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Section 1983 Damages Are No Longer Available for Violations of Section 332 of the Telecom Act


When the City of Rancho Palos Verdes refused to issue a conditional use permit for respondent Mark Abrams’ house-mounted radio tower, Abrams filed an action against the city in the District Court for the Central District of California, seeking injunctive relief under the judicial review provision of the Telecommunications Act of 1996 (section 332(c)(7)(B)(v)). Abrams claimed that the permit denial (1) unreasonably discriminated against Abrams, in violation of section 332(c)(7)(B)(i)(I); (2) resulted in a prohibition of wireless service, in violation of section 332(c)(7)(B)(i)(II); and (3) was not supported by substantial evidence, in violation of section 332(c)(7)(B)(iii). Abrams also sought monetary damages and attorneys’ fees under 42 U.S.C. sections 1983 and 1988. The court found in favor of Abrams on all but the section 1983 damages claim. Abrams appealed the denial of the section 1983 damages claim in the Ninth Circuit, and the Ninth Circuit reversed. The City of Rancho Palos Verdes appealed to the United States Supreme Court.

The Supreme Court faced the following issue: does a violation of section 332(c)(7) of the Telecom Act entitle a plaintiff to damages under 42 U.S.C. section 1983? The Court, in a unanimous decision, held that it does not. Specifically, the Court determined that by providing a special remedial scheme in section 332(c)(7)(B)(v) of the Telecom Act, Congress did not intend plaintiffs to seek additional relief under section 1983.

The Law
The Telecom Act was intended to "accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition ... ." H.R. Cong. Rep. No. 458, 104th Cong., 2d Sess. 1 (1996). In furtherance of that goal, the Telecom Act places a number of restrictions on local governments. They are as follows:

(a) Section 332(c)(7)(B)(i)(I) prohibits actions by local government that result in unreasonable discrimination "among providers of functionally equivalent services."

(b) Section 332(c)(7)(B)(i)(II) prohibits actions by local governments that "prohibit or have the effect of prohibiting" the provision of wireless telecommunications services.

(c) Section 332(c)(7)(B)(ii) requires that state or local government act on permit applications within a "reasonable period of time."

(d) Section 332(c)(7)(B)(iii) requires that permit denials be supported by substantial evidence.

(e) Section 332(c)(7)(B)(iv) prohibits regulation of the placement, construction, and modification of personal wireless service facilities on the basis of environmental effects of radio frequency emissions.

Where an action by a local government results in a violation of any of the above restrictions, section 332(c)(7)(B)(v) authorizes "any person" adversely affected to file suit against the local government in federal or state court. The provision for judicial review directs courts to expedite the litigation of such actions and imposes a 30-day statute of limitations.

42 U.S.C. section 1983 arises in the context of an entirely different statute, the Federal Civil Rights Act of 1871. Section 1983 allows recovery of damages for deprivations, under color of law, of "any rights, privileges, or immunities secured by the Constitution and laws."

Section 1983 does not allow recovery for every violation of federal law, however. As the Supreme Court noted in Abrams, the federal statute at issue "must create an individually enforceable right in the class of beneficiaries to which [the plaintiff] belongs." Even if a plaintiff can make that showing, the defendant can rebut a presumption that section 1983 applies by a showing the Congress did not intend for plaintiffs to obtain a remedy under section 1983.

Such congressional intent is demonstrated where the statute at issue contains "an express, private means of redress" and no further indication that the remedial provision is intended to be complimentary to, not exclusive of, a section 1983 remedy.

The Law Applied to the Facts
In the case of the Telecom Act, the Court noted that section 332(c)(7)(B)(iv) constitutes a private judicial remedy demonstrating a congressional intent to exclude alternative remedies, such as a claim for damages under section 1983. The Court found further support for its conclusion in the words of the remedies provision of the Telecom Act itself. As noted above, section 332(c)(7)(B)(iv) contains its own 30-day statute of limitations and requires courts to "hear and decide" cases "on an expedited basis." Moreover, the Court noted that section 332(c)(7)(B)(iv) does not contain a provision allowing for recovery of attorneys’ fees. By contrast, section 1983 claims (1) need not be brought within 30 days; (2) need not be heard on an expedited basis; and (3) allow for recovery of attorneys’ fees. In short, the Court found that section 332(c)(7)(B)(v) and section 1983 were not mutually compatible remedies, and that, therefore, Congress did not intend that Telecom Act plaintiffs seek relief under anything but section 332(c)(7)(B)(v). The Court also noted that recovery of attorneys’ fees for violations of section 332(c)(7)(B) of the Telecom Act could result in significant fiscal impacts on municipalities, particularly since Telecom Act plaintiffs "‘are often large corporations or affiliated entities, whereas [Telecom Act] defendants are often small, rural municipalities.’"

What Does Abrams Mean for Wireless Telecommunications Carriers?
Abrams means that wireless telecommunications companies can no longer seek section 1983 damages or attorneys’ fees for violations of any of the section 332(c)(7)(B) restrictions on state and local government. Wireless telecommunications providers will have to be satisfied with injunctive and other forms of equitable relief. Notably, however, the Court’s decision does not apply to other Telecom Act violations, such as violations of section 253(a) (prohibiting statutes that "prohibit or have the effect of prohibiting" the ability of any entity to provide telecommunications service), or violations of other federal laws (e.g., violations of the Commerce Clause). While the courts are in disagreement on whether section 253(a) can be enforced through a private right of action, it is clear that that provision’s lack of a remedial scheme would place a section 253(c) claim outside the scope of the United States Supreme Court’s holding in Abrams. That said, the policy arguments cited by the Abrams Court might still weigh against obtaining section 1983 damages and attorneys’ fees, no matter where the underlying claim for relief may lie.

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