Opinion
Case No. 8:02CV516
April 11, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Defendants' Motion to Dismiss Plaintiff's third cause of action pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), on the grounds that the Telecommunications Act of 1996, ("TCA"), 47 U.S.C. § 151 et. seq., creates a comprehensive remedial scheme that implicitly precludes a claim under 42 U.S.C. § 1983 (Filing No. 18). The parties have briefed the issue.
Standard of Review
If the Court lacks subject matter jurisdiction over the Plaintiff's third cause of action, then the cause of action must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1). In considering a motion to dismiss a complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, a court must assume all the facts alleged in the complaint are true and liberally construe the complaint in the light most favorable to the plaintiff. Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001); Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A motion brought pursuant to Rule 12(b)(6) should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Young, 244 F.3d at 627. A Rule 12(b)(6) dismissal should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief, such as when there is a fatal flaw in the legal premises. Schmedding, 187 F.3d at 864; and Young, 244 F.3d at 627. Dismissal is appropriate in those circumstances to spare the parties the burden and expense of unnecessary pretrial and trial activities. Id.
Factual and Procedural Background
The Plaintiff, Nextel Partners, Inc. ("Nextel"), is a Delaware corporation authorized to do business in the State of Nebraska. The Defendants are individual members of the Saunders County Board of Supervisors, acting in their official capacities, and Saunders County, Nebraska (collectively referred to as "the Board"). The Amended Complaint states that Nextel applied to the Board for a special-use zoning permit ("permit") to construct a telecommunications tower. (Filing No. 16, ¶ 24). Saunders County allows construction of communications stations and transmitters only with a permit. (Id. at ¶ 24). The Board denied Nextel's permit application, which is considered a final action. (Id. at ¶ 29).
A tower is a necessary component for the transmission of wireless communications signals. (Id. at ¶¶ 10, 22). Nextel's proposed tower was designed to contain several antennae for up to six "carriers" — the providers of wireless services. Wireless communications signals are a part of a specialized mobile radio service ("SMR"), which Nextel is licensed by the Federal Communications Commission (FCC) to operate in an area that includes Saunders County. (Id. at ¶ 10). Within that coverage area, there is a gap in service as a result of a lack of a communications tower, which is also referred to as a "cell site". (Id. at ¶ 14). This coverage gap results in poor service for cellular phone customers, which is evidenced by disconnected calls, poor quality calls, and a total loss of service. (Id. at ¶ 15). The gap also poses a safety risk for individuals or organizations that rely upon wireless communications to report emergencies. (Id. at ¶ 16).
Nextel applied for the permit on August 14, 2002, which the Board denied on October 15, 2002. (Id. at ¶¶ 25-27). Nextel commenced this action asserting three claims on November 5, 2002.
The first claim arises under 47 U.S.C. § 332(c)(7)(B)(iii), which requires that "[a]ny decision by a State or local government . . . to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." The second claim arises under 47 U.S.C. § 332(c)(7)(B)(i)(II), which states that "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services."
Analysis
The pending motion relates only to Nextel's third claim under 42 U.S.C. § 1983 and 1988, including the claim for payment of attorneys fees. Nextel alleges that the Board's denial of its application for a permit constitutes a violation of Nextel's federally-established rights under the TCA that is the basis of its Section 1983 action. In support of its motion to dismiss, the Board argues that the TCA impliedly precludes Section 1983 claims because the TCA provides its own comprehensive remedial scheme.The Court has subject matter jurisdiction with respect to Nextel's third cause of action, and therefore, the analysis proceeds under Rule 12(b)(6). Whether a plaintiff who is aggrieved by an alleged violation of the TCA may proceed under Sections 1983 and 1988 has been considered by the U.S. Courts of Appeals on two occasions. The result is a split between the Eleventh Circuit, which dismissed a Section 1983 claim under Rule 12(b)(6) and the Third Circuit, which permitted a Section 1983 claim alleging a violation of the TCA to proceed. Compare ATT Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1324 (11th Cir. 2000) with Nextel Partners Inc. v. Kingston, 286 F.3d 687 (3rd Cir. 2002). While both the Eleventh Circuit Court and the Third Circuit Court found that the TCA creates federal rights, they split on whether the TCA includes a comprehensive remedial scheme that bars separate Section 1983 claims. The Eighth Circuit Court has not yet addressed the precise issue.
ATT Wireless PCS, Inc., v. City of Atlanta, 210 F.3d 1322 (11th Cir. 2000), vacated on jurisdictional grounds, 223 F.3d 1324 (11th Cir. 2000), opinion reinstated, 250 F.3d 1307 (11th Cir. 2001), vacated pending reh'g en banc, 260 F.3d 1320 (11th Cir. 2001), and appeal dismissed per stipulation, 264 F.3d 1314 (11th Cir. 2001).
Nextel Partners Inc. v. Kingston, 286 F.3d 687 (3rd Cir. 2002).
Existence of a Federal Right under the TCA
Section 1983 provides a remedy for the deprivation of federal rights. Gonzaga University v. Doe, 536 U.S. 273, ___, 122 S.Ct. 2268, 2276 (2002)." In order to seek redress through Section 1983, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. Blessing v. Freestone, 520 U.S. 329, 340 (1997), citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989).
Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Colombia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ." 42 U.S.C. § 1983.
A plaintiff asserting a statutory claim under § 1983 has the initial burden of demonstrating that the statute [in this case the TCA] creates a substantive right." Blessing, at 341. Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable under Section 1983. Gonzaga University, 536 U.S. at ___, 122 S.Ct. at 2276. The burden then shifts to the defendant to rebut the presumption and demonstrate that a Section 1983 claim was explicitly or implicitly precluded by the statute. Wright, 479 U.S. at 423, citing Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20 (1981).
Courts traditionally have considered three factors when determining whether a particular statute gives rise to a federal right. Blessing, 520 U.S. at 340. First, Congress must have intended that the provision in question benefit the plaintiff. Id. citing Wright v. Roanoke Redev. Hous. Auth., 479 U.S. 418, 430 (1987). Second, the plaintiff must demonstrate that the right allegedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Id., citing Wright, 479 U.S. at 431-32. Third, the statute must unambiguously impose a binding obligation on the States, or other local government, Thus, "the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms." Blessing, 520 U.S. at 341.
Application of the Blessing Factors
Based on the requirements set forth in Blessing, the language of the statute, and the legislative history, the Court concludes that Nextel has federal rights created by the TCA. This conclusion is in accordance with the conclusions of both the Third and Eleventh Circuit Courts. When considering the intended meaning of a statute like the TCA, the Court begins its inquiry with the language of the statute itself. Haug v. Bank of America, N.A., 317 F.3d 832, 835 (8th Cir. 2003), citing United States v. Milk, 281 F.3d 762, 766 (8th Cir. 2002). "Where the language of the statute is `unambiguous, the statute should be enforced as written unless there is clear legislative intent to the contrary.'" Milk, 281 F.3d at 766 quoting United States v. McIntosh, 236 F.3d 968, 972 (8th Cir. 2001). If the intent of Congress is clear from the language of the statute, the judicial inquiry ends. United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997), citing Citicasters v. McCaskill, 89 F.3d 1350, 1354-55 (8th Cir. 1996).
Under the first factor set forth in Blessing, the Court finds that Congress intended to benefit entities such as Nextel in the enactment of the TCA. The TCA was enacted to "promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies." Pub.L. No. 104-104, 110 Stat. 56 (1996). One Court has found that the TCA was enacted to remove "barriers to entry" in the telecommunications market and to "stimulate competition among telecommunications providers." TCG Detroit v. City of Dearborn, 977 F. Supp. 836, 839 (E.D.Mich. 1997) (discussing 47 U.S.C. § 253). It was also enacted "to increase competition in the area of telecommunications services and to ensure the delivery of universal services." Missouri Mun. League v. FCC, 299 F.3d 949, 951 (8th Cir. 2002).
The legislative history dovetails with the express language of the statute that demonstrates that Congress intended to benefit entities such as Nextel. The TCA includes mandatory procedures that State and local governments must follow when taking actions related to mobile telecommunications services. 47 U.S.C. § 332(c)(7) (1996). The TCA prohibits local governments from making decisions governed by the TCA without reducing the decisions in writing supported by substantial evidence contained in a written record. Id. The TCA provides in 47 U.S.C. § 332(c)(7)(B)(v), that "[a]ny person adversely affected by any final action or failure to act by a State or local government or instrumentality thereof that is inconsistent with this subparagraph may," within 30 days, "commence an action in any court of competent jurisdiction." Given the statute's unambiguous language and the purposes supporting its enactment, the Court finds that the first Blessing factor is satisfied, and Nextel is an entity that Congress intended to benefit in enacting the statute.
Second, Nextel must "demonstrate that the right protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence." Blessing, 520 U.S. at 340. The Supreme Court has stated that it is proper to question whether the right or benefit is sufficiently specific and definite to qualify as a right not beyond the competence of the judiciary to enforce. Wright, 479 U.S. at 432. Nextel alleges the Board violated its right to have the Board's decision supported by substantial evidence contained in a written record. To reduce their decision to writing is a concrete duty imposed on state and local governments and their instrumentalities by the TCA. The obligation is well defined. The TCA also provides that an adversely affected person may "commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis." 47 U.S.C. § 332(c)(7)(B)(v). This language illustrates that the TCA provides a specific avenue for enforcement. For these reasons, the Court finds that the TCA is not vague and amorphous, and its enforcement does not strain the competence of the judiciary. The second Blessing factor is satisfied.
Third, Nextel must demonstrate that the statute unambiguously imposes a binding obligation upon the defendant. Blessing, 520 U.S. at 341. The provision of the TCA in question contains clear, binding obligations on state and local governments. The TCA uses mandatory language in reference to government obligations. The TCA provides that state and local governments, "shall not unreasonably discriminate among providers of functionally equivalent services; and shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i) (emphasis added). The TCA also provides that, "any decision by a State or local government or instrumentality thereof to deny a request [to construct a facility] shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332 (c)(7)(B)(iii) (emphasis added). The Court finds that the statute does impose a binding obligation upon state or local governments thereby satisfying the third and final Blessing factor. Accordingly, Nextel has demonstrated that the TCA provides a federal right presumptively enforceable under § 1983.
Congressional Intent to Foreclose Section 1983 Action
Having concluded that a federal right exists, the Court must consider whether the TCA evidences Congressional intent to foreclose a Section 1983 action. See Middlesex County Sewage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 19 (1981). Congress may foreclose such a remedy expressly, by forbidding recourse to Section 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under Section 1983. Blessing, 520 U.S. at 341. Because the TCA does not expressly foreclose Section 1983 actions, the inquiry for this Court is whether the TCA creates a comprehensive enforcement scheme that is incompatible with individual enforcement under Section 1983. It is in responding to this issue, that the Third Circuit Court and the Eleventh Circuit Court have split. The courts' reasoning is set forth in the discussion that follows. For the reasons set for below, this Court concludes that the TCA does create such comprehensive remedial scheme, and that Defendant's motion to dismiss the Plaintiff's section 1983 claim, therefore, must be dismissed.
In support of its motion to dismiss, the Board relies heavily on the Third Circuit's decision in Nextel Partners, holding that the TCA contains a comprehensive remedial scheme that precludes Section 1983 claims. The Third Circuit Court reasoned:
While the remedial scheme provided by the TCA is not complicated, we believe that it is comprehensive in the relevant sense: it provides private judicial remedies that incorporate both notable benefits and corresponding limitations. Allowing plaintiffs to assert TCA claims under § 1983 would upset this balance.
Nextel Partners, 286 F.3d at 694. The Third Circuit drew a distinction between schemes that are sufficiently comprehensive, and those that are not. The distinction turned on whether the statutes giving rise to the claim included private judicial remedies. Id. at 694. The Third Circuit Court relied on the Supreme Court's decision in Wright, supra, wherein the Court analyzed whether a Section 1983 claim could be brought under the Brooke Amendment to the Housing Act of 1937. The Supreme Court was not persuaded that the remedial mechanisms of the Housing Act of 1937 "raised a clear inference that Congress intended to foreclose a § 1983 cause of action for the enforcement of tenants' rights secured by federal law." Id. at 425. The Wright Court distinguished the statute at issue in that case from the statutes that were the analyzed in Sea Clammers and Smith v. Robinson, 468 U.S. 992 (1984), both of which held that the statutes at issue precluded Section 1983 claims based on the comprehensive remedial schemes within the statutes.
Subsequently overruled by statute, see Bd. of Educ. of E. Windsor Reg'l Sch. Dist. v. Diamond, 808 F.2d 987 (3rd Cir. 1986).
The Wright Court stated: "In both Sea Clammers and Smith v. Robinson, the statutes at issue themselves provided for private judicial remedies, thereby evidencing congressional intent to supplant the § 1983 remedy." Wright, 479 U.S. at 427. The Housing Act of 1937 did not. Applying this same distinction, the Third Circuit held that the TCA implicitly precluded an action under Section 1983 by creating a comprehensive remedial scheme that furnished private judicial remedies. Nextel Partners, 286 F.3d at 694.
The Third Circuit Court in Nextel Partners also relied on the TCA's silence on awarding attorney's fees. "We also find it important that the TCA makes no provision for attorney's fees, and it is of course `the general rule in this country that unless Congress provides otherwise, parties are to bear their own attorney's fees.'" Id. at 695, quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994). The Third Circuit Court reasoned that TCA defendants are usually small, rural municipalities, whereas TCA plaintiffs are often large corporations, and allowing TCA plaintiffs to recover attorney's fees might "significantly alter the Act's remedial scheme and thus increase the federal burden on local land-use regulation beyond what Congress intended." Id at 695.
The Eleventh Circuit Court reached a contrary conclusion based primarily upon the existence of the TCA's savings clause. The savings clause states:
This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, state, or local law unless expressly so provided in such Act or amendments.
Pub.L. No. 104-104, § 601()(1), 110 Stat. 56 (1996) (reprinted in 47 U.S.C. § 152 in historical and statutory notes). The Eleventh Circuit Court held that the public law enacted by Congress clearly forbids construing the TCA to modify, impair, or supercede any federal law, including 42 U.S.C. § 1983. ATT Wireless, 210 F.3d at 1328. The Eleventh Circuit recognized that the United States Supreme Court has found specific savings clauses not indicative of congressional intent regarding § 1983 actions, but with regard to the TCA's savings clause, the Eleventh Circuit Court held, "[t]he language of § 601(c)(1) means what it says: the TCA shall not be construed to have any implied effect on any federal laws." Id. at 1328.
The Eleventh Circuit Court discussed savings clause language construed by the Supreme Court in Sea Clammers. There, the Supreme Court found no congressional intent to preserve Section 1983 actions despite savings clause language in two separate acts. Sea Clammers involved the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act of 1972 and their respective savings clauses. "The Court discounted the savings clause language because legislative history clearly revealed that Congress intended to preserve further enforcement of specific antipollution standards only." ATT Wireless, 210 F.3d at 1328; Sea Clammers, 453 U.S. at 21, n. 31. The Supreme Court in Sea Clammers could find no congressional intent to preserve Section 1983 actions when it created so many specific statutory remedies within the statutes at issue. Sea Clammers, 453 U.S. at 20.
The Eleventh Circuit Court distinguished the Acts at issue in Sea Clammers from the TCA, finding that Congress took pains to show its intent that the TCA have no implied effect on Section 1983 causes of action. ATT Wireless, 210 F.3d at 1329. For that reason, the Eleventh Circuit Court interpreted § 601(c)(1) to preserve all federal causes of action unless expressly excluded within the TCA. Because Congress did not expressly exclude Section 1983 remedies, the court found that they remained available to plaintiffs. Id.
The Eighth Circuit Court has addressed the effect that a statute's savings clause has on other rights or laws. Minnesota Chapter of Associated Builders and Contractors, Inc. v. Minnesota Dep't of Pub. Safety, 267 F.3d 807 (8th Cir. 2001), addressed the effect that the savings clause contained in the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1144(d), had upon a Minnesota prevailing-wage law. The ERISA savings clause, very similar to § 601(c)(1) of the TCA, provided "[n]othing in this subchapter shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States." 29 U.S.C. § 1144(d). The Eighth Circuit Court, in response to an argument that a state statute was preempted by ERISA and not saved from preemption by ERISA's savings clause, held that the state statute was not saved from preemption by the savings clause because remedies were available to the plaintiffs under federal law. Id.
The Eighth Circuit Court addressed a savings clause from the Communications Act of 1934 in MCI Telecomm. Corp., v. Garden State Inv. Corp., 981 F.2d 385 (8th Cir. 1992). That savings clause provided, "Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." 47 U.S.C. § 414. The court stated that "Section 414 preserves causes of action for breaches of duties that are not created under the Communications Act." MCI Telecomm. Corp., 981 F.2d at 387, citing Comtronics, Inc., v. Puerto Rico Tel. Co., 553 F.2d 701, 708 n. 6 (1st Cir. 1977).
The savings clause at issue here, § 601(c)(1), is more similar to that analyzed by the Eighth Circuit court in Minnesota Chapter of Associated Builders. Section 601(c)(1) provides that the TCA shall not be construed to modify, impair, or supersede federal law unless expressly so provided. Application of the remedial scheme present within the TCA, 47 U.S.C. § 332(c)(7)(B)(v), for violations of rights provided to plaintiffs suing under the TCA does not "modify, impair or supercede" Section 1983. The TCA simply provides its own remedial avenue for those who allege that they have been injured by actions inconsistent with TCA's limitations on government action, and the TCA does not provide a stepping-stone for separate actions under Section 1983. This Court, therefore, agrees with the reasoning of the Third Circuit in Nextel Partners. The TCA creates its own remedial scheme for aggrieved persons and the remedies provided through §§ 1983 and 1988 are inoperable due to the remedial scheme within the TCA.
Congress could have specifically preserved a Section 1983 action within one of the three savings clauses of Section 601. It did not, however, and this Court concludes that remedies under Section 1983 are not available to plaintiffs in addition to the remedial scheme provided in the TCA. The Court finds the remedies within the TCA are sufficient to preclude TCA plaintiffs from seeking additional relief under 42 U.S.C. § 1983. An action for attorney's fees under 42 U.S.C. § 1988 will not be entertained because an action under § 1983 is precluded.
For all the reasons provided in this memorandum,
IT IS ORDERED:
Defendants' Motion to Dismiss the Plaintiff's Third Cause of Action (Filing No. 18) brought under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 is granted.