Full opinion text
MEMORANDUM OF OPINION RENFREW, District Judge. This consolidated multidistrict litigation involves eight actions brought pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26, by Dollar Rent-A-Car System (“Dollar”) and various licensees of Dollar and Budget Rent-A-Car Corporation (“Budget”). Defendants include The Hertz Corporation (“Hertz”), Avis Rent-A-Car System (“Avis”), and National Rent-A-Car System, Inc. (“National”). Plaintiffs allege a conspiracy to restrain trade in and to monopolize the on-airport car rental market in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2. There are three motions presently before the Court. The first, brought jointly by defendants Hertz, Avis, National, and an Avis licensee, seeks summary judgment in the actions affecting airports in Austin, Texas; Denver, Colorado; and Miami, Florida. This motion is based on two separate contentions: First, that the Noerr-Pennington doctrine immunizes defendants’ conduct from the reach of the antitrust laws; and second, that that there is no causal connection linking defendants’ actions with plaintiffs’ alleged injury. The second motion is directed primarily against plaintiff Dollar. See infra, at 1103 n.32. Defendants contend that Dollar has no standing under Section 4 of the Clayton Act to sue for damages with respect to airports from which its licensees were excluded. Defendants argue that the damage suffered by plaintiff as a result of the exclusion of its licensees is too remote or incidental to serve as a basis for standing. Defendants’ third motion is for a pre-trial order governing burden of proof. Focusing on plaintiff Dollar’s intention to prove “fact of damages” by reference to a representative sampling of airports, defendants seek a pre-trial order pursuant to Rule 16 establishing that Dollar will not be entitled to damages with respect to airports for which no separate evidence has been presented. The Court will address each of these motions in turn. I. NOERR-PENNINGTON In April 1977, before these actions were consolidated, defendants Hertz and Avis moved for partial judgment on the pleadings in No. C-75-2650-CBR, arguing that the Noerr-Pennington doctrine exempted their activities from the reach of the antitrust laws. After considering the parties’ arguments and undertaking a preliminary inquiry into the scope of the doctrine, this Court denied defendants’ motion. Because there was “so much variation among the 140 airports involved in [the] action,” and because “defendants themselves admitted] that‘[t]he availability to defendants of * * * Noerr defenses [would] require proof at trial on an airport-by-airport basis,’ ” the Court concluded that defendants “failed to sustain their burden of showing that plaintiff can prove no set of facts that would remove its action from the Noerr-Pennington exception.” Dollar Rent A Car Systems, Inc. v. Hertz Corp., 434 F.Supp. 513, 517 (N.D.Cal.1977). Shortly after consolidation of the first seven actions, the Court entered a pre-trial order permitting defendants jointly to file a renewed motion for summary judgment predicated on Noerr-Pennington and authorizing full factual discovery directed at the airports chosen by defendants to be the focus of that motion. Defendants chose the airports in Austin, Texas; Denver, Colorado; and Miami, Florida, and undertook extensive discovery to support their claim. They then brought this motion, supplemented by a lengthy statement of facts and numerous exhibits. After having considered defendants’ papers, plaintiffs’ memoranda of facts and law in opposition, and the arguments of counsel, the Court concludes that defendants’ motion must be denied as to its Noerr-Pennington defense. A. Background of the Noerr-Pennington —Doctrine In Eastern Railroads Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), a group of trucking companies and their trade association sued 24 railroads, a railroad association, and a public relations firm under Sections 1 and 2 of the Sherman Act. They alleged that defendants had entered into a joint conspiracy to influence legislative and executive action for the purpose of destroying competition in the long-haul freight business. The Supreme Court found the railroads’ actions to be wholly immune from the antitrust laws, holding that a violation of the Sherman Act could not be predicated on mere attempts to influence the passage or enforcement of laws even if the purpose and effect of such influence was anti-competitive. 365 U.S. at 135-136, 81 S.Ct. 523. This conclusion rested on the necessity of preserving the informed operation of governmental processes and of protecting the right of petition guaranteed by the First Amendment. 365 U.S. at 137-138, 81 S.Ct. 523, see Franchise Realty v. S. F. Joint Exec. Bd., 542 F.2d 1076, 1080 (9 Cir. 1976), cert. denied, 430 U.S. 940, 97 S.Ct. 1571, 51 L.Ed.2d 787 (1977). In addition, the Court found that Congress had not intended to regulate “political activity,” pointing to the “essential dissimilarity between an agreement jointly to seek legislation or law enforcement and the agreements traditionally condemned by § 1 of the Act.” 365 U.S. at 136-137, 81 S.Ct. at 529, see Kurek v. Pleasure Driveway & Park Dist., 557 F.2d 580, 592 (7 Cir. 1977), vacated and remanded, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81, on remand, 583 F.2d 378 (7 Cir. 1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979). The Supreme Court reaffirmed and extended Noerr four years later in United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). In Pennington, a small coal mining company filed a cross claim under Sections 1 and 2 of the Sherman Act against the United Mine Workers, its trustees, and certain large coal operators, alleging a joint conspiracy to influence the Secretary of Labor and other government officials to establish a high minimum wage for employees of contractors selling coal to the TVA. The intended victims of this conspiracy were the smaller coal companies operating in the TVA term contract market. 381 U.S. at 660, 85 S.Ct. 1585. Despite defendants’ anticompetitive intentions, the Court determined that their conduct was protected from the reach of the antitrust laws. “Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition,” and even though the challenged conduct may be “part of a broader scheme itself violative of the Sherman Act.” Id. at 670, 85 S.Ct. at 1593. The most recent pronouncement of the Supreme Court in this area came in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). In California Motor the Court again affirmed the validity of the NoerrPennington doctrine and concluded that its protection should extend to joint activity to influence courts and administrative adjudicative bodies. Defendants rely heavily on California Motor in arguing that they are entitled to antitrust immunity because the airport officials they allegedly sought to influence were representatives of local administrative bodies. In response, plaintiffs make three arguments: First, that Noerr-Pennington does not immunize private parties who seek to influence officials acting in a commercial rather than in a governmental capacity; second, that defendants’ actions fall within the “sham” exception to Noerr-Pennington ; and third, that Noerr-Pennington does not immunize private parties who, rather than seeking merely to influence government officials, were actually acting in concert with them. Because the Court agrees with plaintiffs that defendants were seeking to influence government officials acting in a commercial or proprietary capacity, and that the Noerr-Pennington doctrine does not immunize such efforts from the reach of the antitrust laws, there is no need to address plaintiffs’ second and third contentions. B. The “Commercial Activity” Exception to Noerr-Pennington 1. Case Analysis The Supreme Court has never created an explicit “commercial activity” exception to the Noerr-Pennington doctrine. None of the cases before it have turned on whether the government officials plaintiffs were seeking to influence were performing a commercial or proprietary rather than a governmental or policy-making function. A number of lower courts have considered this issue, however, and it is upon these eases as well as upon the Supreme Court’s latest pronouncements with respect to Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), that plaintiffs rely. The primary case plaintiffs rely upon is George R. Whitten, Jr. Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1 Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970), on remand, 376 F.Supp. 125 (D.Mass.), aff’d, 508 F.2d 547 (1 Cir. 1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2407, 44 L.Ed.2d 673 (1975). In Whitten, a manufacturer and designer of swimming pool gutters and accessories, which was also a general contractor for the construction of swimming pool facilities, brought suit against a competitor and its dealers under Sections 1 and 2 of the Sherman Act. Plaintiff charged that defendants had conspired to influence public officials to adopt bidding specifications for construction of public swimming pools that were drafted to apply only to defendants’ pools. Conceding the truth of this allegation for the purposes of the summary judgment motion, defendants nonetheless contended that their activities were protected under both Parker v. Brown and Noerr-Pennington. The Court rejected both arguments. Regarding Parker, the Court agreed with defendants’ general proposition that restraints of trade resulting from valid governmental action cannot give rise to private antitrust liability. 424 F.2d at 29. However, it concluded that “the adoption of [defendants’ specifications by public bodies does not bring [defendants] within the exemption for valid governmental action.” Id. at 31. Turning its attention to NoerrPennington and defendants’ contention that its challenged activity was a legally protected effort to influence public officials in the passage or enforcement of laws, the Court developed the commercial/governmental distinction that is at the heart of the summary judgment motion now before this Court. The “key” to the Noerr decision, according to the First Circuit, was the Supreme Court’s “heavy emphasis on the political nature of the railroad’s activities and its repeated reference to the ‘passage or enforcement of laws.’ The entire thrust of Noerr is aimed at insuring uninhibited access to government policy makers. * * * By ‘enforcement of laws’ we understand some significant policy determination in the application of a statute, not a technical decision about the best kind of weld to use in a swimming pool gutter.” Id. at 32 (emphasis added). The Court further asserted that Pennington’s broad language to the effect that “[j]oint efforts to influence public officials do not violate the antitrust laws * * 381 U.S. at 670, 85 S.Ct. at 1593, did not undercut this interpretation: “Noerr stressed the importance of free access to public officials vested with significant policy-making discretion. We doubt whether the Court [in Pennington], without expressing additional rationale, would have extended the Noerr umbrella to public officials engaged in purely commercial dealings when the case turned on other issues.” Id. at 33. Because of its conclusion that the NoerrPennington defense applied only to efforts to influence government officials acting in a non-commercial, policy-making capacity, the Court rejected defendants’ reliance on the doctrine, holding that Noerr-Pennington “does not extend to efforts to sell products to public officials acting under competitive bidding statutes.” Ibid. Moreover, after reaching this conclusion, the Court buttressed its case analysis with supporting First Amendment analysis: “This conclusion does not, in our view, encroach on the freedom of speech and right to petition protected by the First Amendment. The First Amendment does not provide the same degree of protection to purely commercial activity that it does to attempts at political persuasion. Cf. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942); Bread v. City of Alexandria, 341 U.S. 622, 641-643, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). Moreover, the First Amendment does not prevent government from adopting reasonable rules for regulating the conduct of those who seek its favor. United States v. Harriss, 347 U.S. 612, 625-626, 74 S.Ct. 808, 98 L.Ed. 989 (1954).” Id. at 33-34. The Court of Appeals for the District of Columbia Circuit employed a similar analysis in Hecht v. Pro-Football, Inc., 144 U.S. App.D.C. 56, 444 F.2d 931 (1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972). In that case, an unsuccessful prospective purchaser of a professional football team brought suit under the Sherman Act against the Washington Redskins, the National Football League, and the District of Columbia Armory Board, the agency entrusted with managing R.F.K. Stadium in Washington, D.C. The gist of the complaint was that defendants had conspired to restrain and monopolize the business of professional football by seeking and obtaining inclusion of a covenant in the stadium lease that prohibited the use of the stadium by any professional football team other than the Redskins for a period of 30 years. In an opinion based primarily on Parker, the Court concluded that defendants were not outside the reach of the antitrust laws. The Court also rested its conclusion, at least in part, on the distinctions set forth in Whitten. See 444 F.2d at 940-941. In this part of its opinion the Court agreed that where the governmental agency is not in a position to make governmental policy, but is “obligated to carry out the policy as already made, * * * the rationale of NoerrPennington, guaranteeing access of private parties in combinations which would otherwise be illegal under the antitrust laws to influence such agency simply [would] not apply.” Id. at 942. See also Woods Exploration & Pro. Co. v. Aluminum Co. of Amer., 438 F.2d 1286, 1298 (5 Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972) (“action designed to influence policy * * * is all the NoerrPennington rule seeks to protect”) Oahu Gas Serv., Inc. v. Pacific Resources, Inc., 460 F.Supp. 1359, 1384-1385 (D.Hawaii 1978) (“if [defendants’] actions are not directed toward achieving a political result or affecting public policy, the Noerr-Pennington protections may not apply * * *”). The third case relied upon by plaintiffs in support of the “commercial activity” exception is Sacramento Coca-Cola Bot. Co. v. Chauffeurs Loc. 150, 440 F.2d 1096 (9 Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971). There, a bottler and seller of soft drinks and a concessionaire and vendor of soft drinks sued the local, national, and international organizations of the Teamsters union, alleging that “due to threats, duress and other coercive measures exercised by the defendants upon the California State Fair officials, these officials issued a directive forbidding the sale of any Coca-Cola upon the fairgrounds during the 1966 State fair.” Id. at 1096. Like Hecht, Sacramento Coca-Cola was not decided on the ground that Noerr-Pennington is inapplicable to defendants who conspire to influence governmental bodies engaged in purely commercial decisionmaking. Rather, the Court of Appeals for the Ninth Circuit found Noerr-Pennington inapplicable because the doctrine did not extend to attempts to influence public officials “by means of threats, intimidation and other coercive measures.” Id. at 1099. However, in reaching this result the Court expressly relied upon the First Circuit’s conclusion that the exemption is limited to instances where the “ ‘attempt to influence a public official is the kind of political activity which Noerr protects.’ ” Id. at 1099, quoting Whitten, supra, 424 F.2d at 33. Accepting the First Circuit’s view that attempts to influence “purely commercial dealings” are one type of political influence that Noerr does not protect, the Court concluded that attempts to influence through “threats and other coercive measures” are another. Ibid. In addition, the Court stressed that “[t]he basic thrust of [the Noerr and Pennington] decisions is political.” Ibid. Finally, this Court notes that the District Court for the District of Columbia has recently followed Whitten, Hecht and Sacramento Coca-Cola in a case where defendants were alleged to have influenced federal procurement decisions. See General Aircraft Corp. v. Air America, 1979-1 Trade Cases, ¶ 62,452, p. 76,672 (D.D.C. January 30, 1979). Noting that “[c]ourts have been reluctant to apply the Noerr-Pennington doctrine to attempts to influence government bodies acting in purely commercial matters such as procurement,” the Court in General Aircraft Corp. concluded that “[i]n reaching a decision not to purchase plaintiff’s products and services, none of the government entities acted in either a legislative, adjudicatory or administrative capacity so as to place defendant’s actions within the reach of the Noerr-Pennington exception.” Id. at 76,675-76,676. Defendants do not dispute that these courts have impressed a “commercial activity” limitation upon Noerr-Pennington. Nor have they distinguished the great number of cases that have, at least in dicta, approved the Whitten line of analysis. See, e.g., Council for Employment v. W H D H Corp., 580 F.2d 9, 12 & n. 11 (1 Cir. 1978), cert. denied, 439 U.S. 978, 99 S.Ct. 561, 58 L.Ed.2d 648 (1979); Kurek, supra, 557 F.2d at 592-593 n. 10, 593-594; Security Fire Door Co. v. County of Los Angeles, 484 F.2d 1028, 1030 n. 2 (9 Cir. 1973); Israel v. Baxter Laboratories, Inc., 151 U.S.App.D.C. 101, 105, 466 F.2d 272, 276 (1972); Woods, supra, 438 F.2d at 1298; Czajkowski v. State of Illinois, 460 F.Supp. 1265, 1279 (N.D.Ill. 1977). See also Comment, Whitten v. Paddock, The Sherman Act and the “Government Action” Immunity Reconsidered, 71 Colum.L.Rev. 140, 151 (1971); Note, Application of the Sherman Act to Attempts to Influence Government Action, 81 Harv.L. Rev. 847, 852-854 (1968). They merely argue that this limitation is not soundly based, particularly in light of recent Supreme Court cases. The Court does not agree. Defendants’ primary contention is that Whitten, and the cases following it, rest on the supposition that. “[t]he First Amendment does not provide the same degree of protection to purely commercial activity that it does to attempts at political persuasion.” Whitten, supra, 424 F.2d at 33. This distinction, according to defendants, is no longer valid in light of the recent line of Supreme Court cases that purportedly “put ‘commercial’ speech, that is, speech directed entirely to effecting a commercial transaction, on the same First Amendment footing as ‘political’ speech.” Memorandum in Support of Defendants’ Joint Motion for Summary Judgment, at 67, citing First National Bank v. Bellotti, 435 U.S. 765, 783-874 n. 20, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); Bates v. State Bar of Arizona, 433 U.S. 350, 363, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 91, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977); Virginia State Board of Pharmacy v. Virginia Consumer Council, Inc., 425 U.S. 748, 770, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). Because the basis of the distinction no longer holds true, according to defendants, the distinction itself should be disregarded. Before addressing the merits of this argument, the Court feels compelled to note that two of the cases relied upon by plaintiffs arose after the Supreme Court “commercial speech” cases cited by defendants. The first of these cases is General Aircraft Corp., supra, 1979-1 Trade Cases, ¶ 62,452, p. 76,672, decided in January 1979, in which the District Court for the District of Columbia reaffirmed the validity of the Whitten line of cases and the commercial/governmental distinction. The second case is Chestnut Fleet Rentals, Inc. v. Hertz Corp., Civ.Action No. 75-1889 (E.D.Pa. Sept. 20, 1978). Interestingly enough, Chestnut Fleet Rentals arose out of the same factual setting as some of the cases now before this Court. The court there, ruling in the fall of 1978, rejected defendants’ position, holding that “the decisions of the governmental authorities in the matters complained of were of a commercial nature, not of a governmental nature. Thus, the decisions are made based upon economic criteria, and according to George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1st Cir. 1970), such conduct is not protected by the NoerrPennington doctrine of antitrust immunity. See also Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286 (5th Cir. 1971), Hecht v. Pro-Football, Inc., [144 U.S.App.D.C. 56] 444 F.2d 931 (D.C. Cir. 1971) and Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Teamsters and Helpers Local No. 150, et al., 440 F.2d 1096 (9th Cir. 1971).” Memorandum and Order at p. 2. Although this Court does not find that Chestnut Fleet Rentals has collateral estoppel effect as to all defendants and with regard to all airports involved in the current litigation, it does appear that the Eastern District of Pennsylvania had an opportunity to consider defendants’ argument that Whitten is no longer applicable. In conjunction with General Aircraft Corp., the case certainly suggests that the Whit-ten line of cases remains valid and that defendants’ arguments are not well founded. a. The Principles Underlying NoerrPennington Before analyzing and defining the contours of the commercial activity exception to Noerr-Pennington, the Court must address the issue of whether Noerr-Pennington is a doctrine based on statutory construction of the Sherman Act or whether it is based on an interpretation of the First Amendment. If the former, the Court’s analysis would center on the extent to which Congress intended all lobbying activities to be exempt from the Act, regardless of the commercial or governmental nature of the decision being sought. If the latter, the Court’s analysis would focus on whether the First Amendment protects speech directed at influencing government officials acting in a commercial capacity, when that speech would otherwise constitute conspiratorial conduct prohibited by the Sherman Act. In Noerr, the Supreme Court strongly suggested that its exemption was the result of statutory construction. Although it referred to the right of petition as an essential underpinning of its analysis, 365 U.S. at 137, 81 S.Ct. 523, the thrust of the Court’s reasoning was that the Sherman Act could not have been intended to “prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly,” id. at 136, 81 S.Ct. at 529, because such a result would “impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act.” Id. at 137, 81 S.Ct. at 529 (emphasis added). Moreover, the Court explicitly refrained from considering respondents’ contention that their challenged activities were constitutionally protected by the First Amendment, stating that “Because of the view we take of the proper construction of the Sherman Act, we find it unnecessary to consider any of these other defenses.” Id. at 132 n.6, 81 S.Ct. at 527 n.6 (emphasis added). The sureness with which the Supreme Court stated the basis for its decision in Noerr was not challenged in Pennington, but in California Motor the Court took a considerably more restrictive position. Relying on the First Amendment underpinnings of Noerr, the Court predicated its entire analysis on the tension between the right to petition as guaranteed by the First Amendment and the Congressional prohibition on anticompetitive restraints of trade. This perspective was particularly evident in the Court’s statement: “We conclude that it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors.” 404 U.S. at 510-511, 92 S.Ct. at 612 (emphasis added). Moreover, in developing the “sham” exception the Court focused not on Congressional intent, but on the limits of the First Amendment. For example, it stated: “Petitioners[’] * * * right of access to the agencies and courts * * * is part of the right of petition protected by the First Amendment. Yet that does not necessarily give them immunity from the antitrust laws. “It is well settled that First Amendment rights are not immunized from regulation when they are used as an integral part of conduct which violates a valid statute.” Id. at 513-514, 92 S.Ct. at 613. And “First Amendment rights may not be used as the means or the pretext for achieving ‘substantive evils’ [citation omitted] which the legislature has the power to control.” Id. at 515, 92 S.Ct. at 614. The Court concludes from its reading of California Motor, which is the most recent case setting forth the conceptual framework of Noerr-Pennington, that the doctrine represents a First Amendment limitation on the scope of the Sherman Act. Accord, California Motor, supra, 404 U.S. at 516-517, 92 S.Ct. 609 (Stewart, J., concurring); see Handler, Twenty-Five Years of Antitrust, 73 Colum.L.Rev. 415, 434-435 (1973). The Court finds considerable legal support for this conclusion. See, e. g., City of Lafayette, supra, 435 U.S. at 399—400 n.17, 98 S.Ct. 1123; Continental Ore Co., supra, 370 U.S. at 707-708, 82 S.Ct. 1404; Subscription T.V. v. Southern Cal. Theatre Owners, 576 F.2d 230, 233 (9 Cir. 1978); Kurek, supra, 557 F.2d at 593-594; Whitten, supra, 424 F.2d at 29 n.4; General Aircraft Corp., supra, ¶ 62,452 at 76,675; D. Fischel, Antitrust Liability for Attempts to Influence Government Action: The Bases and Limits of the Noerr-Pennington Doctrine, 45 U.Chi.L.Rev. 80, 95—96 & n.89 (1977). But see Cow Palace Ltd. v. Associated Milk Producers, 390 F.Supp. 696, 700-702 (D.Colo.1975). As a result, the Court’s inquiry must be directed to the question of whether defendants can successfully attack the Whitten line of cases by arguing that the First Amendment prohibits all restraints on a private party’s efforts to influence government officials, regardless of whether the government officials are acting in a proprietary or a governmental capacity. 2. First Amendment Analysis There are two responses to defendants’ contention that Whitten has been undercut by the recent line of Supreme Court “commercial speech” cases. First, although the Court has concededly elevated commercial speech to a level that more closely approximates the level enjoyed by political speech, it has certainly not merged the two. To the contrary, the Court has stressed that commercial speech, even more than political speech, may be regulated in the face of a compelling government interest. Second, although one of the sources of the First Circuit’s First Amendment analysis in Whitten was a somewhat discredited line of freedom of speech cases, that court also relied on United States v. Harriss, supra, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989, a case standing for the proposition that Congress may restrict the right to petition where such restriction is necessary to protect the public against a substantive evil. a. Commercial Speech Despite defendants’ suggestion to the contrary, commercial speech is not “on the same First Amendment footing” as political speech. Rather, because commercial speech is often easier to verify than political speech, and because—due to the financial incentives of commercial “speakers”—commercial speech is often “hardier” than political speech, the Supreme Court has retained a distinction between the two. See, e. g., Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Linmark Assocs., Inc. v. Town of Willingboro, 431 U.S. 85, 98, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977); Va. State Bd. of Pharmacy v. Va. Citizens Consumers Council, Inc., 425 U.S. 748, 771-772 & n.24, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Moreover, while the First Amendment grants “a limited measure of protection” to commercial speech, “the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S.Ct. 1912, 1919, 56 L.Ed.2d 444 (1978) ; see Savage v. Commodity Futures Trading Comm’n, 548 F.2d 192, 197 (7 Cir. 1977). The power of a state to regulate commercial speech in the face of a potential “evil” was most recently affirmed in Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979), a case involving a challenge to a Texas statute that prohibited the practice of optometry under a trade name. The Court recognized that a trade name is “a form of commercial speech that has no intrinsic meaning” and “conveys no information about the price and nature of the services offered * * 440 U.S. at 12, 99 S.Ct. at 895. As a result, “there is a significant possibility that trade names will be used to mislead the public.” Ibid. Because the Court found that “the State’s interest in protecting the public from the deceptive and misleading use of optometrical trade names” was strong enough to override any First Amendment protection afforded that type of commercial speech, it held that the challenged statute was constitutional. Id. at 15, 99 S.Ct. at 897. Friedman is thus fully consistent with previous authority indicating that a state may regulate commercial speech when it has a “substantial and well-demonstrated” interest in doing so to protect the public. Moreover, Friedman reaffirms that a court should scrutinize commercial speech with greater care than it should scrutinize political speech in determining whether there is a valid governmental justification for regulation. Congress’s primary purpose in enacting the antitrust laws was to protect the public against anticompetitive restraints of trade, or, as the Supreme Court has put it, in “preserving free and unfettered competition as the rule of trade.” Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958). The issue before this Court is whether that governmental interest is sufficiently strong to warrant imposition of restrictions on commercial speech, i. e., attempts to influence public officials in the exercise of non-policy-making, proprietary functions, even though it may not be strong enough to warrant imposition of restrictions on political speech, i. e., attempts to influence public officials in the exercise of non-commercial, governmental functions. The Court finds that it is. As the Supreme Court noted in United States v. Topco Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972): “Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete—to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster. Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy. Cf. United States v. Philadelphia National Bank, 374 U.S. 321, 371, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).” 405 U.S. at 610, 92 S.Ct. at 1135. This is strong language indicating an equally strong government interest in protecting the public and the public economy by maintaining free competition as the rule of trade. Although it must yield to the First Amendment rights of speech and petition when the government is acting in a policy-making capacity, the Court concludes that when commercial speech is involved—when defendants are seeking to influence the purely commercial functions of government—the governmental interest in maintaining the integrity of the antitrust laws must take precedence. “Immunity from the antitrust laws is not lightly implied.” California v. Fed. Power Comm’n, 369 U.S. 482, 485, 82 S.Ct. 901, 903, 8 L.Ed.2d 54 (1962); see also City of Lafayette, supra, 435 U.S. at 399, 98 S.Ct. 1123 (“overarching and fundamental” policies represented in antitrust laws argue against implied exclusions). Because of the strength of the governmental interest involved, and because of the Supreme Court’s recognition that greater restrictions may be placed on commercial speech than on political speech, the Court holds that when the government is acting in a purely commercial capacity, as, for example, a buyer or seller of goods, the antitrust laws should be applied as though plaintiffs had alleged a conspiracy to influence a large commercial customer in its commercial decisionmaking. Given the broad intrusion of government into our everyday economic affairs, and given the “potential of serious distortion of the rational and efficient allocation of resources” that results from the independent economic decisions of governmental bodies, see City of Lafayette, supra, 435 U.S. at 408, 98 S.Ct. at 1134, a blanket application of Noerr-Pennington to all attempts to influence government officials would be unwarranted. b. Harriss The validity of the Court’s balancing approach to Noerr-Pennington is supported by the Supreme Court’s similar approach to cases involving the right to petition, the First Amendment right that lies at the heart of the Noerr-Pennington doctrine. One example of this approach is United States v. Harriss, supra, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989, one of the cases upon which the First Circuit relied in Whit-ten. In Harriss, the Supreme Court heard a challenge to the constitutionality of the Federal Regulation of Lobbying Act, legislation that required Congressional lobbyists to register and periodically to file reports listing expenditures made to influence the passage or defeat of legislation. Id. at 614, 74 S.Ct. 808. Recognizing that this statute infringed upon defendants’ right to petition and right to freedom of speech, the Court nonetheless felt constrained to balance that infringement against the acknowledged “evil” that Congress sought to prevent. Because of its deference to Congressional concern that “the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal,” id. at 625, 74 S.Ct. at 816, the Court upheld the statute. It is significant that the Court did not distinguish between the right to petition and the right to freedom of speech in its analysis. Nonetheless, this is not surprising. The Court generally does not distinguish the right to petition from other First Amendment rights. See, e. g., United Mine Workers of America v. Illinois State Bar Ass’n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945); D. Fischel, supra, 45 U.Chi.L.Rev. at 81 & n.13. Perhaps this is because the values expressed by these rights—ensuring that the public and the government possess all information necessary for informed decisionmaking—are so similar. Compare Noerr, supra, 365 U.S. at 137, 81 S.Ct. 523, with Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1944). Whatever the reason, it supports this Court’s determination that the restrictions that may be placed on freedom of speech are roughly comparable to the restrictions that may be placed on the right to petition. The Court’s analysis cannot stop here, however, because the right to petition seems to be subject to even greater restrictions than the right to freedom of speech. These restrictions are suggested most strongly by California Motor, supra. In California Motor, the Court reaffirmed the broad proposition that the right to petition is not absolute. However, it went further and indicated that the scope of the permissible restrictions on that right depends in part on the nature of the government forum being petitioned. In the administrative forum, where greater restrictions may be imposed than in the legislative forum that was the focus of Noerr, a private party has no First Amendment right to petition the Government by means of perjury, fraud, payment of bribes, or misrepresentations. See California Motor, supra, 404 U.S. at 512-513, 92 S.Ct. 609. The Constitution does not protect that type of petitioning. Accord, Mountain Grove Cemetery v. Norwalk Vault Co., 428 F.Supp. 951, 955 (D.Conn.1977) (“[Cjorrupt practices that abuse administrative or judicial tribunals can prompt the removal of antitrust immunity”). As this Court’s discussion of City of Lafayette will indicate, infra, pp. 1087—1091, this distinction may be critical, insofar as the airport officials allegedly being influenced were representatives of local administrative, adjudicatory bodies. For that reason, defendants’ attempts to invoke the First Amendment must be viewed with greater scrutiny than if, for example, they had approached a state legislative body. The Court’s analysis of NoerrPennington and the First Amendment rights upon which it rests can be summarized in four statements. First, the right to petition and to freedom of speech may be restricted in the face of a compelling state interest. See Giboney v. Empire Storage Co., 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949). Second, among such compelling interests may be the interest of government in preserving the fundamental policies expressed in the antitrust laws. See Nat’l Soc. of Prof. Engineers v. United States, 435 U.S. 679, 696-697, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978); City of Lafayette, supra, 435 U.S. at 400, 98 S.Ct. 1123; Associated Press v. United States, 326 U.S. 1, 19-20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); cf. Savage, supra, 548 F.2d at 197 (First “Amendment does not remove a business engaged in the communication of information from general laws regulating business practices”). Third, this government interest may be given considerably greater weight when commercial speech is involved, that is, when the government activity being influenced is of a commercial rather than a political or policy-making nature. See Council for Employment, supra, 580 F.2d at 12; State of Missouri v. Nat’l Org. for Women, 467 F.Supp. 289 at 304 (W.D.Mo. 1979); Oahu Gas Serv., Inc., supra, 460 F.Supp. at 1384-1385. Fourth, the First Amendment interest may be given less weight when defendants are seeking to petition local governmental units or adjudicatory bodies rather than state or federal legislatures. See California Motor, supra, 404 U.S. at 512-513, 92 S.Ct. 609; Oahu Gas Serv., Inc., supra, 460 F.Supp. at 1385 (defendants’ attempts to influence government officials “are subject to closer scrutiny because they occurred in an adjudicatory setting”). It is this “balancing” analysis, which is fully consistent with the results reached in the Whitten line of cases, that the Court must apply in evaluating defendants’ Noerr-Pennington defense in the cases at bar. 3. City of Lafayette Analysis The Court’s decision to retain Noerr-Pennington’s commercial/governmental distinction is prompted not only by its First Amendment analysis but also by its desire for consistent application of the laws. Recent cases following Parker v. Brown have established that local government units and their officials are not entitled to “state action” immunity solely by virtue of their governmental status. Rather, their immunity depends on the degree to which their anticompetitive activities were undertaken to implement state policy. In light of this limitation, the Court is concerned that rejection of the eommercial/governmental distinction would lead to the anomalous result that where a municipality is engaged in commercial activity, but is not implementing a state “anticompetitive” policy, the decisionmaking municipal officials would be subject to antitrust liability even though the private parties who prompted their anticompetitive conduct would not, simply because the private parties sought to influence “government officials.” In City of Lafayette, supra, the Supreme Court reaffirmed that municipalities are not automatically exempted from the antitrust laws by Parker. It is significant that the Court’s decision in part rested on its concern that these independent decision-making bodies might have a potentially disruptive effect on the national economy: “When [municipalities and other local units of government] act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender.” 435 U.S. at 408, 98 S.Ct. at 1134. Although principles of federalism require that states themselves be permitted to engage in such anticompetitive economic conduct, a plurality of the Court held that “[i]n light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation’s economic goals reflected in the antitrust laws * * *,” the Parker doctrine must be limited to exempt “only anti-competitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service.” Id. at 412-413, 98 S.Ct. at 1137. The Court therefore placed a significant limitation on the extent to which each local governmental unit could pursue its independent economic policies and still remain exempt from the scope of the antitrust laws. The Chief Justice, in a concurring opinion that is of particular interest to this Court, agreed with the general conclusions of the plurality but focused more specifically on the commercial nature of the municipal activity being challenged. He indicated that the commercial activities of a municipality should be treated no differently than the commercial activities of private entities, stating: “This case turns, or ought to, on the District Court’s explicit conclusion, unchallenged here, that ‘[t]hese plaintiff cities are engaging in what is clearly a business activity; activity in which a profit is realized.’ There is nothing in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), or its progeny, which suggests that a proprietary enterprise with the inherent capacity for economically disruptive anticompetitive effects should be exempt from the Sherman Act merely because it is organized under state law as a municipality.” Id. at 418, 98 S.Ct. at 1139 (footnote omitted). He concluded that when municipalities are engaged in commercial or proprietary activity, that is, the same type of activity any other “entrepreneur in the economic community” might engage in, they should be subject to the antitrust laws absent a “strong showing” that the state “compelled” the challenged activity and that this compulsion was “essential” to the state’s regulatory plan. Id. at 425-426 & n.6, 98 S.Ct. 1123. See also Czajkowski v. State of Illinois, 460 F.Supp. 1265, 1279-1280 (N.D.Ill.1977) (“the state action exemption is more likely to be applied where the plaintiffs’ claim is directed against a public * *' * rather than a private party, * * * where the challenged activities flow from an affirmative command of the legislature rather than the acquiescence of a state regulatory agency, * * * where the governmental unit concerned is the state itself rather than [a] municipality or other subordinate state governmental body, * * * and where the state program is enacted for the public good rather than to further private financial objectives.”). Because the Supreme Court has declared that municipalities and their officials are subject to antitrust liability when their activities are not necessary to implement state policies—and because of the suggestion that municipalities engaging in commercial activities are often not acting pursuant to articulated state policies—an interpretation of Noerr-Pennington that rejected the commercial/governmental distinction would be likely to lead to inequitable results. Perhaps the most obvious example of this would be the situation where private parties had influenced a municipal body to engage in a purely commercial, anticompetitive activity that was either contrary to state policy, or at least not related to state policy. Under City of Lafayette, this type of activity would subject the municipality and its officials to potential liability under the antitrust laws. Yet if Noerr-Pennington were interpreted to immunize efforts by private parties to influence any type of governmental decisionmaking, the private parties who instigated such activity would themselves be immune from the antitrust laws. While it is true that Noerr-Pennington and Parker v. Brown are legal doctrines rooted in very separate principles—the right to petition versus sovereign immunity and federalism—the Court feels constrained to consider their practical interrelation in order to avoid potentially inequitable or anomalous results. And it certainly seems inequitable to hold a municipal official liable for actions he took at the urging of a private party while ruling that the private party is immune solely because it acted through the agency of that municipal official. Cf. Duke & Co., Inc. v. Foerster, 521 F.2d 1277, 1282 (3 Cir. 1975) (Noerr-Pennington inapplicable, where private parties and public officials are alleged to be co-conspirators); Harman v. Valley Nat’l Bank, 339 F.2d 564, 566 (9 Cir. 1964) (same). For these reasons, it seems appropriate to restrict the Noerr-Pennington doctrine to attempts to influence government officials who are engaged in activity that would be protected from the reach of the antitrust laws. The Court of Appeals for the Seventh Circuit appeared to be influenced by this same desire to interpret Parker and Noerr in a consistent fashion in Kurek, supra, 557 F.2d 580. At issue in Kurek was whether the antitrust laws would apply to a park district and one of its concessionaires which allegedly conspired to coerce the concessionaires^ competitors into raising and fixing retail prices. 557 F.2d at 585-587. After a lengthy discussion of the Park District’s statutory authority to engage in the challenged activity, the Court concluded that the District was not entitled to a Parker defense, because “[n]othing in the Illinois statutory provisions governing park districts even remotely suggests that Illinois has authorized, let alone compelled, park districts to attempt to enrich themselves by coercing horizontal retail competitors operating under concession licenses to fix retail prices in what would otherwise be plain violation of the Sherman Act.” Id. at 590. Having disposed of the District’s state action defense, the Court focused its attention on the Noerr-Pennington issue. That issue was based on the private concessionaire’s presentation to the Park District of a “sham” proposal that would be used by the District to coerce the other concessionaires into the illegal price-fixing activity. Id. at 593. Resting rested its conclusion in part on its previous Parker analysis, the Court held that Noerr-Pennington offered no defense: “Our determination [under Parker] that the Park District and its officials had no state mandate or authority to engage in the activities attacked here necessarily reduces the applicability of the reasoning of Noerr to the degree it is based on the need of the governmental units for citizens input in making decisions that Parker holds to be outside the scope of the Sherman Act.” Id. at 593. That is, the Court found that the rationale of Noerr-Pennington would not extend to attempts to influence government officials acting in a manner that was not protected “state action” under Parker. Accord, Hu ron Valley Hospital, Inc. v. City of Pontiac, 466 F.Supp. 1301 at 1315 (E.D.Mich. March 2, 1979) (“ * * * Noerr-Pennington immunity presupposes Parker v. Brown immunity: if the governmental or agency action is valid as under state authority (despite anticompetitive effects), then seeking to influence the action and a successful outcome are also exempt”). There are two conclusions that can be drawn from the Court’s City of Lafayette analysis. First, whenever possible, the Noerr-Pennington doctrine should be applied in a manner that is consistent with Parker; that is, the courts should be reluctant to extend immunity to private parties who have sought to influence government activity that would not be protected under the state action doctrine. Second, in evaluating whether the governmental activity would be unprotected (and indirectly, whether the private parties who sought to influence it should be subject to the antitrust laws), the courts should consider the extent to which the governmental body is a subordinate unit of the state, acting in its own parochial interest rather than in the interest of implementing a particular state-policy, and it should also consider the extent to which the governmental body is performing a commercial function comparable to the functions performed by other large entities making decisions in the market place. 4. Summary of Legal Analysis The Court recognizes that its First Amendment right to petition analysis and its City of Lafayette state action analysis do not exactly coincide. Nonetheless, some broad conclusions can be drawn from the two lines of authority. Foremost among these is the conclusion that a private party cannot be granted Noerr-Pennington immunity solely on the basis of having been part of a joint effort to influence government officials. Although there can certainly be no Noerr-Pennington immunity without such an effort, once an attempt to influence government officials has been found, there remain at least two other issues for the courts to consider. First, the courts must ask whether the public officials allegedly being influenced were acting in a commercial or a governmental capacity. As Whitten and this Court’s First Amendment analysis indicate, a private party’s right to petition the government for redress of grievances must yield to the compelling governmental interests expressed in the antitrust laws when the public body being “petitioned” is acting as a commercial entity influenced by economic concerns rather than as a policymaking unit of government. This need to differentiate between the commercial and the governmental functions of government officials is reinforced by City of Lafayette, particularly Chief Justice Burger’s analysis, which indicates that the antitrust laws may apply with greater force to governmental units acting in an independent commercial capacity. Second, the Court must ask what type of governmental body is being petitioned and how many levels removed it is from the legislature. As noted in California Motor, supra, a party’s right to petition may be subject to closer scrutiny when the object of the petition is an administrative rather than a legislative body. Moreover, in order to be consistent with the state action doctrine as developed in City of Lafayette, a party’s right to petition may be subjected to greater controls when the object of the petition is a local governmental body, particularly when it is acting as an independent economic entity rather than as an agent of state “anticompetitive” policy. As Justice Stewart suggested, dissenting in City of Lafayette, there is no clear line dividing the “proprietary” from the “governmental” activities of a governmental body. See 435 U.S. at 433-434, 98 S.Ct. 1123. But this Court must conclude that as the decisionmaking function of a governmental body becomes more commercial, focusing on economic criteria rather than on policy considerations, and as the decision-making body becomes further removed from the legislative forum in the sense that it is either an administrative or adjudicatory body or an independent unit not carrying out state policy, the Noerr-Pennington doctrine must offer correspondingly less protection to the private parties who seek to assert their influence. The mere fact that the object of their influence is a government official should not be cause for granting an exemption from the antitrust laws. C. Application of the Commercial Activity Exception: The Test Airports There is only an element left to this Court’s analysis, but it is by far the most important. To this point, the Court has been concerned with whether a “commercial activity” exception to Noerr-Pennington even exists. Now that it has resolved that issue, and has further sought to outline the dimensions of the exception, the Court must turn to the cases at bar and determine the validity of defendants’ argument that the local airport officials they allegedly influenced were engaged in “governmental activity.” Defendants’ argument is based on a number of factors. First, they point to state statutory enabling provisions that authorize the creation of local airport authorities. Next, they refer to deposition testimony indicating that the operation of each test airport was guided by the primary goal of public service, and that in deciding to restrict entry onto the airport car rental market the local officials were making policy decisions based upon consideration of the public need, the available space, and the airport’s revenue needs. Finally, they note that airport operation and management have been characterized as a government function by various statutes and court decisions. See Defendants’ Joint Motion for Summary Judgment (Noerr-Pennington and Causation), at 6-7. Plaintiffs, on the other hand, argue that the decisions of the local airport officials regarding the awarding of car rental concessions, like the decision as to which swimming pool specifications to adopt in Whit-ten, which soft drink concession to award in Sacramento Coca-Cola, and which aircraft to purchase in General Aircraft Corp., were decisions characterized by their proprietary rather than their governmental nature. Plaintiffs contend that the airport officials had no' legislative mandate to make decisions having an anticompetitive effect and that the car rental concession decisions were made, not to institute any governmental policy, but merely to maximize the airport’s revenues. Business judgment rather than the interests of the public was alleged to have been the touchstone of the decision-making process. The Court has given careful consideration to the arguments raised and the authorities cited by all parties. Although there is some appeal to defendants’ contention that the local airport authorities were acting merely as governmental officials engaged in a policymaking function, the Court must deny defendants’ summary judgment motion as to all three airports. Because of the nature of the governmental decisionmaking bodies, the extent of their legislative mandate, and the factors entering into their decisionmaking process, the Court is unable to conclude that the airport authorities were functioning in a “governmental” capacity. 1. Defendants’ Cases Before discussing the particular facts at each of the test airports, the Court must address defendants’ contention that a finding of “governmental activity” is compelled by prior case law. Defendants rely on three cases in making this argument. None are controlling. In Mark Aero, Inc. v. Trans World Airlines, Inc., 580 F.2d 288 (8 Cir. 1978), the only case cited by defendants that involved application of Noerr-Pennington to an attempt to influence airport officials, a private air taxi operator sought to have Kansas City Municipal Airport reopened so that it could offer air passenger service between Kansas City and St. Louis. Allegedly because of the influence of defendant air carriers, the local airport authority denied this request. Shortly thereafter, plaintiff sued the air carriers under the Sherman Act. Although the district court denied defendants’ motion to dismiss, the court of appeals reversed, holding that the air carriers were entitled to Noerr-Pennington immunity. If the decision not to reopen an airport to commercial traffic could be equated with a decision to set restrictive conditions on car rental concessions, the Court might be inclined to find Mark Aero controlling. However, the decisions are quite different. As the discussion to follow will indicate, the airport officials in Austin, Denver and Miami apparently made their decisions just as if their airports had been privately owned enterprises; the most significant government policy being implemented involved maximization of revenues. In Mark Aero, however, the airport officials considered a wide range of factors, including “the FAA Regional Director’s desire to confine all scheduled air carrier operations to Kansas City International.” 580 F.2d at 291. They were engaged in a policy-making function, or as the Eighth Circuit put it, they were addressing “a governmental policy question,” involving as it did, consideration of “risks to the new airport, risks to airport financing, and a shift in airport activity.” Id. at 292. Just because Mark Aero and the cases at bar involved the decisionmaking of airport officials does not make them indistinguishable. To the contrary, the policy considerations influencing the decision in Mark Aero makes that case quite distinguishable from the actions before this Court. The other cases relied upon by defendants are even less compelling. The first involved a local airport authority’s decision to grant an exclusive taxicab franchise to a private company. See Padgett v. Louisville and Jefferson County Air Board, 492 F.2d 1258 (6 Cir. 1974). The second involved a local airport authority’s decision to grant an exclusive right to conduct fixed base operations to a private company. See E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1 Cir. 1966), cert. denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966). However, neither case involved application of the Noerr-Pennington doctrine; they were decided on Parker v. Brown grounds. Because these cases were decided before City of Lafayette, and because they contained no discussion of the policy aspects of the officials’ decisions or of the specific mandate of the state legislature, this Court does not find them to be controlling. As a result, the Court’s discussion must turn to the nature of the state mandate and decisionmaking process at each of the airports at issue in the litigation at bar. 2. Austin The Robert Mueller Municipal Airport in Austin, Texas, is owned and operated by the City of Austin pursuant to the broad authority vested in it by the Municipal Airports Act, Tex.Civ.Stat.Ann. arts. 46d-l et seq. (Vernon 1969). That statut