By Erika Jacobson Moore
Sept. 19, 2011
It appears Dulles-based telecommunications company OpenBand might be facing legal action on a third front.
Lansdowne Village Green HOA president Tom Jeavons confirmed today that the HOA board voted recently to hire an attorney and explore possible legal remedies with regards to its cable, Internet and phone provider OpenBand, after attempts at negotiating with the company have failed. The revelation comes only a few months after Southern Walk at Broadlands and Lansdowne on the Potomac’s homeowners associations filed suit in federal court over their cable contracts.
“We tried to open a dialogue with OpenBand regarding pricing, products and quality of service issues,” Jeavons said.
Jeavons said it has become apparent that attempts to negotiate about the cost of service or Lansdowne Village Green’s 65-year HOA contract with OpenBand were futile, and the board would have to seek another remedy. The Lansdowne Village Green HOA first contacted OpenBand to begin negotiations around two years ago, Jeavons said.
Following the Aug. 29 vote, the board sent an open letter to the residents about the decision and what the next steps would be. The community, and its HOA board, has been concerned about the cost of litigation, but the board vote is just the first step in the process.
“Given all of the guidance and feedback we have received, especially from Lansdowne Village Greens’ homeowners, the Board has voted to begin the process of retaining a law firm and exploring the HOA’s legal remedies. As well, the Board has approved drawing from the Association’s existing reserves to initially fund the matter and thus there will not be a special assessment at this time,” the letter reads. “The Board is also continuing the necessary research to evaluate the HOA’s options and to make informed decisions on behalf of the community.”
Jeavons said the first step, after selecting an attorney, is to work with that attorney to determine whether the community has the potential for a successful case, and determine what its legal options are.
OpenBand serves around 4,200 residents 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 contact, the communities receive bundled service from OpenBand through multi-decade HOA contracts. Residents say those contracts, along with exclusive easements in their communities, prevent them from getting access to other cable providers like Verizon and Comcast, and say the contracts are egregious in the face of what they say is lagging technology and a wanting customer service operation.
Both the Southern Walk and Lansdowne on the Potomac HOAs have filed separate lawsuits in U.S. District Court, challenging the exclusive easements and the HOA agreements. Southern Walk’s original complaint was dismissed without prejudice, which allowed them to refile. The new complaint recently was allowed to move forward after a judge denied OpenBand’s motion to disallow that action. Lansdowne on the Potomac’s case is in court Sept. 21, after this paper’s deadline.
The Board of Supervisors also asked Attorney General Ken Cuccinelli to open an anti-trust investigation of OpenBand, and to take any legal action needed.
In addition to court actions, the county has been reviewing OpenBand’s franchise agreement since 2009. The county’s Cable & Open Video System Commission recommended approval of the new agreement after months of negotiations with OpenBand that resulted in more requirements and penalities if it does not comply. The board was seeking to add a clause that would void the agreement if any of the court cases or the anti-trust investigation comes down against OpenBand, and to shorten the term of the franchise from 12 to two years.
However, OpenBand has declined to agree with either of those terms, saying it cannot agree to anything that would allow the franchise to be yanked without final action by the courts and that two years is too short to recoup the costs it will take to implement all its new technology as committed to in the agreement.