United States District Court, S.D. California
December 31, 2003.
SPRINT TELEPHONY PCS, L.P., a Delaware limited partnership, and PACIFIC BELL WIRELESS, LLC, a Nevada limited liability company, dba Cingular Wireless, Plaintiffs
COUNTY OF SAN DIEGO, a division of the state of California; GREG COX, in his capacity as a supervisor of the County of San Diego; DIANNE JACOB, in her capacity as a supervisor of the County of San Diego; PAM SLATER, in her capacity as a supervisor of the County of San Diego; RON ROBERTS, in his capacity as a supervisor of the County of San Diego; and BILL HORN, in his capacity as a supervisor of the County of San Diego, Defendants
The opinion of the court was delivered by: JUDITH KEEP, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
MOTION FOR JUDGMENT ON THE PLEADINGS CONSTRUED AS A MOTION
Defendants County of San Diego, Greg Cox, Dianne Jacob, Pam Slater,
Ron Roberts, and Bill Horn (collectively "defendants") filed a motion for
judgment on the pleadings for failure to state a claim on November 17,
2003. Plaintiffs, Sprint Telephony PCS and Pacific Bell Wireless, filed
an opposition to the motion for judgment on the pleadings on December 1,
2003. Defendants filed a reply on December 8, 2003. Both plaintiffs and
defendants are represented by counsel. I. Background
A. Factual Background
The following is taken from the pleadings and is not to be construed as
findings of fact by the court.
Plaintiffs are federally licensed providers of commercial mobile radio
service. See Complaint ¶ 1. They seek to
implement a wireless telecommunications network throughout San Diego
County and the nation. See id. ¶ 2. In order to
develop such a network, plaintiffs intend to construct the infrastructure
necessary to provide commercial mobile radio service, which includes the
construction and installation of wireless antenna facilities within San
Diego County. See id. ¶ 1. According to
plaintiffs, the federal Telecommunications Act of 1996 ("TCA") authorizes
them to install wireless antenna facilities in San Diego County.
See id. ¶ 2. Plaintiffs allege, however, that a
San Diego County Ordinance, "An Ordinance Amending the San Diego County
Zoning Ordinance Relating to Wireless Telecommunications Facilities,"
("the Ordinance"), inhibits their ability to install these wireless
antenna facilities, thereby violating the TCA. See id. ¶ 2.
The TCA, they contend, preempts the Ordinance.
By enacting the TCA, Congress adopted a framework for the deployment of
a national, technologically advanced communication system. See
id. ¶ 15. The TCA was intended, in part, to promote
competition and deregulation in local telecommunications markets.
See id. ¶ 16. Accordingly, the TCA preempts local
authority to prohibit or effectively prohibit the provision of
telecommunications service. See id. ¶ 21.
Congress, however, did establish "safe harbor" provisions that allow
state and local governments to retain some oversight of the development
of such a network in their counties. See id. ¶
The Ordinance establishes "comprehensive guidelines for the placement,
design, and processing of wireless telecommunications facilities in all
zones within the County of San Diego." See id. ¶
29. Plaintiffs allege that the Ordinance exceeds the authority reserved
to local government because it prohibits or effectively prohibits the
provision of telecommunications service and does not fall within a "safe
harbor." See id. ¶ 29(a), 31-32. Therefore,
plaintiffs state four causes of action arising from the county's implementation of
the Ordinance. First, plaintiffs claim defendants violated the TCA's
prohibition of provision of telecommunications service, 47 U.S.C, §
253(a). See id. ¶ 34-36. Plaintiffs' second cause
of action alleges that defendants violated section 253(c)'s prohibition
against discriminatory regulation of a public right-of-way and the
Fourteenth Amendment. See id. ¶ 37-40. Third,
plaintiffs claim defendants violated 42 U.S.C. § 1983. Finally,
plaintiffs sue for a declaratory judgment. See id.
B. Procedural Background
On September 9, 2003, defendants filed a motion to dismiss for failure
to state a claim. Plaintiffs filed an opposition to defendants' motion on
September 30, 2003, and defendants filed a reply memorandum on October 6,
2003. On October 20, 2003, after considering the parties' briefs, the
court dismissed with prejudice plaintiffs' second cause of action for
violation of 47 U.S.C. § 253(c), October 20. 2003 Order
("Order") at 8. The court further dismissed plaintiffs' second cause
of action for violation of the Fourteenth Amendment without prejudice.
Id. The court denied defendants' motion to dismiss the first,
third, and fourth causes of action.
On November 17, 2003, defendants filed a motion for judgment on the
pleadings, again relying on a defense of failure to state a claim.
See Defendants Motion for Judgment on the Pleadings
("Defendants' Motion'") at 2. It is this motion that is now before
the court. Defendants request that the court now dismiss plaintiffs'
first and third causes of action for failure to state a claim upon which
relief may be granted. See id.
II. Standard of Review
A. Defendants' Motion for Judgment on the Pleadings
Defendants filed a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure ("FRCP") 12(c). Plaintiffs contend that
defendants' motion is properly considered a motion to dismiss pursuant to
FRCP 12(b)(6). See Plaintiff's Opposition to Defendants'
Motion for Judgment on the Pleadings ("Opposition") at 2. A Rule 12(c) motion for judgment on the pleadings and a Rule 12(b)(6)
motion to dismiss are virtually interchangeable. See William W.
Schwarzer, et al., Federal Civil Procedure Before Trial §
9:319 (2003). In fact, the same standard applies to both. See
Hal Roach Studios. Inc. v. Richard Feiner & Co., Inc.,
896 F.2d 1542, 1550 (9th Cir. 1989) (stating standard for motion for judgment
on the pleadings); Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1988) (stating standard for motion to dismiss).
The only differences between the two motions are (1) the timing (a motion
for judgment on the pleadings is usually brought after an answer
has been filed, whereas a motion to dismiss is typically brought
before an answer is filed), see Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999), and (2) the party
bringing the motion (a motion to dismiss may be brought only by
the party against whom the claim for relief is made, usually the
defendant, whereas a motion for judgment on the pleadings may be brought
by any party). See In re Villegas, 132 B.R. 742,
744-45 (9th Cir. BAP 1991). Because the two motions are analyzed
under the same standard, a court considering a motion for judgment on the
pleadings may give leave to amend and "may dismiss causes of action
rather than grant judgment. See, Federal Civil Procedure
Before Trial, supra at § 9:341; Moran v. Peralta
Cmty College Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993). The mere
fact that a motion is couched in terms of Rule 12(c) does not prevent the
district court from disposing of the motion by dismissal rather than
judgment. See Amersbach v. City of Cleveland,
598 F.2d 1033, 1038 (6th Cir. 1979). Therefore, the court considers
defendants' motion as it would a motion to dismiss, and declines to grant
judgment at this point.
B. Legal Standard
The Federal Rules of Civil Procedure, Rule 12(b)(6) and Rule 12(c),
allow a court to dismiss a complaint for failure to state a claim upon
which relief can be granted. Such a dismissal can be based on either the
lack of a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. See
Balistreri, 901 F.2d at 699; Hal Roach Studios, 896
F.2d at 1550. In applying this standard, the court's review is limited to
the contents of the complaint. See Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); Hal Roach
Studios, 896 F.2d at 1550. The court must accept all factual
allegations pleaded in the complaint as true, construing and drawing all reasonable inferences from the allegations in favor
of the nonmoving party. See Cahill v. Liberty Mutual Ins.
Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Wagner v. Pro.
575 F.2d 882, 884 (DC Cir. 1976). However, the court need not accept as
true unreasonable inferences or conclusory legal allegations cast in the
form of factual allegations. See Western Mining Council v.
Watt, 643 F.2d 618. 624 (9th Cir. 1981). cert. denied.
454 U.S. 1031 (1981). Moreover, the court does not have to accept as true
conclusory allegations that contradict facts that may be judicially
noticed or that are contradicted by documents referred to in the
complaint. See, e.g., Steckman v. Hart Brewing Inc.,
143 F.3d 1293, 1295-96 (9th Cir. 1998).
A. Threshold Issue: Court's Consideration of Defendants'
Defendants submitted their motion for judgment on the pleadings without
thoroughly addressing the fact that they had already raised the defense
of failure to state a claim in their earlier motion to dismiss.
See Defendants' Memorandum of Points and Authorities in
Support of their Motion for Judgment on the Pleadings ("Defendants'
Memorandum") at 3, n. 1 (stating only,
"[b]ecause the County asserts that plaintiffs' first and third causes
of action fail to state claims upon which relief can be granted, the
County has not waived these arguments by not raising them in its motion
to dismiss. Fed.R.Civ.P. 12(g) and 12(h)(2)."). In their opposition,
plaintiffs asserted four reasons that the court should refuse to even
consider defendants' motion. See Opposition at 2-6.
First, plaintiffs contend that defendants' motion is not a proper 12(c)
motion. Id. at 2. Second, they assert that FRCP 12(g) precludes
defendants from bringing their motion. Id. at 3. Third, they
argue that the "law of the case" doctrine bars consideration of
defendants' motion. Id. at 4. Finally, they contend that there
is no good cause for defendants' motion, and therefore, the court, in its
discretion, need not consider the motion. Id. at 5. Defendants respond to
plaintiffs' arguments more thoroughly in their reply. See
Defendants' Reply Memorandum at 1-3.
i. Propriety of 12(c) Motion
Plaintiffs argue that defendants' Rule 12(c) motion is improper because
defendants cannot show that plaintiffs are entitled to no relief under any state of
facts that could be proven in support of plaintiffs' claims.
See Opposition at 2. As discussed above, the court
will not grant judgment as a matter of law at this point. See
supra Part II(A). The court has decided to consider defendants'
motion as it would a motion to dismiss, granting only dismissal with
leave to amend rather than judgment. Id. Therefore, whether
defendant properly brought this motion under 12(c) is irrelevant and the
court will not make a determination as to this issue.
ii. FRCP 12(g) and 1200(h)(2)
Rule 12(g) states in part:
If a party makes a motion under this rule but
omits therefrom any defense or objection then
available to the party which this rule permits to
be raised by motion, the party shall not
thereafter make a motion based on the defense or
objection so omitted, except a motion as provided
in subdivision (h)(2) hereof on any of the grounds
Fed.R.Civ.P. 12(g), Rule 12(h)(2) states: "[a] defense of failure to
state a claim upon which relief can be granted . . . may be made in
any pleading permitted or ordered under Rule 7(a), or by motion for
judgment on the pleadings, or at the trial on the merits," Fed.R. Civ.
Plaintiffs argue that Rule 12(g) precludes successive motions to
dismiss and that defendants earlier motion to dismiss and the instant
motion for judgment on the pleadings are successive because they both
raise the same defense: failure to state a claim upon which relief can be
granted. See Opposition at 3. Moreover, plaintiffs
assert that the exception provided in Rule 12(h)(2) allowing defendants
to raise a defense of failure to state a claim in a motion for judgment
on the pleadings is implicated only if the defense was omitted
from their earlier motion. Id. at 4. Plaintiffs conclude
that, because defendants did not omit their defense of failure
to state a claim in their earlier motion, but rather raised the defense
but failed to articulate every ground in support of that defense,
Rule 12(h)(2) does not apply and defendants may not again raise the
defense of failure to state a claim. See id. at 4.
In response, defendants propose an alternative interpretation of
Rules 12(g) and 12(h)(2). See Defendants' Reply Memorandum
at 1-2. Defendants argue that 12(h)(2) is an exception to Rule 12(g)'s
consolidation requirement. As such, they argue that 12(h)(2) permits
defendants to raise new arguments related to certain specified defenses,
failure to state a claim among them, in a motion for judgment on the pleadings at any time, even if they
already raised the defense in an earlier motion to dismiss. See
id. at 2.
Both parties base their interpretations on a reading of the specified
provisions and neither provides binding authority that is specifically on
point. However, the court recognizes a tension and inconsistency between
the policy underlying Rule 12(g)'s consolidation requirement and
Rule 12(h)(2)'s apparent exception for motions for judgment on the pleadings.
"`The philosophy underlying [Rule 12(g)] is simple and basic: a series of
motions should not be permitted because that results in delay and
encourages dilatory tactics.'" Aetna Life Ins. Co, v. Alla Medical
Servs., Inc., 855 F.2d 1470, 1475, n.2 (9th Cir. 1988) (quoting 2A
Moore et al., Moore's Federal Practice ¶ 12.22 at 12-192
(2d ed. 1987)). It is inconsistent with this policy to find that
defendants may avoid 12(g)'s consolidation requirement merely by framing
their motion as a motion for judgment on the pleadings. Further, it is a
waste of judicial resources to consider motion after motion in which
defendants raise the same defense over and over, each time testing a new
argument. Allowing such a tactic means that defendants potentially could
stall litigation indefinitely as long as they can conjure up a new
argument on which to base a failure to state a claim defense. The court
considers defendants' failure to raise all of its arguments, with respect
to its defense of failure to state a claim, sloppy at least. However, the
court is not convinced by the authority provided by plaintiffs that the
court need not consider the merits of defendants' motion.
iii. Law of the case doctrine
Plaintiffs also argue that defendants' motion is barred by the "law of
the case" doctrine. See Opposition at 4. The law of
the case doctrine precludes a court from "reconsidering an issue that has
already been decided by the same court or a higher court in the identical
case." Opposition at 4 (citing United States v.
Alexander, 106 F.3d 874, 876 (9th Cir. 1997)). The court rejects
plaintiffs' argument because, although the court previously considered
defendants' failure to state a claim defense in its earlier
order, the court has not considered the issues defendants now
raise in their motion presently before the court, specifically, whether
§ 253 of the TCA provides a private right of action, whether §
253 gives rise to a § 1983 claim, and whether the individual
defendants are immune from liability. See October 20, 2003
Order at 3-9; Defendants' Motion for Judgment on the Pleadings at 2, Because the court has not yet
considered these specific issues, the court finds that applying the "law
of the case" doctrine is inappropriate in these circumstances.
iv. Good Cause
Plaintiffs also contend that defendants have failed to demonstrate that
good cause exists for the court to consider their motion. See
Opposition at 5. "`Under [FRCP] 12(c), good cause for such a
motion must be shown, and ruling on the motion is a matter within the
Court's discretion.'" Opposition at 5 (quoting Provenzano
v. United States, 123 F. Supp.2d 544, 556 (S.D. Cal 2000). However,
as discussed above, the court has decided to consider defendants' motion
as it would a motion to dismiss. See supra Part H(A).
As a result, the court finds that it would be inappropriate to hold
defendants to a standard intended for Rule 12(c) motions. Moreover,
because the legal issues presented in defendants' motion are not
frivolous, the court finds, in its discretion, that a consideration of
the issues would not be inappropriate. Having rejected all of plaintiffs'
arguments, the court now turns to the merits of defendants' motion.
B. Private Right of Action Under Section 253(a)
Because the court's analysis of this issue requires consideration of
various subsections of section 253, the court includes section 253,
subsections (a) through (d), in full. Section 253 includes the following
§ 253. Removal of Barriers to Entry
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 any interstate or intrastate
(b) State regulatory authority
Nothing in this section shall affect the ability
of a State to impose, on a competitively neutral
basis and consistent with section 254 of this
section, requirements necessary to preserve and
advance universal service protect the public
safety and welfare, ensure the continued quality
of telecommunications services, and safeguard the
rights of consumers.
(c) State and local government authority Nothing in this section affects the authority
of a State or local government to manage the
public rights-of-way on a nondiscriminatory basis,
if the compensation required is publicly disclosed
by such government.
If, after notice and an opportunity for public
comment, the Commission determines that a State or
local government has permitted or imposed any
statute, regulation, or legal requirement that
violates subsection (a) or (b) of this section,
the Commission shall preempt the enforcement of
such statute, regulation, or legal requirement to
the extent necessary to correct such violation or
47 U.S.C. § 253.
Defendants seek dismissal of plaintiffs first cause of action for
violation of § 253(a) on the ground that § 253(a) does not create
a private right of action. See Defendants' Motion at
3. Plaintiffs argue that the weight of authority indicates otherwise.
See Opposition at 7-16. The authority presented by
both parties demonstrates that there is no binding authority that
squarely addresses and resolves this issue.
Defendants cite three non-binding cases in support of their argument,
each of which concludes that no private right of action exists to enforce
§ 253(a). See Qwest Communications v. City of
Berkeley, 202 F. Supp.2d 1085 (N.D. Cal. 2001); Cablevision of
Boston, Inc. v. Public Improvement Comm'n, 184 F.3d 88 (1st Cir.
1999): Pacific Bell v. City of Hawthorne, 188 F. Supp.2d 1169
(C.D. Cal. 2001). Plaintiffs, however, rely on a different set of
authority to support the contrary proposition: that § 253 does create
a private right of action. See City of Auburn v. Qwest
Corp., 260 F.3d 1177 (9th Cir. 2001) (allowing a private party to
challenge a local ordinance and concluding that the ordinance was
contrary to § 253 and therefore preempted by § 253); Cox
Communication PCS L.P. v. City of San Marcos, 204 F. Supp.2d 1272
(S.D. Cal. 2002) (reasoning that § 253 provides a cause of action
against local regulations); TCG Detroit v. City of Dearborn,
206 F.3d 618, 624 (6th Cir. 2000) (holding that § 253(c) authorizes a
private right of action); Bellsouth Telecommunications. Inc. v. Town
of Palm Beach, 252 F.3d 1169, 1191 (11th Cir. 2001) (holding that a
private right of action exists under § 253 if the ordinance at issue
potentially implicates § 253(c)); New Jersey Payphone Ass'n.
Inc. v. Town of West New York, 299 F.3d 235, 241 (3d Cir. 2002)
(assuming, for purposes of this case only, that a private right of actions exists under § 253).
Because there is no clear authority binding the court on this issue,
the court turns to the analysis established by the Supreme Court to
determine whether a private right of action exists under § 253(a). In
Cort v. Ash, the Supreme Court set forth four factors relevant
to a determination of "whether a private remedy is implicit in a statute
not expressly providing one." Cort v. Ash, 422 U.S. 66, 78
(1975). The factors are as follows: (1) whether the plaintiff is "one of
the class for whose especial benefit the statute was enacted,"
id. (citing Texas & Pacific R. Co. v. Rigsby,
241 U.S. 33, 39 (1916); (2) whether there is any indication of legislative
intent, explicit or implicit, either to create such a remedy or to deny
one; (3) whether implying a private remedy is consistent with the
underlying purposes of the legislative scheme; and (4) whether the cause
of action is in an area of law traditionally the concern of the states.
Id. Since the Court established this analysis, it has become
somewhat less willing to imply a private right of action. See
Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979).
A majority of the Court, however, still agrees that Cort v.
Ash is the appropriate analysis for courts to employ. See
Thompson v. Thompson, 484 U.S. 174, 188 (1988) (Scalia, J.,
concurring in the judgment). Thus, the Court's adoption of a new
"stricter standard of congressional intent," see
Touche Ross & Co., 442 U.S. at 578, appears to require some
affirmative evidence of congressional intent, in "the language and focus
of the statute, its legislative history, and its purpose." Id.
at 575-76. The court now turns to this analysis.
i. Plaintiffs as "One of the Class for Whose Especial Benefit
the Statute was Enacted"
Plaintiffs contend, and defendants do not dispute, that plaintiffs,
commercial mobile radio service providers, are among the class for whose
benefit section 253(a) was enacted. See Opposition at
12; Defendants' Memorandum at 3. As evidenced by its title, the
Telecommunications Act clearly governs the telecommunications industry,
of which plaintiffs, telecommunications service providers are members.
More specifically, the statute specifically benefits telecommunications
providers, like plaintiffs, by restricting the authority of states and
localities to regulate the industry. See
47 U.S.C. § 253(a). Thus, plaintiffs are clearly among the class for
whose especial benefit the TCA was enacted and this factor weighs
towards implying a private right of action from § 253(a). ii. Indication of Legislative Intent
The parties disagree as to whether Congress intended to create or deny
a private cause of action under § 253(a). See
Defendants' Memorandum at 4; Opposition at
12-14; Defendants' Reply at 7. Both parties turn first to the
plain language of the statute. Plaintiffs point out that § 255,
"which is in the same Title, Chapter, Subchapter, and Part as section
253," expressly foreclosed a private right of action under that
provision. Opposition at 12-13. Therefore, they argue, when
Congress intends to foreclose a private right of action in the TCA, it
does so explicitly. Congress did not foreclose the right explicitly, they
conclude, thus the omission is affirmative evidence of legislative intent
to allow a private right of action. Id. Defendants, however,
cite § 207 of the TCA, in which Congress explicitly permitted a
private right of action. Defendants' Memorandum at 4. Hence,
they conclude, contrary to plaintiffs' assertion, that when Congress
intends to create a private right of action, it does so explicitly. These
arguments carry equal weight, and as such they do not provide affirmative
evidence that Congress intended to create a private right of action under
§ 253(a). The court, therefore, turns to the legislative history.
In the legislative history, Senator Gorton states that § 253(c)
"preserves to local governments control over their public rights of way.
It accepts the proposition . . . that these local powers should be
retained locally, that any challenge to them take place in the Federal
district court in that locality and that the [FCC] not be able to preempt
such actions." 141 Cong. Rec. S8213 (June 13, 1995). Plaintiffs rely on
this section to support their argument that Congress intends that a
private right of action be available under § 253.
Opposition at 13. Defendants, however, attempt to restrict the
scope of Senator Gorton's comments, arguing that the statements address
only the narrow issue of the interplay between §§ 253(c) and 253(d)
and in no way implicate § 253(a). Defendants' Reply at 7.
Because § 253(d) provides for FCC enforcement of §§ 253(a)
and (b), but not for § 253(c), defendants argue, Congress must have
intended to create a private right of action for § 253(c), but not
for § 253(a). Id.
The court does not find defendants' arguments persuasive. Senator
Gorton's remarks undoubtedly indicate that he envisioned challenges to
section 253(c) taking place in district courts. See 141 Cong.
Rec. S8213 (June 13, 1995) ("[A]ny challenge . . . [should] take place
in the . . . district court in that locality."). Further, Senator Gorton clearly
is not talking about challenges by the FCC because, after stating that
challenges should take place in local district courts, he expresses that
the FCC "[will] not be able to preempt such actions." Id. Thus,
the actions of which Senator Gorton speaks must be actions brought by
private parties or persons.
Next, in considering the Senator's remarks in conjunction with §
253 as a whole, the court finds that it makes no sense to interpret his
remarks as applying only to subsection (c), and not to § 253 more
broadly. As this court addressed in its order addressing defendants'
earlier motion to dismiss, § 253(c) is a safe harbor provision that
is implicated only once a violation of § 253(a) has been established.
See October 20. 2003 Order at 7-8. The court relied
on interpretations of § 253 by both the Ninth Circuit and the FCC in
reaching this conclusion. See Order at 7-8.
Specifically, the court quoted the Ninth Circuit reasoning that "[o]nly
regulations that do not fall within a safe harbor provision, such as
§ 253(c) are preempted." See id. at 7 (quoting
City of Auburn, 260 F.3d at 1177). The court also quoted the
FCC, which stated, "parties should first describe whether the challenged
requirement falls within the proscription of section 253(a); if it does,
parties should describe whether the requirement nevertheless is
permissible under other sections of the statute, specifically sections
253(b) and (c)." See id. (quoting 13 FCC Rcd 22971
(1998)). Thus, if § 253(c) is a safe harbor (as this court has
concluded it is), then § 253(c) is never implicated unless §
253(a) is considered first, because, as a safe harbor, § 253(c) is an
exception to or qualification of § 253(a)'s blanket prohibition.
Therefore, the only way Senator Gorton's intent that private challenges
to § 253(c) be heard by district courts can be carried out is if this
court first hears the prerequisite challenge to § 253(a). The court
concludes that Senator Gorton's remarks, made in the legislative history,
though focused on § 253(c), naturally implicate § 253(a), and as
such are affirmative evidence of Congress's intent to make § 253(a)
privately enforceable. The court concludes that this factor weighs
towards implying a private right of action under § 253(a).
iii. Consistency with Underlying Purposes of Legislative
Plaintiffs argue that allowing them to bring a private right of action
under § 253(a) is consistent with the purpose of the TCA. Defendants
disagree. The Ninth Circuit states that the TCA "was passed to promote
competition among and reduce regulation of telecommunications providers." City of Auburn, 260 F.3d at 1170. The full
title reflects the same, as it is titled: "An Act 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." Id.
Further, the conference committee report notes that "the purpose of the
statute is to provide for a `procompetitive, de-regulatory national
policy framework.'" Id. (citing H.R.Rep. No. 104-458 (1996)).
Defendants argue that because Congress intended that the FCC enforce
§ 253, allowing a private right of action is inconsistent with this
intent. See Defendants' Memorandum at 4. The court
finds this argument unpersuasive. Defendants state as a foregone
conclusion that Congress intended only the FCC to enforce §
253's preemption of state and local regulations. Id. In so
doing, they essentially ask the court to accept their conclusion that
only the FCC may enforce § 253(a) and to then rely on that conclusion
to determine that only the FCC may enforce § 253(a). Such an argument
is conclusory and lacks support. Moreover, whether Congress intended only
the FCC to enforce § 253(a) is the very issue the four factor
Cort v. Ash test is intended to resolve and the analysis
through which this court proceeds. Additionally, defendants' argument
revolves around Congress's intent with respect to the narrow issue of
whether to allow a private right of action, when the focus of this factor
is Congress's underlying purpose in enacting the legislative scheme.
See 47 U.S.C. § 253(a).
Next, defendants' position in their briefs and at oral argument was
that possible enforcement by the FCC and the availability of suit for
injunctive relief pursuant to the Supremacy Clause are remedies adequate
to support § 253(a). See Defendants' Memorandum
at 3. The court finds that such a limitation on available remedies is
inconsistent with the underlying purpose of the legislative scheme.
Although Senator Feinstein expressed concern about the "costs that would
be imposed on local governments if they were required to travel
frequently to Washington, D.C. to defend their actions before the FCC,"
see Defendants' Memorandum at 8 (citing 141 Cong.
Rec. S8170 (June 12, 1995), the court also considers the potential costs
to telecommunications companies of challenging ordinances across the
country only on the basis of the Supremacy Clause, and therefore, only
recovering injunctive relief. Such costs could certainly be large and even prohibitive. Restricting the availability of remedies under
§ 253 results in limiting the benefits telecommunications providers
and, therefore, consumers, receive from the TCA. The court finds that
such a remedial scheme is inconsistent with the purpose of the
legislative scheme, namely to "secure lower prices and higher quality
services for American telecommunications consumers and encourage the
rapid deployment of new telecommunications technologies." City of
Auburn, 260 F.3d at 1170 (citing H.R.Rep. No. 104-458 (1996)). The
court concludes that, in comparing these two alternatives, allowing a
private action is more consistent with the underlying purpose of the
legislative scheme than disallowing it.
Consideration of the potential consequences of denying a private right
of action under § 253 further supports the court's conclusion.
According to § 253(d), the FCC may enforce § 253(a) only after
"notice and an opportunity for public comment." 47 U.S.C. § 253(d).
Even then, the FCC may only preempt the state or local regulation.
See id. Thus, no monetary damages are available.
Further, a backlog in enforcement could cause the FCC to take several
years to consider whether a state or local regulation is preempted. In
the meantime, the telecommunications community might give up on
developing the technology and installing it in the San Diego area and
other areas with similar ordinances. The court finds that this likely
result is certainly contrary to the intended purpose of the TCA and,
therefore, is further support for allowing a private right of action
under § 253(a).
The court, therefore, agrees with plaintiffs that allowing plaintiffs
to bring a private action is consistent with the stated legislative
purpose of reducing regulation and creating a national framework for the
telecommunications industry. This factor, therefore, weighs in favor of
allowing a private right of action under § 253(a).
iv. Area of Law Traditionally the Concern of the States
Like the first factor, plaintiffs contend and defendants do not dispute
that the matter involved is not an area of law of prevailing concern to
the states. See Opposition at 15; Defendants'
Memorandum at 3. As its language demonstrates, the TCA is clearly
national in scope. 47 U.S.C. § 253(a) ("No State or local statute or
regulation, or other State or local legal requirement, may
prohibit. . . ."). The Ninth Circuit has interpreted the statute and
reached a similar conclusion. See City of Auburn, 260 F.3d at 1175
("[C]ertain aspects of telecommunications regulation are uniquely the
province of the federal government and Congress has narrowly
circumscribed the role of state and local governments in this arena.").
The court concludes, therefore, that this factor weighs towards implying
a private right of action.
The court analyzed each factor of the Cort v. Ash test and
finds that each weighs in favor of implying a cause of action. The court
therefore concludes that Congress impliedly created a private right of
action under § 253(a).
C. Section 1983 Right of Action
Plaintiffs bring their third cause of action for violation of
42 U.S.C. § 1983. Plaintiffs allege violation of a federal statute,
47 U.S.C. § 253, as a basis for their section 1983 cause of action.
See Complaint at ¶ 42. Section 1983 imposes
liability on anyone who, under color of state law, deprives a person "of
any rights, privileges, or immunities secured by the Constitution and
laws." 42 U.S.C. § 1983; Blessing v. Freestone,
520 U.S. 329, 340 (1997). The Supreme Court has held that a § 1983 suit is
available anytime the Constitution or a federal statute has allegedly
been violated. See Maine v. Thiboutot, 448 U.S. 1 (1980). Since
Maine v. Thiboutot, however, the Court has articulated two
exceptions that narrow somewhat the wide availability of § 1983.
First, in order to seek redress through § 1983, a plaintiff must
assert the violation of a federal right, not merely a violation
of federal law. Blessing, 520 U.S. at 340 (citing
Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106
(1989). Second, § 1983 may not be used to enforce statutes that
explicitly or implicitly preclude § 1983 litigation. Smith v.
Robinson, 468 U.S. 992, 1005, n.9 (1984) (citing Middlesex
County Sewerage Authority v. National Sea Clammers Ass'n.,
453 U.S. 1 (1981)).
i. Federal Right
The Supreme Court considers three factors relevant in determining
whether a particular statutory provision gives rise to a federal right.
See Blessing, 520 U.S. at 340-41. First, Congress
must have intended the provision in question to benefit the plaintiff.
Id. (citing Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 430
(1987)). Second, the right allegedly protected by the statute must not be
so "vague and amorphous" that its enforcement would strain judicial
competence. Id. at 431-32 (citing Wright, 479 U.S. at
430-31). Third, the statute must unambiguously impose a binding
obligation on the states. Id. at 329 (citing Wilder v.
Virginia Hospital Ass'n., 496 U.S. 498, 510-11 (1990).
First, as discussed above with respect to implying a cause of action
under § 253(a), in the instant case, Congress intended the TCA to
benefit telecommunications providers like plaintiffs. The full title of
the Act is "An Act 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." City of Auburn, 260 F.3d at
1170 (citing H.R.Rep. No. 104-458 (1996)). It is clear from the plain
language of the statute's title that consumers are the primary intended
beneficiaries of the TCA. Yet the companies who provide
telecommunications services to consumers are the means by which the
statute may reach its desired end of lower prices and higher quality
services for consumers. As such, telecommunications companies are also
intended beneficiaries of the TCA, even if only secondarily. The Ninth
Circuit apparently agrees. See City of Auburn, 260
F.3d at 1170 (stating that the TCA "was passed to promote competition
among and reduce regulation of telecommunications providers."). Thus,
plaintiffs, telecommunications providers, are intended beneficiaries of
Second, § 253 of the TCA has been interpreted and enforced on
multiple occasions, both by the Ninth Circuit and other courts in this
district. See, e.g., City of Auburn, 260 F.3d at
1170-80; Cox Communications PCS L.P. v. City of San Marcos,
204 F. Supp.2d 1272, 1278-82 (S.D. Cal. 2002). Enforcement of section 253,
therefore, does not strain judicial competence, although I concede I may
lack the competence of my brothers and sisters on the bench, as
interpreting § 253 is straining me.
Third, the TCA unambiguously imposes a binding obligation on
municipalities. In order to unambiguously impose a binding obligation,
the provision must indicate "more than a confessional preference."
Wright, 479 U.S. 418, 423 (1987). That is, it "must be couched
in mandatory, rather than precatory, terms." Blessing, 520 U.S. at 341.
Section 253(a) states: "[n]o state or local statute or regulation
. . . may prohibit or have the effect of prohibiting the ability of
any entity to provide any interstate or intrastate telecommunications
service." 47 U.S.C. § 253(a). This language is unambiguous in its
intent to impose a binding obligation on the states because it states a
definitive prohibition, not a mere preference. Accord Cox
Communications, 204 F. Supp.2d at 1281-82 (concluding that 253(a)
imposes a binding obligation). Thus, the court concludes that § 253
creates a federal right.
ii. Explicit or Implicit Preclusion
Once it is established that a statute creates a federal right, a
rebuttable presumption that the right is enforceable under section 1983
arises. See Blessing, 520 U.S. at 341. More
specifically, there is a presumption in favor of availability of §
1983 and the burden rests on the defendant to demonstrate "by express
provision or other specific evidence from the statute itself that
Congress intended to foreclose [1983 litigation]." Wright, 479
U.S. at 424.
a. No § 253(a) Private Right of Action
Defendants first attempt to rebut the presumption by arguing that there
is no private right of action under § 253(a), and that, therefore,
plaintiffs only claim under § 253(a) is a claim for preemption.
Defendants' Memorandum at 6. This is relevant, they contend,
because a claim for preemption based on the Supremacy Clause does not
give rise to a § 1983 claim because the "Supremacy Clause does not,
of its own force, create rights enforceable under section 1983." Id.
(citing Gemtel Corp. v. Cmty. Redevelopment Agency,
23 F.3d 1542, 1546-47 (9th Cir. 1994). This argument fails to rebut the
presumption in favor of a § 1983 claim because, as discussed above,
the court concludes that § 253(a) does create a private right of
action. See supra Part m(B). Moreover, as analyzed
under the three part Wright test, the court concludes that
§ 253(a) does create a federal right rather than a mere statutory
right. See supra Part III(C)(i). This argument, therefore, does
not rebut the presumption that a right of action under § 1983 is
b. Legislative History
Defendants rely next on Qwest Corp. v. City of Santa Fe,
224 F. Supp.2d 1305 (D.N.M. 2002) to support their argument that Congress
intended to foreclose litigation under § 1983. See Defendants' Memorandum at 7. In concluding that Congress
foreclosed § 1983 litigation in the TCA, the court in City of
Santa Fe relied on legislative history of the TCA in which Senator
Feinstein expressed "concerns about costs that would be imposed on local
governments if they were required to travel frequently to Washington,
D.C. to defend their actions before the FCC." See
Defendants' Memorandum at 8 (citing 141 Cong. Rec. S8170 (June
12, 1995). The City of Santa Fe court took from Senator
Feinstein's remarks that § 253 does not give rise to a § 1983
claim because allowing § 1983 claims would mean local governments
could potentially be required to pay their opponent's attorney fees."
Qwest Corp. v. City of Santa Fe. 224 F. Supp.2d 1305, 1315-16
(N.D. Cal. 2002), Attorney fees, this court agrees, could increase the
cost to local governments in much the same way travel expenses could.
However, although Senator Feinstein clearly expresses concern about the
costs associated with enforcing the TCA before the FCC in Washington, she
does not indicate that no mechanism can be used to enforce it because all
increased costs to local governments are prohibited by the TCA. Hence,
the legislative history defendants cite is too attenuated to be
persuasive on this issue. Moreover, despite the expressed concern
regarding the costs of enforcement, Congress clearly still intends that
the FCC enforce the TCA. See 47 U.S.C. § 253(d). Thus, to
conclude that because § 1983 provides for attorney fees Congress must
intend for no private enforcement is inconsistent with Congress'
demonstrated desire for enforcement despite its costs.
Plaintiffs cite "legislative history" that is much more specific to the
issue at hand. The history they cite states that "Section 601(c) [of the
TCA] precludes any party from arguing that the 1996 [TCA] modifies,
impairs, or supersedes any existing federal . . . law by implication.
The [TCA] is to be construed as modifying an existing law only when it
expressly so states." Opposition at 20 (citing Robert E.
Emertitz et al., The Telecommunications Act of 1996 Law &
Legislative History 54 (1996)). Such remarks certainly reflect
an intent by Congress to leave available a § 1983 remedy. However, in
its review of the legislative history, the court is unable to find this
particular quote and notes that plaintiffs cite a secondary source rather
than the history itself. If this statement is in the legislative history,
it certainly bolsters the court's determination. Even without it, the
court finds defendants' argument insufficient to rebut the presumed availability of § 1983.
c. Comprehensive Remedial Scheme
Defendants further argue that the TCA creates a comprehensive remedial
scheme that is incompatible with enforcement under § 1983.
See Defendants' Memorandum at 8. Defendants again
rely on City of Santa Fe to support their proposition because
the district court in that case found § 253's remedial scheme
comprehensive. This court, however, disagrees with the City of Santa
Fe court's characterization of § 253's remedial scheme as
In Middlesex County Sewerage Authority v. National Sea Clammers
Ass'n., the Supreme Court analyzed whether the remedial schemes of
two statutes were "comprehensive" thereby foreclosing the availability of
§ 1983. See 453 U.S. 1 (1981). The Court concluded that the
remedial schemes of the two statutes were in fact "comprehensive" largely
because the statutes contained "so many specific statutory remedies" as
well as citizen suit provisions. See id. at 20.
Although the Supreme Court has not explicitly articulated what
"comprehensive" means with respect to a statutory remedial scheme, the
court considers Sea Clammers its best guide.
In Sea Clammers, the Supreme Court focused primarily on the
complexity of the remedial schemes in the statutes. The Court reasoned
that "[i]t is hard to believe that Congress intended to preserve the
§ 1983 right of action when it created so many specific statutory
remedies, including the two citizen-suit provisions." Id. at
20. As an example of the complexity of the remedial schemes provided for
in the two statutes at issue in the Sea Clammers case, the
court includes the remedial scheme from The Federal Water Pollution
Control Act ("FWPCA"), The FWPCA states as follows:
(a) Except as provided in subsection (b) of this
section, any citizen may commence a civil action
on his own behalf (1) against any person
(including (i) the United States, and (ii) any
other governmental instrumentality or agency to
the extent permitted by the eleventh amendment to
the Constitution) who is alleged to be in
violation of (A) an effluent standard or
limitation under this chapter or (B) an order
issued by the Administrator or a State with
respect to such a standard or limitation, or (2)
against the Administrator where there is alleged a
failure of the Administrator to perform any act or
duty under this chapter which is not discretionary
with the Administrator. The district courts shall
have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to
enforce such an effluent standard or limitation,
or such an order, or to order the Administrator to perform such act or duty,
as the case may be, and to apply any appropriate
civil penalties under section 1319(d) of this
title, (b) No action may be commenced (1)
under subsection (a)(1) of this section
(A) prior to sixty days after the plaintiff has
given notice of the alleged violation (i) to the
Administrator, (ii) to the State in which the
alleged violation occurs, and (iii) to any alleged
violator of the standard, limitation, or order, or
(B) if the Administrator or State has commenced
and is diligently prosecuting a civil or criminal
action in a court of the United States, or a State
to require compliance with the standard,
limitation, or order, but in any such action in a
court of the United States any citizen may
intervene as a matter of right. (2) under
subsection (a)(2) of this section prior to sixty
days after the plaintiff has given notice of such
action to the Administrator, except that such
action may be brought immediately after such
notification in the case of an action under this
section respecting a violation of sections 1316
and 1317(a) of this title. Notice under this
subsection shall be given in such manner as the
Administrator shall prescribe by regulation. The
Administrator may intervene in any citizen suit.
Sea Clammers, 453 U.S. at 8, no. 9 (quoting
33 U.S.C. § 1365). The remedial scheme set forth in the Marine
Protection, Research, and Sanctuaries Act is of similar length and
detail. See Sea Clammers, 453 U.S. at 8, n.11 (quoting
33 U.S.C. § 1415(g)(1), (2)).
The only remedial provision provided by § 253 of the TCA states:
If, after notice and an opportunity for public
comment, the [FCC] determines that a State or
local government has permitted or imposed any
statute, regulation, or legal requirement that
violates subsection (a) or (b) of this section,
the Commission shall preempt the enforcement of
such statute, regulation, or legal requirement to
the extent necessary to correct such violation or
47 U.S.C. § 253(d). Thus, § 253(d) requires the FCC to preempt
the enforcement of a state or local regulation that is inconsistent with
§§ 253(a) or 253(b). See 47 U.S.C. § 253(d). The
court in City of Santa Fe considered this "remedial scheme"
comprehensive, and therefore concluded that § 1983 remedy was
foreclosed. See City of Santa Fe, 224 F. Supp.2d at
1315. This court, using Sea Clammers as a guide, does not
consider the remedy in § 253 comprehensive in nature.
The provision quoted from Sea Clammers is obviously much more
specific than that at issue in this case. Both remedial schemes at issue
in Sea Clammers describe in detail the citizen suits available.
See Sea Clammers, 453 U.S. at 6-7 ("[T]he FWCPA
. . . allows suits under the Act by private citizens, but authorizes
only prospective relief, and the citizen plaintiffs first must give notice to the EPA, the State, and any alleged violator. . . . the
MPRSA . . . contains similar citizen-suit and notice provisions."). In
contrast, § 253 of the TCA provides only one remedy, an
administrative remedy through the FCC. See
47 U.S.C. § 253(d). Section 253 does not discuss any judicial remedies that
individuals may seek (citizen suit provisions). Thus, not only is the
"remedial scheme" not comprehensive in the number or type of remedies it
expressly makes available, but neither is it comprehensive in terms of
the detail with which it describes those remedies.
Defendants continually remind the court that plaintiffs always retain
the option to sue for injunctive relief under the Supremacy Clause.
See, e.g., Defendants' Memorandum at 3, n.2. Thus,
they contend, plaintiff has available a remedy beyond mere administrative
enforcement, and hence, the remedial scheme is comprehensive. If the
availability of such a suit made a remedial scheme "comprehensive,"
however, then nearly every statute's remedial scheme would be
comprehensive, because such a remedy is almost always available. As
demonstrated by the fact that the Supreme Court has set forth a means for
analyzing this issue, whether a statute's remedial scheme is
comprehensive is obviously an issue whose conclusion is not foregone.
Thus, the court finds that this argument adds nothing to defendants'
Because the Supreme Court obviously considered the comprehensiveness of
the remedial scheme to be key in determining Congressional intent, in the
instant case, the court follows suit and concludes that the TCA's very
limited remedial provision impliedly reflects Congressional intent to
leave intact the § 1983 right of action. The court, therefore,
concludes that defendants' argument fails to provide specific evidence
that Congress intended to foreclose a § 1983 remedy and therefore
fails to rebut the presumed availability of § 1983.
d. Incompatibility with § 1983
Defendants do not articulate support for their argument that §
253's remedial scheme is incompatible with availability of a § 1983
remedy. See Defendants' Memorandum at 8. The court
points out that it does not find the remedial schemes of § 253 and
§ 1983 incompatible. Rather, the two schemes appear complementary in
that, taken together, they provide both the administrative and judicial
remedies that the Supreme Court in Sea Clammers found
constituted a comprehensive remedial scheme. See Sea Clammers, 453 U.S. at
12 ("These acts contain unusually elaborate enforcement provisions,
conferring authority to sue for this purpose both on government officials
and private citizens."). Accordingly, the court concludes that § 253
and § 1983 are not incompatible.
e. Savings Clause
Next, defendants attempt to overcome the presence of the savings clause
in § 253. See Reply at 9. Although a savings
clause is typically interpreted as reflective of Congress's desire to
leave intact a § 1983 remedy, defendants attempt to downplay its
significance in this case by analogizing to Sea Clammers, in
which the Supreme Court, despite a savings clause, found that the
remedial schemes in the statutes at issue foreclosed a § 1983 remedy.
See Defendants' Reply at 9 (citing Sea
Clammers. 453 U.S. at 20-21).
The savings clause in the TCA, however, is arguably much broader than
those at issue in the statutes in Sea Clammers. The savings
clause in the TCA states, "[the TCA] shall not be construed to modify,
impair, or supersede Federal, State, or local law unless expressly so
provided in such Act or amendments." 47 U.S.C. § 152, historical and
statutory notes, "Applicability of Consent Decrees and Other Law"(c)(1).
The savings clause in the FWPCA specifies that the statute does not
restrict the right of persons to "seek enforcement of any effluent
standard . . . or to seek any other relief," id. at 8, n.
10, while the savings clause in the MPRSA similarly states that the
statute does not restrict the right of persons to "seek enforcement of
any standard or limitation or to seek any other relief." Id. at
8, n. 11. The court finds TCA's savings clause broad, sweeping, and a
clear indication that Congress intended to leave federal laws untouched
and unaltered unless they specified otherwise explicitly, whereas the
court finds the savings clauses in the FWPCA and the MPRSA narrower in
scope and less specific in defining what remedies it leaves untouched.
While the existence alone of a savings clause makes it more difficult for
a court to find that Congress intended to foreclose § 1983 as a
remedy, see, e.g., Sea Clammers, 453 U.S. at 21, n.31
(interpreting the savings clauses narrowly such that the clauses do not
preserve a § 1983 remedy), a broad and sweeping clause like that in
the TCA makes it even more difficult. For this reason, the court finds
that defendants' argument that the savings clause does not reflect that
Congress intended to leave § 1983 available is weak and not supported by
Sea Clammers, Moreover, as discussed above, it is the
complexity of the remedial schemes on which the Supreme Court appears to
base its opinion in Sea Clammers. See id.
at 13 ("These Acts contain unusually elaborate enforcement provisions");
id. at 14 ("[i]n view of these elaborate enforcement provisions
it cannot be assumed that Congress intended to authorize by implication
other judicial remedies"). This court follows suit accordingly, focusing
on the comprehensiveness of the remedial scheme in the TCA.
f. Attorney Fees
Defendants make one last attempt to convince the court that Congress
specifically foreclosed a § 1983 right of action exists. They argue
that Congress did not intend plaintiffs to recover attorney fees under
§ 1983 for violation of the TCA, and as such, no § 1983 right of
action should be available. See Defendants'
Memorandum at 9. They rely on a Third Circuit case in which the
court reasoned that because TCA plaintiffs are often large corporations
and defendants are often small municipalities, allowing plaintiffs to
recover attorney fees as provided by § 1983 might alter the TCA's
remedial scheme beyond what Congress intended. See
id. (relying on Nextel Partners Inc. v. Kingston
Township, 286 F.3d 687 (3d Cir. 2002). This argument is
disingenuous, in that if a plaintiff prevailed on an injunctive action,
the plaintiff would be entitled to attorney's fees from this same "small"
municipality. The court finds this consideration, at best, tenuously
related to Congressional intent. Such a suggestion is not supported by
any legislative history or further authority. Moreover, in the instant
case, the hypothesis does not prove true, as San Diego is hardly a small
municipality, although like other California cities and the state itself,
it is strapped for cash. Accordingly the court rejects this argument.
By conducting the same analysis as the Supreme Court in Sea
Clammers, this court concludes that Sea Clammers mandates
that this court conclude that the TCA does not foreclose a § 1983
remedy. Based on all the foregoing reasons, the court concludes that
defendants have failed to rebut the presumption that a right of action
under § 1983 remains. Therefore, the court finds that plaintiffs may
maintain a right of action under § 1983. D. Absolute Immunity
The Supreme Court has long held that "legislators are absolutely immune
from liability for their legislative activities." See
Bogan v. Scott-Harris, 523 U.S. 44, 48 (1998). The Court also
has found that local legislators are "likewise absolutely immune from
suit under § 1983 for their legislative activities." Id. at
49. Defendants seek to dismiss plaintiffs' § 1983 claim for damages
against the individual members of the San Diego County Board of
Supervisors on the ground that their act of enacting the Ordinance is
legislative, and they are therefore immune. See
Defendants' Reply at 10. "Whether an act is legislative turns
on the nature of the act, rather than on the motive or intent of the
official performing it." Id. at 54. Plaintiffs fail to include
in their complaint any facts alleging that the individual defendants' act
of enacting the ordinance was not legislative, nor do they include any
such allegations in their opposition to the present motion. Plaintiffs'
theory of why the individual defendants are not immune is that "officers
acting under preempted law are `stripped of their official and
representative character and are subjected in their person to the
consequences of their individual conduct.'" See
Opposition at 24 (citing Ex Parte Young,
209 U.S. 123, 160 (1908). Stripping officers of their official or
representative character does not affect whether their act of enacting
an ordinance was legislative. Regardless of the character of the
defendants, there is no set of circumstances under which plaintiffs
could establish that the act of enacting an ordinance was not a
legislative act. As such, the court concludes that plaintiffs' §
1983 claim for damages is dismissed as to defendants Greg Cox, Dianne
Jacob, Pam Slater, Ron Roberts, and Bill Horn. The court dismisses
the claim without prejudice.
For the foregoing reasons, the court DENIES defendants'
motion to dismiss the first cause of action for violation of
47 U.S.C. § 253(a). The court further DENIES defendants' motion to
dismiss the third cause of action for violation of § 1983 as to
defendant the County of San Diego. The court GRANTS defendants'
motion to dismiss plaintiffs' third cause of action against the individual defendants for damages for violation of § 1983. The
court dismisses this cause of action with prejudice.
IT IS SO ORDERED.
© 1992-2004 VersusLaw Inc.