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VA Broadband denied injunction against Wireless Authority

Virginia Broadband, L.L.C., failed to get an injunction against the King George Wireless Authority at a court hearing it had requested on last Friday. 

The company unsuccessfully argued for an injunction against the county’s Wireless Authority for barring access to the middle school tower on which it had installed equipment. 

Circuit Court Chief Judge Gordon F. Willis ruled against Virginia Broadband, saying its argument failed to meet any of the four standards set by the Fourth Circuit necessary to grant such an injunction. 

Those standards require the plaintiff to establish that the case is likely to succeed on its merits, it is likely to suffer irreparable harm in the absence of the relief sought, that the 

balance of equities tips in its favor, and that the injunction is in the public interest. 

Willis opened the hearing saying that he had read all the voluminous documents contained in the court file, so was familiar with the numerous filings, allegations and counter allegations. 

Virginia Broadband’s attorney, Kelly LePar held the floor for most of the hour-long hearing, attempting to make her argument. But it was Edward “Sonny” Cameron who succinctly stated that the case was about money. Cameron is representing the Wireless Authority in the case that was originally filed last December 2011. 

Numerous other facts and allegations were brought up, along with cogent questions by the judge. 

In the end, the court agreed it was a contract dispute between a government authority and a business that wants access to a tower without any rent or other payment being made that is required by the contract. 

Virginia Broadband had requested the Court to grant an injunction that would allow it access to the tower for 90 days, so it could restore electrical power to wireless equipment, test it, dismantle it and find another site on which to install it. If not for 90 days, it requested two weeks at a minimum. None was granted. 

WHAT’S NEXT FOR COUNTY BROADBAND?

The Wireless Authority’s prevailing in the pre-trial hearing last week seemingly points the way to the likelihood of similar success in its case in chief when it comes to trial. A date for that hearing has not yet been set.

If it wins, Wireless might be able to recoup its cash outlay of about $500,000 to Virginia Broadband, plus interest, attorney’s fees and court costs. 

But it still would not get any closer to providing county residents another option for wireless internet access. According to public documents, Virginia Broadband has been providing service to only 20 residents in the county. 

King George has done its best to provide high speed internet service to its far-flung residents. It was one of the first counties to take advantage of state legislation designed to help counties connect. That’s how the partnership with Virginia Broadband came about. 

But now, most county residents currently appear to have three options to access high speed broadband Internet service. What’s available depends on where they live. 

Both Metrocast cable television and Verizon FIOS provide Internet service to various areas of the county. Some other county residents have discovered that their best bet for high speed Internet service is to access it through their cell phone service. 

This week, Supervisors are being informed about a May 21 meeting with one or two county officials invited to a workshop hosted by U.S. Senator Mark Warner to discuss and pursue opportunities for grants to help close the gaps in mobile wireless service to enable to far flung rural residents to connect the internet. 

BACKGROUND

 

The King George County Wireless Authority had been established in December 2006 following enabling legislation by the state’s General Assembly to provide an avenue for rural localities to try to secure high speed Internet service for its far-flung residents. 

King George was one of the first localities to use the new legislation in its diligent attempt to provide high speed Internet access to its rural residents. 

After jumping through numerous hoops required by the enabling legislation, the county had selected Virginia Broadband from among a few others providing proposals during its competitive procurement process. 

BACKGROUND OF CURRENT LEGAL ISSUES

The Wireless Authority contracted with Virginia Broadband in January 2008 to “design, implement, operate and maintain a rural wireless broadband network” throughout the county. 

The agreement between the two parties allowed Virginia Broadband to use existing county-owned or controlled structures, including cell towers and water towers, to install equipment through a lease arrangement in an effort to obtain high-speed Internet broadband access throughout the county and oversee its operation and management. 

That effort proved to be unsuccessful.  

Despite the Wireless Authority’s efforts to enforce the terms of the agreement, the goals of the project to provide high speed Internet service throughout the county did not happen. 

As part of the agreement, the county agreed to lend Virginia Broadband $740,000 at 5.59 percent interest to enable the company to pay for costs for equipment and installation to meet the goals of provision of broadband service throughout the county. The full amount has not been drawn down by Virginia Broadband, but public records indicate they owe the county about $500,000 plus interest and penalties for non-payment. No payment has been made by Virginia Broadband.

LEGAL COMPLAINT

As a result, the Wireless Authority filed a legal complaint for breach of contract against Virginia Broadband last December 29, 2011. 

Those legal actions commenced four months after the Wireless Authority took unanimous action on Aug. 16, 2011, to terminate its contract with Virginia Broadband and to enforce the related security agreements with the Internet service provider. 

The enforcement attempts included pursuing payback with interest on the loan to Virginia Broadband that was part of the county contract with the company.

The company was required to make annual loan repayments beginning in December 2008, with payback to be completed by the end of this calendar year.

Letters of notice of loan default had been duly sent as time went by, along with notices of performance default. Those were sent to Virginia Broadband’s president and CEO, Warren Manuel. But issues were not resolved and few required reports were provided by the company, with requests by the county for documents often ignored. 

COUNTER CLAIM

That followed numerous additional filings by both parties, including counter claims by Virginia Broadband against the Wireless Authority for breach of contract and fraud and the like.  

 

Phyllis Cook

 

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