Federal judge dismisses amended complaint against OpenBand

One chapter in the ongoing saga between Loudoun County and a cable telecommunications provider might be coming to an end: Last month, a federal judge dismissed an amended complaint against OpenBand filed by the Southern Walk at Broadlands Homeowners Association.

It was the homeowners association’s second lawsuit against OpenBand. The first was filed in U.S. District Court in Alexandria in May 2011, after years of complaints about poor service from residents of the Southern Walk community.

The association also alleged that the exclusive property easements established by OpenBand’s contract with developer Van Metre Cos. made it impossible for competing cable companies to provide service in the development, resulting in a violation of federal communications law.

The first complaint was dismissed in July. The association filed an amended complaint in August, which was dismissed with prejudice Feb. 13 — meaning the homeowners association will not be permitted to refile the complaint in federal court.

Court records show that OpenBand subsequently filed a motion requesting that Southern Walk pay for OpenBand’s legal fees.

The homeowners association plans to appeal the decision in the U.S. Court of Appeals for the 4th Circuit, according to association President Erika Hodell-Cotti.

“The association still wants its day in court,” Cotti said. “We’re hoping that the 4th Circuit will allow that.”

In his decision, U.S. District Judge Gerald Bruce Lee found that the complaint failed to prove any injury to the homeowners association or the residents it represents, because the established agreement technically allows residents to obtain service from competitors.

Although residents have said that OpenBand’s property easements make it logistically impossible to seek alternative service, the court also found that no competitors have said that they would establish a competing cable system in the development if OpenBand’s exclusive rights were set aside, according to the decision.

Lee also ruled that the FCC’s Exclusive Access Rule does not apply to easements in their entirety — and because OpenBand’s easements cover telephone and Internet services as well as video services, their purpose remains relevant:

“Even if OpenBand loses its right to operate the open video system in Loudoun County and ceases to provide video programming service . . . the easements will continue to serve the purpose of facilitating telephone and Internet services,” the judge’s decision said.

The facts in the Southern Walk Homeowners Association’s amended complaint “fail to support its claim that the purpose of the challenged easements has ceased,” according to the decision.

Another federal lawsuit against OpenBand, filed by the Lansdowne on the Potomac Homeowners Association, is pending. Like the complaint filed by Southern Walk, it alleges that OpenBand’s property easements constitute a monopoly that violates the FCC rule.

Numerous homeowners in communities served by OpenBand have complained of poor service and the inability to switch providers for years. Such opposition to the company increased last year, as the Loudoun Board of Supervisors considered renewing OpenBand’s franchise agreement with the county. The process was complicated by tense negotiations, rounds of negative testimony from OpenBand customers and the two federal lawsuits filed against the company by homeowners associations. The board ultimately voted in November to deny the renewal.

That decision set off another round of litigation: OpenBand responded to the board’s rejection with a complaint filed Dec. 2 in Loudoun County Circuit Court. That case also remains open, although the county has not been served with the lawsuit, said Ben Young, spokesman for OpenBand.

The company filed a new franchise agreement to the Board of Supervisors early last month, Young said.

In a statement on its Web site, OpenBand applauded Lee’s decision in the Southern Walk case.

“On behalf of the OpenBand team, we are pleased that Judge Lee has dismissed — for a second time — the lawsuit brought by the Southern Walk at Broadlands Homeowners Association,” the statement said. “We are still reviewing the details of the decision, but it appears that Judge Lee found OpenBand’s agreement with the HOA to be proper and lawful. Our company and our customers have born considerable expense since this lawsuit was filed last May. We hope that today’s ruling means that we can go forward and focus our energies on providing an excellent service for the lowest price.”

 
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