Judge dismisses HOA lawsuit against OpenBand
Monday, Aug. 8 by Crystal Owens
http://www.loudountimes.com/index.php/news/article/judge_dismisses_hoa_lawsuit_against_openband898/

A U.S. District Court judge on July 29 dismissed a lawsuit against Dulles-based telecommunications company OpenBand, saying the homeowner’s association that filed the suit failed to prove how the courts could intervene.

Judge Gerald Bruce Lee dismissed the lawsuit without prejudice, meaning the Southern Walk at Broadlands Homeowner’s Association can refile at any time.

It’s not yet known whether the group intends to refile the lawsuit.

Southern Walk HOA President Erika Hodell-Cotti was not immediately available for comment.

The lawsuit, filed May 13 in the U.S. Eastern District of Virginia, was an attempt by the homeowner’s association to void an exclusive service contract held by OpenBand.

OpenBand holds an exclusive easement contract with Broadlands developer Van Metre, which was agreed on in 2001, that allows the telecommunications carrier to provide service to residents for at least 25 years, with an option for an extension of up to 75 years. Lansdowne on the Potomac has a similar contract with OpenBand.

The exclusive easements in the communities prevent other providers from establishing service lines, although some residents have opted to pay additional fees for satellite dish services.

Loudoun County supervisors are now in talks about whether to renew OpenBand’s franchise agreement, which expired in June 2009.

If Loudoun supervisors agree to renew the franchise agreement, they would be granting the right to use the public right-of-way to the extent that the company needs to get into the subdivisions.

The rights are identical to the those that Verizon or Comcast have to provide service.

A representative of OpenBand on Monday said the firm was satisfied with the judge’s decision to dismiss the case.

“OpenBand is pleased that the court granted our motion to dismiss. We can return full attention to reaching mutually agreeable terms with Loudoun County for our new Franchise Agreement and providing excellent service to our customers,” Sharon Hawkins, communications director for OpenBand said in a statement.

OpenBand in the last year has had a rocky history with residents of the homeowner’s associations and Loudoun County supervisors.

As supervisors debate whether to renew the franchise agreement – which should be determined this fall – residents have bombarded the board with complaints and DVDs recording poor service from the firm.

In June, supervisors agreed to tap state Attorney General Ken Cuccinelli to investigate whether OpenBand is violating antitrust laws.

Cuccinelli has not yet rendered an opinion on the issue.

Editor’s Note: OpenBand is a subsidiary of M.C. Dean, a Dulles-based engineering firm. M.C. Dean is the former owner of the Loudoun Independent, which merged with the Loudoun Times-Mirror in July 2010. Bill Dean, M.C. Dean CEO and President, holds a minority interest in ArCom Publishing and sits on its Board of Directors.

Lansdowne HOA agrees to sue OpenBand
Monday, Aug. 8 by Crystal Owens
http://www.loudountimes.com/index.php/news/article/lansdowne_hoa_agrees_to_sue_openband898/

A Lansdowne homeowners association on Aug. 3 unanimously voted to file suit against Dulles-based telecommunications firm OpenBand.

In a letter to residents, members of the Lansdowne on the Potomac Homeowners Association’s board of directors said they’ve authorized Washington, D.C.-based law firm Wiltshire & Grannis to file and serve the formal legal complaint against OpenBand.

It’s not known when the firm intends to serve the lawsuit.

Once the lawsuit is served, the homeowners association will become the second to sue the firm.

The Southern Walk at Broadlands Homeowners Association sued OpenBand on May 13, alleging the firm violated Federal Communications Commission anti-trust laws. A U.S. District Court judge on July 29 dismissed that lawsuit without prejudice, meaning Southern Walk can refile at any time.

The Lansdowne on the Potomac Homeowners Association, a residential community of 2,155 homes near Ashburn, is one of several communities where OpenBand has exclusive easement rights. In addition to Southern Walk at Broadlands, the firm also serves Leisure World.

OpenBand holds an exclusive easement contract with Broadlands’ developer Van Metre, which was agreed on in 2001, that allows the telecommunications carrier to provide service to residents for at least 25 years, with an option for an extension of up to 75 years.

The exclusive easements in the communities prevent other providers from establishing service lines, although some residents have opted to pay additional fees for satellite dish services.

In a letter to residents, the Lansdowne HOA board of directors said it has been reviewing the community’s relationship with OpenBand during the past several years, including the firm’s lapsed county-issued franchise agreement, duration of contract, cost and levels of service, among others.

“The Board has also attempted to open dialogue with OpenBand on these issues but not not been offered any meaningful response to compromise or resolve any of these items,” the letter says.

The HOA board since 2010 has held 10 special meetings and two town hall meetings to discuss its relationship with OpenBand, according to the letter.

The cost to sue OpenBand is estimated to be $350 to $500 per household during the next 12 to 18 months, the board says in the letter. The current potion of HOA assessments paid to OpenBand on a monthly per home basis is about $148.

Editor’s Note: OpenBand is a subsidiary of M.C. Dean, a Dulles-based engineering firm. M.C. Dean is the former owner of the Loudoun Independent, which merged with the Loudoun Times-Mirror in July 2010. Bill Dean, M.C. Dean CEO and president, holds a minority interest in ArCom Publishing and sits on its board of directors.

Federal Judge Denies Dismissal Of OpenBand Suit
Posted: Friday, September 9, 2011 12:40 pm
http://www.leesburg2day.com/news/article_ad6f0a82-db02-11e0-8a84-001cc4c03286.html

A U.S. District Court judge has denied a motion that would stop the Southern Walk at Broadlands HOA federal lawsuit against the community's cable provider OpenBand.

After having its initial suit dismissed without prejudice in late July, Southern Walk's HOA filed an amended complaint against the Dulles-based telecommunication company last month. OpenBand responded by filing a motion opposing the homeowners association's ability to file an amended suit. Today, a federal judge denied the motion, and allowed the case to move forward.

OpenBand has until Oct. 6 to respond to the amended complaint.

Comment has been requested from OpenBand's representatives on today's hearing.

For the residents' part, Southern Walk HOA President Erika Hodell Cotti said the judge's ruling was a positive step.

"The HOA is pleased with the court's decision and we look forward to proceeding forward with our amended complaint and to our day in court," she said.

OpenBand serves 4,200 residents in four communities: Lansdowne on the Potomac, Southern Walk, Lansdowne Village Green and Leisure World. All of the contracts are made through the homeowner's association. Leisure World, in which each building is an individual HOA, is the only community in which the resident-controlled HOA awarded a contract to OpenBand following a competitive bidding process.

Southern Walk has been battling with OpenBand for years, citing concerns about poor customer service, inadequate cable technology, and a multi-decade exclusive contract that was entered into with OpenBand by the then-developer controlled HOA board. While the agreement states it allows other providers to serve Southern Walk, exclusive easements granted to the telecommunications company when the community was under construction at the beginning of the decade make that virtually impossible for other providers like Verizon or Comcast to offer services, residents say.

In the amended complaint, Southern Walk states, "The Telecommunications Services Agreement and the other contracts and conveyances come together in a carefully orchestrated, inter-related self-dealing scheme that guarantees exclusive access for Open Band to the Southern Walk Real Estate Development and an income stream for Open Band for up to 65 years."

The amended complaint notes that while there is a blanket non-exclusive easement in the Declaration of Broadlands, Southern Walk's convenants allow for the declarant, developer Van Metre, "to grant to a third party a transferable exclusive right to operate Utilities on the Property [and that such] easement rights set forth in this Subsection shall survive in perpetuity..."

The complaint also notes that the easements in Southern Walk refer to the "exclusive right" to provide services to homeowners, and that OpenBand's own operating agreement refers to the easements as exclusive, and that OpenBand representatives have acknowledged publicly, that the easements are exclusive for wire services.

The Southern Walk HOA originally filed its suit on the basis that the contract that was created between OpenBand and its developer Van Metre violated the 2007 Federal Communications Commission order that disallowed exclusive telecommunications agreements. In late July a judge dismissed that suit, without prejudice, giving residents the opportunity to re-file.

OpenBand's Aug. 22 motion challenged that ability, on the grounds that it would be "futile."

"The Amended Complaint fails to cure the deficiencies identified by the Court when it dismissed Plaintiff's original Complaint," OpenBand's motion reads. "Although Plaintiff claims that it ‘seeks leave to allege in detail the specific exclusivity provisions' contained in the agreement at issue in its original Complaint-the Telecommunications Services Agreement-all Plaintiff has done is add factual allegations based upon extraneous documents. However, the proposed amendment is futile, as this Court has already held that the TSA is a valid and lawful bulk billing agreement under the applicable Federal Communications Commission..."

The motion also notes that the court already ruled that the easements in the community are not part of the HOA agreement.

"Although Plaintiff states that the FCC has ordered that exclusive access is illegal, that is an incorrect characterization of the scope of the 2007 Exclusive Access Order, which only prohibits building exclusivity clauses in contracts between cable operators and developers or homeowners associations," the motion argues. "To the extent that exclusivity arises out of something other than an agreement between the parties, such as an easement over private property, that circumstance would be beyond the scope of the FCC's authority..."

The motion also notes that each homeowner signed onto the agreement when they purchased their homes and no one was forced to sign.

"No homeowner was forced to close on the purchase of his/her home if any of the HOA's restrictions or requirements were unacceptable to that homeowner. Unless the HOA's covenants and conditions violate some protected right, then they are enforceable once accepted by the homeowner," the motion argues.

This is an ongoing story and more will be reported as it becomes available.