Fifth Circuit Notes Split Re Whether S. 253 of FTA Creates Privately Enforceable Right

Per Southwestern Bell Telephone, LP v. City Of Houston, --- F.3d ----, 2008 WL 2102283 (5th Cir. May 20, 2008):

Section 253(a) of the Federal Telecommunications Act of 1996 (FTA) provides: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service”. 47 U.S.C. § 253(a). . . .

Five circuits are split three to two on whether FTA § 253 creates a privately enforceable right. The Sixth and Eleventh Circuits hold it does. BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1191 (11th Cir.2001); TCG Detroit v. City of Dearborn, 206 F.3d 618, 624 (6th Cir.2000). (Although obviously not determinative for deciding whether a privately enforceable right is created, neither decision incorporated § 1983.) Those two decisions, however, were rendered prior to the Supreme Court's above-described clarification in Gonzaga [Univ. v. Doe, 536 U.S. 273, 283 (2002)].

As discussed infra, the more persuasive reasoning is found in the Second, Ninth, and Tenth Circuits' holding, post-Gonzaga, that FTA § 253(a) does not create a private right enforceable under § 1983. NextG Networks of NY, Inc. v. City of New York, 513 F.3d 49, 52-54 (2d Cir.2008) (agreeing with Ninth and Tenth Circuits that “ § 253 does not create a private right of action for damages” that may be enforced through § 1983); Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700, 717-18 (9th Cir.2007) (stating “ § 253(a) does not designate companies like [AT & T] as the ‘identifiable class' required for an enforceable § 1983 right”); Qwest Corp. v. City of Santa Fe, N.M., 380 F.3d 1258, 1265 (10th Cir.2004) (ruling “nothing in the text or structure of § 253 indicates an intention to create a private right” that may be enforced through § 1983). These three decisions are consistent with our court's requiring, as discussed supra, the federal statute to “ unambiguously give rise to privately enforceable, substantive rights”. Johnson, 442 F.3d at 359 (emphasis in original) (footnote omitted).