Gannett Satellite Information Network v. Berger
| Decision Date | 06 July 1989 |
| Docket Number | Civ. A. No. 87-4495. |
| Citation | 716 F. Supp. 140 |
| Parties | GANNETT SATELLITE INFORMATION NETWORK, INC. d/b/a USA Today, Plaintiff, v. Stephen BERGER, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Robb M. Jones and J. Gregory Bishop, Nixon, Hargrave, Devans & Doyle, Washington, D.C., and Richard A. Ragsdale, Strauss & Hall, Princeton, N.J., for plaintiff.
Donald F. Burke, Arnold D. Kolikoff and Hugh H. Welsh, Jersey City, N.J., for defendants Stephen Berger, Robert J. Aaronson, Morris Sloane and Vincent Bonaventura.
William H. Boice and R. Scott Tewes, Kilpatrick & Cody, Atlanta, Ga., and Richard M. Eittreim, Mc Carter & English, Newark, N.J., for Airline defendants.
This is a suit to determine whether plaintiff Gannett Satellite Information Network, Inc. ("Gannett") has a constitutional right to install newspaper vending machines for the distribution of newspapers within the passenger terminals of Newark International Airport, without the consent of the defendants, the Port Authority of New York & New Jersey ("Port Authority") or the airlines leasing space at Newark Airport.1 Plaintiff seeks declaratory and injunctive relief on the grounds that the defendants' refusal to permit newspaper vending machines to be installed at the airport violates plaintiff's First Amendment right to free speech, its Fourteenth Amendment right of due process, its Fourteenth Amendment right of equal protection, and the right to free speech secured by Article One, paragraph 6 of the New Jersey Constitution.2
Plaintiff Gannett, a Delaware corporation with its principal office and place of business in Arlington, Virginia, publishes the nationally circulated newspaper known as USA TODAY. Defendant Port Authority is an agency created in 1921 by the States of New Jersey and New York by a congressionally consented to to compact. Newark International Airport is among the thirty-three facilities owned or operated by the Port Authority. Additional parties named as defendants in the complaint include the airline defendants, several directors and managers of Port Authority, and a corporation which previously held a lease to operate concession stands in the airport terminals.
Newark Airport occupies 23,000 acres of public land located within the Cities of Newark and Elizabeth, New Jersey. The entire airport facility consists of four passenger terminals, numerous administrative and commercial buildings, public and private parking lots, and a number of streets, sidewalks and roadways. The three principal passenger terminals at Newark Airport are known as Terminals A, B and C. Another terminal, the North Terminal, is no longer fully operational. Although the airport complex is surrounded by security fences, under normal circumstances any member of the public can gain access to non-secure areas on a 24 hour a day basis. Airport patrons and employees gain access to Newark Airport from interchanges off the New Jersey Turnpike and other major highways.
In 1985 an estimated 28.5 million airline passengers travelled through Newark Airport, making it the eighth busiest airport in the world that year. In 1987 approximately 23.5 million passengers travelled through the airport. Within the next 10 to 15 years the airport is expected to handle 45 to 50 million travelers annually. In addition to airline passengers, the Port Authority defendants estimate that the number of non-passengers at Newark Airport is 22.5% of the number of passengers. On a daily basis then, the average population of passengers and other members of the public at Newark Airport for 1985 and 1987 was 79,000 to 95,000. In general, these airport visitors have unrestricted access to the public circulation areas of the passenger terminals. They are free to walk, sit, shop or dine at the various commercial establishments located throughout the terminals.
In terms of design, Terminals A and B are almost identical. Each terminal has three passenger service levels. The uppermost level is the departure level; the lowest level is the arrivals level; the middle level is the concourse level, where many of the shops and public facilities in the passenger terminal are located. There are passageways that lead from the concourse level of the main terminal buildings to each of three flight stations which contain the various aircraft gates where passengers enter and exit. Defendants have placed security check points close to the entrance of these passageways.
Terminal C is similar to Terminals A & B except that instead of three flight stations where the aircraft gates are located, there are three corridors or concourses. Aircraft gates, hold areas, shops, restaurants and other services are located along two of these three corridors. The remaining corridor contains facilities for the U.S. Customs Service and Immigration and Naturalization Service operations.
The Port Authority leases two-thirds of the land occupied by Newark Airport from the City of Newark under a long-term lease. The remainder of the land (i.e., that part located in the City of Elizabeth) is owned directly by the Port Authority. The Port Authority, in turn, leases space within the airport terminals to the airline defendants under long-term lease agreements. Space in Terminals A and B is leased by a number of different airlines. Only Continental Airlines leases space in Terminal C. The terms of these lease agreements are substantially similar. Airlines lease terminal space in relation to other airlines on either an exclusive or non-exclusive basis. In addition, the leases reserve part of the terminal premises for "public circulation areas". These areas include space controlled solely by the Port Authority as well as exclusive or non-exclusive airline space and are reserved specifically for use by airline patrons, passengers, business visitors and the general public.
The majority of available space in the airport terminals is leased to the airline defendants. However, the Port Authority reserves the right to lease space in certain designated areas to independent concessionaires. The right to select these concessionaires is retained by the Port Authority, who negotiates the agreements, sets fees, and monitors operations. In practice, however, the selection of concessionaires is a joint decision requiring approval of both the Port Authority and the airline defendants. Under the terms of the lease, concessionaires have an exclusive or semi-exclusive right to sell various merchandise including newspapers in a particular terminal. For this right, the concessionaires pay a fixed base rent plus approximately 17½ percent of their gross sales. These lease payments from the concessionaires are shared between the Port Authority and the airline defendants.
The Port Authority retains ultimate control over all terminal space through "use provisions" and other clauses in its lease agreements. These provisions carefully enumerate all of the permitted uses for the leased space. The Port Authority reserves the right to grant or deny a lessee permission for a proposed use outside of those enumerated. In addition, all leases at the airport are subject to those Port Authority Rules and Regulations applicable to airport operations.
Under these Rules and Regulations, the Port Authority is vested with the authority to make decisions concerning the types of written material that may be distributed at Newark Airport independent of the concessionaires, and under what circumstances such distribution may occur. In 1987 the Rules and Regulations relevant to this case, stated in part:
Airport Rules and Regulations, Ch. III §§ 2, 9 (Plaintiff's Exhibit 55).
Port Authority publications regarding services, ground transportation, and other airport matters currently are available free of charge in display racks located throughout the terminal. Sources other than the Port Authority also distribute pamphlets and brochures free of charge from numerous display racks. Among the publications available are brochures printed by the N.J. Department of Tourism and two free newspapers, The Leisure Town Crier and the Leisure Life News, both published by Leisure Technology Corporation.
On February 5, 1987 plaintiff wrote a letter to the Port Authority proposing the placement of thirty-four newsracks at specific locations in Newark Airport, with six additional newsrack locations for Terminal C after renovations were completed. Subsequent correspondence was exchanged and meetings were held to discuss plaintiff's proposals. On October 14, 1987, a representative of Port Authority indicated, by letter to plaintiff's counsel, that they "had reached the conclusion that the distribution of USA TODAY was adequately served by newsstands" and that "the use of newsracks ... would not serve the best interests of the Port Authority Airports."3 On November 12, 1987, plaintiff initiated the action currently before this Court.
Subsequent to the commencement of this suit, the Port Authority amended the Rules and Regulations to create separate provisions for regulation of commercial and noncommercial activity within the airport terminals. The prohibition of commercial activity without the consent of the Port Authority provides:
No person shall carry on any commercial activity at any air terminal without the consent of the Port Authority.
Revision of Airport Rules and Regulations, Ch. III § A.2 (Plaintiff's Exhibit 56).
The prohibition against distribution of written materials was amended to provide:
No person shall post, distribute or display at an air terminal a sign, advertisement, circular, or any printed or written matter...
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