Full opinion text
MEMORANDUM AND ORDER HOLSCHUH, District Judge. I. Procedural History This case originated in the Common Pleas Court of Franklin County, Ohio on March 18, 1998, when plaintiff filed a complaint and a motion for a temporary restraining order and preliminary injunction. On March 18, 1998, a judge of the state court denied plaintiffs motion for a temporary restraining order. On March 31,1998, plaintiff filed an amended complaint for a temporary restraining order and injunction and for a declaratory judgment. On April 3, 1998, defendant filed an answer to plaintiffs amended complaint and a notice of removal of this action to this Court based on federal question jurisdiction. On April 20, 1998, plaintiff filed in this Court a new motion for preliminary injunction. On April 23, 24, and 28, 1998, this Court held an evidentiary hearing on plaintiffs motion for preliminary injunction, which hearing, by agreement of the parties, was consolidated with the trial on the merits under Fed. R.Civ.P. 65(a)(2). Subsequent to the hearing, post-hearing briefs were filed by plaintiff and defendant on May 13, 1998 and May 14, 1998, respectively, and on May 18,1998, reply briefs were filed by the parties. In a conference with counsel on June 25, 1998, the Court requested that certain documents missing from the record be submitted as a part of the record and that the parties submit supplemental briefs regarding the applicability of Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). The parties were in agreement that this be done, and on June 30, 1998, the additional documents and briefs were filed. The defendant further agreed that the present concession agreement with plaintiff and other car rental companies would be extended to August 1,1998 in order for the Court to render its decision in this case. The Court, having considered the record and the arguments of the parties, now renders this decision on the merits of the issues raised by plaintiff’s amended complaint and its motion for an injunction. II. Factual Background The facts which form the background for the issues raised in this action are essentially not in dispute. The following narration is based partially on a stipulation of facts agreed to by the parties. Defendant, Columbus Municipal Airport Authority (Port Authority), is a governmental entity created in 1990 by the City of Columbus, pursuant to the laws of Ohio, to manage the operations of the Port Columbus International Airport. Plaintiff, Capital Leasing of Ohio, Inc., d.b.a Budget Rent-A-Car of Columbus (Budget), a licensee of Budget Rent A Car Corporation, is engaged in the business of renting motor vehicles at various locations in the City of Columbus. It is one of a number of ear rental companies that do business either inside the Columbus airport terminal or near the airport terminal. Those companies that are engaged in the business of renting automobiles to travelers using the airport facilities are divided into two general categories, “on-airport” operators and “off-airport” operators. On-airport operators, including Budget, are ear rental companies that have entered into agreements with the Port Authority whereby they obtain space inside the airport terminal for the location of counters and large signs to attract air travelers who desire to rent vehicles before leaving the terminal. In many cases, a reservation for the rental may have been made in advance by the customer or by a travel agent calling a telephone number for a local Budget office or a toll-free number for a national reservation office servicing various Budget Rent A Car locations throughout the United States. Because the Columbus airport has had no garage for the storage of rental vehicles, it has been necessary for the on-airport operators to store and maintain their vehicles at office locations near the terminal. Customers in the terminal who enter into rental agreements at the terminal counters are then transported by the car rental companies in their shuttle buses to their other facilities in order to obtain the vehicle the customer has rented. Customers can also proceed by shuttle buses directly to the other facility, enter into rental agreements at that office location and obtain their rental vehicles. Although some car rental companies have leased space from the Port Authority for the location of their storage, maintenance and office facilities entirely on airport property, Budget has not done so. For this purpose, Budget primarily uses its office located on private property leased by Budget at 1441 Stelzer Road, Columbus, Ohio, which is adjacent to the airport’s property and is a short distance from the terminal. Budget does, however, lease adjoining property from the Port Authority solely for the storage and maintenance of its vehicles. At its Stelzer Road office, Budget rents cars to both travelers who have arrived at the airport and also to non-airport related or “local” customers. On-airport rental ear companies, like other companies engaged in different business inside the terminal, are referred to as concessionaires and have entered into concession agreements with the Port Authority. The car rental concession agreement, whereby a car rental company obtains counter and sign space inside the airport terminal, requires the company to pay for this space a “privilege fee,” an amount based upon the concessionaire’s gross revenues. The terms and conditions of the concession agreements are set forth in detail and, until recently, have been for a term of five years. Budget entered into such an agreement in 1987 and in 1993. The current agreement expired April 15, 1998, but, by agreement of the parties, has been extended until August 1,1998. Off-airport car rental companies are companies that have no agreements with the Port Authority and have no counter space inside the terminal. They have access, however, to the Port Authority’s property for the purpose of transporting customers with their shuttle buses between their off-airport offices and the airport terminal. They are permitted to obtain access to the Port Authority’s facilities by the payment of an “access fee” which, together with other detailed terms and conditions, is fixed by regulations adopted by the Port Authority’s board. Some ear rental companies in recent years have engaged in the practice of passing on to their customers the charges imposed on the car rental companies for doing business at airport facilities by carving out or “unbun-dling” this overhead cost and adding it to the amounts charged on their invoice to the customer for time and mileage, together with charges for other services the customer may desire to purchase, such as insurance, cellular telephones, childrens’ seats, and taxes imposed by governmental entities. For example, since December, 1997, Hertz System, Inc. (Hertz), an on-airport operator, adds this charge as “Apt Cone Fee 10%” (meaning Airport Concession Fee) on its invoice to its Columbus airport customers. (Budget’s exhibit 0.) The invoice is placed in an envelope (Budget’s exhibit N) which contains the “Rental Agreement Terms and Conditions” applicable to “the Hertz Corporation or the independent Hertz System, Inc. licensee identified on the Rental Record.” (the Columbus Hertz Rent-A-Car Company is identified on the invoice as a “Hertz System Licensee.”) Paragraph 7 of the rental terms and conditions on the envelope concerns “Computation of Charges,” and section 7(e) recites that: “Sales/use/excise taxes, tax reimbursement and airport related fees are charged as and where required or permitted by applicable law.” Budget also has engaged in this practice. In September, 1997, Budget added this expense to the customer’s invoice as an “airport fee.” (See, e.g., Budget invoice and rental agreement CMH 18741, October 11, 1997 describing the charge as “10% AP Fee,” attached to the stipulations of facts, and Port Authority’s Exhibit 15, p. 1, describing the charge as “10% Airport Fee.”) When this practice came to the attention of Susan Warner-Dooley, general counsel and director of properties and administration of the Port Authority, she sent a letter on October 9, 1997, notifying the car rental concessionaires that the Port Authority did not consent to the use of the terms “airport fee” as part of any separate statement of the charge on their customers’ car rental contracts. (Joint Exhibit 13.) Ms. Wamer-Dooley was subsequently contacted by Kevin Miles, General Manager of Budget, who asked whether Budget could use the words “access fee” to describe the separately stated charge. Ms. Warner-Dooley testified that she informed Mr. Miles that “access fee” was not prohibited by her October 9, 1997 letter. (Tr. Vol. Ill pp. 75-83.) Since that time, Budget has described this charge on its invoice as “10% Access Fee.” (See, e.g., Budget invoice and rental agreements in October, November, and December 1997, attached to stipulation of facts, and Port Authority’s exhibit 15, pp. 2-5.) Budget, unlike Hertz, prints the terms and conditions of the rental agreement on the back of the invoice form and not in a separate envelope. There is no reference to or description of this added “access fee” in the terms and conditions printed on the back of the invoice form. The “10% Access Fee” appears on Budget’s list of charges below its total time and mileage charge — appearing sometimes in the space entitled “Drop Charge” — and just before the “Sub Total” and “Tax and/or Surcharge” spaces. When a customer calls the 1-800 number for the national Budget Rent a Car reservation office and informs that office that the location for renting the ear is Columbus, Ohio, the customer is told that there will be a 10% “access fee.” If the customer asks about this charge, Budget’s General Manager assumes that the customer is told it is “an airport fee” (Tr. Vol. II pp. 15-18) or a “concession fee.” (Tr. Vol. II pp. 19, 33.) He did not know what travel agents actually say to customers regarding this surcharge. (Tr. Vol. II p. 81.) The controversy between Budget and the Port Authority that resulted in this lawsuit arose in the context of major changes being made in the airport’s facilities under an expansion and remodeling project and because of the Port Authority’s insistence upon significant changes in its concession agreements with on-airport car rental companies. Included in the construction projects underway at the airport is a new garage adjacent to the terminal which will have spaces for the storage of vehicles of the on-airport car rental companies. When this new garage is completed sometime in the year 2000, it will not be necessary for an arriving or departing air traveler to board a shuttle bus and ride from or to the terminal in order to pick-up a rental car or drop-off a rental car at the rental car company’s other facility. That facility, however, would still be used to service the rental car company’s local customers, e.g., Budget’s Stelzer Road facility. Since approximately August, 1997, the Port Authority, in advance of the expiration of the current concession agreements in April, 1998, has discussed proposed terms and conditions of a new agreement with car rental companies interested in operating in the terminal as on-airport concessionaires. The proposed agreement included terms, conditions and fees which would be charged for the use of spaces in the new garage when completed. All car rental concessionaires would rent this garage space; and the other facilities previously used for storage and maintenance of vehicles and renting cars to airport travelers would be used only for maintenance and repair, to store vehicles not in use, and to serve local traffic. The proposed agreement also included provisions which are at the heart of the present controversy. As originally drafted by the Port Authority, section 4.6 of the agreement prohibited the car rental companies from “unbundling” the amounts paid to the Port Authority and passing this expense on to the customers as a separate charge. (Joint exhibit 3, § 4.6.1.) According to Ms. Warner-Dooley, who drafted the agreement for the Port Authority, there were protests by the car rental companies when this was disclosed in the Port Authority’s invitation to bid for rental ear concessions at the airport. This initial invitation to bid was published January 21, 1998 and required that all bidders sign and return the proposed agreement with their bids. (Joint exhibit 3.) As a result of complaints by Budget and other car rental companies, the Port Authority agreed to three addenda to the proposed agreement. Addendum Number 1, dated February 9, 1998, deals with the garage under construction and the garage space rent required to be paid to the Port Authority. Some car rental companies, because of this added cost of doing business as on-airport operators, had urged that the Port Authority impose this charge as a Customer Facility Charge directly on car rental customers (Tr. Vol. Ill p. 117), similar to the $3.00 passenger facility charge directly imposed by the Port Authority on travelers purchasing an airline ticket. The Port Authority refused to impose such a charge, but, as a compromise measure, Addendum Number 1 authorized the car rental companies to “unbundle” this expense and add it as a separate charge to their customers as a “garage recoupment surcharge.” The terms and conditions under which this charge could be made, including its location on the invoice, are spelled out in the Addendum. The Port Authority has interpreted its current concession agreement as imposing a charge on the on-airport car rental companies computed on the basis of a percentage of their gross revenues at both their counters inside the terminal and at the facilities where they store and maintain their vehicles, referred to in the proposed agreement as “designated service facilities.” (Tr. Vol. Ill p. 60.) The new agreement would specifically describe this method of calculating the “privilege fee,” although the percentage would now be applied to include income not previously included, e.g., insurance charges, cellular phone charges, etc. The percentage, however, is reduced from 10% to 9.25%. Both Budget and Thrifty, car rental companies whose service facilities are not on airport-owned property but on private property located on Stelzer Road in close proximity to the airport, protested against the inclusion of rental income from these locations that is “local income,” i.e., car rentals to customers for local, non-airport related use. (Tr. Vol. II p. 84-85.) Both Budget and Thrifty informed the Port Authority that 40% of the business conducted at their Stelzer Road locations is with local customers. In response, the Port Authority did not change its method of calculating gross income in the proposed contract, but it did, by Addendum Number 2, effectively reduce this percentage fee on the local income from 9.25% to 4.625% by excluding 50% of the gross revenues from local customers. Addendum Number 2 paragraph 4.2.3.1 (exclusions from Gross Revenue) reads, in part, as follows: Add new sub-paragraph 4.2.3.1 to read: “Local Traffic Fifty percent (50%) of the Gross Revenue from each of Concessionaire’s transactions with a Local Customer occurring at Concessionaire’s Designated Service Facility. For purposes of this Agreement, a Local Customer is a customer residing within the Columbus Metropolitan Statistical Area (MSA) as documented by a driver’s license showing an address within the Columbus MSA.” (Joint exhibit 5.) Finally, Addendum Number 3 reflects a retreat by the Port Authority from its initial desire to prohibit the “unbundling” of the privilege fee and assessing it on the car rental customer as a separate charge. Addendum Number 3 recognizes that such a practice may occur and that, if it does, such a charge must appear adjacent to the time and mileage charges and a number of specific words may not be used to describe this charge. Addendum Number 8 reads, in part, as follows: Paragraph 4.6.1 Delete Section 4.6.1. Add new Section 4.6.1 to read: “Concessionaire acknowledges that the payments by Concessionaire to the Authority under this Agreement are for Concessionaire’s use of facilities at the Airport, and that none of those payments reflects a fee that is imposed by the Authority upon customers renting cars from Concessionaire. Concessionaire understands that the Authority does not support the practice of transferring Concessionaire’s obligation for payment of the Privilege Fee due herein to its customers. Concessionaire is prohibited from using the following words, or any form thereof: Airport, Authority, Government, Port Columbus, Concession, Access, Passage, Cost of Doing Business, Fee, Toll, Assessment, or Tax in describing any surcharge the Concessionaire may impose on customers. Any charges made by Concessionaire on its customers in an attempt to recover its costs in operating under this Concession Agreement must appear adjacent to time and mileage charges. Concessionaire is prohibited from stating or implying, in writing or verbally, that the Airport or Authority imposes or approves of any such direct charge to a customer. The Authority understands the Garage Space Rent will be a substantial increase over the prior rent for the concessionaires’ service facilities. Therefore, the Authority authorizes, but does not require, the separate statement of a Garage Recoupment Surcharge on the terms and conditions specified herein.” (Joint exhibit 6.) III. Issues Budget contends that any charge imposed by the Port Authority on revenues at its Stelzer Road location from car rentals to local, non-airport travelers (1) is a tax and beyond the Port Authority’s ability to impose, and (2) is a charge not imposed on other businesses that operate in the terminal under concession agreements and hence violates the Equal Protection clauses of the United States and Ohio Constitutions. Budget also contends that the restrictions on its speech in describing the privilege fee to its customers on its invoices is a violation of Budget’s right to freedom of speech under the First Amendment to the United States Constitution. Budget seeks an injunction against the Port Authority to prevent the enforcement of the challenged provisions. IV. Discussion A. Budget’s Claim that the Privilege Fee Cannot Be Imposed on Revenue From Local Traffic As noted earlier, Budget’s office on Stelzer Road, adjacent to the airport property, rents vehicles to travelers using the airport facilities and also to local customers who have no connection with the airport. The proposed concession agreement requires that a ear rental company doing business as an on-airport operator designate a facility for car maintenance and storage for all cars used as part of its airport rental car concession, the facility to be known as the concessionaires’s Designated Service Facility. (Joint exhibit 8, § 2.2.) It is undisputed that Budget would be required to designate its Stelzer Road location as its Designated Service Facility. The agreement requires that “All Gross Revenues generated at a Designated Service Facility shall constitute Gross Revenues covered by this Agreement.” (Id.) The agreement defines “Concessionaire’s Rental Car Business” as including “the rental or short-term leasing of cars and related transactions at the Airport (including Concessionaire’s Designated Service Facility) ...” (Id. at § 4.2.2) and makes it clear that income from the Designated Service Facility must be included as gross revenue on which the 9.25% privilege fee is calculated. Section 4.2.1 defines gross revenue as follows: Gross Revenue means the total amount charged by Concessionaire during an Agreement Year, including any separately stated fees, surcharges and other charges, in connection with: (i.) Concessionaire’s Rental Car Business under this Agreement; (ii.) any activities related directly or indirectly to that business; and (iii.) any other business of Concessionaire in the Operating Areas, in Concessionaire’s Designated Service Facility, or elsewhere at the Airport. (Joint exhibit 8.) It is therefore clear that Budget would be required to pay the Pori; Authority’s privilege fee not only on its income from airport-related car rentals but also on its income from non-airport related or local car rentals at its Stelzer Road location. As a result of complaints by Budget and Thrifty, Addendum Number 2 included an exclusion to gross revenues for 50% of the gross revenues on local customers. According to Ms. Warner-Dooley, the exclusion of 50% of the gross revenues due to local ear rentals “was our compromise to try to assist the Budget, the Thrifty, that were having difficulties with the combined increased costs with parking garage space rent as well. It was also a recognition that [Budget and Thrifty] do local advertising.” (Tr. Vol. Ill p. 142.) The Port Authority did not exclude such local revenues entirely from the privilege fee because, as Ms. Warner-Dooley explained: A. We look at, we need those revenues in order to — yes, pay our operating expenses for current capital improvements, future capital improvements. That’s what these moneys are going to, and we look at that factor, and that was one of the balancing factors in looking at a 50 percent exclusion for local traffic. That’s one reason, even though we decided to do a compromise, we didn’t exclude all local traffic. We need those revenues from 50 percent of the local traffic to help pay our various costs. Q. And you need the revenues from the 50 percent of the local traffic whether that local traffic has any burden or any impact on your airport, isn’t that correct? A. That is a price that is paid, yes, as part of the concession. Q. Isn’t it correct that you charge the 50 percent income on the local traffic whether or not there is any burden on the airport? A. That is correct. Q. You’re charging that because you, as the administrator, saying that if you want to come on this airport, that’s the fee I’m going to assess you rental ear companies; is that correct? A. That is correct and because of the benefit you get as a concessionaire, the exposure to all the local traffic that’s going through our terminal. (Tr. Vol. Ill pp. 138-39.) 1. The Tax Argument There is no question regarding the power of the Port Authority to impose charges for the use of its facilities. Ohio Rev.Code § 4582.31 includes among enumerated powers granted a port authority the power to “charge, alter, and collect rentals and other charges for the use or services of any port authority facility as provided in section 4582.43 of the Revised Code.” Section 4582.43 of the Ohio Revised Code, in turn, provides that: A port authority may charge, alter and collect rentals or other charges for the use or services of any port authority facility and contract in the manner provided by this section with one or more persons, one or more governmental agencies, or any combination thereof, desiring the use or services of the facility, and fix the terms, conditions, rentals, or other charges for such use or services. It is also clear that income generated from such rentals or other charges must be used only for expenses of the port authority. Section 4582.39 specifies that “rents and charges received by the Port Authority shall be used for the general expenses of the Port Authority and to pay interest amortization, and retirement charges on money borrowed.” It is Budget’s position that the charge imposed on local ear rentals, although described as a privilege fee, is in actuality a tax and beyond the power of the Port Authority to impose, because it is imposed on transactions that are purely local in nature and create no burden on or cost to the Port Authority. To support its position, Budget relies on Ohio law to the effect that a charge imposed by a governmental entity that bears no relationship to the burden on or cost to the governmental entity is a tax. The cases cited by Budget, however, are distinguishable. In Ass’ns, Conventions, Trade Show, Inc. v. Ohio Expositions Comm’n, 1989 WL 52940 (Ohio App. May 18, 1989) (ACT I), the Ohio Expositions Commission required a decorating company to sign an agreement to pay the Commission a percentage of its gross receipts in order to obtain access to the Exposition Center for the purpose of doing business with an exhibitor who had rented space in the building. Other companies that provided goods and services to the exhibitors were not required to pay this charge. The Ohio appellate court held that the Commission was a state agency operating the building “for the benefit of the citizens of the entire state and not for a local municipal corporation” (Id. at *5) and thus was acting in a governmental capacity rather than a proprietary capacity. It also held that the required agreement did not involve any property right or right to possession of the premises, but only the right to come into the building to do business, and as such was a permit or license. Because the amount charged greatly exceeded the costs incurred by the governmental entity, it was deemed to be a tax rather than a license fee. The Court also found that there was no rational basis for imposing this charge on decorators and not imposing it on other similarly situated vendors and hence was a denial of equal protection under the Fourteenth Amendment to the United States Constitution. Ass’ns. Conventions, Trade Shows, Inc. v. Bd. of Franklin County Comm’rs, 1991 WL 160044 (Ohio App. Aug. 15, 1991) (ACT II), dealt with the same issue with respect to the Veterans Memorial building. The same appellate court found that in that case a genuine issue of material fact existed regarding whether the amounts charged by the Board constituted a tax. In contrast to the ACT I and ACT II cases, the charge imposed on Budget is a charge for occupying space inside the airport terminal for a counter and large signs and the associated benefits of being an on-airport operator. Although, as previously noted, the name given this charge is a “privilege fee,” it is similar, if not identical to a space rental charge. It is not simply a permit or license fee to enter the airport property, it is a charge made for the benefits of occupying the Port Authority’s property and doing business at that location. The proposed contract sets forth in great detail the rights and responsibilities of both the tenant and the landlord, so to speak, and cannot in any way be considered merely a regulatory license. Apart from Ohio law, Budget argues that “other states which have considered the same issue as is present here have reached a similar conclusion.” (Budget’s post-hearing brief, p. 19), citing, City of Kenner v. New Orleans Aviation Bd., 603 So.2d 220 (La.App.1992) (Kenner). In Kenner, a state statute dealing specifically with charges imposed on “nontenant, auto rental users of each airport in this state,” imposed certain restrictions on those charges, including a requirement that they “must be based on the cost to the airport of the particular facilities or services used by such nontenant, auto rental user.” A New Orleans ordinance authorized the New Orleans Aviation Board to impose charges on the nontenant auto rental companies based upon a percentage of their gross business receipts. The Louisiana Court of Appeals found that the ordinance and a required Permit Agreement conflicted with the state statute in a number of respects, including the above quoted requirement. The Court found it “unnecessary to address whether or not the fee is an illegal tax.” Id. at 227. Kenner clearly has little or no application to the facts of the present case. It was based on a conflict between a state statute and a local ordinance dealing only with off-airport rental car companies and did not involve, as does this case, charges made by an airport authority for a concession inside the airport terminal. Like the statute, the ordinance dealt only with car rental companies “who do not have leases or concession contracts -with the Board.” Id. at 224. In the present case, the Port Authority clearly has the authority to impose “rentals or other charges ... for the use or services of any port authority facility” (Ohio Rev.Code § 4582.43), and no statutory restrictions are imposed on the amount of those charges or the method of calculating those charges. The Port Authority has determined that the amount of the concession fee will be 9.25% of the gross income of the rental car company occupying space inside the terminal and that the method of calculating the 9.25% will be to include gross income from both the rental ear company’s airport counter and its designated service facility. The fact that some part of that gross revenue includes a portion attributed to local car rentals at the designated service facility does not transform what is essentially a charge for rent into an illegal tax. A rental car company must decide whether the space and benefits of being inside the terminal are worth the privilege fee, or rent, fixed by the landlord of the premises, the Port Authority. As Ms. Warner-Dooley testified on cross-examination: A. It’s in no way a tax. It’s a privilege fee for under a concession agreement, concession opportunity, that is bid. Q. And so if you want to come into the airport and have a counter, you could submit yourself to having a fee levied upon you for all the business of the company no matter where you have that business? A. That is a business decision that bidders make. Thrifty for a long time has stayed off airport because of that. Q. And you’re saying that’s correct. That’s what Budget has to do. They have to decide if they will pay what you want from all their businesses, whatever you choose to extract, and then make the business decision? A. They have to decide if they are willing to live with the terms of the concession as proposed and make that business decision. (Tr. Vol. Ill pp. 143.) Budget makes the same argument here as was made in Budget Rent-A-Car Sys., Inc. v. County of Wayne, 742 F.Supp. 947 (E.D.Mich.1990), aff'd, 951 F.2d 348 (6th Cir.1991) (Wayne County). In that case, Wayne County, Michigan required in its contract with the Budget company that “in consideration for an in-terminal concession at the Detroit Metropolitan Airport, plaintiff must pay 9.5% of its gross revenues derived from all operations within three miles of the airport,” Id. at 948. The Budget company argued that its local rentals bore no relationship to its airport activities and therefore to include those rentals in its gross revenues constituted an illegal tax. In rejecting that argument, the district court said: Plaintiff’s argument is without merit; defendant’s system of access fees is not the functional equivalent of a tax. Rather than attempt to decipher the purposes for which every individual who rents a car from every interminal rent-a-car concessionaire, defendant has insisted on the provision in question which applies to all gross revenue a rent-a-car company receives within three miles of the Airport. Id. at 951. The Port Authority in the present case, unlike Wayne County, is not imposing a fee on all of the local income generated at Budget’s Designated Service Facility. But whether the fee is on all of the local income or on only one half of that income is of no significance, nor is the Port Authority’s motive for the imposition of this fee on local income determinative. The significant and determinative fact is that it is a fee charged by the Port Authority for occupying space and doing business in the terminal. The fact that the computation of that fee is based upon not only income from the airport counter but also from the Designated Service Facility which includes a portion of local rentals,- does not transform the concession fee into a tax. As in Wayne County, Budget’s argument that such a fee constitutes an illegal tax is without merit. Budget attempts to discredit the Wayne County precedent by arguing that it involved Michigan law rather than Ohio law. It is a distinction without a difference. The decision did not turn on any question of Michigan law as opposed to Ohio law, nor does Budget point out any variations. It turned instead, on the basic difference between an involuntary tax imposed on some activityfor the benefit of the public and a fee imposed for some benefit offered to the payer which the payer is free to pay or not pay. As our Sixth Circuit said in U.S. v. River Coal Co., Inc., 748 F.2d 1103, 1106 (6th Cir.1984): the test has been variously stated, but the chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the payer. Budget also denigrates the Wayne County decision because “the Sixth Circuit’s opinion is unpublished and carries with it the restriction found in Rule 24 of the Sixth Circuit Court of Appeals.” (Budget’s post-hearing brief, p. 19.) Apart from the fact that Budget itself relies on two unpublished state court decisions, ACT I and ACT II, supra, which under Rule 2(G)(1) of the Ohio Supreme Court’s Rules for Reporting of Opinions are not considered controlling authorities, under Sixth Circuit Rule 24(c), an unpublished opinion may be cited if the unpublished decision has precedential value in relation to a material issue in a case and if there is no published opinion that would serve as well. There are no other decisions of the Sixth Circuit Court of Appeals, published or unpublished, addressing a similar system of fees assessed by an airport or airport authority, and this Court is bound by the unpublished Sixth Circuit decisions as well as by those that are published. The first prong of Budget’s attack on the privilege fee applicable to revenues from local car rentals as constituting an illegal tax having no merit, the Court turns to the second prong — the argument that imposition of such a charge violates Budget’s right to equal protection under the Fourteenth Amendment to the United States Constitution and Article I of the Ohio Constitution. 2. The Equal Protection Argument Budget’s argument that the Port Authority has violated its right to equai protection under both the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I of the Ohio Constitution is based upon its contention that “the Authority cannot give any rational explanation or basis as to why Budget will be required to pay essentially 5% of its non-airport, local revenues as a fee when other concessionaires at the Airport are not charged a similar fee.” (Budget’s memorandum in support of motion for preliminary injunction, pp. 19-20.) In its post-bearing brief, Budget is somewhat more specific as to an alleged discriminatory classification: In this ease, the Authority cannot give any rational explanation or basis as to why Budget will be required to pay essentially 5% of its non-airport, local revenues as a fee when other concessionaires at the Airport, i.e., Enterprise, Payless, UPS, Max & Erma’s are not charged a similar fee. (Budget’s post-hearing brief, p. 23.) One very important and undisputed fact must be recognized at the outset. All car rental companies, like Budget, who desire to have counter space and signs inside the terminal are considered as being in one classification as car rental concessionaires, are treated equally by the Port Authority, and are required to sign the same concession agreement. To the extent the other on-airport car rental concessionaires derive local revenue from their Designated Service Facilities, one half of that revenue would also be included as gross revenue subject to the 9.25% privilege fee. No discrimination among the members of this classification has been alleged or proved. It appears from Ms. Warner-Dooley’s testimony on cross-examination that Anton Air Foods operates a franchise of Max & Erma’s (presumably a restaurant), a franchise for Massey’s Pizza and a subcontract for Charlie’s Steak House in the airport terminal. (Tr. Yol. Ill p. 145.) The terms and conditions and compensation paid to the Port Authority under any concession agreement with Anton Air Foods are not in the record. United Parcel Service (UPS) is not a concessionaire doing business inside the terminal. It is a courier service which has access to the terminal property and uses the airport’s loading docks. (Tr. Vol. Ill P. 145.) It is not a party to any concession agreement or contract with the Port Authority, but it pays a $300.00 courier fee that has been fixed by the Executive Director of the Port Authority under guidelines adopted by him pursuant to authority delegated to him by the Port Authority. (Tr. Vol. Ill pp. 146-47.) The Executive Director also fixes the fees charged the public for using the airport parking lots and the public parking garage pursuant to that same authority. The Port Authority distinguishes between concessionaires, i.e. persons or business entities that desire to occupy space inside the terminal and conduct their business on airport property, from persons or business entities that desire merely to have access to airport property for some purpose. The former are required to enter into a concession agreement; the latter are required to pay a user charge or fee and are subject to rules or regulations adopted by the Port Authority or its designated representative. The Port Authority, according to Ms. Warner-Dooley, is acting in a proprietary capacity in requiring contracts of concessionaires (“... how we set up the business terms, is not because we are a governmental entity. It is because we have an opportunity that people wish to bid for.” Tr. Vol. Ill p. 144) and in a governmental capacity in its regulation of trafile in and out of the airport, including the traffic of off-airport car rental agencies (“Our governmental authority comes in with the off-site rules.” Tr. Vol. Ill p. 144.) The reference to Enterprise and Payless is to two ear rental companies that apparently occupy somewhat hybrid positions between on-airport car rental concessionaires and off-airport car rental companies. Enterprise has a location on airport property, not inside the terminal but at the Lane Aviation airplane hanger. Payless similarly has a location on airport property, not inside the terminal but at the Concourse Hotel. (Tr. Vol. Ill pp. 167-68.) The Port Authority does not require these companies to enter into the concession agreement that is required of Budget and other car rental companies having counters inside the terminal, but instead has entered into separate contracts with these companies “that refer to the off-site rules and set parameters for operating.” (Tr. Vol. Ill- p. 167.) These two car rental companies, having “access to the airport hotel customers as well as airport hanger users,” pay a higher percentage fee than the 8% access fee off-airport car rental companies are required to pay because of their special positions and their proximity to the terminal. (Tr. Vol. Ill pp. 167-69, 192.) Although the contracts with these companies are not in evidence, Ms. Warner-Dooley testified that these companies are not required “to pay on their local business,” whereas Budget and other car rental companies having counters inside the terminal are required under the concession agreements to pay a percentage of their gross income from local car rentals. (Tr. Vol. Ill pp. 170-72.) Although Budget, in its post-bearing brief, does not include off-airport car rental companies in its list of business entities allegedly receiving favored treatment, the Court notes that their operations are governed by “Rules Regarding Off-Site Parking Operators and Off-Site Car Rental Operators.” (Port Authority’s exhibit 17.) Under those Rules, any car rental company that “uses the Airport by transporting customers to or from the Airport other than pursuant to a contract with the Authority for such services ... must obtain a license to use the airport” and must pay a “User Fee,” based upon a percentage of the Operator’s gross revenues. (Port Authority’s exhibit 17, pp. 2-3.) Gross revenues is defined as all revenues received, derived or accruing to an Operator from its operations conducted at, on, from, or to the airport. (Port Authority’s exhibit 17, pp. 1-2.) This is presumed under the Rules to include all transactions occurring in whole or in part at or allocated to locations of the operator within three miles of the airport. This presumption of airport related transactions can be rebutted, however, (and the income excluded from the fee), by providing one of an enumerated list of documents. (Port Authority’s exhibit 17, p. 2.) Thus, off-airport car rental companies — unlike on-airport car rental companies — can avoid paying a fee on non-airport related transactions. While Budget refers to Max & Erma’s, UPS, Enterprise, and Payless as being “concessionaires at the Airport,” it is clear from the record that only Max & Erma’s is considered by the Port Authority as a concessionaire by virtue of conducting its business inside the airport .terminal. Although, as previously noted, the concession agreement with Max & Erma’s is not in evidence, Ms. Warner-Dooley testified that this business, like Budget, pays “a concession fee, a percentage fee.” (Tr. Vol. Ill p. 137) and that “on-airport concessionaires” in exchange for the benefits and privileges of being inside the terminal agree to pay “a percentage.” (Tr. Vol. Ill p. 165.) With respect to Max & Erma’s, thát fee is apparently a percentage of the company’s gross income from the concessionaire’s airport operations. Although Budget’s counsel questioned Ms. Warner-Dooley about the ability to include in the concession privilege agreement other Max & Erma’s locations off airport property, this was never considered by the Port Authority. (Tr. Vol. Ill p. 145.) The problem with Budget’s comparison of its operations with Max & Erma’s, apart from the obvious difference between a restaurant and a car rental operation, is that there is no evidence that the concessionaire that owns and operates the franchise for Max & Erma’s restaurant inside the terminal conducts any part of that business outside the terminal, i.e., there is no non-airport related or local income that could be subject to the privilege fee. In fact, the evidence shows that the airport operator of the Max & Erma’s restaurant inside the terminal does not have any Max & Erma’s franchises off the airport property. (Tr. Vol. Ill p. 145.) Unlike the Max & Erma’s concession in the terminal, the other businesses which Budget believes are more favorably treated, ie., UPS, Enterprise, and Payless do engage in business off the airport property and receive income from non-airport related, ie., local, transactions, as does Budget at its Stel-zer Road location. Budget’s complaint is that it must pay a privilege fee that includes 50% of its Stelzer Road local transactions whereas these other business entities pay fees that do not include income from local transactions. While this distinction (particularly with reference to the car rental companies, Enterprise and Payless) may be sufficient to raise an equal protection argument, there is some question of whether any claim of a denial of the constitutional right to equal protection is applicable to the facts of this case, as illustrated by the observation of the district court in Wayne County: In the case at bar, there is no legislation involved; the government has not specifically classified the car rental companies for different benefits or burdens under the law. The classification is the result of a contract entered into at arms length and mutually agreed to by both parties. It is questionable, then, whether equal protection applies to this case. Defendant maintains that constitutional analysis in a contractual context is inappropriate and inapplicable. Accordingly, defendant moves pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss for lack of subject matter jurisdiction. The Court recognizes, however, that defendant was acting pursuant to state law when it entered into the contract in question, and by this official action, created a classification that results in different benefits and burdens. See, Columbus Bd. of Educ. v. Penick, 443 U.S. 449 n. 5, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). Accordingly the Court will test the classification using an equal protection analysis. Budget Rent-A-Car Sys., Inc. v. County of Wayne, 742 F.Supp. at 949-50. This Court is of the opinion that Budget’s constitutional rights are assertable, both as to equal protection and freedom of speech. Although the Port Authority, like any other property owner, is free to insist upon the terms and conditions it imposes upon persons or entities desiring to have access to or use ‘its property, it cannot impose conditions that are contrary to the rights granted to all citizens under the United States Constitution. In U.S. v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), the Supreme Court said that “[t]he government, even when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints, as does a private business ...” Similarly, in this Court’s view, the Port Authority, even when acting in its proprietary capacity, does not enjoy absolute freedom from the constraints imposed by the Equal Protection Clause of the Fourteenth Amendment. The Wayne County court pointed out that the Supreme Court has “provided the following guidance for considering whether an economic regulation violates equal protection guarantees,” referring to City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). In that case, the Supreme Court said: When a local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discrim-inations. Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.... In short, the judiciary may liot sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines; in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment City of New Orleans v. Dukes, 427 U.S. at 303-04, 96 S.Ct. 2513 (internal citations omitted). The Port Authority’s decision to require on-airport rental car concessionaires to pay a privilege fee on a portion of their non-airport related transactions conducted at their Designated Service Facilities but not requiring other business entities having access to the airport to pay a fee on non-airport related transactions is purely an economic decision, is not arbitrary and has a rational basis related to a legitimate governmental interest. There is a great difference between car rental concessionaires that have a counter space and large signs inside the airport terminal and persons or business entities that do not. The space inside.the terminal is limited, and is available to a limited number of businesses that desire to conduct their business inside the terminal. (Tr. Vol. Ill pp. 161-62.) There is an obvious business advantage of having a car rental business located inside the terminal, not only with respect to customers and potential customers who travel and desire to rent a vehicle, but also with respect to the exposure to local traffic that goes through the terminal. (Tr. Vol. Ill p. 139.) The Port Authority makes a determination of what the market value is for the concession in setting its fees (Tr. Vol. Ill p. 138) and solicits bids for concession agreements incorporating those fees. Courier services, such as UPS, conduct an entirely different type of business, one that does not occupy any terminal space but simply has access to loading docks for the purpose of delivering and picking up packages. Enterprise and Payless also do not occupy any terminal space, but because they have counter locations in closer proximity to the terminal, they are charged a higher fee than off-airport car rental companies. Off-airport car rental companies have the least advantages among the car rental companies and, accordingly, the fee charged by the Port Authority is less than that charged Budget and other car rental companies. There could be different methods used by the Port Authority in determining the fees charged for use of or access to its property, but, as the Supreme Court has said, the judiciary does not sit as a superlegislature to judge the wisdom of the Port Authority’s methods. It is clear to this Court that the fees charged the occupiers or users of the airport property have not been fixed in an arbitrary manner; that there is a rational basis for the different fees charged to the different classifications of occupiers and users of the property; and that there has been no. violation of Budget’s right to equal protection under the Fourteenth Amendment to the United States Constitution or Article I of the Ohio Constitution. B. Budget’s Claim that the Restrictions on its Speech Violate the First Amendment 1. The Applicability of the First Amendment and Standard of Review The parties are at the opposite ends of the spectrum cast by the Fust Amendment’s protection of freedom of speech. Budget contends that the Port Authority’s requirement that it agree to a contract that restricts the language that can be used by Budget on its invoices with reference to its privilege fee surcharge is a clear infringement on Budget’s constitutional rights under the First Amendment. Its argument appears to be based on two lines of Supreme Court eases. First, Budget contends that a governmental agency’s ability to restrict commercial speech is limited and is governed by Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of NY, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (Central Hudson), which sets forth a four-part analysis to be applied in determining whether a restriction on commercial speech meets constitutional muster: In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Id. at 566, 100 S.Ct. 2343. Budget argues that the words used to describe its surcharge — “Access Fee” (Port Authority’s exhibit 15) — are not misleading; that this language “accurately deseribe[s] the fee which they [Budget] have decided to unbundle;” and that there is no governmental interest that can justify prohibiting Budget from us-mg this language. (Budget’s post-hearing brief, pp. 27-28.) In addition, Budget relies on Bd. of County Comm’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (Umbehr), a recent decision of the Supreme Court dealing with the “unconstitutional conditions” doctrine. This doctrine provides that the government “ ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech’ even if he has no entitlement to that benefit.” Id. at 674, 116 S.Ct. 2342, quoting, Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Umbehr is the latest in a line of Supreme Court decisions dealing with First Amendment protection in the context of government employees. In Umbehr, the Court extended that protection to independent contractors as well as to employees. Budget’s argument is that “if a governmental agency cannot regulate the speech of an at-will contractor and use the exercise of the Right to Free Speech as a grounds for terminating the contractual relationship, the mere existence of a written contract does not give the Authority the ability to regulate the speech of Budget and the car rental concessionaires in how they describe the charges which they pass through to the car rental customer.” (Budget’s post-hearing brief, p. 32.) Stated another way, the argument could be made that the Port Authority cannot condition the receipt of a benefit — -a contract for an airport concession — on a curtailment of the First Amendment’s right to freedom of speech. The Port Authority’s position is at the opposite end of the spectrum. It contends that the First Amendment has no application whatsoever in this case because of a purported right of the Port Authority to condition the grant of airport space on a requirement that Budget limit its speech. According to the Port Authority, “[t]he concessionaires can then make the business decision either to accept the limitation upon their speech or to forego the business opportunity of being an on-site concessionaire. That choice is not a constitutional one.” (Port Authority’s post-hearing brief, p. 34.) The Port Authority’s position is illustrated by the following colloquy with the Port Authority’s counsel: THE COURT: Well, does Budget have any right under the First Amendment to the United States Constitution to describe its product in a manner that is truthful and not misleading? ****** You believe they have no such right? They have no such First Amendment right? MR. GALL: They have no First Amendment right, there is no First Amendment right implicated by a contract provision such as this which requires them to refrain from making these statements in exchange for or as part of the consideration for something the airport is selling to them. No sir, I don’t. THE COURT: In other words, the Airport Authority has the power to prohibit Max & Erma’s from telling its customers that, your hamburger is 100% beef? ’I* * * * * * MR. GALL: As a component of the consideration of space at the airport, yes. THE COURT: They give up that right? MR. GALL: They can be required to give up that right. THE COURT: Is that your position? MR. GALL: Yes, sir. THE COURT: In other words, as a component to having space at the airport, they can be required to give up any First Amendment rights they have to commercial speech that is not misleading. Is that your position? MR. GALL: They can be made to give up the right that your Honor has described, yes. (Tr. Vol. I pp. 40-42.) In support of this argument, the Port Authority relies on Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (Rust), in which the Court upheld regulations that prohibited abortion counseling in family-planning programs funded under Title X of the Public Health Service Act, 84 Stat. 1506, as amended, 42 U.S.C. §§ 300 to 300a-6. The Port Authority points to the following language in Rust: By accepting Title X funds, a recipient voluntarily consents to any restrictions placed on any matching funds or grant-related income. Potential grant recipients can choose between accepting Title X funds — subject to the Government’s conditions that they provide matching funds and forgo abortion counseling and referral in the Title X project — or declining the subsidy and financing their own unsubsidized program. We have never held that the Government violates the First Amendment simply by offering that choice. Id. at 199, fn. 5, 111 S.Ct. 1759. The Port Authority argues that the same reasoning applies to the present ease by analogy, ie., Budget can choose between accepting the contract with the language restrictions or declining to seek such a contract. The Port Authority’s second basic contention, “even if the First Amendment were implicated” (Port Authority’s post-hearing brief, p. 38), is that the Port Authority has not violated Budget’s First Amendment rights, because it has the right to prohibit actually or inherently misleading speech entirely and to require that potentially misleading speech be presented in a non-misleading manner. Peel v. Attorney Registration and Disciplinary Comm’n, 496 U.S. 91, 111, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990) (Marshall, J., concurring) (Peel). It contends that Section 4.6.1 of the proposed concession agreement is a constitutional effort to prohibit Budget’s use of the term “Access Fee” because it is actually or inherently misleading or, at a minimum, potentially misleading. (Port Authority’s post-bearing brief, pp. 42, 46.) In the Court’s view, the present case does not fall neatly into any of the categories of cases relied upon by the parties to support their respective positions. This is not a case involving a government subsidy program in which the government has the right to insist “that public funds be spent for the purposes for which they were authorized,” Rust, 500 U.S. at 196, 111 S.Ct. 1759, and, consequently, there is no First Amendment right to speech that is contrary to the purpose of that subsidized program. This Court does not believe that the Port Authority’s position that it has the unfettered right to require Budget to give up its First Amendment rights to obtain space in the terminal on a “take it or leave it” basis is supported by Rust or by any other authority. Also, this is not a case in which a governmental unit is exercising its power to regulate or license, as in Central Hudson and Peel; nor is it a case involving a governmental unit’s relationship with its employees or independent contractors as in Umbehr. Budget’s position vis-a-vis the Port Authority is not akin to an employee or independent contractor performing some function on behalf of the governmental unit; it is that of a company seeking to rent space inside the airport terminal for the location of its car rental counter in order to do business with travelers using the terminal facilities. In the view of this Court, the facts of this case come within the ambit of the decisions of the Supreme Court dealing with the right of a governmental unit, the Port Authority in this ease, as a proprietor, to manage its own property and its internal operations and the restrictions imposed on that management by the First Amendment. In Perry Educ. Ass’n v. Perry Local Educators’ Ass’n., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Court set forth different standards to be applied with respect to government property and the exercise of free speech on that property. In a traditional public forum or a designated public forum, the government, in order to enforce a content-based exclusion on speech, must show that its restriction is necessary to serve a compelling state interest and that it is narrowly drawn to that end, Id. at 45-46, 103 S.Ct. 948, but with respect to other government property, the standard is not that high. Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” U.S. Postal Serv. v. Council of Greenburgh Civic Associations, 453 U.S. 114, 129, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981). In addition to time, place, and manner regulations, the