In OpenBand lawsuit, stage set for complex case

December 20, 2012

A $50 million lawsuit filed by telecommunications provider OpenBand will head to court in February, marking a new escalation in a years-long, increasingly litigious battle involving the Dulles-based company, its eastern Loudoun customers and county supervisors.

The lawsuit, filed in October in Loudoun County Circuit Court, names more than a dozen defendants, including members of two homeowners association boards, the county Board of Supervisors as a whole, and supervisors Shawn Williams (R-Broad Run) and Ralph Buona (R-Ashburn) individually.

OpenBand aims to appeal the county board’s rejection of its franchise agreement renewal, alleging that actions by the supervisors and the homeowners associations served by OpenBand resulted in “reputational and monetary harm” to the company. OpenBand’s suit also claims that efforts by Buona and Williams to help negotiate a deal between the company and its customers resulted in “direct manipulation of the franchise process,” violating a state constitutional ban on government interference with private contracts.

As both sides prepare for the initial hearing, the stage has been set for a complicated and document-laden case. Late last month, OpenBand submitted lengthy requests for records to Williams and Buona, seeking, among an enumerated list of 18 items, “all documents that constitute or refer to communications regarding OpenBand entities,” as well as “all documents that describe or refer to any instance where you have conditioned your vote as a supervisor on a franchise application based upon the satisfaction of the demands of a private party in a dispute with a franchise applicant.”

OpenBand also appears to be interested in records that could establish potential conflicts of interests between the supervisors and their role in the contract negotiation process. The company is seeking records from Buona and Williams that predate their terms on the county board, including information about e-mail addresses used by the supervisors or their staff members since 2009; property they own, and whether it is located in the Lansdowne or Southern Walk developments; and companies from which they have received telecommunications services since 2007.

Williams, who lives in Southern Walk, served on the homeowners association board before beginning his term on the Board of Supervisors. OpenBand alleges that this previous role presented an inherent conflict of interest in Williams’s ability to objectively review the company’s application for a franchise renewal.

OpenBand also seeks information about every conversation either supervisor had with anyone regarding OpenBand and the franchise agreement, and the names of every person with whom the matter was discussed.

Julia B. Judkins, an attorney representing Buona and Williams, filed a response Dec. 6 opposing OpenBand’s requests, which Judkins referred to in the court filing as “overly broad and unduly burdensome.”

The lawsuit was filed soon after supervisors voted in September to deny OpenBand’s application to renew its franchise agreement with the county, citing ongoing and unresolved concerns from the communities served by the company, as well as two pending federal lawsuits against the firm. It was the second time that the renewal had been denied: The previous Board of Supervisors rejected an earlier version of the agreement in November 2011.

Residents of eastern Loudoun communities served by OpenBand, including Southern Walk and Lansdowne on the Potomac, have long complained about the company’s services and its response to customers. The two homeowners associations have also maintained that exclusive property easements established in OpenBand’s contracts with the communities’ developers effectively established a monopoly, in violation of federal telecommunications law. Last year, both homeowners associations filed separate federal lawsuits against OpenBand. The two cases received conflicting verdicts in U.S. District Court in Alexandria, and both will be reviewed by the same panel at the U.S. Court of Appeals for the 4th Circuit in the coming months.

Ben Young, spokesman for OpenBand, did not respond to a request for comment.

County officials have declined to comment on pending litigation.

Caitlin Gibson is a local news and features writer for The Washington Post.
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