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Case Nos. 16-5149/16-5150/16-5151/16/5152/16-5153/16-5154/

16-5155/16-5156/16-5157/16-5158
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HAMILTON COUNTY EMERGENCY COMMUNICATIONS DISTRICT, et al.,
Plaintiffs-Appellants,
v.
BELLSOUTH TELECOMMUNICATIONS, LLC d/b/a AT&T TENNESSEE,
Defendant-Appellee.
On Appeal from the United States District Court
Eastern District of Tennessee, Chattanooga Division
Case No. 1:11-cv-00330 (Lead Case) (The Honorable Curtis L. Collier)
BRIEF OF DEFENDANT-APPELLEE
BELLSOUTH TELECOMMUNICATIONS, LLC
SCOTT H. ANGSTREICH
JEREMY S. NEWMAN
KELLOGG, HUBER, HANSEN, TODD,
EVANS & FIGEL, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 326-7900
(202) 326-7999 (facsimile)
sangstreich@khhte.com
jnewman@khhte.com
Attorneys for BellSouth Telecommunications, LLC
May 12, 2016

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DISCLOSURE OF CORPORATE AFFILIATIONS

AND FINANCIAL INTEREST
Pursuant to Sixth Cir. R. 26.1, Defendant-Appellee BellSouth
Telecommunications, LLC (BellSouth) makes the following disclosure:
1.
Is said party a subsidiary or affiliate of a publicly owned corporation?
If Yes, list below the identity of the parent corporation or affiliate and the
relationship between it and the named party:
Yes. Defendant-Appellee BellSouth Telecommunications, LLC is
wholly owned by BellSouth, LLC. BellSouth, LLC is wholly owned by
AT&T DataComm, LLC. AT&T DataComm, LLC is wholly owned by
AT&T DataComm Holdings, Inc. AT&T DataComm Holdings, Inc. is a
wholly owned subsidiary of AT&T Inc. AT&T Inc. is a publicly traded
company, and there is no one person or group that owns 10% or more of the
stock of AT&T Inc.
2.
Is there a publicly owned corporation, not a party to the appeal, that
has a financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
None.
Dated: May 12, 2016
/s/ Scott H. Angstreich
Scott H. Angstreich

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TABLE OF CONTENTS
Page
DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST .......................................................................i
TABLE OF AUTHORITIES ....................................................................................iv
STATEMENT IN SUPPORT OF ORAL ARGUMENT .........................................ix
STATEMENT OF ISSUES .......................................................................................1
STATEMENT OF THE CASE .................................................................................. 2
A.

Statutory Background ............................................................................ 2

B.

BellSouths Billing and Remittance of 911 Charges ............................ 4

C.

Procedural History................................................................................. 6
1.

The Complaints ........................................................................... 6

2.

The Motion To Dismiss Ruling .................................................. 7

3.

The Discovery Record and Summary Judgment

Decision ......................................................................................9

SUMMARY OF THE ARGUMENT ......................................................................14

ARGUMENT ...........................................................................................................18
I.

STANDARD OF REVIEW ...........................................................................18

II.

THE COURT CORRECTLY DISMISSED THE DISTRICTS

CLAIM TO ENFORCE THE 911 LAW AGAINST BELLSOUTH ............ 19
A.

The Court Correctly Applied Tennessee Law in Finding that

the 911 Law Does Not Create an Implied Right of Action To
Sue Service Suppliers ..........................................................................19
1.

The Districts Are Not an Intended Beneficiary Within

the Protection of the Statute ......................................................20
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B.

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2.

The Legislature Did Not Intend To Grant a Right of

Action Against Service Suppliers .............................................22

3.

Implying a Right of Action into the 911 Law Would

Not Be Consistent With the Underlying Purposes of
the Legislation ...........................................................................26

The Districts Additional Arguments Lack Merit ...............................27

III.

THE COURT CORRECTLY GRANTED SUMMARY

JUDGMENT ON THE DISTRICTS FIDUCIARY DUTY
CLAIMS ........................................................................................................30

IV.

THE COURT CORRECTLY GRANTED SUMMARY

JUDGMENT ON THE DISTRICTS TENNESSEE FCA CLAIMS ........... 33
A.

Legitimate Disagreements About Statutory Interpretation

Cannot Form the Basis of FCA Claims...............................................34

B.

BellSouths Billing Was Based on Reasonable Interpretations

of the 911 Law .....................................................................................37
1.

100-Line Cap.............................................................................38

2.

Centrex Lines ............................................................................39

3.

Federal Government Lines ........................................................41

4.

Multiplex Lines .........................................................................42

C.

The Court May Affirm Summary Judgment on the FCA

Claims on Alternative Grounds ...........................................................45

D.

The Districts Argument About an Alleged Gap in 911

Billing is Irrelevant and Provides No Justification for
Reversal ...............................................................................................49

CONCLUSION ........................................................................................................55
ADDENDUM

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TABLE OF AUTHORITIES
Page(s)
CASES
American Textile Mfrs. Inst., Inc. v. The Limited, Inc.,
190 F.3d 729 (6th Cir. 1999) ........................................................................ 48
Astra USA, Inc. v. Santa Clara Cty.,
563 U.S. 110 (2011)...................................................................................... 33
Bath Iron Works Corp. v. Director, Office of Workers Comp. Programs,
506 U.S. 153 (1993)...................................................................................... 28
Bazzi v. City of Dearborn,
658 F.3d 598 (6th Cir. 2011) ........................................................................ 46
Brown v. Tennessee Title Loans, Inc.,
328 S.W.3d 850 (Tenn. 2010) ............................................................... passim
CAO Holdings, Inc. v. Trost,
333 S.W.3d 73 (Tenn. 2010) ........................................................................ 45
Century Tel of Ala., LLC v. Dothan/Houston Cty. Commcns Dist.,
___ So.3d ___, 2015 WL 5725111 (Ala. Sept. 30, 2015) ...................... 28, 29
Clay v. First Horizon Home Loan Corp.,
392 S.W.3d 72 (Tenn. Ct. App. 2012).......................................................... 22
Emerson v. Novartis Pharm. Corp.,
446 F. Appx 733 (6th Cir. 2011) ................................................................. 54
Ergon, Inc. v. Amoco Oil Co.,
966 F. Supp. 577 (W.D. Tenn. 1997) ..................................................... 23, 26
Gordon v. Greenview Hosp., Inc.,
300 S.W.3d 635 (Tenn. 2009) ................................................................ 16, 30
Hagood v. Sonoma Cty. Water Agency,
81 F.3d 1465 (9th Cir. 1996) ............................................................ 17, 36, 44

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Hartsel v. Keys,
87 F.3d 795 (6th Cir. 1996) .......................................................................... 19
Laborers Local 265 Pension Fund v. iShares Trust,
769 F.3d 399 (6th Cir. 2014) ........................................................................ 24
Loyd v. St. Joseph Mercy Oakland,
766 F.3d 580 (6th Cir. 2014) .................................................................. 18, 19
Madison Cty. Commcns Dist. v. BellSouth Telecomms., Inc.,
No. CV-06-S-1786-NE, 2009 WL 9087783
(N.D. Ala. Mar. 31, 2009) ...................................................................... 28, 29
McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819) ..................................................................... 41
McDonald v. Dunn Constr. Co.,
185 S.W.2d 517 (Tenn. 1945) ...................................................................... 31
Merritt v. Mountain Laurel Chalets, Inc.,
96 F. Supp. 3d 801 (E.D. Tenn. 2015) ......................................................... 31
Mik v. Federal Home Loan Mortg. Corp.,
743 F.3d 149 (6th Cir. 2014) .................................................................. 23, 24
Minnesota Assn of Nurse Anesthetists v. Allina Health Sys. Corp.,
276 F.3d 1032 (8th Cir. 2002) ...................................................................... 44
Morrison v. City of Bolivar,
No. W2011-01874-COA-R9-CV, 2012 WL 2151480
(Tenn. Ct. App. June 14, 2012) .................................................................... 22
Ohio Police & Fire Pension Fund v. Standard & Poors Fin. Servs. LLC,
700 F.3d 829 (6th Cir. 2012) ........................................................................ 18
Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc.,
978 S.W.2d 91 (Tenn. 1998) .................................................................. 19, 22
State ex rel. Landenberger v. Project Return, Inc.,
No. M2007-02859-COA-R3-CV, 2009 WL 637122
(Tenn. Ct. App. Mar. 11, 2009) .................................................................... 35
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Tagg v. Tennessee Natl Bank,

56 Tenn. 479 (1872) ..................................................................................... 45
Traverse Bay Area Intermediate Sch. Dist. v. Michigan Dept of Educ.,
615 F.3d 622 (6th Cir. 2010) ........................................................................ 24
United States v. Boyd,
363 S.W.2d 193 (Tenn. 1962) ...................................................................... 32
United States v. Southland Mgmt. Corp.,
326 F.3d 669 (5th Cir. 2003) ...................................................... 14, 35, 37, 39
United States v. Universal Mgmt. Servs., Inc.,
191 F.3d 750 (6th Cir. 1999) ........................................................................ 30
United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Grp., Inc.,
400 F.3d 428 (6th Cir. 2005) ........................................................................ 35
United States ex rel. Gudur v. Deloitte Consulting LLP,
512 F. Supp. 2d 920 (S.D. Tex. 2007),
affd, No. 07-20414, 2008 WL 3244000 (5th Cir. Aug. 7, 2008) ................ 39
United States ex rel. Hobbs v. MedQuest Assocs., Inc.,
711 F.3d 707 (6th Cir. 2013) ................................................................. passim
United States ex rel. Lamers v. City of Green Bay,
168 F.3d 1013 (7th Cir. 1999) .............................................. 12, 17, 35, 39, 54
United States ex rel. Morton v. A Plus Benefits, Inc.,
139 F. Appx 980 (10th Cir. 2005) ............................................................... 39
United States ex rel. Phalp v. Lincare Holdings, Inc.,
116 F. Supp. 3d 1326 (S.D. Fla. 2015),
appeal docketed, No. 16-10532 (11th Cir. Feb. 5, 2016) ............................. 39
United States ex rel. Roby v. Boeing Co.,
100 F. Supp. 2d 619 (S.D. Ohio 2000) ......................................................... 39
United States ex rel. Williams v. Renal Care Grp., Inc.,
696 F.3d 518 (6th Cir. 2012) ............................................................ 16, 35, 49

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CONSTITUTIONAL PROVISIONS
U.S. Const. art. VI, cl. 2 .......................................................................................... 42
STATUTES
Ala. Code 11-98-4(f)(1)....................................................................................... 29
Tenn. Code Ann. 1-3-119 .................................................................................... 27
Tenn. Code Ann. 1-3-119(b) ................................................................................ 27
Tenn. Code Ann. 1-3-119(c)(4) ..................................................................... 27, 28
Tenn. Code Ann. 4-5-202 .................................................................................... 45
Tenn. Code Ann. 4-5-203 .................................................................................... 45
Tenn. Code Ann. 4-5-204 .................................................................................... 45
Tenn. Code Ann. 4-5-205 .................................................................................... 45
Tennessee False Claims Act, Tenn. Code. Ann. 4-18-101, et seq................ passim
Tenn. Code Ann. 4-18-103(a)(7) ............................................. 12, 17, 35, 47
Tennessee 911 Law, Tenn. Code Ann. 7-86-101, et seq. ............................. passim
Tenn. Code Ann. 7-86-102(a)...................................................................... 2
Tenn. Code Ann. 7-86-102(b)(1)......................................................... 20, 26
Tenn. Code Ann. 7-86-102(d) ................................................................... 21
Tenn. Code Ann. 7-86-103(7) ......................................................... 3, 39, 40
Tenn. Code Ann. 7-86-103(10) ................................................................... 3
Tenn. Code Ann. 7-86-104 .......................................................................... 2
Tenn. Code Ann. 7-86-105(b)(7)............................................................... 21

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Tenn. Code Ann. 7-86-107 .......................................................................... 2

Tenn. Code Ann. 7-86-108(a)(1)(A) ..................................... 2, 3, 31, 38, 39
Tenn. Code Ann. 7-86-108(a)(2)(A) ..................................................... 3, 31
Tenn. Code Ann. 7-86-108(b) ................................................................... 31
Tenn. Code Ann. 7-86-108(c)................................................................ 3, 48
Tenn. Code Ann. 7-86-110(a)................................................................ 3, 47
Tenn. Code Ann. 7-86-110(b) ..................................................................... 3
Tenn. Code Ann. 7-86-110(c).................................................... 4, 23, 24, 25
Tenn. Code Ann. 7-86-110(d) ............................................................... 3, 49
Tenn. Code Ann. 7-86-110(e)................................................................ 8, 25
Tenn. Code Ann. 7-86-302(a) (2015) .................................................................. 26
Tennessee Title Pledge Act, Tenn. Code Ann. 45-15-101, et seq. ................ 25, 29
Tenn. Code Ann. 45-15-104(b) ................................................................. 25
911 Funding Modernization and IP Transition Act of 2014,
Tenn. Laws Pub. Ch. 795 (H.B. 2255) ........................................................... 2
Tenn. Code Ann. 7-86-110(a) (2015) ........................................................ 26
RULES & REGULATIONS
Tenn. Comp. R. & Regs. 1220-4-8-.13(2) .............................................................. 43
Tenn. Comp. R. & Regs. 1220-4-8-.13(4) .............................................................. 43
OTHER AUTHORITIES
9-1-1 Emergency Number Fee, State of Tennessee, In re,
B-230691, 1988 WL 227111 (Comp. Gen. May 12, 1988) ......................... 41

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STATEMENT IN SUPPORT OF ORAL ARGUMENT

The district court applied settled Tennessee law to an extensive record
developed through discovery and summary judgment briefing. Nonetheless,
BellSouth respectfully submits that oral argument may be of use to the Court.

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STATEMENT OF ISSUES
1.

Whether the district court correctly held that the Tennessee 911 Law,

Tenn. Code Ann. 7-86-101, et seq. (911 Law), did not provide a right of action
for the plaintiff Districts to sue telephone companies to enforce that statute.
2.

Whether the district court correctly granted summary judgment to

BellSouth on the Districts fiduciary duty claims, where the 911 Law did not
expressly make BellSouth the Districts agent, and the Districts exercised
insufficient control over BellSouth to create a fiduciary relationship under
Tennessee law.
3.

Whether the district court correctly granted summary judgment to

BellSouth on the Districts Tennessee False Claims Act (FCA), Tenn. Code.
Ann. 4-18-101, et seq., claims, where the disputes between the parties were the
result of legitimate disagreements over the interpretation of the 911 Law and,
moreover, BellSouth did not make any knowing false statements, BellSouth did not
reduce its payment obligations or retain money owed to the Districts, and the 911
Law did not require certification of compliance with its requirements.

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STATEMENT OF THE CASE

A.

Statutory Background

In 1984, Tennessee enacted its 911 Law, establishing 911 as the uniform
emergency telephone number throughout Tennessee.1 The purpose of the statute
was to provide a simplified means of securing emergency services, which will
result in saving of life, a reduction in the destruction of property, quicker
apprehension of criminals and, ultimately, the saving of money. Tenn. Code Ann.
7-86-102(a). The statute authorized counties and municipalities to create special
purpose local government entities called Emergency Communications Districts
(Districts or ECDs) to facilitate the routing of 911 calls and the dispatch of
emergency services, such as police, fire, or ambulance services. See id. 7-86104, 7-86-107.
To fund the 911 systems, Districts were authorized to levy a 911 charge on
telephone customers, called service users in the statute. Id. 7-86108(a)(1)(A). 2 The 911 charge is imposed on [e]xchange access facilities,

In 2014, the Tennessee legislature enacted the 911 Funding Modernization

and IP Transition Act, which amended the 911 Law, and went into effect on
January 1, 2015. See Tenn. Laws Pub. Ch. 795 (H.B. 2255). Except where
otherwise indicated, citations to the 911 Law are to the version in effect before
January 1, 2015, which is set forth in the Districts Statutory Addendum, at 99-130.
2

Each District had authority to set a rate of up to $0.65 per month for
residential customers and $2.00 per month for business customers. See Tenn. Code
Ann. 7-86-108(a)(1)(A). If approved in a referendum, a District had the
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defined as all lines, provided by the service supplier for the provision of exchange
telephone service, as defined in existing general subscriber services tariffs filed by
the service supplier with the Tennessee regulatory authority. Id. 7-86-103(7),
7-86-108(a)(1)(A). 3
The statute makes the telephone customer liable for any service charge
imposed under this chapter until it has been paid to the service supplier. Id.
7-86-108(c). The 911 Law assigned telephone companies, called service
suppliers, a functional role: to serve as the conduit through which customers 911
charge payments were transmitted to the Districts. Specifically, service suppliers
were obligated to bill their customers for 911 charges, collect the 911 charges as
part of their regular billing, and remit the funds collected to the Districts, less an
administrative fee of up to 3 percent. See id. 7-86-108(c), 7-86-110(a)-(b).
Service suppliers were required to remit the funds collected to the Districts every
two months and to provide the Districts with an annual[ ] . . . accounting of the
amounts billed and collected and of the disposition of such amounts. Id. 7-86110(a), (d). The 911 Law specifically authorized the District to bring collection
actions against any service user who fails to pay any proper [911] charge. Id.
authority to increase the monthly charge to up to $1.50 for residential customers
and $3.00 for business customers. See id. 7-86-108(a)(2)(A).
3

There is a 100-line cap on 911 charges per service user per location.
Tenn. Code Ann. 7-86-108(a)(1)(A). Payphone lines are specifically excluded.
See id. 7-86-103(10).
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7-86-110(c). The statute contains no similar provision authorizing the District to

bring any type of action against service suppliers.
B.

BellSouths Billing and Remittance of 911 Charges

BellSouth is a telephone company that provides wireline (or landline)

telephone service throughout Tennessee. BellSouth plays two roles in Tennessees
911 system. First, BellSouth is one of the service suppliers that, under the 911
Law, bills 911 charges to its customers, collects those charges, and remits amounts
collected to the Districts. See SJ Opinion, R.326, PageID # 20816. Second,
BellSouth sells tariffed services to the Districts, which the Districts use to receive
911 calls from customers of multiple service suppliers. See Turner Second Supp.
Rep. 18-22, R.259-1, PageID # 10700-03. Under its tariff, BellSouth provides
selective routing, which routes a call to the appropriate 911 operator based on the
callers location. See id. 18, PageID # 10700. BellSouth also provides access to
databases that enable the 911 operator to know the callers telephone number and
location. See id. 19, PageID # 10700. BellSouths tariffed monthly rate for these
services is $130.00 per 1000 lines served. See id. 23, PageID # 10704.
Although only required to remit 911 charges collected to the Districts every
two months, BellSouth remitted funds monthly, along with forms identifying the
amounts collected and remitted. See Fisher Decl. 3, R.272-4, PageID # 16314.

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Before July 2010, BellSouths remittance forms contained the following

introductory text:
In accordance with the Tennessee Legislature, BellSouth has billed
and collected the Emergency Telephone Surcharges as stated below.
Id. 10 & Ex.A, PageID # 16315-16, 16321. The form then listed the Billed
Amount, less Uncollectible amount and Adjustments, to calculate the Net
Billed Amount. Id., Ex. A, PageID # 16321. The Net Billed Amount less the
Admin[istrative] Fee was the Net E911 Payable, which was the amount that
BellSouth remitted to the Districts. Id.
After July 2010, BellSouth outsourced the remittance process to Thomson
Reuters (later KPMG) and used their remittance form. See id. 12, PageID
# 16316. That standardized form contains columns listing the number of
residential and business lines for Gross Units, Less: Exempt Units, and Units
Subject to Tax. Id. 13-15 & Ex. B, PageID # 16316-17, 16323. The form then
lists the Tax Rate, or charge per residential and business line, and the Gross
Tax billed by BellSouth; it then subtracts uncollectible amounts and the
administrative fee to calculate the Net Tax Amount to be Remitted to the
Districts. Id., Ex. B, PageID # 16323.
BellSouth also filed annual remittance reports listing the Amount
Collected for business and residential lines and the Amount Transmitted to the
ECD. Id. 17 & Ex. C, PageID # 16317-18, 16334. The annual report uses a
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form created by the Tennessee Emergency Control Board (TECB) and states that
it provides an accounting of the amounts billed and collected, and of the
disposition of such amounts. Id.
C.

Procedural History
1.

The Complaints

Plaintiffs-Appellants are ten ECDs. On November 14, 2011, the Hamilton

County ECD filed its Complaint against BellSouth in the district court. See
Compl., R.1, PageID # 1. Nine other Districts subsequently filed similar lawsuits
against BellSouth, all of which the district court consolidated, designating
Hamilton County as the lead case. See Consolidation Order, R.35, PageID # 969;
Order Designating Lead Case, R.46, PageID # 1040. 4
As amended, the complaints alleged that BellSouth violated the 911 Law by
billing its customers too few 911 charges. See First Amend. Compl., R.13, PageID
# 114. The Districts did not allege that BellSouth wrongfully retained any 911
charges that it collected from its customers; rather, the Districts contended that
BellSouth should have billed more 911 charges to its customers. See id. 4-6,
PageID # 115-16. In alleging that BellSouth had underbilled its customers, the
Districts pointed to the difference between the number of per-line 911 charges

Citations in this brief are to the record in Hamilton County.

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BellSouth remitted and the number of lines BellSouth sold under its tariff to the
Districts to receive 911 calls. See id. 32-34, PageID # 122-23.
As relevant on appeal, the Districts brought claims under the Tennessee
FCA, under an asserted implied right of action to enforce the 911 Law, and breach
of fiduciary duty. See id. 89-165, PageID # 135-50.
2.

The Motion To Dismiss Ruling

BellSouth moved to dismiss the Complaint. On August 20, 2012, the district
court granted the motion in part and denied it in part. As relevant here, the district
court dismissed the Districts claim brought to enforce the 911 Law, finding that
the law did not grant the Districts a right of action against service suppliers.
The district court first found that the statute contains no express right of
action to sue service suppliers. See MTD Opinion, R.38, PageID # 1003-04. The
court then analyzed whether a right of action could be implied under the threefactor framework the Tennessee Supreme Court set forth in Brown v. Tennessee
Title Loans, Inc., 328 S.W.3d 850 (Tenn. 2010). See id. The court found that all
three factors weighed against recognizing an implied right of action.
First, the court determined that the actual beneficiary of the statute is the
public that is, the individuals who receive 911 service from the service
suppliers. Id., PageID # 1004. By contrast, the Districts role in the 911 scheme

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is functional and the Districts were not an intended beneficiary of the 911
Law. Id., PageID # 1005, 1015 (emphasis added).
Second, the district court examined the intent of the legislature and found
nothing in the legislative history or text of the 911 Law indicating that the
legislature intended to create an implied right of action for Districts against service
suppliers. The district court noted that it is highly likely the Tennessee legislature
did not intend to create such a right of action because the [911] Law explicitly
provides that legal action can be taken against service users but not service
suppliers. Id., PageID # 1005.
The court rejected the Districts contention that the legislatures creation of a
[g]ood faith compliance defense for service suppliers meant that the legislature
intended for suppliers to be subject to suit by the Districts. Id., PageID # 1005-06
(quoting Tenn. Code Ann. 7-86-110(e)). The court found that this provision
applied to legal actions by customers against service suppliers. See id. The court
also rejected the Districts reliance on an Alabama federal court decision finding
an express right of action to enforce Alabamas 911 law, noting that the text of the
two statutes differed. See id.
Third, the district court concluded that implying a right of action would
contravene the 911 Laws purposes because the legislature chose to grant Districts
a right of action against customers but not service suppliers. Thus, the
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legislatures failure to include this right of action in the statute indicates the [911]
Law was not intended to serve that purpose. Id., PageID # 1007.
3.

The Discovery Record and Summary Judgment Decision

The parties then engaged in extensive discovery. Over the course of 18

months, the parties conducted 52 depositions and produced well over 300,000
pages of documents, along with hundreds of gigabytes of data. Both sides
submitted expert reports, but only BellSouth submitted a rebuttal expert report.
The parties then filed cross motions for summary judgment, and the district
court heard oral argument on August 27, 2014. On January 5, 2016, the court
granted BellSouths motions, denied the Districts motion, and entered judgment
for BellSouth on all claims. See SJ Opinion, R.326, PageID # 20784; Judgment,
R.327, PageID # 20839.
As relevant on appeal, the district court first adhered to its motion to dismiss
ruling that the Districts had no right of action under the 911 Law against
BellSouth, rejecting the Districts argument that the court should revisit that
holding based on a recent Alabama Supreme Court decision. See SJ Opinion,
R.326, PageID # 20789 n.6.
The district court next granted summary judgment for BellSouth on the
Districts breach of fiduciary duty claim, holding that BellSouth was not the
Districts fiduciary. The district court held that there was not sufficient evidence
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from which a reasonable juror could find that there was an agency relationship
between the Districts and BellSouth. Id., PageID # 20810. Noting that [t]he
only real evidence of control presented by the Districts is their ability to set the 911
charge rate, the district court found this evidence insufficient as a matter of law to
establish agency. Id. The court found that the out-of-state cases on which the
Districts relied were distinguishable because they all deal with the fiduciary duty
that arises after taxes have been collected by the agent business; they do not
address whether a business is an agent for the purpose of collecting taxes in the
first instance, which is the issue in the present case. Id. The district court noted
further that the Districts theory would establish a strict-liability cause of action
by the principal against the tax collector, something that does not currently exist in
Tennessee. Such a dramatic change in the law of agency in Tennessee may be
within the power of the state legislature, but it is not within the power of a federal
district court. Id., PageID # 20811.5
Finally, the district court granted summary judgment to BellSouth on the
Districts Tennessee FCA claims. In a section entitled Background, the court
first summarized the parties positions on the theory underlying the Districts
5

Citing Tennessee case law, the district court also rejected the Districts
alternative argument that BellSouth exercised dominion and control over the
Districts, creating a confidential relationship. See SJ Opinion, R.326, PageID
# 20811-16. On appeal, the Districts have abandoned their argument that a
confidential relationship existed.
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complaint, which was that differences between the number of 911 charges billed to
customers and the number of lines BellSouth sold to the Districts under its tariff
was evidence that BellSouth underbilled its customers. See id., PageID # 2081617. The court noted that BellSouth had offered evidence that the difference was
attributable to two factors: (1) timing differences in the measurement of line
counts for the tariffed services and the remittances, and (2) that the tariff services
included numerous lines for which BellSouth was not required to bill 911 charges.
See id., PageID # 20818-19. The district court, however, did not resolve this
factual dispute or credit either sides contentions. Instead, the district court held
that no reasonable jury could find that BellSouth violated the FCA even if the
Districts were correct that BellSouth underbilled some customers. See id., PageID
# 20831 (granting summary judgment on FCA claims even assuming that
BellSouth did not include all the lines which the Districts claim should have been
billed). 6

The district court declined to resolve two additional disputes between the
parties. First, BellSouth disputed the Districts argument that its remittance reports
certified that it had billed all required 911 charges. See SJ Opinion, R.326, PageID
# 20820-21 n.24. Second, the parties disputed whether a false-certification
theory was viable in the context of this reverse false claim. Id., PageID # 20823
n.26. The district court determined that it need not resolve either dispute
because the Districts claims would fail even assuming they were correct on
these issues. Id., PageID # 20821 n.24, 20823 n.26.
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In reaching that decision, the court began by analyzing the reverse false
claim provision of the Tennessee FCA. Id., PageID # 20822. That provision
states that a defendant may be liable if it: [k]nowingly makes, uses, or causes to
be made or used a false record or statement to conceal, avoid, or decrease an
obligation to pay or transmit money or property to the state or to any political
subdivision. Id., PageID # 20821-22 (quoting Tenn. Code Ann. 4-18103(a)(7)). Because this provision requires a knowing falsehood, neither errors
based simply on faulty calculations or flawed reasoning nor imprecise statements
or differences in interpretation growing out of a disputed legal question are . . .
false under the [Tennessee FCA]. Id., PageID # 20824 (quoting United States ex
rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1018 (7th Cir. 1999)).
The district court analyzed the parties interpretive disputes regarding the
911 Law, and concluded that, in each case, there were at least legitimate grounds
for BellSouths interpretation, precluding a finding of knowing falsehood under the
Tennessee FCA as a matter of law. First, with respect to the 100-line cap on 911
charges per service user per location, the court noted that the 911 Law did not
define location and that a Tennessee Advisory Commission concluded in a 2005
report that [t]he definition of location is ambiguous and does not appear to be
uniformly applied. Id., PageID # 20825-26. Therefore, the court found,

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BellSouths use of the customers county and city as a proxy for location was not
so unreasonable as to be a knowing falsehood. See id.
Second, with respect to Centrex lines which allow a business to make
both internal and external calls the court found that BellSouths practice of
assessing 911 charges based on external calling capability was not so
unreasonable as to give rise to an inference of bad faith, because exchange
telephone service [in the 911 Law] means the number of simultaneous outbound
calls (and thus 911 calls) a Centrex system can make. Id., PageID # 20827.
Third, with respect to telephone services sold to the federal government, the
court noted that the Comptroller General of the United States has concluded that
the 911 Laws 911 charges are state taxes that may not be imposed on the federal
government. See id., PageID # 20830. The court reasoned that [s]iding with the
Comptroller . . . in a dispute regarding the taxation of federal entities may not
always be correct, but at least in this context, it cannot be said to be in bad faith or
illegitimate. Id., PageID # 20831.
Fourth, with respect to multiplex lines single wires or cables that can
carry multiple, simultaneous calls the court found the evidence showed that
BellSouth had a publicly announced policy of billing first one, and then five, 911
charges on such lines. See id., PageID # 20827-28. The court noted that the 911
Law was silent on how multiplex lines should be treated and that BellSouth did
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not conceal its . . . billing policy; it disclosed the practice to the TECB, the
[Tennessee Regulatory Authority], and any ECD that asked. Id. In light of this
evidence, the court found that no reasonable jury could conclude that BellSouth
did not have a legitimate disagreement as to the proper interpretation of the statute,
but rather was engaged in a bad-faith effort to conceal its failure to bill these lines
from the Districts. Id., PageID # 20829-30.
Summarizing the evidence read in the light most favorable to the Districts,
the court found:
nothing more than a disagreement over statutory interpretation [that]
is thus insufficient to establish the knowing falsehood element
required for TFCA liability. There is no evidence that the reports
stated BellSouth was collecting and remitting on lines which it was
not. At most, BellSouth and the Districts had different interpretations
. . . [a]nd [w]here there are legitimate grounds for disagreement over
the scope of a contractual or regulatory provision, and the claimants
actions are in good faith, the claimant cannot be said to have
knowingly presented a false claim. [United States v.] Southland
Mgmt. Corp., 326 F.3d [669,] 684 [(5th Cir. 2003) (en banc) (Jones,
J., specially concurring)].
Id., PageID # 20831.
SUMMARY OF THE ARGUMENT
I.A. The court correctly held that the 911 Law does not create an implied
right of action allowing the Districts to sue telephone companies. Tennessee law
places a heavy burden on plaintiffs to demonstrate that the legislature intended to
provide an implied right of action when it declined to provide an express right of

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action. See Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 856 (Tenn.
2010). The Districts fail to meet this burden. The Districts are not an intended
beneficiary of the 911 Law, which was enacted to benefit the public through
provision of emergency services. Further, there is no indication of legislative
intent to provide a right of action against telephone companies. To the contrary,
the legislatures grant to Districts of an express right of action against customers
but not telephone companies indicates the legislature did not intend to grant the
right of action claimed by the Districts. And implying a right of action against
telephone companies in favor of the Districts would not promote the underlying
purposes of the 911 Law; to the contrary, it would create a patchwork enforcement
regime that would undermine the efficient provision of 911 services.
B.

The Districts argue (at 16-17) that a 2012 Tennessee statute

expressed the clear intent that an implied right of action should be available to the
Districts under the 911 Law. But the statute the Districts cite supports
BellSouths position, as it codified Tennessee courts longstanding reluctance to
find implied rights of action. The Districts rely on a narrow carveout providing
that a court may find an implied right of action in favor of certain government
entities bringing certain kinds of claims. But the effect of this carveout, if it even
applies, is only that the court should apply the analysis set forth by the Tennessee
Supreme Court in Brown, which the district court correctly employed here.
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The Districts also continue to rely on two Alabama decisions that found an
express right of action in favor of ECDs under the Alabama 911 Law. The district
court correctly held that those decisions were irrelevant to the question whether the
Tennessee 911 Law created an implied right of action.
II.

The district court correctly granted summary judgment to BellSouth

on the Districts fiduciary duty claims, finding that no reasonable jury could
conclude that BellSouth was the Districts fiduciary. On appeal, the Districts sole
argument is that BellSouth was their agent. But the agency analysis hinges on the
right to control the agents actions, and, ultimately, the fact of actual control over
the agent. Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 653 (Tenn. 2009)
(citations omitted). Here, the Districts exercised no control over BellSouth apart
from a limited right to set the amount of the 911 charge and the date on which the
charge began. As the district court correctly held, such minimal control is
insufficient as a matter of Tennessee law to establish an agency relationship.
III.

The court correctly granted summary judgment to BellSouth on the

Districts Tennessee FCA claims.

A.

The False Claims Act is not a vehicle to police technical

compliance with underlying statutes or regulations. United States ex rel. Hobbs v.

MedQuest Assocs., Inc., 711 F.3d 707, 717 (6th Cir. 2013) (quoting United States
ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518, 532 (6th Cir. 2012)).
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[D]ifferences in interpretation growing out of a disputed legal question are not

false under the FCA. United States ex rel. Lamers v. City of Green Bay, 168
F.3d 1013, 1018 (7th Cir. 1999). As the district court correctly held, where an
interpretation of a statute or regulation is not unreasonable, statements consistent
with that interpretation are not knowing falsehoods under the FCA. See Hagood v.
Sonoma Cty. Water Agency, 81 F.3d 1465, 1478 (9th Cir. 1996).
B.

The court correctly found that a reasonable jury could not find that

BellSouths interpretations of the 911 Law were so unreasonable to rise to the level
of knowing falsehoods. The district court carefully considered the interpretive
disputes and correctly concluded that BellSouths billing was consistent with
statutory interpretations that were not unreasonable, and therefore could not
constitute knowing falsehoods as a matter of law.
C.

Although the district court did not have to go further to grant

summary judgment in BellSouths favor on the Districts FCA claims, multiple

additional grounds warranted entry of judgment for BellSouth on these claims.
First, BellSouths remittance forms did not certify (as the Districts contend)
that BellSouth billed every 911 charge that the Districts believe were required
under the 911 Law. Second, even if BellSouth did make such a certification, it did
not conceal, avoid, or decrease an obligation to pay money as required under the
reverse false claim provision. Tenn. Code Ann. 4-18-103(a)(7). BellSouth fully
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met its sole payment obligation under the 911 Law: to remit the funds that it
actually collected. Third, in all events, because the 911 Law does not even require
the monthly remittance forms that the Districts assert contain false statements,
those forms cannot constitute the sort of certification that could trigger FCA
liability. See Hobbs, 711 F.3d at 714.
D.

The Districts extended argument about the alleged Gap in

BellSouths 911 billing attempts to create an issue of material fact that is irrelevant
to whether the Districts FCA claim fails as a matter of law. The district court
ruled for BellSouth without resolving the question whether such a Gap existed.
In any event, the Districts claims regarding the alleged Gap and BellSouths
experts report distort the record and raise no genuine disputed issue of material
fact calling for reversal of the district courts decision on the Districts FCA claim.
ARGUMENT
I.

STANDARD OF REVIEW
A district courts order granting a Rule 12(b)(6) motion receives de novo

review on appeal. Ohio Police & Fire Pension Fund v. Standard & Poors Fin.
Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012). This Court also reviews the district
courts grant of summary judgment de novo. Loyd v. St. Joseph Mercy Oakland,
766 F.3d 580, 588 (6th Cir. 2014). Summary judgment is appropriate if the
record, when viewed in the light most favorable to the nonmovant, reveals that no

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genuine dispute of material fact exists and that the movant is entitled to judgment
as a matter of law. Id. To defeat summary judgment, the plaintiff must present
evidence on which the jury could reasonably find for the plaintiff. Hartsel v.
Keys, 87 F.3d 795, 799 (6th Cir. 1996). Mere speculation and hunches are
insufficient to create[ ] a genuine issue of material fact sufficient to prevent
summary judgment. Id. at 802.
II.

THE COURT CORRECTLY DISMISSED THE DISTRICTS CLAIM

TO ENFORCE THE 911 LAW AGAINST BELLSOUTH
The court found, and the Districts do not dispute, the 911 Law does not

expressly grant ECDs a right of action to enforce the statute against service
suppliers. See MTD Opinion, R.38, PageID # 1004; Districts Br. 16. The
Districts challenge the courts refusal to read into the 911 Law an implied right of
action in favor of ECDs against service suppliers, but they do not identify any legal
error in the courts ruling.
A.

The Court Correctly Applied Tennessee Law in Finding that the

911 Law Does Not Create an Implied Right of Action To Sue
Service Suppliers

Tennessee courts are extremely reluctant to read an implied right of action

into a statute. See Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis,
Inc., 978 S.W.2d 91, 93 (Tenn. 1998) (Where a right of action is dependent upon
the provisions of a statute, our courts are not privileged to create such a right under
the guise of liberal interpretation of the statute.). The burden ultimately falls on
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the plaintiff to establish that a private right of action exists under [a] statute.
Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 856 (Tenn. 2010). The
Districts did not meet that burden here.
As the district court found, Tennessee courts follow the same analysis as
federal courts in determining whether a statute creates an implied right of action:
(1) whether the party bringing the cause of action is an intended
beneficiary within the protection of the statute, (2) whether there is
any indication of legislative intent, express or implied, to create or
deny the private right of action, and (3) whether implying such a
remedy is consistent with the underlying purposes of the legislation.
Id. at 856; MTD Opinion, R.38, PageID # 1003-04.7 Here, as the district court
correctly held, each of the three factors weighs against a finding that the 911 Law
implicitly grants Districts a right of action to bring claims against service suppliers.
1.

The Districts Are Not an Intended Beneficiary Within the

Protection of the Statute

As the court found, the intended beneficiary of the 911 Law is the general
public. MTD Opinion, R.38, PageID # 1004; see Tenn. Code Ann. 7-86102(b)(1) (finding that the continued viability of the lifesaving 911 emergency
communications service is of the highest priority for the health and safety of the
citizens of Tennessee). The ECDs are not meant to benefit from the statute;

Federal courts also consider a fourth factor whether the cause of action
is traditionally relegated to state law which is inapplicable to the interpretation
of state statutes and, therefore, omitted from the analysis. Brown, 328 S.W.3d at
855 n.4.
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instead, they play a functional role and are tasked with facilitating the benefit
that the public receives from the provision of emergency 911 services. MTD
Opinion, R.38, PageID # 1005.
The court correctly interpreted the statute. Under the 911 Law, all funds
received by the [ECD] are public funds and are limited to purposes for the
furtherance of [the 911 Law]. Tenn. Code Ann. 7-86-102(d) (emphasis added).
Those funds are to be used to obtain emergency services for law enforcement and
other public service efforts requiring emergency notification of public service
personnel. Id. The ECDs thus do not exist for their own sake; they are a statutory
creation designed to provide the best possible technology and service to all areas
of the state in the most economical and efficient manner possible. Id. 7-86105(b)(7). In short, the 911 Law did not confer upon the ECDs a benefit; it
imposed upon them a duty to protect the public.
The Districts argue (at 18) that the court erred by limiting its analysis to
whether the Districts were the intended beneficiary of the 911 Law instead of
an intended beneficiary. But the district court held clearly that the ECDs were
neither the actual beneficiary nor an intended beneficiary of the 911 Law.
MTD Opinion, R.38, PageID # 1003-04, 1015. Furthermore, insofar as the
Districts suggest that any person or entity that receives any benefit from a statute is
an intended beneficiary of that statute, they misstate Tennessee law. Tennessee
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courts have held that a party that receives a residual benefit from a statute 8 or
that may benefit in a secondary way 9 is not an intended beneficiary of the statute
for purposes of the implied right of action analysis. In all events, being an
intended beneficiary is only a necessary, but not a sufficient, basis for finding an
implied right of action. 10
2.

The Legislature Did Not Intend To Grant a Right of Action

Against Service Suppliers

The district court next correctly held that structure of the 911 Law confirms
that the legislature did not intend to grant the Districts a right of action against
service suppliers. [I]t is an elemental canon of statutory construction that where a
statute expressly provides a particular remedy or remedies, a court must be chary
of reading others into it. Brown, 328 S.W.3d at 860.

See Premium Fin. Corp., 978 S.W.2d at 94 (finding no implied right of

action in statute intended to be of primary benefit to the insurance-financing
public, with a residual benefit to premium finance companies).
9

See Clay v. First Horizon Home Loan Corp., 392 S.W.3d 72, 78 (Tenn. Ct.
App. 2012) (finding no implied right of action in statute that was not passed for
the especial benefit of struggling homeowners, even though they may benefit
from [the resulting] incentives to loan servicers).
10

See Brown, 328 S.W.3d at 858 (The mere fact that the legislature enacted
the [Act] to protect and benefit pledgors is not alone sufficient, however, to imply
a private right of action [in favor of pledgors].); Morrison v. City of Bolivar, No.
W2011-01874-COA-R9-CV, 2012 WL 2151480, at *7 (Tenn. Ct. App. June 14,
2012) (finding that statute contained no private right of action in favor of the
plaintiff even though the plaintiff was an indirect beneficiary of the law).
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The 911 Law contains an express cause of action in favor of the Districts:
they are authorized to demand payment from any service user who fails to pay
any proper service charge, and may take legal action, if necessary, to collect the
service charge from such service user. Tenn. Code Ann. 7-86-110(c) (emphasis
added). There is no corresponding provision granting a right of action in favor of
the Districts against service suppliers such as BellSouth. As the district court
found, this strongly suggests that the legislature intended no such right. See MTD
Opinion, R.38, PageID # 1005; see also Brown, 328 S.W.3d at 860.11
Mik v. Federal Home Loan Mortgage Corp., 743 F.3d 149 (6th Cir. 2014), is
instructive.12 There, the plaintiff, a tenant who claimed she had been wrongfully
evicted from her home, brought suit against Freddie Mac under the Protecting
Tenants at Foreclosure Act, a part of the Troubled Asset Relief Program
(TARP). The statute provided a private right of action against the Secretary for
those harmed by the Secretarys actions, but it did not provide a private right of
action against individuals or non-governmental entities who violate TARPs
11

Furthermore, as the court correctly recognized, [n]othing in the

legislative history of the [911] Law indicates the legislature contemplated
including a right of action against service suppliers. MTD Opinion, R.38, PageID
# 1005. The Districts do not argue otherwise.
12

The Court can rely on federal court decisions interpreting federal statutes
in this case because, [t]o determine whether a state statute implies a private right
of action, Tennessee courts have utilized the standard created by the United States
Supreme Court for locating a private right of action in a federal statute. Ergon,
Inc. v. Amoco Oil Co., 966 F. Supp. 577, 583 (W.D. Tenn. 1997).
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provisions. Id. at 160. The court, relying on the principle that [t]he express
provision of one method of enforcing a substantive rule suggests that Congress
intended to preclude others, held that the plaintiff did not have an implied right of
action against Freddie Mac. Id.; see also Laborers Local 265 Pension Fund v.
iShares Trust, 769 F.3d 399, 408 (6th Cir. 2014) (finding that subsection of statute
did not contain implied right of action where following subsection of statute
contained express right of action); Traverse Bay Area Intermediate Sch. Dist. v.
Michigan Dept of Educ., 615 F.3d 622, 629 (6th Cir. 2010) (finding it extremely
unlikely that Congress intended to create an implied right of action in favor of one
group when it had expressly created a right of action in favor of another group in
the same statute).
The Districts offer a number of responses to the courts reasoning. None has
merit. First, the Districts contend that the usual presumption that the express
inclusion of one remedy implies the exclusion of other remedies does not apply
here because, they claim (at 21), the 911 Law only authorizes legal action against
a service user who fails to pay billed 911 Charges. In fact, the statute authorizes a
cause of action against any service user who fails to pay any proper service
charge. Tenn. Code Ann. 7-86-110(c) (emphasis added). In all events, it
remains the case that the legislature created only one express remedy. It follows
that the legislature did not implicitly intend to create additional ones.
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The Districts next argue (at 22) that the availability of a [g]ood faith
compliance defense for service suppliers in any legal action or claim against the
service supplier arising in connection with this part, Tenn. Code Ann. 7-86110(e), is evidence that the legislature intended to allow ECDs to sue service
suppliers. Not so. As the district court stated, the most logical reading of 7-86110(e) is that it provides a good faith defense to a service supplier in the event a
service user takes legal action against it, whether to challenge a service suppliers
action under 7-86-110(c) to collect 911 charges or to terminate service for failure
to pay those charges. MTD Opinion, R.38, PageID # 1006.
The Tennessee Supreme Court also rejected a similar contention in Brown.
There, the plaintiffs argued that the Title Pledge Act should be read to include an
implied right of action in their favor against title pledge lenders because the statute
included a statute of limitations: [n]o action shall be brought by a pledgor against
a title pledge lender in connection with a title pledge agreement or property pledge
agreement more than one (1) year after the date of the alleged occurrence of any
violation of this chapter. Brown, 328 S.W.3d at 861 (quoting Tenn. Code Ann.
45-15-104(b)). In other words, [p]laintiffs argue[d] that the mere inclusion of a
statute of limitations is tantamount to implied legislative intent to create a private
right of action. Id. The court rejected this contention, finding that the statute of
limitations simply modif[ied] the general statutes of limitations that would
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otherwise apply to pre-existing common law causes of action available to title

pledgors. Id. at 862.
3.

Implying a Right of Action into the 911 Law Would Not Be

Consistent With the Underlying Purposes of the Legislation

Finally, the district court correctly concluded that implying a right of action
in favor of ECDs against service suppliers would not promote the underlying
purpose of the statute, which is to establish a uniform emergency number for the
public and thereby benefit the health and safety of the citizens of Tennessee.
Tenn. Code Ann. 7-86-102(b)(1); see MTD Opinion, R.38, PageID # 1006-07. If
each ECD were allowed to sue to enforce the 911 Law, the result would be
piecemeal, county-by-county enforcement, and possibly different interpretations of
the statute governing in different Districts. See Ergon, 966 F. Supp. at 585
(concluding that allowing private citizens to enforce the [Tennessee Solid Waste
Disposal Act] would be contrary to the legislative scheme because it was
designed to provide a coordinated statewide solid waste disposal program).
Notably, when the Tennessee legislature amended the 911 Law in 2014, it
placed enforcement rights in the hands of a statewide emergency communications
board. Tenn. Code Ann. 7-86-302(a) (2015) (creating the board); see also id.
7-86-110(a) (2015) (The board shall have the duty to ensure that dealers of
retail communications service are in compliance for 911 surcharge collections and
remittance.).
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B.

The Districts Additional Arguments Lack Merit

1.

The Districts contend that the court erred in not relying on a 2012

statute, Tenn. Code Ann. 1-3-119, even though they never brought that statute to
the courts attention. See Districts Br. 16-17. The Districts belatedly raised
claim provides no basis to second guess the courts decision. 13
Indeed, 1-3-119(b) effectively abolishes implied rights of action in
Tennessee. The statute forbids a court from constru[ing] or interpret[ing] a statute
to impliedly create or confer a private right of action except as otherwise provided
in this section. Tenn. Code Ann. 1-3-119(b).
The Districts, however, point to the exception in 1-3-119(c)(4), which
states that the statute does not impair the ability of a court to . . . [r]ecognize a
private right of action commenced by a state or local governmental entity to collect
any fees owed for a governmental service or to recover such fees from a party that
is obligated to bill and collect fees owed others for a governmental service. Id.
1-3-119(c)(4). Even assuming the 911 charge is a fee subject to the exception,
rather than a tax, the exception says only that a court may (not must) find an
implied right of action in such statutes. The district court never suggested that it
13

The Court should not bypass this issue by relying on the Districts waiver
of this argument. There are ten additional cases before the district court that
involve similar claims by ECDs against telephone companies, which are stayed
pending the outcome of this case, including two against affiliates of BellSouth. In
each case, the plaintiff ECDs, represented by the same counsel as the ECDs here,
has pled a claim to enforce the 911 Law.
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thought it was precluded from finding an implied right of action in the 911 Law.
The court instead applied the governing Tennessee law for implying rights of
action, as the statutory exemption would require, and found correctly that the
Districts did not meet their burden.
In the end, the Districts argument (at 17) about the 2012 statute reduces to a
single statement by a single legislator that 1-3-119(c)(4) was added out of
concern that your 911 organizations might lose their right . . . to recover fees for
services from a party that might be obligated to pay those fees. This sort of
legislative history carries little or no weight, particularly where, as here, the text of
the statute is clear. See Bath Iron Works Corp. v. Director, Office of Workers
Comp. Programs, 506 U.S. 153, 166 (1993) (giving no weight to a single
reference by a single Senator during floor debate in the Senate because the statute
was unambiguous). It is certainly insufficient to overturn the district courts
correct application of governing Tennessee Supreme Court precedent.
2.

Finally, the Districts rely on two Alabama decisions interpreting the

Alabama 911 law, which the Districts continue to claim (at 23) is similar to
Tennessees 911 Law. See Century Tel of Ala., LLC v. Dothan/Houston Cty.
Commcns Dist., ___ So.3d ___, 2015 WL 5725111 (Ala. Sept. 30, 2015);
Madison Cty. Commcns Dist. v. BellSouth Telecomms., Inc., No. CV-06-S1786-NE, 2009 WL 9087783 (N.D. Ala. Mar. 31, 2009). The court twice correctly
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rejected this claim. See MTD Opinion, R.38, PageID # 1006; SJ Opinion, R.326,
PageID # 20789 n.6. Nothing in the Districts brief calls the courts decision into
question.
Both the Century Tel and Madison County courts found that the Alabama
911 law contains an express right of action in favor of ECDs, based on a provision
in that statute giving the boards of ECDs the authority . . . [t]o sue and be sued, to
prosecute, and defend civil actions in any court having jurisdiction of the subject
matter and of the parties. Ala. Code 11-98-4(f)(1); see Century Tel, 2015 WL
5725111, at *7 (911 Law expressly vested the ECDs with a right of action);
Madison Cty., 2009 WL 9087783, at *8 (911 Law expressly states that ECDs
have a right of action). The Districts are therefore incorrect to state (at 23) that the
Alabama courts agreed that an implied right of action is available to Alabama
districts. Furthermore, the specific provisions the Alabama courts found created
an express right of action are not in Tennessees 911 Law. Century Tel and
Madison County are irrelevant to the question whether an implied right of action
exists under the 911 Law. 14

14

The Districts observation (at 23) that Tennessee municipalities have the
inherent right to sue is true, but irrelevant. The question is whether the Districts
have the right to sue under this particular statute. The pledgors in Brown were
individuals who also had an inherent right to sue. But that did not mean they had
a right to sue title pledge lenders under the Title Pledge Act.
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THE COURT CORRECTLY GRANTED SUMMARY JUDGMENT

ON THE DISTRICTS FIDUCIARY DUTY CLAIMS
A.

The district court correctly held that BellSouth owed no fiduciary

obligation to the Districts with respect to 911 billing. Before that court, the
Districts made two conflicting arguments for the existence of a fiduciary duty:
(1) that the Districts controlled BellSouth, and therefore BellSouth was the
Districts agent; and (2) that BellSouth exercised dominion and control over the
Districts, and therefore a confidential relationship existed. See Districts SJ Mem.,
R.249, PageID # 9481-89. On appeal, the Districts have abandoned the second
argument and now rely solely on the agency argument. 15
It is undisputed that the 911 Law does not expressly state that telephone
companies are agents of the Districts. As the district court recognized, in
determining whether an agency relationship may be implied, [t]he analysis hinges
on the right to control the agents actions[,] and, ultimately, the fact of actual
control over the agent. SJ Opinion, R.326, PageID # 20808 (quoting Gordon v.
Greenview Hosp., Inc., 300 S.W.3d 635, 653 (Tenn. 2009)). The Tennessee
Supreme Court has held that no agency relationship exists where the supposed
principal has not exercised control over the day-to-day operation of the agent.
Gordon, 300 S.W.3d at 653. Thus, what ultimately matters whether the
15

Accordingly, this second argument is waived. See United States v.

Universal Mgmt. Servs., Inc., 191 F.3d 750, 759 (6th Cir. 1999) (argument raised
for the first time in Appellants Reply Brief is waived).
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principal[ ] has control of the means and method of the agents work. Merritt
v. Mountain Laurel Chalets, Inc., 96 F. Supp. 3d 801, 820 (E.D. Tenn. 2015)
(quoting McDonald v. Dunn Constr. Co., 185 S.W.2d 517, 520 (Tenn. 1945)).
Under these well-established principals of agency law, the Districts did not
exercise sufficient control over BellSouth to give rise to an agency relationship.
The district court correctly found that the Districts cannot exercise control over
how BellSouth bills, collects, or remits 911 charges. . . . The only real evidence of
control presented by the Districts is their ability to set the 911 charge rate. SJ
Opinion, R.326, PageID # 20810. 16 Even the Districts ability to control the
amount of the 911 charge was far from absolute. The initial amount of the charge
was limited by statute to $0.65 for residential customers and $2.00 for business
customers. See Tenn. Code Ann. 7-86-108(a)(1)(A). Increases beyond the initial
amount were required to be submitted to a referendum vote or approved by the
county legislature. Id. 76-86-108(a)(2)(A), (b).
This minimal level of control cannot support a finding of agency under
Tennessee law. Moreover, the Districts assertion that they controlled BellSouth is
inconsistent with their argument made throughout the litigation, but abandoned on

16

Each District could also set the date on which the 911 surcharge, once
established, would begin to apply to its residents.
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appeal, that BellSouth exercised dominion and control over the Districts. E.g.,
Districts SJ Mem., R.249, PageID # 9487.
As the district court correctly concluded, to accept the Districts theory that a
tax collector is a fiduciary of the government before any tax is collected would
establish a strict-liability cause of action . . . against the tax collector, something
that does not currently exist in Tennessee. Such a dramatic change in the law of
agency in Tennessee may be within the power of the state legislature, but it is not
within the power of a federal . . . court. SJ Opinion, R.326, PageID # 20811.
The Districts only response is to contend (at 28-29) that the district court
misconstrued the Districts ability to control the amount of the 911 charge. But the
district court had it exactly right. Although the Districts had the power to set the
applicable 911 charge and to require BellSouth to assess that charge on its
customers[,] . . . the Districts d[id] not in fact have total control over the rate
charged because approval by the county legislature or the voters is required to
increase the rate. SJ Opinion, R.326, PageID # 20809-10. The Districts focus on
the fact that they could decide the amount of the initial levy, subject to the
maximum in the 911 Law. See Districts Br. 25-26. But one aspect of control is
insufficient to establish agency. A court must assess the existence of agency based
on the extent of the control exercised, United States v. Boyd, 363 S.W.2d 193,
197 (Tenn. 1962), and here, that control is extremely limited.
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B.

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Although the district court did not have to reach the issue, this Court

can affirm this aspect of the courts decision on an alternative ground. The
Districts fiduciary duty claim which seeks to enforce the 911 Law against
BellSouth is an improper end run around the Tennessee legislatures decision
not to provide Districts with a right of action to enforce the 911 Law against
telephone companies. As the United States Supreme Court recognized in similar
circumstances, [t]he absence of a private right to enforce [the 911 Law] would be
rendered meaningless if [the Districts] could overcome that obstacle by bringing a
common law action that was functionally equivalent to a right of action under the
statute. Astra USA, Inc. v. Santa Clara Cty., 563 U.S. 110, 118 (2011).
IV.

THE COURT CORRECTLY GRANTED SUMMARY JUDGMENT

ON THE DISTRICTS TENNESSEE FCA CLAIMS
The Districts FCA claims are unusual reverse false claims. The Districts

do not contend that BellSouth wrongfully retained a single dollar that it should
have handed over to the Districts; the Districts claim only that BellSouths
customers should have been billed more in 911 charges. In addition, as the district
court found, the Districts are attempting to transform disagreements over the
interpretation of the 911 Law into an FCA claim with its harsh treble damages and
penalties, which this Court has found is improper. See Hobbs, 711 F.3d at 714.
The Districts which open their brief with a lengthy challenge to the
courts Background section (where the court made no findings or holdings) in its
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discussion of the FCA claim provide no reason to disturb the district courts
actual ruling. That ruling, based on the courts review of the extensive summary
judgment record, was that no reasonable jury could find that the Districts had
establish[ed] the knowing falsehood element required for TFCA liability. SJ
Opinion, R.326, PageID # 20831.
Based on that finding, the district court did not need to reach any of the
additional, alternative and independent grounds for granting summary judgment to
BellSouth on the Tennessee FCA claim. Namely, BellSouths remittance forms
did not certify that BellSouth had billed all the 911 charges the Districts contend it
should have billed; the forms, even if they contained knowingly false statements,
could not conceal, avoid, or decrease BellSouths payment obligation, which was
limited to the amounts collected from customers; and because the statute required
no certifications at all, the Districts cannot bring an FCA claim based on any
voluntary certifications. This Court can affirm on the grounds on which the district
court relied, or any of these alternative grounds.
A.

Legitimate Disagreements About Statutory Interpretation Cannot

Form the Basis of FCA Claims

The district court correctly rejected the Districts attempts to transform

interpretive disagreements about BellSouths obligations under the 911 Law into a
fraud claim that carries penalties and treble damages under the FCA. As this Court
has recognized, the bluntness of the FCAs hefty fines and penalties makes them
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an inappropriate tool for ensuring compliance with technical and local program
requirements. Hobbs, 711 F.3d at 717 (citing United States ex rel. A+ Homecare,
Inc. v. Medshares Mgmt. Grp., Inc., 400 F.3d 428, 444-45 (6th Cir. 2005)).
Indeed, this Court has repeatedly held that the False Claims Act is not a vehicle to
police technical compliance with underlying statutes or regulations. Id. (quoting
United States ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518, 532 (6th Cir.
2012)).17
The Tennessee FCA provision at issue imposes liability only where the
defendant [k]nowingly makes, uses, or causes to be made or used a false record or
statement. Tenn. Code Ann. 4-18-103(a)(7) (emphasis added). [D]ifferences
in interpretation growing out of a disputed legal question are not false under the
FCA. United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1018
(7th Cir. 1999); see also United States v. Southland Mgmt. Corp., 326 F.3d 669,
684 (5th Cir. 2003) (en banc) (Jones, J., specially concurring) (Where there are
legitimate grounds for disagreement over the scope of a contractual or regulatory

17

Federal court cases interpreting the federal FCA are relevant in construing
the Tennessee FCA. As the district court correctly noted, [b]ecause there are few
decisions applying the TFCA, a relatively new law, Tennessee courts look to
interpretations of analogous provisions of the federal False Claims Act (FCA) for
guidance. SJ Opinion, R.326, PageID # 20821 (citing State ex rel. Landenberger
v. Project Return, Inc., No. M2007-02859-COA-R3-CV, 2009 WL 637122, at *4
(Tenn. Ct. App. Mar. 11, 2009)).
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provision, and the claimants actions are in good faith, the claimant cannot be said
to have knowingly presented a false claim.).
These principles foreclose the imposition of FCA liability based on
legitimate statutory interpretations. As the Ninth Circuit held, [t]he statutory
phrase known to be false does not mean incorrect . . . , it means a lie. Hagood v.
Sonoma Cty. Water Agency, 81 F.3d 1465, 1478 (9th Cir. 1996). For a party to
take advantage of a disputed legal issue to reduce an obligation to pay money to
the government is not enough to constitute an FCA violation. Id. at 1478-79.
Much ink has been spilled, including in the Districts brief, regarding whether
BellSouth correctly billed 911 charges to all of its customers. Yet the district court
did not need to resolve that question, and neither does this Court. Even if
BellSouth billed some customers incorrectly, so long as BellSouths billing was
consistent with reasonable interpretations of the 911 Law, BellSouth as a matter of
law cannot have made a knowingly false statement about its billing.
The Districts contention (at 31-32) that the district court applied an
extremely heightened standard that contradicts the plain words of the TFCA is
groundless. The Districts concede (at 31) that there is no knowing falsehood if
the defendants interpretation is reasonable. That is precisely the standard the
district court applied, and the record fully supports that BellSouths interpretations
of the 911 Law were reasonable. See, e.g., SJ Opinion, R.326, PageID # 20825
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(The Districts evidence must at least show that BellSouths reading is so

unreasonable that the arguments could not have been made in good faith and thus
no legitimate grounds for disagreement existed.) (quoting Southland Mgmt.
Corp., 326 F.3d at 684). 18 Moreover, as noted above, the district courts
articulation of the relevant standard derived directly from decisions of this Court
and other federal circuit courts.
B.

BellSouths Billing Was Based on Reasonable Interpretations of

the 911 Law

The district court reviewed each disagreement between BellSouth and the
Districts regarding the 911 Law, and in each case the district court either
determined that BellSouth was correct or declined to resolve the disagreement but
concluded that no reasonable jury could find that BellSouths interpretation was
unreasonable or made in bad faith. 19 The district court committed no error in its
painstaking analysis.

18

See also SJ Opinion, R.326, PageID # 20826 (In light of the ambiguities
identified above, such an interpretation was not unreasonable.); id., PageID
# 20827 (Without reaching the question of which reading is correct, it is clear that
BellSouths interpretation is not so unreasonable as to give rise to an inference of
bad faith.).
19

The district court determined that BellSouth was correct that it had no
obligation to bill 911 charges to customers of other telephone companies that
leased a portion of BellSouths network. See SJ Opinion, R.326, PageID # 2080106. The Districts are not appealing this ruling.
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1.

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100-Line Cap

The 911 Law adopts a 100-line cap that limits the total number of 911
charges imposed per service user per location. Tenn. Code Ann. 7-86108(a)(1)(A). As the district court found, and the Districts do not contest,
location is undefined in the 911 Law. SJ Opinion, R.326, PageID # 20825.
Although the Districts assert (at 39) that [t]he statute is very clear, and its
meaning is obvious, a Tennessee government agency disagreed, concluding that
[t]he definition of location is ambiguous and does not appear to be uniformly
applied. TACIR Rep., R.283-1, PageID # 17296. The agency noted further that
[t]here have been questions about a college or university as well as bank branches
being considered as one location or not. Id. In light of this acknowledged
ambiguity, it was not unreasonable for BellSouth to use a straightforward and
easily applied definition of location, based on the customers city and county code.
The Districts assertion (at 40) that the Tennessee Advisory Commission on
Intergovernmental Relations (TACIR) Report was issued years after BellSouth
first implemented the 100-line cap misses the point. BellSouth does not need to
show that it subjectively relied on a specific government interpretation to defeat
liability. It is sufficient that BellSouths position is objectively reasonable. Where
there is such an objectively reasonable dispute as to the interpretation of the 911
Law, BellSouth did not make a knowing false statement in issuing remittance
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forms that reflected its position. See Lamers, 168 F.3d at 1018 ([D]ifferences . . .
growing out of a disputed legal question are . . . not false under the FCA.).20
2.

Centrex Lines

BellSouths billing of Centrex customers based on the number of

simultaneous external calls those customers could make, rather than the number of
telephones (or stations) that could be used with that system for either internal or
external calls, was reasonable. The statute required BellSouth to bill 911 charges
for exchange access facilities, Tenn. Code Ann. 7-86-108(a)(1)(A), which is
defined as all lines, provided by the service supplier for the provision of exchange
telephone service, as defined in existing general subscriber services tariffs filed by
the service supplier with the Tennessee regulatory authority. Id. 7-86-103(7).

20

See also United States ex rel. Morton v. A Plus Benefits, Inc., 139 F.
Appx 980, 983 (10th Cir. 2005) ([S]tatements as to conclusions about which
reasonable minds may differ cannot be false.) (quoting United States ex rel. Roby
v. Boeing Co., 100 F. Supp. 2d 619, 625 (S.D. Ohio 2000)); Southland Mgmt.
Corp., 326 F.3d at 684 (Jones, J., specially concurring) (Where there are
legitimate grounds for disagreement over the scope of a contractual or regulatory
provision, and the claimants actions are in good faith, the claimant cannot be said
to have knowingly presented a false claim.); United States ex rel. Gudur v.
Deloitte Consulting LLP, 512 F. Supp. 2d 920, 932 (S.D. Tex. 2007) (Claims are
not false under the FCA when reasonable persons can disagree regarding whether
service was properly billed to the Government.), affd, No. 07-20414, 2008 WL
3244000 (5th Cir. Aug. 7, 2008) (per curiam); United States ex rel. Phalp v.
Lincare Holdings, Inc., 116 F. Supp. 3d 1326, 1360 (S.D. Fla. 2015) (A
reasonable, but erroneous interpretation of a complex statutory or regulatory
scheme should not, without facts demonstrating reckless disregard, create False
Claims Act liability.), appeal docketed, No. 16-10532 (11th Cir. Feb. 5, 2016).
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As the district court explained, in a Centrex service, the limit on the number
of external calls a customer can make is set by the number of network access
registers (NARs) that customer purchases, so if all the stations attempted to
make external calls simultaneously, some of them would receive busy signals. SJ
Opinion, R.326, PageID # 20826-27. The district court correctly concluded that
assessing 911 charges based on the number of simultaneous outbound calls (and
thus 911 calls) a Centrex system can make . . . is not so unreasonable as to give rise
to an inference of bad faith. Id., PageID # 20827.
The Districts arguments regarding Centrex service lack merit. The Districts
contend (at 42) that BellSouths tariff included Centrex stations (that is, the
telephones connected to the system) in the definition of Exchange Line. But the
911 Law only requires 911 charges for lines that provide exchange telephone
service, as defined in the telephone companys existing general subscriber
services tariffs. Tenn. Code Ann. 7-86-103(7). BellSouths tariff defined
Exchange Service as [t]elecommunications service provided to subscribers
within a specified geographical area for local calling and access to toll services.
General Subscriber Services Tariffs, R.271-34, PageID # 14365 (emphasis added).
A Centrex customer must use a NAR to place local and toll calls, including calls to
911. As the district court noted, the NAR is the mechanism by which a station is

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able to make an external call. SJ Opinion, R.326, PageID # 20826-27.21

Therefore, as the court found, it was not unreasonable for BellSouth to bill 911
charges to its Centrex customers based on the number of NARs they purchased.
3.

Federal Government Lines

A longstanding principle of constitutional law is that the federal government

is exempt from state taxation. See McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316, 327-30 (1819). The United States Comptroller General has correctly opined
that the 911 Laws 911 charge is a tax from which the federal government is
constitutionally exempt. See In re 9-1-1 Emergency Number Fee, State of
Tennessee, B-230691, 1988 WL 227111 (Comp. Gen. May 12, 1988). The
Comptroller General found that the 911 charge funded a service provided by
government, required legal authority, and is actually based on a flat rate per
telephone line and is unrelated to levels of service. Id. at *2. As the district court
held, it cannot be said to be in bad faith or illegitimate for BellSouth to have
billed its federal government customers in a manner consistent with that opinion.
SJ Opinion, R.326, PageID # 20831.

21

The Districts highlight (at 42-43) that a BellSouth employee once wrote
an email expressing a different view of Centrex billing. But that employee
testified that he did not make final determinations of BellSouths statutory
interpretations. See Mosley Dep., R.283-1, PageID # 17323:16-22.
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The Districts contrary arguments are unavailing. The Districts note (at 4445) that the 911 Law states that the 911 charge applies to governmental entities,
and the Tennessee Attorney General has issued a nonbinding opinion that the 911
charge applies to the federal government. 22 But under the Supremacy Clause of
the U.S. Constitution, the federal exemption from taxation supersedes any state law
to the contrary. See U.S. Const. art. VI, cl. 2.
The Districts also argue (at 46) that BellSouth did not prove that it relied on
the Comptroller General opinion. Again, the Districts miss the point. What
matters is not whether BellSouths derived its position from a specific government
opinion, but whether BellSouths position is objectively reasonable. The
Supremacy Clause, longstanding principles of constitutional law, and the
Comptroller General opinion establish beyond question that BellSouth had a
reasonable justification for not billing the federal government.
4.

Multiplex Lines

The final interpretive dispute involved multiplex lines that is, single lines
capable of carrying multiple, simultaneous voice calls. The Districts contend that
the 911 Law always required BellSouth to bill a 911 charge for each voice-capable
channel provided to a customer who purchased a multiplex line. BellSouth

22

That opinion did not address the earlier, contrary opinion of the
Comptroller General. See Tenn. AG Op., R.271-42, PageID # 14457-61.
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disagreed and contended that the 911 Law treated multiplex lines as single lines,
subject to one charge, or at most to five charges, based on the Federal
Communications Commissions limitation of a similar end-user charge for
multiplex line customers. See SJ Opinion, R.326, PageID # 20828. The 911 Law,
however, was silent on how multiplex lines should be treated. Id., PageID
# 20827. And the Tennessee Attorney General recognized it was a difficult
question . . . how the [911] Acts one E911 charge per line mandate should be
applied to multiplex lines. 2007 Tenn. AG Op., R.271-8, PageID # 13922.
Against this background of statutory silence, BellSouth and various
Tennessee government entities had an open, public dispute about how the 911 Law
applied to multiplex lines for more than a decade. See SJ Opinion, R.326, PageID
# 20827-30. The district court correctly found that BellSouth did not conceal its
. . . billing policy; it disclosed the practice to the TECB, the TRA, and any ECD
that asked. It was also subject to audits, if requested, that would show this
information. Id., PageID # 20828 (citations omitted).23 In particular, Michael

23

The Districts contention (at 55-56) that the Districts could not audit
BellSouth is incorrect. The Districts note that Tenn. Comp. R. & Regs. 1220-48-.13(2), which included an audit right, expired in 1999. But Tenn. Comp. R. &
Regs. 1220-4-8-.13(4) provides that [a]fter June 6, 1999, BellSouth would still
be required to offer Enhanced 911 service as provided for in Paragraph (2)
above, including the audit right. In fact, the Williamson County ECD (which did
not sue BellSouth) requested other Districts to join in an audit of BellSouth in
2007. See Hamilton Co. 911 ECD Bd. Mtg. Minutes, R.272-3, PageID # 16086.
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Mahn, lawyer and business advisor to most of the Districts (and who is on the
Districts brief here) learned of BellSouths position in multiple meetings and
repeatedly informed some of the Districts of BellSouths position. Id., PageID
# 20828-29. BellSouth also publicly disagreed with the non-binding statements of
the TECB and the Tennessee Attorney General applying the 911 Law to multiplex
lines. See id., PageID # 20829.
As the district court noted, the record surrounding these events is
indisputable. See SJ Opinion, R.326, PageID # 20829 (The Districts have
presented no evidence that any of the above events did not happen.). This factual
record validates the courts conclusion that what existed was a legitimate
disagreement as to the proper interpretation of the statute, which did not squarely
address multiplex lines, rather than a bad-faith effort to conceal [BellSouths]
failure to bill these lines from the Districts. Id., PageID # 20830; see also
Hagood, 81 F.3d at 1478-79 (disputed legal issue . . . is not enough for FCA
liability).
The Districts respond by citing an Eighth Circuit case holding that, after the
government issues an authoritative interpretation, there can be no continued
reasonable interpretive dispute. See Minnesota Assn of Nurse Anesthetists v.
Allina Health Sys. Corp., 276 F.3d 1032, 1053 (8th Cir. 2002). But here, there was
no authoritative government interpretation. Both the TECB and Tennessee
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Attorney General opinions were non-binding. The TECBs Policy No. 23 was a
one-page, informal policy statement. The Tennessee Attorney General rightly
concluded that Policy No. 23 lacks the force and effect of a duly-promulgated
rule. 2007 Tenn. AG Op., R.271-8, PageID # 13922; see also Tenn. Code Ann.
4-5-202-205 (requiring procedures including notice and comment for Tennessee
agencies to promulgate binding rules). In addition, the Tennessee Attorney
Generals opinion[s] . . . [are] not binding. CAO Holdings, Inc. v. Trost, 333
S.W.3d 73, 85 (Tenn. 2010); accord TECB Email, R.272-3, PageID # 15890
(circulating the Attorney Generals opinion). 24
C.

The Court May Affirm Summary Judgment on the FCA Claims

on Alternative Grounds

Because the district court correctly concluded that, as a matter of law,

BellSouth made no statement that could qualify as a knowing falsehood, it did not
need to consider BellSouths alternative arguments for summary judgment on the
24

The Districts also note (at 55) that specific employees of the Districts
claim not to have known about BellSouths billing policy. But the district court
correctly determined that, [w]hether or not the Districts knew it was happening is
immaterial, SJ Opinion, R.326, PageID # 40829-30, as the undisputed evidence of
BellSouths repeated disclosure belies any suggestion of concealment. See id.,
PageID # 20828. In any event, the Districts contention in their brief (at 55) that
none of the Districts knew of BellSouths policy is contradicted, at a minimum, by
the documentary proof that one of their attorneys (Mr. Mahn) personally knew,
served as most of the Districts agent, and informed them about BellSouths billing
practices. See Tagg v. Tennessee Natl Bank, 56 Tenn. 479, 484 (1872) ([T]he
existence of knowledge in an agent, when acting for his principal, is notice to the
principal, however that knowledge may have been acquired.).
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FCA claims. But, to the extent necessary, this Court may consider these
alternative arguments and affirm the judgment on one or more of those alternative
grounds. See Bazzi v. City of Dearborn, 658 F.3d 598, 606 (6th Cir. 2011).
1.

BellSouths remittance forms contained no false statements at all.

These forms accurately reported the amount of 911 charges that BellSouth billed,
collected, and remitted. Nowhere on the remittance forms that BellSouth used is
there any statement or certification that BellSouth billed every line required to be
billed under the 911 Law. See supra pp. 4-6 (describing remittance forms). Nor is
there any statement that the listing of the amounts billed was intended to represent
the total amount BellSouth was required to bill under the Districts interpretation
of the 911 Law, as opposed to the amount that BellSouth actually billed its
customers.
The Districts argue (at 32-33) that BellSouth certified that it billed all 911
charges required under the 911 Law in its earlier monthly remittance forms, which
stated, [i]n accordance with the Tennessee Legislature, BellSouth has billed and
collected Emergency Telephone Surcharges as stated below. Fisher Decl., Ex. A,
R.272-4, PageID # 16321. But BellSouths corporate designee, Linda Fisher,
testified that this language was meant to reflect what we have billed and collected
relative to the 911 surcharge. Fisher Dep., R.272-2, PageID # 15769:13-16. In
other words, the form reflected what BellSouth actually billed, not what the
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Districts believe BellSouth should have billed.25 Moreover, given the extensive
evidence that BellSouth publicly disclosed that it disagreed with the Districts at
least as to billing for multiplex lines, the Districts could not reasonably have read
the words on the form as certifying compliance with the Districts interpretation of
the 911 Law. 26
2.

The Districts fail to satisfy an additional element of a reverse false

claim because, even assuming that BellSouths remittance forms contained

knowing false statements (and they did not), those statements did not conceal,
avoid, or decrease an obligation to pay or transmit money or property to the
Districts. Tenn. Code Ann. 4-18-103(a)(7). BellSouths sole remittance
obligation under the 911 Law was to remit the funds collected, less the
administrative fee. Id. 7-86-110(a). It is undisputed that BellSouth did exactly
that.

25

The Districts incorrectly argue (at 33) that BellSouth gave corporate
designee testimony regarding the interpretation of BellSouths remittance forms in
another case that contradicted Ms. Fishers testimony in this case. However, that
witness, Jan McNorton, was not designated as a corporate witness to testify
regarding BellSouths remittance forms, and thus her testimony reflected only her
personal understanding. See McNorton Dep. at 7:22-8:21, R.285-2, PageID
# 17559; 30(b)(6) Notice, R.308-3, PageID # 20487.
26

The same is true of the Thomson Reuters/KPMG form that BellSouth later
used. That form nowhere certifies that BellSouth had billed all lines consistent
with the Districts interpretation. Nor could the Districts infer that from the fact
that Exempt Units was always listed as zero, given the Districts knowledge of
the disagreement with BellSouth of how to bill customers with multiplex lines.
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Although the Districts argue that BellSouth should have billed more 911
charges to its customers, the 911 Law is clear that, until BellSouth collects money
from those customers, the liability for the 911 charge is with the customer, not
BellSouth. See id. 7-86-108(c) (Every billed user shall be liable for any service
charge imposed under this chapter until it has been paid to the service supplier.).
Thus, the allegedly false statements on the remittance forms did not decrease
BellSouths remittance obligation to pay what it had collected. And, by paying
what it actually collected, less the authorized administrative fee, BellSouth fully
met the remittance obligations that were outstanding at the time BellSouth
submitted the forms and funds. See American Textile Mfrs. Inst., Inc. v. The
Limited, Inc., 190 F.3d 729, 734 (6th Cir. 1999) ([A] plaintiff may not state a
reverse false claim unless the pertinent obligation attached before the defendant
made or used the false record or statement.).
3.

Finally, even if BellSouth had knowingly and falsely certified

compliance with the Districts interpretation of the 911 Law in its monthly
remittance forms, such certification would not establish FCA liability as a matter
of law because certification was not a statutory or regulatory condition of
discharging BellSouths remittance obligations. In the context of an FCA action
for a fraudulent claim for payment, [a] false-certification theory only applies
where the underlying regulation is a condition of payment, meaning that the
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government would not have paid the claim had it known the provider was not in
compliance. Hobbs, 711 F.3d at 714; see also Williams, 696 F.3d at 532
(collecting cases). To the extent that a false certification theory can ever be viable
in the context of a reverse false claim, 27 such a claim would require that the
supposed certification was a condition of discharging the obligation to pay the
government. But here, the allegedly fraudulent monthly remittance forms were
gratuitous, as the 911 Law requires only an annual accounting. See Tenn. Code
Ann. 7-86-110(d).28
For each of these additional reasons, the Districts FCA claim fails as a
matter of law.
D.

The Districts Argument About an Alleged Gap in 911 Billing is

Irrelevant and Provides No Justification for Reversal

1.

In seeking to reverse the district courts grant of summary judgment

on their Tennessee FCA claim, the Districts contend that the court erred in

27

The district court noted that false certification cases for reverse false
claims were uncommon, but expressly reserved the question of whether such a
theory is viable. SJ Opinion, R.326, PageID # 20823 n.26.
28

Furthermore, the 911 Law only required that the annual accounting
identify the amounts billed and collected and of the disposition of such amounts,
Tenn. Code Ann. 7-86-110(d), not to certify that the telephone company billed
all 911 charges required under the statute. Moreover, although the Districts assert
(at 34 n.19) that the annual accounting forms contained false statements, those
forms contain none of the specific statements from the monthly forms that the
Districts contend are false. See Districts Br. 32-34; Fisher Decl., Ex. C, R.272-4,
PageID # 16334 (annual form).
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accepting BellSouths argument that there was no gap between the lines BellSouth
should have billed 911 charges and [the] lines on which it chose to bill 911
charges. Districts Br. 10. The Districts mischaracterize the courts opinion.
Although the district court summarized both sides contentions regarding 911
billing in its Background section, the court did not resolve the parties factual
disputes, let alone make a finding that no Gap existed. See SJ Opinion, R.326,
PageID # 20816-20.
Instead, the district court granted summary judgment to BellSouth because,
as shown above, the Districts failed to connect any alleged Gap to a knowing
falsehood by BellSouth. Even [v]iewing the facts in the light most favorable to
the Districts, the court could []not conclude there is sufficient evidence from
which a reasonable jury could find that BellSouth knowingly made a false
statement that could subject it to liability under the TFCA. Id., PageID # 20831;
see id. (finding the alleged underbilling amounts to nothing more than a
disagreement over statutory interpretation and is thus insufficient to establish the
knowing falsehood element required for TFCA liability.). The Districts are thus
simply wrong in contending (at 11) that the district court accepted BellSouths . . .
assertions concerning the Gap. On the contrary, the court explicitly viewed the
facts regarding the alleged underbilling in the light most favorable to the Districts
and nonetheless found that the Districts had failed to come forth with evidence that
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would allow a reasonable jury to find that BellSouth knowingly made any false
statements, as required to bring a claim under the Tennessee FCA.
2.

In any event, the Districts assertion that the large Gap exists

distorts the record. The Districts rely primarily on the fact that the number of lines
for which BellSouth billed 911 charges to its customers was lower than the number
of lines for which BellSouth billed the Districts under its tariff. See Districts Br.
11-13. However, these numbers cannot and will not be identical, for two key
reasons.
First, the line count for the tariffed charges is set only once a year; thus, the
line count used in billing for tariffed services in December 2010, was based on a
line count from December 2009. See Madkins Decl. 9, R.272-4, PageID
# 16350. In contrast, BellSouths 911 charges to its customers in December 2010,
were based on the lines in service that month. Because the number of BellSouths
landline customers had been steadily declining for years, as people switched from
landlines to wireless phones, and to service from cable and VoIP providers, the
December 2009 figure will be higher than the December 2010 figure. As the tables
reproduced in the Districts own brief show, and as the Districts concede, this
timing mismatch explains the overwhelming majority of the Gap. See Districts
Br. 13; Turner Decl. & Ex. A, R.272-4, PageID # 16535-40.

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Second, it is undisputed that the tariffed services the Districts purchase from
BellSouth include the capacity necessary to receive 911 calls from some lines for
which BellSouth is not required to bill 911 charges. Some of these lines are used
by customers of other telephone companies. For these lines, that company (not
BellSouth) is responsible for billing and remitting the 911 charge. See SJ Opinion,
R.326, PageID # 20801-06. Other lines are not subject to any 911 charges, such as
payphone lines and lines above the 100-line cap. See Turner Second Supp. Rep.
109-115, R.259-1, PageID # 10756-58. As BellSouths expert explained, these
two factors, together, explained virtually all of the supposed Gap found in the
Districts apples-to-oranges comparison of BellSouths billing of 911 charges to its
customers and BellSouths billing to the Districts for tariffed services.
3.

The Districts also misleadingly claim (at 15), based on a chart their

attorney created, that BellSouths expert identified material underbilling by

BellSouth. Although the Districts assert (at 13-14) that BellSouths expert
compiled the data underlying the chart by adopting BellSouths position on all of
the interpretive disputes, that is clearly wrong. In fact, BellSouths expert assumed
that the Districts were correct with respect to multiplex lines, and that BellSouth
should have billed and remitted for each channel in a [multiplex line] that is
capable of conveying an outbound voice telephone call from May 2007 forward.
Turner Rebuttal Rep. 118, R.296-1, PageID # 19933; accord Turner Second
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Supp. Rep. 98, R.259-1, PageID # 10748. That is why, as the Districts chart
reveals, the long negative lines disappear in March 2011, which is when BellSouth
decided to bill in accordance with the Attorney Generals non-binding May 2007
interpretation with respect to multiplex lines. 29
For the same reason, the Districts err when they rely on this chart later in
their brief to argue (at 35-36) that BellSouth underbilled customers on lines that
were unrelated to the numerous interpretive disputes the district court addressed.
Because BellSouths expert assumed for these purposes that, as of the date of the
Attorney Generals May 2007 opinion, BellSouth was required to bill 911 charges
on all outbound voice-capable channels in a multiplex line, the alleged underbilling
shown by the chart squarely implicates the interpretive dispute about multiplex
lines. In addition, as the district court correctly held, even if the Districts had
identified non-compliance with the 911 Law unrelated to an interpretive dispute,
that is not enough to make out a claim under the Tennessee FCA. The False
29

The Districts assert further (at 15) that the chart establishes the obvious
falsity of Mr. Turners conclusion (noted by the district court) that BellSouth
correctly identified eligible lines 99.4% of the time and that BellSouth billed and
remitted 911 charges on 100.26% of those eligible lines. SJ Opinion, R.326,
PageID # 20819. But as the district court recognized, unlike the experts
calculations underlying the Districts chart (which assumed BellSouth was
incorrect about how to bill multiplex lines), the experts conclusions regarding the
percentages of eligible lines BellSouth correctly identified and billed did
assume[ ] [that] BellSouth had the better end of the above interpretive
disagreements, including the dispute about multiplex lines. Id., PageID # 20819
n.23.
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Claims Act is not a vehicle to police technical compliance with statutes, Hobbs,
711 F.3d at 717, and errors based simply on faulty calculations or flawed
reasoning are not false under the Tennessee FCA, SJ Opinion, R.326, PageID
# 20824 (quoting Lamers, 168 F.3d at 1018).
Notably, for all the prominence they now give this chart, the Districts did not
include it in any of their summary judgment briefs. Instead, it was buried among
the hundreds of pages of appendices attached to one of their briefs. 30 The court
was not required to search the entire record to establish that it is bereft of a
genuine issue of material fact. Emerson v. Novartis Pharm. Corp., 446 F. Appx
733, 736 (6th Cir. 2011). In this case, where the district court found that it could
rule for BellSouth without resolving factual disputes about whether BellSouth
underbilled any customers, the courts decision not to rely on this chart was no
error.31

30

See Hitchcock Dec. 11, R.271-11, PageID # 13962; id., PageID # 13973.

31

Equally insufficient to undermine the district courts judgment are the two
supposed instances of intentional underbilling from the massive record the
Districts highlight (at 37-38). The first, so-called zero-rated USOCs, involved a
minor and unintentional glitch in BellSouths billing system, which BellSouth
promptly fixed after discovering it. See Kelley Decl. 2-6, R.272-4, PageID
# 16343-44. The second involved BellSouth mistakenly listing the 911 charge at
$2 in a bid to Hamilton County instead of the correct $3 rate. See Reynolds Dep.,
R.272-2, PageID # 15836:1-17. A Hamilton County government official involved
in responding to the bid testified that it would be ridiculous to think that any
phone company would attempt to win a bid by lowering 911 charges [b]ecause
. . . its a mandated fee that you have to pay, that the $2 listing for the 911 charge
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CONCLUSION
For the foregoing reasons, this Court should affirm the district courts entry
of judgment in favor of BellSouth.
Respectfully submitted,

/s/ Scott H. Angstreich

SCOTT H. ANGSTREICH
JEREMY S. NEWMAN
KELLOGG, HUBER, HANSEN, TODD,
EVANS & FIGEL, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 326-7900
(202) 326-7999 (facsimile)
sangstreich@khhte.com
jnewman@khhte.com
Attorneys for BellSouth Telecommunications, LLC
May 12, 2016

was not a part of [her] decision to accept BellSouth service, and she did not
believe BellSouth actually billed $2 for 911 charges. Holcomb Dep., R.272-2,
PageID # 15781:5-19, 15786:14-24.
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CERTIFICATE OF COMPLIANCE WITH RULE 32

Pursuant to Federal Rule of Appellate Procedure Rule 32(a) and 6th Circuit
Rule 32(a), I certify that this brief complies with the length limitations set forth in
Federal Rule of Appellate Procedure 32(a)(7) because it contains 13,687 words, as
counted by Microsoft Word, excluding the items that may be excluded under
Federal Rule 32(a)(7)(B)(iii) and 6th Circuit Rule 28(b).

/s/ Scott H. Angstreich

Scott H. Angstreich

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CERTIFICATE OF SERVICE
Pursuant to Federal Rule of Appellate Procedure 25, I certify that I have this
day caused a true and correct copy of the foregoing Brief of Defendant-Appellee
upon all counsel of record through the Courts CM/ECF system.
Dated: May 12, 2016
/s/ Scott H. Angstreich
Scott H. Angstreich

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ADDENDUM
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS
Pursuant to 6th Circuit Rule 30(g)(1), Defendant-Appellee BellSouth
Telecommunications, LLC designates the following record documents, available
electronically, as relevant to this appeal.
Record
Entry No.

Description

PageID#

Hamilton County Emergency Communications District, et al. v.

Bellsouth Telecommunications, LLC d/b/a/ AT&T Tennessee, et al.,
No. 1:11-cv-00330 (E.D. Tenn.)
Complaint (Nov. 14, 2011)

R.1

# 1-15

First Amended Complaint (Jan. 1, 2012)

R.13

# 114-152

BellSouths Motion to Dismiss First Amended

Complaint (Jan. 27, 2012)

R.20

# 233-236

BellSouths Memorandum of Law in Support of

its Motion to Dismiss First Amended Complaint
(Jan. 27, 2012)

R.21

# 237-306

Districts Response in Opposition to

BellSouths Motion to Dismiss (Feb. 20, 2012)

R.25

# 442-553

BellSouths Reply in Support of its Motion to

Dismiss First Amended Complaint (Mar. 1,
2012)

R.29

# 573-598

Order Consolidating Cases for Purposes of

Resolving Pending Motions to Dismiss (June 5,
2012)

R.35

# 969-971

Districts Supplemental Brief in Opposition to

Motion to Dismiss (Aug. 15, 2012)

R.37

# 973-992

Memorandum Granting in Part and Denying in

Part Motion to Dismiss (Aug. 20, 2012)

R.38

# 993-1024

Add-1

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Description

Record
Entry No.

Order Granting in Part and Denying in Part

Motion to Dismiss and Denying Motion for
Partial Summary Judgment (Aug. 20, 2012)

R.39

# 1025-1026

Order Designating Lead Case (Sept. 26, 2012)

R.46

# 1040

Second Amended Complaint (Nov. 20, 2012)

R.61

# 1478-1515

BellSouths Answer and Affirmative Defenses

to Second Amended Complaint (Dec. 7, 2012)

R.66

# 1583-1606

BellSouths Motion for Partial Summary

Judgment on Joint Liability Claims (Aug. 28,
2013)

R.152

# 4725-4728

BellSouths Memorandum of Law in Support of

its Motion for Partial Summary Judgment on
Joint Liability Claims (Aug. 28, 2013)

R.153

# 4729-4757

Districts Response in Opposition to

BellSouths Motion for Partial Summary
Judgment (Sept. 23, 2013)

R.154

# 4758-5856

BellSouths Reply in Support of its Motion for

Partial Summary Judgment on Joint Liability
Claims (Oct. 8, 2013)

R.162

# 5923-5949

Districts Supplemental Response in Opposition

to BellSouths Motion for Partial Summary
Judgment on Joint Liability Claims (Mar. 31,
2014)

R.247

# 9449-9463

Districts Joint Motion for Partial Summary

Judgment (Mar. 31, 2014)

R.248

# 9464-9471

Districts Memorandum of Law in Support of

Their Joint Motion for Partial Summary
Judgment (Mar. 31, 2014)

R.249

# 9472-9506

BellSouths Motion for Summary Judgment

(Mar. 31, 2014)

R.256

# 9569-9571

BellSouths Brief in Support of its Motion for

Summary Judgment (Mar. 31, 2014)

R.257

# 9572-9616

Add-2

PageID#

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Description

Record
Entry No.

BellSouths Notice of Filing Expert Report

(Mar. 31, 2014)

R.259

# 10688-10689

R.259-1

# 10690-10769

R.271

# 13888-13892

State of Tennessee, Office of the Attorney

General, Opinion No. 07-28 (Mar. 28,
2007)

R.271-8

# 13921-13928

Declaration of Frederick Hitchcock (Mar.

31, 2014)

R.271-11

# 13959-14083

BellSouth General Subscriber Services

Tariffs, Section A1, Definition of Terms
(eff. Mar. 14, 2000)

R.271-34

# 14354-14382

State of Tennessee, Office of the Attorney

General, Opinion No. U95-013 (Mar. 3,
1995)

R.271-42

# 14457-14461

R.272

# 15468-15469

Deposition Excerpts of Linda A. Fisher

(Nov. 26, 2013)

R.272-2

# 15767-15773

Deposition Excerpts of Susan Holcomb

(Feb. 20, 2014)

R.272-2

# 15780-15789

Deposition Excerpts of Dorothy L.

Reynolds (Feb. 10, 2014)

R.272-2

# 15829-15839

Email from L. Questell to J. Peoples, et al.

re: New AG Opinion on 911 Fees on T1
and PRI Circuits (Mar. 30, 2007)

R.272-3

# 15890-15891

Expert Report of Steven E. Turner on

Behalf of AT&T, Second Supplement
(Mar. 31, 2014)
Districts Notice of Filing Exhibits in Support of
Their Joint Motion for Partial Summary
Judgment (Mar. 31, 2014)

BellSouths Notice of Filing Corrected Exhibits

(Mar. 31, 2014)

Add-3

PageID#

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Filed: 05/12/2016

Record
Entry No.

Description

Page: 71

PageID#

Hamilton Co. 9-1-1 Emergency

Communications District, Board of
Directors, Meeting Minutes (Feb. 14, 2007)

R.272-3

# 16085-16088

Declaration of Linda Fisher (Mar. 25, 2014)

R.272-4

# 16314-16334

Declaration of Jimmy Kelley, Jr. (Mar. 28,

2014)

R.272-4

# 16343-16347

Declaration of Audrey Madkins (Mar. 27,

2014)

R.272-4

# 16348-16480

Declaration of Steven E. Turner (Mar. 31,

2014)

R.272-4

# 16535-16540

BellSouths Reply to Districts Supplemental

Opposition to Motion for Partial Summary
Judgment on Joint Liability Claims (Apr. 10,
2014)

R.273

# 16541-16568

Districts Response in Opposition to

BellSouths Motion for Summary Judgment
(Apr. 24, 2014)

R.281

# 17175-17209

BellSouths Opposition to Districts Joint

Motion for Partial Summary Judgment (Apr. 24,
2014)

R.282

# 17210-17242

Declaration of Jeffrey H. Fisher in Support of

BellSouths Opposition to Districts Joint
Motion for Partial Summary Judgment (Apr. 24,
2014)

R.283

# 17243-17247

Tennessee Advisory Commission on

Intergovernmental Relations, Memorandum,
E-911 Project Update (Sept. 12, 2005)

R.283-1

# 17283-17296

Deposition Excerpts of Richard D. Mosley

(Jan. 17, 2014)

R.283-1

# 17321-17324

R.285

# 17352-17355

Districts Notice of Filing Exhibits in Support of

its Response to BellSouths Motion for
Summary Judgement (Apr. 24, 2014).
Add-4

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Record
Entry No.

Description

Page: 72

PageID#

Deposition Excerpts of Jan McNorton (Mar.

21, 2007)

R.285-2

# 17557-17586

Exhibit SET-23 to Expert Report of Steven

E. Turner on Behalf of AT&T, Second
Supplement (Mar. 31, 2014)

R.285-42

# 18459-18568

BellSouths Reply in Support of its Motion for

Summary Judgment (May 5, 2014)

R.294

# 19813-19838

BellSouths Notice of Filing (May 5, 2014)

R.296

# 19863-19864

R.296-1

# 19865-19945

Districts Reply Memorandum in Support of

Their Joint Motion for Partial Summary
Judgment (May 5, 2014)

R.298

# 19956-19980

Declaration of Jeffrey H. Fisher (May 12, 2014)

R.308

# 20454-20456

R.308-3

# 20486-20490

Transcript of Proceedings held on August 27,

2014

R.323

# 20670-20713

Districts Supplemental Response to

BellSouths Motion for Summary Judgment
(Dec. 21, 2015)

R.324

# 20714-20778

BellSouths Reply to Districts Supplemental

Response to BellSouths Motion for Summary
Judgment (Dec. 28, 2015)

R.325

# 20779-20783

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.326

# 20784-20838

Judgment Order (Jan. 5, 2016)

R.327

# 20839-20840

Notice of Appeal (Feb. 3, 2016)

R.328

# 20841-20842

Expert Report of Steven E. Turner in

Rebuttal to Expert Report Submitted by Dr.
Mohammad Amhadi and Randal B. Hebert,
First Supplement (May 5, 2014)

Notice of Deposition Under Rule 30(b)(6) of

Defendant, BellSouth Telecommunications,
Inc. (Mar. 15, 2007)

Add-5

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Record
Entry No.

Description

Page: 73

PageID#

Bradley County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00003 (E.D. Tenn.)
Complaint (Jan. 5, 2012)

R.1

# 1-32

First Amended Complaint (Feb. 27, 2012)

R.16

# 130-163

Second Amended Complaint (Nov. 20, 2012)

R.50

# 1015-1047

BellSouths Answer and Affirmative Defenses

to Second Amended Complaint (Dec. 7, 2012)

R.51

# 1048-1069

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.59

# 1189-1243

Judgment Order (Jan. 5, 2016)

R.60

# 1244-1245

Notice of Appeal (Feb. 3, 2016)

R.61

# 1246-1247

Blount County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00056 (E.D. Tenn.)
Complaint (Feb. 22, 2012)

R.1

# 1-38

First Amended Complaint (Nov. 20, 2012)

R.36

# 724-756

BellSouths Answer and Affirmative Defenses

to First Amended Complaint (Dec. 7, 2012)

R.37

# 757-777

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.45

# 897-951

Judgment Order (Jan. 5, 2016)

R.46

# 952-953

Notice of Appeal (Feb. 3, 2016)

R.47

# 954-955

Bedford County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00131 (E.D. Tenn.)
Complaint (Apr. 19, 2012)

R.1

# 1-39

First Amended Complaint (Nov. 20, 2012)

R.29

# 546-579

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Description

Record
Entry No.

BellSouths Answer and Affirmative Defenses

to First Amended Complaint (Dec. 7, 2012)

R.30

# 580-602

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.38

# 722-776

Judgment Order (Jan. 5, 2016)

R.39

# 777-778

Notice of Appeal (Feb. 3, 2016)

R.40

# 779-780

PageID#

Coffee County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00138 (E.D. Tenn.)
Complaint (Apr. 27, 2012)

R.1

# 1-38

First Amended Complaint (Nov. 20, 2012)

R.34

# 555-588

BellSouths Answer and Affirmative Defenses

to First Amended Complaint (Dec. 7, 2012)

R.35

# 589-611

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.43

# 731-785

Judgment Order (Jan. 5, 2016)

R.44

# 786-787

Notice of Appeal (Feb. 3, 2016)

R.45

# 788-789

Roane County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00139 (E.D. Tenn.)
Complaint (Apr. 27, 2012)

R.1

# 1-37

First Amended Complaint (Nov. 20, 2012)

R.32

# 555-588

BellSouths Answer and Affirmative Defenses

to First Amended Complaint (Dec. 7, 2012)

R.33

# 589-610

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.41

# 730-784

Judgment Order (Jan. 5, 2016)

R.42

# 785-786

Notice of Appeal (Feb. 3, 2016)

R.43

# 787-788

Add-7

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Record
Entry No.

Description

Page: 75

PageID#

Franklin County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00149 (E.D. Tenn.)
Complaint (May 3, 2012)

R.1

# 1-42

First Amended Complaint (Nov. 20, 2012)

R.33

# 615-648

BellSouths Answer and Affirmative Defenses

to First Amended Complaint (Dec. 7, 2012)

R.34

# 649-671

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.42

# 791-845

Judgment Order (Jan. 5, 2016)

R.43

# 846-847

Notice of Appeal (Feb. 3, 2016)

R.44

# 848-849

Giles County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00166 (E.D. Tenn.)
Complaint (May 22, 2012)

R.1

# 1-38

First Amended Complaint (Nov. 20, 2012)

R.36

# 545-578

BellSouths Answer and Affirmative Defenses

to First Amended Complaint (Dec. 7, 2012)

R.37

# 579-600

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.45

# 720-774

Judgment Order (Jan. 5, 2016)

R.46

# 775-776

Notice of Appeal (Feb. 3, 2016)

R.47

# 777-778

Cheatham County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00176 (E.D. Tenn.)
Complaint (June 1, 2012)

R.1

# 1-38

First Amended Complaint (Nov. 20, 2012)

R.18

# 157-190

BellSouths Answer and Affirmative Defenses

to First Amended Complaint (Dec. 7, 2012)

R.19

# 191-212

Add-8

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Description

Record
Entry No.

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.27

# 332-386

Judgment Order (Jan. 5, 2016)

R.28

# 387-388

Notice of Appeal (Feb. 3, 2016)

R.29

# 389-390

PageID#

Knox County Emergency Communications District v.

Bellsouth Telecommunications, LLC, No. 1:12-cv-00186 (E.D. Tenn.)
Complaint (June 13, 2012)

R.1

# 1-39

First Amended Complaint (Nov. 20, 2012)

R.17

# 157-191

BellSouths Answer and Affirmative Defenses

to First Amended Complaint (Dec. 7, 2012)

R.18

# 192-213

Memorandum Granting BellSouths Motion for

Summary Judgment and Denying Districts
Motion for Summary Judgment (Jan. 5, 2016)

R.26

# 333-387

Judgment Order (Jan. 5, 2016)

R.27

# 388-389

Notice of Appeal (Feb. 3, 2016)

R.28

# 390-391

Add-9