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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.
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