Section 253 of the Communications Act provides that no state or local government may pass a law or ordinance that “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” But if a state or local government does pass such a law, courts are split over whether an aggrieved carrier can secure damages from such action under a Section 1983 claim.
On November 10, 2015, the Eighth Circuit Court of Appeals sided with the Second, Fifth, Ninth and Tenth Circuits – and against the Sixth and Eleventh Circuits – in holding that Section 253 of the Communications Act does not create a private right of action under Section 1983 for alleged violations of Section 253 of the Communications Act. Here, Spectra Communications complained that the City of Cameron, Missouri improperly refused to issue it a construction permit unless Spectra paid certain user fees that Spectra disputed owing. Spectra sued the city in federal court for violating Section 253 of the Communications Act, for which it sought damages under Section 1983, but the district court dismissed that claim. The Eighth Circuit affirmed that ruling on appeal.
The appeals court first noted that the “language of § 253(a) is … phrased as a restriction on state and local governments, not as a conferral of benefits on telecommunications providers.” It then pointed to the Act’s preamble to conclude that Congress intended consumers – not individual carriers – to be the beneficiaries of the Act. Finally, the court found that Congressional focus on the FCC’s preemption authority further undercut any inference that Congress intended to establish a private right of action with Section 253. Spectra Commc’ns Group, LLC v. City of Cameron, 2015 WL 6876073 (8th Cir. Nov. 10, 2015).