Independent Taxicab Drivers' Employees v. Greater Houston Transp. Co.

• Decision Date: 17 May 1985
• Docket Number: No. 83-2705,83-2705
• Citation: Independent Taxicab Drivers' Employees v. Greater Houston Transp. Co., 760 F.2d 607 (5th Cir. 1985)
• Parties: 1985-1 Trade Cases 66,620 INDEPENDENT TAXICAB DRIVERS' EMPLOYEES, et al., Plaintiff-Appellants, v. GREATER HOUSTON TRANSPORTATION COMPANY, etc., et al., Defendants-Appellees. ARROW NORTHWEST, INC., et al., Plaintiffs-Appellants, v. GREATER HOUSTON TRANSPORTATION COMPANY, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 607

760 F.2d 607

1985-1 Trade Cases 66,620

INDEPENDENT TAXICAB DRIVERS' EMPLOYEES, et al., Plaintiff-Appellants, v. GREATER HOUSTON TRANSPORTATION COMPANY, etc., et al.,

Defendants-Appellees.

ARROW NORTHWEST, INC., et al., Plaintiffs-Appellants, v. GREATER HOUSTON TRANSPORTATION COMPANY, etc., et al.,

Defendants-Appellees.

No. 83-2705.

United States Court of Appeals Fifth Circuit.

May 17, 1985.

Able & Coleman, P.C., Tom F. Coleman, Jr., Thomas Lee Bartlett, Dabney & Garwood, Joseph H. Sperry, St. John Garwood, Jr., Houston, Tex., for Arrow Northwest, Inc., et al.

Robert A. Jones, Houston, Tex., for Independent Taxicab.

Andrew & Kurth, Paul E. Harris, Bradley Westmoreland, Hirsch & Westheimer, Michael S. Wilk, Sears & Burns, Will Sears, Houston, Tex., for Greater Houston Transp.

Laura S. Portwood, City of Houston Legal Dept., Vinson & Elkins, John L. Murchison, Jr., Ann Lents, Houston, Tex., for City of Houston.

Appeals from the United States District Court for the Southern District of Texas.

Before GOLDBERG, JOHNSON, and DAVIS, Circuit Judges.

GOLDBERG, Circuit Judge:

Plaintiffs-appellants Independent Taxicab Drivers' Employees ("Independents") and Arrow Northwest, Inc. ("Arrow") are two groups of taxicab operators and owners in the City of Houston, a Texas municipality which owns and operates the Houston Intercontinental Airport. On January 1, 1969, the City entered into a contract with the Greater Houston Transportation Corporation, d/b/a Yellow Cab Company, by which the City granted to Yellow Cab an exclusive concession ¹ over passenger service at the airport. According to appellants the arrangement has restrained taxicab competition at the Airport because anyone seeking to operate a cab out of the facility must subcontract through Yellow for the privilege, and Yellow has proved itself loathe to loosen its grip on the Airport market. Non-Yellow taxis must first remove their secondary radios before being allowed to participate in the Yellow pool of taxis for passenger pick-up at the airport, a requirement which impedes these outsider cabs from competing on a par with other companies for passengers who have radioed ahead for service. Moreover, once admitted to the pool, the subcontracting companies are summoned for business by the dispatcher at the rate of one outsider for every fourteen Yellow cabs. If appellants' version of the story approaches the truth, the taxicab market is far from free at Houston Intercontinental. Indeed, one could hardly call it checkered.

The Independents and Arrow filed suit ² in federal district court under sections 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1, 2 (1982), and sections 4 and 16 of the Clayton Act, id. Secs. 15, 26, seeking damages from and injunctive relief against the City and Yellow. ³ The district court dismissed the complaint on defendants' motion for summary judgment, holding that the City is immune from antitrust scrutiny under the doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), and that Yellow is immune under the Noerr-Pennington doctrine, see United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). We affirm.

I.

Relying on principles of state sovereignty and federalism, the Supreme Court held in Parker that the Sherman Act does not reach the anticompetitive conduct of a state speaking through its legislature. 317 U.S. at 350-51, 63 S.Ct. at 313. More recently, the Court has considered the extent to which a municipality may be similarly exempt from federal antitrust scrutiny. Because it is not itself sovereign, a municipality falls within the Sherman Act's prohibition of private anticompetitive conduct unless the municipality can show that its activities were authorized by the state "pursuant to state policy to displace competition with regulation or monopoly public service." City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 413, 98 S.Ct. 1123, 1137, 55 L.Ed.2d 364 (1978) (plurality opinion). Until very recently, the specificity with which a state had to declare its sanctioning of anticompetitive municipal conduct was a subject of some debate. Not only did courts struggle with the perplexities of how explicit a state's legislative authorization had to be, but they also agonized over the sufficiency of mere authorization versus compulsion: Did the state have to require anticompetitive conduct of a municipality before the municipality could claim exemption from federal antitrust scrutiny, or would the state's permission suffice? If the latter, could a municipality stretch the limits of its empowerment, or did the challenged activity have to be a "reasonable consequence" of municipal regulation in the given area? And finally, could a municipality avail itself of Parker immunity absent active state supervision, or did the state have to retain a more active role in order to immunize the non-sovereign entity?

The Supreme Court put to rest much of this ambiguity in Town of Hallie v. City of Eau Claire, --- U.S. ----, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985). In City of Eau Claire, a unanimous Court reiterated that Parker exemption applies whenever the state legislature has "clearly articulated and affirmatively expressed" a state policy to displace competition in the regulated area--that is, whenever " ' "the legislature contemplated the kind of action complained of." ' " Id., 105 S.Ct. at 1719 (quoting City of Lafayette, 435 U.S. at 415, 98 S.Ct. at 1138 (citation omitted)). Moreover, the Court held that "although compulsion affirmatively expressed may be the best evidence of state policy, it is by no means a prerequisite to a finding that a municipality acted pursuant to a clearly articulated state policy." Id. ⁴ After City of Eau Claire, clear articulation can comprise authorization short of compulsion. Finally, the Court concluded that the "active state supervision requirement should not be imposed in cases in which the actor is a municipality." Id. ⁵ A clear articulation of state policy sets both the floor and the ceiling for municipal invocation of Parker immunity.

Applied in the present context, these principles make clear that the City of Houston is immune from federal antitrust liability for its treatment of taxicabs at Intercontinental Airport. Two statutes are relevant. First, Texas empowers its municipalities

[t]o regulate, license and fix the charges and fares made by any person owning, operating or controlling any vehicle of any character used for the carrying of passengers for hire or the transportation of freight for hire on the public streets and alleys of the city.

Tex.Rev.Civ.Stat.Ann. art. 1175(21) (Vernon 1963); see also id. art. 1175(20). Thus, in at least a general sense, the state legislature has vested extensive regulatory discretion in its cities over the taxicab industry. ⁶ See Bellew v. City of Houston, 456 S.W.2d 185, 187 (Tex.Civ.App.1970). More particularly, though, the state has specifically authorized its municipalities to grant contracts for the provision of goods and services at their airports:

(a) ... In operating an airport ... such municipality may ... enter into contracts, leases and other arrangements for a term not exceeding forty (40) years with any persons:

....

(2) conferring the privilege of supplying goods, commodities, things, services or facilities at such airport....

....

In each case the municipality may establish the terms and conditions and fix the charges, rentals or fees for the privileges or services....

Id. art. 46d-4 (Vernon 1969). While the latter provision falls short of expressly mentioning the establishment of ground transportation services, the statute's broad phrasing is a strong indication of the state's desire to abdicate in favor of municipal prescience with regard to airport management.

This indication is all we require. In City of Eau Claire, the Supreme Court considered a Wisconsin statute that did not explicitly reflect a legislative expectation of municipal anticompetitive conduct in the provision of sewage services. Dispensing with the argument that the statute failed to articulate state policy specifically enough to implicate the city's Parker immunity, the Court observed:

[I]t is sufficient that the statutes authorized the City to provide sewage services and also to determine the areas to be served. We think it clear that anticompetitive effects logically would result from this broad authority to regulate.

....

The [plaintiffs'] argument [for greater specificity] amounts to a contention that to pass the "clear articulation" test, a legislature must expressly state in a statute or its legislative history that it intends for the delegated action to have anticompetitive effects. This contention embodies an unrealistic view of how legislatures work and of how statutes are written. No legislature can be expected to catalog all of the anticipated effects of a statute of this kind.

105 S.Ct. at 1718, 1719. We think it equally clear that the City of Houston might deem it most efficient to confer the privilege of airport taxicab operation on a single company, ⁷ and that such a decision is a logical or reasonable consequence of the state's broad allocation of authority to the City to run its own airport.

As did the Court in City of Eau Claire, we find the decision in Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982), to be of limited applicability. In City of Boulder, the Court held that the Home Rule Amendment to Colorado's constitution "was neutral and did not satisfy the 'clear articulation' component of the state action test." City of Eau Claire, 105 S.Ct. at 1719; City of Boulder, 455 U.S. at 55-56, 102 S.Ct. at 843. The Home Rule Amendment spoke in only the most general terms, enabling Colorado municipalities to...