HomeMy WebLinkAbout2. City of Renton's Opposition to Tracfone's Motion to Preclude Ashpaugh Testimony1
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CITY’S OPPOSITION TO TRACFONE’S MOTION
TO PRECLUDE TESTIMONY OF GARTH T. ASHPAUGH - 1
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON RE:
TracFone Wireless, Inc.
Administrative Appeal
RESPONDENT CITY OF RENTON’S OPPOSITION TO TRACFONE’S MOTION TO PRECLUDE TESTIMONY FROM EXPERT WITNESS GARTH ASHPAUGH
I. INTRODUCTION
The City of Renton (“the City”) opposes Appellant TracFone Wireless, Inc.’s (“TracFone”)
Motion to Preclude Testimony from Witness Garth T. Ashpaugh (“Motion”) as an expert witness in
this proceeding. TracFone’s Motion neglects Mr. Ashpaugh’s relevant expertise and the essential
purpose of an Administrative Hearing, that is, to provide the parties a full and fair opportunity to
present relevant evidence.
II. STATEMENT OF THE FACTS
The City retained Garth T. Ashpaugh for his expertise and experience in the
telecommunications and utilities arena. Indeed, he has testified as an expert in telecommunications
cases across the country, including Oregon, New Mexico, and Louisiana. Ashpaugh is also a licensed
Certified Public Accountant in Florida (#0023193), Missouri (#007098), and a member of the
American Institute of Certified Public Accountants. See Declaration of Garth T. Ashpaugh in Support
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CITY’S OPPOSITION TO TRACFONE’S MOTION
TO PRECLUDE TESTIMONY OF GARTH T. ASHPAUGH - 2
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
of The City of Renton’s Motion for Partial Summary Judgment, ¶¶ 2-3 & Ex. 1. His experience with
the telecommunications industry spans decades, dating back to the early 1980’s and the divestiture of
AT&T in the various so-called “baby bells” (e.g., Pacific Northwest Bell, Bell South, etc.). Id at ¶ 2.
Mr. Ashpaugh has been engaged in utility matters and regulation full-time for over twenty years. Id at
¶ 2. Moreover, he has been a consultant since 1991 and worked as an Audit Supervisor with the
Missouri Public Service Commission. His primary focus with A&S is working for local governments
on telecommunications and franchise matters. Id at ¶ 2.
Furthermore, over the course of his career, Mr. Ashpaugh has conducted numerous audits of
various utilities (e.g., gas, electric, water, wastewater, telecommunications, etc.), including audits of
other prepaid wireless companies like TracFone Wireless, Inc. (“TracFone”), namely Cricket and
NextTel (d/b/a Boost) for Lincoln, Nebraska. Id at ¶ 3. He is familiar with the business model of
prepaid wireless companies who purchase or lease excess wireless service (also known as airtime and
Commercial Mobile Radio Services (“CMRS”)) from network carriers (e.g., AT&T, T-Mobile/Sprint,
Verizon, etc.) at wholesale and then resell the wireless service at retail to end users (also known as
subscribers or customers). Id at ¶ 3.
TracFone’s attempt to diminish Mr. Ashpaugh’s relevant experience is a thinly veiled effort to
exclude helpful and pertinent analysis necessary to this Hearing and should be dismissed in full.
III. ARGUMENT
TracFone argues that Mr. Ashpaugh’s testimony should be excluded. To support this position,
TracFone cites federal case law, Washington case law, and the Federal Rules of Evidence, Rule 702:
An expert witness may provide opinion testimony if : (1) the testimony is based
upon sufficient facts or data; (2) the testimony is the product of reliable principles
and methods; and (3) the expert has reliably applied the principles and methods to
the facts of the case. Fed. R. Evid. 702; Sundance, Inc. v. DeMonte Fabricating
Ltd., 550 F.3d 1356, 1360 (Fed.Cir. 2008).
TracFone’s Motion to Preclude Testimony of Garth Ashpaugh, at p. 5. Throughout its Motion,
TracFone relies heavily on the more stringent Federal Rules of Evidence to support its proposition
that Mr. Ashpaugh’s testimony should be precluded. While Mr .Ashpaugh has in fact testified as an
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CITY’S OPPOSITION TO TRACFONE’S MOTION
TO PRECLUDE TESTIMONY OF GARTH T. ASHPAUGH - 3
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
expert on these topics in Federal Court, that is not the standard that should be applied here. TracFone
selectively relies on more stringent standard, and wholly disregards the fact that administrative
hearings proceed under significantly relaxed rules of evidence. See, e.g., RCW
34.05.452(2) (rules of evidence are “guidelines” under Administrative Procedure Act). Indeed, by
their own provisions, the rules of evidence apply only to court proceedings. ER 101, 1101.
In administrative hearings, evidence of any kind is admissible if, “in the judgment of the
presiding officer it is the kind of evidence on which reasonably prudent persons are accustomed to
rely in the conduct of their affairs.” RCWA 34.05.452(1). See also, Nisqually Delta Ass'n v. City of
DuPont, 103 Wn.2d 720, 733, 696 P.2d 1222, 1229 (1985) (even relevant hearsay is admissible in
administrative hearings). Accordingly, TracFone’s application of inappropriate case law and legal
standards to preclude Ashpaugh’s testimony should be disregarded.
Moreover, the Renton Municipal Code highlights the informal nature of these
proceedings, and the importance of providing each party with a full and fair opportunity to present
their case:
APPEALS TO HEARING EXAMINER:
1. Format of the Appeal Hearing: The appeal hearing will be of an
informal nature, but organized so that testimony and other evidence
can be presented efficiently.
RMC 4-8-100(E)(1) (emphasis added). The City has reasonably relied on Mr. Ashpaugh’s
analysis and expertise, and believes his testimony is both efficient and helpful to understanding the
issues present in this case.
Mr Ashpaugh’s experience in telecommunication spans several decades. He has presented
expert testimony in Federal Court on matters relating to telecommunications and is familiar with the
business model of prepaid wireless companies who purchase or lease excess wireless service.
Contrary to TracFone’s assertions that Mr. Ashpaugh’s testimony will be offered as “legal opinion,”
the City intends to offer Mr. Ashpaugh’s testimony about the telecommunications industry and how
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CITY’S OPPOSITION TO TRACFONE’S MOTION
TO PRECLUDE TESTIMONY OF GARTH T. ASHPAUGH - 4
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
TracFone’s business model fits within that industry. TracFone cannot exclude his testimony just
because it disagrees with his opinions.
IV. CONCLUSION
The City opposes TracFone’s request that the Hearing Examiner enter an order precluding the
City from calling Mr. Ashpaugh to testify as an expert witness in this proceeding. TracFone’s request
neglects Mr. Ashpaugh’s relevant expertise and the aim of an administrative hearing under the RMCs
and should therefore be denied.
DATED this 12th day of February 2021.
OGDEN MURPHY WALLACE, PLLC
By /s/Kari L. Sand
Kari L. Sand, WSBA #27355
Julia Norwood, WSBA #52876
Attorneys for Respondent City of Renton
ksand@omwlaw.com
901 Fifth Avenue, Suite 3500
Seattle, WA 98164-2008
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CITY’S OPPOSITION TO TRACFONE’S MOTION
TO PRECLUDE TESTIMONY OF GARTH T. ASHPAUGH - 5
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
CERTIFICATE OF SERVICE
I, Kenya Owens, an employee of Ogden Murphy Wallace, PLLC, certify that on the date
below, I filed and served the Respondent City of Renton’s Opposition of Tracfone’s Motion to
Preclude the Testimony of Witness Garth T. Ashpaugh via email on the following parties:
TracFone Wireless, Inc.
Scott Edwards
Lane Powell, PC
1420 5th Avenue, Suite 4200
Seattle, WA 98101
EdwardsS@LanePowell.com
Grant S. Degginger
Lane Powell, PC
1420 5th Avenue, Suite 4200
Seattle, WA 98101
DeggingerG@LanePowell.com
I declare under penalty of perjury under the laws of the State of Washington that the foregoing
is true and correct.
Executed at Seattle, Washington this 12th day of February, 2021.
/s/Kenya Owens
Kenya Owens
Legal Assistant