*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 Rock

(Dollar), appeals the district court's dismissal of each of Dollar's

1

federal causes of action against Little Rock Municipal Airport Commission

(Commission). 

Dollar contends the district court erred when it found Dollar failed

to state a claim under the Commerce Clause of the United States

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 district court had jurisdiction under 28 U.S.C. § 1331, and we

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 (Agreement)

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 airport

terminal and thirty automobile parking spaces in an area adjacent to the

terminal. Article I, Part C, Paragraph 3 of the Agreement also

specifically provided:

That the Concession granted by this Agreement is not exclusive

and Lessor shall have the right to deal with and perfect

arrangements with any other individual company or corporation

for engaging in like activity at the Airport; provided,

however, no other concession for auto rental operation shall be

granted on more favorable 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 per

deplaning airline passenger for the first 30,000 passengers per month and

$.071 per deplaning airline passenger for all passengers in excess of

30,000.

During November 1992, Dollar complained to the Commission and airport

management about the Commission's method of calculating concession fees.

The larger companies paid a much smaller
3

percentage of sales in concession fees than the smaller companies because

the concession fee was based on the number of deplaning passengers without

regard to the sales or other indicia of market strength of each rental car

company. Dollar asserted this discrepancy was unfair, unreasonable,

arbitrary, and unjustly discriminatory against Dollar, one of the smaller

companies.

During the next several months, the Commission, Dollar, and other

rental car companies discussed the concession fee structure. The

Commission acknowledged that other airports use a method based on a

percentage of base revenue rather than the number of deplaning passengers.

Dollar contends airport management informally agreed to change the method

of calculating the concession fee; however, changes were never made and the

dispute continued.

The Commission eventually filed an unlawful 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 United

States District Court. The state court action was removed to federal court

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 Sherman

Act; the Airport and Airway Improvement Act of 1982; and 42 U.S.C. § 1983.

Magistrate Judge Jones, therefore, recommended dismissal of Dollar's

federal claims pursuant to Fed. R. Civ. P. 12(b)(6). Magistrate Judge

Jones also recommended the district court decline 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 district court reviewed the record de novo and adopted the

magistrate'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 pursuant 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 court 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

Dollar asserts the Commission's method of charging concession fees

imposes an impermissible burden on interstate commerce; unreasonably

restrains trade and competition; restrains new, smaller entrants from

locating a rental car business at the airport; is unfair, unreasonable, and

arbitrary; and unjustly discriminates against Dollar. Dollar contends,

therefore, the Commission's method of charging concession fees violates the

Commerce Clause, the Sherman Act, the Airport and Airway Improvement Act

of 1982, and 42 U.S.C. § 1983.

COMMERCE CLAUSE

Dollar contends the rental fees for the counter space and parking

spaces should be considered separately from the concession fees that are

based on the number of deplaning passengers. Although Dollar concedes the

Commission is a market participant when it provides concession areas such

as counter space and parking
5

spaces, Dollar maintains the Commission is a market regulator when it

assesses concession fees based on the number of deplaning airline

passengers. As a market regulator, the Commission would be subject to

restraints under the Commerce Clause. 

The Commerce Clause, which grants Congress the power to regulate

commerce among the states, also limits the power of the states to erect

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 be

market participants. Id. at 510 n.18 (citing White v. Massachusetts

Council of Constr. Employers, 460 U.S. 204 (1983)).

"[I]f a state is acting as a market participant, rather than a market

regulator," 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.Supp. 303 (W.D. La. 1987), to support its contention that the

Commission is acting as a market regulator when it assesses concession

fees. In Airline Car Rental, the airport authority imposed a fee on rental

car businesses that transported customers from the airport to the

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 only

created a suitable marketplace for rental car services rather than entering

the market itself. Id. at 306. Dollar's situation 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 spaces

from the Commission. 
6

Dollar 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 state decided to assign selling spaces based on residence and gave

preference to Georgia residents. The court concluded the state was a

market regulator because it did not produce goods to be sold at the

farmers' market and did not buy or sell goods there. Id. at 1083. We,

however, find Judge Randall's dissent in Smith more persuasive. Judge

Randall noted the state had "entered into the economic market for the

provision of physical marketplaces" and, as such, was acting in its

proprietary role as "a participant in the market for marketplace space.

It . . . [was] selling a service rather than a good." Id. at 1088. In the

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 proprietary

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 analogous 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.Supp. 576 (E.D.N.Y. 1983). In Transport Limousine, the Port

Authority charged limousine services eight percent of gross receipts in

exchange for a permit to use counter space and telephone locations in the

airport terminal. The 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 before us, the Commission is

participating in the rental car market in a similar manner. Although

Dollar attempts to distinguish the Commission's role from that of the Port

Authority in Transport Limousine by arguing the Commission's concession and

rental fees should be considered separately, we are not persuaded by

Dollar's argument. The Commission chose to divide the fee required of car
7

rental businesses operating out of the terminal into three components: Two

components based on the size of the physical facilities used by the company

and one component based on the number of deplaning passengers. We are not

aware of any rationale underlying the Commerce Clause that prevents the

Commission from structuring its fees in this manner nor are we persuaded

that such a fee structure subverts the Commission's role as a market

participant. 

Accordingly, we hold the Commission is a market participant and is

not, therefore, subject to the restraints of the Commerce Clause. 

SHERMAN ACT

The Commission asserts Dollar's cause of action brought under the

Sherman Act is barred by the doctrine of state action immunity. In Parker

v. Brown, the Supreme Court concluded the Sherman Act is directed against

"individual not state action" and, therefore, does not nullify state

powers. 317 U.S. 341, 352 (1943). Dollar, however, contends the

Commission is a group of private individuals and, therefore, the Commission

is only entitled to state action immunity if its conduct meets the

standards set forth in the two-pronged test established in California

Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105

(1980): (1) The challenged anticompetitive conduct must be supported by

a clearly articulated and affirmatively expressed state policy; and (2) the

state must actively supervise the policy. 

Under Arkansas law, cities that own and operate an airport have the

authority to create a commission "for the purpose of 

operating and managing the airport and its relative properties and

facilities." Ark. Code Ann. § 14-359-103. The Commission, in effect, acts

as "an agency of the city with the power and authority
8

to operate, manage, maintain and improve" the airport unless the statute

explicitly provides otherwise. L.C. Eddy, Inc. v. City of Arkadelphia, 303

F.2d 473, 475 (8th Cir. 1962). Thus, as the district court concluded, the

Commission is entitled to be treated as a municipality. 

State action immunity shields municipalities from antitrust liability

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

municipality is entitled to state action immunity is determined by

scrutinizing the municipality's conduct solely under the first prong of the

Midcal test. Town of Hallie v. City of Eau Claire, 471 U.S. 34, 47 (1985).

See also Paragould Cablevision, Inc. v. City of Paragould, Ark., 930 F.2d

1310, 1312 (8th Cir.), cert. denied, 502 U.S. 963 (1991). We find,

therefore, the district court employed the correct analysis when it

scrutinized the Commission's conduct to determine 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 shall

have full and complete authority to manage, operate, improve,

extend, and maintain the municipal airport and its related

properties and facilities.

 (2) The commissioners shall have full and complete charge of

the airport and its related properties and facilities, including the

right to employ or remove any and all assistants and employees of

whatsoever nature, kind, or character and to fix, regulate, and pay

their salaries.

(b) It is the intention of this chapter to vest in the

commissioners unlimited authority to operate, manage, maintain,

improve, and extend the municipally owned airport and its

related properties and facilities, and to have full and

complete charge of it.
9

The statute clearly and affirmatively grants the Commission "unlimited

authority" to operate the airport, its facilities and related properties,

which would include renting counter space and parking spaces and imposing

concession fees. 

Dollar argues, however, the Commission is not entitled to state

action immunity because its anticompetitive conduct is not a necessary and

reasonable consequence of engaging in the authorized activity. See

Paragould Cablevision, Inc., 930 F.2d at 1312. Dollar asserts the Arkansas

legislature could not foresee the Commission would use its authority to

establish a discriminatory concession fee structure that suppresses

competition.

 "[T]he Supreme Court has made clear that a specified, detailed

legislative authorization 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 legislature contemplated the

kind of action complained of.'" Paragould Cablevision, Inc., 930 F.2d at

1312 (citations omitted). "[T]he state policy to displace competition can

be inferred 'if the challenged restraint is a necessary and reasonable

consequence of engaging in the authorized activity.'" Scott v. City of

Sioux City, 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 Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. at 372

(anticompetitive conduct is sufficiently articulated as state policy if

"suppression of competition is the 'foreseeable result'" of the conduct

authorized by statute).

A reasonable and necessary part of the Commission's airport

management is to provide a marketplace for rental car agencies to provide

transportation for passengers deplaning at the airport. It is a reasonable

and foreseeable consequence that the Commission
10

will impose rental and/or concession fees for the use of airport property.

The Commission was granted unlimited authority by the state to determine

those rental and/or concession fees. Although the Commission may not have

used the most common method of computing concession fees when it based its

charges in part on the number of deplaning passengers, we see no reason to

consider the Commission's method of calculating fees unreasonable or

unacceptable. Dollar cites no authority that requires the Commission to

use a different method to calculate concession fees for rental car agencies

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-expressed

state policy exists that grants the Commission unlimited authority to

formulate and to impose concession fees on rental car companies that

operate from the airport terminal; therefore, the first prong of the Midcal

test is satisfied and the Commission is entitled to state action immunity

from antitrust liability. 

AIRPORT AND AIRWAY IMPROVEMENT ACT OF 1982

The Commission contends a private right of action is not available

under 49 U.S.C. § 47107 of the Airport and Airway Improvement Act of 1982

(AAIA), previously codified at 49 U.S.C. app. § 2210; therefore, the

district court did not err when it dismissed Dollar's cause of action under

the AAIA. Dollar, however, argues assurances that prohibit discrimination

are required by the AAIA, and those assurances are intended to protect

concessionaires such as Dollar as well as to benefit aeronautical

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
11

determining whether a private right of action is implicit in a statute that

does not expressly provide one:

First, is the plaintiff "one of the class for whose

especial benefit the statute was enacted," -- that is,

does the statute create a federal right in favor of the

plaintiff? Second, is there any indication of

legislative intent, explicit or implicit, either to

create such a remedy or to deny one? Third, is it

consistent with the underlying purposes of the

legislative scheme to imply such a remedy for the

plaintiff? And finally, is the cause of action one

traditionally relegated to state law, in an area

basically the concern of the States, so that it would be

inappropriate 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 critical inquiry . . . is whether Congress intended to create a

private cause of action." Labickas v. Arkansas State University, 78 F.3d

333, 334 (8th Cir.), cert. denied, 117 S.Ct. 395 (1996) (citing

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 24 (1979)).

A private right of action cannot be implied on the basis of the third and

fourth factors alone. Interface Group, Inc. v. Massachusetts Port

Authority, 816 F.2d 9 (1st Cir. 1987) (citing Transamerica Mortgage

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, the

district court agreed with and adopted the reasoning in Northwest Airlines,

Inc. v. County of Kent, 955 F.2d 1054 (6th Cir. 1992), aff'd on other

grounds, 510 U.S. 355 (1994); Interface Group, Inc. v. Massachusetts Port

Authority, 816 F.2d 9 (1st Cir. 1987); and Arrow Airways, Inc. v. Dade

County, 749 F.2d 1489 (11th Cir. 1985). In each of these cases, the courts

found none of the AAIA'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; the

3

AAIA lacked language that "could run in favor of private plaintiffs"; and

the AAIA's enforcement 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 private right of action exists unde the Airport and Airway

Improvement Act of 1982), cert. denied, 485 U.S. 1006 (1988). We agree

with out sister circuits and find it unnecessary to repeat the analysis set

forth in these cases and elaborated on by the district court.

Dollar also 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 reasoning persuasive: The fact that § 47107 requires the

various written assurances of nondiscrimination to be given to the

Secretary of Transportation "indicates that Congress intended to establish

an administrative enforcement scheme" rather than a private right of

action. Northwest Airlines, Inc., 955 F.2d at 1058.

In summary, we find the district court did not err when it found

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

when it found the statute contained no explicit or implicit legislative

intent to create a private remedy under the AAIA. Accordingly, we hold the

AAIA does not create a private right of action; therefore, the district

court appropriately dismissed Dollar's cause of action brought under the

AAIA.

42 U.S.C. § 1983

Dollar contends the district court erred 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 for

violations of federal statutes. Maine v. Thiboutot, 448 U.S. 1, 7-8

(1980). In Howe v. Ellenbecker, 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 comprehensive

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 enforceable 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 addition, the statute itself must provide "a comprehensive remedial

scheme which leaves no room for additional private remedies." Howe, 8 F.3d

at 1263 (citation omitted). Plaintiff's interest 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 remedy because the AAIA was intended

to benefit rental car companies, the statute creates a
14

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 cause of action under § 1983 to enforce § 47107 of the AAIA. Dollar,

however, misreads the district court's analysis. 

When the district court considered whether a private right of action

exists under the AAIA, it found the AAIA was not intended to benefit

concessionaires such as Dollar and other rental car businesses and (2) the

legislative history and the statute itself contained no indication of a

legislative intent, either explicit or implicit, to create a private remedy

under the AAIA. Thus, the threshold factors under Cort and Howe for

determining whether an implied private right of action exists under the

AAIA and for determining whether § 1983 provides a remedy for alleged

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 fail

under the threshold inquiries of both Howe and Cort. We hold, therefore,

the district court did not err when it dismissed Dollar's cause of action

to enforce the AAIA under

§ 1983. 

Dollar further contends it is entitled to enforce its rights under

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.