After the November vote, OpenBand filed a complaint against the Board of Supervisors in Loudoun County Circuit Court, seeking to overturn the board’s decision on the grounds that the company had demonstrated compliance with the existing agreement and industry standards, attained high approval ratings, received successful results from an independent audit and made generous concessions during the contract negotiation process.
At the time, OpenBand spokesman Ben Young said that the company hoped to avoid litigation and would continue to pursue negotiations to resolve the matter.
But, shortly after the second rejection of the agreement last week, OpenBand moved forward with the complaint — the latest development in the lengthy and litigious saga involving OpenBand, its eastern Loudoun customers and supervisors over concerns about the quality of the firm’s service and its competitive practices.
Young did not respond to requests for comment.
County spokeswoman Anna Nissinen said Loudoun officials would not comment on pending litigation.
Residents of eastern Loudoun communities served by OpenBand have complained for years about the company, citing spotty service and poor customer relations. At the board meeting Tuesday, a majority of the supervisors said that they could not overlook the complaints nor the ongoing litigation between OpenBand and its customers.
“One of the things that we as a board have to look at is, ‘Is it in the best interest of our citizens?’ ” said Supervisor Ralph Buona (R-Ashburn), who made the motion to deny the agreement.
With the company facing lawsuits from two of its largest communities, he said, “I just can’t reconcile that being in the interest of our constituents.”
Supervisor Shawn Williams (R-Broad Run), a resident of Southern Walk — one of two communities engaged in litigation against OpenBand — agreed that the franchise agreement should not be approved while so many customer concerns and complaints remain unresolved.
“I certainly don’t want to send a message to the community that we’re endorsing this service,” he said. “We should not approve the franchise as it stands, because that would be sending the wrong message, and we need to support the communities.”
Two homeowners associations, Southern Walk at Broadlands and Lansdowne on the Potomac, filed federal complaints last year, alleging that exclusive property easements established in contracts between OpenBand and the communities’ developers had effectively resulted in a monopoly. Competing cable service providers, such as Comcast and Verizon, could not get access to the neighborhoods, which the homeowner associations maintained violated federal telecommunications law.
The two similar lawsuits received conflicting verdicts in U.S. District Court in Alexandria. The Southern Walk complaint was dismissed with prejudice in February; the Lansdowne case received a ruling in July stating that the terms of OpenBand’s agreement were in violation of the Federal Communication Commission’s exclusivity order.
The two cases will be reviewed together in coming months at the U.S. Court of Appeals for the 4th Circuit.
Despite the ongoing legal issues and concerns of OpenBand customers, not all members of the board agreed that the franchise should again be denied. Supervisors Matthew F. Letourneau (R-Dulles), Eugene A. Delgaudio (R-Sterling) and Suzanne Volpe (R-Algonkian) voted against the motion to reject the agreement. Vice Chairman Janet Clarke (R-Blue Ridge) abstained from the vote.
Letourneau said it wasn’t the board’s place to interfere with a dispute between two private entities at the expense of county taxpayers.
“Our job is to manage the use of tax dollars,” he said. A decision to deny the franchise would cost taxpayers “hundreds of thousands” in additional litigation costs, he said.
In response to the board’s vote, the Southern Walk homeowners association released a statement applauding the decision — and correctly predicting that OpenBand would serve the county with the complaint filed nine months ago.
“While the HOA is pleased with the Board of Supervisors’ decision, our HOA is keenly aware of the fact that OpenBand will continue to battle with its customers,” the statement said. “It’s only a matter of how soon OpenBand will actually serve Loudoun County with the lawsuit they parked last year in the Circuit Court system.”
With the franchise rejected, it remains unclear whether OpenBand will continue to provide service to the affected communities. The company has continued to provide cable TV, phone and Internet service under the terms of a transition period outlined in the OpenBand’s previous franchise agreement, which expired in June 2009.
In an e-mail sent to OpenBand customers before the board vote, the company cautioned that rejection of the franchise agreement would result in “continued uncertainty regarding [OpenBand’s] ability to provide video service” to the affected communities.