`
`United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 21-3435
`___________________________
`
`City of Ashdown, Arkansas, individually and on behalf of all others
`
`lllllllllllllllllllllPlaintiff - Appellant
`
`v.
`
`Netflix, Inc.; Hulu, LLC
`
`lllllllllllllllllllllDefendants - Appellees
`
`------------------------------
`
`City of Creve Coeur; Gwinnett County, Georgia; City of Brookhaven, Georgia;
`Unified Government of Athens-Clarke, Georgia
`
`lllllllllllllllllllllAmici on Behalf of Appellant(s)
`
`DirecTV LLC; DISH Network, L.L.C; Sling TV, L.L.C.
`
`lllllllllllllllllllllAmici on Behalf of Appellee(s)
` ____________
`
`Appeal from United States District Court
`for the Western District of Arkansas - Texarkana
` ____________
`
` Submitted: September 20, 2022
`Filed: November 8, 2022
`____________
`
`

`

`
`Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
`____________
`
`
`WOLLMAN, Circuit Judge.
`
`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. Providers may either negotiate franchises with
`individual political subdivisions or obtain a certificate of franchise authority from the
`Secretary of State, which can cover multiple political subdivisions. Ark. Code Ann.
`§ 23-19-203(a), (c). The certificate authorizes providers to use public rights-of-way
`to deliver their video service and requires the provider to pay a fee as required by
`each political subdivision in which service is provided. Ark. Code Ann. § 23-19-
`205(b), 206(b).
`
`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 court1 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 appeals, arguing
`that the district court misinterpreted the VSA. We affirm.
`
`We review the dismissal of claims de novo, “accepting the allegations
`contained in the complaint as true and drawing all reasonable inferences in favor of
`the nonmoving party.” Cockram v. Genesco, Inc., 680 F.3d 1046, 1056 (8th Cir.
`
`1The Honorable Susan O. Hickey, Chief Judge, United States District Court for
`the Western District of Arkansas.
`
`-2-
`
`

`

`2012) (quoting Express Scripts, Inc. v. Aegon Direct Mktg. Servs., Inc., 516 F.3d
`695, 698 (8th Cir. 2008)). We apply Arkansas rules of statutory construction to
`interpret the VSA. See Behlmann v. Century Sur. Co., 794 F.3d 960, 963 (8th Cir.
`2015). The Arkansas Supreme Court has explained those rules as follows:
`
`The primary rule of statutory interpretation is to give effect to the intent
`of the legislature. We first construe the statute just as it reads, giving the
`words their ordinary and usually accepted meaning in common
`language. In conducting this review, we will reconcile statutory
`provisions to make them consistent, harmonious, and sensible in an
`effort to give effect to every part. Furthermore, we will not read into a
`statute language that was not included by the legislature.
`
`Ark. Dep’t of Corr. v. Shults, 541 S.W.3d 410, 412 (Ark. 2018) (internal citations
`omitted).
`
`Ashdown argues that the VSA creates an express right of action for
`municipalities to bring claims. It points to the provision titled “Applicability of other
`laws,” which states that the VSA “shall not be interpreted to prevent . . . a political
`subdivision . . . from . . . seeking clarification of its rights and obligations under . . .
`state law or to exercise a right or authority under . . . state law.” Ark. Code Ann.
`§ 23-19-210(b). Ashdown asserts that the VSA is a “state law” under which it seeks
`to clarify and exercise its rights, so this provision gives it an express right of action
`to do so.
`
`We are unpersuaded by Ashdown’s argument. 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. In addition, the
`legislature knew how to explicitly confer a right of action onto municipalities, as the
`VSA clearly conferred a right of action onto the Public Service Commission. See
`
`-3-
`
`

`

`Ark. Code Ann. § 23-1-104 (“The commission shall have the right . . . to file suit . . .
`to compel compliance with the provisions of this act or . . . to prevent violations of
`this act”). The legislature’s failure to use such explicit language with regard to
`municipalities supports the conclusion that it did not intend to create an express right
`of action.
`
`Ashdown next argues that even if there is no express right of action, a right of
`action is implied. The Arkansas Supreme Court has recognized an implied right of
`action when “the legislature explicitly expressed an intent to protect . . . a special
`class of citizens” and when recognizing a right of action would not “circumvent the
`clear intent of the statut[e].” Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC,
`400 S.W.3d 701, 712 (Ark. 2012).
`
`Municipalities are not a “special class” that the legislature intended to protect
`through the VSA. Ashdown points to the legislature’s explanation for passing the
`VSA on an emergency basis, which stated in part “that perhaps the lack of uniformity
`in the laws governing video service providers is inequitable to certain citizens and
`government entities[.]” 2013 Ark. S.B. 101, 89th Gen. Assemb., Reg. Sess. (Ark
`2013), Sec. 3. Such qualified language lacks the specificity and force that the
`Arkansas Supreme Court has elsewhere found significant in identifying a special
`class. For example, in two cases related to alcohol sales, the Arkansas Supreme Court
`emphasized that the statutes at issue (1) explicitly stated that alcohol vendors had a
`“high duty of care in the operation of the licensed establishment” and an affirmative
`obligation to operate the establishment in the public interest and (2) explicitly
`outlawed sales to high-risk groups. See Shannon v. Wilson, 947 S.W.2d 349, 357
`(Ark. 1997) (quoting Ark. Code Ann. § 3-3-218(a)) (establishing liability for
`negligence in selling alcohol to a minor); see also Jackson v. Cadillac Cowboy, Inc.,
`986 S.W.2d 410 (Ark. 1999) (establishing liability for negligence in selling alcohol
`to an intoxicated person). The VSA does not establish such a “high duty of care” for
`
`-4-
`
`

`

`video service providers, nor does it signal a strong public policy of protecting
`municipalities.
`
`Ashdown further argues that it is part of a special class because it is owed fees
`and has other rights under the VSA, such as the ability to inspect the records of video
`service providers to ensure the fee is calculated correctly. The VSA’s imposition of
`duties on video service providers, however, does not automatically create a private
`right of action in the beneficiary. See Young v. Blytheville School Dist., 425 S.W.3d
`865, 871 (Ark. Ct. App. 2013) (holding that an act that imposed a duty on school
`districts to provide a safe program did not create a private right of action for
`students).
`
`As noted above, the Public Service Commission has the right and duty to bring
`suit to enforce the VSA. Ark. Code Ann. § 23-1-104. The statute limits the
`Commission to mandamus and injunction proceedings, which do not allow relief in
`the form of compelling payment of past-due fees by a private corporation. Ashdown
`argues that this lack of a remedy undercuts the purpose of the statute, so we should
`recognize an implied right of action to allow municipalities to pursue their own
`remedies. Whether the failure to recognize an implied right of action would
`circumvent the statute’s intent is an inversion of the question at issue, however, which
`is focused on the effects of recognizing an implied right of action.
`
`We conclude that recognizing a right of action would circumvent the intent of
`the VSA. Read as a whole, the statute aims to establish and regulate a statewide
`franchising system. The legislature stated that “this act is immediately necessary
`because it ensures uniform regulation of video service providers, assures equality of
`treatment of video service providers, and encourages new video service providers to
`enter the state.” 2013 Ark. S.B. 101, Sec. 3. The VSA’s clear intent to create
`uniformity across the state would be undermined if individual municipalities
`possessed authority to bring enforcement suits independently of the state body
`
`-5-
`
`

`

`charged with enforcement. Because Ashdown is not part of a special class intended
`to be protected by the VSA and allowing Ashdown to bring this suit would
`circumvent the intent of the statute, we conclude that the VSA does not create an
`implied right of action in municipalities to enforce the statute.
`
`The judgment is affirmed.
`______________________________
`
`-6-
`
`