Century Tel of Ala., LLC v. Dothan/Hous. Cnty. Commc'ns Dist.
| Decision Date | 30 September 2015 |
| Docket Number | 1131313. |
| Citation | 197 So.3d 456 |
| Parties | CENTURY TEL OF ALABAMA, LLC, and Qwest Communications Company, LLC v. DOTHAN/HOUSTON COUNTY COMMUNICATIONS DISTRICT and Ozark/Dale County E–911, Inc. |
| Court | Alabama Supreme Court |
Ashton H. Ott and Ernest H. Hornsby of Farmer, Price, Hornsby & Weatherford, LLP, Dothan; Kevin R. Garrison of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham; and Misty Kelley of Baker, Donelson, Bearman, Caldwell & Berkowitz, Chattanooga, Tennessee, for appellants.
W. Percy Badham III, Brannon J. Buck, and Brett A. Ialacci of Badham & Buck, LLC, Birmingham; and R. Cliff Mendheim of Prim & Mendheim, LLC, Dothan, for appellees.
Robert E. Battle and Adam P. Plant of Battle & Winn LLP, Birmingham, for amicus curiae Alabama Local Emergency Communications District, in support of the appellees.
BOLIN
, Justice.
Dothan/Houston County Communications District and Ozark/Dale County E–911, Inc. (“the districts”), sued Century Tel of Alabama, LLC (“CTA”), and Qwest Communications Company, LLC (“Qwest”) (hereinafter collectively referred to as “the defendants”), seeking, among other things, to recover E–911 charges that the defendants were alleged to have not properly billed and collected in accordance with the Emergency Telephone Service Act, § 11–98–1 et seq., Ala.Code 1975
(“the ETSA”). The defendants moved the circuit court to dismiss the complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P. The circuit court denied the defendants' motion. The defendants then petitioned this Court, pursuant to Rule 5, Ala. R.App. P., for permission to appeal from the circuit court's interlocutory order. We granted the petition.
In 1984, the Alabama Legislature enacted the ETSA1 for the purpose of shortening the time for a citizen to request and receive emergency-services aid via emergency 911. § 11–98–3, Ala.Code 1975
. The ETSA provided that the governing body of a municipality or county may create an emergency-communications district within its jurisdiction to provide enhanced 911 (“E–911”) service, which was defined in the 1984 act as “a telephone exchange communications service whereby a public safety answering point (PSAP) designated by the customer may receive telephone calls dialed to the telephone number 911.” § 11–98–1(3), Ala.Code 1975
.2 The ETSA provided that the emergency-communications districts are political and legal subdivisions of the State of Alabama with the power to sue and be sued in their corporate names. § 11–98–2, Ala.Code 1975. In addition to the “authority, and powers necessary to establish, operate, maintain, and replace an emergency communications system,” the ETSA granted the emergency-communications districts the authority “to prosecute[ ] and defend civil actions in any court having jurisdiction.” § 11–98–4(f)(1), Ala.Code 1975. The districts are emergency-communications districts created pursuant to the ETSA and provide E–911 services to the citizens of Houston and Dale Counties.
Before the ETSA was amended effective October 1, 2013, the emergency-communications districts were funded by emergency-telephone-service charges (“911 charges”) that were assessed to users of residential- and business-telephone services by the emergency-communications districts. § 11–98–5(a)(1), Ala.Code 1975
. The ETSA required that 911 charges be assessed for every “exchange access line” or “exchange access facility,” i.e., telephone line. § 11–98–5(c), Ala.Code 1975. The ETSA also required that 911 charges be assessed against those receiving telephone service through voice-over-Internet-protocol (“VoIP”) or other “similar technology.” § 11–98–5.1(c), Ala.Code 1975.3 The telephone-service providers were required by the ETSA to collect the 911 charges from the telephone-service users and then to remit those 911 charges to the emergency-communications districts on a monthly basis. § 11–98–5(c) and (e), Ala.Code 1975. The telephone-service providers were entitled to retain from the gross receipts remitted to the emergency-communications districts an administrative fee in an amount equal to one percent of the total remitted. § 11–98–5(e), Ala.Code 1975. The defendants are telephone-service providers.
The emergency-communications districts were entitled to audit annually the books and records of the telephone-service providers with respect to the collection and remittance of 911 charges. § 11–98–5(e), Ala.Code 1975
. The districts levied the 911 charges in Houston and Dale Counties pursuant to the ETSA.
Pursuant to § 11–98–7 of the ETSA, the Commercial Mobile Radio Service (“CMRS”) Board (“the CMRS Board”) was created for the purpose of levying a CMRS emergency-telephone-service charge on each CMRS connection—which is defined as a mobile or wireless telephone number—that has a place of primary use within the State of Alabama. §§ 11–98–6(5) and –7(b)(1), Ala.Code 1975
. Before October 1, 2013, each CMRS provider was required to collect the CMRS 911 service charges from each CMRS connection to which it provided CMRS service and then to remit those service charges to the CMRS Board. § 11–98–8, Ala.Code 1975. The moneys remitted to the CMRS Board were deposited into the CMRS fund, which was maintained by the CMRS Board.
. Those funds were subsequently dispersed to the emergency-communications districts. § 11–98–7(3), Ala.Code 1975.
The CMRS providers were required to provide to the emergency-communications-district management-review board an annual accounting of the CMRS 911 service charges collected and remitted. § 11–98–8(e), Ala.Code 1975
. The CMRS providers were required by the ETSA to collect and remit the CMRS 911 service charges to the CMRS Board. However, if the CMRS providers failed to do so, the CMRS Board could seek enforcement of the statute in the Montgomery Circuit Court. § 11–98–8(g), Ala.Code 1975.
In 2012, the Alabama Legislature enacted Act No. 2012–293, Ala. Acts 2012, which substantially overhauled the ETSA. The legislature created a statewide 911 Board (“the 911 Board”) and 911 fund. §§ 11–98–4.1
and 11–98–5.2, Ala.Code 1975, respectively. The 911 Board replaced and superseded the CMRS Board, and the CMRS fund was incorporated into the newly created 911 fund. § 11–98–4.1, Ala.Code 1975. However, the legislature left intact §§ 11–98–2 and 11–98–4, which created and gave authority to the emergency-communications districts. Thus, the districts continue to exist and have all the powers and authority set forth by §§ 11–98–2 and 11–98–4 prior to the 2012 amendments to the ETSA.
As part of the 2012 amendments, the legislature substantially amended § 11–98–5
to provide for a “single, monthly statewide 911 charge ... on each active voice communications service connection [wireline and mobile telephones] in Alabama that is technically capable of accessing a 911 system.” § 11–98–5(a), Ala.Code 1975. The telephone-service providers are required to collect the 911 charges from the telephone-service subscribers on a monthly basis and then to remit the 911 charges collected to the 911 Board. § 11–98–5(a) and (b), Ala.Code 1975. The 911 charges are then deposited in the 911 fund for subsequent distribution to the emergency-communications districts. § 11–98–5.2(b)(1), Ala.Code 1975. The amended version of § 11–98–5 did not retain subsection (e), which allowed the emergency-communications districts, at their discretion, to require the telephone-service providers to submit to an annual audit of the service providers' books and records with respect to the collection and remittance of 911 charges. Instead, the legislature added § 11–98–13, Ala.Code 1975, which requires the 911 Board to conduct a biennial audit of the telephone-service providers in order to ensure the accuracy of the 911 charges and other information required to be submitted to the 911 Board by the telephone-service providers. The 2012 amendments to the ETSA became effective on October 1, 2013.
The districts sought to audit the defendants' billing records to determine the defendants' compliance, prior to the 2012 legislative amendments to the ETSA, with the ETSA. The districts contend that they initiated the audits before the October 1, 2013, effective date of the 2012 amendments to the ETSA. The defendants refused to comply with the requested audits. The districts state that they have determined from the limited information available to them that the defendants have provided telephone services to customers within the districts' jurisdiction without collecting and remitting to the districts the required 911 charges, in violation of the ETSA. The districts state that by billing and collecting less than the required amount of 911 charges, the defendants have been able to offer their telephone services at a lower cost to customers and have thereby gained a competitive advantage over other telephone-service providers.
On January 21, 2014, the districts sued the defendants, asserting claims alleging a violation of the ETSA for failing to properly bill, collect, and remit the 911 fees; negligence; wantonness; and breach of a fiduciary duty. The districts sought to require the defendants to comply with the requests for audits and to recover and remit any unpaid 911 charges.
On March 10, 2014, the defendants moved the Houston Circuit Court to dismiss the districts' complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P
. The defendants noted that the legislature repealed the local 911 fee system as part of the 2012 amendments to the ETSA and replaced it with the single statewide fee scheme that became effective on October 1, 2013. The defendants contended that all the duties the districts alleged the defendants violated were part of the now repealed local 911 fee system. Relying upon ...
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