UPDATE: OpenBand Hearing Set for June 12

UPDATE 11:34 p.m. May 2: The Loudoun Board of Supervisors voted unanimously to send the OpenBand franchise proposal to a June 12 public hearing.

A new chapter in the long battle in Loudoun County over the renewal of OpenBand Communications franchise agreement could soon unfold as the Board of Supervisors considers whether to approve the agreement the previous board rejected.

The OpenBand saga has spun off into various legal actions. Two of the communities OpenBand serves in Loudoun, which comprise the majority of its users, have sued the company because of restrictive long-term contract agreements. A federal lawsuit filed by Broadlands’ Southern Walk was dismissed, but the community filed an appeal in March. A lawsuit filed by Lansdowne on the Potomac remains active.

OpenBand last year filed suit against the Loudoun board after supervisors on the previous board—which left office at the end of last year—proposed amendments to the franchise that OpenBand did not approve. That previous board declined to offer OpenBand a franchise under its requested terms, which the county’s Communications Commission supported. Shortly thereafter, a new board was swept into office, including five members who received campaign contributions from OpenBand-affiliated donors.

The Loudoun Communications Commission has not considered the new proposal, however, the provisions are much the same as the previous agreement the commission supported, according to a county staff report.

And if there weren’t enough legal issues on the table regarding the proposed franchise, a letter from an attorney representing Southern Walk questions whether most members of the current should recuse themselves because of campaign contributions received from OpenBand and its affiliates. Even returning the donations does not seem to be a solution the Southern Walk HOA would accept.

“The Southern Walk perceives the OBM­-affiliated campaign donations to the newly elected supervisors as prima facie evidence of efforts to improperly influence the new Board of Supervisors regarding OBM’s resubmission of its franchise application to the Loudoun County Board of Supervisors,” Constance J. Miller, the attorney representing Southern Walk, wrote to County Attorney John R. “Jack” Roberts in a Feb. 28 letter. “The seriousness of this concern is compounded in these circumstances because OBM will likely serve the lawsuit that is pending as a threat in the Commonwealth’s Circuit Court if OBM does not receive the OVS franchise.”

In the letter, Miller requests the county obtain an opinion on the matter from the Virginia Attorney General Ken Cuccinelli’s office. There is no law restricting the board members from voting on the item.

The complaints from residents have been about the quality of OpenBand’s service, which they are required to pay through contracts that are renewable at OpenBand’s discretion. OpenBand has called the complaints unfounded and points to planned improvements.

OpenBand is wholly owned subsidiary of M.C. Dean, a Dulles-based contractor with operations in Texas, Louisiana, Florida, Georgia, Washington, DC, Germany and the Middle East.

Benjamin Young, a spokesman for M.C. Dean and OpenBand declined to comment about Miller's letter on behalf of Southern Walk or about today's pending board vote.

Erika Hodell Cotti, president of the Southern Walk Homeowners Association and a former member of the Communications Commission, said she's concerned that the new board is considering voting on the item without returning it to the commission.

"I believe the board of supervisors need to understand and respect the very essence of public trust," Cotti said. "Our homeowners have a lot to lose and are all in."

Cotti expressed confidence in the appeal of their federal case to the 4th Circuit Court of Appeals.

Among the draft motions listed in the staff report are options to approve the franchise and give OpenBand 30 days to agree to the terms; hold a public hearing; or craft an alternative.

Supervisors are in a difficult position because, without an extension, this summer, OpenBand's ability to serve the community could lapse, leaving even fewer video options for residents served by OpenBand. OpenBand is an Open Video Service provider, not a cable company, and therefore is viewed differently by the Federal Communications Commission.

Below is a breakdown of the contributions to Loudoun supervisors that Southern Walk has questioned (the individuals listed are/were M.C. Dean executives):

Supervisor Eugene Delgaudio (R-Sterling), $10,000

• M.C. Dean, $5,000 in-kind, $5,000 cash

Supervisor Matt Letourneau (R-Dulles), $6,000

• M.C. Dean, $2,500 cash, $500 in-kind
• William H. Dean, $2,500 cash
• James A. Brabham, $500 cash

Supervisor Janet Clarke (R-Blue Ridge), $5,750

• M.C. Dean, $5,000 in-kind
• James A. Brabham, $500 cash
• Douglas Cumins, $250 cash

Supervisor Ralph Buona (R-Ashburn), $6,250

• William H. Dean, $5,000 cash
• M.C. Dean, $500 in-kind
• James A. Brabham, $500 cash
• Douglas Cumins, $250 cash

Supervisor Suzanne Volpe (R-Algonkian), $8,250

• William H. Dean, $500 in-kind, $7,500 cash
• Norman Douglas Cumins, $250 cash

[Correction: This story previously state Southern Walk was considering an appeal of the dismissal of its suit; in fact, the appeal was filed in March.]