BEFORE THE FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of
Northgate Networks America Inc.
Complaint Regarding Interconnection Obligations Under Section 251
Docket No. WC-23-0042
PRE-HEARING BRIEF OF NORTHGATE NETWORKS AMERICA INC.
Filed: January 8, 2024
In Advance of Evidentiary Hearing Rescheduled to January 22–24, 2024 Before Administrative Law Judge Robert Fenwick
Counsel for Northgate Networks America Inc.:
Elaine Forsythe, Responsible Partner Howard Bellamy, Partner Aaron Liu, Lead Associate Monica Reyes, Associate
CALDERWOOD & HARKNESS LLP 1200 K Street NW, Suite 900 Washington, D.C. 20005 Telephone: (202) 555-4100 Facsimile: (202) 555-4199
On Behalf of: Northgate Networks America Inc. 8200 Dulles Corner Boulevard, Suite 1100 Tysons Corner, VA 22182
TABLE OF AUTHORITIES
Statutes and Legislative Materials
FCC Orders and Decisions
Court Decisions.
Regulations.
I. INTRODUCTION
Northgate Networks America Inc. ("NNA" or "Respondent") respectfully submits this Pre-Hearing Brief to Administrative Law Judge Robert Fenwick in advance of the evidentiary hearing scheduled for January 22–24, 2024 in the above-captioned proceeding. NNA is a Delaware corporation and wholly owned United States subsidiary of Northgate Telecommunications PLC, a public limited company organized under the laws of England and Wales (Company No. 07824561), whose American Depositary Receipts are listed on the Nasdaq Global Select Market under the ticker symbol NTP. NNA owns and operates approximately 42,000 route-miles of fiber-optic backbone and metro-ring infrastructure across 18 states, concentrated primarily along the eastern seaboard of the United States, and additionally offers enterprise cloud-connectivity solutions and SaaS-based network management platforms marketed under the NorthgateOS™ brand. For the fiscal year ended December 31, 2022, the Northgate Group reported consolidated revenue of £4.87 billion (approximately $5.96 billion at prevailing exchange rates), of which NNA's United States operations contributed approximately $2.41 billion, representing 40.4% of consolidated group revenue. NNA's U.S. operations are led by Diane Okoro, U.S. President, and its regulatory compliance is overseen by Patrick Salazar, Chief Regulatory Officer.
Complainant Ridgepoint Communications Inc. ("Ridgepoint" or "Complainant") is a Delaware corporation headquartered at 3500 Market Street, Suite 700, Philadelphia, Pennsylvania 19104. Ridgepoint operates as a competitive local exchange carrier ("CLEC") and enterprise broadband provider in Pennsylvania, New Jersey, Delaware, Maryland, and Virginia, maintaining approximately 6,200 route-miles of owned and leased fiber-optic infrastructure. For the fiscal year ended December 31, 2022, Ridgepoint reported revenue of approximately $387 million and employed approximately 1,450 persons. Ridgepoint is a privately held company, with approximately 78% of its equity held by Caravel Capital Partners LP, a Philadelphia-based private equity fund, since a leveraged buyout transaction completed in November 2018 at a reported valuation of approximately $510 million. The remaining approximately 22% of Ridgepoint's equity is retained by Gregory Trent, the company's Chief Executive Officer and founder, and members of his family.
On February 7, 2023, Ridgepoint filed a complaint with the Federal Communications Commission (the "Commission" or "FCC"), initiating this proceeding under Docket No. WC-23-0042. Ridgepoint alleges that NNA violated its interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996 (the "Act"). Specifically, the complaint arises from Ridgepoint's series of requests, submitted between March 2021 and August 2022, for interconnection and physical colocation access at 14 NNA central-office and meet-me-room facilities located in the Philadelphia–Baltimore–Washington, D.C. corridor. NNA declined each of these requests on grounds that are, as this brief will demonstrate, wholly consistent with its legal obligations and commercially reasonable business practices.
This FCC proceeding does not exist in isolation. Ridgepoint's complaint before this Commission parallels — and was filed in the wake of — a pending federal antitrust action styled Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW, in the United States District Court for the Eastern District of Virginia, Alexandria Division. That action, filed on September 19, 2022, asserts a single count of monopolization under Section 2 of the Sherman Act, 15 U.S.C. § 2, and seeks treble damages in excess of $381 million. By order dated March 14, 2023, the Honorable Claudia M. Wentworth stayed the district court proceedings pending resolution of this FCC proceeding, recognizing the Commission's primary jurisdiction over the interconnection issues at the heart of Ridgepoint's claims. The temporal relationship between the two proceedings is instructive: Ridgepoint launched its antitrust lawsuit first, and only after NNA invoked the primary jurisdiction doctrine did Ridgepoint file this FCC complaint — strongly suggesting that the regulatory proceeding is being used as a strategic instrument in Ridgepoint's broader litigation campaign rather than as a genuine effort to secure interconnection through the regulatory process Congress established.
NNA's position in this proceeding is straightforward. NNA's interconnection practices fully comply with its obligations under Sections 251 and 252 of the Act. NNA's Wholesale Access Policy ("WAP"), adopted in January 2020 — more than a year before Ridgepoint submitted its first interconnection request — is a commercially reasonable, generally applicable business policy that governs third-party physical colocation at NNA facilities. The WAP was designed to optimize the allocation of limited facility capacity for higher-value wholesale relationships, and it applies uniformly to all third-party carriers without targeting Ridgepoint or any specific competitor. NNA's denial of Ridgepoint's requests was justified by three independent grounds: (1) genuine and demonstrable capacity constraints at each of the 14 facilities, all of which were at or above 85% capacity utilization at the time of Ridgepoint's requests; (2) the absence of any prior course of dealing between NNA and Ridgepoint at the specific facilities in question; and (3) Ridgepoint's failure to satisfy the WAP's minimum annual revenue commitment of $5 million, against Ridgepoint's actual aggregate annual spend with NNA of approximately $1.8 million. Moreover, several of the 14 facilities are located in service territories where NNA operates as a competitive carrier, not as an incumbent local exchange carrier ("ILEC"), and are therefore not subject to the enhanced interconnection and colocation obligations of Section 251(c) in the first instance.
The evidentiary hearing in this matter was originally scheduled for September 2023 pursuant to ALJ Fenwick's scheduling order of June 12, 2023, but was postponed to January 22–24, 2024 by order of August 28, 2023 due to Commission staffing constraints. NNA has used the additional time to prepare a thorough factual and legal presentation, and it is confident that the evidence to be adduced at the hearing will fully support the arguments set forth in this brief.
For the reasons detailed below, NNA respectfully requests that Administrative Law Judge Fenwick dismiss Ridgepoint's complaint in its entirety.
II. STATEMENT OF FACTS
A. The Parties
1. Northgate Networks America Inc. Northgate Networks America Inc. is a Delaware corporation, Employer Identification Number 54-3298176, and a wholly owned subsidiary of Northgate Telecommunications PLC, a company incorporated under the laws of England and Wales with its registered office and principal executive offices at 14 Broadwall Lane, London SE1 9PQ, United Kingdom. NNA's principal offices in the United States are located at 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, Virginia 22182.
NNA owns and operates approximately 42,000 route-miles of fiber-optic backbone and metro-ring infrastructure spanning 18 states, primarily along the eastern seaboard of the United States. NNA's network serves as a critical component of the national telecommunications infrastructure, carrying wholesale transport traffic for a broad range of domestic and international carriers, Internet service providers, and enterprise customers. In addition to its fiber-optic transport business, NNA provides enterprise cloud-connectivity services and offers SaaS-based network management platforms marketed under the NorthgateOS™ brand. NorthgateOS™ enables enterprise customers and wholesale partners to monitor, provision, and manage network resources in real time through a cloud-based interface.
NNA operates in a mixed regulatory environment. In certain service territories, NNA is classified as an incumbent local exchange carrier ("ILEC"), having acquired legacy local exchange carrier operations through a series of acquisitions during the 2005–2012 period. In other service territories — including portions of the Philadelphia–Baltimore–Washington, D.C. corridor at issue in this proceeding — NNA operates as a competitive carrier, having entered those markets by constructing new fiber-optic facilities in competition with the existing ILECs. This distinction is of critical importance to the legal analysis, as NNA will demonstrate in Section IV.A below.
The parent company, Northgate Telecommunications PLC, is a publicly traded company listed on the London Stock Exchange and, through its American Depositary Receipt program, on the Nasdaq Global Select Market (ticker: NTP). As of September 2022, Northgate PLC had an approximate market capitalization of $11.3 billion. For the fiscal year ended December 31, 2022, the Northgate Group reported consolidated revenue of £4.87 billion (approximately $5.96 billion), of which NNA's U.S. operations contributed approximately $2.41 billion, representing approximately 40.4% of consolidated group revenue. NNA is among the largest competitive and mixed-status carriers in the eastern United States and serves a customer base that includes major national wireless carriers, regional CLECs, Internet service providers, financial institutions, healthcare networks, and federal and state government agencies.
NNA's U.S. operations are led by Diane Okoro, who serves as U.S. President and has held that position since 2019. Ms. Okoro is responsible for the overall strategic direction and operational management of NNA's U.S. business. Patrick Salazar serves as Chief Regulatory Officer for Northgate Telecommunications PLC and oversees NNA's regulatory compliance in the United States. Catherine Ng serves as U.S. Deputy General Counsel and is responsible for the day-to-day management of NNA's legal affairs in the United States, including interconnection disputes and regulatory proceedings.
2. Ridgepoint Communications Inc. Ridgepoint Communications Inc. is a Delaware corporation, Employer Identification Number 23-4157892, with its principal offices at 3500 Market Street, Suite 700, Philadelphia, Pennsylvania 19104. Ridgepoint operates as a competitive local exchange carrier ("CLEC") and enterprise broadband provider in five states: Pennsylvania, New Jersey, Delaware, Maryland, and Virginia. Ridgepoint maintains approximately 6,200 route-miles of owned and leased fiber-optic infrastructure and serves enterprise, government, and wholesale customers throughout its service territory.
Gregory Trent is Ridgepoint's Chief Executive Officer and founder. Mr. Trent founded Ridgepoint in 2003 as a small enterprise broadband provider in the Philadelphia metropolitan area and grew the company over the following decade into a regional CLEC with operations across the Mid-Atlantic states. Samira Hashemi serves as Ridgepoint's Chief Operating Officer, and Theodore Braun serves as General Counsel. For the fiscal year ended December 31, 2022, Ridgepoint reported revenue of approximately $387 million and employed approximately 1,450 persons.
In November 2018, Caravel Capital Partners LP, a Philadelphia-based private equity fund managed by Richard Cavanaugh, completed a leveraged buyout of Ridgepoint at a valuation of approximately $510 million. As a result of that transaction, Caravel Capital Partners LP holds approximately 78% of Ridgepoint's equity. Mr. Trent and members of his family retained the remaining approximately 22% equity stake, and Mr. Trent has continued to serve as Chief Executive Officer since the buyout. The financial backing and litigation resources of Caravel Capital Partners LP are relevant to the posture of this proceeding, as discussed in Section IV.E below.
Ridgepoint is represented in this FCC proceeding and in the parallel district court litigation by Hargrove, Winslow & Burke LLP, a Washington, D.C.-based law firm. Victoria Hargrove serves as Lead Partner and Daniel Stoyanov serves as Senior Associate on the Ridgepoint engagement.
B. The 14 Facilities at Issue
Ridgepoint's complaint concerns NNA's denial of interconnection and physical colocation access at 14 specific NNA central-office and meet-me-room facilities located in the Philadelphia–Baltimore–Washington, D.C. corridor. These facilities span portions of Pennsylvania, New Jersey, Maryland, Virginia, and the District of Columbia, and they serve as critical nodes in NNA's fiber-optic backbone and metro-ring network. The 14 facilities are identified below by address, together with their geographic sub-region:
Philadelphia Metropolitan Area (Pennsylvania and New Jersey):
1. 401 N. Broad Street, Philadelphia, PA 19108
2. 1500 Spring Garden Street, Philadelphia, PA 19130
3. 100 Delancey Place, Cherry Hill, NJ 08034
4. 220 S. Warren Street, Trenton, NJ 08608
Baltimore Metropolitan Area (Maryland):
5. 700 E. Pratt Street, Baltimore, MD 21202
6. 1 W. Fayette Street, Baltimore, MD 21201
7. 33 S. Gay Street, Baltimore, MD 21202
Washington, D.C. Metropolitan Area (Maryland, D.C., and Virginia):
8. 9221 Corporate Boulevard, Rockville, MD 20850
9. 1200 New Hampshire Avenue NW, Washington, D.C. 20036
10. 600 New Jersey Avenue NW, Washington, D.C. 20001
11. 44755 Prentice Drive, Ashburn, VA 20147
12. 21571 Beaumeade Circle, Ashburn, VA 20147
13. 1807 Michael Faraday Court, Reston, VA 20190
14. 8100 Boone Boulevard, Tysons Corner, VA 22182
The geographic concentration of these 14 facilities is noteworthy. They span the full length of the Philadelphia–Baltimore–Washington, D.C. corridor, which is one of the most densely served telecommunications corridors in the United States. This corridor is home to multiple competing fiber-optic networks operated by established ILECs such as Ashgrove & Co. and Ostrander Industries, competitive carriers such as Stonefield Corporation, Westmark Partners LLC, and Crestline Industries, and numerous data-center operators and colocation providers such as Ashford & Co., Tidewater Partners LLC, and Sterling Reach Enterprises. Ridgepoint's characterization of NNA as possessing monopoly power in this corridor — a claim central to its parallel antitrust action — is inconsistent with the competitive reality of the market.
Each of these 14 facilities serves as a central-office or meet-me-room location for NNA's fiber-optic backbone and metro-ring network. Meet-me rooms are physical spaces within a facility where multiple carriers can interconnect by placing equipment in close proximity to one another. Central-office facilities house NNA's own network electronics, optical transport equipment, and routing infrastructure. The physical space, power capacity, cooling capacity, and cable tray infrastructure at each facility are finite and represent real operational constraints on the number of colocation tenants that can be accommodated.
NNA will present facility-specific capacity utilization data for each of the 14 facilities through the testimony of Patrick Salazar, Chief Regulatory Officer, and supporting documentary evidence. As detailed in Exhibit E, each of the 14 facilities was at or above 85% capacity utilization — measured by a composite metric encompassing equipment rack occupancy, power consumption relative to available capacity, and floor-space utilization — at the time of Ridgepoint's interconnection and colocation requests. Several facilities, particularly those in the Ashburn, Virginia data-center cluster (Facilities 11 and 12), were operating at capacity utilization levels in excess of 92%.
C. The Wholesale Access Policy (WAP)
NNA's Wholesale Access Policy (the "WAP") was adopted in January 2020 as a company-wide policy governing third-party physical colocation at NNA-owned and NNA-operated facilities. The complete text of the WAP is attached to this brief as Exhibit A.
The WAP establishes a framework for evaluating and processing requests from third-party telecommunications carriers for physical colocation access at NNA facilities. Under the WAP, new physical colocation is restricted to third-party carriers that qualify as "wholesale partners" — defined as carriers that maintain a minimum annual revenue commitment of $5 million with NNA. The revenue commitment threshold is measured based on the requesting carrier's aggregate annual spend with NNA across all services and all locations, including wholesale transport, backhaul, dark fiber, and other network services. The WAP requires that the revenue commitment be evidenced by an executed master services agreement or wholesale services agreement with NNA.
The WAP was developed in response to a specific set of market conditions that existed in 2019 and early 2020. During that period, NNA experienced a significant increase in demand for colocation space from its existing high-volume wholesale customers, driven in part by the rapid expansion of 5G wireless networks and the associated demand for additional fiber-to-tower and fiber-to-small-cell backhaul capacity. NNA's existing high-value wholesale customers — including major wireless carriers and national enterprise customers — required additional equipment space, power capacity, and cross-connect infrastructure at NNA facilities to support network densification. At the same time, NNA's facilities in the densest metropolitan corridors, including the Philadelphia–Baltimore–Washington, D.C. corridor, were approaching or exceeding practical capacity limits.
In this context, NNA's operations, finance, and regulatory teams undertook a comprehensive internal business review to develop a colocation access policy that would ensure the efficient allocation of scarce physical resources. The resulting WAP reflects a deliberate business judgment that NNA's limited colocation capacity should be allocated to wholesale partners whose revenue commitments are sufficient to justify the substantial capital and operational costs associated with accommodating third-party equipment, including power provisioning, cooling, physical security, cable management, and ongoing facility maintenance. The $5 million minimum revenue commitment threshold was set based on NNA's internal analysis of the breakeven point at which the marginal costs of accommodating a new colocation tenant are offset by the incremental revenue generated by the wholesale relationship.
Critically, the WAP is a generally applicable policy. It applies uniformly to all third-party carriers seeking new physical colocation at NNA facilities. The WAP was not designed to target Ridgepoint or any specific competitor. NNA will present evidence at the evidentiary hearing, including internal records and testimony from Patrick Salazar, demonstrating that the WAP has been applied consistently to multiple carriers that have sought and been denied new colocation access on the same grounds as Ridgepoint.
D. Ridgepoint's Interconnection and Colocation Requests
Between March 2021 and August 2022, Ridgepoint submitted written requests to NNA seeking interconnection and physical colocation access at each of the 14 facilities identified in Section II.B above. The requests were submitted on a rolling basis over the 18-month period, with the earliest request (directed to the 401 N. Broad Street, Philadelphia facility) dated March 12, 2021, and the final request (directed to the 8100 Boone Boulevard, Tysons Corner facility) dated August 9, 2022. Copies of all 14 requests are attached as Exhibit C.
Each of Ridgepoint's requests sought physical colocation space — specifically, the installation of Ridgepoint-owned equipment racks, optical transport electronics, and cross-connect cabling within NNA's meet-me rooms or central-office facilities — for the purpose of providing last-mile enterprise fiber-optic transport services to Ridgepoint's customers in the surrounding metropolitan areas. Ridgepoint's requests varied in scope from facility to facility, ranging from requests for a single equipment rack and associated power and cross-connect infrastructure to requests for multiple racks and dedicated cage space.
NNA evaluated each of Ridgepoint's requests through its standard review process under the WAP and declined each request. NNA's denial letters, copies of which are attached as Exhibit D, articulated three independent grounds for the denial:
(a) Capacity Constraints. Each of the 14 facilities was at or above 85% capacity utilization at the time of Ridgepoint's request, and NNA determined that accommodating Ridgepoint's requested colocation would compromise the facility's ability to serve existing customers and meet the capacity needs of NNA's own network operations.
(b) Absence of Prior Course of Dealing. Ridgepoint had no existing colocation presence at any of the 14 facilities. While Ridgepoint had previously maintained colocation at three separate NNA facilities in northern Virginia under the expired Master Interconnection Agreement, that prior relationship did not extend to the 14 facilities at issue.
(c) Failure to Meet WAP Minimum Revenue Commitment. Ridgepoint's aggregate annual spend with NNA in fiscal year 2021 was approximately $1.8 million, well below the WAP's $5 million minimum annual revenue commitment threshold. Ridgepoint did not have an executed master services agreement or wholesale services agreement meeting the WAP's requirements.
Each of these grounds independently supports NNA's decision to deny Ridgepoint's requests, and taken together, they establish an overwhelming justification for the denial. Ridgepoint's aggregate annual spend of $1.8 million represented only 36% of the $5 million threshold — a gap of $3.2 million that underscores the substantial distance between Ridgepoint's commercial relationship with NNA and the level of engagement required under the WAP.
E. The Prior Master Interconnection Agreement (MIA)
NNA and Ridgepoint were previously parties to a Master Interconnection Agreement ("MIA") dated June 15, 2015. The complete text of the MIA is attached as Exhibit B. The MIA was a negotiated interconnection agreement that granted Ridgepoint physical colocation access at three specific NNA facilities located in northern Virginia:
(i) A facility in Herndon, Virginia;
(ii) A facility in Chantilly, Virginia; and
(iii) A facility in Manassas, Virginia.
It is essential to emphasize that none of these three facilities are among the 14 facilities that are the subject of Ridgepoint's complaint in this proceeding. The MIA was limited in scope to the three northern Virginia facilities and did not contemplate or provide for any expansion of Ridgepoint's colocation access to other NNA facilities.
The MIA was executed for a term of five years and expired by its own terms on June 14, 2020. In the months preceding the MIA's expiration, NNA and Ridgepoint engaged in discussions regarding a potential renewal. Ultimately, NNA declined to renew the MIA on its prior terms, citing the newly adopted WAP and Ridgepoint's failure to meet the WAP's minimum annual revenue commitment of $5 million. Ridgepoint's aggregate annual spend with NNA at the time of the MIA's expiration was approximately $1.6 million, and it had not increased materially by the time of Ridgepoint's subsequent interconnection requests in 2021 and 2022.
Despite the expiration of the MIA, NNA did not require Ridgepoint to remove its equipment from the three northern Virginia facilities. Instead, NNA permitted Ridgepoint to continue occupying the three existing colocation spaces under a month-to-month holdover arrangement. Under the holdover arrangement, Ridgepoint pays a monthly rate of $14,400 per facility, compared to the prior contractual rate under the MIA of $12,000 per facility. The holdover premium of $2,400 per facility per month (a 20% increase over the prior rate) reflects the additional administrative and operational costs associated with a month-to-month arrangement, as well as the opportunity cost of the space. The aggregate holdover premium across the three facilities is $7,200 per month, or $86,400 per year. The holdover arrangement documentation is attached as Exhibit G.
The existence and continuation of the holdover arrangement is significant for two reasons. First, it demonstrates that NNA has maintained an ongoing, if limited, commercial relationship with Ridgepoint on reasonable commercial terms. NNA has not sought to evict Ridgepoint from the three northern Virginia facilities or to terminate the holdover arrangement. This is inconsistent with Ridgepoint's narrative that NNA is engaged in a campaign of exclusionary conduct designed to drive Ridgepoint from the market. Second, and equally important, the holdover arrangement underscores the distinction between the three northern Virginia facilities — where Ridgepoint has an established colocation presence — and the 14 facilities at issue in this proceeding, where Ridgepoint has never had any colocation presence whatsoever. The prior MIA created a relationship-specific entitlement at three particular facilities. It did not and could not create a general right of access to NNA's entire network of facilities.
F. Parallel District Court Litigation
On September 19, 2022, approximately five months before filing its FCC complaint, Ridgepoint initiated a federal antitrust action against NNA and affiliated entities in the United States District Court for the Eastern District of Virginia, Alexandria Division. The case is styled Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW, and is assigned to the Honorable Claudia M. Wentworth, United States District Judge.
Ridgepoint's district court complaint asserts a single count under Section 2 of the Sherman Act, 15 U.S.C. § 2, alleging that NNA has unlawfully monopolized the purported market for "last-mile enterprise fiber-optic transport services at speeds of 1 Gbps and above in the Philadelphia–Baltimore–Washington, D.C. corridor." Ridgepoint claims that NNA possesses a 68% share of this purportedly relevant market and that NNA's refusal to provide Ridgepoint with interconnection and colocation access at the 14 facilities constitutes an anticompetitive refusal to deal. Ridgepoint seeks damages of $127 million in alleged lost profits, which, if trebled under Section 4 of the Clayton Act, 15 U.S.C. § 15, would total $381 million.
On November 14, 2022, NNA filed a Motion to Dismiss the district court complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In that motion, NNA argued, inter alia, that Ridgepoint had defined the relevant market in an artificially narrow manner to inflate NNA's apparent market share, that NNA's refusal to deal was commercially justified and did not constitute anticompetitive conduct under the standard set forth in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), and that the antitrust claims were barred by the filed rate doctrine and the saving clause of the Telecommunications Act.
On March 6, 2023, following the filing of Ridgepoint's FCC complaint, NNA filed a Motion to Stay the district court proceedings based on the primary jurisdiction doctrine, arguing that the FCC possesses specialized expertise over the interconnection disputes at the heart of Ridgepoint's claims and that the district court should defer to the Commission's resolution of those issues before proceeding with the antitrust action. By order dated March 14, 2023, Judge Wentworth granted NNA's Motion to Stay, holding that the FCC's determination of the interconnection issues would "materially inform" the resolution of the antitrust claims and that judicial efficiency warranted a stay pending the outcome of the FCC proceeding. Judge Wentworth denied NNA's Motion to Dismiss without prejudice, preserving NNA's right to renew the motion following the conclusion of the FCC proceeding.
The district court action remains dormant pending the resolution of this proceeding. The posture of the parallel litigation underscores the FCC's central role and recognized expertise in adjudicating the interconnection issues presented by Ridgepoint's claims. It also illuminates the strategic dimensions of Ridgepoint's regulatory complaint, as discussed further in Section IV.E below.
G. Procedural History of the FCC Proceeding
The procedural history of this FCC proceeding is as follows:
February 7, 2023: Ridgepoint Communications Inc. filed its complaint with the Federal Communications Commission under Docket No. WC-23-0042, alleging that NNA violated its interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended. The complaint was designated for adjudication before the FCC's Office of Administrative Law Judges.
Approximately March 2023: NNA filed its Answer and Affirmative Defenses, denying the material allegations of the complaint and asserting, inter alia, that: (a) several of the 14 facilities are located in service territories where NNA operates as a competitive carrier and not as an ILEC; (b) the WAP is commercially reasonable and uniformly applied; (c) capacity constraints at the 14 facilities justified NNA's denial of Ridgepoint's requests; and (d) Ridgepoint failed to exhaust available regulatory remedies under Section 252 before filing this complaint.
June 12, 2023: Administrative Law Judge Robert Fenwick issued a scheduling order setting the evidentiary hearing for September 2023 and establishing deadlines for pre-hearing disclosures, witness lists, and exhibit submissions.
August 28, 2023: By order of ALJ Fenwick, the evidentiary hearing was postponed from September 2023 to January 22–24, 2024 due to FCC staffing constraints.
January 8, 2024: Pre-hearing briefs due. NNA submits this Pre-Hearing Brief.
January 22–24, 2024: Evidentiary hearing scheduled before ALJ Fenwick.
III. LEGAL FRAMEWORK
A. Interconnection Obligations Under Section 251
The legal framework governing this dispute is rooted in Sections 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996. Section 251 establishes a tiered structure of interconnection obligations that vary depending on the regulatory classification of the carrier at issue.
Section 251(a) imposes a general duty on all telecommunications carriers — both ILECs and competitive carriers — to interconnect directly or indirectly with the facilities and equipment of other telecommunications carriers. 47 U.S.C. § 251(a)(1). This general duty, however, does not mandate specific terms, conditions, or physical arrangements for interconnection. It is a baseline obligation that establishes the principle that telecommunications carriers must permit interconnection to occur but does not dictate the precise manner in which interconnection must be provided.
Section 251(b) imposes additional obligations on all local exchange carriers ("LECs"), including the duty to permit resale, to provide number portability, to provide dialing parity, to afford access to rights-of-way, and to establish reciprocal compensation arrangements for the transport and termination of telecommunications. 47 U.S.C. § 251(b). These obligations apply to all LECs — both ILECs and CLECs — but they do not include a mandatory colocation obligation.
Section 251(c) imposes the most stringent obligations, and these obligations apply exclusively to ILECs. 47 U.S.C. § 251(c). Relevant to this proceeding, Section 251(c)(2) requires ILECs to negotiate interconnection agreements with requesting carriers on "rates, terms, and conditions that are just, reasonable, and nondiscriminatory." Section 251(c)(3) requires ILECs to provide nondiscriminatory access to network elements on an unbundled basis at any technically feasible point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory. And Section 251(c)(6) — the provision most directly at issue in this proceeding — requires ILECs to provide physical colocation of equipment necessary for interconnection or access to unbundled network elements at the ILEC's premises, or, if physical colocation is not practical for technical reasons or because of space limitations, to provide virtual colocation. 47 U.S.C. § 251(c)(6).
The Supreme Court has confirmed that the tiered structure of Section 251 is deliberate and reflects Congress's judgment that different carriers should bear different levels of interconnection obligations depending on their market position and regulatory classification. See Quillon Industries v. Iowa Utilities Bd., 525 U.S. 366, 371–72 (1999); Harborview Holdings Inc. v. FCC, 535 U.S. 467, 489–91 (2002). The enhanced obligations of Section 251(c) — including the mandatory colocation obligation of Section 251(c)(6) — are imposed on ILECs because of their historical monopoly control over local exchange facilities and the corresponding need to ensure competitive access to those facilities. These obligations do not extend to carriers operating in a competitive capacity.
The distinction between Section 251(c)(6) colocation obligations and the general interconnection duty is of paramount importance in this case. The mandatory colocation obligation of Section 251(c)(6) applies only to carriers that are classified as ILECs at the specific premises where colocation is requested. 47 C.F.R. §§ 51.323, 51.5. A carrier that holds ILEC status in some service territories but operates as a competitive carrier in other territories is subject to Section 251(c) obligations only at those premises falling within its ILEC service areas. Not all facilities of a carrier classified as an ILEC in some areas are subject to Section 251(c) obligations; the classification depends on the specific service territory and regulatory status of each individual facility.
Moreover, even where Section 251(c)(6) applies, the Commission and the courts have recognized that the colocation obligation is not unlimited. The FCC's rules implementing Section 251(c)(6) provide that an ILEC must provide physical colocation unless it can demonstrate that physical colocation is "not practical for technical reasons or because of space limitations." 47 C.F.R. § 51.323(b)(3). The ILEC bears the burden of demonstrating impracticability, but the Commission has recognized that demonstrable capacity constraints — including constraints on available floor space, power capacity, and cooling capacity — can justify the denial of physical colocation requests. See, e.g., Triennial Review Remand Order, 20 FCC Rcd at 2615–16.
Additionally, the scope of the ILEC's unbundling and colocation obligations has been significantly narrowed by the Commission's Triennial Review Order and Triennial Review Remand Order ("TRRO"). In the TRRO, the Commission eliminated mandatory unbundling obligations for certain high-capacity transport and local loop facilities in markets where competitive alternatives are available, recognizing that unbundling mandates designed for a monopoly era are no longer appropriate in markets where competitive entry has occurred. 20 FCC Rcd at 2541–47. The TRRO's framework for evaluating unbundling obligations based on market-specific competitive conditions is directly relevant to the analysis of the 14 facilities at issue, several of which are located in densely served metropolitan areas with multiple competing fiber-optic networks.
B. Section 252 and Interconnection Agreements
Section 252 of the Act establishes the procedural framework for the negotiation, arbitration, and approval of interconnection agreements between ILECs and requesting carriers. 47 U.S.C. § 252. This framework is an integral part of the statutory scheme and reflects Congress's preference for negotiated outcomes, supplemented by a structured arbitration process where negotiations fail.
Under Section 252(a), an ILEC receiving a request for interconnection under Section 251 has a duty to negotiate in good faith the terms and conditions of an interconnection agreement with the requesting carrier. 47 U.S.C. § 252(a)(1). The parties may voluntarily negotiate and reach agreement on all terms, and any such agreement must be submitted to the relevant state commission for approval. 47 U.S.C. § 252(e).
Where negotiations fail, Section 252(b) provides that either party may petition the relevant state public utility commission to arbitrate any open issues. 47 U.S.C. § 252(b)(1). The arbitration process is designed to provide a structured, regulatory mechanism for resolving interconnection disputes at the state level, with the state commission applying the standards and pricing methodologies established by the FCC's rules. The state commission must resolve the arbitration and approve the resulting agreement within the timeframes established by the statute.
The procedural framework of Section 252 is relevant to this proceeding for a critical reason: Ridgepoint did not invoke it. The Master Interconnection Agreement between NNA and Ridgepoint, dated June 15, 2015, was a negotiated interconnection agreement that governed the parties' relationship with respect to the three northern Virginia facilities. That agreement expired by its own terms on June 14, 2020. Following the expiration of the MIA, Ridgepoint did not initiate negotiations for a new interconnection agreement under Section 252(a). Ridgepoint did not submit a formal request for negotiation of interconnection terms under the Section 252 framework. And Ridgepoint did not petition any state public utility commission — in Pennsylvania, New Jersey, Maryland, Virginia, or the District of Columbia — for arbitration under Section 252(b).
Instead, Ridgepoint submitted a series of ad hoc interconnection and colocation requests over a period of 18 months, received denials based on NNA's stated commercial and capacity grounds, and then filed the present FCC complaint. Ridgepoint's failure to avail itself of the regulatory process Congress specifically created for the resolution of interconnection disputes is relevant both to the merits of the complaint and to the question of whether this complaint represents a good-faith pursuit of regulatory relief or a strategic litigation maneuver. See Ashgrove & Co. Md. Inc. v. Public Service Comm'n of Md., 535 U.S. 635, 638–40 (2002) (discussing the role of state commissions in the interconnection process).
C. Commercial Reasonableness Standard
The Commission and the courts have established that a carrier's colocation and interconnection terms must be "just, reasonable, and nondiscriminatory." 47 U.S.C. § 251(c)(2). This standard does not require a carrier to provide access on any terms demanded by a requesting carrier, nor does it prohibit a carrier from imposing commercially reasonable conditions on access.
The Commission has long recognized that carriers may impose commercially reasonable terms on colocation and interconnection arrangements, including minimum revenue commitments, creditworthiness requirements, insurance obligations, and operational standards, provided that such conditions are applied uniformly and serve legitimate business purposes. See Local Competition Order, 11 FCC Rcd at 15838–39. A carrier's colocation terms are not "unreasonable" or "discriminatory" simply because they impose conditions that a particular requesting carrier is unable or unwilling to meet. The test is whether the conditions are reasonably related to legitimate business objectives and are applied in a nondiscriminatory manner — that is, applied consistently to all similarly situated carriers.
Capacity constraints are a recognized justification for limiting third-party colocation access. Where a facility is operating at or near capacity, the carrier has a legitimate interest in preserving sufficient space, power, and cooling resources to serve its existing customers and to maintain the operational integrity of its network. The Commission has recognized that accommodating additional colocation tenants in a capacity-constrained facility can create operational risks — including power overloading, cooling inefficiencies, and impaired ability to provision services for existing customers — that justify the carrier's refusal to accept new colocation requests. See, e.g., Cavalier Communications Inc. v. Ashgrove & Co. Virginia Inc., 22 FCC Rcd at 9763–64; NTELOS Telephone Inc., 26 FCC Rcd at 6172.
In evaluating the commercial reasonableness of a carrier's access terms, the Commission considers the totality of the circumstances, including the carrier's business rationale for the challenged terms, the extent to which the terms are applied uniformly, the availability of alternative means of interconnection, and the practical impact of the terms on the requesting carrier's ability to compete. See Covad Communications Co. v. Thackeray Corporation, 398 F.3d 666, 672–73 (D.C. Cir. 2005); Advanced TelCom, Inc. v. Pacific Bell Telephone Co., 15 FCC Rcd at 3870–71. The Commission has not adopted a bright-line rule requiring carriers to grant every colocation request regardless of capacity constraints, revenue commitment thresholds, or other commercially reasonable conditions.
D. Burden of Proof
Under the Commission's procedural rules governing complaint proceedings, the complainant bears the burden of establishing by a preponderance of the evidence that the respondent has violated its obligations under the Act or the Commission's rules. 47 C.F.R. §§ 1.720–1.736. The burden of proof does not shift; the complainant must affirmatively demonstrate the elements of its claim, and the respondent is entitled to dismissal if the complainant fails to carry its burden.
In this proceeding, Ridgepoint bears the burden of establishing by a preponderance of the evidence that NNA violated its obligations under Sections 251 and/or 252. To prevail, Ridgepoint must demonstrate that: (1) each of the 14 specific facilities is subject to Section 251(c) colocation obligations — that is, that NNA operates as an ILEC at each facility; (2) NNA's refusal to provide colocation was not commercially reasonable under the circumstances; and (3) NNA's stated justifications — capacity constraints, absence of prior course of dealing, and failure to meet the WAP's revenue threshold — are pretextual. Failure to establish any one of these elements is fatal to Ridgepoint's claim.
As detailed in Section IV below, the evidence to be presented at the evidentiary hearing will demonstrate that Ridgepoint cannot carry its burden on any of these elements.
IV. ARGUMENT
A. The 14 Facilities Are Not Subject to Mandatory Unbundling or Colocation Requirements
The threshold issue in this proceeding is whether NNA is subject to the enhanced interconnection and colocation obligations of Section 251(c) at each of the 14 facilities where Ridgepoint sought access. The answer, for a significant number of these facilities, is no.
As noted above, NNA operates in a mixed regulatory environment. NNA holds ILEC status in certain service territories — primarily areas where NNA acquired legacy local exchange carrier operations during the 2005–2012 period. In other service territories, including substantial portions of the Philadelphia–Baltimore–Washington, D.C. corridor, NNA entered as a competitive carrier by constructing new fiber-optic facilities in competition with the existing ILECs (principally Ashgrove & Co. and the former Bell Atlantic). In those competitive-entry service areas, NNA is a competitive carrier, not an ILEC, and is not subject to the enhanced obligations of Section 251(c), including the mandatory colocation obligation of Section 251(c)(6).
NNA will present facility-by-facility evidence at the evidentiary hearing establishing the regulatory classification of each of the 14 facilities. This evidence will be presented through the testimony of Patrick Salazar, NNA's Chief Regulatory Officer, and will be supported by documentary evidence including state tariff filings, Certificate of Public Convenience and Necessity ("CPCN") records, and state public utility commission determinations. The Declaration of Patrick Salazar regarding the regulatory classification of the 14 facilities is attached as Exhibit H.
Without prejudging the precise classification of each facility — which will be established through testimony and documentary evidence at the hearing — NNA notes the following general framework. NNA holds ILEC status at certain facilities in the Philadelphia metropolitan area, where NNA acquired local exchange operations from a predecessor carrier in 2007. However, NNA entered the Baltimore, Washington, D.C., and northern Virginia markets as a competitive carrier, constructing new facilities and building out new fiber-optic infrastructure in those areas. Accordingly, NNA's facilities in Baltimore, Washington, D.C., Rockville, Ashburn, Reston, and Tysons Corner are located in service territories where NNA operates as a competitive carrier. Section 251(c) obligations do not attach to these facilities.
Even with respect to those facilities where NNA concedes ILEC status, the colocation obligation is not unlimited. Section 251(c)(6) requires physical colocation only where it is technically feasible and where space is available. 47 C.F.R. § 51.323(b)(3). Moreover, the scope of the colocation obligation is defined by the purposes for which colocation is sought. The mandatory colocation obligation of Section 251(c)(6) was established to facilitate competitive carriers' access to the ILEC's local exchange network — specifically, to permit colocation of equipment necessary for interconnection with the ILEC's network or for access to unbundled network elements. The type of colocation sought by Ridgepoint — physical colocation in meet-me rooms for the purpose of providing last-mile enterprise fiber-optic transport services to Ridgepoint's own retail customers — falls outside the scope of the unbundling obligations as defined by FCC rules and the Triennial Review Remand Order.
In the TRRO, the Commission eliminated mandatory unbundling obligations for dedicated transport and high-capacity loops in wire centers served by competing fiber-optic facilities. 20 FCC Rcd at 2586–2603. The 14 facilities at issue in this proceeding are located in metropolitan areas — Philadelphia, Baltimore, Washington, D.C., and northern Virginia — that are among the most densely served fiber-optic markets in the United States, with multiple competing fiber-optic networks providing last-mile and middle-mile transport services. Under the TRRO's competitive-presence framework, the mandatory unbundling and colocation obligations applicable to the facilities where NNA holds ILEC status are significantly narrowed, and NNA will present evidence that the specific colocation services requested by Ridgepoint exceed the scope of the remaining obligations.
Ridgepoint bears the burden of establishing that each of the 14 facilities is subject to Section 251(c) colocation obligations. This requires Ridgepoint to demonstrate, facility by facility, that NNA holds ILEC status at the facility in question and that the specific colocation sought falls within the scope of the applicable unbundling obligations. NNA submits that Ridgepoint cannot carry this burden with respect to the majority of the 14 facilities, and the evidence will demonstrate that the complaint must be dismissed as to those facilities on this threshold ground alone.
B. The Wholesale Access Policy Is Commercially Reasonable
Even assuming, arguendo, that Section 251(c) colocation obligations apply at some or all of the 14 facilities, NNA's denial of Ridgepoint's requests was commercially reasonable and consistent with those obligations. The WAP satisfies the "just, reasonable, and nondiscriminatory" standard established by the Act and the Commission's precedent.
1. Business Rationale for the WAP. The WAP was adopted in January 2020 — more than 14 months before Ridgepoint submitted its first interconnection request in March 2021. The policy was not adopted in response to Ridgepoint's requests or in anticipation of any specific carrier's application for colocation. Rather, the WAP was the product of a thorough internal business review process conducted during the latter part of 2019, involving NNA's operations, finance, and regulatory teams.
The business rationale for the WAP was straightforward and compelling. NNA's facilities in the most densely served metropolitan corridors were experiencing growing demand for colocation space from NNA's existing high-value wholesale customers — major wireless carriers, national enterprise customers, and large-scale Internet service providers that were expanding their network infrastructure to support 5G deployment, cloud-based enterprise services, and increasing broadband traffic volumes. At the same time, the physical capacity of NNA's facilities — floor space, power supply, cooling capacity, and cable tray infrastructure — was finite and increasingly constrained.
In this environment, NNA determined that it needed a systematic framework for allocating scarce colocation resources. The WAP reflects NNA's commercial judgment that the most efficient allocation of limited facility resources is to prioritize wholesale partners with sufficient revenue commitments to justify the capital and operational investment required to accommodate their equipment. The $5 million minimum annual revenue commitment threshold was established based on NNA's internal analysis of the fully loaded costs of colocation provisioning — including facility construction and modification, power infrastructure, cooling systems, physical security, cable management, and ongoing maintenance — and the revenue level at which those costs are recovered over a reasonable time horizon.
Ms. Diane Okoro, NNA's U.S. President, will testify at the evidentiary hearing regarding the commercial context in which the WAP was developed, the business objectives it serves, and the process by which the revenue commitment threshold was set. Mr. Patrick Salazar will testify regarding the regulatory dimensions of the WAP's development, including the consultation with NNA's regulatory team to ensure the policy's consistency with the company's obligations under the Act.
2. Uniform Application. A critical element of the commercial reasonableness inquiry is whether the challenged access conditions are applied uniformly or are targeted at specific competitors. The WAP satisfies this requirement. The policy applies equally to all third-party carriers seeking new physical colocation at NNA facilities, without exception. Ridgepoint is not singled out; the $5 million minimum revenue commitment threshold is a generally applicable standard that any carrier must meet to qualify for new colocation access.
NNA will present documentary evidence at the evidentiary hearing demonstrating the uniform application of the WAP. This evidence, which includes internal records of colocation requests received and processed during the period from January 2020 through the present, will show that multiple carriers — not only Ridgepoint — have been denied new colocation access under the WAP because they failed to meet the $5 million revenue commitment threshold. These denials were communicated using the same standard form denial letter and were based on the same grounds as the denials issued to Ridgepoint. Exhibit F compiles representative examples of these denials (with commercially sensitive identifying information redacted pursuant to the Protective Order issued in this proceeding).
The uniform application of the WAP distinguishes this case from the situations addressed in prior Commission decisions where a carrier was found to have imposed access conditions on a selective or discriminatory basis. Here, there is no evidence — and Ridgepoint has not alleged — that NNA has granted colocation access to any carrier that fails to meet the WAP's threshold while denying access to Ridgepoint. The WAP is a neutral, generally applicable business policy, and its consistent application demonstrates that NNA's treatment of Ridgepoint is commercially reasonable and nondiscriminatory.
3. The $5 Million Threshold Is Reasonable. Ridgepoint's annual aggregate spend with NNA in fiscal year 2021 was approximately $1.8 million. This figure encompasses all services purchased by Ridgepoint from NNA across all locations, including wholesale transport and backhaul services on routes outside the Philadelphia–Baltimore–Washington, D.C. corridor. The $1.8 million figure is documented in NNA's billing and revenue records, which will be presented at the hearing through Exhibit J and the testimony of Mr. Salazar.
The gap between Ridgepoint's actual annual spend ($1.8 million) and the WAP's minimum revenue commitment threshold ($5 million) is $3.2 million — a difference of approximately 178%. This is not a marginal shortfall. Ridgepoint's spend represents only 36% of the threshold amount. Even accounting for the possibility that Ridgepoint's revenue to NNA might increase over time as a result of new colocation arrangements, the magnitude of the shortfall demonstrates that Ridgepoint's commercial relationship with NNA was fundamentally different in scale from the relationships that the WAP was designed to support.
The $5 million threshold reflects NNA's legitimate interest in ensuring that colocation partners generate sufficient revenue to justify the substantial operational costs associated with accommodating third-party equipment, power provisioning, cooling, physical security, cable management, and ongoing facility maintenance in constrained facilities. The threshold is a proxy for the scale and intensity of the wholesale relationship and serves as a commercially reasonable screen for allocating scarce facility resources. The Commission has recognized that carriers may impose minimum volume or revenue requirements as a condition of access where such requirements serve a legitimate business purpose and are applied in a nondiscriminatory manner. Ridgepoint has offered no evidence that the $5 million threshold is unreasonable in relation to NNA's costs or market conditions.
C. Capacity Constraints at the 14 Facilities Justify NNA's Denial
NNA's denial of Ridgepoint's colocation requests is independently supported by the genuine and demonstrable capacity constraints at each of the 14 facilities. All 14 facilities at issue were at or above 85% capacity utilization at the time of Ridgepoint's interconnection and colocation requests, and several were operating at utilization levels exceeding 90%.
NNA will present facility-specific capacity data at the evidentiary hearing, including equipment rack counts (occupied versus total available), power consumption relative to available capacity (measured in kilowatts), and floor-space utilization metrics (measured in square feet of usable colocation space). This data will be introduced through the testimony of Patrick Salazar and through Exhibit E, which contains a facility-by-facility summary of capacity utilization for each of the 14 facilities at the time of Ridgepoint's requests.
The following table provides a summary of the capacity utilization data for each facility:
These utilization levels reflect the intense demand for colocation and interconnection resources in the Philadelphia–Baltimore–Washington, D.C. corridor, driven by the growth of 5G wireless networks, cloud computing, and enterprise fiber demand. At high utilization levels, accommodating additional colocation tenants creates significant operational risks, including:
(a) Power Overloading. Each facility has a finite electrical power supply, typically measured in megawatts, that must be allocated among NNA's own network equipment, existing colocation tenants, and essential building systems (lighting, HVAC, security, and fire suppression). Adding new colocation equipment increases power draw and can push the facility's power infrastructure beyond its rated capacity, creating risks of circuit overloads, equipment failure, and service outages.
(b) Cooling Inefficiencies. Telecommunications equipment generates substantial heat, and each facility's cooling system — typically consisting of precision air conditioning units, raised-floor airflow systems, and chiller plants — is designed to handle a specific thermal load. Operating near or above 85% capacity utilization strains the cooling system's ability to maintain the temperature and humidity levels necessary for reliable equipment operation, increasing the risk of thermal shutdowns and equipment damage.
(c) Reduced Ability to Serve Existing Customers. NNA's primary obligation is to the customers it already serves — both its own retail and wholesale customers and its existing colocation tenants. Accommodating new colocation tenants at a capacity-constrained facility diverts resources from existing customers and limits NNA's ability to respond to those customers' future capacity needs, including requests for additional equipment racks, cross-connects, and power circuits.
The Commission has consistently recognized capacity constraints as a legitimate basis for denying physical colocation requests. See, e.g., Cavalier Communications Inc. v. Ashgrove & Co. Virginia Inc., 22 FCC Rcd at 9763–64 (recognizing that space limitations can justify denial of physical colocation under Section 251(c)(6)); NTELOS Telephone Inc., 26 FCC Rcd at 6172 (same); Advanced TelCom, Inc. v. Pacific Bell Telephone Co., 15 FCC Rcd at 3871–72 (evaluating capacity evidence in colocation dispute). The 85%+ utilization levels at each of the 14 facilities — documented with granular, facility-specific data — establish that NNA's capacity-based denials are genuine, not pretextual.
Dr. Anton Berger, NNA's regulatory expert, will testify at the evidentiary hearing regarding the FCC precedent recognizing capacity constraints as a legitimate basis for limiting colocation. Dr. Berger is a Senior Advisor at Torrence Policy Group LLC, located at 7925 Jones Branch Drive, Suite 510, McLean, Virginia 22102, and formerly served as Deputy Bureau Chief of the FCC's Wireline Competition Bureau, where he was directly involved in the development and implementation of the Commission's interconnection and unbundling rules. Dr. Berger's testimony will address the Commission's established standards for evaluating capacity constraint claims, the industry-standard metrics used to measure facility utilization, and the consistency of NNA's capacity data with those standards. Dr. Berger's expert report is attached as Exhibit I.
D. There Is No Prior Course of Dealing at the 14 Facilities
Ridgepoint's complaint proceeds on the assumption that NNA's prior commercial relationship with Ridgepoint — specifically, the MIA covering the three northern Virginia facilities — somehow creates an obligation to extend colocation access to th