2009 • Volume 34 • Number 2

Southwestern Bell Telephone, L.P. v. City of Houston: Has the Fifth Circuit Barred the Use of § 1983 Claim to Enforce Section 253 of the Telecommunications Act of 1996?

Christopher J. Costello

This comment examines the recent line of federal circuit court of appeals cases that unanimously bar telecommunications companies from enforcing section 253 of the Telecommunications Act of 1996 (the Act) through suits brought under 42 U.S.C. § 1983. It begins by analyzing the cases preceding these holdings that seemed to clear the way for § 1983 suits in this context. It continues by explaining how a controversial United States Supreme Court decision, Gonzaga University v. Doe, steered courts away from finding a private right of action for telecommunications service providers in the Act. The comment goes on to describe how the Fifth Circuit’s decision in Southwestern Bell Telephone, L.P. v. City of Houston has failed to systematically preclude § 1983 claims in this context and how an undecided circuit could be convinced to allow them. Finally, it concludes by arguing that public policy should prevent telecommunications providers from bringing § 1983 claims against state governments and recommends that Congress amend the Act accordingly.