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OpenBand files appeal for dismissed $50 million lawsuit

The Dulles-based telecommunications group OpenBand is appealing the dismissal of its $50 million lawsuit.

OpenBand attorneys filed a notice of appeal in the Loudoun County Circuit Court July 16.

OpenBand filed the lawsuit against the Loudoun County Board of Supervisors, the Lansdowne on the Potomac Homeowners Association and the Southern Walk Homeowners Association, as well as Supervisors Ralph Buona (R-Ashburn) and Shawn Williams (R-Broad Run) as individuals, in October, after the Board of Supervisors denied a franchise agreement.

On June 19, Judge Jane Marum Roush, a Fairfax County Circuit Court judge who was appointed by the Virginia Supreme Court after Loudoun's judges recused themselves from the case, sustained four demurrers filed by the defense, dismissing the case with prejudice.

A demurrer is a plea that acknowledges that the allegations in the lawsuit are true, but that they do not warrant legal action.
The appeal, filed by OpenBand attorney Kevin B. Bedell, disagreed.

“The OpenBand defendants seek Supreme Court review of a ruling that renders the Loudoun County Board of Supervisors unaccountable for its actions, including demanding acquiescence on matters expressly outside of the Board's authority in exchange for a business franchise and intentional depriving a business of its private contractual rights and real property interests,” the appeal states.

The $50 million suit stems from the Board of Supervisors' 5-3-1 decision to not grant a franchise agreement with OpenBand, something the previous board did in 2011 (a decision with which litigation is also still pending).

In addition to ultimately denying the franchise agreement, OpenBand also alleges that Buona and Williams said they would not approve the application unless OpenBand settled its litigation with the two HOAs and relinquished their rights under the Telecommunications Service Rights and easements. The HOAs are currently legally embattled with OpenBand and claim OpenBand's private easements made with Van Metre, the communities' builders, in 2001 violate Federal Communication Commission laws.

Though OpenBand has never been found in violation of its service provisions within the original franchise agreement, critics have complained about the provided services.

In an April 23, 2012, meeting at Buona’s invitation, OpenBand representatives met Jeff Chapman, president of the Lansdowne on the Potomac HOA and John Whitbeck, who serves on its board of directors to try and come to a resolution.

“Back when I brought the two parties to the table, I really thought I was looking at the best interests of my constituents,” Buona said in a June interview.
The State Supreme Court now must decide whether or not to hear the appeal.

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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