Lansdowne on the Potomac Homeowners Ass'n v. OpenBand at Lansdowne, LLC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LANSDOWNE ON THE POTOMAC 

HOMEOWNERS ASSOCIATION, INC.,

Plaintiff-Appellee,

v.

OPENBAND AT LANSDOWNE, LLC;

OPENBAND SPE, LLC; OPENBAND

MULTIMEDIA, LLC; M.C. DEAN,

INC.,

Defendants-Appellants,

and  No. 12-1925

LCD COMMUNICATIONS, LLC;

OPENBAND OF VIRGINIA, LLC;

WILLIAM H. DEAN; LANSDOWNE

COMMUNITY DEVELOPMENT, LLC,

Defendants.

FEDERAL COMMUNICATIONS

COMMISSION,

Amicus Supporting Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Anthony J. Trenga, District Judge.

(1:11-cv-00872-AJT-TCB)

Argued: January 29, 2013

Decided: April 5, 2013

2 LANSDOWNE v. OPENBAND

Before WILKINSON, MOTZ, and THACKER,

Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Motz and Judge Thacker joined.

COUNSEL

ARGUED: Sanford M. Saunders, Jr., GREENBERG

TRAURIG, LLP, Washington, D.C., for Appellants. Christo-

pher J. Wright, WILTSHIRE & GRANNIS, LLP, Washing-

ton, D.C., for Appellee. ON BRIEF: Robert P. Charrow,

Laura Metcoff Klaus, GREENBERG TRAURIG, LLP, Wash-

ington, D.C., for Appellants. Steven A. Fredley, Mark D.

Davis, WILTSHIRE & GRANNIS, LLP, Washington, D.C.,

for Appellee. Sean A. Lev, General Counsel, Peter Karanjia,

Deputy General Counsel, Jacob M. Lewis, Associate General

Counsel, Matthew J. Dunne, Counsel, FEDERAL COMMU-

NICATIONS COMMISSION, Washington, D.C., for Amicus

Supporting Appellee.

OPINION

WILKINSON, Circuit Judge:

Lansdowne on the Potomac Homeowners Association sued

OpenBand, a group of interlocking entities that provides cable

services to the Lansdowne on the Potomac real estate develop-

ment.1 The homeowners association alleged that OpenBand

1

We use the name "OpenBand" to refer collectively to all of the defen-

dants (now appellants) in this case: OpenBand at Lansdowne, OpenBand

Multimedia, OpenBand SPE, OpenBand of Virginia, and their common

corporate parent, M.C. Dean, Inc.

LANSDOWNE v. OPENBAND 3

entered into a series of contracts that conferred upon Open-

Band the exclusive right to provide video services to the

development, in violation of an order of the Federal Commu-

nications Commission prohibiting such exclusivity arrange-

ments. The district court agreed, declaring the challenged

provisions null and void and permanently enjoining their

enforcement. Because the contract provisions prohibit com-

peting cable providers from accessing the Lansdowne devel-

opment in patent violation of the FCC’s Order, we affirm the

judgment of the district court.

I.

A.

In 1992, Congress enacted the Cable Television Consumer

Protection and Competition Act ("1992 Cable Act"), Pub. L.

No. 102-385, 106 Stat. 1460. Congress made several findings

in passing the Act, among them that "most cable television

subscribers have no opportunity to select between competing

cable systems"; that this lack of competition had led to "undue

market power for the cable operator as compared to that of

consumers"; and that cable prices were rising almost three

times faster than the rate of inflation. 1992 Cable Act

§ 2(a)(2), (1), 106 Stat. at 1460. The Act accordingly made it

unlawful for a cable operator to engage in "unfair methods of

competition or unfair or deceptive acts or practices, the pur-

pose or effect of which is to hinder significantly or to prevent"

any other operator from providing services to consumers. 47

U.S.C. § 548(b). The Act also authorized the FCC to "pre-

scribe regulations to specify particular conduct that is prohib-

ited by" this provision. Id. § 548(c)(1).

Pursuant to that authority, the FCC issued a notice of pro-

posed rulemaking in March 2007 soliciting comments on the

propriety of a practice popular among cable operators: the use

of "exclusivity clauses" that grant the operator exclusive

access for providing video services within a particular multi-

4 LANSDOWNE v. OPENBAND

ple dwelling unit ("MDU"). Exclusive Service Contracts for

Provision of Video Services in Multiple Dwelling Units and

Other Real Estate Developments, 22 FCC Rcd. 5,935 (pro-

posed Mar. 27, 2007). In response, the FCC received com-

ments revealing that exclusivity clauses "have the clear effect

of barring new entry into MDUs by wire-based" video provid-

ers and that such clauses were "widespread" and increasing in

their use. Exclusive Service Contracts for Provision of Video

Services in Multiple Dwelling Units and Other Real Estate

Developments, 22 FCC Rcd. 20,235 ¶¶ 10, 15 (Nov. 27, 2007)

("Exclusivity Order"). Commenters also highlighted the inju-

ries that exclusivity clauses inflict upon consumers, such as

increased prices, lower quality, and a reduced menu of cable

channel options. See id. ¶ 17-23. The FCC thus concluded that

"exclusivity clauses cause significant harm to competition and

consumers" and that "the harms of [such] clauses outweigh

their benefits." Id. ¶ 26.

Based on this record, the FCC unanimously adopted the

Exclusivity Order at issue in this case. The order sets forth the

following rule: "[N]o cable operator . . . shall enforce or exe-

cute any provision in a contract that grants it the exclusive

right to provide any video programming service (alone or in

combination with other services) to a MDU. Any such exclu-

sivity clause shall be null and void." Exclusivity Order ¶ 31

(codified at 47 C.F.R. § 76.2000(a)).

B.

In 1999, a partnership of Virginia land developers created

the Lansdowne Community Development ("LCD"), a limited

liability company with the purpose of developing a residential

community known as Lansdowne on the Potomac in Loudoun

County, Virginia. The Lansdowne development comprises

roughly 850 acres of land, upon which some 2,155 individual

homes are built. Although Lansdowne residents own their

own homes, all residents share an interest in common areas

that require central management. LCD therefore created

LANSDOWNE v. OPENBAND 5

appellee, the Lansdowne on the Potomac Homeowners Asso-

ciation ("LHOA" or "the homeowners association"), to pro-

vide for the management of the development and amenities

such as video, phone, and internet services.

In the process of planning the development, LCD engaged

M.C. Dean, Inc., a Virginia technical services contractor, to

design and install telecommunications systems in the commu-

nity. For its part, according to M.C. Dean’s CEO, the com-

pany sought from LCD the "exclusive right to provide . . .

telecommunication services" to Lansdowne. M.C. Dean cre-

ated a number of corporate entities and entered into a series

of contemporaneous, interlocking contractual arrangements to

achieve this end.

The structure of this whole enterprise was a convoluted

one. With respect to the corporate entities, M.C. Dean formed

OpenBand at Lansdowne ("OBL"), a limited liability com-

pany with the purpose of developing and administering tele-

communication services at Lansdowne. OBL had two

members: a wholly owned subsidiary of M.C. Dean’s called

OpenBand SPE ("OBS"), which M.C. Dean created for the

purpose of holding its interest in OBL, and a subsidiary of

LCD’s called LCD Communications.2 M.C. Dean also formed

OpenBand Multimedia, LLC ("OBM"), which is an FCC-

certified open video system operator that provides video and

internet services to Lansdowne and other Virginia communi-

ties. Lastly, M.C. Dean formed OpenBand of Virginia

("OBV"), which provides phone service to Virginia communi-

ties, including Lansdowne. OBL, OBS, OBM, OBV, and

M.C. Dean are all defendants and appellants in this case (col-

lectively, "OpenBand").3

2

Prior to this suit, LCD Communications transferred its interest in OBL

to OBS, leaving it the sole member of OBL.

3

The developer, LCD, and its subsidiary LCD Communications were

initially named as defendants but were dismissed voluntarily under Fed-

eral Rule of Civil Procedure 41(a)(1)(A)(i).

6 LANSDOWNE v. OPENBAND

With respect to the contractual arrangements, three are of

particular relevance. First, LCD granted a deed of easement

to OBL on May 14, 2001, entitled the "Exclusive Easement

for Telecommunications Services at Lansdowne on the Poto-

mac." LHOA is named as a party to the deed as the "Future

Owner" of the Property. LHOA ratified the easement acting

through its then-president (who was also president of LCD,

which controlled LHOA at the time).4 By its express terms,

the deed grants to OBL "exclusive easements for the purpose

of constructing, operating, maintaining, adding to, altering, or

replacing (collectively ‘Administering’ or ‘Administer’) [tele-

communications infrastructure] for the collection, provision,

and distribution of video, telephonic, internet, data services,

or other communications, data or media (collectively ‘Utili-

ties’)." The deed provides that "the exclusive easements" shall

be "deemed to reserve solely to [OBL] the rights to Adminis-

ter Utilities on, under and across the Property such that . . .

no other person or entity shall be entitled to Administer any

Utilities on, under or across the Property without the written

consent of [OBL]." The deed also prohibits LHOA from

"grant[ing] any easement to Administer any Utilities on,

under or across the Property" to any other party.

The second arrangement at issue is the Covenants, Condi-

tions, and Restrictions for Lansdowne on the Potomac (the

"CC&Rs"), dated June 18, 2001. The CC&Rs include a provi-

sion expressly recognizing OBL’s "exclusive easements for

access to and the installation, construction, [and] operation

. . . of a private utility and telecommunication system." The

CC&Rs refer to OBL’s exclusivity in several other places,

including a provision declaring that OBL’s "rights with

respect to the private utility system . . . and the services pro-

vided through such private utility system are exclusive, and

no other Person may provide such services to the Property."

4

The easement was actually granted to OBL through a two-step process

involving an initial grant of the easement by the developer LCD to its sub-

sidiary LCD Communications, followed by a second grant from LCD

Communications to OBL.

LANSDOWNE v. OPENBAND 7

Finally, OBL entered into a contract with the homeowners

association on July 24, 2001, entitled the "Agreement to

Obtain Telecommunication Services" ("TSA"). Under the

TSA, LHOA engaged OBL to provide "platform services," or

basic video, phone, and internet services that homeowners

receive, as well as optional "premium services." The TSA

grants OBL the right to "provide[ ] or arrange for the provi-

sion of the Platform Services to Homeowners so that [LHOA]

shall not engage any other provider of Platform services." The

TSA also incorporates the CC&Rs (which incorporate the

easement as described above) by prohibiting LHOA from

"amend[ing] the CC&Rs such that the amendment would . . .

have a materially adverse effect on OBL."

C.

In terms of its actual delivery of telecommunications ser-

vices, OBL purchases services from its affiliates—video and

internet from OBM and telephone from OBV—and resells

them to Lansdowne homeowners. OBL also separately sells

its services to LHOA itself for purposes of the Potomac Club,

a community center and office space that the homeowners

association maintains on the property. In accordance with the

terms of the easement, CC&Rs, and TSA described above, no

wire-based cable provider other than OBL has the infrastruc-

ture necessary to deliver services to the development. As one

M.C. Dean executive explained, "the entire agreement was set

up so that we could have our infrastructure in that fashion,"

that is, through a blanket easement over the Lansdowne com-

munity.

After OBL began providing cable to Lansdowne, residents

began complaining about the quality of its service. One home-

owner, Marvis Aleem, noted that OBL’s "picture quality was

frequently pixilated and the channel line-up, both in terms of

quantity and high-definition offerings—was inferior to those

of other video providers." Another homeowner, Tim McCoy,

complained of OBL’s "poor picture quality, channel line-up,

8 LANSDOWNE v. OPENBAND

equipment technology, and customer service." McCoy

described a number of specific problems with OBL’s video

service. For example, during the second half of the 2012

Super Bowl, portions of his screen pixilated, or froze, despite

the fact that McCoy had complained to OBL about pixilation

problems previously. McCoy also experienced synchroniza-

tion problems, where a particular channel would display the

correct video feed accompanied by a different channel’s audio

feed.

In response to these complaints, the homeowners associa-

tion began investigating alternative providers in 2010. One

member of LHOA’s board of directors had discussions with

Verizon, which demonstrated an interest in providing services

to the development. However, a Verizon employee subse-

quently emailed the LHOA board member expressing concern

that OBL’s "exclusive easements" would prevent it from

"build[ing] out on or otherwise access[ing] the property."

Another competing video service provider, Comcast, is con-

tractually required to make cable services available to Lans-

downe residents under the terms of its franchise agreement

with Loudoun County. The franchise agreement excuses this

requirement, however, in developments like Lansdowne that

"are subject to claimed exclusive arrangements with other

providers." It is undisputed that neither Verizon nor Comcast

has formally asked OBL to grant it a subeasement to build its

own infrastructure. However, as one M.C. Dean official testi-

fied, "would we object to [Verizon] coming into the commu-

nity and running their infrastructure? I would say that we

would."

D.

In August 2011, LHOA filed suit against OpenBand in the

Eastern District of Virginia, alleging a variety of claims under

federal and state law. OpenBand moved to dismiss, and the

district court agreed as to all of the federal counts but one: the

homeowners association’s claim that certain clauses in Open-

LANSDOWNE v. OPENBAND 9

Band’s contractual arrangements provide it with the exclusive

right to deliver video services in violation of the FCC’s 2007

Exclusivity Order.5 Following discovery, the parties filed

cross-motions for summary judgment on this claim. On June

27, 2012, the district court ruled in favor of the homeowners

association. The court thus issued an order permanently

enjoining OBL, OBM, OBS, and M.C. Dean from enforcing

any video service exclusivity provision against LHOA or

Lansdowne residents, and declaring all such provisions null

and void.

OpenBand then filed the instant appeal. We review the

grant of summary judgment de novo, asking whether, viewing

the facts in the light most favorable to OpenBand, there is no

genuine dispute as to any material fact and LHOA is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a).

II.

Before reaching the merits of LHOA’s claim, we must first

address some threshold questions of justiciability. For "[i]f a

dispute is not a proper case or controversy, the courts have no

business deciding it, or expounding the law in the course of

doing so." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341

(2006). OpenBand claims both that LHOA lacks standing to

bring this action and that the suit is not ripe for our review.

See id. at 352 (noting that standing and ripeness both "origi-

nate in Article III’s ‘case’ or ‘controversy’ language").

A.

The "irreducible constitutional minimum of standing" con-

sists of three requirements. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). First, the plaintiff must show that

it has suffered an "injury in fact" that is concrete and immi-

5

The district court declined to exercise supplemental jurisdiction over

the state law claims, dismissing them without prejudice.

10 LANSDOWNE v. OPENBAND

nent; second, the injury must be "fairly traceable" to the

defendant’s challenged conduct; and third, it must be likely

that the injury will be "redressed by a favorable decision." Id.

at 560-61 (internal quotation marks and alterations omitted).

OpenBand asserts that LHOA cannot satisfy any of these

requirements, but for the reasons that follow, we disagree.

1.

With respect to the element of injury, LHOA is a direct

consumer of OBL’s video services, which LHOA purchases

for the Potomac Club. Although OpenBand does not dispute

that a cognizable injury would exist if it were actually to pro-

hibit LHOA from contracting with a competing provider,

OpenBand contends that LHOA has suffered no injury here

because "[n]othing in the TSA or other agreements precludes

LHOA from" doing so. Appellants’ Br. 19.

This contention is impossible to square with the plain terms

of the challenged agreements. To start, OBL’s deed of ease-

ment unambiguously bars LHOA from engaging another pro-

vider of video services. In fact, the deed blockades other

providers from accessing the property to build the infrastruc-

ture necessary for delivering service in the first place. To that

end, OBL owns "exclusive easements for the purpose of con-

structing [or] operating" infrastructure for the "provision, and

distribution of video [services]." The deed states that these

"exclusive easements" shall be "deemed to reserve solely to

[OBL] the right[ ] to" construct infrastructure for such ser-

vices and that "no other person or entity shall be entitled to"

do so without OBL’s consent. And the deed expressly prohib-

its LHOA from "grant[ing] any easement" to any other party

for the purpose of building such infrastructure.

The CC&Rs likewise prevent LHOA from contracting with

a competing video provider. For example, the CC&Rs state

that OBL’s "rights with respect to the private utility system

. . . and the services provided through such [system] are

LANSDOWNE v. OPENBAND 11

exclusive, and no other Person may provide such services to

the Property." Moreover, the exclusivity clauses in the

CC&Rs are incorporated into the TSA, which prohibits

LHOA from "amend[ing] the CC&Rs such that the amend-

ment would . . . have a materially adverse effect on OBL."

OpenBand has also admitted that the whole purpose of its

agreements was to preclude LHOA from contracting with

competing cable providers—the very result that OpenBand

now seeks to disclaim. For example, OpenBand conceded in

the district court that OBL’s easement "effectively bar[s]

other providers of wired services from Lansdowne." Defs.’

Br. in Supp. of Mot. to Dismiss 22. M.C. Dean’s Executive

Vice President testified that "nobody else has infrastructure

within the community to deliver wireline service." When

asked why that was so, the executive candidly answered,

"[b]ecause the entire agreement was set up so that we could

have our infrastructure in that fashion."

Recognizing the futility of its contention that its various

arrangements do not bar the homeowners association from

engaging competing providers, OpenBand changes tack and

raises a second argument as well: that "the mere existence of

an exclusivity clause" gives rise to no injury at all unless the

clause is actually enforced. Appellants’ Reply Br. 5-6. That

would be surprising news to the FCC, which enacted the

Exclusivity Order based on its express finding that "exclusiv-

ity clauses cause significant harm," in particular that they

deny consumers the benefits of "lower prices," "more chan-

nels," and improved "quality of service." Exclusivity Order

¶ 26, 17 & n.50. Significantly, the FCC found that these inju-

ries occur not only where exclusivity clauses are actually

enforced, but rather by virtue of their very existence because

such clauses "deter new entrants" from even "attempting to

enter the market." Id. ¶ 19 (emphasis added). As the FCC

explained, "[a] rule that left exclusivity clauses in effect

would allow the vast majority of the harms caused by such

clauses to continue for years." Id. ¶ 35. It is for this reason

12 LANSDOWNE v. OPENBAND

that the order declares "any" exclusivity clause "null and

void" without regard for whether it has been enforced. Id.

¶ 31.

Because OpenBand’s exclusivity clauses preclude LHOA

from engaging an alternate provider of video services for its

club house, producing the precise injuries that the FCC identi-

fied in enacting its Exclusivity Order, we hold that LHOA has

suffered a cognizable injury for purposes of Article III stand-

ing.

2.

The second element of standing requires a plaintiff to dem-

onstrate that its injuries are fairly traceable to the challenged

conduct of the defendants. Lujan, 504 U.S. at 560. OpenBand

argues that any injury suffered by LHOA is not caused by it,

but rather by the independent, intervening actions of third par-

ties not before the court—to wit, the decisions by competing

companies not to offer video service to Lansdowne.

This argument ignores the reason why competing cable

providers have not offered services to LHOA: the existence of

OpenBand’s exclusivity clauses. OpenBand’s mistake, in

other words, is to "equate[ ] injury ‘fairly traceable’ to the

defendant with injury as to which the defendant’s actions are

the very last step in the chain of causation." Bennett v. Spear,

520 U.S. 154, 168-69 (1997). But as the Supreme Court has

explained, the causation element of standing is satisfied not

just where the defendant’s conduct is the last link in the

causal chain leading to an injury, but also where the plaintiff

suffers an injury that is "produced by [the] determinative or

coercive effect" of the defendant’s conduct "upon the action

of someone else." Id. at 169.

That is what has occurred here. The record is replete with

evidence that OBL’s exclusivity arrangement caused compet-

ing cable providers not to offer LHOA their services. For

LANSDOWNE v. OPENBAND 13

starters, an LHOA board member testified that during her dis-

cussions with Verizon, the company indicated that it "wanted

to come down into Lansdowne and lay cable and service the

Lansdowne residents." To that end, Verizon sent the home-

owners association a letter identifying the services it could

offer along with pricing options. Yet after Verizon analyzed

OBL’s exclusive easement, the CC&Rs, and the TSA, the

company concluded that it could not provide service to Lans-

downe because "nothing [Verizon has] seen would give us a

green light to build out on or otherwise access the property."

Similarly, LHOA produced the franchise agreement

between Loudoun County and Comcast. Under that agree-

ment, Comcast is required to make service available to "all

residential dwelling units" in the county, with the exception

that it "shall not be required to serve potential Subscribers in

developments" like Lansdowne that "are subject to claimed

exclusive arrangements with other providers." Thus, as with

Verizon, Comcast’s decision not to offer video to Lansdowne

is fairly traceable to OpenBand’s challenged exclusivity

arrangements. And although it took place before the FCC

issued the Exclusivity Order, we also note that when Adelphia

sought to provide service to Lansdowne in 2001, OBL denied

its request, citing its exclusive easement. See UCA, LLC v.

Lansdowne Cmty. Dev., LLC, 215 F. Supp. 2d 742, 747 (E.D.

Va. 2002). We therefore hold that LHOA has established the

second element of the Article III standing inquiry.

3.

Turning to the third standing requirement of redressability,

our task is to determine if it is "‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a favorable

decision.’" Lujan, 504 U.S. at 561 (quoting Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). OpenBand

contends that it is "entirely speculative" whether an order nul-

lifying OBL’s exclusivity clauses will redress LHOA’s inju-

ries because the courts cannot "order any alternative provider

14 LANSDOWNE v. OPENBAND

to provide service or even negotiate with LHOA." Appellants’

Br. 21, 20.

We do not agree. The record reveals that an order declaring

OBL’s exclusivity clauses null and void and enjoining OBL

from enforcing them would indeed be likely to redress the

lack of competition and accompanying quality, price, and

menu of channel harms that LHOA currently suffers. As dis-

cussed above, Comcast’s franchise agreement with Loudoun

County requires it to "make Cable Service available to all res-

idential dwelling units" in the county. Comcast has not ful-

filled this obligation because its franchise agreement excuses

the requirement in cases where a development is "subject to

claimed exclusive arrangements with other providers." Thus,

once OBL’s exclusivity arrangement is eliminated, so too will

be Comcast’s reason for declining to provide service to Lans-

downe. A favorable court ruling here is therefore not only

"likely" to redress LHOA’s injuries, but will necessarily do

so. Having successfully established injury-in-fact, causation,

and redressability, LHOA has standing in this case.6

B.

We turn next to a second Article III threshold question:

whether this dispute is ripe for adjudication. "The doctrine of

ripeness prevents judicial consideration of issues until a con-

troversy is presented in clean-cut and concrete form." Miller

v. Brown, 462 F.3d 312, 318-19 (4th Cir. 2006) (internal quo-

6

LHOA also has associational standing to sue on behalf of its members

because it introduced at the summary judgment stage two affidavits from

individual members demonstrating that they suffered injuries in their own

right. That fact differentiates this case from our decision in Southern Walk

at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, No.

12-1331, at *11-13 (4th Cir. Apr. 5, 2013), where we found associational

standing lacking at the motion to dismiss stage because the complaint did

not allege any such individual injuries, much less include affidavits to that

effect. LHOA thus enjoys standing both directly and on behalf of its mem-

bers.

LANSDOWNE v. OPENBAND 15

tation marks omitted). To determine if a case is ripe, we "bal-

ance the fitness of the issues for judicial decision with the

hardship to the parties of withholding court consideration." Id.

at 319 (internal quotation marks omitted).

With respect to the fitness criterion, it is settled that a case

is "fit for judicial decision when the issues are purely legal

and when the action in controversy is final and not dependent

on future uncertainties." Id. OpenBand protests that this case

is not fit for resolution because "there is no proof that OBL

denied access to its easement or refused to grant a subease-

ment to anyone." Appellants’ Br. 16. OpenBand asks this

court to wait to decide this case because OpenBand might yet

decide in the future to relinquish its claim to the exclusive

right to provide video services at Lansdowne.

This argument fails for two reasons. To begin, OpenBand’s

position is unsupported by the record. The homeowners asso-

ciation has produced evidence that OpenBand has no intention

of voluntarily abandoning its exclusivity. As already men-

tioned, an M.C. Dean executive stated on the record twice that

OBL would, if asked, deny Verizon access to its easement.

Another executive testified that the entire purpose of OBL’s

contractual arrangements was so that "nobody else [would

have] infrastructure within the community to deliver wireline

service." Eliminating the exclusive easement, the executive

stated, would place "our entire business model . . . at risk."

In the face of these undisputed statements, we find Open-

Band’s claim of factual uncertainty completely untenable.

OpenBand’s argument amounts to little more than a formalis-

tic contrivance. The case is not ripe, it complains, because it

may at some point in the future gratuitously renounce its

claim of exclusive access to the development. Yet OpenBand

has fought this entire litigation to preserve that very exclusiv-

ity, stating repeatedly on the record that it has no intention of

giving it up.

16 LANSDOWNE v. OPENBAND

Moreover, even if there were some reason to think that

OBL might abandon its exclusivity and allow competitors to

access Lansdowne, that future prospect "would not assist our

resolution of the" actual issue before this court. Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 301 (1979).

As noted earlier, the question here is whether OBL’s exclusiv-

ity clauses, as written, violate the Exclusivity Order. Whether

OBL enforces those clauses in the future is of no consequence

because the order declares "any provision in a contract that

grants [a cable operator] the exclusive right to provide any"

video service "null and void." Exclusivity Order ¶ 31. Thus,

whether OBL’s clauses unlawfully grant it the exclusive right

to provide video service is a legal question that is, in a sense,

frozen in time: the answer does not change no matter how

actively or passively OBL chooses to exercise that right.

Turning to the hardship prong of the ripeness inquiry, we

find this to be a straightforward case. "The hardship prong is

measured by the immediacy of the threat and the burden

imposed on the [plaintiff]." Charter Fed. Sav. Bank v. Office

of Thrift Supervision, 976 F.2d 203, 208-09 (4th Cir. 1992).

Here, the hardship could not be any more immediate: because

of OBL’s exclusivity, LHOA and its residents are presently

unable to avail themselves of the quality, price, and menu of

channel advantages of a competing provider. See Miller, 462

F.3d at 321 (finding hardship prong satisfied where chal-

lenged action of the defendants had already caused "immedi-

ate harm" to plaintiffs).

So too is the burden imposed substantial. Each day that

passes without judicial resolution is another day that LHOA

and its homeowners go without the opportunity to obtain ser-

vice from a competitor, despite the fact that the Exclusivity

Order declares that any exclusivity clause "shall be null and

void." While cable service may not be a matter of life and

death, it is an important aspect of life for many Americans.

Consider the plight of Lansdowne homeowner Tim McCoy,

who, unable to contract with a competing provider and having

LANSDOWNE v. OPENBAND 17

already paid OBL for his service, watched the second half of

the 2012 Super Bowl in a state of apprehension that the video

feed would freeze at any moment, as had happened before.

Such homeowner concerns, especially in the absence of any

need to await further factual developments, render this case

ripe for our review.

III.

Satisfied that Article III poses no obstacle to suit, we next

consider OpenBand’s argument that LHOA’s claim falls out-

side the scope of the private right of action conferred by 47

U.S.C. § 401(b). That provision states: "[i]f any person fails

or neglects to obey any order of the Commission . . . any party

injured thereby . . . may apply to the appropriate district court

of the United States for the enforcement of such order." 47

U.S.C. § 401(b) (emphasis added).

The district court held that LHOA may sue under this pro-

vision, reasoning that the Exclusivity Order qualifies as an

"order of the Commission" because it "specifically defines the

rights and obligations that a litigant can enforce." OpenBand

argues that this was error for two reasons. First, it contends

that § 401(b) permits enforcement of only adjudicatory

orders, not rulemaking orders. In the alternative, OpenBand

asserts that even if § 401(b) permits enforcement of some

rulemaking orders—viz., those that define the rights and obli-

gations of litigants—the Exclusivity Order is not such an

order. Again, however, we find OpenBand’s arguments

unpersuasive.

A.

We begin with the question of whether § 401(b) ever per-

mits parties to sue for enforcement of FCC rulemaking, as

opposed to adjudicatory orders. OpenBand suggests that the

answer is "no" because while the plain terms of § 401(b)

authorize enforcement of "any order of the Commission," the

18 LANSDOWNE v. OPENBAND

Administrative Procedure Act defines the term "order" to

mean "the whole or a part of a final disposition . . . of any

agency in a matter other than rule making," 5 U.S.C. § 551(6)

(emphasis added).

We are not persuaded. To begin, the APA’s definition of an

"order" does not control in this context because § 401(b) pre-

dates the APA by nearly twelve years, and the APA’s defini-

tions are only mandatory in the context of the APA itself. See

5 U.S.C. § 551 (definitions apply "[f]or the purpose of this

subchapter"). Moreover, as the Ninth Circuit explained in

Hawaiian Telephone, 827 F.2d at 1271, when Congress

wanted to incorporate APA definitions into the Communica-

tions Act, it did so expressly—for example, explicitly defin-

ing the term "adjudication" by reference to the APA three

times in 47 U.S.C. § 409(a)-(c). That Congress did not do so

with regard to the term "order" in § 401(b) shows that it did

not intend for the APA’s limited definition of that term to

apply here.

Interpreting the phrase "any order of the Commission" in

§ 401(b) to encompass rulemaking orders also respects the

venerable principle of statutory construction that "identical

words and phrases within the same statute should normally be

given the same meaning." Powerex Corp. v. Reliant Energy

Servs., Inc., 551 U.S. 224, 232 (2007). In CBS, Inc. v. United

States, the Supreme Court construed the exact phrase at issue

here, "any order of the Commission," to include some FCC

rulemaking orders in the context of 47 U.S.C. § 402(a), which

provides a right of action for setting aside an FCC order. 316

U.S. 407, 416-19 (1942). OpenBand has offered no persuasive

explanation for why this interpretation of "any order of the

Commission" should not also apply in the context of § 401(b),

the immediately prior provision. We thus hold that § 401(b)’s

right of action to enforce "any order of the Commission" can

encompass both FCC adjudicatory and rulemaking orders. In

so holding, we align ourselves with a majority of circuits to

consider the question. See, e.g., Alltel Tenn., Inc. v. Tenn.

LANSDOWNE v. OPENBAND 19

Pub. Serv. Comm’n, 913 F.2d 305, 308 (6th Cir. 1990);

Hawaiian Tel. Co. v. Pub. Utils. Comm’n, 827 F.2d 1264,

1270-72 (9th Cir. 1987). But see New England Tel. & Tel. Co.

v. Public Utils. Comm’n, 742 F.2d 1, 4-7 (1st Cir. 1984).

B.

Our holding that § 401(b) can extend to rulemaking orders

does not, however, end the analysis. As we explained in

CGM, LLC v. Bellsouth Telecommunications, Inc., not all

rulemaking orders are created equal for purposes of

§ 401(b)’s private right of action; only those that "require[ ]

a defendant to take concrete actions" may be enforced. 664

F.3d 46, 53 (4th Cir. 2011) (internal quotation marks omit-

ted). The reason for this rule is self-evident: if a rulemaking

order merely announces agency findings or broad policy con-

siderations without actually imposing specific obligations on

identifiable entities, a § 401(b) action to enforce that order

would present a court with nothing but generic abstractions to

enforce.

Thus, for example, in CGM, we rejected a plaintiff’s

attempt to enforce under § 401(b) a rulemaking order that laid

out "policy considerations [and] public feedback." Id. at 54.

In fact, the order at issue in CGM made clear that parties were

free to voluntarily contract around the relevant FCC rules and

that state regulatory commissions (not the FCC) had the final

authority to create binding obligations on the parties. Id. In

light of these facts, we had no choice but to conclude that the

plaintiff in CGM had "no rights" and the defendant "no

duties" under the FCC order involved in that case. Id. at 55.

OpenBand contends that the same result should obtain here

because the Exclusivity Order "impose[s] no obligation on

any named party, confer[s] no rights to any named party, and,

in fact, name[s] no parties or entities at all." Appellants’ Br.

25. This argument misses the mark. For one, OpenBand badly

misconstrues the controlling legal principle by focusing on

20 LANSDOWNE v. OPENBAND

whether the order expressly names the precise parties

involved in this litigation. No court has taken such a crabbed

view of the rulemaking orders subject to § 401(b). And for

good reason. The crucial distinction between adjudication and

rulemaking is that "adjudications resolve disputes among spe-

cific individuals in specific cases, whereas rulemaking affects

the rights of broad classes of unspecified individuals." Yesler

Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir.

1994). To require a rulemaking order to expressly (and pre-

sciently) name the parties in advance would fatally undercut

the FCC’s power to regulate via general and prospective rules,

47 U.S.C. § 154(i).

Consequently, as we explained in CGM, the ultimate test is

simply whether the FCC order in question sets forth "specific

rights and obligations of the[ ] litigants." 664 F.3d at 54. The

Exclusivity Order satisfies this test. The order identifies the

precise actions that OpenBand is prohibited from taking: no

"operator of an open video system" may "enforce or execute

any provision in a contract" granting it the "exclusive right to

provide any video programming service." Exclusivity Order

¶ 51, 31. It defines OpenBand’s rights in such exclusivity

clauses accordingly: "[a]ny such exclusivity clause shall be

null and void." Id. ¶ 31. The order likewise identifies the

rights of LHOA and homeowners as part of a "centrally man-

aged residential real estate development[ ]" that shall not be

the subject of any exclusivity clause. Id. ¶ 7, 31. We therefore

hold that the Exclusivity Order is sufficiently specific in

defining the "rights and obligations of these litigants" to be

enforceable under § 401(b). CGM, 664 F.3d at 54.7

7

We also find OpenBand’s statute of limitations argument to be without

merit, as "[s]tatutes of limitations are not controlling measures of equitable

relief." Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946). In this case,

equitable relief is all that the homeowners association has sought.

LANSDOWNE v. OPENBAND 21

IV.

We arrive at last at the question of whether the challenged

clauses in the easement, CC&Rs, and TSA actually run afoul

of the FCC’s order. Resolving this question involves two-

steps. First, we must decide whether OBL is an "open video

system operator" such that its agreements are subject to the

order to begin with. Exclusivity Order ¶ 51. If it is, we must

then ask whether the challenged clauses are "provision[s] in

a contract" granting OBL an "exclusive right to provide"

video service in violation of the order. Id. ¶ 31.

OpenBand asserts that the answer to both of these questions

is "no," but its arguments as to why ring hollow. OBL seeks

first to evade the FCC’s definition of an "open video system

operator" by structuring its business operations among several

related, interlocking entities in a kind of elaborate corporate

shell game. OBL likewise seeks to avoid the Exclusivity

Order’s flat prohibition on exclusivity clauses in any contract

by splitting up its exclusive arrangement into an assortment of

interconnected sub-agreements and placing its critical exclu-

sivity provisions in a deed of easement that it contends is not

a "contract" reached by the FCC’s proscription. For the rea-

sons that follow, we reject both of these efforts to circumvent

the plain terms of the Exclusivity Order.

A.

We start with the question of whether OBL is an operator

of an "open video system," or "OVS," within the meaning of

the FCC’s order. The answer matters because the order ren-

ders null and void exclusivity clauses that are entered into by

"entities that are subject to [47 U.S.C. § 548]," among which

OVS operators are included. Exclusivity Order ¶ 30, 51; 47

U.S.C. § 573(c)(1)(A) (stating that OVS operators are subject

to § 548). Our inquiry is limited to whether OBL satisfies the

definition of an OVS operator because OBL is the only

defendant-appellant that is party to the agreements at issue.

22 LANSDOWNE v. OPENBAND

To decide whether OBL is an OVS operator, we begin with

the applicable regulatory definition. The FCC has defined an

"[o]pen video system operator" to include:

Any person [defined by 47 U.S.C. § 522(15) to

include corporations] or group of persons who pro-

vides cable service over an open video system and

directly or through one or more affiliates owns a sig-

nificant interest in such open video system, or other-

wise controls or is responsible for the management

and operation of such an open video system.

47 C.F.R. § 76.1500(b). Openband does not dispute that OBL

satisfies most of this definition. Its sole contention is that

OBL cannot be said to "provide[ ] cable service" either as a

"person" in its own right or as part of a "group of persons."

47 C.F.R. § 76.1500(b). The district court ruled against OBL

in both respects, and we agree for the reasons below.

1.

OpenBand argues first that OBL is not itself a "person"

who "provides cable service" because the cable service in

question is actually that of its affiliate, OpenBand Multime-

dia, or "OBM", who OpenBand concedes is an FCC-certified

OVS operator. OpenBand therefore contends that it is only

OBM who "provides" cable service to LHOA and the home-

owners; OBL merely "arranged for the provision of" that ser-

vice by purchasing it from OBM and reselling it to Lans-

downe. Appellants’ Br. 8.

We cannot accept OpenBand’s argument. To start, because

neither Congress nor the FCC have defined the term "pro-

vide," we give the term its ordinary meaning. See Schindler

Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885,

1891 (2011). The ordinary meaning of "provide" is "to make

available" or to "furnish." Random House Dictionary of the

English Language 1556 (2d ed. 1987). OBL satisfies this defi-

LANSDOWNE v. OPENBAND 23

nition because it is undisputed that OBM sells video service

to OBL, which then uses its own connection lines, cables, and

other infrastructure to transmit that video into Lansdowne,

thereby "making available" or "furnishing" it to homeowners.

OpenBand’s argument to the contrary is premised on the

misguided view that the entity that is the initial link in a chain

of delivery is the only one that can be said to "provide" the

thing delivered. But that is not what "provide" means: if

Angela tells Bob how to drive to the park, and Bob relays

those instructions to Carmen, all would agree that Bob, no

less than Angela (and perhaps more) has "provided" instruc-

tions to Carmen. Furthermore, OpenBand’s argument refutes

itself, since OBM (who OpenBand admits provides cable ser-

vice) is not actually the initial link in the delivery chain—

OBM instead contracts with video content providers who

deliver programming that OBM in turn transmits to OBL. We

therefore hold that OBL qualifies as an OVS operator under

47 C.F.R. § 76.1500(b) because it is itself an entity that "pro-

vides" cable service.

2.

Alternatively, even if OBL is not itself a person that "pro-

vides" cable service, it is undoubtedly part of a "group of per-

sons" that does. 47 C.F.R. § 76.1500(b). In defining an OVS

operator to include not just individual entities, but also groups

of entities that provide cable service, the FCC’s definition

appears to envision precisely this type of scenario, where a

corporate parent like M.C. Dean divides up the functions of

an OVS operator across its subsidiaries such as OBM and

OBL. Thus, as already described, OBM is able to deliver

video to OBL’s end customers in Lansdowne only by using

OBL’s physical infrastructure. OBM also has no direct con-

tact with those customers; it is instead OBL who has con-

tracted with customers to resell OBM’s services. OBL and

OBM thus operate together, functionally and contractually, in

an integrated manner as a "group of persons who provides

24 LANSDOWNE v. OPENBAND

cable service over an open video system," 47 C.F.R.

§ 76.1500(b).

OpenBand responds that treating OBL and OBM together

as an OVS operator under the "group of persons" prong of the

FCC’s definition proves too much because under such an

approach, "LHOA and its members also are OVS operators."

Appellants’ Reply Br. 19. OpenBand is mistaken. For one

thing, LHOA and its homeowners are not a part of the same

"group of persons" as OBM and OBL because unlike OBM

and OBL, LHOA and the homeowners are not affiliated sub-

sidiaries of M.C. Dean. For another, there is no evidence that

LHOA or its homeowners satisfy the definitional requirement

of "own[ing] a significant interest" in the OVS. 47 C.F.R.

§ 76.1500(b). Nor is there any evidence that LHOA or the

homeowners somehow "control[ ]" or are "responsible for the

management and operation" of the OVS. Id. Put simply, there

is no reason to read the FCC’s "group of persons" definition

of an OVS operator so broadly as to sweep up individual

homeowners; the definition is instead designed to fit exactly

the kind of division of labor that exists here between corpo-

rate affiliates like OBL and OBM.

3.

OpenBand tosses up one final contention as to why OBL

should not be bound by the Exclusivity Order: that the regula-

tory definition of an OVS operator in 47 C.F.R. § 76.1500(b)

does not matter anyway. This is so, OpenBand suggests,

because 47 U.S.C. § 573(a)(1) directs OVS operators to

obtain certification from the FCC. Thus, in OpenBand’s view,

"only an entity that has received [such] certification can be an

open video system operator." Appellants’ Br. 34 n.14.

Yet again, OpenBand is mistaken. Its error this time is to

ignore the obvious difference between a definition and a duty.

The statutory obligation that an entity should certify with the

FCC as an OVS operator is plainly the latter: 47 U.S.C.

LANSDOWNE v. OPENBAND 25

§ 573(a)(1) does not purport to define what an OVS operator

is, but rather identifies something that an OVS operator

should do. Thus, § 573(a)(1) states that "[a]n operator of an

open video system shall qualify for reduced regulatory bur-

dens . . . if the operator of such system certifies to the Com-

mission that [it] complies with the Commission’s

regulations."

Moreover, to read § 573(a)(1)’s certification requirement as

somehow delimiting the kinds of entities that constitute an

OVS operator would lead to absurd results. It would permit,

for example, an entity to avoid all regulations applicable to

OVS operators simply by refusing to certify with the FCC. In

addition to defying logic, such a result cannot be squared with

the text of the very statute that OpenBand relies on, which

entitles an "operator of an open video system" to "qualify for

reduced regulatory burdens" if it certifies with the FCC, not

more. 47 U.S.C. § 573(a)(1) (emphasis added).

In sum, we reject OpenBand’s attempt to circumvent the

FCC’s definition of an OVS operator. OpenBand’s arguments

hinge, at bottom, on the belief that it can evade unambiguous

federal regulations by playing a shell game in which it divides

up corporate functions so that one entity obtains certification

from the FCC as an OVS operator, while a separate entity

enters into otherwise-unlawful exclusivity agreements. We

reject the notion that the Exclusivity Order may be defeated

through such a meaningless expedient. To allow that outcome

would create a blueprint for regulatory circumvention, effec-

tively enabling every OVS operator to engage in exactly the

kind of exclusive access arrangement that the FCC found to

deter competition and cause consumers considerable harm.

We decline OpenBand’s invitation to be a party to that result.

B.

Having decided that OBL is an OVS operator bound by the

FCC order, we consider finally whether OBL’s arrangements

26 LANSDOWNE v. OPENBAND

contravene that order. We start with the language of the order,

which states that no OVS operator "shall enforce or execute

any provision in a contract that grants it the exclusive right to

provide any video programming service (alone or in combina-

tion with other services) to a MDU. Any such exclusivity

clause shall be null and void." Exclusivity Order ¶ 31. Open-

Band has conceded, at various points, that most of this defini-

tion is satisfied. OpenBand does not dispute, for instance, that

Lansdowne is an MDU protected by the order. OpenBand also

admitted before the district court that its easement (though not

the TSA) "effectively bar[s] other providers of wired services

from Lansdowne." Defs.’ Br. in Supp. of Mot. to Dismiss 22.

Notwithstanding these concessions, OpenBand claims that

it has not violated the Exclusivity Order. Its argument

involves two steps. First, OpenBand asserts that each of the

challenged arrangements—the TSA, CC&Rs, and easement—

should be segregated and considered separately from one

another before determining whether any of them actually vio-

lates the order. Second, OpenBand contends that none of the

individual agreements actually does so. As we explain further

below, OpenBand is incorrect at both steps of its reasoning.

1.

We shall first consider whether the TSA, CC&Rs, and

easement should be considered separately for the purpose of

determining whether the agreements include exclusivity

clauses that run afoul of the order. OpenBand argues that we

must consider these arrangements in isolation. This is because

the order applies to exclusivity provisions contained in a

"contract," and, by evaluating each agreement separately,

OpenBand hopes to cordon off the exclusivity clauses in the

easement (which it claims is not a contract), and focus the

court’s attention instead on the TSA (which it concedes is a

contract, only one that it says contains no exclusivity clause).

OpenBand’s divide-and-conquer approach must be exposed

for what it really is: a sleight of hand designed to preserve

LANSDOWNE v. OPENBAND 27

precisely the type of anti-competitive video monopoly that the

FCC sought to prohibit. We decline to permit this machina-

tion for a straightforward reason: under Virginia law, "con-

temporaneous written agreements executed as part of the

same transaction will be construed together as forming one

contract." Va. Hous. Dev. Auth. v. Fox Run Ltd., 497 S.E.2d

747, 752 (Va. 1998) (internal quotation mark omitted); see

James v. Circuit City Stores, Inc., 370 F.3d 417, 421-22 (4th

Cir. 2004) ("[I]nterpretation of private contracts is a question

of state law."). The TSA, CC&Rs, and easement easily satisfy

this standard because they were each entered into within a

short window of time in 2001, and each concerns the same

basic transaction: OBL’s agreement to provide telecommuni-

cations services to Lansdowne.

That the documents were designed to function together as

a single agreement is further confirmed by the fact that the

terms of each document "clearly contemplate the application

of terms in the other[s]," such that the terms "may be viewed

together as representing the complete agreement of the par-

ties." Va. Hous. Dev. Auth., 497 S.E.2d at 752-53. Indeed, the

very thing that ties the agreements together is OpenBand’s

unabashed desire to secure exclusive access to the develop-

ment. For example, the CC&Rs incorporate the terms of the

easement, confirming that OBL enjoys "exclusive easements

for access to and the installation [and] operation" of telecom-

munications systems. As discussed, the easement promises

OBL the sole right to build and operate video infrastructure

in Lansdowne such that "no other person or entity shall be

entitled to" do the same. And tying together the entire

arrangement, the TSA explicitly incorporates the terms of the

CC&Rs by forbidding LHOA to "amend the CC&Rs such that

the amendment would . . . have a materially adverse effect on

OBL." Significantly, it is undisputed that if LHOA were to

amend its CC&Rs to permit it to grant an easement to another

video provider, that would have a "materially adverse effect"

on OBL and therefore breach the TSA.

28 LANSDOWNE v. OPENBAND

Thus, considering the TSA, CC&Rs, and easement together

as the single, intertwining contract that it actually is, we have

no difficulty concluding that it contains provisions granting

OBL the "exclusive right to provide" video service to Lans-

downe, in violation of the order. Exclusivity Order ¶ 31. As

noted earlier, the purpose and effect of the agreement is to bar

competing cable video providers from delivering service to

the development by preventing them from ever building the

infrastructure necessary to reach Lansdowne in the first place.

See ante at 10-11. Thus, the provisions are among the type

that the FCC identified as the "most exclusionary exclusivity

clauses," as they "prohibit any other [provider] from any

access whatsoever to the premises." Id. ¶ 1 n.2. All of the

clauses effectuating this exclusive video arrangement are

therefore "null and void." Id. ¶ 31.

2.

Even if we were to agree with OpenBand that the easement,

CC&Rs, and TSA should be evaluated separately under the

Exclusivity Order, we would nevertheless conclude that each

agreement is independently a contract containing exclusivity

provisions prohibited under the order.

With regard to the easement at the crux of this dispute,

OpenBand raises a variety of arguments for why it does not

violate the Exclusivity Order when considered in isolation.

First, OpenBand argues that the order does not apply to exclu-

sivity clauses in easements because easements are not con-

tracts. As an initial matter, this argument is forfeited because

OpenBand failed to argue it in the district court. Muth v.

United States, 1 F.3d 246, 250 (4th Cir. 1993). In fact, Open-

Band actually conceded the opposite before the district court,

admitting that it is "undisputed" that "easements are con-

tracts." Defs.’ Reply in Supp. of Mot. to Dismiss 18; see also

Tr. of Summ. J. Hr’g 26 (admitting that OpenBand "ha[s] a

contractual provision in the form of a real property agreement

that provides an exclusive right of enjoyment of the prop-

LANSDOWNE v. OPENBAND 29

erty"). Moreover, even if we were to consider the argument

on appeal, we would find OpenBand’s initial concession cor-

rect: a deed of easement is a contract. See Cantrell v. Appala-

chian Power Co., 139 S.E. 247, 248-49 (Va. 1927)

(describing document granting an easement as a "contract");

see also, e.g., United States v. Sea Gate, Inc., 397 F. Supp.

1351, 1360 (E.D.N.C. 1975) ("[A] deed creating an easement

by express reservation is a contract.").

Undeterred, OpenBand next argues that the Exclusivity

Order is not meant to interfere with easements because the

order is "explicit in limiting its reach to exclusivity clauses in

contracts for video services, not real property rights." Appel-

lants’ Br. 31. Specifically, OpenBand points to Paragraph 37

of the Exclusivity Order, which states that "the rule we adopt

today does not require that any new entrant be given access

to any MDU. A MDU owner still retains the rights it has

under relevant state law to deny [access to] a particular pro-

vider." But this paragraph quite obviously does not assist

OpenBand’s position because it protects the right of property

owners to deny a cable provider access to their property, not

the right of a cable provider to exclude its competitors. Nor

is OpenBand aided by its reliance on Paragraphs 55 and 57 of

the order, which state that the order "does not involve the per-

manent condemnation of physical property" and that video

providers need not "jettison" use of their existing wires. Those

provisions simply make clear that video providers are not

required to give up or affirmatively share their existing infra-

structure; the provisions in no way permit providers to com-

pletely exclude their competitors from accessing a property.

OpenBand’s contention that the FCC’s order does not

extend to easements is also considerably undermined by the

fact that the order specifically references two easements,

attached to comments filed by AT&T, as "examples of exclu-

sion." Exclusivity Order ¶ 10 & n.27. It would have been odd

—to say the least—for the FCC to refer to two exclusive ease-

30 LANSDOWNE v. OPENBAND

ments as illustrations of exclusivity clauses if, as OpenBand

asserts, the FCC in fact intended not to reach such easements.

Nor can OpenBand defend the illogical result that would

arise were we to accept its position that easements are exempt

from the order. If OpenBand is correct, any cable provider

would be able to frustrate the FCC’s unequivocal prohibition

on exclusivity clauses simply by structuring its exclusive

arrangement in the form of an easement. An exception of such

huge proportions would render the FCC’s order nugatory, the

dangers of which this very case makes clear.

OpenBand makes one last argument for why the easement

does not violate the FCC’s order. Retreating from its prior

admission that the easement bars access by other cable pro-

viders, OpenBand argues now on appeal that the easement

does not "absolutely" bar access to Lansdowne after all

because "OBL has the right to grant subeasements." Appel-

lants’ Br. 30. To begin, this argument is also forfeited because

OpenBand never raised it in the district court. Muth, 1 F.3d

at 250. Moreover, even if not forfeited, the argument is belied

by the record, for OpenBand has never represented that it

would grant a subeasement to a competitor of its own good

will. In point of fact, as already mentioned, an M.C. Dean

executive testified in a deposition that, "would we object to

[Verizon] coming into the community and running their infra-

structure? I would say that we would."

Finally, even if the argument were not forfeited, and even

if it were supported by the record, we would reject it in any

event. The mere fact that OBL may voluntarily relinquish its

exclusivity by granting a subeasement cannot mean that the

easement is untouched by the FCC order. If that were so, the

FCC order would never render any exclusivity clause null and

void, since a party could always theoretically give up its claim

of exclusivity. But that is not how the FCC order is written:

the order instead prohibits "any provision in a contract that

grants it the exclusive right to provide" video services to an

LANSDOWNE v. OPENBAND 31

MDU. Exclusivity Order ¶ 31 (emphasis added). The ease-

ment grants OBL exactly that right, regardless of its future

intentions. All provisions in the easement granting OBL the

exclusive right to provide video services are therefore null

and void, as are any such clauses in the TSA and CC&Rs.8

V.

In seeking to defend its exclusive access arrangement,

OpenBand has engaged in what amounts to an elaborate game

of regulatory subterfuge featuring an array of procedural

defenses, the use of various corporate entities to escape the

definition of an OVS operator, and an artifice to evade the

FCC order by structuring its exclusive arrangement using a

web of sub-agreements. The district court correctly pierced

these arguments to recognize that OpenBand had set up just

the kind of non-competitive video service monopoly—with

all the attendant dangers of high prices and poor service—that

the FCC banned in the Exclusivity Order. We accordingly

affirm the grant of summary judgment in LHOA’s favor.

Furthermore, lest there be any doubt, we underscore that in

declaring null and void and enjoining enforcement of all

exclusivity clauses in the challenged agreements as those

clauses relate to the provision of wire-based cable services,

the district court’s order renders the clauses unenforceable

against the homeowners association and individual homeown-

ers alike. To endorse a contrary result would be to foster the

very anti-competitive injuries in terms of price, quality, and

8

Thus, for example, the TSA expressly provides that LHOA "shall not

engage any other provider of Platform services." In addition, as explained

above, the TSA contains a clause that guarantees OBL exclusive access to

Lansdowne by preventing LHOA from amending its CC&Rs to permit

other cable providers from building infrastructure in the development. The

CC&Rs similarly provide that OBL’s "rights with respect to the private

utility system . . . and the services provided through such private utility

system are exclusive, and no other Person may provide such services to

the Property."

32 LANSDOWNE v. OPENBAND

choice of service that prompted the FCC to enact the Exclu-

sivity Order in the first place.

For the foregoing reasons, the judgment of the district court

is affirmed.

AFFIRMED