UPDATE: County denies OpenBand franchise agreement
Loudoun County Supervisors on Wednesday denied Dulles-based telecommunications firm OpenBand a franchise agreement that would have given the company the public right of way to supply cable service to thousands of homes in the Ashburn and Lansdowne areas.
After nearly a year of heated talks among residents of the communities, supervisors and representatives of the firm, Wednesday’s vote took less than 10 minutes to complete.
The vote to deny was 8-1 with Supervisor Eugene Delgaudio (R-Sterling) opposed.
Delgaudio said he was concerned that denying the franchise agreement would cause future lawsuits against the county by OpenBand.
Prior to the vote, supervisors discussed the legal ramifications of denying the franchise agreement in closed session.
“In this particular circumstance I respectfully have a fundamental disagreement on how we’re treating this particular situation, that it’s going to be the subject of litigation. It’s going to be the subject of contingent negotiation and detailed analysis and frankly negotiation and intervention,” Delgaudio said.
“…. I’m going to have to take my stand and vote to not deny. I think we should continue negotiations in spite of the overwhelming setiment on the part of this board respectively to disagree with my decision,” he added.
Under the county’s Open Video Service ordinance, the company must keep providing cable for a “reasonable time.” That time will expire in June 2012.
OpenBand holds a series of exclusive easements, aside from the county franchise agreement, that were negotiated with developer Van Metre in 2001 that prohibits competitors from serving homes in communities such as SouthernWalk at Broadlands, Lansdowne on the Potomac, Lansdowne Village Green and Leisure World.
The contract allows OpenBand to exclusively provide service to the communities for at least 25 years, with an option for an extension of up to 75 years.
Ben Young, director of government affairs for OpenBand said Wednesday the firm was disappointed by the board’s decision.
“For two years, OpenBand has negotiated in good faith and has acquiesced to virtually every request made by Loudoun County, including service expansions, system upgrades, and enhanced penalties for the failure to perform,” Young said in a statement. “The public record in support of approving OpenBand’s franchise agreement is overwhelming. The County’s independent Cable & OVS Commission, along with its staff and counsel, recommended the approval of the proposed application. This recommendation was rooted in an unprecedented independent technical analysis of OpenBand’s system, which confirmed the quality and state-of-the-art status of the system. In addition, the County’s own research confirmed that OpenBand offers the least expensive cable service in the County and receives fewer trouble tickets per customer than Verizon. Simply put, there was no objective,non-political basis for the Board of Supervisors’ action.”
Young would not comment on whether OpenBand is considering legal action against the county.
“Going forward OpenBand will continue to provide service pursuant to its existing franchise agreement as it considers the best course of action to protect its rights and its customers,” Young said in the statement.
At least two homeowners associations – Southernwalk at Broadlands and Lansdowne on the Potomac – have filed lawsuits against OpenBand in federal court over those exclusive easements, saying they violate Federal Communication Commission laws.
A third homeowners association, Lansdowne Village Green, is considering litigation.
In addition, the board in June asked state Attorney General Ken Cuccinelli to render a legal opinion on the issue. He still has not complied with the request.
“It is important to remember that OpenBand was the one who allowed their franchise to lapse. OpenBand refused to negotiate with their customer(s) or the County and their actions resulted in the County using their sound [judgment] to deny their OVS application. The HOA’s main focus has and will continue to be our residents; who want to receive quality video service at a competitive rate,” said Erika Hodell Cotti, president of the Southerwalk at Broadlands Homeowner’s Association.
The denial of the county franchise agreement means OpenBand can no longer use the public right of way to provide service after June 2013.
OpenBand has the option of transferring its exclusive easement with Van Metre to another company, but under the contract residents of the communities would still have to pay for the service unless the federal courts deem the contracts illegal.
Residents of the communities have overwhelming asked supervisors to deny the county franchise agreement, saying they would rather pay for satellite dish services in addition to the fees they pay for OpenBand.
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