Consolidated Bench Trial in 3 Infrastructure Cases vs. Rochester to Start June 1

Chief U.S. District Judge Elizabeth Wolford for Western New York in Rochester used a joint status conference via Zoom Tuesday to schedule a single consolidated bench trial to begin June 1 and 2 in the related infrastructure complaints brought by Crown Castle (docket 6:20-cv-06866), Extenet (6:20-cv-07129) and Verizon (6:19-cv-06583) against the city of Rochester. When the trial resumes after that will hinge on the availability of expert witnesses for all three plaintiffs in the case.

Common to all three complaints are the allegations that Rochester’s wireless deployment fees significantly exceed a reasonable approximation of the city’s actual costs of maintaining the rights-of-way used or occupied by telecommunications service providers, in violation of Section 253 of the Telecommunications Act.

Attorneys for all four parties -- Wiley Rein’s Joshua Turner for Crown Castle, Scott Thompson with Mintz Levin for Extenet, Lauri Mazzuchetti with Kelley Drye for Verizon and Patrick Beath with the city of Rochester -- told the judge they think their cases are ready for trial. All the plaintiffs favor a consolidated proceeding, “as long as each of the plaintiffs has the opportunity to present its case meaningfully,” said Thompson.

Wolford responded that “we obviously have to come up with an agreement beforehand as to how each side is going to be able to preserve its rights while nonetheless preserving some efficiency for the purposes of any trial.” The city agrees “doing this on a consolidated basis can be more efficient for everybody,” said attorney Beath.

Mazzuchetti said the plaintiffs have talked among themselves and estimate that three to four days would be “sufficient” to complete a bench trial. “Each of the plaintiffs has their own expert,” she said. “We understand the city will have one witness, and each of the plaintiffs may have a witness.”

Beath said the city agrees “that timeline sounds about right.” He thinks three to four days “probably does it, and as a bench trial, we won’t be spending time on jury selection,” he said. The city intends to call one or two “fact witnesses” in addition to the one expert witness planned by each of the three plaintiffs, he said.

The spotty availability of the expert witnesses to be called at trial appeared during the status conference to contribute to most of the uncertainty about when the trial would resume after beginning on consecutive days on June 1 and 2. Another uncertainty about the trial is whether Rochester would carry the burden to prove its wireless fees are reasonable. Attorney Beath said he hasn't had a chance to discuss the burden of proof question with the city.