Text of a letter from Ashburn District Communications Commissioner, John Footen, to the Board of Supervisors, emailed on June 10, 2012:
I write to you as a customer of Openband and as the Communications Commission commissioner from Ashburn. I will unlikely be able to attend public input in person due to business travel, but would like to submit this to you via email.
I see that there are two options:
*DENY THE FRANCHISE (Extend if necessary)*
I ask you to respect the decision of the last BOS and deny the franchise application from Openband. The previous commission and BOS spent a very long time looking at all of the factors associated with Openband and the decision that was reached was the correct one. This is for many reasons, but I can summarize it with the most important:
1. LAWSUITS – Nearly 100% of Openband’s customers are engaged in lawsuits against Openband due to dissatisfaction with their business practices and service quality. This is unprecedented amongst Franchisees.
2. OVERWHELMING NEGATIVE PUBLIC INPUT – The public input to the previous BOS was numerous and almost unanimously negative. This included the attached petition which was signed by nearly 90% of Lansdowne residents it was presented to requesting the Franchise be denied. The details are in previous emails to the last BOS. If you are considering the same franchise agreement, then – to be fair – you must consider the large amount of public input received by the previous BOS. This includes requests by the HOA boards of multiple communities representing almost all of Openband’s customers that the franchise be denied.
3. APPLICATION PROBLEMS – Openband’s new application is incomplete and has numerous errors. This application had begun to be reviewed in the Communications Commission and more than 15 errors, omissions, or issues in the application were found by myself and were presented to the commission but had not yet been acted upon when the commission was asked to cease activity. There is no evidence that any of these issues were yet addressed by Staff. A copy of that email is attached.
4. NO BENEFIT – The previous commission made numerous errors in narrowly recommending approval of the franchise. The most important of which was to put in place the specific terms that some incorrectly assume are positive. Basically, these new terms do nothing to add to the already existing terms in HOA contracts and thus added no value while creating a legal question.
5. RUSHED STAFF – The time that has been allowed to consider the new application is too short for proper consideration of the issues by Staff as evidenced by the unaddressed application issues and the quality of the work on the Franchise agreement itself. The new version contained changes beyond that made by the previous commission includes things like a codification of HOA Agreements:
“Termination of any service subject to an agreement between the Grantee and a homeowner’s association shall be determined in accordance with the terms of such agreement.”
This odd provision, which was inserted last year in a rush after the commission had finished its work, has the effect of recognizing HOA agreements while providing no apparent value to residents who are already subject to any agreements. It can only be to the benefit of Openband in some backhanded way or – oddly – nobody at all.
“Grantee’s System shall have a capacity of at least 870 MHz, and shall use the spectrum between 50 MHz and 870 MHz to deliver analog standard definition channels and digital, and high-definition digital channels, and digital music programming.”
In addition to oddly specifying the means of video delivery in such a way that that for the NEXT 15 years would preclude (see SHALL) the conversion and use of Openband’s higher bandwidth fiber for services such as 3D video or UHDTV channels, this provision is also simply badly worded with the 2012 edits and is – at best – awkward.
These are just a couple of examples of the work that has been rushed since it left the previous commission. There are many more. If it is not sent back to the current commission, staff needs time to do the proper work they are capable of.
6. DUTY TO DENY – Law says you must consider competition and many other factors. This was detailed in a separate email.
7. DENY AND EXTEND IF CONCERNED – If a BOS member is concerned about the threatened lawsuit, then please vote to deny and extend the existing franchise by 2 years. The ability of the BOS to extend the franchise is well established in the existing franchise. Openband will not be able to sue the county with any substance as it simply will not suffer any harm to its revenue and will be allowed to submit a new application within the two years. This will have the benefit of removing the teeth of any Openband lawsuit, maintaining the status quo, and allowing the current legal activities to likely be settled between the parties amicably or in the court system. The BOS can then vote on a properly vetted application for which the surrounding legal issues have been settled. This may seem to be “kicking the can down the road” but is actually prudent given the many novel legal issues at play.
*SEND TO THE COMMISION (extend the existing franchise)*
1. EXTENSION POSSIBLE – As is understood, this BOS can extend the existing Franchise and maintain the status quo for any period and for as many times as it like. It is very important to recognize that Openband has suffered no harm so far and will continue to suffer no harm under any extension. Thus, any lawsuit on its part would not be very successful or would have little or no damages that would be granted. The legal risks to the county under an extension are minor at best. A 6 month extension would allow the Franchise to be sent to the commission for proper review.
2. DUE PROCESS – The established process for considering an application for Franchise is well established in the County. The first step is Staff/Commission review. In this case, the unprecedented step of bypassing commission review has been taken, removing a key role of the commission and true du process. This was done ostensibly because of the similarity to the previous franchise reviewed by the last commission. However, the last commission made some errors in my opinion that the current commission has not examined. Furthermore, there are simply not the same and in substantive ways as I noted above. The current commission is staffed by multiple highly qualified technical and business professionals in various media and communications companies. The board should take advantage of that expertise.
3. CHANGING CONDITIONS – Additionally, the new agreement is submitted in 2012 and not 2011. Conditions in video delivery continue to evolve rapidly. It would be prudent to allow the current commission to examine the question of whether the wording is current in a 2012 version. As just one example, the use of SHALL noted above, forcing Openband to use coaxial cable is an unnecessary hindrance to the provision of advanced services (like UHDTV – Ultra High Definition Television) expected to be common within the timeframe of this agreement. Simple changes that the current commission could do would be possible and to the benefit of residents of the county.
4. EMPTY THREAT – During the period that the current Franchise is extended Openband’s threats of a lawsuit are essentially empty. You can give whatever time necessary to any group to consider and for due process to be followed.
Thank you for taking the time to read my thoughts. I again ask that the franchise be denied or the existing franchise extended. Do not approve the new application. It is the right thing to do for the residents of the county.
Communications Commission, Ashburn District