Only one day after Dulles-based telecommunications company OpenBand filed a second lawsuit against two supervisors and the board's of two of the Loudoun homeowners' associations it serves in response to denial of its franchise agreement application, the Federal Communications Commission issued a statement claiming the company's telecommunication contracts should not be upheld.
Filing a brief in the federal cases currently on appeal in the Fourth Circuit, the FCC endorsed the ruling of the federal judge who sided with Lansdowne on the Potomac in its lawsuit against OpenBand. In that case, the judge ruled agreements between the project's developer and OpenBand were exclusive, and did not allow for competition in violation of an FCC order exclusivity issued in 2007.
"Under the arrangement put in place by appellants and the developer, only OpenBand and its affiliates can provide wireline video programming to Lansdowne residents. As the district court found, that is precisely the type of anti-competitive arrangement forbidden by the Exclusivity Order," the brief states. "This is true even though the exclusivity is effected in part by an easement, because the Commission clearly intended to reach easements with its Order.
"Moreover, the Exclusivity Order reaches OpenBand as an OVS [open video service] operator, because OpenBand and Multimedia are a 'group of persons' that together own and control an OVS and use it to deliver video programming," the brief continues.
It concludes that the decision by the lower court should be "affirmed" and the Fourth Circuit should find in Lansdowne's favor.
The Lansdowne case, while the HOA prevailed, is currently under review by the Fourth Circuit, along with an appeal of another lawsuit filed by the Southern Walk at Broadlands HOA, also a subject to OpenBand telecommunications contracts. Southern Walk lost its case in federal court while making similar arguments in front of a different judge and has appealed that decision. The two cases have been joined in appeal and will be heard by the same judicial panel on the same day.
Representatives from the Lansdowne HOA have not yet be reached for comment, but members of the Southern Walk HOA—while the brief did not directly address its case—said the opinion reaffirmed what they have believed for a while.
"The HOA has always believed that OpenBand's exclusive easements violate federal law," the Southern Walk board said in a statement. "We are pleased that the FCC filed a brief supporting the HOAs position and pointing out where OpenBand continues to misinterpret the FCC meaning and intent if their Exclusive Access ruling. The Southernwalk HOA believes that the FCC's brief sets a very clear path the Fourth Circuit Court of Appeals action on our case."
While a December court date was expected in the federal cases, that hearing has been pushed back. No new date has been set.
This is a developing story. More will be reported as it becomes available.