Communication Services and Telecommunications

Whether telecommunications providers have a private right of action under Section 253 of the Telecommunications Act of 1996 is an issue that will only be resolved in time. In November 2015, the Eighth Circuit joined the Second, Fifth, Ninth, and Tenth in holding that they do not. This decision split from the Sixth and Eleventh circuits holding they do.

Spectra Communications Group, LLC (“Spectra”) provided telecommunications services in the City of Cameron (“the City”) for several years. Spectra also maintained facilities in the City’s rights of way (“ROW”). The City enacted a ROW and Communications ordinance that required communications providers, like Spectra, to pay user fees and obtain use permits in order to maintain facilities in the City’s ROW.

The City sued Spectra for failure to pay municipal license taxes and user fees and failure to obtain use permits. After this suit, Spectra sought a construction permit. The City denied Spectra’s request for failing to comply with the City’s ROW code. Spectra then sued the City.

In Spectra Communications Group, LLC v. City of Cameron, 806 F.3d 1113 (8th Cir. 2015), Spectra claimed the City had violated Section 253 of the Telecommunications Act of 1996 (“the Act”) and Missouri law. Spectra also sought an injunction to require the City to issue it a construction permit and damages under Section 1983. The City moved for dismissal on the grounds that Section 253 does not authorize a private right of action under Section 1983. The district court dismissed Spectra’s claim and denied the City’s motion for attorney fees. Both parties appealed.

On appeal, the Eighth Circuit affirmed the district court’s holding that Section 253 does not authorize a private right of action under Section 1983. It noted that “Section 1983 authorizes claims against state actors to enforce rights created by federal statutes.” It is the violation of a federal right, not merely a federal law that Section 1983 offers redress. Rights under Section 1983 must be created by Congress in “clear and unambiguous terms.”

Spectra argued that Section 253 creates a private right of action because it refers to telecommunications providers’ ability to provide telecommunications service. The court, however, noted that this phrase is not a conferral on telecommunications providers, but rather a restriction on state and local governments from prohibiting such services. Spectra then argued that other sections in the Act indicate that Congress intended for a private right of action under Section 253. Spectra argued that because Section 255 explicitly precludes private rights of action, the absence of such an explicit preclusion in Section 253 means Congress intended such a right. The court disagreed stating that such an inference does not establish “‘in clear and unambiguous’ terms that Congress intended to create a private right of action under § 253.” The court went on to find that the legislative history also does not indicate Congress intended a private right of action under Section 253 for damages under Section 1983.

 

Jeremy Fetty is a partner in the law firm of Parr Richey Obremskey Frandsen & Patterson with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.