1022-00001 · Northgate Networks America Inc · Expert-Related

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CALDERWOOD & HARKNESS LLP Attorneys at Law

1200 K Street NW, Suite 900 Washington, D.C. 20005

Telephone: (202) 555-7100 Facsimile: (202) 555-7199 www.calderwoodharkness.com

October 7, 2022

VIA HAND DELIVERY AND ELECTRONIC MAIL

Dr. Anton Berger Senior Advisor Torrence Policy Group LLC 7925 Jones Branch Drive, Suite 510 McLean, VA 22102

PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT

Re: Retention as Regulatory Expert — Ridgepoint Communications Inc. v. Northgate Telecommunications PLC and Northgate Networks America Inc., Case No. 1:22-cv-01487-CMW (E.D. Va.); and In the Matter of Northgate Networks America Inc. — Complaint Regarding Interconnection Obligations under Section 251, FCC Docket No. WC-23-0042

Engagement Letter Reference No. C&H-2022-ATR-00419

Dear Dr. Berger:

Thank you for the time you and your colleagues at Torrence Policy Group LLC have devoted to our preliminary discussions regarding the above-referenced matters. We are pleased to formalize the terms of your retention as a regulatory expert on behalf of our clients, as set forth in detail below. This letter constitutes the binding agreement between Calderwood & Harkness LLP and Torrence Policy Group LLC governing the engagement.

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SECTION 1: INTRODUCTION AND PURPOSE OF RETENTION

Calderwood & Harkness LLP ("C&H" or the "Firm") represents Northgate Telecommunications PLC ("Northgate" or "NTP"), a public limited company incorporated under the laws of England and Wales (Company No. 07824561), and its wholly-owned U.S. operating subsidiary, Northgate Networks America Inc. ("NNA"), a Delaware corporation (EIN 54-3298176), headquartered at 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, Virginia 22182. As used herein, "Northgate" refers collectively to NTP and NNA unless the context requires otherwise.

The engagement partner responsible for this matter is Elaine Forsythe, Responsible Partner, Antitrust & Competition Group, Calderwood & Harkness LLP, Washington, D.C. Ms. Forsythe serves as the primary point of contact for all substantive and strategic aspects of the retention.

The client, through its U.S. Deputy General Counsel, Catherine Ng, has authorized the retention of you, Dr. Anton Berger, and your firm, Torrence Policy Group LLC ("Torrence" or "Ridgeway Partners"), as a regulatory expert in connection with the above-referenced proceedings. Ms. Ng's authorization was communicated to C&H in writing on September 28, 2022, and a copy of that authorization letter is maintained in the engagement file.

We understand that your qualifications for this engagement are substantial and directly relevant to the matters at hand. You served for approximately seven years as Deputy Bureau Chief of the Federal Communications Commission's Wireline Competition Bureau, where you were responsible for overseeing interconnection policy, unbundled network element ("UNE") proceedings, and the implementation of the local competition provisions of the Telecommunications Act of 1996. Since departing the FCC in 2016, you have served as Senior Advisor at Torrence Policy Group LLC, a regulatory consulting firm specializing in telecommunications, broadband, and spectrum policy. You have been retained as a regulatory expert in more than twenty federal and state proceedings involving interconnection, unbundling, and access obligations, and you have submitted written testimony or expert declarations in proceedings before the FCC, the United States District Courts for the District of Columbia and the Southern District of New York, and state public utility commissions in Virginia, Maryland, Pennsylvania, and New Jersey.

This retention letter (the "Letter") sets forth the terms and conditions governing your engagement. This Letter supersedes any and all prior informal understandings, oral agreements, email exchanges, or other communications between or among C&H, Torrence, Dr. Berger, Northgate, or NNA regarding the scope, terms, or conditions of this engagement. No prior understanding or agreement, whether written or oral, shall have any force or effect except to the extent expressly incorporated herein.

SECTION 2: BACKGROUND OF THE MATTERS

To provide context for the scope of your engagement, we set forth below a summary of the two proceedings in which your expert services are required, together with a description of the underlying conduct at issue.

2.1 District Court Litigation

On September 19, 2022, Ridgepoint Communications Inc. ("Ridgepoint"), a Delaware corporation headquartered at 3500 Market Street, Suite 700, Philadelphia, Pennsylvania 19104, filed a complaint against Northgate Telecommunications PLC and Northgate Networks America Inc. in the United States District Court for the Eastern District of Virginia, Alexandria Division. The case has been assigned Case No. 1:22-cv-01487-CMW and is presently before the Honorable Claudia M. Wentworth, United States District Judge.

Ridgepoint is a competitive local exchange carrier ("CLEC") and enterprise broadband provider operating in the Commonwealth of Pennsylvania, the State of New Jersey, the State of Delaware, the State of Maryland, and the Commonwealth of Virginia. Ridgepoint owns and leases approximately 6,200 route-miles of fiber-optic network infrastructure in the Mid-Atlantic region and reported fiscal year 2022 revenue of approximately $387 million. As of the date of the complaint, Ridgepoint employed approximately 1,450 individuals across its service territory.

Ridgepoint is majority-owned by Caravel Capital Partners LP ("Caravel"), a private equity firm headquartered in New York, New York, which acquired a 78% equity interest in Ridgepoint through a leveraged buyout transaction completed in November 2018. The transaction was valued at approximately $510 million. The remaining 22% equity interest is held by the Trent family, principally Gregory Trent, who serves as Chief Executive Officer and is the founder of Ridgepoint.

Ridgepoint is represented in both the district court litigation and the FCC proceeding by Hargrove, Winslow & Burke LLP ("HWB"), with lead partner Victoria Hargrove and senior associate Daniel Stoyanov serving as counsel of record.

The complaint asserts a single count under Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, alleging that Northgate's refusal to provide interconnection and physical colocation access at fourteen (14) specific Northgate central-office and meet-me-room facilities in the Mid-Atlantic region constitutes unlawful monopolization of one or more relevant markets for wholesale fiber-optic transport and last-mile interconnection services. The complaint seeks injunctive relief, treble damages, costs, and attorneys' fees.

Northgate owns and operates approximately 42,000 route-miles of fiber-optic backbone and metro-ring infrastructure across eighteen (18) U.S. states and the District of Columbia. NNA is the entity through which Northgate conducts substantially all of its U.S. operations, including wholesale and enterprise fiber-optic transport, colocation, and interconnection services.

The procedural history of the district court case is as follows. C&H entered its appearance on behalf of Northgate and NNA on October 3, 2022. On November 14, 2022, Northgate filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and, in the alternative, a Motion to Stay pending the resolution of a parallel proceeding before the Federal Communications Commission. On March 14, 2023, Judge Wentworth issued an Order granting Northgate's Motion to Stay and denying the Motion to Dismiss without prejudice, with leave to renew the motion upon the lifting of the stay. Judge Wentworth's Order stated that the FCC's resolution of the interconnection and colocation issues would materially inform the district court's analysis of the Section 2 claim and that principles of primary jurisdiction and judicial economy counseled in favor of a stay. The case is currently dormant in the district court, and no discovery has been taken.

2.2 FCC Proceeding

On February 7, 2023, Ridgepoint filed a formal complaint at the Federal Communications Commission, styled In the Matter of Northgate Networks America Inc. — Complaint Regarding Interconnection Obligations under Section 251, assigned FCC Docket No. WC-23-0042. The complaint alleges that Northgate violated its interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. §§ 251, 252, by refusing to negotiate interconnection agreements in good faith, by denying reasonable requests for physical colocation at the fourteen (14) disputed facilities, and by imposing unreasonable conditions and pricing terms that effectively foreclosed Ridgepoint's access to Northgate's network.

The proceeding has been assigned to Administrative Law Judge Robert Fenwick. ALJ Fenwick issued a scheduling order on June 12, 2023, establishing deadlines for the exchange of pre-filed testimony, discovery, and the evidentiary hearing. The evidentiary hearing was originally scheduled for September 2023, but was postponed to January 2024 due to staffing constraints within the FCC's Administrative Law Judge Division. The evidentiary hearing was held on January 22, 23, and 24, 2024, at the FCC's headquarters in Washington, D.C. Post-hearing initial briefs were filed by both parties on March 15, 2024, and reply briefs were filed on April 12, 2024. As of the date of this Letter, ALJ Fenwick's initial decision remains pending.

2.3 The Conduct at Issue

The factual allegations common to both proceedings center on a series of interconnection and colocation requests submitted by Ridgepoint to Northgate between March 2021 and August 2022. During this period, Ridgepoint submitted formal requests for interconnection and physical colocation at fourteen (14) Northgate facilities located along the Philadelphia–Baltimore–Washington, D.C. corridor. A complete list of the fourteen (14) disputed facilities, including street addresses, is attached hereto as Appendix A.

Northgate declined each of Ridgepoint's requests, citing three principal justifications:

(a) Capacity constraints. Northgate asserted that each of the fourteen (14) facilities was operating at or above 85% utilization of available colocation space, power, and HVAC capacity, rendering the accommodation of additional colocation tenants impracticable without material capital expenditure and potential degradation of service to existing customers.

(b) Absence of prior course of dealing. Northgate noted that Ridgepoint had no prior colocation or interconnection arrangement at any of the fourteen (14) specific facilities at issue, and that Northgate's existing relationships with wholesale customers at those locations had been established over a period of many years.

(c) Wholesale Access Policy ("WAP"). Northgate relied upon its Wholesale Access Policy, adopted in January 2020, which restricts third-party physical colocation at Northgate facilities to existing wholesale partners that maintain minimum annual revenue commitments of $5,000,000 (five million dollars) with Northgate. Ridgepoint's aggregate annual spend with Northgate was approximately $1,800,000 (one million eight hundred thousand dollars) in fiscal year 2021, substantially below the WAP threshold.

The parties' prior relationship is relevant to the dispute. On June 15, 2015, Northgate and Ridgepoint entered into a Master Interconnection Agreement (the "MIA") covering three (3) Northgate facilities in northern Virginia. The MIA had a five-year term and expired by its terms on June 14, 2020. Ridgepoint requested renewal of the MIA on substantially similar terms, but Northgate declined to renew under the new WAP, citing Ridgepoint's failure to meet the $5 million annual revenue commitment threshold. Notwithstanding the expiration of the MIA, Ridgepoint continues to occupy the three (3) northern Virginia facilities under a month-to-month holdover arrangement. Under the holdover terms, Ridgepoint pays 120% of the prior contractual rate — specifically, $14,400 per month per facility, compared to the prior rate of $12,000 per month per facility.

SECTION 3: SCOPE OF ENGAGEMENT

The scope of your engagement encompasses the following areas, organized by proceeding and by function.

3.1 Primary Focus — FCC Proceeding (Docket WC-23-0042)

Your primary engagement responsibilities relate to the FCC proceeding. Specifically, your scope of work includes the following:

(a) Interconnection Obligations Analysis. Analysis of Northgate's interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. §§ 251, 252. This analysis should address the nature and extent of any duty Northgate may have to provide interconnection, physical colocation, or virtual colocation to requesting telecommunications carriers, including CLECs such as Ridgepoint.

(b) Facility-Specific Assessment. Evaluation of whether each of the fourteen (14) disputed facilities identified in Appendix A is subject to unbundling, colocation, or interconnection requirements under applicable FCC rules, orders, and policy statements, including but not limited to the FCC's Triennial Review Order (2003), Triennial Review Remand Order (2005), and subsequent orders addressing the scope of incumbent carrier obligations.

(c) Wholesale Access Policy Review. Assessment of the commercial reasonableness of Northgate's Wholesale Access Policy (WAP), adopted January 2020, under FCC precedent, applicable regulations, and the interconnection framework established by the Telecommunications Act of 1996. This assessment should consider whether the WAP's $5 million annual revenue commitment threshold constitutes an unreasonable barrier to interconnection access or physical colocation.

(d) Capacity Constraints Analysis. Analysis of the capacity constraints cited by Northgate as a justification for denying Ridgepoint's colocation requests at the fourteen (14) facilities. This analysis should consider the engineering data, utilization reports, and facility documentation produced by Northgate, and should evaluate whether the asserted capacity constraints constitute a bona fide justification under FCC rules and applicable precedent.

(e) Precedent Review. Review of FCC precedent regarding incumbent local exchange carrier ("ILEC") interconnection obligations and their applicability to Northgate's fiber-optic backbone and last-mile infrastructure. This review should address the extent to which Northgate, which operates as both an ILEC successor and a competitive fiber provider in certain markets, is subject to the interconnection obligations imposed on ILECs under Section 251(c) of the Communications Act.

(f) Written Testimony and Declarations. Preparation of written testimony and/or expert declarations for submission to ALJ Fenwick in connection with the FCC proceeding. Your pre-filed written testimony was submitted on October 27, 2023, and supplemental declarations may be required in connection with any post-hearing proceedings or supplemental briefing ordered by ALJ Fenwick.

(g) Hearing Testimony. Testimony at the FCC evidentiary hearing, which was held on January 22–24, 2024. You appeared as an expert witness on behalf of Northgate and NNA on January 23, 2024, and were subject to cross-examination by counsel for Ridgepoint.

(h) Post-Hearing Briefing. Assistance with post-hearing initial briefing and reply submissions, including review and comment on draft briefs, identification of relevant regulatory authority, and preparation of any supplemental factual declarations or affidavits as may be required.

(i) FCC Staff Coordination. Coordination with FCC Staff as appropriate regarding procedural and substantive regulatory matters arising in the proceeding, consistent with applicable ex parte rules and the ALJ's scheduling and procedural orders.

3.2 District Court Litigation (Case No. 1:22-cv-01487-CMW)

In the event the stay entered by Judge Wentworth is lifted and the district court litigation proceeds, your engagement will expand to include the following responsibilities:

(a) Expert Testimony. Potential testimony as a regulatory expert in the Eastern District of Virginia, addressing the regulatory framework governing interconnection and colocation in the telecommunications industry and the intersection of FCC regulatory requirements with the antitrust analysis applicable to Ridgepoint's Section 2 claim.

(b) Expert Report. Preparation of an expert report, in compliance with Federal Rule of Civil Procedure 26(a)(2)(B), addressing the regulatory context of the dispute and the intersection of FCC interconnection requirements with the Section 2 refusal-to-deal analysis. The expert report should address, among other things, the regulatory significance (or lack thereof) of Northgate's refusal to provide colocation access, the scope and limits of any regulatory duty to deal, and the extent to which FCC regulatory determinations inform or constrain the antitrust analysis.

(c) Deposition Preparation and Testimony. Preparation for and testimony at any deposition noticed by Ridgepoint or ordered by the court, including review of all documents and materials upon which your opinions are based, in accordance with Fed. R. Civ. P. 26(a)(2)(B)(ii).

(d) Daubert Challenges. Assistance in responding to any challenges to the admissibility of your testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, including the preparation of supplemental declarations or affidavits addressing the reliability and relevance of your methodology and opinions.

3.3 Coordination with Other Experts and Counsel

Effective representation of Northgate in these proceedings requires close coordination among the expert and legal teams. Accordingly, your engagement includes the following coordination responsibilities:

(a) Economic Expert. Coordination with Dr. Priya Narasimhan, Managing Director, Ellsworth Economic Consulting LLC, 1455 Pennsylvania Avenue NW, Suite 850, Washington, D.C. 20004. Dr. Narasimhan has been retained as Northgate's economic expert and is responsible for market definition, competitive effects analysis, and damages rebuttal. Your regulatory analysis and Dr. Narasimhan's economic analysis are complementary, and you should expect to engage in regular dialogue with Dr. Narasimhan to ensure consistency of assumptions, data inputs, and analytical framework.

(b) Client Regulatory Personnel. Coordination with Patrick Salazar, Chief Regulatory Officer of Northgate Telecommunications PLC, on regulatory facts, institutional history, and the development and implementation of Northgate's Wholesale Access Policy. Mr. Salazar is based at Northgate's London headquarters and is available for telephone and video conferences during regular U.K. business hours.

(c) Client Operational Personnel. Coordination with Diane Okoro, U.S. President of Northgate Networks America Inc., as needed regarding operational matters, including facility utilization data, engineering specifications, and the day-to-day implementation of interconnection and colocation policies at the fourteen (14) disputed facilities.

(d) C&H Engagement Team. Regular communication with the C&H engagement team, which consists of the following individuals:

• Elaine Forsythe, Responsible Partner — overall engagement strategy and substantive direction

• Howard Bellamy, Billing Partner — budget, invoicing, and fee-related matters

• Aaron Liu, Lead Associate — day-to-day coordination, document review, and testimony preparation

• Monica Reyes, Working Associate — research, document management, and hearing logistics

Contact information for each member of the C&H engagement team is set forth in Appendix B attached hereto.

SECTION 4: COMPENSATION AND BILLING

4.1 Fee Structure

Compensation for services rendered under this engagement shall be as follows:

(a) Dr. Anton Berger — $825.00 per hour for all professional services, including but not limited to analysis, research, report preparation, testimony preparation, testimony (hearing and deposition), and conferences with counsel, client personnel, and other experts.

(b) Senior Analysts, Torrence Policy Group LLC — $475.00 per hour for professional services rendered by senior analysts of Torrence Policy Group LLC who are assigned to support Dr. Berger in connection with this engagement. Any such assignment shall be communicated in advance to Aaron Liu, Lead Associate, at C&H.

(c) Research Analysts, Torrence Policy Group LLC — $325.00 per hour for professional services rendered by research analysts of Torrence Policy Group LLC who are assigned to support Dr. Berger in connection with this engagement. Any such assignment shall be communicated in advance to Aaron Liu, Lead Associate, at C&H.

Torrence fees are billed separately from C&H's legal fees and are not subject to the blended hourly rate cap or monthly fee cap set forth in the engagement letter between C&H and Northgate dated September 30, 2022 (the "C&H-Northgate Engagement Letter"). The compensation arrangements set forth in this Letter are governed solely by the terms of this Letter and are independent of any fee arrangements between C&H and Northgate.

As of the most recent billing period, Torrence fees incurred in connection with this engagement total $187,500.00. This amount reflects professional services rendered from the commencement of preliminary work in October 2022 through the most recently approved invoice.

Invoices shall be submitted by Torrence to Calderwood & Harkness LLP on a monthly basis, no later than the fifteenth (15th) day of the month following the month in which services were rendered. Each invoice shall contain a reasonably detailed description of the services performed, the identity of the professional performing the services, the number of hours expended, and the applicable hourly rate. Copies of each invoice shall be transmitted simultaneously to Catherine Ng, U.S. Deputy General Counsel, Northgate Networks America Inc., at the address set forth above.

Reasonable out-of-pocket expenses incurred by Dr. Berger and Torrence in connection with the engagement shall be reimbursed. Reimbursable expenses include, without limitation, travel expenses (airfare at coach or economy class for flights under four hours, business class for flights of four hours or longer), ground transportation, lodging (at rates not exceeding the prevailing GSA per diem rate for the applicable locality), meals (not to exceed $75.00 per day), document reproduction, courier and delivery charges, and long-distance telephone charges. All expenses in excess of $500.00 for a single item shall be pre-approved by Aaron Liu at C&H.

Payment of approved invoices shall be made within thirty (30) days of receipt of the approved invoice by C&H (net 30 days). C&H shall use commercially reasonable efforts to review and approve or dispute invoices within ten (10) business days of receipt. Any disputed line items shall be communicated in writing to Torrence within such ten (10) business day period, and undisputed amounts shall be paid in accordance with the net-30 payment terms.

4.2 Budget and Fee Estimates

The parties acknowledge that fee estimates are inherently uncertain and are subject to revision based on the course of the proceedings, rulings by ALJ Fenwick and Judge Wentworth, and the scope of discovery and briefing. The following estimates are provided for planning and budgeting purposes only and do not constitute a cap or guarantee:

(a) FCC Proceeding Phase. Estimated total fees for the FCC proceeding phase, including hearing preparation, testimony, post-hearing briefing assistance, and any supplemental submissions, are estimated at $275,000 to $350,000. This estimate assumes no material expansion of the scope of the proceeding beyond the issues currently before ALJ Fenwick.

(b) District Court Phase. Estimated total fees for the district court litigation phase, contingent on the stay being lifted and discovery commencing, are estimated at $200,000 to $325,000. This estimate assumes a standard discovery period, the preparation of one expert report, one deposition, and trial testimony. The estimate does not include fees that may be incurred in connection with a Daubert challenge, which, if litigated, could add an additional $50,000 to $100,000.

Torrence shall provide periodic budget updates to C&H and to Catherine Ng at NNA. If at any time Torrence anticipates that fees for a given phase will exceed the estimated range set forth above by more than 15%, Torrence shall promptly notify Aaron Liu and Elaine Forsythe at C&H and Catherine Ng at NNA, and shall discuss the anticipated overrun and the reasons therefor before incurring additional fees beyond the estimated range.

SECTION 5: CONFIDENTIALITY AND PRIVILEGE

5.1 Confidential Information

All information, documents, data, communications, analyses, memoranda, reports, and other materials provided to Dr. Berger and Torrence Policy Group LLC in connection with this engagement, whether provided by C&H, Northgate, NNA, or any agent or representative thereof, shall be treated as strictly confidential and proprietary to Northgate (collectively, "Confidential Information"). Confidential Information includes, without limitation, business records, financial data, engineering and network utilization reports, internal communications, legal memoranda, strategic assessments, and any information designated as confidential, proprietary, or trade secret by Northgate, NNA, or C&H.

Dr. Berger and Torrence shall not disclose, disseminate, publish, or otherwise communicate any Confidential Information to any third party without the prior written consent of Calderwood & Harkness LLP and Northgate. This obligation applies regardless of the form in which the Confidential Information is received (oral, written, electronic, or otherwise) and regardless of whether the information is specifically marked or designated as confidential at the time of disclosure.

The obligation of confidentiality set forth in this Section 5.1 shall survive the termination or expiration of this engagement and shall remain in full force and effect indefinitely, except to the extent that specific Confidential Information becomes publicly available through no fault of Dr. Berger or Torrence, is independently developed by Torrence without reference to Confidential Information, or is required to be disclosed by applicable law, regulation, or order of a court or regulatory body of competent jurisdiction (provided that, in the event of such compelled disclosure, Dr. Berger and Torrence shall provide prompt written notice to C&H and Northgate and shall cooperate in seeking a protective order or other appropriate relief).

5.2 Attorney-Client Privilege and Work Product Protection

Communications between Dr. Berger and attorneys at Calderwood & Harkness LLP that are made for the purpose of providing legal advice to Northgate or in anticipation of litigation are subject to the attorney-client privilege and/or the protection of the work product doctrine. Dr. Berger shall take reasonable care to maintain the privileged and protected nature of such communications, including by:

(a) Marking or labeling communications with C&H as "PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT" where appropriate;

(b) Refraining from forwarding, copying, or disclosing privileged communications to any person who is not a member of the engagement team, a Northgate employee authorized to receive such communications, or another expert retained by C&H in connection with the matters, without the prior approval of C&H;

(c) Maintaining privileged communications in a secure manner, separate from non-privileged files and records, to the extent practicable.

Draft reports, preliminary analyses, internal memoranda, notes, and communications between Dr. Berger and counsel at C&H prepared in anticipation of litigation or in connection with the rendering of legal advice constitute protected attorney work product under Federal Rule of Civil Procedure 26(b)(3) and applicable FCC procedural rules. Such materials shall not be disclosed to any third party without the prior written consent of C&H.

Potential Waiver. The parties acknowledge that the submission of an expert report, expert declaration, or expert testimony in the FCC proceeding or the district court litigation may result in a waiver of privilege and work product protection as to the underlying facts and data relied upon by Dr. Berger in forming his opinions, consistent with Federal Rule of Civil Procedure 26(a)(2)(B) and applicable FCC procedural rules. C&H will advise Dr. Berger regarding the scope of any such waiver in advance of the submission of any expert report, declaration, or testimony. Dr. Berger shall consult with C&H before producing or disclosing any document or communication that may implicate privilege or work product protection.

5.3 Document Retention

Dr. Berger and Torrence Policy Group LLC shall preserve all documents, communications, work papers, analyses, data files, and other materials related to the engagement, in whatever form they exist (paper, electronic, or otherwise), for the duration of the engagement and for a period of no less than three (3) years following the conclusion of both the FCC proceeding and the district court litigation (including any appeals), unless a longer retention period is required by applicable law or regulation or is directed by C&H or Northgate.

Dr. Berger and Torrence are hereby advised that Northgate implemented a litigation hold on September 21, 2022, in connection with the commencement of the district court litigation. The litigation hold applies to all documents and communications in the possession, custody, or control of Northgate, NNA, and their agents, consultants, and experts — including Dr. Berger and Torrence — that relate to or are reasonably likely to relate to the claims and defenses at issue in either the district court litigation or the FCC proceeding. Dr. Berger and Torrence shall comply with the litigation hold and shall not destroy, delete, alter, or dispose of any documents or materials subject to the hold without the prior written consent of C&H.

SECTION 6: CONFLICTS OF INTEREST

By executing this Letter, Dr. Berger confirms each of the following:

(a) Neither Dr. Berger nor Torrence Policy Group LLC currently represents, advises, or provides consulting services to Ridgepoint Communications Inc., Caravel Capital Partners LP, Gregory Trent, Hargrove, Winslow & Burke LLP, or any other party adverse to Northgate or NNA in any matter related to this engagement or the subject matter thereof.

(b) Neither Dr. Berger nor Torrence Policy Group LLC has, within the preceding five (5) years, represented, advised, or provided consulting services to Ridgepoint Communications Inc. or Caravel Capital Partners LP in any matter.

(c) Dr. Berger's prior service as Deputy Bureau Chief of the FCC Wireline Competition Bureau does not create any conflict of interest, recusal obligation, or ethical bar to his serving as an expert witness or regulatory consultant in FCC Docket No. WC-23-0042 or Case No. 1:22-cv-01487-CMW. Dr. Berger has reviewed the applicable post-employment restrictions under 18 U.S.C. § 207 and the FCC's ethics regulations and has determined that no provision thereof prohibits or restricts his participation in these proceedings. Dr. Berger did not participate personally and substantially in any matter involving Northgate, NNA, or Ridgepoint during his tenure at the FCC.

(d) Dr. Berger shall promptly notify C&H in writing if, at any time during the engagement, he becomes aware of any actual or potential conflict of interest that could affect his ability to serve as an independent expert in these proceedings. Upon receipt of such notification, C&H and Dr. Berger shall confer in good faith to determine whether the conflict can be resolved or whether the engagement must be terminated.

SECTION 7: INDEPENDENCE AND PROFESSIONAL OBLIGATIONS

Dr. Berger shall exercise independent professional judgment in forming, developing, and presenting his expert opinions in connection with this engagement. His opinions must be based on his own analysis of the relevant facts, data, documents, regulatory framework, and applicable precedent. Dr. Berger acknowledges his obligation to provide truthful, accurate, and complete testimony in any proceeding in which he appears as an expert witness, and to comply with all applicable rules of professional conduct, FCC procedural rules, and the Federal Rules of Civil Procedure and Evidence.

Northgate and Calderwood & Harkness LLP do not seek to influence, direct, or dictate the substance of Dr. Berger's expert opinions. The independence and credibility of Dr. Berger's opinions are essential to the value of his engagement. However, the parties acknowledge that effective expert engagement requires collaboration regarding the scope of Dr. Berger's analysis, the presentation and organization of his opinions, the legal and regulatory context within which those opinions will be received, and the identification of issues on which expert analysis is most needed. Such collaboration is appropriate and expected and does not compromise Dr. Berger's independence.

Dr. Berger shall promptly advise C&H if, in the course of his analysis, he reaches conclusions or forms opinions that are unfavorable to Northgate's position in either proceeding. The parties agree that early identification of adverse findings is essential to the effective management of the engagement and the proceedings.

SECTION 8: TERM AND TERMINATION

The engagement shall commence as of the date of this Letter and shall continue until the final resolution of both the FCC proceeding (Docket WC-23-0042) and the district court litigation (Case No. 1:22-cv-01487-CMW), including any appeals, remands, or related proceedings, unless the engagement is earlier terminated in accordance with this Section 8.

Either party may terminate this engagement upon thirty (30) days' prior written notice to the other party. In the event of termination by either party:

(a) Dr. Berger shall promptly return to C&H, or, at C&H's written direction, securely destroy, all Confidential Information, documents, work papers, and other materials in his possession or under his control that relate to the engagement. Dr. Berger shall certify in writing to C&H that such return or destruction has been completed within fifteen (15) days of the effective date of termination.

(b) Compensation for all professional services performed and expenses incurred through the effective date of termination shall remain payable in accordance with Section 4 of this Letter, and Torrence shall submit a final invoice within thirty (30) days of the effective date of termination.

(c) The obligations of confidentiality set forth in Section 5 and the document preservation obligations set forth in Section 5.3 shall survive the termination of the engagement and shall continue in full force and effect in accordance with their terms.

(d) Dr. Berger's obligation to provide testimony in any proceeding in which his testimony has already been submitted or noticed, and his obligation to cooperate in connection with any pending Daubert challenge or other motion related to his expert opinions, shall survive termination of the engagement for a reasonable period, and compensation for any such post-termination services shall be at the rates set forth in Section 4.1.

SECTION 9: MISCELLANEOUS PROVISIONS

9.1 Governing Law. This Letter and the engagement described herein shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.

9.2 No Assignment. Neither party may assign or transfer its rights or obligations under this Letter without the prior written consent of the other party, except that C&H may assign this Letter to a successor firm in connection with a merger, acquisition, or reorganization of C&H without the consent of Torrence, provided that C&H provides written notice of any such assignment within thirty (30) days.

9.3 Entire Agreement. This Letter constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, and agreements, whether written or oral, relating to the engagement. No amendment, modification, or waiver of any provision of this Letter shall be effective unless set forth in a writing signed by authorized representatives of both Calderwood & Harkness LLP and Torrence Policy Group LLC.

9.4 Severability. If any provision of this Letter is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to render it valid and enforceable.

9.5 Notices. All notices, requests, demands, and other communications required or permitted under this Letter shall be in writing and shall be deemed duly given when delivered by hand, by nationally recognized overnight courier service, or by certified mail, return receipt requested, to the following addresses:

If to Calderwood & Harkness LLP:

Elaine Forsythe, Partner Antitrust & Competition Group Calderwood & Harkness LLP 1200 K Street NW, Suite 900 Washington, D.C. 20005

If to Torrence Policy Group LLC:

Dr. Anton Berger, Senior Advisor Torrence Policy Group LLC 7925 Jones Branch Drive, Suite 510 McLean, VA 22102

Either party may change its address for notice purposes by providing written notice to the other party in accordance with this Section 9.5.

9.6 Counterparts. This Letter may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or electronic mail (in PDF or similar format) shall have the same force and effect as delivery of an original signed counterpart.

9.7 Waiver. The failure of either party to enforce any provision of this Letter shall not constitute a waiver of that party's right to enforce such provision or any other provision in the future.

SECTION 10: SIGNATURE BLOCK AND ACCEPTANCE

We look forward to continuing our work with you on these important matters. If the terms and conditions set forth in this Letter are acceptable, please sign and return a copy of this Letter to my attention at the address above or by electronic mail.

CALDERWOOD & HARKNESS LLP

By: ________

Name: Elaine Forsythe

Title: Partner, Antitrust & Competition Group

Calderwood & Harkness LLP 1200 K Street NW, Suite 900 Washington, D.C. 20005

Date: ________

ACCEPTED AND AGREED:

By signing below, Dr. Berger acknowledges and agrees to the terms and conditions set forth in this retention letter on behalf of himself and Torrence Policy Group LLC.

TORRENCE POLICY GROUP LLC

By: ________

Name: Dr. Anton Berger

Title: Senior Advisor

Torrence Policy Group LLC 7925 Jones Branch Drive, Suite 510 McLean, VA 22102

Date: ________

APPENDIX A

LIST OF THE FOURTEEN (14) DISPUTED FACILITIES

The following facilities are the subject of the interconnection and colocation requests at issue in Ridgepoint Communications Inc. v. Northgate Telecommunications PLC and Northgate Networks America Inc., Case No. 1:22-cv-01487-CMW (E.D. Va.), and In the Matter of Northgate Networks America Inc. — Complaint Regarding Interconnection Obligations under Section 251, FCC Docket No. WC-23-0042:

APPENDIX B

CALDERWOOD & HARKNESS LLP — ENGAGEMENT TEAM CONTACT INFORMATION

The following individuals comprise the C&H engagement team for the above-referenced matters. Day-to-day coordination regarding scheduling, document production, and logistical matters should be directed to Aaron Liu, Lead Associate.

All correspondence related to invoicing and billing should be directed to Howard Bellamy. All substantive questions regarding the scope of the engagement, strategic direction, or expert testimony should be directed to Elaine Forsythe. Aaron Liu serves as the primary day-to-day contact for coordination of expert work, document requests, scheduling of conferences, and preparation for hearings and depositions.

End of Engagement Letter Engagement Letter Reference No. C&H-2022-ATR-00419

No.	Facility Address	City	State	Facility Type
1	401 N. Broad Street	Philadelphia	PA 19108	Central Office
2	1500 Spring Garden Street	Philadelphia	PA 19130	Central Office
3	100 Delancey Place	Cherry Hill	NJ 08034	Meet-Me Room
4	220 S. Warren Street	Trenton	NJ 08608	Central Office
5	700 E. Pratt Street	Baltimore	MD 21202	Central Office
6	1 W. Fayette Street	Baltimore	MD 21201	Meet-Me Room
7	33 S. Gay Street	Baltimore	MD 21202	Central Office
8	9221 Corporate Boulevard	Rockville	MD 20850	Meet-Me Room
9	1200 New Hampshire Avenue NW	Washington	D.C. 20036	Central Office
10	600 New Jersey Avenue NW	Washington	D.C. 20001	Meet-Me Room
11	44755 Prentice Drive	Ashburn	VA 20147	Central Office
12	21571 Beaumeade Circle	Ashburn	VA 20147	Meet-Me Room
13	1807 Michael Faraday Court	Reston	VA 20190	Central Office
14	8100 Boone Boulevard	Tysons Corner	VA 22182	Central Office
Role	Name	Direct Telephone	Email
Responsible Partner	Elaine Forsythe	(202) 555-7112	eforsythe@calderwoodharkness.com
Billing Partner	Howard Bellamy	(202) 555-7138	hbellamy@calderwoodharkness.com
Lead Associate	Aaron Liu	(202) 555-7224	aliu@calderwoodharkness.com
Working Associate	Monica Reyes	(202) 555-7261	mreyes@calderwoodharkness.com

CALDERWOOD & HARKNESS LLP Attorneys at Law
1200 K Street NW, Suite 900 Washington, D.C. 20005
Telephone: (202) 555-7100 Facsimile: (202) 555-7199 www.calderwoodharkness.com
October 7, 2022
VIA HAND DELIVERY AND ELECTRONIC MAIL
Dr. Anton Berger Senior Advisor Torrence Policy Group LLC 7925 Jones Branch Drive, Suite 510 McLean, VA 22102
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT
Re: Retention as Regulatory Expert — Ridgepoint Communications Inc. v. Northgate Telecommunications PLC and Northgate Networks America Inc., Case No. 1:22-cv-01487-CMW (E.D. Va.); and In the Matter of Northgate Networks America Inc. — Complaint Regarding Interconnection Obligations under Section 251, FCC Docket No. WC-23-0042
Engagement Letter Reference No. C&H-2022-ATR-00419
Dear Dr. Berger:
Thank you for the time you and your colleagues at Torrence Policy Group LLC have devoted to our preliminary discussions regarding the above-referenced matters. We are pleased to formalize the terms of your retention as a regulatory expert on behalf of our clients, as set forth in detail below. This letter constitutes the binding agreement between Calderwood & Harkness LLP and Torrence Policy Group LLC governing the engagement.
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SECTION 1: INTRODUCTION AND PURPOSE OF RETENTION
Calderwood & Harkness LLP ("C&H" or the "Firm") represents Northgate Telecommunications PLC ("Northgate" or "NTP"), a public limited company incorporated under the laws of England and Wales (Company No. 07824561), and its wholly-owned U.S. operating subsidiary, Northgate Networks America Inc. ("NNA"), a Delaware corporation (EIN 54-3298176), headquartered at 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, Virginia 22182. As used herein, "Northgate" refers collectively to NTP and NNA unless the context requires otherwise.
The engagement partner responsible for this matter is Elaine Forsythe, Responsible Partner, Antitrust & Competition Group, Calderwood & Harkness LLP, Washington, D.C. Ms. Forsythe serves as the primary point of contact for all substantive and strategic aspects of the retention.
The client, through its U.S. Deputy General Counsel, Catherine Ng, has authorized the retention of you, Dr. Anton Berger, and your firm, Torrence Policy Group LLC ("Torrence" or "Ridgeway Partners"), as a regulatory expert in connection with the above-referenced proceedings. Ms. Ng's authorization was communicated to C&H in writing on September 28, 2022, and a copy of that authorization letter is maintained in the engagement file.
We understand that your qualifications for this engagement are substantial and directly relevant to the matters at hand. You served for approximately seven years as Deputy Bureau Chief of the Federal Communications Commission's Wireline Competition Bureau, where you were responsible for overseeing interconnection policy, unbundled network element ("UNE") proceedings, and the implementation of the local competition provisions of the Telecommunications Act of 1996. Since departing the FCC in 2016, you have served as Senior Advisor at Torrence Policy Group LLC, a regulatory consulting firm specializing in telecommunications, broadband, and spectrum policy. You have been retained as a regulatory expert in more than twenty federal and state proceedings involving interconnection, unbundling, and access obligations, and you have submitted written testimony or expert declarations in proceedings before the FCC, the United States District Courts for the District of Columbia and the Southern District of New York, and state public utility commissions in Virginia, Maryland, Pennsylvania, and New Jersey.
This retention letter (the "Letter") sets forth the terms and conditions governing your engagement. This Letter supersedes any and all prior informal understandings, oral agreements, email exchanges, or other communications between or among C&H, Torrence, Dr. Berger, Northgate, or NNA regarding the scope, terms, or conditions of this engagement. No prior understanding or agreement, whether written or oral, shall have any force or effect except to the extent expressly incorporated herein.
SECTION 2: BACKGROUND OF THE MATTERS
To provide context for the scope of your engagement, we set forth below a summary of the two proceedings in which your expert services are required, together with a description of the underlying conduct at issue.
2.1 District Court Litigation
On September 19, 2022, Ridgepoint Communications Inc. ("Ridgepoint"), a Delaware corporation headquartered at 3500 Market Street, Suite 700, Philadelphia, Pennsylvania 19104, filed a complaint against Northgate Telecommunications PLC and Northgate Networks America Inc. in the United States District Court for the Eastern District of Virginia, Alexandria Division. The case has been assigned Case No. 1:22-cv-01487-CMW and is presently before the Honorable Claudia M. Wentworth, United States District Judge.
Ridgepoint is a competitive local exchange carrier ("CLEC") and enterprise broadband provider operating in the Commonwealth of Pennsylvania, the State of New Jersey, the State of Delaware, the State of Maryland, and the Commonwealth of Virginia. Ridgepoint owns and leases approximately 6,200 route-miles of fiber-optic network infrastructure in the Mid-Atlantic region and reported fiscal year 2022 revenue of approximately $387 million. As of the date of the complaint, Ridgepoint employed approximately 1,450 individuals across its service territory.
Ridgepoint is majority-owned by Caravel Capital Partners LP ("Caravel"), a private equity firm headquartered in New York, New York, which acquired a 78% equity interest in Ridgepoint through a leveraged buyout transaction completed in November 2018. The transaction was valued at approximately $510 million. The remaining 22% equity interest is held by the Trent family, principally Gregory Trent, who serves as Chief Executive Officer and is the founder of Ridgepoint.
Ridgepoint is represented in both the district court litigation and the FCC proceeding by Hargrove, Winslow & Burke LLP ("HWB"), with lead partner Victoria Hargrove and senior associate Daniel Stoyanov serving as counsel of record.
The complaint asserts a single count under Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, alleging that Northgate's refusal to provide interconnection and physical colocation access at fourteen (14) specific Northgate central-office and meet-me-room facilities in the Mid-Atlantic region constitutes unlawful monopolization of one or more relevant markets for wholesale fiber-optic transport and last-mile interconnection services. The complaint seeks injunctive relief, treble damages, costs, and attorneys' fees.
Northgate owns and operates approximately 42,000 route-miles of fiber-optic backbone and metro-ring infrastructure across eighteen (18) U.S. states and the District of Columbia. NNA is the entity through which Northgate conducts substantially all of its U.S. operations, including wholesale and enterprise fiber-optic transport, colocation, and interconnection services.
The procedural history of the district court case is as follows. C&H entered its appearance on behalf of Northgate and NNA on October 3, 2022. On November 14, 2022, Northgate filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and, in the alternative, a Motion to Stay pending the resolution of a parallel proceeding before the Federal Communications Commission. On March 14, 2023, Judge Wentworth issued an Order granting Northgate's Motion to Stay and denying the Motion to Dismiss without prejudice, with leave to renew the motion upon the lifting of the stay. Judge Wentworth's Order stated that the FCC's resolution of the interconnection and colocation issues would materially inform the district court's analysis of the Section 2 claim and that principles of primary jurisdiction and judicial economy counseled in favor of a stay. The case is currently dormant in the district court, and no discovery has been taken.
2.2 FCC Proceeding
On February 7, 2023, Ridgepoint filed a formal complaint at the Federal Communications Commission, styled In the Matter of Northgate Networks America Inc. — Complaint Regarding Interconnection Obligations under Section 251, assigned FCC Docket No. WC-23-0042. The complaint alleges that Northgate violated its interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. §§ 251, 252, by refusing to negotiate interconnection agreements in good faith, by denying reasonable requests for physical colocation at the fourteen (14) disputed facilities, and by imposing unreasonable conditions and pricing terms that effectively foreclosed Ridgepoint's access to Northgate's network.
The proceeding has been assigned to Administrative Law Judge Robert Fenwick. ALJ Fenwick issued a scheduling order on June 12, 2023, establishing deadlines for the exchange of pre-filed testimony, discovery, and the evidentiary hearing. The evidentiary hearing was originally scheduled for September 2023, but was postponed to January 2024 due to staffing constraints within the FCC's Administrative Law Judge Division. The evidentiary hearing was held on January 22, 23, and 24, 2024, at the FCC's headquarters in Washington, D.C. Post-hearing initial briefs were filed by both parties on March 15, 2024, and reply briefs were filed on April 12, 2024. As of the date of this Letter, ALJ Fenwick's initial decision remains pending.
2.3 The Conduct at Issue
The factual allegations common to both proceedings center on a series of interconnection and colocation requests submitted by Ridgepoint to Northgate between March 2021 and August 2022. During this period, Ridgepoint submitted formal requests for interconnection and physical colocation at fourteen (14) Northgate facilities located along the Philadelphia–Baltimore–Washington, D.C. corridor. A complete list of the fourteen (14) disputed facilities, including street addresses, is attached hereto as Appendix A.
Northgate declined each of Ridgepoint's requests, citing three principal justifications:
(a) Capacity constraints. Northgate asserted that each of the fourteen (14) facilities was operating at or above 85% utilization of available colocation space, power, and HVAC capacity, rendering the accommodation of additional colocation tenants impracticable without material capital expenditure and potential degradation of service to existing customers.
(b) Absence of prior course of dealing. Northgate noted that Ridgepoint had no prior colocation or interconnection arrangement at any of the fourteen (14) specific facilities at issue, and that Northgate's existing relationships with wholesale customers at those locations had been established over a period of many years.
(c) Wholesale Access Policy ("WAP"). Northgate relied upon its Wholesale Access Policy, adopted in January 2020, which restricts third-party physical colocation at Northgate facilities to existing wholesale partners that maintain minimum annual revenue commitments of $5,000,000 (five million dollars) with Northgate. Ridgepoint's aggregate annual spend with Northgate was approximately $1,800,000 (one million eight hundred thousand dollars) in fiscal year 2021, substantially below the WAP threshold.
The parties' prior relationship is relevant to the dispute. On June 15, 2015, Northgate and Ridgepoint entered into a Master Interconnection Agreement (the "MIA") covering three (3) Northgate facilities in northern Virginia. The MIA had a five-year term and expired by its terms on June 14, 2020. Ridgepoint requested renewal of the MIA on substantially similar terms, but Northgate declined to renew under the new WAP, citing Ridgepoint's failure to meet the $5 million annual revenue commitment threshold. Notwithstanding the expiration of the MIA, Ridgepoint continues to occupy the three (3) northern Virginia facilities under a month-to-month holdover arrangement. Under the holdover terms, Ridgepoint pays 120% of the prior contractual rate — specifically, $14,400 per month per facility, compared to the prior rate of $12,000 per month per facility.
SECTION 3: SCOPE OF ENGAGEMENT
The scope of your engagement encompasses the following areas, organized by proceeding and by function.
3.1 Primary Focus — FCC Proceeding (Docket WC-23-0042)
Your primary engagement responsibilities relate to the FCC proceeding. Specifically, your scope of work includes the following:
(a) Interconnection Obligations Analysis. Analysis of Northgate's interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. §§ 251, 252. This analysis should address the nature and extent of any duty Northgate may have to provide interconnection, physical colocation, or virtual colocation to requesting telecommunications carriers, including CLECs such as Ridgepoint.
(b) Facility-Specific Assessment. Evaluation of whether each of the fourteen (14) disputed facilities identified in Appendix A is subject to unbundling, colocation, or interconnection requirements under applicable FCC rules, orders, and policy statements, including but not limited to the FCC's Triennial Review Order (2003), Triennial Review Remand Order (2005), and subsequent orders addressing the scope of incumbent carrier obligations.
(c) Wholesale Access Policy Review. Assessment of the commercial reasonableness of Northgate's Wholesale Access Policy (WAP), adopted January 2020, under FCC precedent, applicable regulations, and the interconnection framework established by the Telecommunications Act of 1996. This assessment should consider whether the WAP's $5 million annual revenue commitment threshold constitutes an unreasonable barrier to interconnection access or physical colocation.
(d) Capacity Constraints Analysis. Analysis of the capacity constraints cited by Northgate as a justification for denying Ridgepoint's colocation requests at the fourteen (14) facilities. This analysis should consider the engineering data, utilization reports, and facility documentation produced by Northgate, and should evaluate whether the asserted capacity constraints constitute a bona fide justification under FCC rules and applicable precedent.
(e) Precedent Review. Review of FCC precedent regarding incumbent local exchange carrier ("ILEC") interconnection obligations and their applicability to Northgate's fiber-optic backbone and last-mile infrastructure. This review should address the extent to which Northgate, which operates as both an ILEC successor and a competitive fiber provider in certain markets, is subject to the interconnection obligations imposed on ILECs under Section 251(c) of the Communications Act.
(f) Written Testimony and Declarations. Preparation of written testimony and/or expert declarations for submission to ALJ Fenwick in connection with the FCC proceeding. Your pre-filed written testimony was submitted on October 27, 2023, and supplemental declarations may be required in connection with any post-hearing proceedings or supplemental briefing ordered by ALJ Fenwick.
(g) Hearing Testimony. Testimony at the FCC evidentiary hearing, which was held on January 22–24, 2024. You appeared as an expert witness on behalf of Northgate and NNA on January 23, 2024, and were subject to cross-examination by counsel for Ridgepoint.
(h) Post-Hearing Briefing. Assistance with post-hearing initial briefing and reply submissions, including review and comment on draft briefs, identification of relevant regulatory authority, and preparation of any supplemental factual declarations or affidavits as may be required.
(i) FCC Staff Coordination. Coordination with FCC Staff as appropriate regarding procedural and substantive regulatory matters arising in the proceeding, consistent with applicable ex parte rules and the ALJ's scheduling and procedural orders.
3.2 District Court Litigation (Case No. 1:22-cv-01487-CMW)
In the event the stay entered by Judge Wentworth is lifted and the district court litigation proceeds, your engagement will expand to include the following responsibilities:
(a) Expert Testimony. Potential testimony as a regulatory expert in the Eastern District of Virginia, addressing the regulatory framework governing interconnection and colocation in the telecommunications industry and the intersection of FCC regulatory requirements with the antitrust analysis applicable to Ridgepoint's Section 2 claim.
(b) Expert Report. Preparation of an expert report, in compliance with Federal Rule of Civil Procedure 26(a)(2)(B), addressing the regulatory context of the dispute and the intersection of FCC interconnection requirements with the Section 2 refusal-to-deal analysis. The expert report should address, among other things, the regulatory significance (or lack thereof) of Northgate's refusal to provide colocation access, the scope and limits of any regulatory duty to deal, and the extent to which FCC regulatory determinations inform or constrain the antitrust analysis.
(c) Deposition Preparation and Testimony. Preparation for and testimony at any deposition noticed by Ridgepoint or ordered by the court, including review of all documents and materials upon which your opinions are based, in accordance with Fed. R. Civ. P. 26(a)(2)(B)(ii).
(d) Daubert Challenges. Assistance in responding to any challenges to the admissibility of your testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, including the preparation of supplemental declarations or affidavits addressing the reliability and relevance of your methodology and opinions.
3.3 Coordination with Other Experts and Counsel
Effective representation of Northgate in these proceedings requires close coordination among the expert and legal teams. Accordingly, your engagement includes the following coordination responsibilities:
(a) Economic Expert. Coordination with Dr. Priya Narasimhan, Managing Director, Ellsworth Economic Consulting LLC, 1455 Pennsylvania Avenue NW, Suite 850, Washington, D.C. 20004. Dr. Narasimhan has been retained as Northgate's economic expert and is responsible for market definition, competitive effects analysis, and damages rebuttal. Your regulatory analysis and Dr. Narasimhan's economic analysis are complementary, and you should expect to engage in regular dialogue with Dr. Narasimhan to ensure consistency of assumptions, data inputs, and analytical framework.
(b) Client Regulatory Personnel. Coordination with Patrick Salazar, Chief Regulatory Officer of Northgate Telecommunications PLC, on regulatory facts, institutional history, and the development and implementation of Northgate's Wholesale Access Policy. Mr. Salazar is based at Northgate's London headquarters and is available for telephone and video conferences during regular U.K. business hours.
(c) Client Operational Personnel. Coordination with Diane Okoro, U.S. President of Northgate Networks America Inc., as needed regarding operational matters, including facility utilization data, engineering specifications, and the day-to-day implementation of interconnection and colocation policies at the fourteen (14) disputed facilities.
(d) C&H Engagement Team. Regular communication with the C&H engagement team, which consists of the following individuals:
•  Elaine Forsythe, Responsible Partner — overall engagement strategy and substantive direction
•  Howard Bellamy, Billing Partner — budget, invoicing, and fee-related matters
•  Aaron Liu, Lead Associate — day-to-day coordination, document review, and testimony preparation
•  Monica Reyes, Working Associate — research, document management, and hearing logistics
Contact information for each member of the C&H engagement team is set forth in Appendix B attached hereto.
SECTION 4: COMPENSATION AND BILLING
4.1 Fee Structure
Compensation for services rendered under this engagement shall be as follows:
(a) Dr. Anton Berger — $825.00 per hour for all professional services, including but not limited to analysis, research, report preparation, testimony preparation, testimony (hearing and deposition), and conferences with counsel, client personnel, and other experts.
(b) Senior Analysts, Torrence Policy Group LLC — $475.00 per hour for professional services rendered by senior analysts of Torrence Policy Group LLC who are assigned to support Dr. Berger in connection with this engagement. Any such assignment shall be communicated in advance to Aaron Liu, Lead Associate, at C&H.
(c) Research Analysts, Torrence Policy Group LLC — $325.00 per hour for professional services rendered by research analysts of Torrence Policy Group LLC who are assigned to support Dr. Berger in connection with this engagement. Any such assignment shall be communicated in advance to Aaron Liu, Lead Associate, at C&H.
Torrence fees are billed separately from C&H's legal fees and are not subject to the blended hourly rate cap or monthly fee cap set forth in the engagement letter between C&H and Northgate dated September 30, 2022 (the "C&H-Northgate Engagement Letter"). The compensation arrangements set forth in this Letter are governed solely by the terms of this Letter and are independent of any fee arrangements between C&H and Northgate.
As of the most recent billing period, Torrence fees incurred in connection with this engagement total $187,500.00. This amount reflects professional services rendered from the commencement of preliminary work in October 2022 through the most recently approved invoice.
Invoices shall be submitted by Torrence to Calderwood & Harkness LLP on a monthly basis, no later than the fifteenth (15th) day of the month following the month in which services were rendered. Each invoice shall contain a reasonably detailed description of the services performed, the identity of the professional performing the services, the number of hours expended, and the applicable hourly rate. Copies of each invoice shall be transmitted simultaneously to Catherine Ng, U.S. Deputy General Counsel, Northgate Networks America Inc., at the address set forth above.
Reasonable out-of-pocket expenses incurred by Dr. Berger and Torrence in connection with the engagement shall be reimbursed. Reimbursable expenses include, without limitation, travel expenses (airfare at coach or economy class for flights under four hours, business class for flights of four hours or longer), ground transportation, lodging (at rates not exceeding the prevailing GSA per diem rate for the applicable locality), meals (not to exceed $75.00 per day), document reproduction, courier and delivery charges, and long-distance telephone charges. All expenses in excess of $500.00 for a single item shall be pre-approved by Aaron Liu at C&H.
Payment of approved invoices shall be made within thirty (30) days of receipt of the approved invoice by C&H (net 30 days). C&H shall use commercially reasonable efforts to review and approve or dispute invoices within ten (10) business days of receipt. Any disputed line items shall be communicated in writing to Torrence within such ten (10) business day period, and undisputed amounts shall be paid in accordance with the net-30 payment terms.
4.2 Budget and Fee Estimates
The parties acknowledge that fee estimates are inherently uncertain and are subject to revision based on the course of the proceedings, rulings by ALJ Fenwick and Judge Wentworth, and the scope of discovery and briefing. The following estimates are provided for planning and budgeting purposes only and do not constitute a cap or guarantee:
(a) FCC Proceeding Phase. Estimated total fees for the FCC proceeding phase, including hearing preparation, testimony, post-hearing briefing assistance, and any supplemental submissions, are estimated at $275,000 to $350,000. This estimate assumes no material expansion of the scope of the proceeding beyond the issues currently before ALJ Fenwick.
(b) District Court Phase. Estimated total fees for the district court litigation phase, contingent on the stay being lifted and discovery commencing, are estimated at $200,000 to $325,000. This estimate assumes a standard discovery period, the preparation of one expert report, one deposition, and trial testimony. The estimate does not include fees that may be incurred in connection with a Daubert challenge, which, if litigated, could add an additional $50,000 to $100,000.
Torrence shall provide periodic budget updates to C&H and to Catherine Ng at NNA. If at any time Torrence anticipates that fees for a given phase will exceed the estimated range set forth above by more than 15%, Torrence shall promptly notify Aaron Liu and Elaine Forsythe at C&H and Catherine Ng at NNA, and shall discuss the anticipated overrun and the reasons therefor before incurring additional fees beyond the estimated range.
SECTION 5: CONFIDENTIALITY AND PRIVILEGE
5.1 Confidential Information
All information, documents, data, communications, analyses, memoranda, reports, and other materials provided to Dr. Berger and Torrence Policy Group LLC in connection with this engagement, whether provided by C&H, Northgate, NNA, or any agent or representative thereof, shall be treated as strictly confidential and proprietary to Northgate (collectively, "Confidential Information"). Confidential Information includes, without limitation, business records, financial data, engineering and network utilization reports, internal communications, legal memoranda, strategic assessments, and any information designated as confidential, proprietary, or trade secret by Northgate, NNA, or C&H.
Dr. Berger and Torrence shall not disclose, disseminate, publish, or otherwise communicate any Confidential Information to any third party without the prior written consent of Calderwood & Harkness LLP and Northgate. This obligation applies regardless of the form in which the Confidential Information is received (oral, written, electronic, or otherwise) and regardless of whether the information is specifically marked or designated as confidential at the time of disclosure.
The obligation of confidentiality set forth in this Section 5.1 shall survive the termination or expiration of this engagement and shall remain in full force and effect indefinitely, except to the extent that specific Confidential Information becomes publicly available through no fault of Dr. Berger or Torrence, is independently developed by Torrence without reference to Confidential Information, or is required to be disclosed by applicable law, regulation, or order of a court or regulatory body of competent jurisdiction (provided that, in the event of such compelled disclosure, Dr. Berger and Torrence shall provide prompt written notice to C&H and Northgate and shall cooperate in seeking a protective order or other appropriate relief).
5.2 Attorney-Client Privilege and Work Product Protection
Communications between Dr. Berger and attorneys at Calderwood & Harkness LLP that are made for the purpose of providing legal advice to Northgate or in anticipation of litigation are subject to the attorney-client privilege and/or the protection of the work product doctrine. Dr. Berger shall take reasonable care to maintain the privileged and protected nature of such communications, including by:
(a) Marking or labeling communications with C&H as "PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT" where appropriate;
(b) Refraining from forwarding, copying, or disclosing privileged communications to any person who is not a member of the engagement team, a Northgate employee authorized to receive such communications, or another expert retained by C&H in connection with the matters, without the prior approval of C&H;
(c) Maintaining privileged communications in a secure manner, separate from non-privileged files and records, to the extent practicable.
Draft reports, preliminary analyses, internal memoranda, notes, and communications between Dr. Berger and counsel at C&H prepared in anticipation of litigation or in connection with the rendering of legal advice constitute protected attorney work product under Federal Rule of Civil Procedure 26(b)(3) and applicable FCC procedural rules. Such materials shall not be disclosed to any third party without the prior written consent of C&H.
Potential Waiver. The parties acknowledge that the submission of an expert report, expert declaration, or expert testimony in the FCC proceeding or the district court litigation may result in a waiver of privilege and work product protection as to the underlying facts and data relied upon by Dr. Berger in forming his opinions, consistent with Federal Rule of Civil Procedure 26(a)(2)(B) and applicable FCC procedural rules. C&H will advise Dr. Berger regarding the scope of any such waiver in advance of the submission of any expert report, declaration, or testimony. Dr. Berger shall consult with C&H before producing or disclosing any document or communication that may implicate privilege or work product protection.
5.3 Document Retention
Dr. Berger and Torrence Policy Group LLC shall preserve all documents, communications, work papers, analyses, data files, and other materials related to the engagement, in whatever form they exist (paper, electronic, or otherwise), for the duration of the engagement and for a period of no less than three (3) years following the conclusion of both the FCC proceeding and the district court litigation (including any appeals), unless a longer retention period is required by applicable law or regulation or is directed by C&H or Northgate.
Dr. Berger and Torrence are hereby advised that Northgate implemented a litigation hold on September 21, 2022, in connection with the commencement of the district court litigation. The litigation hold applies to all documents and communications in the possession, custody, or control of Northgate, NNA, and their agents, consultants, and experts — including Dr. Berger and Torrence — that relate to or are reasonably likely to relate to the claims and defenses at issue in either the district court litigation or the FCC proceeding. Dr. Berger and Torrence shall comply with the litigation hold and shall not destroy, delete, alter, or dispose of any documents or materials subject to the hold without the prior written consent of C&H.
SECTION 6: CONFLICTS OF INTEREST
By executing this Letter, Dr. Berger confirms each of the following:
(a) Neither Dr. Berger nor Torrence Policy Group LLC currently represents, advises, or provides consulting services to Ridgepoint Communications Inc., Caravel Capital Partners LP, Gregory Trent, Hargrove, Winslow & Burke LLP, or any other party adverse to Northgate or NNA in any matter related to this engagement or the subject matter thereof.
(b) Neither Dr. Berger nor Torrence Policy Group LLC has, within the preceding five (5) years, represented, advised, or provided consulting services to Ridgepoint Communications Inc. or Caravel Capital Partners LP in any matter.
(c) Dr. Berger's prior service as Deputy Bureau Chief of the FCC Wireline Competition Bureau does not create any conflict of interest, recusal obligation, or ethical bar to his serving as an expert witness or regulatory consultant in FCC Docket No. WC-23-0042 or Case No. 1:22-cv-01487-CMW. Dr. Berger has reviewed the applicable post-employment restrictions under 18 U.S.C. § 207 and the FCC's ethics regulations and has determined that no provision thereof prohibits or restricts his participation in these proceedings. Dr. Berger did not participate personally and substantially in any matter involving Northgate, NNA, or Ridgepoint during his tenure at the FCC.
(d) Dr. Berger shall promptly notify C&H in writing if, at any time during the engagement, he becomes aware of any actual or potential conflict of interest that could affect his ability to serve as an independent expert in these proceedings. Upon receipt of such notification, C&H and Dr. Berger shall confer in good faith to determine whether the conflict can be resolved or whether the engagement must be terminated.
SECTION 7: INDEPENDENCE AND PROFESSIONAL OBLIGATIONS
Dr. Berger shall exercise independent professional judgment in forming, developing, and presenting his expert opinions in connection with this engagement. His opinions must be based on his own analysis of the relevant facts, data, documents, regulatory framework, and applicable precedent. Dr. Berger acknowledges his obligation to provide truthful, accurate, and complete testimony in any proceeding in which he appears as an expert witness, and to comply with all applicable rules of professional conduct, FCC procedural rules, and the Federal Rules of Civil Procedure and Evidence.
Northgate and Calderwood & Harkness LLP do not seek to influence, direct, or dictate the substance of Dr. Berger's expert opinions. The independence and credibility of Dr. Berger's opinions are essential to the value of his engagement. However, the parties acknowledge that effective expert engagement requires collaboration regarding the scope of Dr. Berger's analysis, the presentation and organization of his opinions, the legal and regulatory context within which those opinions will be received, and the identification of issues on which expert analysis is most needed. Such collaboration is appropriate and expected and does not compromise Dr. Berger's independence.
Dr. Berger shall promptly advise C&H if, in the course of his analysis, he reaches conclusions or forms opinions that are unfavorable to Northgate's position in either proceeding. The parties agree that early identification of adverse findings is essential to the effective management of the engagement and the proceedings.
SECTION 8: TERM AND TERMINATION
The engagement shall commence as of the date of this Letter and shall continue until the final resolution of both the FCC proceeding (Docket WC-23-0042) and the district court litigation (Case No. 1:22-cv-01487-CMW), including any appeals, remands, or related proceedings, unless the engagement is earlier terminated in accordance with this Section 8.
Either party may terminate this engagement upon thirty (30) days' prior written notice to the other party. In the event of termination by either party:
(a) Dr. Berger shall promptly return to C&H, or, at C&H's written direction, securely destroy, all Confidential Information, documents, work papers, and other materials in his possession or under his control that relate to the engagement. Dr. Berger shall certify in writing to C&H that such return or destruction has been completed within fifteen (15) days of the effective date of termination.
(b) Compensation for all professional services performed and expenses incurred through the effective date of termination shall remain payable in accordance with Section 4 of this Letter, and Torrence shall submit a final invoice within thirty (30) days of the effective date of termination.
(c) The obligations of confidentiality set forth in Section 5 and the document preservation obligations set forth in Section 5.3 shall survive the termination of the engagement and shall continue in full force and effect in accordance with their terms.
(d) Dr. Berger's obligation to provide testimony in any proceeding in which his testimony has already been submitted or noticed, and his obligation to cooperate in connection with any pending Daubert challenge or other motion related to his expert opinions, shall survive termination of the engagement for a reasonable period, and compensation for any such post-termination services shall be at the rates set forth in Section 4.1.
SECTION 9: MISCELLANEOUS PROVISIONS
9.1 Governing Law. This Letter and the engagement described herein shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.
9.2 No Assignment. Neither party may assign or transfer its rights or obligations under this Letter without the prior written consent of the other party, except that C&H may assign this Letter to a successor firm in connection with a merger, acquisition, or reorganization of C&H without the consent of Torrence, provided that C&H provides written notice of any such assignment within thirty (30) days.
9.3 Entire Agreement. This Letter constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, and agreements, whether written or oral, relating to the engagement. No amendment, modification, or waiver of any provision of this Letter shall be effective unless set forth in a writing signed by authorized representatives of both Calderwood & Harkness LLP and Torrence Policy Group LLC.
9.4 Severability. If any provision of this Letter is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to render it valid and enforceable.
9.5 Notices. All notices, requests, demands, and other communications required or permitted under this Letter shall be in writing and shall be deemed duly given when delivered by hand, by nationally recognized overnight courier service, or by certified mail, return receipt requested, to the following addresses:
If to Calderwood & Harkness LLP:
Elaine Forsythe, Partner Antitrust & Competition Group Calderwood & Harkness LLP 1200 K Street NW, Suite 900 Washington, D.C. 20005
If to Torrence Policy Group LLC:
Dr. Anton Berger, Senior Advisor Torrence Policy Group LLC 7925 Jones Branch Drive, Suite 510 McLean, VA 22102
Either party may change its address for notice purposes by providing written notice to the other party in accordance with this Section 9.5.
9.6 Counterparts. This Letter may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or electronic mail (in PDF or similar format) shall have the same force and effect as delivery of an original signed counterpart.
9.7 Waiver. The failure of either party to enforce any provision of this Letter shall not constitute a waiver of that party's right to enforce such provision or any other provision in the future.
SECTION 10: SIGNATURE BLOCK AND ACCEPTANCE
We look forward to continuing our work with you on these important matters. If the terms and conditions set forth in this Letter are acceptable, please sign and return a copy of this Letter to my attention at the address above or by electronic mail.
CALDERWOOD & HARKNESS LLP
By: ________
Name: Elaine Forsythe
Title: Partner, Antitrust & Competition Group
Calderwood & Harkness LLP 1200 K Street NW, Suite 900 Washington, D.C. 20005
Date: ________
ACCEPTED AND AGREED:
By signing below, Dr. Berger acknowledges and agrees to the terms and conditions set forth in this retention letter on behalf of himself and Torrence Policy Group LLC.
TORRENCE POLICY GROUP LLC
By: ________
Name: Dr. Anton Berger
Title: Senior Advisor
Torrence Policy Group LLC 7925 Jones Branch Drive, Suite 510 McLean, VA 22102
Date: ________
APPENDIX A
LIST OF THE FOURTEEN (14) DISPUTED FACILITIES
The following facilities are the subject of the interconnection and colocation requests at issue in Ridgepoint Communications Inc. v. Northgate Telecommunications PLC and Northgate Networks America Inc., Case No. 1:22-cv-01487-CMW (E.D. Va.), and In the Matter of Northgate Networks America Inc. — Complaint Regarding Interconnection Obligations under Section 251, FCC Docket No. WC-23-0042:
APPENDIX B
CALDERWOOD & HARKNESS LLP — ENGAGEMENT TEAM CONTACT INFORMATION
The following individuals comprise the C&H engagement team for the above-referenced matters. Day-to-day coordination regarding scheduling, document production, and logistical matters should be directed to Aaron Liu, Lead Associate.
All correspondence related to invoicing and billing should be directed to Howard Bellamy. All substantive questions regarding the scope of the engagement, strategic direction, or expert testimony should be directed to Elaine Forsythe. Aaron Liu serves as the primary day-to-day contact for coordination of expert work, document requests, scheduling of conferences, and preparation for hearings and depositions.
End of Engagement Letter Engagement Letter Reference No. C&H-2022-ATR-00419
No. | Facility Address | City | State | Facility Type
1 | 401 N. Broad Street | Philadelphia | PA 19108 | Central Office
2 | 1500 Spring Garden Street | Philadelphia | PA 19130 | Central Office
3 | 100 Delancey Place | Cherry Hill | NJ 08034 | Meet-Me Room
4 | 220 S. Warren Street | Trenton | NJ 08608 | Central Office
5 | 700 E. Pratt Street | Baltimore | MD 21202 | Central Office
6 | 1 W. Fayette Street | Baltimore | MD 21201 | Meet-Me Room
7 | 33 S. Gay Street | Baltimore | MD 21202 | Central Office
8 | 9221 Corporate Boulevard | Rockville | MD 20850 | Meet-Me Room
9 | 1200 New Hampshire Avenue NW | Washington | D.C. 20036 | Central Office
10 | 600 New Jersey Avenue NW | Washington | D.C. 20001 | Meet-Me Room
11 | 44755 Prentice Drive | Ashburn | VA 20147 | Central Office
12 | 21571 Beaumeade Circle | Ashburn | VA 20147 | Meet-Me Room
13 | 1807 Michael Faraday Court | Reston | VA 20190 | Central Office
14 | 8100 Boone Boulevard | Tysons Corner | VA 22182 | Central Office
Role | Name | Direct Telephone | Email
Responsible Partner | Elaine Forsythe | (202) 555-7112 | eforsythe@calderwoodharkness.com
Billing Partner | Howard Bellamy | (202) 555-7138 | hbellamy@calderwoodharkness.com
Lead Associate | Aaron Liu | (202) 555-7224 | aliu@calderwoodharkness.com
Working Associate | Monica Reyes | (202) 555-7261 | mreyes@calderwoodharkness.com