A federal judge on Thursday granted a request by two homeowners’ associations embroiled in a nearly identical legal battle with Dulles-based telecommunications firm OpenBand to argue their cases before the same panel of U.S. Court of Appeals judges.
Also, in a separate ruling, a U.S. District Court judge denied a March request by OpenBand to have Southern Walk Homeowners Association pay its legal fees totaling $672,203 and non-taxable costs of $3,215.
The appeals court ruling means Lansdowne on the Potomac and Southern Walk Homeowners Association will be in the same courtroom, but will argue their cases separately before a panel of judges.
The ruling stems from a June 27 ruling in favor of a lawsuit by Lansdowne on the Potomac Homeowners Association, which argued that OpenBand’s exclusive video programming services to the community was illegal.
However, in May 2011, Southern Walk Homeowners Association sued OpenBand, also alleging the exclusive easements violated Federal Communication Commission laws.
U.S. District Judge Gerald Lee dismissed Southern Walk’s suit in February without prejudice, meaning the HOA could refile at any time. Two weeks later, the HOA filed an amended complaint. That complaint was struck down in August 2011.
A month later, Southern Walk filed an appellate brief with the 4th Circuit Court of Appeals.
The two homeowners’ associations have nearly identical lawsuits that “arise out of virtually identical fact patterns,” according to court documents.
A panel of judges could hear the two cases together as early as next month.
In allowing the two homeowners’ associations to consolidate their cases, the judge also denied OpenBand’s request to suspend arguments on the Lansdowne on the Potomac lawsuit until a final decision on Southern Walk’s appeal had been determined.
In its request for the judge to deny the consolidation request, OpenBand said the cases involved two separate appeals from two district court decisions “addressing various contracts entered into by two different homeowners’ associations for two different developments.”
OpenBand’s attorneys argued that “the route proposed by Lansdowne delays a decision in both cases.”
The procedural positions of the cases are different, the firm’s attorneys said in court documents, and the plaintiffs pursued different theories, alleging different causes of action.
“In particular, Lansdowne fails to address how, if argued together, the panel would segregate the facts Lansdowne will argue in support of the decision entered in its case from the limited information the panel can consider in the Southern Walk appeal,” the response says.
OpenBand has been the target of sharp criticism from residents of the communities it serves for years who argue that the exclusive easement contract with Broadlands developer Van Metre, which was agreed on in 2001, is illegal.
The contract allows the telecommunications carrier to provide service for four communities for at least 25 years, with an option for an extension of up to 75 years.
In November 2011, the previous Board of Supervisors denied OpenBand’s franchise agreement, which would given the firm access to the public right-of-way, citing concern over the exclusive easements.
The board’s November decision, which went against the county’s Open Video System Commission’s recommendation, led to an OpenBand lawsuit against Loudoun County in December, which claimed the supervisors had no basis to deny the franchise renewal.
In February, OpenBand submitted a new request for a franchise agreement to provide open video service in the county.
However, the Loudoun Board of Supervisors on June 12 voted to extend OpenBand’s transition period by an additional 90 days.
– Staff Writer Trevor Baratko contributed to this report.
Editor’s Note: OpenBand is a subsidiary of M.C. Dean, a Dulles-based engineering firm. M.C. Dean is the former owner of the Loudoun Independent, which merged with the Loudoun Times-Mirror in July 2010. Bill Dean, M.C. Dean CEO and president, holds a minority interest in Times Community Media and sits on its Board of Directors.
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