Amateur radio operator's Telecommunications Act claims for § 1983 remedies are not barred

Law Reporter, Jun 2004

Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094 (9th Cir. 2004).

The Telecommunications Act (TCA), 47 U.S.C. §§ 151 et seq., does not contain a comprehensive remedial scheme that would preclude recovery of § 1983 remedies, the Ninth Circuit Court of Appeals held.

Here, Abrams was an amateur radio operator who provided commercial radio services from his home. He applied for a commercial use permit to allow him to use the antenna on his home for commercial purposes, and the city denied the application.

Abrams sued the city, alleging it violated his rights under the TCA. He sought damages under 42 U.S.C. § 1983. The trial court found that the city had violated plaintiff's rights under the TCA by denying him a permit without a valid reason. However, the trial court said that plaintiff could not recover § 1983 remedies, because Congress intended the TCA to be a comprehensive remedial scheme, thus barring the recovery of additional remedies such as those under § 1983.

Reversing, the Ninth Circuit noted that where a plaintiff has established a federal right, there is a rebuttable presumption that plaintiff is entitled to § 1983 remedies. Defendant may rebut this presumption with evidence that Congress expressly or impliedly intended to bar § 1983 remedies when enacting the statute that created the right. Here, it is clear that Congress did not do so expressly, the court said. Holding that Congress did not impliedly bar § 1983 remedies in enacting the TCA, the court said the TCA is not comprehensive enough to support the conclusion that it intended to foreclose such remedies. The TCA does not provide for any type of relief or remedial scheme, and its provisions are compatible with § 1983, the court said.

Further, Congress evidenced intent to leave § 1983 remedies available to plaintiffs bringing claims under the TCA by enacting § 601(c)(1) of the TCA, which states that the act "shall not be construed to modify, impair, or supersede federal, state, or local law unless expressly so provided."

The city has not rebutted the presumption in favor of § 1983 remedies, the court concluded. Accordingly, it remanded with instructions to award § 1983 damages.

Plaintiff's Counsel

Wilkie Cheong, Los Angeles, Cal.