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TCA Creates Sect. 1983 Rights
The Southern District of New York has found that two provisions of the Telecommunications Act create rights enforceable by telecom providers under 42 U.S.C. § 1983.Nextg Networks v. City of New York, No. 03Civ.9672(RMB), 2004 WL 2884308 (S.D.N.Y. Dec. 10, 2004). The decision contains a good summary of the conflicting caselaw on the issue, which may be useful for litigants looking for other statutes that courts in their circuits have enforced, and also has helpful Gonzaga analysis.
The first provision at issue, 47 U.S.C. § 253(a), provides that “No State or local statute or regulation … may prohibit … any entity to provide … telecommunication services.” The court added the emphasis to “any entity” to show that this was rights-creating language phrased in terms of the person benefited as required by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). The court also enforced the provision that “State or local government” may “require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis ….” 47 U.S. C. § 253(c). This provision also satisfied Gonzaga because it was worded in terms of an identifiable class of beneficiaries, was concerned with individual entities as opposed to institutional policy or practice, and lacked any federal administrative review mechanism.