Bellsouth Telecomms., LLC v. Cobb Cnty.

342 Ga.App. 323

802 S.E.2d 686

BELLSOUTH TELECOMMUNICATIONS, LLC d/b/a AT&T Georgia et al.

v.COBB COUNTY et al.

A17A0265

Court of Appeals of Georgia.

June 15, 2017

Reconsideration Denied July 12, 2017

Curtis Allen Garrett Jr., Mark Anthony McCarty, J. Henry Walker IV, John Phillip Jett, Atlanta, Scott H. Angstreich, Frank Mitchell Lowrey IV, Amanda Seals Bersinger, Atlanta, for Appellant.

Roy E. Barnes, John Raymond Bevis, Jeffrey R. Harris, Darren Wade Penn, James Michael Evangelista, David J. Worley, Atlanta, W. Matthew Wilson, Marietta, for Appellee.

Ray, JUDGE.

Defendants Bellsouth Telecommunications, LLC, and Earthlink, Inc., Earthlink, LLC, Deltacom, LLC, and Business Telecomm, LLC (collectively, "Defendants") filed this interlocutory appeal from the trial court's denials of their motions to dismiss the complaints by Cobb County, Georgia and Gwinnett County, Georgia (collectively, the "Counties") regarding the Defendants' alleged violations of the Georgia Emergency Telephone Number 9-1-1 Service Act of 1977, OCGA § 46-5-120 et seq (the "9-1-1 Act").¹ The 9-1-1 Act requires telephone customers to pay a monthly charge to the telephone companies, which act as middlemen to collect and remit the collected charges to local governments that run 9-1-1 call centers and dispatch emergency services. See OCGA § 46-5-134 (a) - (b). The Counties allege that the Defendants purposefully did not bill—and therefore, their customers did not pay—enough 9-1-1 charges under the statute. The Counties seek to hold the Defendants liable for damages equal to the amount of 9-1-1 charges owed by their customers, as well as for punitive damages.

We agree with the Defendants that the 9-1-1 Act does not explicitly or implicitly sanction a direct right of action by the Counties against the Defendants due to their alleged failure to bill or collect the required fees, but also find that the Counties may pursue their claims against the Defendants for the alleged failure or refusal to collect the

9-1-1 charges pursuant to OCGA §§ 51-1-6 and 51-1-8. However, the viability of any common law claims may turn on whether the 9-1-1 charges are taxes or fees. As any decision thereon is premature at this stage of the proceedings, we remand this issue for further consideration.

BACKGROUND

In 1977, the General Assembly passed the 9-1-1 Act to "establish and implement a cohesive state-wide emergency telephone number 9-1-1 system which will provide citizens with rapid, direct access to public safety agencies by dialing telephone number 9-1-1 [.]" OCGA § 46-5-121 (a). The 9-1-1 Act authorizes a local government to pay for the 9-1-1 services it provides by "impos[ing] a monthly 9-1-1 charge upon each telephone service" that is or would be served by the 9-1-1 service. OCGA § 46-5-133 (a). The 9-1-1 Act broadly describes "telephone service" as "any method by which a 9-1-1 emergency call is delivered to a public safety answering point[,]" and includes

local exchange telephone service or other telephone communication service, wireless service, prepaid wireless service, mobile telecommunications service, computer service, Voice over Internet Protocol service, or any technology that delivers or is required by law to deliver a call to a public safety answering point.

OCGA § 46-5-122 (16.1).

The 9-1-1 Act makes telephone companies intermediaries between local governments and citizens for the purpose of collecting the funds necessary to implement the 9-1-1 service and dispatch centers. It provides that telephone customers "may be billed for the monthly 9-1-1 charge" of up to $1.50 for each subscription per telephone service provided. OCGA § 46-5-134 (a) (1) (A).² The specific language of the Act provides:

Each service supplier shall, on behalf of the local government, collect the 9-1-1 charge from those telephone subscribers

to whom it provides telephone service in the area served by the emergency 9-1-1 system. As part of its normal billing process, the service supplier shall collect the 9-1-1 charge for each month a telephone service is in service, and it shall list the 9-1-1 charge as a separate entry on each bill.

OCGA § 46-5-134 (a) (1) (B). The same requirement applies to wireless service, except for services billed to federal, state or local governments. See OCGA § 46-5-134 (a) (2) (C). Further, "[e]ach service supplier that collects 9-1-1 charges" may "retain ... an administrative fee" and "[t]he remaining amount shall be due quarterly to the local government[.]" OCGA § 46-5-134 (d) (1). The 9-1-1 Act further grants local governments the right to "audit or cause to be audited the books and records of service suppliers with respect to the collection and remittance of 9-1-1 charges." OCGA § 46-5-134 (d) (4).

The Counties sued the Defendants alleging that they should have billed two classes of customers a larger amount of 9-1-1 charges. The Counties argued that Defendants were required to, but did not, bill a 9-1-1 charge for all of the "exchange access lines, channels, or pathways" available to customers that purchased "multiplex" services, which can carry multiple simultaneous calls over a single physical line, and that Defendants were required to, but did not, bill a 9-1-1 charge for every 10-digit telephone number provided to users of VoIP technology.³ The complaints, inter alia, assert damages claims arising out of these alleged violations of the 9-1-1 Act and arising out of common law theories of recovery, and seek to enforce the 9-1-1 Act's audit provision.

The Defendants moved to dismiss the Counties' complaints. After a consolidated oral argument, the trial court denied the motions to dismiss.⁴ In its order, the trial court held that the 9-1-1 charges constitute fees, rather than taxes; that the lawsuit was permissible because there is "no express language" preventing the Counties from bringing the action and that "it is implausible that the General Assembly would confer auditing powers without a corresponding remedy;" and that the Counties could enforce the 9-1-1 Act through common law claims based on alleged violations of the 9-1-1 Act. This Court granted the Defendants' application for interlocutory review.

ANALYSIS

1. The parties agree that the 9-1-1 Act does not contain an express right of action authorizing local governments to enforce the statute against telephone companies and service suppliers. However, the Plaintiff Counties allege and the trial court found that the statutory scheme of the 9-1-1 Act indicates an intent by the General Assembly to give local governments an implied right of action for damages against telephone companies and suppliers based upon a violation of the statute. The trial court reasoned that it was implausible that the General Assembly would confer auditing powers to local governments without a corresponding remedy if they were to discover that a telephone company or service supplier had not collected and/or remitted the proper amount owed to them under the statute. The Defendants argue that this ruling was in error; we agree that the trial court so erred.

Georgia has "longstanding precedential authority rejecting the creation of implied private rights of action[.]" (Footnote omitted.) Somerville v. White , 337 Ga. App. 414, 417, 787 S.E.2d 350 (2016). See also Govea v. City of Norcross , 271 Ga. App. 36, 41 (1), 608 S.E.2d 677 (2004) ("[I]t is well settled that violating statutes and regulations does not automatically give rise to a civil cause of action by an individual claiming to have been injured from a violation thereof") (footnote omitted). In 2010, the General Assembly codified this presumption in OCGA § 9-2-8 (a), which provides that "[n]o private right of action shall arise from any Act enacted after July 1, 2010, unless such right is expressly provided therein." Our Supreme Court has noted that the creation of OCGA § 9-2-8 revealed the General Assembly's concern over "judicial creation of implied civil causes of action[.]" Anthony v. American Gen. Fin. Servs., Inc. , 287 Ga. 448, 459 (2) (c), 697 S.E.2d 166 (2010). Although OCGA § 9-2-8 (a)"would not apply to the pre-existing [9-1-1 Act] at issue in this case, ... it certainly counsels against deviating from our established precedent to find new implied civil causes of action." Id.

As noted above, all parties concede that the 9-1-1 Act does not contain an express right of action that would allow the Counties to bring the claims in this lawsuit against the Defendants. See generally OCGA § 46-5-120, et seq. Accordingly, the Counties bear the burden of overcoming Georgia's presumption against implied rights of action. See Brooks-Powers v. Metropolitan Atlanta Rapid Transit Auth. , 260 Ga. App. 390, 392 (1), 579 S.E.2d 802 (2003). This they cannot do.

Although the 9-1-1 Act does not provide that local governments have a right of action against telephone companies , it does provide a similar right of action against telephone customers . Specifically, the 9-1-1 Act provides that telephone customers are "liable for the 9-1-1 charge[ ] ... until it has been paid to the service supplier." OCGA § 46-5-134 (b). Under the 9-1-1 Act, if a customer refuses to pay the 9-1-1 charge, then the telephone company is to inform the local government, which may "initiate[ ]" a "collection action" against that customer. Id. While the legislature also could have specifically created a cause of action for a breach of the 9-1-1 Act against telephone service providers by its terms, it did not choose to do so.

Not to be deterred, the Counties claim and the trial court held that the audit provisions of the 9-1-1 Act gave rise to an inference that the General Assembly intended that local governments could sue telephone service providers. See OCGA § 46-5-134 (d) (4) (The 9-1-1 Act provides that a "local government may on an annual basis, and at its expense, audit or cause to be audited the books and records of service suppliers with respect to the collection and remittance of the 9-1-1 charges")....