BELLSOUTH TELECOMMUNICATIONS, LLC et al.
COBB COUNTY, GEORGIA et al.
DILLARD, P. J., BROWN and MARKLE, JJ.
case concerns a county's ability to sue telecommunication
providers("Defendants") for allegedly
failing to collect the proper amount of 9-1-1 charges from
their customers and to provide an accounting under the
Georgia Emergency Telephone Number 9-1-1 Service Act of 1977,
OCGA § 46-5-120 et seq. ("the Act"). In
Bellsouth Telecommunications, LLC v. Cobb County,
342 Ga.App. 323 (802 S.E.2d 686) (2017) (physical precedent
only as to Div. 3), we affirmed in part, reversed in part,
and vacated in part the trial court's denial of
Defendants' motions to dismiss. We held that Cobb County
and Gwinnett County ("the Counties") did not have
an implied right of action to pursue its claims for damages
against the telecommunication providers in the absence of any
such express right under the Act. Id. at 326-328
(1). However, we found that the Counties could pursue their
tort claims for failure to comply with the Act pursuant to
OCGA §§ 51-1-6 and 51-1-8. Id. at 328-330
(2). We also vacated the trial court's finding that the
9-1-1 charges mandated by the Act were a fee, not a tax, and
remanded the case to the trial court with instructions to
develop the record as to this issue. Id. at 330-333
Supreme Court reversed, holding that the 9-1-1 charges under
the Act were a tax as a matter of law, and that the Counties
could not seek a remedy for the alleged arrearage under the
Act or in tort. Bellsouth Telecommunications, LLC v.
Cobb County, 305 Ga. 144 (824 S.E.2d 233) (2019). The
Supreme Court further directed that the case be remanded to
the trial court with direction to grant the Defendants'
motions to dismiss the Counties' claims for damages.
Id. at 155 (2). We therefore vacate our previous
opinion, adopt the decision of the Supreme Court as our own,
reverse the trial court's denial of the Defendants'
motions to dismiss the damages claims, and remand the case to
the trial court with instructions to dismiss said claims.
addition, the Supreme Court remanded the case to this Court
for further proceedings consistent with its opinion; namely,
the consideration of whether the Counties' claims for an
accounting remained viable. 305 Ga. at 155 (2), n. 17. In our
previous decision, we did not address the Defendants'
contention that the trial court erred by refusing to dismiss
the Counties' claims for an accounting under OCGA §
46-5-134 (d) (4) (July 1, 2012). As directed, we do so now.
Defendants argue that the Counties' lack of a right of
action to enforce the Act against telecommunication
providers, such as themselves, is fatal to their claims for
accounting. We agree.
previous opinion, we held that the Counties had no implied
right of action under the Act to pursue their damages claims
for Defendants' alleged failure to fully collect the due
and owing 9-1-1 charges. 342 Ga.App. at 328 (1). As noted by
the Supreme Court, the parties did not seek certiorari on the
issue of whether the Act created an implied right of action.
305 Ga. at 154 (2). Thus, our prior holding that no such
implied right existed remains binding precedent. 342 Ga.App.
at 328 (1). That rationale likewise applies to bar the
Counties' claims for an accounting under the
provides that "[t]he 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 9-1-1 charges." OCGA §
46-5-134 (d) (4) (July 1, 2012); see also OCGA §
46-5-134 (i) (July 1, 2012). The Act further requires
telecommunication suppliers to maintain records of the 9-1-1
charges for at least three years from the date of collection.
OCGA § 46-5-134 (i) (July 1, 2012). However, the Act is
silent with regard to any penalties for, or any basis for
relief from, noncompliance with these provisions.
may not interpolate remedies into a statute. As we have
[t]he judicial task is, of course, to interpret the statute
the General Assembly has passed to determine whether it
displays an intent to create not just a private right of
action but also a private remedy. And statutory intent, as
reflected by the plain meaning of the relevant text, on this
latter point is determinative. In the absence of such textual
support, a cause of action does not exist and courts may not
create one, no matter how desirable that might be as a policy
matter, or how compatible with the statute.
(Citations and punctuation omitted.) Somerville v.
White, 337 Ga.App. 414, 416-417 (1) (787 S.E.2d 350)
(2016); see also 342 Ga.App. at 326 (1) ("[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") (citation omitted); cf. Anthony v.
American Gen. Financial Svcs., Inc., 287 Ga. 448, 455
(2) (a) (697 S.E.2d 166) (2010) ("the indication that
the legislature meant to impose a civil as well as criminal
penalty must be found in the provisions of the statute at
issue, not extrapolated from the public policy the statute
generally appears to advance.") (citation, punctuation,
and emphasis omitted). We thus conclude that the Act did not
provide the Counties with an implied right to bring claims
for accounting against the Defendants. Accordingly, we
reverse the trial court's denial of Defendants'
motions to dismiss these claims, and remand the case to the
trial court with instructions to dismiss the accounting
Notwithstanding the above, we note that Defendants Earthlink,
Inc.; Earthlink, LLC; Deltacom, LLC; and Business Telecom,
LLC have now filed with this Court their suggestion of
Chapter 11 bankruptcy and notice of automatic stay pending
the disposition of the bankruptcy petition. However, we lack
the authority to grant such a stay due to our
constitutionally mandated term limits. Boardman v.
Brenninkmeijer, 328 Ga.App. 882, 882-883 (763 S.E.2d
267) (2014). Therefore, as to these Defendants, we remand
this case to the trial court until such time as the
bankruptcy stay is lifted and the matter may proceed,
consistent with this opinion. See Id. at 883.
reversed and case ...