install Ridgepoint's own equipment within NNA's facilities — in order

3. The Prior MIA and Its Non-Renewal Ms. Okoro will testify regarding the history of NNA's commercial relationship with Ridgepoint, which was governed by a Master Interconnection Agreement dated June 15, 2015. The MIA authorized Ridgepoint to maintain physical colocation at three specific NNA facilities in northern Virginia. It is critical for Ms. Okoro to establish that the MIA was limited in scope — it covered only

4. Nondiscriminatory Application of WAP Ms. Okoro will testify that the WAP was applied in a nondiscriminatory manner to all wholesale colocation partners and prospective partners. She will present evidence that during the relevant period (March 2021 through August 2022): (a) Wholesale partners whose annual revenue commitment met or exceeded the $5 million threshold were granted colocation access at facilities where

5. Competitive Landscape Ms. Okoro will testify regarding the competitive environment in which NNA operates in the Philadelphia–Baltimore–Washington, D.C. corridor. She will describe the multiple alternative providers of enterprise fiber-optic transport, cable-based business internet, fixed wireless access, and wholesale ethernet services available to end users and competitive carriers in the region. NNA does not enj

1. Timing of WAP Adoption Relative to Ridgepoint Requests We expect Ms. Hargrove to suggest that the WAP was adopted in January 2020 specifically to create a pretext for denying Ridgepoint new colocation access after the MIA expired on June 14, 2020. The argument is that NNA saw the MIA expiration coming and crafted the WAP to provide a facially neutral justification for excluding Ridgepoint from the fourteen facilit

2. Internal Communications Regarding Ridgepoint We expect HWB to question Ms. Okoro about any internal emails, memoranda, or other communications in which Ridgepoint is mentioned by name in connection with the WAP adoption process. This line of questioning is designed to suggest that NNA had Ridgepoint specifically in mind when designing the WAP, particularly the $5 million threshold. Preparation: Ms. Okoro must be t

3. Revenue Threshold Justification We expect HWB to challenge the $5 million minimum revenue commitment as arbitrary or pretextual. The cross-examination will likely focus on why $5 million — as opposed to $3 million, or $2 million — was selected, with the implication that the threshold was calibrated precisely to exclude Ridgepoint (whose annual spend was approximately $1.8 million) while retaining larger partners.

4. Capacity Utilization Data We expect HWB to challenge the assertion that all fourteen facilities were at or above 85% capacity utilization. Ridgepoint may present alternative data or analyses suggesting that certain facilities had available capacity that could have been allocated to Ridgepoint. For example, Ridgepoint may argue that NNA's "85%" figure includes capacity reserved for future NNA use or planned network

5. Impact on Ridgepoint's Business We expect HWB to ask questions designed to elicit admissions that NNA's refusal to grant colocation access prevented Ridgepoint from competing effectively in the Mid-Atlantic corridor. These questions may reference specific customers that Ridgepoint allegedly lost or failed to win because of the inability to interconnect with NNA at the fourteen facilities. Preparation: Ms. Okoro sh

6. Prior Course of Dealing We expect HWB to use the history of the NNA-Ridgepoint relationship at the three northern Virginia facilities to argue that a broader pattern of dealing existed that should extend to the fourteen disputed facilities. The argument will be that Ridgepoint had an established business relationship with NNA that created expectations of ongoing access, and that NNA's refusal to extend that relati

V. Witness Preparation Outline — Patrick Salazar A. Background and Qualifications Mr. Patrick Salazar serves as Chief Regulatory Officer of Northgate Telecommunications PLC, a position he has held since July 2016. In this role, he has global responsibility for regulatory strategy and compliance across Northgate's operations, with a particular focus on U.S. regulatory matters given NNA's significance as the Group's la

1. Regulatory Framework Overview Mr. Salazar will provide foundational testimony regarding NNA's status as an incumbent local exchange carrier in certain service areas and its resulting obligations under Sections 251 and 252 of the Communications Act. He will explain the distinction between the mandatory interconnection and colocation obligations imposed by Section 251(c) — including the unbundling obligations under

2. WAP Compliance with Regulatory Requirements Mr. Salazar will testify that before the WAP was adopted in January 2020, his regulatory affairs team conducted a thorough assessment of whether the proposed policy was consistent with FCC regulations governing NNA's interconnection obligations. The assessment concluded that the $5 million minimum revenue commitment was commercially reasonable and did not conflict with a

3. Capacity Utilization and Engineering Constraints Mr. Salazar will present the capacity utilization data for each of the fourteen disputed facilities. This is a critical area of testimony, as Ridgepoint's complaint rests in part on the contention that NNA had available capacity at some or all of the fourteen facilities and chose to deny Ridgepoint access for anticompetitive reasons rather than legitimate capacity c

4. Prior MIA and Regulatory History Mr. Salazar will provide detailed testimony regarding the MIA dated June 15, 2015. He will confirm that the MIA governed interconnection and physical colocation at three specific facilities in northern Virginia and that the agreement expired by its own terms on June 14, 2020. He will emphasize that the MIA was a voluntary commercial agreement — it was not mandated by the FCC or any

5. Ridgepoint's FCC Complaint Allegations Mr. Salazar will address each of the specific allegations in Ridgepoint's FCC complaint, as refined in Ridgepoint's Pre-Hearing Brief, and will testify that NNA has complied with all applicable interconnection obligations. He will specifically address each of NNA's affirmative defenses: (a) Affirmative Defense 1: The fourteen disputed facilities are not subject to the unbundl

6. Coordination with FCC Staff To the extent applicable and non-privileged, Mr. Salazar will testify regarding NNA's interactions with FCC Staff concerning NNA's interconnection practices. He will describe NNA's track record of regulatory compliance, its responsiveness to FCC Staff inquiries, and its cooperative approach to regulatory matters. This testimony is designed to demonstrate that NNA is a responsible regula

1. Scope of Section 251 Obligations We expect Ms. Hargrove to press Mr. Salazar on whether NNA's obligations under Section 251(c) — and specifically Section 251(c)(6), which addresses colocation — extend to the fourteen disputed facilities and require NNA to provide colocation access to Ridgepoint. This is the core regulatory question in the case, and Mr. Salazar should expect detailed and aggressive questioning on t

2. WAP as Pretext Similar to the anticipated cross-examination of Ms. Okoro, we expect HWB to challenge Mr. Salazar on whether the WAP was adopted as a regulatory end-run — a facially neutral policy designed to circumvent NNA's interconnection obligations and deny Ridgepoint access under the guise of commercial reasonableness. Preparation: Mr. Salazar should emphasize the thoroughness of the commercial reasonableness

3. Capacity Data Accuracy We expect Ridgepoint to challenge the ≥85% utilization figures with alternative data or calculations. Ridgepoint may present its own engineering analysis or the testimony of a third-party expert suggesting that certain facilities had available capacity below the 85% threshold. Preparation: Mr. Salazar must be thoroughly prepared to defend NNA's capacity measurement methodology. He should be

4. Comparison to Other Carriers We expect HWB to ask whether NNA granted colocation access to other carriers at any of the fourteen disputed facilities during the same period in which it denied Ridgepoint's requests (March 2021 through August 2022). If NNA did grant access to other carriers at those locations, HWB will use this to argue that NNA's capacity constraints were not genuine or that the WAP was applied in a

5. FCC Precedent We expect Ms. Hargrove to cite specific FCC orders in which the Commission or an ALJ required an ILEC to provide colocation access in circumstances that Ridgepoint will argue are analogous to the present case. These orders may involve similar capacity constraints, similar revenue thresholds, or similar refusal-to-deal claims. Preparation: Mr. Salazar should be prepared to distinguish any FCC orders c

6. Declaration in District Court We expect HWB to reference Mr. Salazar's March 6, 2023 Declaration filed in support of NNA's Motion to Stay in the district court action. HWB will scrutinize the Declaration for any statement that is inconsistent with Mr. Salazar's hearing testimony or that can be used to extract admissions favorable to Ridgepoint's position. Preparation: Mr. Salazar's hearing testimony must be comple

VI. Witness Preparation Outline — Dr. Anton Berger (Expert Witness) A. Background and Qualifications Dr. Anton Berger is a Senior Advisor at the Torrence Policy Group LLC, located at 7925 Jones Branch Drive, Suite 510, McLean, Virginia 22102. Prior to joining Torrence, Dr. Berger served as Deputy Bureau Chief of the FCC's Wireline Competition Bureau, a position he held for approximately eight years. In that capacity,