Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/billboar.asc

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/* The full text of the U.S. Supreme Court opinion in the matter
of City of Cloumbia vs. Omni Outdoor advertising. This is an
interesting case on the immunity of a governmental entity for
anti-competitive acts. */
Subject:  COLUMBIA v. OMNI OUTDOOR ADVERTISING, INC., Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the
time the opinion is issued.  The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader.  See United States
v. Detroit Lumber Co., 200 U. S. 321, 337.  SUPREME COURT OF THE
UNITED STATES

Syllabus

CITY OF COLUMBIA et al. v. OMNI OUTDOOR ADVERTISING, INC.


certiorari to the united states court of appeals for the fourth
circuit

No. 89-1671.  Argued November 28, 1990 -- Decided April 1, 1991

After respondent Omni Outdoor Advertising, Inc., entered the
billboard market in petitioner Columbia, South Carolina,
petitioner Columbia Outdoor Advertising, Inc. (COA), which
controlled more than 95% of the market and enjoyed close
relations with city officials, lobbied these of ficials to enact
zoning ordinances restricting billboard construction.  After such
ordinances were passed, Omni filed suit against petitioners under
15 1 and 2 of the Sherman Act and the State's Unfair Trade
Practices Act, alleging, inter alia, that the ordinances were the
result of an anticompetitive conspiracy that stripped petitioners
of any immunity to which they might otherwise be entitled.  After
Omni obtained a jury verdict on all counts, the District Court
granted petitioners' motions for judgment notwithstanding the
verdict on the ground that their activities were outside the
scope of the federal antitrust laws.  The Court of Appeals
reversed and reinstated the verdict.

Held:

 1. The city's restriction of billboard construction is
immune from federal antitrust liability under Parker v. Brown,
317 U. S. 341, 352 -- which held that principles of federalism
and state sovereignty render the Sherman Act inapplicable to
anticompetitive restraints imposed by the States "as an act of
government" -- and subsequent decisions according Parker immunity
to municipal restriction of competition in implementation of
state policy, see, e. g., Hallie v. Eau Claire, 471 U. S. 34, 38.
Pp.  4-13.

 (a) The Court of Appeals correctly concluded that the
city was prima facie entitled to Parker immunity for its

billboard restrictions.  Although Parker immunity does not apply
directly to municipalities or other political subdivisions of the
States, it does apply where a municipality's restriction of
competition is an authorized implementation of state policy.
South Carolina's zoning statutes unquestionably authorized the
city to regulate the size, location, and spacing of billboards.
The additional Parker requirement that the city possess clear
delegated authority to suppress competition, see, e. g., Hallie,
supra, at 40-42, is also met here, since suppression of
competition is at the very least a foreseeable result of zoning
regulations.  Pp. 4-7.

 (b) The Court of Appeals erred, however, in applying a
"conspiracy" exception to Parker, which is not supported by the
language of that case.  Such an exception would swallow up the
Parker rule if "conspiracy" means nothing more than agreement to
impose the regulation in question, since it is both inevitable
and desirable that public officials agree to do what one or
another group of private citizens urges upon them.  It would be
similarly impractical to limit "conspiracy" to instances of
governmental "corruption," or governmental acts "not in the
public interest"; virtually all anticompetitive regulation is
open to such charges and the risk of unfavorable ex post facto
judicial assessment would impair the States' ability to regulate
their domestic commerce.  Nor is it appropriate to limit
"conspiracy" to instances in which bribery or some other
violation of state or federal law has been established, since the
exception would then be unrelated to the purposes of the Sherman
Act, which condemns trade restraints, not political activity.
With the possible exception of the situation in which the State
is acting as a market participant, any action that qualifies as
state action is ipso facto exempt from the operation of the
antitrust laws.  Pp. 8-13.

 2. COA is immune from liability for its activities
relating to enactment of the ordinances under Eastern Railroad
Presidents Conference v.  Noerr Motor Freight, Inc., 365 U. S.
127, 141, which states a corollary to Parker: the federal
antitrust laws do not regulate the conduct of private individuals
in seeking anticompetitive action from the government.  The Court
of Appeals erred in applying the "sham" exception to the Noerr
doctrine.  This exception encompasses situations in which persons
use the governmental process itself -- as opposed to the outcome
of that process -- as an anticompetitive weapon.  That is not the
situation here.  California Motor Transport Co. v. Trucking
Unlimited, 404 U. S. 508, 512, distinguished.  Omni's suggestion
that this Court adopt a "conspiracy" exception to Noerr immunity
is rejected for largely the same reasons that prompt the Court to
reject such an exception to Parker.  Pp. 13-17.

 3. The Court of Appeals on remand must determine (if the
theory has been properly preserved) whether the evidence was
sufficient to sustain a verdict for Omni based solely on its
assertions that COA engaged in private anticompetitive actions,
and whether COA can be held liable to Omni on its state-law
claim.  P. 18.

891 F. 2d 1127, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and Blackmun, O'Connor, Kennedy, and Souter,
JJ., joined.  Stevens, J., filed a dissenting opinion, in which
White and Marshall, JJ., joined.

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Subject: 89-1671 -- OPINION, COLUMBIA v. OMNI OUTDOOR
ADVERTISING, INC.

SUPREME COURT OF THE UNITED STATES

No. 89-1671


CITY OF COLUMBIA and COLUMBIA OUTDOOR ADVERTISING, INC.,
PETITIONERS v.  OMNI OUTDOOR ADVERTISING, INC.

on writ of certiorari to the united states court of appeals for
the fourth circuit

[April 1, 1991]


Justice Scalia delivered the opinion of the Court.

This case requires us to clarify the application of the Sherman
Act to municipal governments and to the citizens who seek action
from them.

I

Petitioner Columbia Outdoor Advertising, Inc. (COA), a South
Carolina corporation, entered the billboard business in the city
of Columbia, South Carolina (also a petitioner here), in the
1940's.  By 1981 it controlled more than 95% of what has been
conceded to be the relevant market.  COA was a local business
owned by a family with deep roots in the community, and enjoyed
close relations with the city's political leaders.  The mayor and
other members of the city council were personal friends of COA's
majority owner, and the company and its officers occasionally
contributed funds and free billboard space to their campaigns.
According to respondent, these beneficences were part of a
"longstanding" "secret anticompetitive agreement" whereby "the
City and COA would each use their [sic] respective power and
resources to protect . . . COA's monopoly position," in return
for which "City Council members received advantages made possible
by COA's monopoly." Brief for Respondent 12, 16.

In 1981, respondent Omni Outdoor Advertising, Inc., a Georgia
corporation, began erecting billboards in and around the city.
COA responded to this competition in several ways.  First, it
redoubled its own billboard construction efforts and modernized
its existing stock.  Second-- according to Omni -- it took a
number of anticompetitive private actions, such as