We held that the park district was merely a subordinate unit of government not entitled to all the deference accorded the state itself and that the mere finding of involvement by some governmental unit did not end any antitrust inquiry. Our holding in the present case does not depart from our holding in Kurek. The decision in Hecht v. Pro-Football, Inc., 444 F.2d 931 (D.C. Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972), is distinguishable because it involved a Washington, D.C. armory board created by Congress. An exclusive lease of the Robert F. Kennedy Stadium had been granted to the Washington Redskins football team. The court held that the armory board, created to run a commercial operation, was subject to the antitrust laws saying that neither "the Board nor the Redskins in this case are performing a function that a purely governmental agency itself could have performed."
The Court of Appeals is not a governmental entity simply substituting for private enterprise, nor one seeking refuge merely in the fact that it is a governmental instrumentality.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).Id. at 71, 444 F.2d at 944.
Shell's position essentially is that only where a state's legislature affirmatively decides that competition "is not the summum bonum in a particular field and deliberately attempts to provide an alternate form of public regulation," George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 30 (1st Cir. 1970), is the state immune from antitrust liability. Shell relies upon the language and factual situation of Parker and a number of cases interpreting Parker, primarily 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 Parker, the California legislature authorized state officials to regulate the marketing of California agricultural products to restrict competition and prevent economic waste.
The First Amendment analysis led the court in the prior ruling to apply a purported exception to the Noerr-Pennington doctrine for so-called commercial activity, i. e., joint action to influence government officials engaged in commercial or proprietary functions. The authority for such an "exception" was said to derive primarily from three decisions: George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970); Hecht v. Pro-Football, Inc., 444 F.2d 931 (D.C. Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); and Sacramento Coca-Cola Bottling Co. v. Chauffeurs Loc. 150, 440 F.2d 1096 (9th Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971). In Whitten the parties were manufacturers of prefabricated "pipeless" pool gutters who sought to sell their products to public bodies acting under competitive bidding procedures mandated by state law.
" 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.
Thus, it is clear that the blanket antitrust exemption provisions contained in the Act creating PRMSA do not in and of themselves confer antitrust "immunity" upon PRMSA. In Hecht v. Pro-Football, Inc., 144 U.S.App. D.C. 56, 444 F.2d 931 (1971), the Court of Appeals for the District of Columbia Circuit faced a situation where the Armory Board for the Robert F. Kennedy Stadium, a Board which was created pursuant to an Act of Congress of 1957, 2 D.C. Code ยง 1720 et seq., was sued for violating the antitrust laws in that it had entered into a restrictive covenant with the Washington Redskins prohibiting the use of the stadium by any professional football team other than the Redskins for a thirty year period. The Board tried to invoke the Parker immunity for governmental action and relied heavily on a provision of the Act creating it which provided that the Board was "authorized without regard to any other provision of law . . . to rent or lease from time to time for any of the purposes of this sub-chapter, all or any part or parts of the stadium. . . ."
For example, governmental decisions concerning the leasing of a football stadium and the specifications for swimming pools to be purchased by a city have been held to be outside the scope of the doctrine. Hecht v. Pro-Football, Inc., 144 U.S.App.D.C. 56, 444 F.2d 931, 940-942 (1971); George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 31-34 (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). See Kurek v. Pleasure Driveway and Park District of Peoria, [1977-1] Trade Reg. Rep. (CCH) ยถ 61,448 at 71,693 n. 10; Sacramento Coca-Cola Bot. Co. v. Chauffeurs Loc. 150, supra, 440 F.2d at 1099.
In addition to these so-called sham exceptions, and more problematic, some courts have also declined to apply Noerr-Pennington protection in situations where the government acted as a buyer or seller in the marketplace and there was made a victim of anticompetitive conduct. See, e.g., Hecht v. Pro-Football, Inc., 444 F.2d 931, 940-42 (D.C. Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972). But see In re Airport Car Rental Antitrust Litigation, 693 F.2d 84, 87-88 (9th Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 3114, 77 L.Ed.2d 1368 (1983) (holding that there is no "commercial exception" to the Noerr-Pennington doctrine).
See, e. g., Champaign-Urbana News Agency, Inc. v. J. L. Cummins News Co., 632 F.2d 680 (7th Cir. 1980) (Robinson-Patman Act held inapplicable to purchases by military exchanges); Webster County Coal Corp. v. TVA, 476 F.Supp. 529 (W.D.Ky. 1980) (TVA, as instrumentality of federal government, is exempt from liability under the antitrust laws). Except for Hecht v. Pro-Football, Inc., 444 F.2d 931 (D.C. Cir. 1971), discussed infra, appellants cite no cases suggesting that federal agencies are subject to antitrust liability.Hecht v. Pro-Football, Inc., 444 F.2d 931 (D.C. Cir. 1971), on which appellants primarily rely, involved an instrumentality of the District of Columbia, the District of Columbia Armory Board, an entity more closely resembling a municipal agency than a United States instrumentality. Pursuant to its authority to legislate for the District, Congress provided for the construction of the Robert F. Kennedy Stadium and created the Armory Board to operate the facility.
The state action cases involve governmental activity and hence are relevant. The decision of the Court of Appeals for the District of Columbia in Hecht v. ProFootball Inc., 144 U.S.App.D.C. 56, 444 F.2d 931 (1971), is relied on by appellants. This was, however, a case which did not involve a federal agency.