342 Ga. App. 323
Ga. Ct. App.2017Background
- Georgia's 9-1-1 Act (OCGA § 46-5-120 et seq.) authorizes local governments to impose a monthly 9-1-1 charge (up to $1.50) on telephone services and requires service suppliers to collect and remit those charges and allow audits of suppliers’ books.
- Cobb and Gwinnett Counties sued BellSouth and several service providers, alleging defendants under-billed two classes of customers (multiplex lines and VoIP numbers) and thus failed to collect/remit required 9-1-1 charges. Counties seek damages equal to unpaid charges and punitive damages; they also seek to enforce the statute’s audit provision.
- Defendants moved to dismiss. The trial court denied dismissal, finding (a) the 9-1-1 charge is a fee, not a tax, and (b) the Counties could enforce the Act via implied/statutory/common-law claims. Defendants appealed interlocutorily.
- The Court of Appeals held the 9-1-1 Act does not create an express or implied private right of action against service suppliers, but allowed County claims to proceed under OCGA §§ 51-1-6 and 51-1-8 (statutory/common-law duties) because the Act imposes a mandatory duty to collect.
- The court found the tax-vs.-fee classification unresolved on the record; remanded that issue for discovery because factual questions (e.g., whether local subscribers receive special benefits) affect the analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 9-1-1 Act creates an implied private right of action for counties to sue service suppliers | Counties: statutory scheme (including audit power) implies remedy against suppliers | Defendants: Georgia rejects creation of implied private rights; no express remedy in Act | No implied private right; trial court erred to the extent it found one |
| Whether counties may enforce statutory duty via OCGA §§ 51-1-6 / 51-1-8 (common-law statutory-duty claims) | Counties: Act imposes mandatory duty to collect/remit, so counties may recover for breach under §§ 51-1-6/51-1-8 | Defendants: OCGA §§ 51-1-6/1-8 cannot be used to circumvent lack of express remedy | Held: Counties may pursue claims under §§ 51-1-6 and 51-1-8 because Act imposes a duty; viability depends on elements (duty, class protected, harm, causation) |
| Whether the 9-1-1 charge is a tax or a fee (affects availability of common-law recovery) | Counties: factual record may show local subscribers receive special/unique benefits (supports characterization as a fee) | Defendants: prior precedent (T-Mobile) treats the 9-1-1 charge as a tax; if tax, certain common-law recovery barred | Court: Classification unresolved on pleadings; vacated trial court ruling and remanded for discovery to resolve factual disputes |
| Whether T-Mobile controls and compels dismissal | Defendants: T-Mobile holds 9-1-1 charge is a tax; common-law recovery for taxes impermissible | Counties: T-Mobile involved different posture (taxpayer refund) and facts; counties here seek enforcement of suppliers’ duty to collect | Court: T-Mobile potentially distinguishable; not dispositive on present record—remand for factfinding |
Key Cases Cited
- Somerville v. White, 337 Ga. App. 414 (2016) (Georgia courts disfavour judicially creating implied private rights of action)
- Govea v. City of Norcross, 271 Ga. App. 36 (2004) (statutory/regulatory violations do not automatically create civil causes of action)
- Anthony v. American Gen. Fin. Svcs., 287 Ga. 448 (2010) (legislature codified caution against implying private causes of action)
- Fulton Cty. v. T-Mobile S., 305 Ga. App. 466 (2010) (held 9-1-1 charge is a tax in the context of prepaid wireless point-of-sale collection)
- McLeod v. Columbia Cty., 278 Ga. 242 (2004) (distinguishing taxes from fees; fees compensate for services rendered)
- Parris v. State, 229 Ga. App. 522 (1997) (OCGA § 51-1-6 does not itself create a cause of action but permits recovery when another law imposes a duty)
- Best Jewelry Mfg. Co. v. Reed Elsevier, Inc., 334 Ga. App. 826 (2015) (standards for surviving a motion to dismiss; statutory-violation claims require facts showing violation)
- Wells Fargo Bank, N.A. v. Jenkins, 293 Ga. 162 (2013) (to invoke OCGA § 51-1-6, plaintiff must show breach of a statutory duty with an ascertainable standard of conduct)