Contract analysis

I. INTRODUCTION AND PERSONAL BACKGROUND

1. I am the Chief Regulatory Officer of Northgate Telecommunications PLC ("Northgate" or the "Company"). I submit this declaration in support of the Motion to Stay Pending Resolution of FCC Proceeding (the "Motion to Stay") filed concurrently herewith by Defendants Northgate Telecommunications PLC and Northgate Networks America Inc. (collectively, "Defendants"). I have personal knowledge of the facts stated herein, e

2. In my capacity as Chief Regulatory Officer, I am responsible for overseeing Northgate's regulatory compliance and government affairs across all jurisdictions in which Northgate operates, including the United States, the United Kingdom, and the various other international markets in which the Company maintains a presence. My responsibilities encompass oversight of Northgate's interactions with the Federal Communica

3. I report directly to Sir Malcolm Prentice, KBE, Chief Executive Officer of Northgate Telecommunications PLC. In connection with both the regulatory and legal matters at issue in this declaration, I coordinate closely with James Whitford, Group General Counsel of Northgate Telecommunications PLC, and Catherine Ng, U.S. Deputy General Counsel of Northgate Networks America Inc. Through these reporting relationships a

4. I have held the position of Chief Regulatory Officer since January 2017. Prior to assuming this role, I served as Vice President of Regulatory Affairs at Northgate Networks America Inc. from 2012 to 2016, during which time I was responsible for managing the Company's regulatory filings and proceedings before the FCC and various state commissions along the eastern seaboard. Before joining Northgate, I held position

5. I am thoroughly familiar with the matters at issue in both this litigation and the parallel FCC proceeding designated as Docket WC-23-0042 (the "FCC Proceeding"). I have been directly involved in the Company's evaluation of interconnection requests from Ridgepoint Communications Inc. ("Ridgepoint"), the development and implementation of the Wholesale Access Policy discussed below, and the preparation of Northgate'

II. OVERVIEW OF NORTHGATE'S BUSINESS AND NETWORK

6. Northgate Telecommunications PLC is a public limited company organized and existing under the laws of England and Wales, registered with Companies House under Company Number 07824561, and headquartered at 14 Broadwall Lane, London SE1 9PQ, United Kingdom. Northgate was originally incorporated in 2003 and has grown, both organically and through strategic acquisitions, into one of the largest facilities-based teleco

7. Northgate's American Depositary Receipts ("ADRs") are listed on the Nasdaq Global Select Market under the ticker symbol "NTP." As of September 30, 2022, Northgate's market capitalization was approximately $11.3 billion. The Company's shares are also listed on the London Stock Exchange. Northgate is a constituent of the FTSE 250 Index and is widely held by institutional investors on both sides of the Atlantic.

8. Northgate operates in the United States through its wholly owned subsidiary, Northgate Networks America Inc. ("NNA"), a corporation organized and existing under the laws of the State of Delaware, with its principal offices located at 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, Virginia 22182. NNA's Employer Identification Number is 54-3298176. NNA is the operating entity responsible for Northgate's U.

9. NNA owns and operates approximately 42,000 route-miles of fiber-optic backbone and metro-ring infrastructure across 18 U.S. states, with the densest concentration of network assets located along the eastern seaboard from Massachusetts to Virginia. This infrastructure includes long-haul inter-city fiber routes, metropolitan-area ring networks, and last-mile access facilities connecting enterprise customers and carr

10. In addition to its core transport and connectivity services, NNA offers enterprise cloud-connectivity services and Software-as-a-Service ("SaaS") based network management platforms marketed under the trade name NorthgateOS™. NorthgateOS™ enables enterprise customers and wholesale partners to provision, monitor, and manage their network connections through a centralized, web-based portal. These value-added service

11. For the fiscal year ended December 31, 2022, Northgate reported consolidated group revenue of approximately £4.87 billion (approximately $5.96 billion at prevailing exchange rates). Of this total, U.S. revenue generated through NNA was approximately $2.41 billion, representing approximately 40.4% of the Northgate group's consolidated revenue. The United States is, by a significant margin, Northgate's largest sing

III. THE 14 DISPUTED FACILITIES

12. Ridgepoint's Complaint in this action (Dkt. 1, filed September 12, 2022) and Ridgepoint's FCC complaint filed on February 7, 2023, in Docket WC-23-0042 both concern Northgate's denial of interconnection and physical colocation requests at 14 specific Northgate central-office and meet-me-room facilities (the "14 Disputed Facilities" or the "Disputed Facilities"). These 14 facilities are located within the Philadel

13. The 14 Disputed Facilities, together with their street addresses, are as follows: 1. 401 N. Broad Street, Philadelphia, Pennsylvania 19108 2. 1500 Spring Garden Street, Philadelphia, Pennsylvania 19130 3. 100 Delancey Place, Cherry Hill, New Jersey 08034 4. 220 S. Warren Street, Trenton, New Jersey 08608 5. 700 E. Pratt Street, Baltimore, Maryland 21202 6. 1 W. Fayette Street, Baltimore, Maryland 21201 7. 33 S. G

14. These 14 facilities serve as critical infrastructure nodes within Northgate's Mid-Atlantic fiber network. They function as aggregation points, traffic exchange hubs, and meet-me-room locations where Northgate's backbone and metro-ring fiber routes converge and where wholesale and enterprise customers interconnect with Northgate's network. Several of these facilities are located in major carrier hotel and data cen

15. At the time Ridgepoint submitted its interconnection and colocation requests for the Disputed Facilities — a period spanning from approximately March 2021 through August 2022, as described in greater detail below — each of the 14 facilities was at or above 85% capacity utilization. This capacity utilization figure refers to the percentage of available physical rack space, power capacity, and cross-connect infrast

IV. NORTHGATE'S WHOLESALE ACCESS POLICY

16. In January 2020, Northgate adopted its Wholesale Access Policy (the "WAP"), an internal policy governing third-party physical colocation access and new interconnection arrangements at Northgate-owned and Northgate-operated facilities in the United States. The WAP was developed by NNA's Wholesale Strategy group in consultation with the Company's Network Planning, Finance, and Legal departments. I participated in t

17. As relevant here, the WAP restricts new colocation and interconnection arrangements at capacity-constrained Northgate facilities to existing wholesale partners that maintain minimum annual revenue commitments of $5 million per year with NNA. This revenue threshold was established based on an analysis of NNA's wholesale customer portfolio, projected network capacity requirements, and the cost of accommodating new

18. The WAP was adopted as a legitimate business decision to optimize Northgate's limited facility capacity for higher-value wholesale relationships, particularly in light of the growing demand on Northgate's network infrastructure in the Mid-Atlantic corridor. During the period from 2018 through 2020, NNA experienced a significant increase in demand for colocation and interconnection services at its facilities along

19. For the fiscal year ended December 31, 2021, Ridgepoint's aggregate annual spend with Northgate — including all transport, colocation, and ancillary service charges billed by NNA to Ridgepoint — was approximately $1.8 million. This figure was below the $5 million minimum annual revenue commitment threshold established by the WAP. Ridgepoint's spend had been relatively consistent at this level for several years an

20. Between approximately March 2021 and August 2022, Ridgepoint submitted interconnection and physical colocation requests for each of the 14 Disputed Facilities identified in Section III above. Each request was processed through NNA's standard wholesale provisioning workflow, reviewed by the relevant facility management teams, and evaluated against the criteria established by the WAP. Northgate declined each of the

21. Northgate's declination letters were prepared by NNA's Wholesale Services team, reviewed by the U.S. Deputy General Counsel, and sent to Ridgepoint's designated contact in the ordinary course. I reviewed each declination letter prior to issuance. Each letter identified the specific grounds for the denial and offered Ridgepoint the opportunity to discuss alternative arrangements, including the possibility of reach

V. PRIOR COURSE OF DEALING WITH RIDGEPOINT

22. Northgate and Ridgepoint have a prior commercial relationship that predates the events giving rise to this litigation and the FCC Proceeding. On June 15, 2015, Northgate Networks America Inc. and Ridgepoint Communications Inc. entered into a Master Interconnection Agreement (the "MIA"), a copy of which is maintained in NNA's contract management system and which I have reviewed. Under the MIA, Ridgepoint was grant

23. The three facilities at which Ridgepoint was granted colocation under the MIA were located in northern Virginia. These three facilities are distinct from, and should not be confused with, the 14 Disputed Facilities that are the subject of this litigation and the FCC Proceeding. Northgate has never had a colocation or interconnection arrangement with Ridgepoint at any of the 14 Disputed Facilities. The record of R

24. The MIA had a five-year term and expired by its own terms on June 14, 2020. In the months preceding the expiration of the MIA, Ridgepoint's account representative at NNA initiated discussions with Ridgepoint regarding the potential renewal or replacement of the agreement. Following internal review, and in light of the WAP requirements that had been adopted in January 2020 — approximately five months prior to the

25. Following the expiration of the MIA on June 14, 2020, Ridgepoint continued to occupy the three existing colocation spaces at the northern Virginia facilities under a month-to-month holdover arrangement, as provided for under the MIA's holdover clause. Pursuant to the terms of that clause, the holdover arrangement is subject to a rate premium of 120% of the prior contractual rate. Specifically, the prior contractu

26. I wish to emphasize that the three northern Virginia facilities subject to the expired MIA and the current holdover arrangement are entirely distinct from the 14 Disputed Facilities at issue in this litigation and the FCC Proceeding. At no point prior to March 2021 — when Ridgepoint submitted its first interconnection request for one of the 14 Disputed Facilities — did Northgate maintain any colocation or interco

VI. THE FCC PROCEEDING (DOCKET WC-23-0042) A. Filing and Nature of the FCC Complaint

27. On February 7, 2023, Ridgepoint Communications Inc. filed a formal complaint at the Federal Communications Commission, which was designated as Docket WC-23-0042. The FCC complaint is captioned In the Matter of Northgate Networks America Inc. — Complaint Regarding Interconnection Obligations under Section 251. A copy of the FCC complaint has been produced in this litigation and is publicly available through the FC

28. The FCC complaint alleges that Northgate violated interconnection obligations imposed by Sections 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. §§ 251, 252. Specifically, Ridgepoint alleges that Northgate — either in its capacity as an incumbent local exchange carrier ("ILEC") or as a carrier with a dominant market position in the relevant geographic an

29. The FCC complaint further alleges that Northgate's Wholesale Access Policy, and specifically the $5 million minimum annual revenue commitment threshold, operates as an unreasonable and discriminatory barrier to interconnection that is inconsistent with the pro-competitive objectives of the Telecommunications Act. Ridgepoint seeks, among other things, an order from the FCC directing Northgate to provide interconne

30. The FCC Proceeding has been assigned to Administrative Law Judge Robert Fenwick of the FCC's Office of Administrative Law Judges. ALJ Fenwick is an experienced adjudicator with significant expertise in telecommunications regulatory matters, including interconnection disputes and network access proceedings under Sections 251 and 252. B. Overlap Between the FCC Complaint and the District Court Action

31. The factual core of the FCC complaint is substantially identical to the factual core of Ridgepoint's Section 2 Sherman Act claim in this Court. Although the legal frameworks differ — the FCC proceeding involves regulatory obligations under the Communications Act, while this action involves antitrust liability under the Sherman Act — the underlying factual allegations and the evidentiary record necessary to resolv

32. Both proceedings arise from the same conduct: Northgate's denial of Ridgepoint's interconnection and physical colocation requests at the same 14 facilities in the Philadelphia–Baltimore–Washington, D.C. corridor. Both proceedings involve the same time period, the same requests, and the same Northgate declination decisions. The factual predicate is not merely similar — it is, for all practical purposes, identical.

33. Both proceedings involve a challenge to the same Wholesale Access Policy adopted by Northgate in January 2020. Ridgepoint contends — in both the FCC Proceeding and in this Court — that the WAP's $5 million minimum revenue commitment threshold is unreasonable and exclusionary. The FCC complaint characterizes the WAP as a violation of regulatory interconnection obligations, while the Complaint in this action charac

34. Both proceedings require a detailed analysis of Northgate's capacity constraints at the 14 Disputed Facilities. In both the FCC Proceeding and in this action, Ridgepoint challenges Northgate's assertion that the 14 facilities were at or above 85% capacity utilization at the time of Ridgepoint's requests, and disputes whether capacity constraints provide a legitimate justification for Northgate's denial of access.

35. Both proceedings involve the same prior course of dealing under the expired MIA — executed June 15, 2015, expired June 14, 2020 — and the same month-to-month holdover arrangement at the three northern Virginia facilities. Ridgepoint's theories of liability in both proceedings rely, in part, on the contention that the prior commercial relationship between the parties gives rise to an obligation (whether regulatory

36. In sum, Ridgepoint's allegations in both the FCC Proceeding and in this Court center on a single core question: whether Northgate's refusal to grant Ridgepoint interconnection and colocation access at the 14 Disputed Facilities constitutes unlawful exclusionary or anticompetitive conduct. The legal labels may differ — "violation of interconnection obligations" before the FCC, "monopolization" before this Court —

37. The Federal Communications Commission possesses specialized expertise in administering and adjudicating disputes arising under Sections 251 and 252 of the Communications Act. Congress entrusted the FCC with primary responsibility for implementing the interconnection framework established by the Telecommunications Act of 1996, including the promulgation of rules governing the obligations of incumbent local exchang

38. Section 251 of the Communications Act imposes specific interconnection obligations on telecommunications carriers, with heightened obligations applicable to ILECs. These obligations include the duty to negotiate in good faith the terms and conditions of interconnection agreements, the duty to provide interconnection at any technically feasible point within the carrier's network, and the duty to provide nondiscrim

39. The FCC complaint in Docket WC-23-0042 raises several key regulatory questions that are directly relevant to the antitrust claim pending before this Court. These include: (a) Whether Northgate is properly classified as an ILEC or is otherwise subject to Section 251 interconnection obligations at the 14 Disputed Facilities. This question involves an analysis of Northgate's regulatory status with respect to each of

40. Each of these questions requires the application of specialized technical and policy expertise that the FCC possesses by virtue of its statutory mandate and decades of experience administering the telecommunications regulatory framework. This Court, while fully competent to adjudicate the antitrust claims before it, would benefit significantly from the FCC's authoritative resolution of these regulatory issues bef

41. The FCC's resolution of Docket WC-23-0042 may be dispositive of, or materially inform, the central issues in the district court action. The relationship between the regulatory and antitrust inquiries in this case is not incidental — it is fundamental. Ridgepoint's Section 2 Sherman Act claim is premised on the theory that Northgate's refusal to deal with Ridgepoint at the 14 Disputed Facilities constitutes monopo

42. If the FCC determines that Northgate has no interconnection obligation at the 14 Disputed Facilities under Sections 251 and 252 — for example, because Northgate is not classified as an ILEC at those locations, or because the facilities are not subject to physical colocation requirements under the applicable rules — that finding would significantly undermine Ridgepoint's Section 2 refusal-to-deal theory. The Supre

43. Conversely, if the FCC finds that Northgate violated its regulatory obligations under Sections 251 and 252 by refusing to provide interconnection and colocation access at the 14 Disputed Facilities, the scope and nature of the FCC's remedial order may directly affect the relief available in this Court. An FCC order directing Northgate to provide access on specified terms and conditions could moot or substantially

44. The FCC's characterization of the relevant competitive landscape and Northgate's market position within the regulatory framework will bear directly on market definition — a contested issue in this action. Ridgepoint's expert, Dr. Leonard Kuo of Cavendish University, has proffered a narrow market definition under which Northgate is alleged to hold approximately 68% of the relevant market. Northgate contends that t

45. In light of the foregoing, the resolution of the FCC Proceeding has the potential either to dispose of or to materially narrow the issues before this Court. Allowing the FCC to develop its factual record and issue its determination before this Court proceeds to discovery, dispositive motions, or trial will promote the efficient and informed resolution of the antitrust claims. E. Status of the FCC Proceeding

46. As of the date of this declaration, March 6, 2023, the FCC Proceeding in Docket WC-23-0042 is in its early stages. Ridgepoint's FCC complaint was filed on February 7, 2023, less than one month before the date of this declaration. ALJ Fenwick has been assigned to the proceeding but has not yet issued a scheduling order establishing deadlines for responsive pleadings, discovery, or the evidentiary hearing. Northgat

47. Northgate expects to file its Answer and Affirmative Defenses in the FCC Proceeding in accordance with the schedule to be established by ALJ Fenwick, and anticipates doing so shortly after the scheduling order is issued. Northgate intends to fully participate in the FCC Proceeding and to contest both the factual allegations and the legal theories advanced by Ridgepoint in that forum.

48. Based on my experience with FCC adjudicatory proceedings, I expect that the FCC Proceeding will involve a full evidentiary hearing before ALJ Fenwick, including witness testimony from both fact and expert witnesses, the submission and exchange of documentary evidence, and comprehensive briefing on the legal and regulatory issues. This process will develop a detailed factual record on the very regulatory and compe

VII. RISK OF INCONSISTENT OUTCOMES

49. If both the FCC Proceeding and this district court action continue simultaneously on parallel tracks, there is a substantial risk of inconsistent factual findings and legal conclusions arising from the two proceedings. This risk is not hypothetical or speculative — it flows directly from the extensive overlap between the two proceedings, as described in detail in Section VI.B above.

50. The FCC may reach conclusions about Northgate's interconnection obligations — including whether Northgate is subject to Section 251 obligations at the 14 Disputed Facilities, and if so, whether Northgate has violated those obligations — that are inconsistent with this Court's findings on overlapping issues. For example, the FCC may find that the Wholesale Access Policy is commercially reasonable and consistent wi

51. Similarly, the FCC's analysis of the competitive dynamics of the Mid-Atlantic fiber market — including questions of market definition, market share, and the availability of competitive alternatives — may differ from this Court's analysis of those same issues in the antitrust context. The risk that two governmental bodies will reach conflicting conclusions on the same factual and economic questions, based on overl

52. A stay will avoid this risk and promote consistency between regulatory and judicial determinations. The Supreme Court has long recognized that considerations of wise judicial administration counsel in favor of staying district court proceedings where a specialized federal agency is actively considering the same or closely related issues. See, e.g., Reiter v. Cooper, 507 U.S. 258, 268–69 (1993); Primary Jurisdicti

VIII. PREJUDICE CONSIDERATIONS