Lansdowne HOA board gears up to sue Open Band

Excerpted from Leesburg Today

Aug. 8, 2011

By Erika Jacobson Moore

While it will likely be a week before it is filed, the Lansdowne on the Potomac HOA board voted during its Aug. 3 meeting to file a suit against telecommunications company OpenBand, HOA President Hani Elnaggar confirmed early Friday afternoon.

“The board voted unanimously to follow through and file and serve a lawsuit on OpenBand,” Elnaggar said. He and the other members of the board have voted not to comment further on the suit at this time. The HOA has engaged the services of Washington, DC-based law firm Wiltshire & Grannis.

In a letter sent to Lansdowne on the Potomac residents late Friday afternoon, the board stated, “following significant research and consultation,” it voted to authorize attorneys at Wiltshire & Grannis to file a legal complaint “with each and every argument the community has any potential success in pursuing against OpenBand.”

The board also noted that choosing to pursue a lawsuit will have financial impacts to the Lansdowne community and success is not guaranteed. Details of the counts to be included in the suit have not been released.

Lansdowne is the second OpenBand-served community to file suit. The Southern Walk at Broadlands HOA filed suit in U.S. District Court for the Eastern District of Virginia claims that the exclusive contract for telecommunications services is illegal under the Federal Communications Commission Act regarding exclusivity. That lawsuit was dismissed during an initial hearing late last month, however the HOA filed a modified complaint Aug. 2.

OpenBand serves 4,200 residents in four communities: Lansdowne on the Potomac, Southern Walk, Lansdowne Village Green and Leisure World. All of the contracts are made through the homeowner’s association. Leisure World, in which each building is an individual HOA, is the only community in which the resident-controlled HOA awarded a contract to OpenBand following a competitive bidding process.

For years, Lansdowne on the Potomac has been battling with Dulles-based OpenBand over its multi-decade contract, exclusive access to the community’s telecom easements and the quality of the service being provided to residents. The most recent HOA board elections saw the relationship between the community and OpenBand as a major topic-with some outspoken OpenBand critics being elected to the board.

Friday’s letter to residents stated that the board “has also attempted to open dialogue with OpenBand on these issues but have not been offered any meaningful response to compromise or resolve any of these items.”

Since 2010, the letter continued, Lansdowne’s board has held 10 special meetings to discuss OpenBand as well as two town hall meetings.

When Lansdowne on the Potomac was first being developed, OpenBand competed to provide service for the community and the telecommunications company was offering to install fiber, something not being done by other providers. The developer-controlled HOA entered into a contract with OpenBand to provide all telecommunications services to the community. The contract allows for it to continue for up to 75 years. A similar process was undertaken with Southern Walk at Broadlands’ developer.

Today, both HOAs are under control of the residents. As those with concerns about the quality of OpenBand services became more vocal, the HOA leaders found there was little they could do to modify, or nullify, the contracts. The way the agreement is set up, OpenBand has exclusive access to the easements, making it difficult for other companies to provide services even if the exclusive service agreement was challenged.

Currently, Lansdowne residents pay $148 of their monthly HOA fees for OpenBand services. And the HOA is still responsible for paying OpenBand for those homes that may be vacant or bank-owned.

The Lansdowne board plans to keep residents informed through every step of the process, including through postings on the community’s website after the suit has been filed and served.

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