Both applications for Fairfax County's coveted cable television franchise have failed to meet the requirements of the county's own stringent cable law, leaving county supervisors increasingly convinced they will be sued if they award a contract.
The cable bids from Media General Cable of Fairfax County Inc. and from Fairfax Telecommunications fell short of county requirements in significant ways, according to a staff analysis. Several staff members wanted to recommend the bids be thrown out, and several supervisors said rebidding would be the safest legal course.
Board members have said, however, that they are under pressure to avoid delay from constituents eager for cable service, and so the board has promised to award a franchise on June 28. In the meantime, the board has met in closed session to discuss how to avoid a lawsuit from the losing company, if the winner is allowed to amend its bid, or from a company that did not even apply, if the board accepts a deficient application.
"Sure, it'll wind up in court," said Supervisor Thomas M. Davis III, a lawyer. "I don't underestimate the ingenuity of lawyers in this field, and there's a lot of money at stake." The county-wide monopoly could be worth $260 million by the end of the 15-year franchise period, according to a county consultant's estimate.
County officials are unsure how long a lawsuit would delay cable service. "I don't think anybody knows," Davis said.
Fairfax demanded that companies cede certain legal rights, allow their gross revenues to be taxed at the rate of 10 percent instead of the standard 5 percent, and build costly underground cables across much of the 400-square-mile county.
Media General proposed the better system, according to the staff evaluation, but Media General also has the longer list of serious deficiencies. The problems range from the company's refusal to promise not to sue the county to its attempt to exempt most of its rate structure from county regulation.
Some county officials said they hope Media General will indicate its willingness to correct the deficiencies during a public hearing Wednesday night, and supervisors plan to ask representatives of both companies for a blanket pledge to obey county cable law. But Fairfax Telecommunications officials, angry at being ranked second, will be watching closely with their lawyers, who include state Sen. Adelard L. Brault and former state attorney general Andrew P. Miller.
"Fairfax County wrote the rules, not us, and the rules were we were going to be judged on an application submitted Feb. 18," said L. Gary Byrd, president of Fairfax Telecommunications. "To allow Media General to come back and file a revised application after they've seen what they have to do to beat us, we can't allow that . . . and we'll protest it by whatever means we can."
Media General has adopted the more relaxed posture of a front-runner, but it too has not ruled out a lawsuit. Company spokeswoman Lorraine Foulds said she did not know whether Media General would sue if it does not win the franchise. "I'm sure it would have to be based on how the decision is made," she said.
Supervisor Davis said either a change to the applications or the acceptance of a deficient application might also invite a suit from other companies. "They might say, 'If we'd known we were going to be given this kind of leeway, we would have bid, too,' " Davis said.
Complicating the situation further is Reston, where Warner Amex is already providing cable service under an arrangement with Reston's developer. County officials say Warner has no legal right to be stringing cable in public rights of way without a franchise, but officials are not eager for a court battle.
"I said at the beginning that neither of these applications was too great, and maybe they should both be tossed out," said Supervisor Martha V. Pennino. "Now, we've gone too far for that. What we've got to do is make sure they're going to follow the cable ordinance.
"People feel like it's time to get on with it," Pennino said. "I just hope that the public isn't expecting too much."