OpenBand Files Lawsuit Over Franchise Denial

A lawsuit by OpenBand Multimedia against the Board of Supervisors over its denied cable franchise agreement was filed Dec. 2 only to preserve the rights of the company to sue, according to representatives of its Dulles-based parent company MC Dean. "It was very reluctantly that we decided to file the lawsuit," Ben Young, director of government affairs for MC Dean, said Thursday. "We have not yet served the county. And we don't intend to serve the county." Under Virginia law a company or person has 30 days from an action's date to sue a municipality. To "err on the side of caution" OpenBand chose to file its lawsuit Friday, Dec. 2, exactly 30 days after the Board of Supervisors voted to deny its franchise agreement. The company could serve the county, and move forward with the lawsuit at anytime in the year following the filing. But OpenBand says it hopes the case never ends up in court, and instead said it plans to resubmit its franchise agreement in January-before a new Board of Supervisors. Young said the company believes that politics and the November election "frustrated our efforts this year," as many of the sitting supervisors who voted on the franchise agreement were seeking reelection at the time of the vote. While county supervisors were reviewing the application, MC Dean, and owner Bill Dean, made significant campaign contributions to Republican board candidates, all of whom were successful in winning seats in November. Young said the lawsuit is really just a "placeholder" in case litigation needs to move forward, but he said that OpenBand hopes to avoid ending up in court. "We are trying to find the best path forward," he said. The suit is the latest step the long-running drama surrounding the OpenBand franchise and the television, telephone and Internet services it provides on an exclusive basis to several Loudoun neighborhoods. For two years the county reviewed the OpenBand franchise, a process that was complicated by a discovery that the existing franchise under which the company still operates had lapsed in June 2009 without the county's knowledge, two lawsuits in federal courts filed by Southern Walk and Lansdowne on the Potomac, and a Board of Supervisors' request for an anti-trust determination and possible investigation by State Attorney General Ken Cuccinelli. Under the previous franchise agreement, OpenBand has the right to provide service for up to three years after it ends, a time period that is up in June. OpenBand serves around 4,200 homes in the county in four different communities: Southern Walk at Broadlands, Lansdowne on the Potomac, Lansdowne Village Green and Leisure World. With the exception of Leisure World, where each building has a separate competitive contract, the communities receive bundled service from OpenBand through 25-year contracts, with the option to extend up to 10 years four times. Critics say those contracts, along with the developers' granting of exclusive easements in their communities to OpenBand, prevent residents from getting access to other cable providers like Verizon and Comcast. Critics also say OpenBand's technology and a customer service lags behind that offered by would-be competitors. The franchise review process started out as a renewal, but when it was discovered the franchise agreement had lapsed, the negotiations started from scratch. The result was a new contract that included a number of new requirements aimed at addressing some of the residents' concerns, but which the company representatives said would make it party to the most stringent agreement in the county. In the weeks before the board's Nov. 2 vote, HOA representatives of the three communities urged supervisors to deny the franchise agreement, hoping it would be the first step toward removing their neighbors from agreements they say hold them hostage to OpenBand. OpenBand representatives said this week that they have been working to engage "the management of the company and the stakeholders in the county" to find the best solution. While details of what the franchise agreement brought forward in 2012 would look like are not yet known, it would restart the negotiations between the company and the county and so likely would "wipe the slate clean entirely." Meaning the provisions already agreed to by OpenBand and the county would be open for renegotiation, and Young said OpenBand would be seeking input from the new supervisors as to what they would like to see in the franchise agreement. With seven new supervisors taking to the dais in January it is possible they could be seen as more favorable to an OpenBand franchise-at least that was a concern of many residents served by the company in the final weeks before the election as they reviewed campaign contributions. Bill Dean, owner of MC Dean, contributed $7,500 to Algonkian District Republican Suzanne Volpe, $5,000 to Blue Ridge District Republican Janet Clarke, $5,000 to Ashburn District Republican Ralph Buona, and $2,500 to Dulles District Republican Matt Letourneau. MC Dean has given $3,000 to Letourneau, and $500 each to Buona and Clarke. Incumbent Supervisor Eugene Delgaudio (R-Sterling), received $10,000 from MC Dean. OpenBand said it wants to continue to negotiate with the county in good faith and find the best solution for all parties, without the need of a lawsuit to settle it. "It is our sincere hope that the lawsuit will ultimately be unnecessary," Young said.