Cablevision of Boston, Inc. v. Public Improvement Commission of the City of Boston , 184 F.3d 88 ( 1999 )

NOONAN, Circuit Judge,

concurring in the result.

On February 8, 1996 the Telecommunications Act of 1996 became law. See Pub.L. No. 104-104, 1996 U.S.C.C.A.N. (110 Stat. 56) 161. The act was a major piece of legislation by the 104th Congress. It occupies 105 pages in the United States Code Congressional and Administrative Nexus, Vol. I, Laws (1996). It is a comprehensive and intricate piece of legislation. It reflects the input of government regulators, the various industry groups affected, and representatives of consumers and the general public. Inevitably it is a compromise, a work of balancing values. Cf. Amherst, N.H. v. Omnipoint Communications Enters., Inc., 173 F.3d 9, 13 (1st Cir.1999). Where it is silent, it is likely to be designedly so. See Stowell v. Ives, 976 F.2d 65, 70 n. 5 (1st Cir.1992).

The Telecommunications Act in dealing with electronic publishing by the Bell operating companies has a section entitled “Private right of action,” providing that any person claiming a violation of the new law on that subject “may file a complaint with the Commission [the Federal Communications Commission] or bring suit as provided in section 207 of this title.” 47 U.S.C. § 274(e). The cross-reference to § 207 is to a provision of law preceding the Telecommunications Act that is entitled “Recovery of damages” and declares that any person claiming to be damaged by any common carrier subject to this chapter “may either make complaint to the Commission [the F.C.C.] as hereinafter provided for, or may bring suit for the recovery of the damages ... in any district court of the United States of competent jurisdiction.” Id. § 207.

Dealing with illegal changes in subscriber carrier selections, the Telecommunications Act provides: “Any telecommunications carrier that violates the verification procedures described in subsection (a) of this section and that collects charges for telephone exchange service or telephone toll service from a subscriber shall be liable to the carrier previously selected ... in accordance with such procedures as the Commission may prescribe. The remedies provided by this subsection are in addition to any other remedies available by law.” Id. § 258(b).

Referring to the review by state commissions of agreements for interconnection between carriers, the Telecommunications Act states: “In any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirements of section 251 of this title and this section.” Id. § 252(e)(6).

These provisions of law are sufficient to demonstrate beyond doubt or cavil that when Congress intended in the Telecommunications Act of 1996 to provide a remedy in the federal courts for a violation of the Act it used language apt for that purpose. Congress has not used such language in § 253(c). In the sharpest contrast, the language relied on by Cablevision in seeking access to the federal courts by this suit reads as follows:

Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiseriminatory basis, if the compensation required is publicly disclosed by such government.

Id. § 253(c).

It reads the statute backwards to infer from “Nothing affects the authority ...,” the authorization of a private suit objecting to the exercise of that authority. A savings clause is interpreted as a clause permitting the imposition of liability. A safe harbor for state or local managers of public roads is turned into a trap for them and a spring gun for telecommunications providers. The language of § 253(c) is so far from the language Congress used when authorizing such suits that only violent wrenching of the text can serve to squeeze such a sense out of it.

Not only is this squeezing contrary to the plain meaning of the statute, it runs counter to the statutory scheme of § 253 itself. That section begins forthrightly, “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 interstate or intrastate telecommunications service.” Id. § 253(a). Subsection (b) then provides that a State may impose certain conditions “on a competitively neutral basis and consistent with section 254 of this section.” Id. § 253(b). The FCC is given authority by subsection (d) to preempt the enforcement of “any statute, regulation, or legal requirement that violates subsection (a) or (b).” Id. § 253(d).

The statutory scheme is evident: The Commission is to assure that state or local regulation does not frustrate the competitive policies the Act is designed to promote. There is no thought that a separate forum is furnished in the federal district courts. To find such a forum here is to destroy the delicate balance between the federal and the local that the Act has struck. See Amherst, 173 F.3d at 13.

Cablevision seeks to tease out of the silence as to the FCC’s jurisdiction over subsection (c) an implied right of action in the federal district courts. The silence is easily explained. If any state or local statute, regulation or requirement “has the effect” of prohibiting an entity from providing telecommunications service, subsection (a) is violated and the Commission under subsection (d) has authority to act. There is no need to provide a remedy under subsection (c). If Cablevision has a case for discriminatory, anti-competitive action by the City, subsection (d) has assigned the remedy to the FCC.

Cablevision’s only argument to the contrary is as counter-intuitive as its reading of the statute. Cablevision points to a version of the bill that was not passed as proof that subsection (c) was meant to afford access to the federal courts!

No circuit court has given heed to this argument. Abilene, Texas v. F.C.C., 164 F.3d 49 (D.C.Cir.1999), is a review of a decision of the Commission. It has nothing to say on the enforcement of § 253(c) except dicta that under both (b) and (c) there is “a large regulatory territory for State authority.” Id. at 53.

The intent of Congress not to provide a private cause of action, explicitly or implicitly, in § 253(c) is dispositive. See Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Cablevision has no basis for its suit under § 253(c). There is no occasion to take up the other issues thoughtfully explored by the opinion of the court. There is no reason to retain the state claim. There is no point in prolonging the possibility that § 253(c) provides a cause of action. There is no need to let the case go on. The district court should be directed to enter judgment for the defendants.