Enforcing Rights: A Case for Private Rights of Action Under Section 253 of the Federal Telecommunications Act of 1996

Authors

James E. Lippert

Document Type

Note

Abstract

(Excerpt)

Part I of this Note provides background on the meaning of section 253 and the current law regarding private rights of action. It also briefly discusses the unique problems presented for private rights of action where the underlying legislation is passed pursuant to the Spending Clause—which was at issue in Gonzaga. Part II discusses whether the circuit courts allow telecommunications providers a private right of action under section 253. Some pre-Gonzaga courts granted a private right of action for telecommunications providers when a state or local government exceeded its safe harbor to manage a public right-of way under section 253(c). These courts held that, under the traditional standard for implied causes of action, the text and structure of section 253 and its legislative history, in addition to the purpose of the FTA as a whole and other analogous sections of the FTA, indicates the availability of an implied cause of action. For all that, many post-Gonzaga courts have denied a private right of action under any subsection of section 253. These courts held that the Gonzaga decision was controlling and, in light of that decision, the telecommunications providers’ claims must fail. Part III argues that telecommunications providers should have a private right of action where a state or local government exceeds its safe harbor under section 253(c), which allows for the management of a public right-of-way. First, it argues that the Gonzaga decision only controls where the underlying statute was passed pursuant to the Spending Clause. Since the FTA was passed pursuant to the Interstate Commerce Clause, the Gonzaga decision is not controlling. Next, Part III argues that, properly limited, the Gonzaga decision allows a private right of action under section 253 for telecommunication providers. In doing so, this Part concludes that a telecommunications provider has an implied cause of action under section 253(c). Moreover, since the telecommunications provider succeeds on the more difficult implied cause of action claim, then courts should also allow the telecommunications providers to prevail on the easier claim to prove—a section 1983 claim. Finally, this Part concludes that there are significant policy reasons favoring a private right of action under section 253(c) of the FTA.