Cellco Partnership v. City of Rochester

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________

CELLCO PARTNERSHIP d/b/a

VERIZON WIRELESS,

Plaintiff,

DECISION AND ORDER

v.

6:19-CV-06583 EAW

CITY OF ROCHESTER,

Defendant.

____________________________________

CROWN CASTLE FIBER LLC,

Plaintiff,

v.

6:20-CV-06866 EAW

CITY OF ROCHESTER, NEW YORK,

MALIK D. EVANS, as the Mayor of the

City of Rochester (in his official capacity),

RICHARD PERRIN, as the Commissioner,

City of Rochester Department of

Environmental Services (in his official

capacity), ROCHESTER CITY COUNCIL,

Defendants.

____________________________________

EXTENET SYSTEMS, LLC,

Plaintiff,

v.

6:20-CV-07129 EAW

CITY OF ROCHESTER, NEW YORK,

Defendant.

____________________________________

BACKGROUND

In the above-captioned matters, plaintiffs Cellco Partnership d/b/a Verizon Wireless

(“Verizon”), Crown Castle Fiber LLC (“Crown Castle”), and Extenet Systems, LLC

(“Extenet”) (collectively “Plaintiffs”) claim that the fees charged by the City of Rochester

(“the City”) in the City of Rochester Telecommunications Code (the “Telecom Code”)

violate Section 253 of the Federal Communications Act of 1934 (the “Act”), 47 U.S.C.

§ 253 (“Section 253”) and Section 332 of the Act, 47 U.S.C. § 332 (“Section 332”).1 (See

Civil Action No. 6:19-CV-06583 EAW (hereinafter the “Verizon Matter”), Dkt 1; Civil

Action No. 6:20-CV-06866 EAW (hereinafter the “Crown Castle Matter”), Dkt. 1; Civil

Action No. 6:20-CV-07129 EAW (hereinafter the “Extenet Matter”), Dkt. 1). The parties

filed motions for summary judgment in each case and the Court concluded, in relevant part,

that: (1) the Court has the authority to hear Plaintiffs’ causes of action for violation of

Section 253 and Section 332; (2) the Federal Communications Commission’s (“FCC”)

declaratory ruling and report and order entitled In the Matter of Accelerating Wireless

1 Two of the actions involve additional defendants and/or claims. As to additional

defendants, Crown Castle has sued the Mayor of the City of Rochester and the

Commissioner of the City of Rochester Department of Environmental Services in their

official capacities, as well as the Rochester City Council. However, it is well-established

that “claims against a government employee in his official capacity are treated as a claim

against the municipality.” Malay v. City of Syracuse, 638 F. Supp. 2d 303, 311 (N.D.N.Y.

2009). Similarly, “[t]he City Council of the City is not a separate entity and lacks the

capacity to be sued.” New Rochelle Voter Def. Fund v. City of New Rochelle, 308 F. Supp.

2d 152, 153 (S.D.N.Y. 2003). Accordingly, Crown Castle’s claims are treated as brought

against the City.

Crown Castle and Extenet have brought additional claims, which are discussed later

in this Decision and Order.

Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 F.C.C. Rcd. 9088

(2018) (the “Barriers Order”)2 applies to challenges to the Telecom Code brought under

the Act, including challenges to the City’s fees for linear underground and aerial

telecommunications facilities; (3) pursuant to the Barriers Order, the City bears the burden

of demonstrating that the fees in the Telecom Code are cost-based; and (4) there were issues

of fact regarding whether the fees contained in the Telecom Code are a reasonable

approximation of the City’s costs. (See, e.g., Extenet Matter, Dkt. 40 at 2-3).

Following issuance of its summary judgment Decisions and Orders, the Court—

with the parties’ consent—conducted a two-day, partial bench trial addressed specifically

to the issue of whether the City could satisfy its burden of demonstrating that the fees

contained in the Telecom Code are a reasonable approximation of the City’s costs related

to telecommunications deployments in its right-of-way. (See Extenet Matter, Dkt. 70;

Extenet Matter, Dkt. 72; Extenet Matter, Dkt. 73). In advance of the bench trial, Plaintiffs

filed a joint motion in limine seeking to preclude a spreadsheet purporting to show the

City’s telecommunications-related costs (the “Cost Spreadsheet”). (See Verizon Matter,

Dkt. 79). The Court denied that motion without prejudice to revisiting the issue of the Cost

Spreadsheet’s admissibility on a more fulsome record. (See Verizon Matter, Dkt. 92).

Upon the conclusion of the partial bench trial, Plaintiffs filed a joint motion for

judgment on partial findings pursuant to Federal Rule of Federal Procedure 52(c), to

2 The Court referred to the Barriers Order as the “Small Cell Order” in its Decisions

and Orders on the parties’ motions for summary judgment. However, the parties have

consistently referred to it as the Barriers Order in their current briefing, and so the Court

has adopted that naming convention herein.

exclude the Cost Spreadsheet, and for discovery sanctions. (Verizon Matter, Dkt. 104;

Crown Castle Matter, Dkt. 66; Extenet Matter, Dkt. 78). For the reasons that follow, the

Court finds that the Cost Spreadsheet (a copy of which can be found at Docket No. 104-38

in the Verizon Matter) is not admissible. The Court further concludes that even if the Cost

Spreadsheet was admissible, the City still would not have borne its burden of

demonstrating that the fees set forth in the Telecom Code are a reasonable approximation

of its costs. As such, the Court finds in favor of Plaintiffs on their claims for violation of

Section 253 and Section 332. The Court denies Crown Castle’s motion for judgment in its

favor on its claim for violation of Article 78 of the New York Civil Practice Law & Rules

and orders supplemental briefing on the additional claims asserted by Crown Castle and

Extenet. The Court further denies Plaintiffs’ request for discovery sanctions.

DISCUSSION

I. MOTION TO EXCLUDE COST SPREADSHEET

The Court begins with an analysis of the admissibility of the Cost Spreadsheet. In

connection with its summary judgment Decisions and Orders, the Court rejected Plaintiffs’

arguments that the Cost Spreadsheet could not possibly be admitted at trial, finding that it

potentially fell within the public record exception to the rule against hearsay found at

Federal Rule of Evidence 803(8)(A). (See, e.g., Verizon Matter, Dkt. 65 at 23-25).

Thereafter, Plaintiffs argued in their pre-trial motions in limine that the Cost

Spreadsheet was not admissible under Rule 803(8)(A) because it was not a public record,

because it was prepared in anticipation of litigation, and because the circumstances of its

creation indicate a lack of trustworthiness. (See, e.g., Verizon Matter, Dkt. 79-1). The

Court denied the motions in limine without prejudice, determining that it would be more

appropriate to reach a decision on this issue after a more fulsome record was developed at

trial. (See, e.g., Verizon Matter, Dkt. 92). Plaintiffs have now reasserted their argument

that the Cost Spreadsheet is inadmissible hearsay. (See Verizon Matter, Dkt. 104; Crown

Castle Matter, Dkt. 66; Extenet Matter, Dkt. 78). The Court agrees, for the reasons that

follow.

A. Legal Standard

Hearsay—that is, an out-of-court statement offered for the truth of the matter

asserted—is generally not admissible in federal court. See Fed. R. Evid. 802. However,

the rule against hearsay does not apply to “[a] record or statement of a public office if it

sets out the office’s activities” or “in a civil case or against the government in a criminal

case, factual findings from a legally authorized investigation,” unless “the opponent . . .

show[s] that the source of information or other circumstances indicate a lack of

trustworthiness.” Fed. R. Evid. 803(8)(A)(i), (iii), (B). The public record “exception to

the hearsay rule is grounded in the presumed reliability of descriptions of agency activities

submitted by disinterested government entities.” In re Vitamin C Antitrust Litig., No. 05-

CV-0453, 2012 WL 4511308, at *2 (E.D.N.Y. Oct. 1, 2012).

B. The Cost Spreadsheet Lacks Indicia of Trustworthiness

Plaintiffs have amply shown in this case that the circumstances under which the

Cost Spreadsheet was created indicate a lack of trustworthiness.3 Initially, the Second

Circuit has stated that documents prepared in anticipation of litigation generally do not

qualify for the hearsay exception set forth in Rule 803(8). See United States v. James, 712

F.3d 79, 89 (2d Cir. 2013) (“Rule 803(8)(A)-(B), which defines public records, excludes

documents prepared in anticipation of litigation[.]”); United States v. Feliz, 467 F.3d 227,

237 (2d Cir. 2006) (“Rule 803(8) excludes documents prepared for the ultimate purpose

of litigation.”); see also In re Vitamin C Antitrust Litig., 2012 WL 4511308, at *2 (“Rule

803(8) allows the admission of public records that would otherwise constitute hearsay

because of an assumption that government employees are generally reliable and non-biased

and, therefore, the records are trustworthy. Where . . . the records were prepared in

connection with litigation, however, the basis for that assumption of trustworthiness

vanishes.”).

The evidence presented at trial clearly demonstrates that the Cost Spreadsheet was

prepared in anticipation of litigation. It is undisputed that as early as July of 2018, the City

knew that Verizon and others in the telecommunications industry were objecting to the

proposed fees and that there was a risk of future litigation. (See Verizon Matter, Dkt. 98

at 189-90; Verizon Matter, Dkt. 104-29 at 4). On January 10, 2019, Verizon sent a letter

3 Plaintiffs have also argued that the information in the Cost Spreadsheet does not

qualify as a public record under Rule 803(8)(A). (See Verizon Matter, Dkt. 104-1 at 57-

58). The Court need not and does not reach this issue, which it views as a much closer

question.

to the mayor of the City, stating that the then-proposed telecommunications code was “in

direct conflict with applicable law” and would “create ambiguities or inequities likely to

generate future litigation.” (Verizon Matter, Dkt. 104-19 at 2). This letter discusses the

Barriers Order at length (id. at 3), and states that the “fees and charges” in the then-

proposed telecommunications code “would conflict with federal law” in part because they

“cannot possibly correlate with the City’s actual costs incurred as the result of [a] small

cell attachment” (id. at 5-6).

On January 14, 2019, non-party CenturyLink sent a letter to the mayor of the City

raising similar concerns. (Verizon Matter, Dkt. 104-21). CenturyLink’s letter states that

the “fee and compensation provisions” of the then-proposed telecommunications code

required “additional discussion to ensure compliance with federal and state law.” (Id. at

4). CenturyLink advised that the City was limited under federal law to recovering “the

costs of managing and administering the rights-of-way” and “should not be generating

revenues but should instead be focused on cost recovery.” (Id.). CenturyLink noted that

there was “no documentation to support the rates for underground installations, aerial

installations or pole attachments.” (Id. at 5). CenturyLink’s letter warned that the issues

created by the then-proposed telecommunications code were “likely to generate future

litigation.” (Id. at 3). The same day the City received CenturyLink’s letter, Kabutey

Ocansey, the Assistant Commissioner of the City’s Department of Environmental Services,

sent an email marked high importance to several of the City’s employees seeking

information “to quantify some of [the City’s] operating and capital costs for work in in [the

City’s] right-of-ways[.]” (Verizon Matter, Dkt. 104-12 at 3-4).

On April 15, 2019, after the Telecom Code had been adopted by the City Council,

Verizon sent the mayor another letter, in which it noted that the City had not changed the

Telecom Code in response to its prior comments and inquired “whether it is the City’s

position that the fees and compensation set forth in Article IV of the [Telecom Code] would

comply with federal law, including by ensuring recurring fees for use of the City’s rights-

of-way are cost-based and include only objectively reasonable costs.” (Verizon Matter,

Dkt. 104-23 at 2). Verizon further requested that the City provide any support it had to

show that the fees complied with federal law. (Id.). Johanna F. Brennan, a municipal

attorney for the City, forwarded this letter to Louie Tobias, the City’s Director of

Telecommunications, stating that the City “need[ed] to respond to Verizon with a

verification of [its] costs.” (Verizon Matter, Dkt. 104-24 at 2). The City then began in

earnest to undertake an analysis of its right-of-way costs.4 Two days later, on April 17,

2019, Mr. Tobias created the Cost Spreadsheet, though he continued to work on it for some

time thereafter, including after the instant litigation had been commenced. (See Verizon

Matter, Dkt. 98 at 222-23, 227).

It is thus apparent from the evidence before the Court that the Cost Spreadsheet was

created not as a normal part of the City’s business, but specifically in response to challenges

to the legal basis for the fees contained in the Telecom Code. The City’s arguments to the

contrary are unavailing. While the City concedes that it “anticipated that litigation [related

to the Telecom Code] was a possibility” (Verizon Matter, Dkt. 108 at 17), it argues that

4 The reliability of the manner in which that analysis was undertaken is considered

elsewhere in this Decision and Order.

Verizon did not specifically threaten litigation related to fees (id.). The Court disagrees

with this narrow reading of Verizon’s communications, which are clear that one of its

primary concerns regarding the Telecom Code is its failure to comply with federal law

(including specifically the Barriers Order) regarding permissible fees.

Moreover, the City has offered no explanation for why it responded to Verizon’s

communications by creating the Cost Spreadsheet if it did not anticipate having to support

its fees in a future dispute. To the contrary, internal City communications explicitly state

that the purpose of performing the post hoc cost analysis memorialized in the Cost

Spreadsheet was to “justify [the City’s] costs incurred for telecommunications rental fees

as prescribed in the new [Telecom Code.]” (Verizon Matter, Dkt. 104-15 at 2-23). The

City cannot credibly argue that the Cost Spreadsheet was approached in a neutral fashion,

as an attempt to accurately assess the City’s costs, as opposed to in a way calculated to

defend the already enacted Telecom Code from anticipated attacks.

Other circumstances of the Cost Spreadsheet’s creation also demonstrate a lack of

trustworthiness. In assessing trustworthiness, courts may consider: “(a) the timeliness of

the investigation, (b) the special skills or experience of the official, (c) whether a hearing

was held and the level at which it was conducted, and (d) possible motivation problems.”

Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000). The motivation problems

related to the Cost Spreadsheet’s creation have been discussed at length above. The other

factors all support finding a lack of trustworthiness. As to timeliness, the Cost Spreadsheet

was not created until after the Telecom Code had already been enacted. Further, Mr. Tobias

testified at trial that the City had not contemporaneously tracked or documented its costs

related to telecommunications in the right-of-way, and that City employees similarly did

not contemporaneously track or document the time they spent on telecommunications

issue. (Dkt. 98 at 225). In other words, the City waited until after the basis for the fees

was called into question to meaningfully look into the matter, and then attempted to

perform an after-the-fact assessment without contemporaneous recordkeeping.

As to the special skills or experience of the official who compiled the record, while

Mr. Tobias was responsible for the ultimate creation of the Cost Spreadsheet, he

incorporated therein information from unidentified City employees who were given

unfettered discretion to determine what costs they understood to be associated with

telecommunications and/or work in the right-of-way. (See Verizon Matter, Dkt. 98 at 226).

There is nothing before the Court that would support the conclusion that these unidentified

City employees were qualified to make such a determination, or that they were provided

with appropriate training to do so.

Moreover, as to Mr. Tobias himself, while he testified to having significant

experience with public budgeting, he also testified—as previously noted—that the City had

no actual records regarding the costs associated with telecommunications installations.

(See Verizon Matter, Dkt. 100 at 51). Mr. Tobias’ experience in public budgeting does not

qualify him to make qualitative assessments regarding the costs of telecommunications

installations, as he was required to do in producing the Cost Spreadsheet.

Finally, the City concedes that no hearing was conducted. (Verizon Matter, Dkt.

108 at 19). In sum, the Court concludes that the relevant factors all lead to the conclusion

that the Cost Spreadsheet lacks the requisite indicia of trustworthiness to be admissible

under Rule 803(8). Accordingly, the Court agrees with Plaintiffs that the Cost Spreadsheet

is inadmissible hearsay, and cannot be relied upon to satisfy the City’s burden of showing

that Telecom Code’s fee structure is a reasonable approximation of the City’s costs.

Because the Court agrees with Plaintiffs that the Cost Spreadsheet is inadmissible

hearsay, it need not and does not reach Plaintiffs’ alternative arguments that admission of

the Cost Spreadsheet would violate either Federal Rule of Evidence 1006 (the summary

document rule) or Federal Rule of Evidence 1002 (the best evidence rule), or that Mr. Tobis

was impermissibly providing expert testimony. The Court further need not and does not

reach Plaintiffs’ argument that trial exhibit 500, a document memorializing a survey of fees

charged by other municipalities across the country for telecommunications facilities, is

inadmissible hearsay. (See Verizon Matter Dkt. 104-1 at 65-67). The Court has not relied

upon trial exhibit 500 in any fashion in reaching its determinations in these matters.

II. RULE 52(c) MOTION

Having determined that the Cost Spreadsheet is inadmissible hearsay, the Court next

considers whether Plaintiffs are entitled to judgment on their claims that the City has

violated Section 253 and Section 332. The Court finds that they are, for the reasons that

follow.

A. Legal Standard

Rule 52(c) provides: “If a party has been fully heard on an issue during a nonjury

trial and the court finds against the party on that issue, the court may enter judgment against

the party on a claim or defense that, under the controlling law, can be maintained or

defeated only with a favorable finding on that issue.” Fed. R. Civ. P. 52(c). A judgment

on partial findings under Rule 52(c) “must be supported by findings of fact and conclusions

of law as required by Rule 52(a).” Id.

“Unlike at summary judgment, Rule 52(c) authorizes the court to make credibility

determinations and resolve disputed issues of fact, applying the same standard of proof and

weighing the evidence as it would at the conclusion of the trial.” Aquino v. Alexander

Cap., LP, No. 21-CV-01355 (JSR), 2023 WL 4364449, at *1 (S.D.N.Y. July 6, 2023)

(quotation and alteration omitted). “Unlike under Rule 50 which governs judgment as a

matter of law in jury trials, under Rule 52(c), the court does not consider the evidence in

the light most favorable to the non-moving party.” Wechsler v. Hunt Health Sys., Ltd., 330

F. Supp. 2d 383, 433 (S.D.N.Y. 2004). The Court further “does not draw any special

inferences in the non movant’s favor, or consider the evidence in the light most favorable

to the non-moving party. Instead the court acts as both judge and jury, weighing the

evidence, resolving any conflicts, and deciding where the preponderance lies.” LaMarca

v. United States, 31 F. Supp. 2d 110, 123-24 (E.D.N.Y. 1998) (citation omitted).5

5 As the court in Aquino acknowledged, see 2023 WL 4364449, at *2 n.1, in 2022 the

Second Circuit issued an unpublished and non-precedential summary order, Elof Hansson

USA Inc. v. Santiago, No. 20-4235-CV, 2022 WL 2208266, at *2 (2d Cir. June 21, 2022),

in which it stated: “A district court must deny a motion for judgment as a matter of law [or

a motion for a directed verdict under Rule 52(c)] unless, viewed in the light most favorable

to the nonmoving party, the evidence is such that . . . there can be but one conclusion as to

the verdict that reasonable persons could have reached.” (alterations in original and quoting

Cruz v. Loc. Union No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir.

1994)). The Aquino court explained that the Elof Hansson case did not “include any

discussion or analysis of the correct standard under Rule 52(c), and the authority it cited

dealt exclusively with the standard a court should apply when dealing with a motion for

judgment as a matter of law under Rule 50(a) at the conclusion of the plaintiff’s case in a

jury trial.” 2023 WL 4364449, at *2 n.1. The Court agrees with the Aquino court that it is

B. Burden of Proof

“In a civil case, the plaintiff bears the burden of proving the elements of his claim

by a preponderance of the evidence.” Brown v. Lindsay, Nos. 08-CV-351, 08-CV-2182,

2010 WL 1049571, at *12 (E.D.N.Y. Mar. 19, 2010). “To establish a fact by a

preponderance of the evidence means to prove that the fact is more likely true than not

true.” Id. (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). “Under the

preponderance of the evidence standard, if the evidence is evenly balanced, the party with

the burden of proof loses.” Richardson v. Merritt, No. 12-CV-5753 (ARR), 2014 WL

2566904, at *5 (E.D.N.Y. June 4, 2014) (citing Kosakow v. New Rochelle Radiology

Assocs., 274 F.3d 706, 731 (2d Cir. 2001)). In other words, if the credible evidence on a

given issue is evenly divided between the parties—that it is equally probable that one side

is right as it is that the other side is right—then the plaintiff has failed to meet his burden.

“[A] defendant asserting an affirmative defense bears the burden of proof with respect to

that defense.” Barton Grp., Inc. v. NCR Corp., 796 F. Supp. 2d 473, 498 (S.D.N.Y. 2011),

aff’d, 476 F. App’x 275 (2d Cir. 2012); see also Amerio v. Gray, No. 5:15-CV-538, 2019

WL 5307248, at *2 (N.D.N.Y. Oct. 21, 2019) (“An affirmative defense, by contrast, is a

defense that the defendants must assert and prove, and for which they have the burden.”).

Here, as previously noted, the Court determined in connection with the parties’

motions for summary judgment that the City bears the burden, under the Barriers Order, of

demonstrating that the fees charged by the Telecom Code are a reasonable approximation

not bound by the “clearly erroneous” and non-precedential dicta in the Elof Hansson

summary order, id., and no party has argued to the contrary.

of its costs. (See, e.g., Verizon Matter, Dkt. 65 at 21 (“[The Barriers Order] unequivocally

places the burden of demonstrating that the fees at issue are a reasonable approximation of

costs on the municipality. This is a reasonable interpretation of the statutory language,

which is silent on which party bears the burden of proof.”)).

C. Findings of Fact

The following section constitutes the Court’s Findings of Fact pursuant to Federal

Rule of Civil Procedure 52(a)(1) and (c). The Court has made its Findings of Fact based

on the testimony and exhibits presented at trial, and has discussed only those issues

considered “material to the resolution of the parties’ claims.” Cliffstar Corp. v. Alpine

Foods, LLC, No. 09-CV-00690-JJM, 2016 WL 2640342, at *1 (W.D.N.Y. May 10, 2016)

(citing I.N.S. v. Bagamasbad, 429 U.S. 24, 25 (1976) (“[C]ourts . . . are not required to

make findings on issues the decision of which is unnecessary to the results they reach.”)).

Moreover, “the distinction between law and fact is anything but clear-cut” and therefore,

“for purposes of appellate review, the labels of fact and law assigned” should not be

considered controlling. Id. (quotation marks and citations omitted).

1. Adoption of the Telecom Code

The City was developing a new telecommunications code prior to the FCC’s

issuance of the Barriers Order. On January 4, 2018, Meghan McKenna from the City’s

law department sent to an outside consulting agency a draft ordinance that required the

following payments: $10,000 for up to 2,500 linear feet of telecommunications facilities

and $1.50 per linear foot thereafter in the first year; $5,000 for up to 2,500 linear feet of

telecommunications facilities and $1.00 per linear foot thereafter in years after the first

year; $5,000 for up to 2,500 linear feet and $1.00 per linear foot thereafter for

telecommunications facilities not requiring the installation of new conduit and installed in

existing facilities; $5,000 for up to 2,500 linear feet and $1.00 per linear foot thereafter of

telecommunications facilities installed by horizontal direction boring involving minimal

trenching or excavation; and $2,000 for a “pole attachment fee” for the use of any City-

owned poles on which facilities were installed. (Verizon Matter, Dkt. 104-30 at 23-25).

The draft ordinance at that time referred to these fees as reflecting “fair market value rental

compensation for use of the City’s right-of-way[.]” (Id. at 24).

Mr. Tobias joined the City as its Manager of Telecommunications in February of

2018. (Verizon Matter, Dkt. 98 at 21). That role had the same duties and responsibilities

as his current role of Director of Telecommunications. (Id.). Mr. Tobias immediately

became involved in the process of drafting the Telecom Code. (Id. at 22). In July of 2018,

Mr. Tobias assisted the City’s law department in outlining a legislative package to present

to the mayor regarding the draft ordinance. (Verizon Matter, Dkt. 98 at 183-84). This

outline identifies “revenue” as an “opportunity” presented by adoption of a

telecommunications code, stating that the revenue would be derived from “$2,000 per pole

attachment on regular poles per year, $3,000 (or more) per embedded smart pole per year,

and per-foot annual rental charges for fiber installed in the right-of-way.” (Verizon Matter,

Dkt. 104-29 at 3). The outline further states that one of the reasons a telecommunications

code is needed is “to create revenue opportunities.” (Id. at 2). In discussing how the draft

ordinance was developed, this outline makes no mention of an analysis of the City’s costs.

(Id.).

A revised outline of the legislative package was circulated within the City on

September 5, 2018. (Verizon Matter, Dkt. 104-34). The revised outline states that a

telecommunications code is needed “to create revenue opportunities from City owned

facilities in the ROW” and that “[c]onsidering only existing/approved pole attachments,

[the City] will receive an estimated $150,000 annually exclusively of the per-foot fee.” (Id.

at 3-4). The revised outline reiterates that there have been objections from “the industry”

(including Verizon) to the right-of-way fees and that there is a risk of litigation. (Id. at 5).

The revised outline acknowledges (as did the original outline) that “a ruling by the FCC

. . . could render portions of the ordinance unenforceable.” (Id.).

As discussed in more detail below, the FCC issued the Barriers Order on September

27, 2018. On November 26, 2018, the City modified the draft ordinance to delete the words

“fair market value rental” from the description of the right-of-way fees, and to instead

indicate that the fees would serve as compensation for “the reasonably approximate costs

for the maintenance, operation and management of the Right-of-Way related to such use[.]”

(Verizon Matter, Dkt. 104-11 at 3). However, the fees to be charged were largely

unchanged from the prior draft, except that the registration fee was reduced from $1,500

to $1,000, and the fee for pole attachments was reduced from $2,000 to $1,500 per standard

City-owned pole or standard pole purchased by the licensee and dedicated to the City. (Id.

at 3-4). No evidence was presented at trial to support the conclusion that these minor

changes were related to any cost analysis performed by the City.

The Telecom Code was passed into law on February 19, 2019, with an effective date

of April 1, 2019. (Verizon Matter, Dkt. 98 at 42). The Telecom Code was enacted as

Chapter 106 of the Code of the City of Rochester (the “City Code”). (Verizon Matter, Dkt.

104-10). The Telecom Code and Chapter 104 of the City Code set various fees for small

cell pole attachments, including a one-time permit fee for work within the ROW at a rate

of $2,000 per existing pole and $2,500 per each replacement pole, an annual fee of $1,500

for each small cell pole attachment, and initial and annual fees per linear foot for

underground or aerial conduit containing telecommunications facilities such as fiber. (Id.).

The City also requires an applicant to enter into a master license agreement with the City.

(Id.).

2. The Barriers Order

“The newest generation of wireless broadband technology is known as 5G and

requires the installation of thousands of small cell wireless facilities.” City of Portland v.

United States, 969 F.3d 1020, 1031 (9th Cir. 2020) (internal quotation marks omitted).

“5G technology is so named because it is the fifth generation of cellular wireless

technology.” Id. at 1033. “Although 5G transmits data at exceptionally fast speeds, it does

so over relatively short distances. For this reason, wireless providers must use smaller

power-base stations in more locations, as opposed to the fewer, more powerful base stations

used for 4G data transmission.” Id.

On September 27, 2018, the Federal Communications Commission (“FCC”) issued

the Barriers Order, which limits “local governments’ authority to regulate

telecommunications providers” based on the FCC’s authority under Sections 253(a) and

332(c)(7) of the Act. City of Portland, 969 F.3d at 1032. These provisions of the Act

“authorize the FCC to preempt any state and local requirements that ‘prohibit or have the

effect of prohibiting’ any entity from providing telecommunications services.” Id.

(quoting 47 U.S.C. § 253(a), (d)). “Section 253 is, at its core, a preemption statute . . . the

purpose of [which] is to impose some limits on the ability of state and local governments

to regulate telecommunications.” Crown Castle NG E. Inc. v. Town of Greenburgh, N.Y.,

No. 12-CV-6157(CS), 2013 WL 3357169, at *12 (S.D.N.Y. July 3, 2013) (internal

quotations and citations omitted), aff’d, 552 F. App’x 47 (2d Cir. 2014).

As relevant to the instant Decision and Order, the Barriers Order concludes that

Section 253 and Section 332 “have the same meaning and . . . reflect the same standard,

including with respect to preemption of fees that could ‘prohibit’ or have ‘the effect of

prohibiting’ the provision of covered service.” 3 F.C.C. Rcd. at 9124. The Barriers Order

further concludes that:

ROW access fees, and fees for the use of government property in the ROW,

such as light poles, traffic lights, utility poles, and other similar property

suitable for hosting Small Wireless Facilities, as well as application or review

fees and similar fees imposed by a state or local government as part of their

regulation of the deployment of Small Wireless Facilities inside and outside

the ROW, violate Sections 253 or 332(c)(7) unless these conditions are met:

(1) the fees are a reasonable approximation of the state or local government’s

costs, (2) only objectively reasonable costs are factored into those fees, and

(3) the fees are no higher than the fees charged to similarly-situated

competitors in similar situations.

Id. at 9112-13.

3. The City’s Cost Analysis

Mr. Tobias testified that he began an assessment of the City’s telecommunications-

related costs shortly after he was hired in February of 2018. (Verizon Matter, Dkt. 98 at

70-74). However, his testimony made clear that this was a very broad assessment that

included costs not specifically related to the City’s costs for telecommunications

deployments in the right-of-way. (Id.). It was not until late 2018/early 2019 that the City

began in earnest to attempt to quantify its costs specifically related to telecommunications

activities within the right-of-way. Specifically, on December 28, 2018, Ms. Brennan (from

the City’s law department) circulated to Mr. Tobias and others an article written by a law

firm recommending that, in light of the Barriers Order, municipalities undertake a cost

analysis that could “protect you in the event you are challenged for assessing higher fees

than the presumptively reasonable fees specified in the [Barriers] Order.” (Verizon Matter,

Dkt. 104-36; Verizon Matter, Dkt. 104-37). A City employee named Anthony Orphe—

who Mr. Tobias identified at trial as the Director of Buildings and Parks and an assistant

to the Commissioner of the Department of Environmental Services (Verizon Matter, Dkt.

98 at 200)—replied agreeing that it would “be best to revisit [the City’s] cost analysis for

the permit fees . . . in light of this article” (Verizon Matter, Dkt. 104-17 at 3). Mr. Orphe

further noted that it had been “a couple of years” since any cost analysis had been

conducted. (Id.).

Then, as discussed above, after receiving Verizon and CenturyLink’s letters in

January of 2019, Mr. Tobias and others began soliciting information from various

employees within the City about work performed within the right-of-way. The information

that was gathered from these inquiries went far beyond costs associated with

telecommunications deployments.

For example, John Gaudioso, an employee of the City’s Operations Department,

sent a spreadsheet on January 16, 2019, which he described as “summarizing the ROW

costs for the Telecommunications Code initiative[.]” (Verizon Matter, Dkt. 104-13 at 2).

Mr. Gaudioso explained that he had included “all work activities that are involved in the

performance of work in the ROW” and had “included capital expense where appropriate.”

(Id.). Where Mr. Gaudioso did not know how much of a work activity was performed in

the right of way, he simply estimated and then prorated the expense based on his estimation.

(Id.). A review of the spreadsheet prepared by Mr. Gaudioso reveals a host of expenses

wholly unrelated to telecommunications deployments. (Verizon Matter, Dkt. 104-14).

The City Council adopted the Telecom Code on February 19, 2019, while this

information gathering was still ongoing. There was no evidence presented at trial that the

obtained information had any impact on the fee structure included in the Telecom Code.

Mr. Tobias created the Cost Spreadsheet in April of 2019, after Verizon requested

proof that the fees in the Telecom Code represented a reasonable approximation of the

City’s costs. The Cost Spreadsheet purports to set forth the City’s personnel and non-

personnel related costs associated with telecommunications deployments in the right-of-

way. (Verizon Matter, Dkt. 104-38). As to personnel costs, Mr. Tobias testified that he

had conversations with a “representative sample” of City employees regarding the work

they performed related to telecommunications issues. (Verizon Matter, Dkt. 98 at 225-26).

Mr. Tobias kept no records of the employees with whom he had spoken or of the

conversations, and those employees did not, in the normal course of their business, keep

track of how much of their time they spent on telecommunications issues. (Id.). Mr. Tobias

left it to the discretion of the individual, unidentified employees to determine what costs

they “understood to be somehow associated with telecommunications or work in the right

of way[.]” (Id. at 226).

Based on the information provided by these unnamed employees, Mr. Tobias

determined a full-time equivalent (“FTE”) value that represented the number of employees

he believed the City used to perform each specified task. (Id. at 95, 106-107). He then

multiplied that FTE by “the average amount of a city employee’s salary plus fringe and

indirect [benefits], . . . without taking into consideration their status or their bracket.” (Id.

at 107-108).

Mr. Tobias split personnel expenses into two tabs within the Cost Spreadsheet. (Id.

at 86). One tab—the “Input Data UG Tab”—purportedly represents the cost associated

with linear facilities, while the other tab—the “Input Data Tab”—purportedly represents

the cost associated with small cell facilities. (Id.). Mr. Tobias testified that it was “not an

exact science” to split the data in this fashion and that there was “absolutely bleed-over

between one and the other[.]” (Id.). He allocated $954,128 in personnel costs to the Input

Data UG Tab and $1,314,218 in personnel costs to the Input Data Tab. (Verizon Matter,

Dkt. 104-38).

The Cost Spreadsheet also includes non-personnel costs from several City

departments. (Id.). All of these costs are allocated to the Input Data UG Tab. (Id.). Mr.

Tobias testified that in his conversations with unidentified City employees, it “came to light

. . . that there were other things that were involved in the cost structure that were not

necessarily particularly personnel driven” that needed to be included in the analysis.

(Verizon Matter, Dkt. 98 at 131). These costs include, for example, replacing a street light

that had fallen over, “the actual cost of the upgrade of the GIS system,” storage of poles,

and asphalt costs. (Id. at 131-32). Mr. Tobias testified that “the work is done regardless

of causality” and that he could not say that these costs were caused by small cell

deployments. (Id. at 132). Mr. Tobias then took the total amount of these non-personnel

costs and used “educated assumptions”—which he described as “more art than science”—

to determine what percentage thereof should be allocated to telecommunications

deployments. (Id. at 140).

D. Conclusions of Law

1. Incorporation of Prior Legal Conclusions

As an initial matter, the Court hereby expressly incorporates by reference the legal

conclusions it reached in its summary judgment Decisions and Orders. (Verizon Matter,

Dkt. 65; Crown Castle Matter, Dkt. 35; Extenet Matter, Dkt. 40). These legal conclusions

include, but are not limited to, the following: (1) the Court has the authority to hear

Plaintiffs’ claims for violation of Section 253 and Section 332; (2) the Barriers Orders

applies to challenges to the Telecom Code brought under the Act, including challenges to

the City’s fees for linear underground and aerial telecommunications facilities; and (3) in

accordance with the Barriers Order, the City bears the burden of demonstrating that its fees

are cost-based. The Court’s reasoning for reaching these conclusions is set forth in full in

its summary judgment Decisions and Orders.

2. The City Has Violated Section 253 and Section 332

Section 253 “renders unlawful State or local statutes, regulations, or other legal

requirements that ‘prohibit or have the effect of prohibiting the ability of any entity to

provide any interstate or intrastate telecommunications service.’” Crown Castle NG E.

Inc., No. 12-CV-6157 CS, 2013 WL 3357169, at *12 (quoting 47 U.S.C. § 253(a)). “[A]

prohibition does not need to be complete or insurmountable to run afoul of [Section]

253(a)”—it need only “materially inhibit[ ] or limit[ ] the ability of any competitor or

potential competitor to compete in a fair and balanced legal and regulatory environment.”

TCG N.Y., Inc. v. City of White Plains, 305 F.3d 67, 76 (2d Cir. 2002) (internal quotation

marks omitted). Similarly, Section 332 provides that no “State or local government or

instrumentality thereof” may regulate “the placement, construction, and modification of

personal wireless service facilities” in a manner that “prohibit[s] or ha[s] the effect of

prohibiting the provision of personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II).

The FCC concluded in the Barriers Order that “collectively, Congress intended for [these]

two provisions to cover the universe of fees charged by state and local governments in

connection with the deployment of telecommunications infrastructure.” 33 F.C.C. Rcd. at

9124.

Section 253 permits a State or local government to “require fair and reasonable

compensation from telecommunications providers, on a competitively neutral and

nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if

the compensation required is publicly disclosed by such government.” 47 U.S.C. § 253(c).

Under the Barriers Order, “[f]ees that cannot ultimately be shown by a state or locality to

be a reasonable approximation of its costs, such as high fees designed to subsidize local

government costs in another geographic area or accomplish some public policy objective

beyond the providers’ use of the ROW, are not ‘fair and reasonable compensation . . . for

use of the public rights-of-way’ under Section 253(c).” 33 F.C.C. Rcd. at 9128. Moreover,

“fees above a reasonable approximation of cost, even when they may not be perceived as

excessive or likely to prohibit service in isolation, will have the effect of prohibiting

wireless service[.]” Id. at 9123; see also id. at 9124 (“fees not reasonably tethered to costs

. . . violate Sections 253(a) or 332(c)(7) in the context of Small Wireless Facility

deployments”). In this context, costs means “those costs specifically related to and caused

by the deployment.” Id. at 9088 n.131.

The Barriers Order makes clear that localities are not required to “use any specific

accounting method to document the costs they may incur when determining the fees they

charge for Small Wireless Facilities within the ROW.” Id. at 9128. Fees are also not

required to be developed specifically based on a cost analysis—“a fee not calculated by

reference to costs might nonetheless happen to land at a level that is a reasonable

approximation of objectively reasonable costs, and otherwise constitute fair and reasonable

compensation.” Id. at 9124 n.208.

Here, the City relies on the Cost Spreadsheet to demonstrate that the fees charged

in the Telecom Code are a reasonable approximation of its costs. The Court has

determined, for the reasons set forth in detail above, that the Cost Spreadsheet is

inadmissible hearsay. For this reason alone the City cannot bear its burden, and Plaintiffs

are entitled to judgment that the City has violated Section 253 and Section 332.

Even assuming that the Cost Spreadsheet was admissible, it still would not be

sufficient to demonstrate by a preponderance of the evidence that the fees at issue are a

reasonable approximation of the City’s “actual and direct costs” related to the deployment

of telecommunications facilities. Barriers Order, 33 F.C.C. Rcd. at 9115. While the City

was not required to follow any particular accounting method in estimating its costs, and

while the Court agrees with the City that “the Barriers Order does not require perfection”

(Verizon Matter, Dkt. 108 at 15), it is apparent that the Cost Spreadsheet is based virtually

entirely on speculation and guesswork, and that it was designed not to be an accurate

reflection of the City’s actual costs, but as a post hoc justification for the fees already

enacted into the Telecom Code.

The problems with the methodology applied by Mr. Tobias are numerous and

apparent. With respect to personnel costs, the Court cannot find it reasonable to simply

defer to the judgment of unnamed, untrained City employees as to what tasks they perform

that are directly attributable to telecommunications deployments. The internal City

communications in the record make it abundantly clear that many of the employees who

were asked for such information were unable to make such determinations, or struggled to

even understand what information they were being asked to provide. Moreover, and

representative of the motivational problems already discussed above, these employees

were encouraged to characterize as much of their work as possible as being performed in

the right-of-way, in order to justify the fee structure that had already been passed into law.

A reasonable estimate cannot be produced where the underlying data is wholly unreliable.

The unreliability of the personnel cost analysis is illustrated by examining some of

the assumptions made in the Cost Spreadsheet. As Plaintiffs point out, the Cost

Spreadsheet “claims that City employees have spent, and will spend each year, 20,919.6

hours on work related to fiber installations and 28,886 hours on small cell installations.

This amounts to 49,805.6 hours of work on telecom installations in the ROW each year, or

136.5 hours per day, every day, including weekends and holidays.” (Verizon Matter, Dkt.

104-1). In other words, the City claims that—assuming an 8-hour work day—it devotes

the equivalent of more than 17 full-time employees to telecommunications installations in

the right-of-way every single day of the year, including weekends and holidays. This is

despite the fact that there were only 88 or 89 such installations in the City at the time the

Cost Spreadsheet was prepared. (See Verizon Matter, Dkt. 100 at 252-54). These numbers

make no sense on their face, and reflect the haphazard manner in which the data underlying

the Cost Spreadsheet was gathered.

With respect to non-personnel costs, the Court finds there to be no reasonable

explanation for why all of these costs were allocated to the Input Data UG Tab. Moreover,

Mr. Tobias’ described method of using the “art” of “educated assumptions” in determining

what percentage of these costs were attributable to telecommunications deployments is not

reasonable or reliable.

Plaintiffs have identified numerous other flaws with the details of the Cost

Spreadsheet, many of which the Court finds troubling. However, the Court need not get

into these details, because of the fundamental defects discussed above. Accordingly, the

Court concludes that the Telecom Code charges fees that are not a reasonable

approximation of the City’s costs and therefore violates Section 253 and Section 332, as

interpreted by FCC in the Barriers Order. The fee provisions of the Telecom Code are

accordingly preempted by federal law.

3. Remedy

Plaintiffs do not (and could not) seek damages for the City’s violation of Section

253 and Section 332. Instead, they seek declaratory and injunctive relief. However, the

specifics of the relief sought by each Plaintiff differ. Verizon asks the Court to declare that

an enumerated list of fees set forth in the Telecom Code are preempted by Section 253 and

to “[o]rder, direct[], and enjoin[] [the City] from continuing to enforce Section 106-15 of

the [Telecom] Code.” (Verizon Matter, Dkt. 1 at 26-27). Crown Castle asks the Court for

“a declaratory judgment finding the City’s fee structure is illegal, and directing

disgorgement of fees, plus interest, paid by Plaintiff to the City pursuant to the fee

structure,” for “an injunction preventing Rochester from charging future fees in excess of

those necessary to cover the City’s reasonable nondiscriminatory costs,” for “a declaration

that the Master License Agreement between the City and Plaintiff executed in May of 2020

does not authorize the City to assess right-of-way use fees for time periods predating its

execution, and directing the disgorgement of any fees paid by Plaintiff to the City for those

time periods,” and for “a declaratory judgment finding that the Telecommunications Code

is unlawful because it contains an illegal prohibition on cost pass-through.” (Crown Castle

Matter, Dkt. 1 at 32). Finally, Extenet asks the Court for “[d]eclaratory judgment that the

City’s fee requirements set forth in the Telecommunications Code have the effect of

prohibiting the provision of telecommunications services and personal wireless services

and are therefore preempted by and in violation of 47 U.S.C. §§ 253 and

332(c)(7)(B)(i)(II),” for “[a]n order in the nature of an injunction prohibiting Rochester

from requiring Extenet to enter into the City’s new Master License Agreement to continue

providing telecommunications services in Rochester, New York,” for “[a]n order in the

nature of an injunction prohibiting Rochester from imposing the fees set forth in the

Telecommunications Code on Extenet,” and for “[a] declaratory judgment that the

Telecommunications Code is unconstitutional because it violates the First Amendment of

the United States Constitution.” (Extenet Matter, Dkt. 1 at 25).

Of these various forms of requested relief, the Court finds that Plaintiffs, in their

joint brief, have demonstrated only that they are entitled to: (1) a declaratory judgment that

the fee requirements set forth in the Telecom Code have the effect of prohibiting the

provision of telecommunications services and personal wireless services and are therefore

preempted by and in violation of Section 253 and Section 332; and (2) an injunction

prohibiting the City from continuing to enforce the fee requirements (i.e. Section 106-15)

of the Telecom Code. Plaintiffs’ joint brief has not addressed any of the other forms of

requested relief, and the Court will not sua sponte conduct its own assessment of whether

they are warranted. To the extent any plaintiff believes it is entitled to additional relief

based on the Court’s findings of fact and conclusions of law, it may file a motion seeking

such relief within 14 days of entry of this Decision and Order. The Court will thereafter

set a briefing schedule on any such motion.

III. OTHER CAUSES OF ACTION

In addition to the causes of action discussed above, Crown Castle has asserted the

following claims: (1) a claim that the City has violated Section 332(c)(7)(B)(i)(I) of the

Act by unreasonably discriminating among providers of functionally equivalent services;

(2) a claim under Article 78 of the New York Civil Practice Law & Rules (“Article 78”);

(3) a violation of the dormant Commerce Clause; (4) a violation of the Takings Clause; and

(5) a violation of the First Amendment right to freedom of speech. (Crown Castle Matter,

Dkt. 1). Extenet has asserted a claim for violation of the First Amendment right to freedom

of speech. (Extenet Matter, Dkt. 1).

Plaintiffs’ joint motion seeks judgment in Crown Castle’s favor under Rule 52(c)

on its Article 78 claim. (See Verizon Matter, Dkt. 104-1 at 73-74). The Court will not

enter judgment in Crown Castle’s favor on its Article 78 claim at this juncture. The Court

has not yet determined that it would be appropriate to exercise supplemental jurisdiction

over this claim. Moreover, in supplemental briefing submitted by Crown Castle on that

point, Crown Castle took the position that the Court need not determine whether it had

supplemental jurisdiction over the Article 78 claim, because “if Crown Castle prevails on

its federal claims under the Communications Act . . . the question of whether the Code was

adopted or imposed in violation of Article 78” would be moot. (Crown Castle Matter, Dkt.

37 at 24). Crown Castle fails, in the instant joint motion, to explain how its request for

judgment on its Article 78 claim is consistent with its prior representation that success on

its claim under the Act would render that claim moot. Additionally, the Court agrees with

the City that it has not been fully heard on Crown Castle’s Article 78 claim. (See Verizon

Matter, Dkt. 108 at 24).

With respect to the other claims asserted by Crown Castle and Extenet, the only

mention of them in Plaintiffs’ joint brief is the following footnote: “Crown Castle brought

additional claims against the City, including that the fees charged violated its Master

License Agreement, that the fees were an unconstitutional taking, and that the City’s

prohibition on passing the fees onto consumers violated the dormant Commerce Clause

and the First Amendment. (Case No. 6:20-cv-6866, Dkt. 1.) If this motion is granted, these

claims will be moot. But if the trial proceeds, Crown Castle intends to pursue these

claims.” (Verizon Matter, Dkt. 104-1 at 75 n.21). It is unclear to the Court whether Crown

Castle will seek to pursue these claims in light of the Court’s denial of its motion for

judgment on its Article 78 claim. Further, Plaintiffs’ joint motion does not acknowledge

Extenet’s First Amendment claim. Accordingly, Crown Castle and Extenet are ordered to

submit letters within 14 days of entry of the instant Decision and Order indicating whether

they intend to pursue their additional claims in light of the Court’s rulings.

IV. REQUEST FOR DISCOVERY SANCTIONS

Plaintiffs have also requested discovery sanctions, based on their contention that “at

numerous points, the City sought to present testimony that relied upon documents that have

either been destroyed or were not produced by the City during discovery, in violation of

the City’s obligations under the Federal Rules of Civil Procedure.” (Verizon Matter, Dkt.

104-1 at 67). Because of these alleged discovery failures, Plaintiffs ask the Court to: (1)

exclude testimony by Mr. Tobias about a project undertaken by the City on State Street,

including the telecommunications-specific labor costs associated with that project; (2)

exclude any testimony “that tends to support the reasonableness of the fees on the basis of

Mr. Tobias’ iterative process, which involved making unknown changes to the [Cost]

Spreadsheet over time”; and (3) “consider drawing an adverse inference from the City’s

spoliation of written documentation that apparently informed creation of the” Cost

Spreadsheet. (Id. at 68-73).

However, the Court has already determined that the Cost Spreadsheet is inadmissible

hearsay and that the City’s fees are not a reasonable approximation of its costs, without

excluding any evidence or drawing any adverse inferences in Plaintiffs’ favor. Because

Plaintiffs’ request for discovery sanctions is in the form of evidentiary remedies that would

have no impact on the Court’s resolution of the instant motions, it is accordingly denied as

moot.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part Plaintiffs’ joint

motion for judgment on partial findings pursuant to Rule 52(c), to exclude the Cost

Spreadsheet, and for discovery sanctions (Verizon Matter, Dkt. 104; Crown Castle Matter,

Dkt. 66; Extenet Matter, Dkt. 78). Specifically, the Court finds that the Cost Spreadsheet

is inadmissible hearsay and that Plaintiffs are entitled to judgment on their claims that the

fee requirements of the City’s Telecommunications Code violate and are preempted by

Section 253 and Section 332 of the Act.

The Court denies Crown Castle’s request for judgment on its Article 78 claim and

denies Plaintiffs’ request for discovery sanctions. As discussed above, Crown Castle and

Extenet are ordered to file letters within 14 days of entry of this Decision and Order

indicating whether they intend to continue to pursue their additional claims.

The Court finds that Plaintiffs are entitled to the following relief: (1) a declaratory

judgment that the fee requirements set forth in Section 106-15 of the City of Rochester

Telecommunications Code have the effect of prohibiting the provision of

telecommunications services and personal wireless services and are therefore preempted

by and in violation of Section 253 and Section 332; and (2) an injunction prohibiting the

City from continuing to enforce Section 106-15 of the Telecom Code. To the extent any

plaintiff believes it is entitled to additional relief based on the Court’s findings of fact and

conclusions of law, it may file a motion seeking such relief within 14 days of entry of this

Decision and Order. The Court will thereafter set a briefing schedule on any such motion.

Because the instant Decision and Order “adjudicates fewer than all the claims”

presented in these matters, the Court can direct entry of final judgment at this time only if

it “expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). No

party has asked the Court to make such a finding, nor has the matter been briefed.

Accordingly, the Court will not direct entry of final judgment at this time, but will enter

final judgment in each individual action once it is clear whether the plaintiff therein is

seeking any additional relief and/or is pursuing any additional claims.

SO ORDERED.

el Alpe

Ife AQAC D □

Chief Jige

United States District Court

Dated: February 27, 2024

Rochester, New York

-32-