- 24 - provide state-of-the-art equipment, including equipment that will "meet or exceed" the material requirements contained in the MetroVision application. c. Conclusion For the above reasons, we shall deny respondent’s motion.9 2. There Are Genuine Issues of Material Fact in Determining Whether the Property Placed in Service by Petitioner During the Audit Years Is "Readily Identifiable With and Necessary to Carry Out" the Livonia Franchise Agreement. a. Discussion Petitioner attempts to compensate for its inability, to date, to document the items of subject property actually placed in service during the audit years by relying upon the sworn statements of its two experts, Messrs. Bjorklund and Kearse, to the effect that all of the subject property "was placed in service solely in order to provide cable television service to residents of Livonia as required by the Livonia Franchise Agreement" and that "this property was necessary for an operational cable system." Respondent disputes these conclusions on the basis of the affidavit of his expert, Mr. Gramlich, who 9 As indicated supra in sec. III.A., our denial of respondent’s motion is not intended to imply our agreement with petitioner that all of the property actually used by MetroVision in extending and maintaining the Livonia cable system is "readily identifiable with" the Livonia Franchise Agreement. Because of petitioner’s inability to document the subject property, whether such property is "readily identifiable with" the franchise agreement remains an issue of fact to be resolved at trial.Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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