Wiltshire & Grannis Wins First-Ever Appellate Case Interpreting FCC’s Order on Exclusive Video Arrangements in Multi-Dwelling Units

April 05, 2013

WASHINGTON, D.C., April 5, 2013

The U.S. Court of Appeals for the Fourth Circuit today affirmed a lower court’s decision declaring unlawful the exclusive video arrangement of Loudoun County, Virginia-based communications provider OpenBand at Lansdowne, LLC and its affiliated entities.

This is the first case to determine whether courts can strike down exclusive easements under the Federal Communications Commission’s 2007 Order banning exclusive video access arrangements (In re Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units and Other Real Estate Developments). This FCC order prohibited exclusive video access arrangements as unfair business practices that harm competition, in an effort to ensure that consumers could have choice and competition in television services. The court ruled that federal courts can enforce the FCC’s ban.

Wiltshire & Grannis (“W&G”) represented Lansdowne’s homeowners association, which was fighting the exclusive arrangement. Chris Wright, head of the firm’s appellate practice, argued for the homeowner’s association. The case, Lansdowne on the Potomac Homeowners, Inc. v. OpenBand at Lansdowne, LLC, arose out of efforts by the homeowners association to contest an exclusive arrangement granted to OpenBand by the community’s land developer, which also owned an interest in OpenBand. OpenBand has used this exclusivity arrangement to prevent any competitive provider of wired video services from accessing or offering communication services to residents in the development’s approximately 2,000 homes.

The Fourth Circuit described OpenBand’s defense of its exclusivity scheme as “an elaborate game of regulatory subterfuge” and a “sleight of hand designed to preserve precisely the type of anti-competitive video monopoly that the FCC sought to prohibit.” Under the court of appeals’ ruling, OpenBand is permanently enjoined from enforcing the “web of sub-agreements” it established to effectuate its video exclusivity scheme, including a perpetual blanket easement over the entire Lansdowne development.

W&G’s team was led by Steven Fredley and included Chris Wright, Mark Davis, and Charles Kimmett.

For further information, please contact Lara Knowles: (202) 379-4533.

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