PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION
January 12, 2024
MEMORANDUM
FROM: Aaron Liu, Lead Associate, Antitrust & Competition, Calderwood & Harkness LLP Monica Reyes, Working Associate, Antitrust & Competition, Calderwood & Harkness LLP
TO: Elaine Forsythe, Responsible Partner, Antitrust & Competition, Calderwood & Harkness LLP
CC: Howard Bellamy, Billing Partner, Antitrust & Competition, Calderwood & Harkness LLP
RE: Witness Preparation Memorandum — FCC Evidentiary Hearing, In the Matter of Northgate Networks America Inc. — Complaint Regarding Interconnection Obligations under Section 251, FCC Docket No. WC-23-0042; Evidentiary Hearing Scheduled January 22–24, 2024, Before ALJ Robert Fenwick
RELATED MATTER: Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW (E.D. Va.) (stayed March 14, 2023)
ENGAGEMENT REFERENCE NO.: C&H-2022-ATR-00419
PRIVILEGE DESIGNATION: This memorandum is protected by the attorney-client privilege and the work product doctrine. It is prepared in anticipation of the FCC evidentiary hearing in FCC Docket No. WC-23-0042 and the related district court litigation pending before the Hon. Claudia M. Wentworth in the Eastern District of Virginia. This memorandum reflects attorney mental impressions, conclusions, opinions, and legal theories and should not be disclosed outside the attorney-client relationship without prior authorization from Elaine Forsythe or Howard Bellamy. Distribution is limited to the addressees identified above and to authorized in-house counsel of Northgate Networks America Inc.
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I. Purpose and Scope of Memorandum
This memorandum is prepared to guide the comprehensive preparation of Northgate Networks America Inc. ("NNA") witnesses for the three-day FCC evidentiary hearing before Administrative Law Judge Robert Fenwick, currently scheduled for January 22–24, 2024, in FCC Docket No. WC-23-0042. The hearing arises from a complaint filed by Ridgepoint Communications Inc. ("Ridgepoint") on February 7, 2023, in which 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, 47 U.S.C. §§ 251, 252, by refusing to provide physical colocation and interconnection access at fourteen specific NNA facilities located in the Philadelphia–Baltimore–Washington, D.C. corridor.
The evidentiary hearing assumes heightened significance because of the parallel federal district court litigation, Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW, pending before the Honorable Claudia M. Wentworth in the Eastern District of Virginia. That action, which asserts claims under Section 2 of the Sherman Act, 15 U.S.C. § 2, has been stayed since March 14, 2023, pursuant to the court's order granting NNA's Motion to Stay Pending Resolution of the FCC Proceeding. Testimony given at the FCC hearing will be part of the administrative record and may bear directly on the antitrust proceeding when the stay is eventually lifted. All witnesses must be mindful that their sworn statements before ALJ Fenwick could be used — either as prior sworn testimony or for impeachment purposes — in the district court antitrust action.
The hearing was originally scheduled for September 2023 pursuant to ALJ Fenwick's scheduling order dated June 12, 2023. On August 28, 2023, ALJ Fenwick issued an order postponing the hearing to January 22–24, 2024, citing FCC staffing constraints. The postponement has afforded additional time for preparation, and we have used the intervening months to refine our witness outlines and document strategy.
This memorandum covers the following subjects:
(a) Identification of NNA's fact witnesses and expert witness, including background, qualifications, and anticipated testimony slots;
(b) Detailed direct examination outlines and key themes for each NNA witness;
(c) Anticipated cross-examination topics from Ridgepoint's counsel, Victoria Hargrove and Daniel Stoyanov of Hargrove, Winslow & Burke LLP ("HWB"), together with recommended responses and preparation strategies;
(d) Coordination among NNA's witnesses to ensure consistency and complementarity of testimony;
(e) Document exhibit preparation, including key exhibits for direct examination, anticipated Ridgepoint exhibits, and hearing binder organization;
(f) Cross-examination preparation for Ridgepoint's anticipated witnesses;
(g) Logistical and administrative notes, including the preparation schedule, team assignments, communications protocols, and post-hearing actions; and
(h) Budget considerations for the hearing phase of the engagement.
A critical guiding principle throughout this memorandum is that all testimony must be consistent with the positions taken in NNA's Answer and Affirmative Defenses filed in FCC Docket No. WC-23-0042 in March 2023, as well as the Pre-Hearing Brief filed pursuant to ALJ Fenwick's scheduling order. Additionally, no witness should make any concession or statement that could undermine the antitrust defense maintained in the stayed district court litigation, particularly with respect to market definition, market power, or anticompetitive intent. These dual-track considerations must inform every aspect of witness preparation.
II. Witness Identification and Hearing Schedule
A. Northgate Fact Witnesses
NNA will present two fact witnesses at the FCC evidentiary hearing. Each witness has been selected based on her or his direct knowledge of the facts at issue and her or his ability to speak authoritatively to the key themes identified in Section III below.
1. Diane Okoro — U.S. President, Northgate Networks America Inc.
Name: Diane Okoro
Title: U.S. President, Northgate Networks America Inc.
Business Address: 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, VA 22182
Role and Relevance: Ms. Okoro is the senior business executive responsible for all of NNA's U.S. operations, including commercial strategy, wholesale partnerships, and facility management. Ms. Okoro oversaw the development, approval, and adoption of the Wholesale Access Policy ("WAP") in January 2020, and she authorized the decisions regarding Ridgepoint's interconnection and physical colocation requests at the fourteen disputed facilities. She has direct personal knowledge of the business rationale for the WAP, the process by which Ridgepoint's requests were evaluated and ultimately declined, and the competitive landscape in which NNA operates. As the most senior NNA executive in the United States, she is the appropriate witness to testify to NNA's overall business justification for the WAP and the manner in which it was applied to Ridgepoint and other wholesale colocation partners.
Anticipated Testimony Slot: Day 1 (January 22, 2024) — direct examination. Day 2 (January 23, 2024) — cross-examination by HWB. We anticipate that Ms. Okoro's direct examination will require approximately two to two and one-half hours, and that cross-examination may extend through a substantial portion of Day 2.
2. Patrick Salazar — Chief Regulatory Officer, Northgate Telecommunications PLC
Name: Patrick Salazar
Title: Chief Regulatory Officer, Northgate Telecommunications PLC
Business Address: 14 Broadwall Lane, London SE1 9PQ, United Kingdom. Mr. Salazar also maintains a U.S. office at NNA's headquarters at 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, VA 22182.
Role and Relevance: Mr. Salazar is the senior regulatory officer responsible for NNA's compliance with FCC regulations, including its obligations under Sections 251 and 252 of the Communications Act. He oversaw the internal regulatory review of the WAP prior to its adoption and is knowledgeable about the capacity utilization data and engineering constraints at the fourteen disputed facilities. Mr. Salazar was the principal NNA executive responsible for managing the interface with FCC Staff on interconnection matters and has direct knowledge of the prior Master Interconnection Agreement ("MIA") with Ridgepoint. Mr. Salazar previously filed a Declaration in Support of NNA's Motion to Stay in the district court action on March 6, 2023, and his testimony at the FCC hearing must be consistent with all statements made in that Declaration.
Anticipated Testimony Slot: Day 2 (January 23, 2024) — direct examination. Day 2 or Day 3 (January 23 or 24, 2024) — cross-examination by HWB. We anticipate that Mr. Salazar's direct examination will require approximately one and one-half to two hours, with cross-examination potentially extending to the morning of Day 3 depending on the pace of the proceedings.
B. Northgate Expert Witness
3. Dr. Anton Berger — Senior Advisor, Torrence Policy Group LLC
Name: Dr. Anton Berger
Title: Senior Advisor, Torrence Policy Group LLC
Business Address: 7925 Jones Branch Drive, Suite 510, McLean, VA 22102
Background: Dr. Berger is a former Deputy Bureau Chief of the FCC's Wireline Competition Bureau, where he served for approximately eight years prior to entering the private sector. He is widely recognized as an authority on ILEC interconnection obligations, unbundling requirements, and the regulatory framework governing colocation under the Communications Act. He has testified as an expert witness in numerous FCC and state public utility commission proceedings.
Role and Relevance: Dr. Berger has been retained by Calderwood & Harkness LLP as NNA's regulatory expert in FCC Docket No. WC-23-0042. He will testify regarding NNA's interconnection practices under the Communications Act, the regulatory framework governing the fourteen disputed facilities, the commercial reasonableness of the WAP as measured against industry benchmarks and FCC precedent, and the inapplicability of the specific unbundling and colocation obligations invoked by Ridgepoint to the circumstances at issue. Dr. Berger's expert retention letter is on file with Calderwood & Harkness. His opinions are set forth in his expert report/declaration submitted in connection with NNA's Pre-Hearing Brief.
Anticipated Testimony Slot: Day 3 (January 24, 2024) — direct examination followed by cross-examination. We anticipate that Dr. Berger's direct examination will require approximately one and one-half hours, with cross-examination by HWB anticipated to last approximately one to two hours.
Fees to Date: $187,500. Additional hearing preparation and testimony fees are anticipated. See Section XI below for budget details.
C. Anticipated Ridgepoint Witnesses (for Cross-Examination Preparation)
Based on Ridgepoint's Pre-Hearing Brief, its witness and exhibit list filed pursuant to ALJ Fenwick's scheduling order, and our assessment of HWB's likely case presentation strategy, we anticipate that Ridgepoint will present the following witnesses:
Gregory Trent — Chief Executive Officer and Founder, Ridgepoint Communications Inc., 3500 Market Street, Suite 700, Philadelphia, PA 19104. Mr. Trent founded Ridgepoint and retains a 22% equity stake following the Caravel Capital Partners LP leveraged buyout in November 2018. We anticipate that Mr. Trent will provide the overarching narrative of Ridgepoint's business, its growth strategy in the Mid-Atlantic corridor, and the alleged harm caused by NNA's refusal to grant colocation access at the fourteen facilities.
Samira Hashemi — Chief Operating Officer, Ridgepoint Communications Inc. We anticipate that Ms. Hashemi will testify regarding the operational impact of NNA's refusal, including specific customer losses, service delivery failures, and the alleged competitive disadvantage suffered by Ridgepoint.
Dr. Leonard Kuo — Professor of Economics, Cavendish University. Dr. Kuo has been retained as Ridgepoint's economic expert. We anticipate that he will testify regarding market definition, market share calculations, competitive effects analysis, and potentially a damages estimate. Although the FCC hearing focuses on regulatory issues under Sections 251 and 252, HWB may attempt to introduce Dr. Kuo's economic testimony to establish the competitive significance of NNA's refusal and to bolster Ridgepoint's claim that NNA's conduct amounts to an unreasonable refusal to deal.
Theodore Braun — General Counsel, Ridgepoint Communications Inc. Mr. Braun may be called to testify regarding correspondence with NNA, Ridgepoint's understanding of its interconnection rights, and the procedural history of the interconnection requests. His testimony is uncertain, and he may ultimately not be presented.
Detailed cross-examination outlines for the Ridgepoint witnesses are set forth in Section IX below.
D. Hearing Logistics
Location: FCC hearing room, Washington, D.C. The specific room assignment will be confirmed by the ALJ's office no later than January 19, 2024.
Duration: Three days — January 22, 2024 (Day 1), January 23, 2024 (Day 2), and January 24, 2024 (Day 3). Hearing hours are anticipated to be 9:30 a.m. to 5:00 p.m., with a one-hour lunch recess and periodic breaks at the ALJ's discretion.
Presiding Officer: Administrative Law Judge Robert Fenwick, FCC Office of Administrative Law Judges.
Counsel of Record for Ridgepoint: Victoria Hargrove (Lead Partner) and Daniel Stoyanov (Senior Associate), Hargrove, Winslow & Burke LLP, 900 17th Street NW, Suite 600, Washington, D.C. 20006. Ms. Hargrove is an experienced telecommunications litigator with a reputation for aggressive cross-examination. Mr. Stoyanov is expected to handle document-intensive portions of the examination and to conduct any direct examination of Dr. Kuo.
Post-Hearing Briefing Schedule: Pursuant to ALJ Fenwick's scheduling order, post-hearing briefs are due March 15, 2024, and reply briefs are due April 12, 2024. The briefing schedule will require immediate transition to brief drafting following the conclusion of the hearing.
III. Key Themes for All Witnesses
The following six themes should be woven throughout the testimony of each NNA witness. These themes have been developed to align with NNA's Answer and Affirmative Defenses, the Pre-Hearing Brief, and the broader defense strategy in the stayed district court antitrust action. Each witness will address these themes from a different vantage point — Ms. Okoro from a business and commercial perspective, Mr. Salazar from a regulatory compliance perspective, and Dr. Berger from an expert regulatory analysis perspective — but the core narrative must be unified and consistent.
Theme 1: Legitimate Business Justification for the WAP. The Wholesale Access Policy, adopted in January 2020, was a commercially reasonable, nondiscriminatory policy designed to optimize limited facility capacity for higher-value wholesale relationships. The $5 million annual minimum revenue commitment threshold was established through a rational commercial analysis and was applied uniformly to all prospective colocation partners. The WAP was not targeted at Ridgepoint specifically. Multiple carriers that failed to meet the threshold were similarly denied access, and multiple carriers that met the threshold were granted access, during the relevant period. The WAP was reviewed by NNA's regulatory compliance team and approved at the board and senior management level prior to adoption.
Theme 2: Capacity Constraints at the 14 Facilities. All fourteen disputed facilities in the Philadelphia–Baltimore–Washington, D.C. corridor were at or above 85% capacity utilization at the time of Ridgepoint's interconnection and colocation requests, which were submitted between March 2021 and August 2022. Physical and engineering constraints — including power limitations, conduit availability, floor space in meet-me rooms, and HVAC capacity — limited the ability to accommodate additional colocation tenants at those locations. NNA was required to reserve capacity for its own network operations, planned upgrades, and the needs of existing wholesale partners. These capacity constraints provided an independent, objective basis for declining Ridgepoint's requests regardless of the WAP threshold.
Theme 3: No Obligation to Extend Prior Dealing. The prior Master Interconnection Agreement dated June 15, 2015 covered only three facilities in northern Virginia and expired by its own terms on June 14, 2020. There was no prior course of dealing between NNA and Ridgepoint at any of the fourteen disputed facilities. Ridgepoint never had colocation access at those locations. The MIA's non-renewal was consistent with the WAP that had been adopted six months earlier, and Ridgepoint's failure to meet the WAP threshold was the basis for the decision not to renew. Ridgepoint cannot bootstrap a limited, expired agreement at three facilities into an entitlement to access at fourteen entirely different locations.
Theme 4: Ridgepoint's Continued Access Under Holdover. NNA did not terminate Ridgepoint's existing colocation at the three facilities covered by the expired MIA. To the contrary, Ridgepoint has continued to occupy those three previously authorized facilities in northern Virginia under a month-to-month holdover arrangement at $14,400 per month per facility, which represents 120% of the prior contractual rate of $12,000 per month. The holdover premium of $2,400 per month per facility (aggregating to $7,200 per month and $86,400 per year across all three facilities) is consistent with standard industry practice for month-to-month arrangements. This holdover arrangement demonstrates NNA's willingness to maintain existing business relationships, even when the counterparty does not meet the WAP threshold for new colocation access.
Theme 5: Compliance with Sections 251 and 252. NNA's interconnection practices comply fully with the Communications Act. The fourteen disputed facilities are not subject to the specific unbundling and colocation requirements that Ridgepoint invokes in its complaint. NNA's obligations as an incumbent local exchange carrier do not extend to the type of wholesale physical colocation that Ridgepoint demands at those particular locations under the circumstances presented. The FCC's rules and orders governing ILEC colocation obligations under Section 251(c)(6) do not mandate the access that Ridgepoint seeks, and Ridgepoint has conflated its desire for commercially advantageous colocation terms with a regulatory entitlement that does not exist.
Theme 6: Ridgepoint's Revenue Fell Below WAP Threshold. Ridgepoint's aggregate annual spend with NNA was approximately $1.8 million in fiscal year 2021, which is well below the $5 million WAP minimum revenue commitment. This was a legitimate, objectively applied criterion that was used to evaluate all colocation requests, not just Ridgepoint's. The $5 million threshold was set based on the economics of colocation management at NNA's scale — including the costs of space allocation, power provisioning, security, and cross-connect management — and reflects the minimum level of commercial engagement necessary to justify the allocation of constrained facility resources to a wholesale colocation partner.
IV. Witness Preparation Outline — Diane Okoro
A. Background and Qualifications
Ms. Diane Okoro serves as U.S. President of Northgate Networks America Inc., a position she has held since March 2018. In this role, she is responsible for all aspects of NNA's U.S. operations, including commercial strategy, wholesale and enterprise sales, network planning and engineering, facility management, and regulatory affairs. She reports directly to the Chief Executive Officer of Northgate Telecommunications PLC.
NNA is a Delaware corporation and a wholly owned subsidiary of Northgate Telecommunications PLC, a company incorporated in England and Wales under Company No. 07824561. Northgate Telecommunications PLC is publicly traded, with American Depositary Receipts ("ADRs") listed on the Nasdaq Stock Market under the ticker symbol "NTP."
NNA operates approximately 42,000 route-miles of fiber-optic backbone and metro-ring infrastructure across eighteen U.S. states, with a primary concentration along the eastern seaboard. NNA provides enterprise cloud-connectivity services, managed network services, and SaaS-based network management platforms marketed under the NorthgateOS™ brand. NNA's U.S. revenue for fiscal year 2022 was approximately $2.41 billion, representing approximately 40.4% of the Northgate Group's consolidated revenue of approximately $5.96 billion.
Ms. Okoro's headquarters are located at 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, Virginia 22182. Prior to joining NNA, Ms. Okoro held senior leadership positions at two other major telecommunications providers and is a recognized leader in the industry. Her background and qualifications will be established at the outset of her direct examination to demonstrate her competence to testify regarding NNA's business operations, the WAP, and the decisions regarding Ridgepoint's colocation requests.
Ms. Okoro's role in overseeing U.S. commercial operations, wholesale partnerships, and facility management places her at the center of the factual issues in this proceeding. She was personally involved in the review and approval of the WAP, participated in the decision-making process regarding Ridgepoint's interconnection requests, and has direct knowledge of the competitive landscape in which NNA operates.
B. Direct Examination Topics
1. Genesis and Rationale of the Wholesale Access Policy (WAP)
Ms. Okoro will testify that the Wholesale Access Policy was adopted in January 2020 following an internal operational review that commenced in the third quarter of 2019. The review was prompted by growing demand for colocation access at NNA's key facilities, particularly in the Mid-Atlantic corridor, and the recognition that NNA's finite physical infrastructure could not accommodate every requesting carrier without compromising service quality for existing customers and NNA's own network operations.
The purpose of the WAP was to establish a transparent, consistently applied framework for managing constrained colocation capacity at NNA's facilities. The policy set a minimum annual revenue commitment of $5 million for any prospective colocation partner seeking new physical colocation access. This threshold was designed to ensure that the significant costs associated with provisioning colocation space — including power allocation, cross-connect management, physical security, and ongoing facility maintenance — would be justified by a commercially meaningful wholesale relationship.
Ms. Okoro will emphasize that the WAP was applied uniformly across all prospective and existing wholesale colocation partners. No carrier was singled out, and the policy was not designed to target Ridgepoint or any other specific competitor. The decision to adopt the WAP was driven by legitimate engineering and commercial considerations, not by any competitive exclusion motive.
The WAP underwent a thorough approval process prior to its adoption. Ms. Okoro will describe the internal review and sign-off process, which included:
(a) An internal business case prepared by NNA's wholesale operations team analyzing facility capacity trends and the economics of colocation management;
(b) A regulatory compliance review conducted by Patrick Salazar's regulatory affairs team, which assessed whether the proposed policy conflicted with any FCC-mandated interconnection obligations and concluded that it did not;
(c) Review and approval by James Whitford, Group General Counsel of Northgate Telecommunications PLC; and
(d) Approval by the NNA senior management team and, ultimately, notification to the Northgate Group Board of Directors.
Ms. Okoro will testify that the WAP was a deliberate, well-considered business policy — not an ad hoc decision directed at any particular carrier — and that it reflected NNA's legitimate need to manage finite physical resources in a commercially reasonable manner.
2. Ridgepoint's Interconnection Requests
Ms. Okoro will testify that between March 2021 and August 2022, Ridgepoint submitted interconnection and physical colocation requests for fourteen specific NNA central-office and meet-me-room facilities located in the Mid-Atlantic corridor. Each request sought physical colocation access — i.e., the right to install Ridgepoint's own equipment within NNA's facilities — in order to establish interconnection points with NNA's network.
Ms. Okoro will testify that each of Ridgepoint's fourteen requests was reviewed individually on its merits by NNA's wholesale operations and regulatory affairs teams. Each request was ultimately declined based on the following factors:
(a) Capacity constraints at the specific facility: All fourteen facilities were at or above 85% capacity utilization at the time of the relevant request, and physical and engineering limitations precluded the accommodation of additional colocation tenants without jeopardizing NNA's own network operations and its obligations to existing wholesale partners;
(b) Absence of prior course of dealing: Ridgepoint had never had colocation access at any of the fourteen facilities. Its prior relationship with NNA, governed by the MIA, was limited to three different facilities in northern Virginia; and
(c) Ridgepoint's failure to meet the WAP minimum revenue commitment: Ridgepoint's aggregate annual spend with NNA was approximately $1.8 million in FY 2021, well below the $5 million threshold established by the WAP.
Ms. Okoro will walk through the fourteen facilities in her testimony, and we will present capacity utilization data and supporting documentation for each. The fourteen facilities are:
1. 401 N. Broad Street, Philadelphia, PA
2. 1500 Spring Garden Street, Philadelphia, PA
3. 100 Delancey Place, Cherry Hill, NJ
4. 220 S. Warren Street, Trenton, NJ
5. 700 E. Pratt Street, Baltimore, MD
6. 1 W. Fayette Street, Baltimore, MD
7. 33 S. Gay Street, Baltimore, MD
8. 9221 Corporate Boulevard, Rockville, MD
9. 1200 New Hampshire Avenue NW, Washington, D.C.
10. 600 New Jersey Avenue NW, Washington, D.C.
11. 44755 Prentice Drive, Ashburn, VA
12. 21571 Beaumeade Circle, Ashburn, VA
13. 1807 Michael Faraday Court, Reston, VA
14. 8100 Boone Boulevard, Tysons Corner, VA
For each category of facility, Ms. Okoro will be prepared to discuss the specific capacity utilization percentage, the nature of the engineering constraints, and the basis for NNA's determination that additional colocation tenants could not be accommodated. This testimony will be supported by the engineering data and capacity utilization reports that Mr. Salazar will present in greater detail.
3. The Prior MIA and Its Non-Renewal
Ms. Okoro will testify regarding the history of NNA's commercial relationship with Ridgepoint, which was governed by a Master Interconnection Agreement dated June 15, 2015. The MIA authorized Ridgepoint to maintain physical colocation at three specific NNA facilities in northern Virginia. It is critical for Ms. Okoro to establish that the MIA was limited in scope — it covered only three facilities, not the fourteen at issue in this proceeding — and that the MIA expired by its own terms on June 14, 2020.
Ms. Okoro will make clear that NNA did not terminate the MIA early. The agreement simply reached the end of its five-year term. NNA declined to renew the MIA in light of the WAP, which had been adopted six months earlier in January 2020. Because Ridgepoint's aggregate annual spend of approximately $1.8 million fell well below the WAP's $5 million minimum revenue commitment threshold, Ridgepoint did not qualify for a renewed colocation agreement under the new policy.
Critically, Ms. Okoro will testify that NNA did not simply eject Ridgepoint from the three facilities. Instead, NNA offered and Ridgepoint accepted a month-to-month holdover arrangement under which Ridgepoint would continue to occupy the three previously authorized facilities at a rate of $14,400 per month per facility. This holdover rate represented 120% of the prior contractual rate of $12,000 per month per facility, a premium of $2,400 per month per facility. The aggregate holdover premium across all three facilities was $7,200 per month, or $86,400 per year. Ms. Okoro will testify that this holdover premium is consistent with standard industry practice for month-to-month arrangements following contract expiration and reflects NNA's good faith in allowing Ridgepoint to maintain its existing colocation footprint.
Ms. Okoro will confirm that Ridgepoint continues to occupy those three facilities to this day under the holdover arrangement, demonstrating that NNA has not sought to exclude Ridgepoint from its existing operations but has merely declined to expand the relationship to fourteen additional facilities at which Ridgepoint has never had access.
4. Nondiscriminatory Application of WAP
Ms. Okoro will testify that the WAP was applied in a nondiscriminatory manner to all wholesale colocation partners and prospective partners. She will present evidence that during the relevant period (March 2021 through August 2022):
(a) Wholesale partners whose annual revenue commitment met or exceeded the $5 million threshold were granted colocation access at facilities where capacity was available;
(b) Wholesale partners and prospective partners whose annual revenue commitment fell below the $5 million threshold were denied new colocation access, consistent with the WAP; and
(c) Ridgepoint was not the only carrier denied access under the WAP — other carriers in similar positions were treated identically.
Ms. Okoro will be prepared to testify regarding the number of colocation requests received during the relevant period, the number approved, and the number denied, as well as the basis for each decision. This testimony will demonstrate that the WAP was a uniformly applied business policy, not a pretextual tool designed to exclude Ridgepoint.
5. Competitive Landscape
Ms. Okoro will testify regarding the competitive environment in which NNA operates in the Philadelphia–Baltimore–Washington, D.C. corridor. She will describe the multiple alternative providers of enterprise fiber-optic transport, cable-based business internet, fixed wireless access, and wholesale ethernet services available to end users and competitive carriers in the region. NNA does not enjoy a monopoly or dominant position in any properly defined relevant market.
Ms. Okoro will note that Ridgepoint itself owns approximately 6,200 route-miles of fiber-optic infrastructure and has the ability to serve customers through its own network and through interconnection with providers other than NNA. Ridgepoint's FY 2022 revenue of $387 million demonstrates that it is a substantial, viable competitor with significant independent infrastructure.
Ms. Okoro will testify that NNA's share of any properly defined relevant market is approximately 31%, based on the broader market definition that includes all enterprise transport modalities. This stands in sharp contrast to Ridgepoint's allegation that NNA holds 68% of a narrowly defined market limited to last-mile enterprise fiber-optic transport at speeds of 1 Gbps and above. Ms. Okoro should not, however, opine on market definition as a technical economic matter — that is the province of the economic experts in the district court action — but should instead convey NNA's general understanding of its competitive position as a business matter.
C. Anticipated Cross-Examination Topics (from HWB)
We anticipate that Victoria Hargrove will conduct a vigorous cross-examination of Ms. Okoro. Based on our review of Ridgepoint's Pre-Hearing Brief, its discovery requests, and the general litigation posture, we expect HWB to pursue the following lines of questioning:
1. Timing of WAP Adoption Relative to Ridgepoint Requests
We expect Ms. Hargrove to suggest that the WAP was adopted in January 2020 specifically to create a pretext for denying Ridgepoint new colocation access after the MIA expired on June 14, 2020. The argument is that NNA saw the MIA expiration coming and crafted the WAP to provide a facially neutral justification for excluding Ridgepoint from the fourteen facilities.
Preparation: Ms. Okoro should be prepared to testify that the WAP was adopted six months before the MIA expiration and was the product of an internal operational review that began in Q3 2019 — well before any specific concern about Ridgepoint's potential requests at the fourteen facilities. The WAP was applied to all wholesale partners, not just Ridgepoint, and the internal business case for the WAP was driven by facility capacity trends across NNA's entire network, not by any particular carrier's situation. Ms. Okoro should be comfortable pointing to the contemporaneous documents evidencing the internal review process.
2. Internal Communications Regarding Ridgepoint
We expect HWB to question Ms. Okoro about any internal emails, memoranda, or other communications in which Ridgepoint is mentioned by name in connection with the WAP adoption process. This line of questioning is designed to suggest that NNA had Ridgepoint specifically in mind when designing the WAP, particularly the $5 million threshold.
Preparation: Ms. Okoro must be thoroughly prepared on all documents produced in the FCC discovery process that reference Ridgepoint in connection with the WAP. She should review every such document with counsel during the preparation sessions and be ready to provide context for any references to Ridgepoint. If documents mention Ridgepoint in passing as one of several carriers affected by the WAP, she should be prepared to explain that reference in the context of a broader policy analysis that considered the impact on all wholesale partners.
3. Revenue Threshold Justification
We expect HWB to challenge the $5 million minimum revenue commitment as arbitrary or pretextual. The cross-examination will likely focus on why $5 million — as opposed to $3 million, or $2 million — was selected, with the implication that the threshold was calibrated precisely to exclude Ridgepoint (whose annual spend was approximately $1.8 million) while retaining larger partners.
Preparation: Ms. Okoro should be prepared to explain the commercial rationale for the $5 million threshold in terms of facility economics. The threshold was based on an analysis of the per-facility costs of provisioning and managing colocation space — including power, cooling, security, cross-connect management, and staff time — and the minimum level of revenue necessary to make a colocation relationship commercially viable at NNA's scale of operations. She should be comfortable referring to the internal business case documentation and, if necessary, identifying the financial analysis underlying the threshold selection.
4. Capacity Utilization Data
We expect HWB to challenge the assertion that all fourteen facilities were at or above 85% capacity utilization. Ridgepoint may present alternative data or analyses suggesting that certain facilities had available capacity that could have been allocated to Ridgepoint. For example, Ridgepoint may argue that NNA's "85%" figure includes capacity reserved for future NNA use or planned network upgrades that were speculative and did not justify turning away a requesting carrier.
Preparation: Ms. Okoro should be prepared to distinguish between raw physical capacity and capacity available for new wholesale colocation. NNA's capacity management approach prudently reserves a portion of total capacity for its own retail growth, planned network upgrades, emergency restoration, and existing wholesale partner expansion. The 85% threshold represents the point at which remaining capacity is insufficient to accommodate new colocation tenants without compromising these operational needs. Ms. Okoro should defer to Mr. Salazar and the engineering data for the specific technical details, but she should be comfortable testifying to the general business rationale for this approach.
5. Impact on Ridgepoint's Business
We expect HWB to ask questions designed to elicit admissions that NNA's refusal to grant colocation access prevented Ridgepoint from competing effectively in the Mid-Atlantic corridor. These questions may reference specific customers that Ridgepoint allegedly lost or failed to win because of the inability to interconnect with NNA at the fourteen facilities.
Preparation: Ms. Okoro should not make concessions regarding the competitive impact of NNA's decisions. She should note that Ridgepoint is a substantial company with $387 million in FY 2022 revenue and approximately 6,200 route-miles of its own fiber infrastructure. She should testify that Ridgepoint had — and continues to have — alternative infrastructure options for serving customers in the corridor, including its own network, interconnection with other providers, and the option to construct new facilities. Ms. Okoro should not speculate about Ridgepoint's internal business decisions or the reasons for any specific customer losses.
6. Prior Course of Dealing
We expect HWB to use the history of the NNA-Ridgepoint relationship at the three northern Virginia facilities to argue that a broader pattern of dealing existed that should extend to the fourteen disputed facilities. The argument will be that Ridgepoint had an established business relationship with NNA that created expectations of ongoing access, and that NNA's refusal to extend that relationship constituted an unreasonable refusal to deal.
Preparation: Ms. Okoro must clearly and unequivocally distinguish the three MIA facilities from the fourteen facilities at issue. The MIA was a specific, limited commercial agreement governing colocation at three named locations. It did not create any right or expectation of access at other NNA facilities. The fourteen disputed facilities are in different states, different metropolitan areas, and different NNA operational divisions from the three MIA facilities. Ridgepoint never had access at any of the fourteen locations, never requested access at those locations prior to March 2021, and has no basis for claiming a course of dealing that extends beyond the narrow scope of the expired MIA.
D. Preparation Notes for Okoro
Witness Preparation Sessions: Schedule two full days of witness preparation for Ms. Okoro on January 15 and 16, 2024, at the Calderwood & Harkness D.C. office, 1200 K Street NW, Suite 900, Washington, D.C. 20036. Sessions should run from 9:00 a.m. to 5:00 p.m. each day, with breaks. Day 1 of preparation should focus on direct examination testimony, including a thorough review of all key documents, development of the narrative arc, and at least two full run-throughs of the direct examination outline. Day 2 should focus on cross-examination preparation, including mock cross-examination by Ms. Forsythe playing the role of Ms. Hargrove.
Key Documents for Review: Ms. Okoro should review the following documents during the preparation sessions:
• WAP policy document (January 2020)
• Internal business case and operational review materials supporting the WAP adoption
• Capacity utilization reports for each of the fourteen facilities (current as of the relevant request dates)
• All Ridgepoint interconnection and colocation request correspondence (March 2021 through August 2022) — fourteen request letters/emails
• NNA's response letters declining each of the fourteen requests — fourteen denial letters
• Master Interconnection Agreement (MIA) dated June 15, 2015
• MIA non-renewal correspondence (circa early 2020)
• Holdover arrangement terms and monthly invoices ($14,400/month per facility)
• All internal NNA emails and memoranda discussing Ridgepoint colocation decisions or referencing Ridgepoint in connection with the WAP
• WAP application records showing approvals and denials of other carriers' requests
• NNA's Answer and Affirmative Defenses in FCC Docket No. WC-23-0042
• NNA's Pre-Hearing Brief
Demeanor Guidance: Ms. Okoro should present as professional, measured, and non-combative throughout her testimony. She should answer only the question asked and not volunteer information beyond what is necessary to provide a responsive answer. When possible, she should refer to documents to support her testimony rather than relying solely on memory. She should avoid argumentative responses and should not engage in debate with opposing counsel. If she does not recall a specific fact, she should say so rather than guessing. She should listen carefully to each question and take a moment to compose her answer before speaking.
Coordination with Salazar Testimony: Ms. Okoro's testimony and Mr. Salazar's testimony must be fully consistent on the WAP rationale, capacity utilization data, and the regulatory compliance framework. During the preparation sessions, we should identify any areas where their respective recollections or characterizations of events might differ and resolve those discrepancies. Ms. Okoro should generally defer to Mr. Salazar on technical regulatory matters and engineering data, while Mr. Salazar should generally defer to Ms. Okoro on business strategy and commercial decision-making.
District Court Caution: All statements made at the FCC hearing are on the record and may be used in the district court antitrust action, Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW (E.D. Va.), when the stay is lifted. Ms. Okoro must avoid making any concessions regarding market definition (particularly the narrow market definition advanced by Ridgepoint), market power, or anticompetitive intent that could be used against NNA in the Section 2 context. She should not characterize NNA's market share as being higher than approximately 31% under the broader market definition, and she should not use language that could be construed as acknowledging an intent to exclude Ridgepoint from competition. This caution should be reinforced at the beginning and end of each preparation session.
V. Witness Preparation Outline — Patrick Salazar
A. Background and Qualifications
Mr. Patrick Salazar serves as Chief Regulatory Officer of Northgate Telecommunications PLC, a position he has held since July 2016. In this role, he has global responsibility for regulatory strategy and compliance across Northgate's operations, with a particular focus on U.S. regulatory matters given NNA's significance as the Group's largest operating subsidiary. Mr. Salazar is based primarily at Northgate's London headquarters at 14 Broadwall Lane, London SE1 9PQ, United Kingdom, but he also maintains an office at NNA's U.S. headquarters in Tysons Corner, Virginia, and spends approximately 40% of his working time in the United States.
Mr. Salazar is responsible for NNA's compliance with all FCC regulations governing its operations, including its interconnection obligations under Sections 251 and 252 of the Communications Act. He oversees the regulatory affairs team that conducted the internal compliance review of the WAP prior to its adoption. He has deep expertise in the FCC regulatory framework applicable to ILEC interconnection and colocation obligations and has been NNA's primary liaison with FCC Staff on interconnection matters.
Mr. Salazar is also knowledgeable about the capacity utilization data and engineering constraints at NNA's facilities, including the fourteen facilities at issue in this proceeding. His regulatory team works closely with NNA's network engineering group to ensure that capacity management decisions are consistent with NNA's regulatory obligations.
On March 6, 2023, Mr. Salazar filed a Declaration in Support of NNA's Motion to Stay in the parallel district court action. His testimony at the FCC hearing must be fully consistent with all statements made in that Declaration. We will review the Declaration line by line during the preparation sessions to confirm complete alignment.
B. Direct Examination Topics
1. Regulatory Framework Overview
Mr. Salazar will provide foundational testimony regarding NNA's status as an incumbent local exchange carrier in certain service areas and its resulting obligations under Sections 251 and 252 of the Communications Act. He will explain the distinction between the mandatory interconnection and colocation obligations imposed by Section 251(c) — including the unbundling obligations under Section 251(c)(3) and the colocation obligations under Section 251(c)(6) — and the voluntary commercial wholesale arrangements that carriers may enter into on negotiated terms.
This distinction is central to NNA's defense. Mr. Salazar will testify that the colocation requests submitted by Ridgepoint for the fourteen disputed facilities do not fall within the scope of the mandatory unbundling or colocation obligations imposed by the applicable FCC rules and orders. Rather, Ridgepoint is seeking access to NNA's facilities on terms that go beyond what the FCC requires NNA to provide. The WAP governs voluntary commercial colocation arrangements and does not conflict with any FCC-mandated obligations.
Mr. Salazar's testimony on this topic will lay the factual and regulatory foundation for Dr. Berger's expert testimony on Day 3 of the hearing.
2. WAP Compliance with Regulatory Requirements
Mr. Salazar will testify that before the WAP was adopted in January 2020, his regulatory affairs team conducted a thorough assessment of whether the proposed policy was consistent with FCC regulations governing NNA's interconnection obligations. The assessment concluded that the $5 million minimum revenue commitment was commercially reasonable and did not conflict with any FCC-mandated interconnection or colocation obligations.
Specifically, Mr. Salazar will testify that:
(a) No FCC rule or order requires NNA to provide physical colocation at every facility to every requesting carrier;
(b) NNA's Section 251(c)(6) colocation obligations, to the extent applicable, are subject to specific conditions and limitations defined by FCC rules, and the type of wholesale colocation that Ridgepoint seeks at the fourteen facilities falls outside the scope of those obligations;
(c) The $5 million revenue threshold is a commercially reasonable criterion for managing access to constrained facility resources and is consistent with the pricing and access practices of other ILECs and fiber network operators; and
(d) The WAP was adopted as a legitimate business policy, not as a mechanism to circumvent regulatory obligations.
3. Capacity Utilization and Engineering Constraints
Mr. Salazar will present the capacity utilization data for each of the fourteen disputed facilities. This is a critical area of testimony, as Ridgepoint's complaint rests in part on the contention that NNA had available capacity at some or all of the fourteen facilities and chose to deny Ridgepoint access for anticompetitive reasons rather than legitimate capacity constraints.
Mr. Salazar will testify that all fourteen facilities were at or above 85% capacity utilization at the time of Ridgepoint's requests. He will explain the methodology by which capacity utilization is measured, including:
(a) Physical floor space: The amount of available rack space and cage space within the facility's colocation areas and meet-me rooms;
(b) Power capacity: The electrical power available for colocation equipment, including both primary and backup power systems, measured against the facility's total power budget;
(c) Conduit and cable tray availability: The physical pathways available for routing fiber-optic cables, copper cables, and other connectivity infrastructure to and from colocation spaces;
(d) HVAC capacity: The cooling capacity available to support additional heat-generating equipment within the facility; and
(e) Reserved capacity: The portion of total facility capacity reserved by NNA for its own network operations, planned network upgrades, emergency restoration, and the expansion needs of existing wholesale partners.
Mr. Salazar will testify that each of these factors contributed to the determination that the fourteen facilities were at or above 85% utilization and could not accommodate additional colocation tenants. He will present the engineering data supporting this conclusion and will be prepared to address facility-specific questions about individual locations.
4. Prior MIA and Regulatory History
Mr. Salazar will provide detailed testimony regarding the MIA dated June 15, 2015. He will confirm that the MIA governed interconnection and physical colocation at three specific facilities in northern Virginia and that the agreement expired by its own terms on June 14, 2020. He will emphasize that the MIA was a voluntary commercial agreement — it was not mandated by the FCC or any state regulatory authority — and that NNA had no regulatory obligation to renew it upon expiration.
Mr. Salazar will also testify regarding the month-to-month holdover arrangement under which Ridgepoint continues to occupy the three MIA facilities. The holdover rate of $14,400 per month per facility, representing 120% of the prior contractual rate of $12,000 per month, is consistent with industry practice for month-to-month arrangements. Mr. Salazar will explain that the 120% premium is a standard holdover provision that compensates the facility operator for the uncertainty and administrative burden associated with month-to-month tenancy as compared to a committed long-term arrangement.
5. Ridgepoint's FCC Complaint Allegations
Mr. Salazar will address each of the specific allegations in Ridgepoint's FCC complaint, as refined in Ridgepoint's Pre-Hearing Brief, and will testify that NNA has complied with all applicable interconnection obligations. He will specifically address each of NNA's affirmative defenses:
(a) Affirmative Defense 1: The fourteen disputed facilities are not subject to the unbundling and colocation requirements alleged by Ridgepoint. The specific regulatory provisions invoked by Ridgepoint do not apply to the circumstances presented.
(b) Affirmative Defense 2: The WAP is commercially reasonable, nondiscriminatory, and consistent with FCC regulatory requirements. The $5 million threshold is an objectively applied criterion that reflects the economics of colocation management at NNA's scale.
(c) Affirmative Defense 3: Capacity constraints at all fourteen facilities independently justify the denial of Ridgepoint's requests, regardless of the WAP threshold.
6. Coordination with FCC Staff
To the extent applicable and non-privileged, Mr. Salazar will testify regarding NNA's interactions with FCC Staff concerning NNA's interconnection practices. He will describe NNA's track record of regulatory compliance, its responsiveness to FCC Staff inquiries, and its cooperative approach to regulatory matters. This testimony is designed to demonstrate that NNA is a responsible regulated entity that takes its interconnection obligations seriously, not a company that adopts pretextual policies to evade regulatory requirements.