IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20320

SOUTHWESTERN BELL TELEPHONE, LP, doing business as AT&T Texas

Plaintiff-Appellant

v.

CITY OF HOUSTON

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas 

Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge: 

Southwestern Bell Telephone, L.P. (AT&T), contests the dismissal of its

claims that a City of Houston, Texas, ordinance violates the Federal

Telecommunications Act of 1996 (FTA), 47 U.S.C. § 151 et seq. Primarily at

issue are FTA §§ 253(a) and 253(c). Section 253(a) proscribes state and local

governments from prohibiting the ability of any entity to provide

telecommunications service. On the other hand, FTA § 253(c) is a safe-harbor

provision preserving a government’s power to manage its public rights-of-way.

AT&T maintains: FTA § 253 provides a private right enforceable under 42

U.S.C. § 1983; and the ordinance is preempted by the FTA. AFFIRMED. 

I.

United States Court of Appeals

Fifth Circuit

F I L E D

May 20, 2008

Charles R. Fulbruge III

Clerk
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2

As part of its providing local service in the City, AT&T installed

telecommunications facilities in the public rights-of-way. In April 2005, the City

adopted Ordinance 2005-0371, requiring owners of facilities located in those

rights-of-way to bear the cost of relocating their equipment to accommodate

public-works projects. HOUSTON CODE OF ORDINANCES § 40-393. The ordinance

does not specifically target telecommunications equipment, instead defining

“facility” as “any structure, device, or other thing whatsoever that is installed or

maintained in, on, within, under, over or above a public right-of-way within the

city”. Id. § 40-391. 

Relying on the ordinance, the City notified AT&T it would be required to

remove its public-rights-of-way facilities in connection with a drainageimprovement project. AT&T relocated its facilities at a cost of approximately

$420,000.

In this action, AT&T seeks to recover, inter alia, those relocation costs,

asserting a claim under the FTA through § 1983, a federal preemption claim, a

federal takings claim, and various state-law claims. The City moved to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion

concerning the § 1983 and preemption claims was under Rule 12(b)(6),the City’s

maintaining: there is no Congressional intent to allow actions under § 1983 for

violations of FTA § 253; and the FTA specifically excludes preemption of a

municipality’s right to maintain its rights-of-way. 

The district court held no private right exists under FTA § 253 that may

be enforced under § 1983. It also held the ordinance resided within FTA § 253’s

safe-harbor provision and, therefore, is not preempted. Because it was not ripe,

the federal-takings claim was dismissed without prejudice. The court declined

to exercise supplemental jurisdiction over the state-law claims. 

II.
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3

AT&T appeals the district court’s holding: FTA § 253 provides no private

right enforceable pursuant to § 1983; and the ordinance is not preempted. A

Rule 12(b)(6) dismissal for failure to state a claim is reviewed de novo. E.g., Fin.

Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006). As part

of our determining whether AT&T stated a claim sufficient to avoid dismissal,

the facts alleged in its complaint are taken as true, with those allegations being

construed in the light most favorable to AT&T, the non-movant. E.g.,

Muhammad v. Dallas County Cmty. Supervision & Corr. Dep’t., 479 F.3d 377,

379 (5th Cir. 2007). A plaintiff must plead “enough facts to state a claim to relief

that is plausible on its face”. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974

(2007). “Factual allegations must be enough to raise a right to relief above the

speculative level, on the assumption that allthe allegations in the complaint are

true (even if doubtful in fact).” Id. at 1965 (citations and footnote omitted).

A.

AT&T maintains Congress implicitly created a private right in FTA § 253,

enforceable pursuant to § 1983. Although three other circuits have held to the

contrary, as discussed infra, this is an issue of first impression for our circuit. 

To pursue a claim under § 1983, a “plaintiff[] must (1) allege a violation of

rights secured by the Constitution or laws of the United States and (2)

demonstrate that the alleged deprivation was committed by a person acting

under color of state law”. Resident Council of Allen Parkway Vill. v. HUD, 980

F.2d 1043, 1050 (5th Cir. 1993) (emphasis added) (citation omitted). In other

words, “[§] 1983 confers no substantive rights, but merely provides a remedy for

the violation [, by a person acting under color of state law,] of rights secured

under the Constitution and laws of the United States”. Kirchberg v. Feenstra,

708 F.2d 991, 1000 (5th Cir. 1983) (emphasis added) (citations omitted). 

It is presumed Congress did not intend to create a private enforceable

right; the burden is on the plaintiff to show otherwise. E.g., Acara v. Banks, 470
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F.3d 569, 571 (5th Cir. 2006) (per curiam). Regarding showing such a right’s

being enforceable through § 1983, 

[i]t is essential to a private enforcement action under § 1983 . . .that

the federal statute in question unambiguously give rise to privately

enforceable, substantive rights. The inquiry in this context is

virtually the same as thatinvolved in private rights of action implied

directly from a federal statute rather than by way of § 1983. 

Johnson v. Hous. Auth. of Jefferson Parish, 442 F.3d 356, 359 (5th Cir. 2006)

(footnotes omitted) (first emphasis in original). 

As clarified by the Supreme Court, that analysis requires courts to “first

determine whether Congress intended to create a federal right”. Gonzaga Univ.

v. Doe, 536 U.S. 273, 283 (2002) (emphasis in original). “For a statute to create

such private rights, its text must be phrased in terms of the persons benefited.”

Id. at 284 (citation and internal quotation marks omitted). “Accordingly, where

the text and structure of a statute provide no indication that Congress intends

to create new individual rights, there is no basis for a private suit, whether

under § 1983 or under an implied right of action”. Id. at 286 (emphasis added).

For this action, that determination focuses on whether “the [FTA] creates

an individually enforceable right in the class of beneficiaries to which [AT&T]

belongs”. City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005)

(citing Gonzaga, 536 U.S. at 285); see also Johnson, 442 F.3d at 359 (requiring

the statute to unambiguously give rise to private enforceable rights). As dictated

by the plain language of § 1983, only “rights, not the broader or vaguer ‘benefits’

or ‘interests’, . . . may be enforced under” that section. Gonzaga, 536 U.S. at 283

(emphasis in original). “The [Supreme] Court’s approach to § 1983 enforcement

of federal statutes has been increasingly restrictive; in the end, very few statutes

are held to confer rights enforceable under § 1983.” Johnson, 442 F.3d at 360.

Section 253(a) of the FTA provides: “No State or local statute or

regulation, or other State or local legal requirement, may prohibit or have the
No. 07-20320

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effect of prohibiting the ability of any entity to provide any interstate or

intrastate telecommunications service”. 47 U.S.C. § 253(a). The safe-harbor

provision, § 253(c), states:

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 nondiscriminatory basis, if the

compensation required is publicly disclosed by such government.

47 U.S.C. § 253(c). 

Five circuits are split three to two on whether FTA § 253 creates a

privately enforceable right. The Sixth and Eleventh Circuits hold it does.

BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1191 (11th

Cir. 2001); TCG Detroit v. City of Dearborn, 206 F.3d 618, 624 (6th Cir. 2000).

(Although obviously not determinative for deciding whether a privately

enforceable right is created, neither decision incorporated § 1983.) Those two

decisions, however, were rendered prior to the Supreme Court’s above-described

clarification in Gonzaga.

As discussed infra, the more persuasive reasoning is found in the Second,

Ninth, and Tenth Circuits’ holding, post-Gonzaga, that FTA § 253(a) does not

create a private right enforceable under § 1983. NextG Networks of NY, Inc. v.

City of New York, 513 F.3d 49, 52-54 (2d Cir. 2008) (agreeing with Ninth and

Tenth Circuits that “§ 253 does not create a private right of action for damages”

that may be enforced through § 1983); Sprint Telephony PCS, L.P. v. County of

San Diego, 490 F.3d 700, 717-18 (9th Cir. 2007) (stating “§ 253(a) does not

designate companies like [AT&T] as the ‘identifiable class’ required for an

enforceable § 1983 right”); Qwest Corp. v. City of Santa Fe, N.M., 380 F.3d 1258,

1265 (10th Cir. 2004) (ruling “nothing in the text or structure of § 253 indicates

an intention to create a private right” that may be enforced through § 1983).
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These three decisions are consistent with our court’s requiring, as discussed

supra, the federal statute to “unambiguously give rise to privately enforceable,

substantive rights”. Johnson, 442 F.3d at 359 (emphasis in original) (footnote

omitted). 

1.

Neither FTA section at issue focuses on rights granted to

telecommunications providers. Section 253(a) is couched entirely in prohibitions

on what the state or local government cannot do, rather than on a right for

telecommunications companies. It states that “[n]o State or local statute or

regulation, or other . . . legal requirement, may prohibit”. 47 U.S.C. § 253(a).

The section is not “phrased in terms of the persons benefited”, see Gonzaga, 536

U.S. at 284 (citation and internal quotation marks omitted); rather, it prohibits

state and local governments’ conduct. As held by the Tenth Circuit, FTA §

253(a) “is not focused on the benefits granted to the telecommunications

providers [but] focuses on restricting the type oftelecommunications regulations

a local authority may enforce”. Qwest, 380 F.3d at 1265. 

On the other hand, if the FTA safe-harbor provision “benefits” anyone, it

is state and local governments, whose rights “to manage the public rights-ofway” are protected. 47 U.S.C. § 253(c). The benefit to these governmental

entities is not the type of benefit required to imply a private right on behalf of

a telecommunications provider, such as AT&T. 

2.

Even were our court to determine these FTA sections create an

individually enforceable right, only a rebuttable presumption would be

established; it may be overcome with “the statute’s creation of a comprehensive

enforcement scheme”. Rancho Palos Verdes, 544 U.S. at 120 (citation and

internal quotation marks omitted). Restated, the existence of such an
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enforcement scheme in the statute counsels that Congress did not intend also to

provide a private right enforceable through § 1983. Id.

Pursuant to FTA § 253(d), the Federal Communications Commission is

charged with “preempting the enforcement” of laws violating FTA § 253(a). This

comprehensive enforcement scheme further supports our concluding Congress

did not intend to create a private right enforceable under § 1983. See Middlesex

County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20-21 (1981).

Accordingly, because the FTA does not unambiguously establish a private

enforceable right, and, in the alternative, because FTA § 253(d) contains a

comprehensive enforcement scheme, Congress did not intend to create a private

right, enforceable under § 1983, for claimed violations of FTA § 253(a). 

B.

For its other issue on appeal, AT&T maintains the City’s ordinance is

preempted by the FTA. A plaintiff’s seeking relief from a state regulation on the

ground of preemption by a federal statute “presents a federal question which the

federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve”. Shaw v.

Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (citations omitted); see also

Planned Parenthood of Houston and Se. Tex. v. Sanchez, 403 F.3d 324, 331 (5th

Cir. 2005) (“It is well-established that the federal courts have jurisdiction under

28 U.S.C. § 1331 over a preemption claim seeking injunctive and declaratory

relief.” (footnote omitted)). In sum, as held in 2004 in the above-discussed Tenth

Circuit decision in Qwest, “[a] party may bring a claim under the Supremacy

Clause that a local enactment is preempted even if the federal law at issue does

not create a private right of action”. 380 F.3d at 1266. 

As noted above, FTA § 253(a) proscribes the City from, inter alia,

prohibiting the ability of any entity to provide interstate or intrastate

telecommunications service. 47 U.S.C. § 253(a). Ordinances satisfying the FTA

§ 253(c) safe-harbor provision, however, are exempt from that prohibition. As
No. 07-20320

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quoted earlier, FTA § 253(c) provides, in relevant part: “Nothing in [§ 253]

affects the authority of a State or local government to manage the public rightsof-way”. 47 U.S.C. § 253(c) (emphasis added).

1.

En route to the safe harbor, these sub-issues raised by AT&T must be

navigated. None blocks entry.

a.

For starters, AT&T maintains the voyage cannot begin because it was

entitled to discovery prior to the district court’s dismissal-ruling. To the

contrary, when deciding, under Rule 12(b)(6), whether to dismiss for failure to

state a claim, the court considers, of course, only the allegations in the

complaint. E.g., Norris v. Hearst Trust, 500 F.3d 454, 464 (5th Cir. 2007). 

b.

Getting underway, AT&TcontendsFTA § 253(c) incorporates the separate

law of each State by preserving whatever powers, as well as any limitations on

them, a city possessed when the FTA was enacted. AT&T, however, did not

raise this issue in opposition to the City’s motion to dismiss. Therefore, it was

not addressed by the district court. 

“This Court will not consider an issue that a party fails to raise in the

district court absent extraordinary circumstances”. Leverette v. Louisville

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (citation omitted). Among other

considerations, no such extraordinary circumstances exist here. This issue is

waived. 

c. 

Approaching the safe harbor, AT&T insists the district court was required

first to determine whether the ordinance violates FTA § 253(a), rather than

assuming a violation and proceeding with the FTA § 253(c) safe-harbor analysis.

The court did not err in that regard. 
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Assuming, arguendo, the ordinance violates FTA § 253(a), it is explicitly

not preempted if it falls within the safe harbor. To say the least, requiring a

FTA § 253(a) analysis, notwithstanding an ordinance’s meeting the safe-harbor

provision, would be an exercise in futility.

2.

Finally reaching the safe harbor, the parties dispute only whether the

ordinance is competitively neutral and nondiscriminatory. Accepting, as

required, AT&T’s allegations as true, the district court held the complaintfailed

to allege discrimination. AT&T maintains complaint paragraph 32 satisfies this

requirement:

Moreover, the Ordinance and the Utility Relocation Program go far

beyond requiring fair and reasonable compensation from AT&T

Texas on a competitively neutral and nondiscriminatory basis for

use of the public rights-of-way. As a facilities-based [FTA

Incumbent Local Exchange Carrier] with provider of last resort

obligations under state law, AT&T Texas will be forced to bear

substantial costs of relocation to accommodate “public works

projects” that the City will not impose upon telecommunications

providers who do not own and maintain poles, wires, and similar

facilities. As such, the Ordinance and the Utility Relocation

Program and the City’s imposition and collection of relocation costs

violates the FTA, 47 U.S.C. § 151, et seq., in particular, 47 U.S.C. §

253(a),(c).

(Emphasis added.)

Accepting, as we must,the allegations in the complaint, AT&T alleges only

thatthe City will notimpose relocation costs on telecommunications owners who

do not maintain facilities in the City’s rights-of-way. AT&T’s status as the

primary and, therefore, largest telecommunications provider in the City means

it maintains facilities in the rights-of-way and necessarily correlates into a

greater chance it, as opposed to other such providers, will be required to relocate

equipment pursuant to the ordinance. Requiring only such facility owners to
No. 07-20320

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bear relocation costs is, as required by FTA § 253(c), “competitively neutral and

nondiscriminatory”, notwithstanding AT&T’s status as provider of last resort.

47 U.S.C. § 253(c).

Accordingly, the ordinance is sheltered by the safe harbor. There is no

preemption. 

III. 

For the foregoing reasons, the judgment is AFFIRMED.