Ashburn HOAs move to consolidate cases against OpenBand
By Caitlin Gibson,
As the ongoing legal battle between two Ashburn homeowners associations and telecommunications provider OpenBand prepares to move to appellate court, residents of the two communities moved this week to consolidate their cases and have them heard at the same time.
In a motion filed Monday, the Southern Walk at Broadlands and Lansdowne on the Potomac homeowners associations requested that their complaints against OpenBand be presented before the same panel in the U.S. Court of Appeals for the 4th Circuit.
The two homeowners associations have nearly identical lawsuits, which focus on contesting the exclusive nature of OpenBand’s contract to provide cable TV services to the communities, but the two complaints were met with opposite outcomes in the U.S. District Court in Alexandria.
The Southern Walk at Broadlands homeowners association’s claim was dismissed with prejudice in February, meaning that the association cannot file the same complaint again.
But the Lansdowne complaint prevailed in the same court when U.S. District Court Judge Anthony J. Trenga ruled last month that the terms of OpenBand’s agreement, which result in the inability of competing cable companies to establish the wire infrastructures needed to provide services to Lansdowne residents, was in violation of the Federal Communication Commission’s exclusivity order.
Residents of Southern Walk have pointed to the Lansdowne association’s success as proof that both complaints are justified. OpenBand spokesman Ben Young has said the opposite, stressing the precedent set by the dismissal of Southern Walk’s lawsuit.
OpenBand filed an appeal of the ruling in the Lansdowne case, but if the motion to assign the Southern Walk and Lansdowne cases to the same panel is approved, the two cases would potentially be heard together next month.
In a statement, the Southern Walk HOA said it was surprised by Lansdowne’s “eleventh hour request” to join its appeal.
“Nonetheless, we welcome their participation in the Southern Walk HOA appeal and joining our vigorous fight against OpenBand’s onerous agreements,” the statement said.
OpenBand promptly opposed the motion to join the two cases.
“These cases involve two separate appeals from two district court decisions addressing various contracts entered into by two different homeowners associations for two different developments,” its motion to oppose said.
In OpenBand’s motion, the company said that the two cases involve different arguments and are in different stages of litigation and that because the Lansdowne case is not yet fully prepared for the appeal process, the move to consolidate would result in a delay in a decision in both cases.
The homeowners associations have maintained that the process of preparing the Lansdowne case could be expedited because the two complaints are so similar.
Young declined to comment further on the matter.
The homeowners associations’ motion raises the possibility that the lengthy, multifaceted saga involving the Ashburn communities and the controversial telecommunications company could come to a final resolution within weeks. The Loudoun County Board of Supervisors is also expected to decide next month whether to renew the county’s franchise agreement with OpenBand.
The proposed agreement, which was rejected by the previous Board of Supervisors in November, was re-submitted to the newly elected board this year.
The previous franchise agreement expired in June 2009, but the transition period outlined in the contract has allowed OpenBand to continue to provide cable TV, phone and Internet services to several eastern Loudoun communities, including Southern Walk, Lansdowne, Lans-downe Village Green and parts of Leisure World.
That transition period was to expire in June, but Loudoun’s supervisors voted to extend it — with the objective that the extra time might allow the homeowners associations and OpenBand to achieve a resolution.
At the June board meeting, several supervisors emphasized hopes that a positive outcome might be possible out of court. Supervisor Ralph Buona (R-Ashburn), who has attempted to mediate the discussions between the homeowners and OpenBand, acknowledged that the issue was “complex” but said he hoped the litigation could come to an end — an outcome that appears unlikely at this point.
In addition to concerns about the exclusive easements established in OpenBand’s contracts with the communities’ developers, residents have also complained of consistently poor service and, more recently, a lack of responsiveness from OpenBand during the attempted negotiations.