Newhouse Broadcasting Corp. and Subsidiaries, et al. - Page 24




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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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