BELLSOUTH TELECOMMUNICATIONS LLC d/b/a AT&T GEORGIA et al.
COBB COUNTY, GEORGIA et al.
DILLARD, P. J., RAY and SELF, JJ.
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"). 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
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.
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).
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). 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
§ 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).
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. 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.
Defendants moved to dismiss the Counties' complaints.
After a consolidated oral argument, the trial court denied
the motions to dismiss. 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.
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.
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."
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.
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.
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"). However, again, had
the General Assembly intended within the statute itself to
make the Defendants or other telephone service providers
liable for amounts not collected from customers, then it knew
how to do so. See e. g., OCGA § 48-8-7 (a) - (b)
(making it "unlawful for any dealer to knowingly and
willingly fail, neglect, or refuse to collect" from its
customers a sales and use tax, and imposing a "penalty
of being liable for and paying the tax himself" if a
dealer violates the statute).
to the Counties' assertion,, it is plausible that the
General Assembly would make service providers subject to an
audit (but not confer a right of action against them) since
the service providers are the parties that hold the records
regarding the 9-1-1 taxes charged to and paid by others,
namely, their customers.Further, the audits could lead to
retroactive collection by the local governments against
end-users who did not pay the appropriate amounts of 9-1-1
charges or lead to prospective changes to the service
supplier's manner of billing.
Counties next allege that an implied right of action exists
because the 9-1-1 Act gave them the power to "bring and
defend actions." OCGA § 46-5-138 (c) (1). However,
the fact that the Counties may sue or be sued does not confer
a right of action; it merely confers the capacity to sue. The
Eleventh Circuit rejected a similar argument in Smith v.
Russellville Production Credit Assn., 777 F.2d 1544,
1548 (I) (11th Cir. 1985). Smith held that the
in support of an implied right of action, that the inclusion
of a 'sue and be sued' provision in the Farm Credit
Act is evidence that Congress intended to create a private
right of action under that act, is completely without merit.
The 'sue and be sued provision' simply indicates that
Congress intended that [Production Credit Associations
("PCAs")], like other private entities, be held
accountable for breaking the law and be able to seek relief
under appropriate circumstances. The provision does not
indicate that Congress intended, in enacting the Farm Credit
Act, to create an independent substantive legal basis under
which PCAs could be sued.
summary, we disagree with the trial court's finding that
the 9-1-1 Act provides an implied right of action to the
Counties for the Defendants' alleged failure to collect
the proper amount of fees under the statute.
Defendants next argue that the trial court erred in
concluding that the 9-1-1 Act, when read in conjunction with
OCGA §§ 51-1-6 and 51-1-8, provides the Counties
with common law remedies against the Defendants or any other
telephone service provider. As to this point, we hold that
the Counties may pursue claims against the Defendants due to
their alleged failure or refusal to collect these charges;
the 9-1-1 Act imposed a duty upon the Defendants to do so,
and OCGA §§ 51-1-6 and 51-1-8 allow the Counties to
enforce that statutorily imposed duty.
language of OCGA §§ 51-1-6 and 51-1-8 does not
confer a separate cause of action in tort upon one who has
suffered a breach of a legal or a private duty."
Parris, supa at 524. Rather, they operate in
conjunction with a statute, such as the 9-1-1 Act, that
imposes a legal duty but does not expressly provide a cause
of action. See also Dupree v. Keller Indus., Inc.,
199 Ga.App. 138, 141 (1) (404 S.E.2d 291) (1991). The
Counties argue that the 9-1-1 Act imposes upon the providers
a duty to bill and collect the 9-1-1 charges for all voice
lines or pathways capable of reaching 9-1-1 call centers, and
to remit those fees to the Counties according to the terms of
the statute (See OCGA § 46-5-134 (a) (1) (B) (telephone
service providers "shall collect" 9-1-1 charges)),
thus giving rise to their claims due to the providers'
alleged failure or refusal to do so. The duty to bill and
collect the charges imposed by the 9-1-1 Act falls within the
ambit of OCGA §§ 51-1-6 and 51-1-8, even though
they arise from a statute that does not directly provide for
a private cause of action. See, e.g., Pulte Home Corp. v.
Simerly, 322 Ga.App. 699, 705-706 (3) (746 S.E.2d 173)
(2013) (violations of Georgia Water Quality Control Act,
Georgia Waste Control Act and Georgia Erosion and
Sedimentation Control Act "fall within the ambit of OCGA
§ 51-1-6"); Dupree, supra at 141-142 (1)
(violation of federal OSHA regulations are admissible as
evidence of and give cause of action when in concert with
OCGA § 51-1-6).
not agree with the Defendants' argument that Best
Jewelry Mfg. Co., Inc., supra, and U.S. Bank, N. A.
v. Phillips, 318 Ga.App. 819 (734 S.E.2d 799) (2012),
require a different result. In Best Jewelry, supra,
the plaintiff filed a class action, inter alia, on the
grounds that the superior court's e-filing system, as
implemented, violated various statutes and regulations.
Id. at 830 (1) (a) (i). This Court affirmed the
trial court's grant of a motion to dismiss these claims,
finding that the claims had no basis other than statutory
violations and that the plaintiff failed to plead "facts
sufficient to show violations" of the statutes.
Id. at 830 (1) -834 (1) (b). In U.S. Bank, N.
A., supra, this Court affirmed the trial court's
grant of a motion to dismiss the plaintiffs' claim under
OCGA § 51-1-6 for negligent implementation of the
Federal Home Affordable Modification Program because the
homeowner/plaintiff was not the intended third-party
beneficiary to whom the defendant owed a legal duty.
Id. at 820. The cases relied upon by the amici
curiae briefs, Reilly v. Alcan Aluminum
Corp, 272 Ga. 279, 280 (1) (528 S.E.2d 238) (2000)
and Mattox v. Yellow Freight Sys., Inc.,
243 Ga.App. 894, 895 (534 S.E.2d 561) (2000) are also
distinguishable. Both of those cases involve specific
prohibitions against liability, unlike this case.
both OCGA §§ 51-1-6 and 51-1-8 were passed in 1863,
prior to the passage of the 9-1-1 Act in 1977. Thus,
we must presume that the General Assembly had full knowledge
of the existing state of the law and enacted the statute with
reference to it. We construe statutes in connection and in
harmony with the existing law, and as a part of a general and
uniform system of jurisprudence, and their meaning and effect
is to be determined in connection, not only with the common
law and the constitution, but also with reference to other
statutes and the decisions of the courts.
(Punctuation and footnotes omitted.) Chase v. State,
285 Ga. 693, 695-696 (2) (681 S.E.2d 116) (2009). See also
Barbush v. Oiler, 158 Ga.App. 625, 625 (281 S.E.2d
359) (1981) ("Statutes are to be construed in connection
and in harmony with existing law") (citation and
punctuation omitted). Thus, in enacting the 9-1-1 Act, the
General Assembly would have been aware of the right of local
governments to pursue claims under OCGA §§51-1-6
and 51-1-8 if the telephone companies did not properly
collect these charges.
Defendants argue that the trial court erred in concluding
that the 9-1-1 charge imposed by the 9-1-1 Act is a
"fee" rather than a "tax, " and contend
that if the trial court had properly classified the charge as
a tax, that it would have had no choice but to dismiss the
Counties' claim pursuant to our holding in Fulton
County v. T-Mobile, South, LLC, 305 Ga.App. 466 (699
S.E.2d 802) (2010). In essence, the Defendants argue that if
the charges at issue are taxes, that a common law action for
the recovery of the taxes will not lie. Kirk v.
Bray, 181 Ga. 814, 818 (184 SE 733) (1935). However, as
we found in Division 2 herein, the Counties have statutory
claims against the Defendants pursuant to OCGA §§
51-1-6 and 51-1-8 to enforce the duty imposed upon the
Defendants by the 9-1-1 Act. And, even if we were to assume
that such claims are really claims at common law, the
Counties have complained that T-Mobile was
wrongfully decided or inapplicable to the facts of this case.
As explained below, we vacate the trial court's decision
on the issue of whether the 9-1-1 Act charges are a tax or a
fee, and remand for further consideration.
it is often important to decide whether a particular charge
is a fee or a tax, it is frequently difficult to discern
whether a given enactment provides for a regulatory fee or
authorizes simply a tax." Hadley v. City of
Atlanta, 232 Ga.App. 871, 872 (1) (502 S.E.2d 784)
(1998). The distinction between a tax and a fee "is not
one of names but of substance." Richmond County
Business Assoc. v. Richmond County, 224 Ga. 854, 856 (1)
(165 S.E.2d 293) (1968). Our Supreme Court has defined a tax
as "an enforced contribution exacted pursuant to
legislative authority for the purpose of raising revenue to
be used for public or governmental purposes, and not as
payment for a special privilege or a service rendered."
(Citation and punctuation omitted; emphasis supplied.)
McLeod v. Columbia County, 278 Ga. 242, 244 (2) (599
S.E.2d 152) (2004). A charge is generally not a tax if its
purpose and objective is to compensate for services rendered.
Id. Additional factors which distinguish a fee from
First, taxes are a means for the government to raise general
revenue and usually are based on ability to pay (such as
property or income) without regard to direct benefits which
may inure to the payor or to the property taxed. Fees, on the
other hand, are intended to be and should be clearly
described as a charge for a particular service provided.
Second, fees should apply based on the contribution to the
problem. Third, fee payers, unlike tax payers, should receive
some benefit from the service for which they are paying,
although the benefits may be indirect or immeasurable.
(Citation and punctuation omitted.) Id. See also
Homewood Village, LLC v. Unified Govt. of Athens-Clarke
County, 292 Ga. 514, 515 (1) (739 S.E.2d 316) (2013).
The last factor set forth in McLeod, supra - that
fee payers, unlike tax payers, should receive some benefit
from the service for which they are paying, although the
benefits may be indirect ...