Not all federal laws can give rise to a Section 1983 case

Section 1983 of the United States Code allows civil rights plaintiffs to recover damages for the violation of a Federal right. The question before the Court of Appeals in NextG Networks v. City of New York (decided on January 15) was whether a telecommunications provider could sue the City for allegedly violating a portion of the Telecommunications Act, a Federal law. The answer is no.

This may not be the sexiest issue in the world, but it's vitally important for civil rights lawyers. The question whether certain laws can give rise to a Section 1983 violation remains an unstable area in civil rights law. The answer to that question will determine whether those on the losing end of a dispute with the government can have any remedy in court for their troubles.

As the Second Circuit summarized this case, "Broadly speaking, this case concerns whether the City has impeded NextG’s access to the New York City telecommunications market by unlawfully denying NextG the use of City-owned poles." Section 253 of the Telecommunications Act reads:

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 telecommunications service.

While this language benefits the telecommunications companies, it does not confer any rights that may be enforced under Section 1983. Rather, the Court of Appeals said, this provision simply places limits on state and local governments. This is a subtle distinction. The Court explained, "the purpose of Section 253 is to impose some limits on the ability of state and local governments to regulate telecommunications but not to interfere with the right of such governments to impose reasonable charges for the concomitant use of public property." The legislative history behind Section 253 further supports the Court's view that this provision does not confer rights on the telecommunications industry.

This holding may be confusing to those without an intimate relationship with Section 1983. Section 1983 is the mother of all civil rights laws, allowing people to enforce the Constitution and other Federal civil rights in court. Section 1983 offers a wide variety of damages and attorneys fees for the prevailing party. But, as noted above, not all laws can predicate a Section 1983 action. In Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), the Supreme Court interpreted Section 1983 to mean that only “rights, not the broader or vaguer benefits or interests” may be enforced through § 1983. The question of whether a Federal law may predicate a Section 1983 case is determined by examining the intent of Congress. Since Congressional intent is not always clear on this point, the Courts are left with the task of determining whether lawsuits like this can proceed.

Moral of the story: Section 1983 is not the answer to all of our problems.