### *The HONORABLE JAMES M. BURNS, United States District Judge

for the District of Oregon, sitting by designation. The Honorable Susan W. Wright, District Judge for the Eastern District of Arkansas. No. 95-3409
Four T's, Inc., doing * business as Dollar Rent * A Car of Little Rock, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Little Rock Municipal * Airport Commission, * * Appellee. *
Submitted: April 10, 1996 Filed: March 13, 1997

Before McMILLIAN and FAGG, Circuit Judges, BURNS,* District Judge.
BURNS, District Judge.

Four T 's, Inc., doing business as Dollar Rent A Car of Little Roc k (Dollar) , appeals the district court's dismissal of each of Dollar' s 1 federal causes of act ion against Little Rock Municipal Airport Commission (Commission).

Dollar contends the district court e rred when it found Dollar failed to stat e a claim under the Commerce Clause of the United State s Constitution, Art. 1, § 8, cl. 3; the Sherman Act, 15 U.S.C. §§ 1, 2, and 26; 49 U.S.C. § 47107 of the Airport and Airway

### 2

Improvement Act of 1982, previously codified at 49 U.S.C. App. § 2210; and 42 U.S.C. § 1983.

The dis trict court had jurisdiction under 28 U.S.C. § 1331, and w e have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We AFFIRM the judgment of the district court.

PROCEDURAL AND FACTUAL BACKGROUND
Dollar executed an Automobile Rental Concession Agreement (Agre ement) with the Commission on August 15, 1990, in which the parties agreed Dollar could operate a car rental business at the Little Rock Regional Airport. The Commission agreed to lease Dollar counter space area in the airpor t terminal and thirty automobile parking spaces in an area adjacent to the termina l. Article I, Part C, Paragraph 3 of the Agreement als o specifically provided: That the Concession gran ted by this Agreement is not exclusive and Less or shall have the right to deal with and perfec t arrangements with any other individual company or corporation for e ngaging in like activity at the Airport; provided , however, no other concession for auto rental operat ion shall be granted on more favorabl e terms and conditions than granted to the Concessionaire herein.

Dollar agreed to pay three types of fees or rents: (1) $154.15 per month as rental for the counter space; (2) $33.37 per month as rental for the parking spaces; and (3) A "concessionaire fee" computed at the rate of $.076 pe r deplaning airline pas senger for the first 30,000 passengers per month and $.071 p er deplaning airline passenger for all passengers in excess o f 30,000.
During November 1992, Dollar complained to the Commission and a irport management about the Commission's method of calculating concession fees. The larger companies paid a much smaller

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percentage of sales i n concession fees than the smaller companies because the concession fee was based on the number of de planing passengers without regard to the sales or other indicia of market s trength of each rental car
co mpany. Dollar asserted this discrepancy was unfair, unreasonable , arbitrary, and unjust ly discriminatory against Dollar, one of the smaller companies.
During the next several months, the Commission, Dollar, and othe r rental car companies discussed the concession fee structure. Th e Commission acknowledged that other airports use a method based on a percentage of base revenue rather than the numbe r of deplaning passengers. Dollar contends airpo rt management informally agreed to change the method of calculating the concession fee; however, changes were never made and th e dispute continued.
The Commission eventually filed an u nlawful detainer action in state court against Dollar for back rent, damages, and possession of property. Dollar, in turn, filed an action against the Commission in the Unite d States District Court. The state court action was removed to federal cour t at Dollar's request, and the two actions were consolidated.

The Honorable Henry L. Jones, Jr., United States Magistrate Judge , found Dollar failed to state a claim under the Commerce Clause; the Sherma n Act; the Airport and Airway Improvement Act of 1 982; and 42 U.S.C. § 1983. Ma gistrate Judge Jones, therefore, recommended dismissal of Dollar' s feder al claims pursuant to Fed. R. Civ. P. 12(b)(6). Magistrate Judg e Jones also recommended the district court declin e to exercise supplemental jurisdiction over the remaining state contract claims as permitted by 28 U.S.C. § 1367(c)(3) and remand those claims to state court.

The di strict court reviewed the record de novo and adopted th e mag istrate's proposed findings and recommendations in their entirety

. Accordingly, the district court found Dollar failed to

### In addition, the district court rescinded the order that 2 

### consolidated the Commission's unlawful detainer action against Dollar and the causes of action brought by Dollar. The district court also remanded the unlawful detainer action to state court. Neither party appealed those rulings.
4 state a claim pursuan t to the requirements of Fed. R. Civ. P. 12(b)(6) in the four federal causes of action and dismissed Dollar's complaint. The district c ourt also remanded the contract claims to state court. Dollar 2 appealed.

STANDARD OF REVIEW

We review de novo a district court's dismissal of a cause of action under Fed. R. Civ. P. 12(b)(6). First Commercial Trust Co., N.A. v. Colt' s Mfg. Co., Inc. , 77 F.3d 1081, 1083 (8th Cir. 1996).

DISCUSSION

Do llar asserts the Commission's method of charging concession fee s im poses an impermissible burden on interstate commerce; unreasonabl y restrai ns trade and competition; restrains new, smaller entrants fro m locating a rental car business at the airport; is unfair, unreasonable, an d arbitrary; and unjustly discriminates against Dollar. Dollar contends , therefore, the Commission's method of charging concession fees violates th e Commerce Clause, the Sherman Act, the Airport and Airway Improvement Act of 1982, and 42 U.S.C. § 1983.

COMMERCE CLAUSE

Dolla r contends the rental fees for the counter space and parkin g spaces should be considered separately from the concession fees that are based on the number of deplaning passengers. Al though Dollar concedes the Commission is a marke t participant when it provides concession areas such as counter space and parking

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spaces, Dollar maintains the Commission is a market regulator when i t
assess es concession fees based on the number of deplaning airlin e passe ngers. As a market regulator, the Commission would be subject t o restraints under the Commerce Clause.

The Commerce Clause, which grants Congress the power to regulat e
commerce among the states, also limits the power of the states to erec t barriers against interstate trade. Lewis v. BT Inv. Managers, Inc. , 447 U.S. 27, 35 (1980). This limitation, commonly referred to as the dormant Commerce Clause, has an exception known as the market-participant doctrine

. SSC Corp . v. Town of Smithtown , 66 F.3d 502, 510 (2d Cir. 1995), cert
. denied , 116 S.Ct. 911 (1996). Both state and local governments can b e mark et participants. Id . at 510 n.18 (citing White v. Massachusett s Council of Constr. Employers , 460 U.S. 204 (1983)). "[I ]f a state is acting as a market participant, rather than a marke t regula tor," the dormant Commerce Clause does not limit its activities

. South-Central Timber Development v. Wunnicke , 467 U.S. 82, 93 (1984).

Dollar relies on Airline Car Rental v. Shreveport Airport Authority , 667 F.Sup p. 303 (W.D. La. 1987), to support its contention that th e Commission is acting as a market regulator when it assesses concessio n fees. In Airline Car Rental , the airport authority imposed a fee on renta l
car bu sinesses that transported customers from the airport to th e businesses' off-site facilities. The fee was calculated as seven percent of gross business receipts derived from the rental of cars to passengers picked up at the airport by the off-site rental car businesses. The court held the airport authority was not a market participant because it had onl y created a suitable marketplace for rental car services rather than enterin g the market itself. Id. at 306. Dollar's situat ion differs, however, from that of an off-site rental car business because Dollar actually operates from the airport terminal itself and rents counter space and parking space s from the Commission.

### 6 Dolla r also relied upon the Fifth Circuit's reasoning in Smith v

. Department of Agr. of State of Ga. , 630 F.2d 1081 (5th Cir. 1980), cert. denied , 452 U.S. 910 (1981). In Smith , the state of Georgia operated and partially financed a farmers' market. When space at the market grew tight , the s tate decided to assign selling spaces based on residence and gav e preference to Georgia residents. The court concluded the state was a market re gulator because it did not produce goods to be sold at th e far mers' market and did not buy or sell goods there. Id. at 1083. We , however, find Judge Randall's dissent in Smith more persuasive. Judg e Randall no ted the state had "entered into the economic market for th e provision of physical marketplaces" and, as such, was acting in it s pro prietary role as "a participant in the market for marketplace space

. It . . . [was] selling a service rather than a good." Id . at 1088. In th e case before us, we find the Commission's conduct is aptly characterized in a similar fashion.

The district court found the Commission acted in a proprietar y capacity and, therefore, was not subject to the restraints of the Commerce Clause as a market participant. The district court's decision was based primarily on the anal ogous facts and persuasive reasoning of the court in Transport Limousine of Long Island, Inc. v. Port Auth. of N.Y. and N.J. , 571 F.Su pp. 576 (E.D.N.Y. 1983). In Transport Limousine , the Por t Author ity charged limousine services eight percent of gross receipts i n exchange for a permit to use counter space and telephone locations in the airport terminal. Th e court held the Port Authority was a participant in the market for ground transport services because it provided facilities to limousine services. Id. at 581. In the case be fore us, the Commission is participat ing in the rental car market in a similar manner. Althoug h Dollar attempts to distinguish the Commission's role from that of the Port Authority in Transport Limousine by arguing the Commission's concession an d rent al fees should be considered separately, we are not persuaded b y Dollar's argument. The Commission chose to divi de the fee required of car

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rental businesses operating out of the terminal into three components: Tw o components based on the size of the physical facilities used by the compan y and one component based on the number of deplani ng passengers. We are not
awa re of any rationale underlying the Commerce Clause that prevents th e Commission from structuring its fees in this manner nor are we persuaded that such a fee structure subverts the Commission's role as a marke t participant.

Accordin gly, we hold the Commission is a market participant and i s not, therefore, subject to the restraints of the Commerce Clause.

SHERMAN ACT

The Commission asserts Dollar's cause of action brought under th e Sherman Act is barred by the doctrine of state a ction immunity. In Parker v. Brown , the Supreme Court concluded the Sherman Act is directed against "indiv idual not state action" and, therefore, does not nullify stat e powers. 317 U.S. 341, 352 (1943). Dollar, however, contends th e Commission is a group of private individuals and, therefore, the Commissio n is only entitled to state action immunity if its conduct meets th e standa rds set forth in the two-pronged test established in Californi a Retai l Liquor Dealers Ass'n v. Midcal Aluminum, Inc. , 445 U.S. 97, 10 5 (1980): (1) The challenged anticompetitive conduct must be supported by
a clearly articulated and affirmatively expressed state policy; and (2) th e state must actively supervise the policy.

Under Ark ansas law, cities that own and operate an airport have the authority to create a commission "for the purpose of

operat ing and managing the airport and its relative properties an d facilities." Ark. Code Ann. § 14-359-103. The Commission, in effect, act s as "an agency of the city with the power and authority

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to operate, manage, maintain and improve" the airport unless the statute explicitly provides otherwise. L.C. Eddy, Inc. v. City of Arkadelphia , 30 3 F.2d 473, 475 (8th Cir. 1962). Thus, as the dis trict court concluded, the Commission is entitled to be treated as a municipality.
State action immunity shields municipalities from antitrust lia bility under the Sherman Act when the municipality has the authority to regulate and to suppress competition. City of Columbia v. Omni Outdoor Advertising , Inc. , 499 U.S. 365, 370 (1991). See also Parker v. Brown , 317 U.S. at 352 (The Sherman Act was not intended to "restrain a state or its officers or agents from activities directed by its legislature."). Whether a munici pality is entitled to state action immunity is determined b y scrutinizing the municipality's conduct solely under the first prong of th e Midcal test. Town of Hallie v. City of Eau Claire , 471 U.S. 34, 47 (1985)

. See also Paragould Ca blevision, Inc. v. City of Paragould, Ark. , 930 F.2d 1310, 131 2 (8th Cir.), cert. denied , 502 U.S. 963 (1991). We find , theref ore, the district court employed the correct analysis when i t scrutinized the Commission's conduct to determin e whether it was supported by a clearly articulated and affirmatively expressed state policy.
Ark. Code Ann. § 14-359-109 provides: (a)(1) The commissioners appointed under this chapter shal l have full and complete authority to manage, operate, improve, exte nd, and maintain the municipal airport and its relate d properties and facilities. (2) The commissioners shall have full and complete charge o f the airport and its related properti es and facilities, including the right to employ or remove any and all assistants and employees o f whatsoeve r nature, kind, or character and to fix, regulate, and pay their salaries. (b) It i s the intention of this chapter to vest in th e commissioners unlimited authority to operate, manag e, maintain, improve , and extend the municipally owned airport and it s relat ed properties and facilities, and to have full an d complete charge of it.

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The statute clearly and affirmatively grants the Commission "unlimite d authority" to operate the airport, its facilities and related properties, which would include r enting counter space and parking spaces and imposing concession fees.

Dollar argues, however, the Commission is not entitled to stat e action immunity because its anticompetitive cond uct is not a necessary and
reason able consequence of engaging in the authorized activity. Se e Paragould Cablevision, Inc. , 930 F.2d at 1312. Dollar asserts the Arkansa s leg islature could not foresee the Commission would use its authority t o establish a discriminatory concession fee structure that suppresse s competition.

"[T]he S upreme Court has made clear that a specified, detaile d legislative authoriza tion of monopoly service need not exist to infer the necessary state intent." City of Lafayette v. Louisiana Power & Light Co. , 435 U.S. at 415. "It is sufficient that 'the le gislature contemplated the kind of action compla ined of.'" Paragould Cablevision, Inc. , 930 F.2d at 1312 (citations omitted). "[T]he state policy t o displace competition can be inferred 'if the challenged restraint is a necessary and reasonabl e consequence of engaging in the authorized activity.'" Scott v. City o f Sioux Cit y , 736 F.2d 1207, 1211 (8th Cir. 1984), cert. denied , 471 U.S

. 1003 (1985) (citing Gold Cross Ambulance & Transfer v. City of Kansas City , 705 F.2d 1005 (8th Cir. 1983), cert. denied , 471 U.S. 1003 (1985)). See also City of Columbi a v. Omni Outdoor Advertising, Inc. , 499 U.S. at 372 (anticompetitive conduct is sufficiently articulated as state policy i f "suppr ession of competition is the 'foreseeable result'" of the conduc t authorized by statute).

A reaso nable and necessary part of the Commission's airpor t management is to prov ide a marketplace for rental car agencies to provide transportation for passengers deplaning at the airport. It is a reasonabl e and foreseeable consequence that the Commission

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will impose rental and/or concession fees for th e use of airport property. The Commission was granted unlimited authority by the state to determine those rental and/or concession fees. Although t he Commission may not have used the most common method of computing concess ion fees when it based its charges in part on the number of deplaning passe ngers, we see no reason to
co nsider the Commission's method of calculating fees unreasonable o r unacceptable. Dollar cites no authority that requires the Commission to
use a different method to calculate concession fees for rental car agencie s that operate on site. We, therefore, find suppression of competition was foreseeable as a consequence of the Commission's exercise of its unlimited authority to operate the airport.
In summary, we hold a clearly-articulated and affirmatively-exp ressed state policy exists that grants the Commission unlimited authority t o form ulate and to impose concession fees on rental car companies tha t operate from the airport terminal; therefore, the first prong of the Midca l test is satisfied and the Commission is entitled to state action immunity from antitrust liability.

AIRPORT AND AIRWAY IMPROVEMENT ACT OF 1982

The Comm ission contends a private right of action is not availabl e under 49 U.S.C. § 471 07 of the Airport and Airway Improvement Act of 1982 (AAI A), previously codified at 49 U.S.C. app. § 2210; therefore, th e district court did not err when it dismissed Dollar's cause of action unde r the AAIA. Dollar, however, argues assurances th at prohibit discrimination
are r equired by the AAIA, and those assurances are intended to protec t
conces sionaires such as Dollar as well as to benefit aeronautica l businesses and the Federal Aviation Administration; therefore, a private right of action is implied in the statute.

In Cort v. Ash , the Supreme Court established the test for

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determining whether a private right of action is implicit in a statute tha t does not expressly provide one:

First, is the plaintiff "one of the class for whos e es pecial benefit the statute was enacted," -- that is , does the statute create a federal right in favor of th e plaint iff? Second, is there any indication o f leg islative intent, explicit or implicit, either t o create such a remedy or to deny one? Third, is i t consistent with the underlying purposes of th e legislative scheme to imply such a remedy for th e plaint iff? And finally, is the cause of action on e traditionally relegated to state law, in an are a basically th e concern of the States, so that it would be inappropriat e to infer a cause of action based solely on federal law?
422 U.S. 66, 78 (1975) (quoting Texas & Pacific Ry. Co. v. Rigsby , 241 U.S

. 33, 39 (1916)) (emphasis in the original) (internal citations omitted)

. "The c ritical inquiry . . . is whether Congress intended to create a private cause of acti on." Labickas v. Arkansas State University , 78 F.3d 333, 334 (8th Cir.), cert. denied , 117 S.Ct. 395 (1996) (citin g Transamerica Mortgage Advisors, Inc. v. Lewis , 444 U.S. 11, 24 (1979)). A private right of ac tion cannot be implied on the basis of the third and fourth factors alone. Interface Group, Inc. v. Massachusetts Por t Author ity , 816 F.2d 9 (1st Cir. 1987) (citing Transamerica Mortgag e Advisors, Inc. , 444 U.S. at 23).
The district court found no private right of action exists under the AAIA and dismissed the cause of action brought by Dollar under the AAIA. Although this is a case of first impression in the Eighth Circuit, th e district court agreed with and adopted the reasoning in Northwest Airlines , Inc. v. C ounty of Kent , 955 F.2d 1054 (6th Cir. 1992), aff'd on othe r grounds , 510 U.S. 355 (1994); Interface Group, Inc. v. Massachusetts Port Authori ty , 816 F.2d 9 (1st Cir. 1987); and Arrow Airways, Inc. v. Dad e County , 749 F.2d 1489 (11th Cir. 1985). In each of these cases, the court s found none of the AAI A's provisions, including the requirement of various assurances of nondiscrimination, suggest the AAIA was intended to

### For example, car rental firms are mentioned in § 47107(e) in 3 

### a provision that allows airport owners to require car rental firms to purchase or to lease goods and services from disadvantaged business enterprises. This provision, however, benefits disadvantaged business enterprises rather than car rental agencies.

The district court also noted the Federal Aviation 4 

### Administration (FAA), in response to a complaint filed by Dollar, informed Dollar by letter dated February 3, 1994, that the AAIA was intended to benefit aeronautical users rather than nonaeronautical users such as car rental agencies.
12 benefit nonaeronautical parties such as car rental concessionaires; th e 3 AAIA lacked language that "could run in favor of private plaintiffs"; and the AAIA's enforcemen t scheme did not suggest Congress intended to create

a private right of action. Interface , 816 F.2d at 15; Arrow Airways, Inc. , 749 F.2d at 1490-91; Northwest Airlines, Inc. , 955 F.2d at 1058-59. See also Western Air Lines v. Port Auth. of N.Y. & N .J. , 817 F.2d 222, 225 (2d Cir. 1987) (no privat e right of action exists unde the Airport and Airway Improveme nt Act of 1982), cert. denied , 485 U.S. 1006 (1988). We agre e with out sister circuits and find it unnecessary to repeat the analysis se t forth in these cases and elaborated on by the district court.

Dollar al so contends the administrative remedy found in the AAIA is not inconsistent with a private right of action. Section 47107(g) rests enforcement authority with the Secretary of Transportation. We find the Sixth Circuit's reaso ning persuasive: The fact that § 47107 requires the variou s written assurances of nondiscrimination to be given to th e Secretary of Transportation "indicates that Cong ress intended to establish

an adm inistrative enforcement scheme" rather than a private right o f action. Northwest Airlines, Inc. , 955 F.2d at 1058.

In summary, we find the district court did not err when it foun d Dollar was not one of the class "for whose especial benefit" the AAIA was enacted. We also find the district court did not err

4

### 13

whe n it found the statute contained no explicit or implicit legislativ e intent to create a private remedy under the AAIA. Accordingly, we hold th e AAIA does not create a private right of action; therefore, the distric t court appropriately dismissed Dollar's cause of action brought under the AAIA.

42 U.S.C. § 1983

Dollar contends the district court e rred when it found Dollar had no cause of action to enforce the AAIA under 42 U.S.C. § 1983. A plaintiff may bring a private cause of action under § 1983 fo r viol ations of federal statutes. Maine v. Thiboutot , 448 U.S. 1, 7- 8 (1980). In Howe v. E llenbecker , this Court synthesized the Supreme Court holdings in Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 509 (1990), and Suter v. Artist M. , 503 U.S. 347, 363 (1992), to create a comprehensiv e test for evaluating whether a federal statute is enforceable under § 1983. 8 F.3d 1258, 1262-63 (8th Cir. 1993), cert. denied , 114 S. Ct. 1373 (1994)

.

To be enf orceable under § 1983, the statute at issue must intend to benefit the "putative plaintiff" and such an intent must be expressed in specific and mandatory terms. Howe , 8 F.3d at 1262 (citation omitted)

. In add ition, the statute itself must provide "a comprehensive remedia l scheme which leaves no room for additional private remedies." Howe , 8 F.3 d at 1263 (citation omitted). Plaintiff's interes t cannot be so "'vague and amorphous"' that it is beyond the power of judicial enforcement." Howe , 8 F.3d at 1262 n.5. (citations omitted).

Dollar contends it has a § 1983 reme dy because the AAIA was intended to benefit rental car companies, the statute creates a

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binding obligation, and the interest asserted by Dollar is not too vague to enforce. Dollar further contends the district court erroneously used the Cort test as the basis for its determination that Dollar did not have

a c ause of action under § 1983 to enforce § 47107 of the AAIA. Dollar , however, misreads the district court's analysis.

When the district court considered w hether a private right of action exists under the AAIA, it found the AAIA was not intended to benefi t concessionaires such as Dollar and other rental car businesses and (2) the leg islative history and the statute itself contained no indication of a legislative intent, either explicit or implicit, to create a private remed y under the AAIA. Thus, the threshold factors under Cort and Howe fo r det ermining whether an implied private right of action exists under th e AAIA and f or determining whether § 1983 provides a remedy for allege d violations of the AAIA are identical. When the district court reached the § 1983 issue, it found it unnecessary to repeat its analysis. We find the district court's approach reasonable and agree that Dollar's arguments fai l under the threshold i nquiries of both Howe and Cort . We hold, therefore, the district court di d not err when it dismissed Dollar's cause of action to enforce the AAIA under § 1983.

Dollar f urther contends it is entitled to enforce its rights unde r the Commerce Clause through § 1983. See Dennis v. Higgins , 498 U.S. 439 (1991) (claims for violation of the Commerce Clause may be brought under § 1983). We earlier found the Commission was a market participant and, as
a result, not subject to the restraints of the Commerce Clause. Dollar, therefore, has no rights under the Commerce Clause to enforce.

### 15 CONCLUSION
Based on the foregoing, we AFFIRM the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.