Roswell Proposes ex-Sprint Nextel Engineer as Substitute Expert in T-Mobile Fight

T-Mobile’s response is due Friday to a Roswell, Georgia, motion to appoint Ben Levitan as its substitute RF engineering expert in its long-standing cell tower fight with the carrier, said an order signed Friday (docket 1:10-cv-01464) by U.S. District Judge Amy Totenberg for Northern Georgia in Atlanta. The lawsuit turns 14 years old on May 13.

Levitan, a Raleigh resident, would replace Ronald Graiff, who resigned abruptly from the case days before he was to testify at the court’s final evidentiary hearing into whether there’s a significant wireless coverage gap in the area of Roswell identified by T-Mobile and whether the proposed tower is the least intrusive means to remedy that gap. Graiff’s sudden departure March 2 for health reasons (see 2403050005) forced the hearing’s postponement.

The hearing has now been rescheduled for June 24-26, according to Totenberg’s order. Roswell's motion asks the court to deny T-Mobile’s request that the city pay the company's expenses as a monetary sanction for the delay, arguing that Graiff’s resignation was beyond the city’s control and that it went about immediately addressing the problem in good faith.

The city alleges that T-Mobile seeks only to enhance its existing network with the proposed new tower, not ensure the provision of services (see 2402090001). T-Mobile contends that Roswell continues to violate Section 332 of the Telecommunications Act by blocking the application for the tower.

Levitan has been a telecommunications consultant on cellular network, wireless and broadband telephony since 2006, according to the curriculum vitae attached to the city’s motion. He previously served for two years as Sprint Nextel’s sole representative on the 3rd Generation Partnership Project 2 standards development committee responsible for core network standards, said the CV. Levitan lists himself as a "key designer" of the Communications Assistance for Law Enforcement Act's "US wiretap system."

Levitan expects to have an expert report prepared by April 22, and he’s willing “to make himself available for deposition with reasonable notice any time thereafter,” said Roswell’s motion. As to whether the proposed tower is the least intrusive means to remedy the coverage gap, he will explore the possibility of installing small cells in the area, plus any collocation opportunities, and the proposed site's effectiveness “relative to the identified gap,” it said.

Roswell asks that the court decline to award T-Mobile monetary penalties for Graiff’s sudden departure, said its motion. His resignation wasn’t due to any “act or omission” on the city’s part, it said. The city hasn’t acted in bad faith, and has been “diligent” in informing the court and opposing counsel of the situation “and in its efforts to obtain a new expert,” it said.

T-Mobile’s efforts to characterize Graiff’s resignation as resulting from his “inability to handle T-Mobile’s vigorous attacks” doesn’t change that his issues were beyond the city’s ability “to control or predict,” said Roswell’s motion. T-Mobile claims prejudice in that it has spent money litigating the case while Graiff was the city’s expert and the “foundation” of its defense, it said.

That Graiff was the primary focus of the city’s case "actually cuts in favor” of allowing the Roswell to substitute an expert, said the motion. As the court has specifically noted, the expert witnesses in the case “are integral to both parties” and to the court’s decision-making, it said. As such, the city “should be given an opportunity to substitute a new expert,” it said. Not allowing a substitution “would be tantamount to an automatic judgment in favor of T-Mobile, which would be too severe a sanction for this situation,” it said.

T-Mobile won’t need to retain additional expert witnesses to analyze Levitan’s April 22 report, said the report. Just like T-Mobile, the city had been preparing for the final hearing with the understanding that Graiff was to testify, it said. Any additional expense related to the substitute expert affects the city as much as T-Mobile, it said.

While some cases allow the new expert, “but punish the moving party by awarding fees,” not all cases do so, said the motion. Where the moving party has acted in good faith and has been diligent in its efforts to address the issue, courts “allow the substitution without any monetary punishment,” it said. “The mere failure to predict Graiff’s behavior is not sanctionable conduct,” it said. Therefore, requiring the city to pay T-Mobile’s expenses is “unwarranted,” it said.