City of Ashdown, Arkansas v. Netflix, Inc., No. 21-3435 (8th Cir. 2022)
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The Arkansas Video Service Act of 2013 (VSA) establishes a statewide franchising scheme for authorizing video service providers to provide services in political subdivisions within the state. Netflix and Hulu were already providing online video streaming services prior to the passage of the VSA; they have not applied for certificates of franchise authority. The City of Ashdown, Arkansas, filed a putative class action against Netflix and Hulu in 2020, seeking both a declaration that they must comply with the VSA and damages for their failure to pay the required fee. The district court granted Netflix and Hulu’s motions to dismiss, concluding, among other things, that the VSA does not give Ashdown a right of action to bring this suit. Ashdown appealed, arguing that the district court misinterpreted the VSA.
The Eighth Circuit affirmed. The court held that the fact that the VSA does not “prevent” a party from exercising a right does not, itself, confer a right. This provision is more logically read to preserve existing rights of action. The reference to “other laws” in the section title supports this conclusion. Further, the court wrote that the VSA does not establish such a “high duty of care” for video service providers, nor does it signal a strong public policy of protecting municipalities. Thus, the court concluded that recognizing a right of action would circumvent the intent of the VSA.
Court Description: [Wollman, Author, with Colloton and Stras, Circuit Judges] Civil case - Arkansas Video Service Act of 2013. The district court did not err in concluding that the Act does not create an express right of action for municipalities to bring suit against video providers which have not applied for certificates of franchise authority; nor is a right of action implied; the Public Service Commision has the right and duty to bring suit to enforce the Act. [ November 07, 2022 ]
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