April 5, 2013 4th Circuit published opinions

Southern Walk at Broadlands’s Homeowners Association, Inc. v OpenBand at Broadlands, LLC

Southern Walk sued OpenBand seeking a declaration that OpenBand’s exclusive contract to provide cable television and related services was void under an FCC order. The district court dismissed with prejudice for lack of standing and denied OpenBand’s motion for attorney fees. The panel affirmed in part, reversed in part and remanded. It held that Southern walk did not have organizational standing as the declaration sought would not interfere with the billing structure and mere interference with an organizations purpose is not an injury for Article III purposes. Nor did Southern Walk have representational standing because its complaint did not allege that any of its members were harmed and it pled no facts that demonstrated any harm. The panel held that the case should have been dismissed without prejudice as the district court lacked subject matter jurisdiction to adjudicate anything beyond standing and therefore reversed the dismissal with prejudice. The panel finally affirmed the denial of the attorney fee motion because dismissal on standing grounds does not adjudicate the merits; thus there was no prevailing party for purposes of the contract claim for attorney fees.

Lansdowne on the Potomac Homeowners Association, Inc. v OpenBand at Lansdowne, LLC

Association sued OpenBand or a declaration that its exclusive right to provide cable television and other telecommunication services violated an order of the Federal Communication Commission. The district court agreed and declared the restrictions null and void. The panel affirmed. It held Association had standing because the exclusivity provisions deterred new entrants in the market of telecommunications provision to the development, the Association’s injuries were traceable to the deterrence effect of the exclusivity provisions as shown by the refusal of other providers to enter the market because of the provisions, and the authorized provider for the County is likely to offer services if the provisions are enjoined. The panel held the case ripe for adjudication as OpenBand demonstrated its unwillingness to allow access by other providers and the members of the Association are suffering hardship as they cannot currently obtain alternative services. The panel joined the majority of circuits by holding that rules of the FCC can be enforced by private litigants and that the order invoked here is sufficiently specific as the rights o the parties to be so enforced. It held the order applied to these facts as OpenBand “provided” cable services by making them available to the homeowners or OpenBand and related entities together provide the services. The provisions violate the order because, taken together, they limit homeowners access to cable television services to access through OpenBand, they must be considered together under Virginia law and to avoid the shell games and slights of hand OpenBand offered to avoid the order and, alternatively, the easement granted in this case independently violated the order by excluding all other providers from accessing the homeowners.


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