Appendix — Southwestern Bell Telephone Co. v. Telecor Communications, Inc.

la

APPENDIX — DECISION OF THE SUPREME COURT

OF THE STATE OF OKLAHOMA

DATED AND FILED MARCH 11, 2003

2003 OK 27

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

No. 96,748

FINE AIRPORT PARKING, INC.,

Appellant,

v.

THE CITY OF TULSA;

THE TULSA AIRPORT AUTHORITY;

THE TULSA AIRPORTS IMPROVEMENT TRUST,

Appellees.

ON WRIT OF CERTIORARI TO THE

COURT OF CIVIL APPEALS, DIV. I

BOUDREAU, Justice:

41 Fine Airport Parking, Inc. (Fine) appealed the district

court’s dismissal of its state antitrust cause of action against

the City of Tulsa and its public authorities, the Tulsa Airport

Authority and the Tulsa Airports Improvement Trust

(collectively Tulsa). The dispositive issue in this appeal is

whether the district court erred in dismissing Fine’s petition.

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The appeal presents two underlying questions: 1) Is the

federal doctrine of state action immunity incorporated into

the Oklahoma Antitrust Reform Act, 79 O.S.2001, §§ 201,

et seq. and 2) Is Tulsa’s operation of an airport parking facility

as authorized by the Municipal Airports Act, 3 O.S.2001,

§§ 65.1, et seg. subject to the Oklahoma Antitrust Reform

Act. We answer both questions in the negative. We vacate

the opinion of the Court of Civil Appeals and affirm the

district court’s dismissal order.

I. Background

42 Tulsa, through its Airport Authority, operates Tulsa

International Airport and various related facilities and

services on the airport grounds, including parking facilities

for use by the airport customers. Fine operates an off-airport

parking business and competes with the Airport Authority to

provide parking to the airport customers.

q3 In May 2001, Fine filed suit in the state district court

in Tulsa County alleging that Tulsa violated the state antitrust

statutes by its exclusionary practices in operating its parking

facilities at the Tulsa Airport. Specifically, Fine alleged that

Tulsa excluded competition by setting and maintaining

parking prices with unreasonably low profit expectation, a

practice that has prevented Fine’s off-airport parking business

from successfully competing for airport parking customers.

Tulsa moved to dismiss Fine’s petition for failure to state a

claim on the grounds that it is immune from antitrust liability

for the conduct at issue under the federal doctrine of state

action immunity because its conduct is specifically authorized

by state statute. Tulsa also sought dismissal because Fine

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failed to allege a relevant market and specific intent to

monopolize.'

4 The trial court determined that the federal doctrine

of state action immunity, as enunciated in Parker v. Brown,

317 U.S. 341, 63 S.Ct. 307, 87 L.Ed.2d 315 (1943) and its

progeny, is incorporated into the Oklahoma Antitrust Reform

Act. The trial court found that the doctrine immunized Tulsa

from antitrust liability because its conduct was authorized

by the Municipal Airports Act. Accordingly, the trial court

dismissed Fine’s petition.

q5 The Court of Civil Appeals affirmed the trial court.

It determined that Tulsa is immune from liability under the

state antitrust law by virtue of the federal doctrine of state

action immunity. It also affirmed the trial court on an

independent ground that Tulsa’s conduct was immunized

because the operation of the airport parking facility is within

the city’s police powers. We previously granted Fine’s

petition for certiorari review.

II. Standard of Review

46 The function ofa dismissal motion is to test the law’s

support for a claim, not the sufficiency of the facts. Zaharias

v. Gammill, 1992 OK 149, 96, 844 P.2d 137, 138. In this

case, the trial court dismissed Fine’s petition for want of any

legal liability on the part of the Tulsa defendants. The order

dismissing Fine’s petition for failure to state a claim upon

which relief may be granted is reviewed de novo. Lockhart

v. Loosen, 1997 OK 103, 94, 943 P.2d 1074, 1077.

1. Because we resolve this appeal on other grounds, we do not

address the relevant market and intent to monopolize issues.

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47 Further, the underlying questions presented on

certiorari call for interpretation and construction of the

Oklahoma Antitrust Reform Act and the Municipal Airports

Act. Statutory construction presents a question of law that is

subject to an appellate court’s plenary, independent and

nondeferential reexamination. Arrow Tool & Guage v. Mead,

2000 OK 86, 46, 16 P.3d 1120, 1122-23.

Ill. The Federal Antitrust State Action

Immunity Doctrine

q8 The Sherman Antitrust Act, 15 U.S.C. § 1, expresses

our national policy against concerted activity that results in

monopolies and restraints of trade.? However, in our federal

system of dual sovereigns, federal law against anti-

competitive conduct is not applied to governmental activities

of the sovereign states. Parker v. Brown, supra, enunciated

the doctrine of state action immunity from federal antitrust

liability. Analyzing and interpreting the federal antitrust

statute, Parker found no suggestion of congressional intent

2. 15 U.S.C. § 1 reads:

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or

commerce among the several States, or with foreign

nations, is declared to be illegal. Every person who shall

make any contract or engage in any combination or

conspiracy hereby declared to be illegal shall be deemed

guilty of a felony, and, on conviction thereof, shall be

punished by fine not exceeding $10,000,000 if a

corporation, or, if any other person, $350,000, or by

imprisonment not exceeding three years, or by both said

punishments, in the discretion of the court.

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to restrain state action directed by state statute. 317 US. at

350-51, 63 S.Ct. at 313. Relying on fundamental principles

of federalism and preemption, Parker concluded that the

federal antitrust statute did not undertake to prohibit restraint

on competition imposed by a sovereign state as an act of

government. 317 U.S. at 352, 63 S.Ct. at 314. See also, Milton

Handler, Antitrust, 78 Columbia L.R. 1363, 1374-80 (1978).

49 For purposes of federal antitrust law, a sovereign state

can also immunize a municipality’s conduct. However, to

afford immunity to a municipality, the state must do

something more than simply direct the municipality’s

conduct. City of Lafayette, La. v. Louisiana Power & Light

Co., 435 U.S. 389, 414-15, 98 S.Ct. 1123, 1137-38, 55

L.Ed.2d 364 (1978). The state action immunity doctrine will

protect a municipality’s anti-competitive conduct from

federal antitrust liability only where 1) there is a clearly

expressed state policy to displace competition with municipal

regulation and 2) the anti-competitive regulation is

supervised by the state. California Retail Liquor Dealers

Assoc. v. Midcal Aluminum, inc., 445 U.S. 97, 105, 100 S.Ct.

937, 943, 63 L.Ed.2d 233 (1989). The first prong of this two-

prong analysis is satisfied if the restraint on competition is a

foreseeable result of the activity authorized by state statute.

City of Columbia v. Omni Outdoor Advertising, Inc., 499

U.S. 365, 373, 111 S.Ct. 1344, 1350, 113 L.Ed.2d 382 (1991).

The second prong is satisfied if the municipality actively

supervises the regulation. Jown of Hallie v. City of Eau

Claire, 471 U.S. 34, 47, 105 S.Ct. 1713, 1720, 85 L.Ed.2d

25 (1985).

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IV. In the Oklahoma Antitrust Reform Act,

79 O.S.2001, §§ 201, et seqg., the Legislature

has made unlawful those restraints on

trade that prejudice the public.

410 Our constitution expresses this state’s policy against

monopolies and restraints of trade. It forcefully provides that

“monopolies are contrary to the genius of a free government”.

Okla. Const., art. 2, § 32. It also mandates that the “Legislature

shall define what is an unlawful combination, monopoly, trust,

act, or agreement, in restraint of trade, and enact laws to punish

persons engaged in” such unlawful activity. Okla. Const., art.

5, § 44.

411 Pursuant to that constitutional mandate, our earliest

statutes prohibited conduct in restraint of trade.’ In 1998, the

Legislature enacted the most recent version of our antitrust

statutes, the Oklahoma Antitrust Reform Act.‘ In addition to

the general prohibition against restraints of trade in § 203(A),

the Act specifically makes it unlawful for a person’ 1) to

3. The following language, similar to that used in the federal

statute set out in footnote 2, has been a part of our statutes since

statehood: “Every act, agreement, contract, or combination in the

form of a trust, or otherwise, or conspiracy in restraint of trade or

commerce within this state is hereby declared to be against public

policy and illegal.” Laws of 1907-8, p. 750, Complied Laws of 1909,

§ 8800, now codified at 79 O.S.2001, § 203(A).

4. 1998 Okla.Sess.Laws, ch. 356, created the Oklahoma

Antitrust Reform Act and repealed the existing antitrust statutes.

5. The state antitrust statutes expressly prohibit every unilateral

“act” of anti-competitive conduct. However, restraint of trade or

(Cont'd)

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monopolize or attempt to monopolize any part of trade or

commerce in a relevant market in § 203(B), or 2) to

unreasonably refuse access to an essential facility in § 203(C),

or 3) to discriminate in the price of a commodity between

different purchasers in § 204.°

412 Because nearly every regulation of trade and every

agreement concerning trade constitutes a restraint of trade

to some extent, the courts have rejected a literal reading of

the antitrust statutes. Teleco, Inc. v. Ford Industries, Inc.,

1978 OK 159, 97, 587 P.2d 1360, 1362-63. Similar to the

Sherman Antitrust Act, the state antitrust law has been

interpreted to prohibit only those acts that unreasonably

restrain trade or commerce. /d.

413 This Court has followed the interpretation of the

federal antitrust statute in deciding what is an unreasonable

restraint of trade under the Oklahoma antitrust statutes. /d.

at 98, 1363. See also, Beville v. Curry, 2001 OK 1, 412, 39

P.3d 754, 759. Restraint of trade that has a pernicious effect

on competition is conclusively presumed unreasonable and

a per se violation of the antitrust statutes. Teleco, Inc. v. Ford

Industries, Inc., 1978 OK 159, at 98, 587 P.2d at 1363. Other

restraints are tested by a rule of reason to determine if the

(Cont’d)

commerce imposed unilaterally by government officials is not a

violation of the federal antitrust statute which requires an element of

concerted action. Fisher v. City of Berkley, 475 U.S. 260, 266-67,

106 S.Ct. 1045, 1049, 86 L.Ed.2d 206 (1986).

6. The constitution also prohibits discrimination in the sale of

commodities. Okla. Const., art. 9, § 45.

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activity unduly restricted competition and unreasonably

prejudiced public interest. Board of Regents v. National

Collegiate Athletic Association, 1977 OK 17, 415, 561 P.2d

499, 505-6. “The fundamental test of the reasonableness of

an action, which, by its nature, restrains trade, is its effect

on the public.” Krebsbach v. Henley, 1986 OK 58, 429, 725

P.2d 852, 858.

V. Municipalities are not immune from the Oklahoma

Antitrust Reform Act, 79 O.S.2001, §§ 201, et seq.,

under the federal doctrine of state

action immunity.

914 While the Oklahoma Antitrust Reform Act is

inapplicable to the state itself, the Act clearly expresses a

legislative intent to subject municipalities to its proscriptive

reach. The Act defines “Person” to include a “municipal

corporation, including any public trust which has a municipal

corporation as its beneficiary,” and to exclude the “State of

Oklahoma, its departments, and its administrative agencies,”

with some exceptions. 79 O.S.2001, § 202(3).

415 The Act also commands that it be interpreted

and applied consistent with the federal antitrust law. Title

79 O.S.2001, § 212 provides: “The provisions of this act

shall be interpreted in a manner consistent with Federal

Antitrust Law 15 U.S.C., Section 1 et seq. and the case law

applicable thereto.” Tulsa argues that § 212 compels the

conclusion that the Legislature intended to adopt the federal

doctrine of state action immunity and that it is immune from

state antitrust liability under the circumstances of this case.

We disagree.

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416 Parker concluded that the federal antitrust statute

did not undertake to prohibit restraint on competition

imposed by a sovereign state as an act of government.

317 U.S. at 352, 63 S.Ct. at 314. Parker fashioned the state

action immunity doctrine to protect the sovereign states’

power to regulate commerce with respect to matters of state

concern not preempted by Congress. 317 U.S. at 359-60, 63

S.Ct. at 317-18. Under the Parker doctrine, a municipality

may also be clothed with the state’s immunity from federal

antitrust liability where the state has delegated its regulatory

power to the municipality. City of Lafayette, La. v. Louisiana

Power & Light Co., 435 U.S. at 414, 98 S.Ct. at 1137.

Application of the Parker doctrine to a municipality when it

is Carrying out state policy allows the states to use their

municipalities to administer state regulatory policies free

from federal antitrust liability. Jd., 435 U.S. at 415-16 and

98 S.Ct. at 1138.

417 The Parker immunity doctrine rests on principles

of federalism and comity in the realm of trade regulation as

a means of protecting the delicate relationship between the

federal and state governments, both of which are sovereign.

317 U.S. at 359-60, 63 S.Ct. at 317-18. The principles of

federalism that govern the relationship between the two

sovereigns, the federal and state governments, do not apply

to the relationship between a state and a municipality acting

pursuant to state law.

418 In the relationship between Oklahoma and its

municipalities, the state is the sovereign and the municipality

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Appendix

is a political subdivision of the state.’ The state delegates

power to the municipality and the municipality exercises that

power subject to the control of the state. City of Sapulpa v.

Land, 1924 OK 92, 101 Okla. 22, 223 P. 640, 646. The

principles of federalism supporting the Parker doctrine are

meaningless in an analysis of municipal liability under the

Oklahoma Antitrust Reform Act.

419 We agree with the reasoning expressed by the

Wisconsin Supreme Court in Zown of Hallie v. City of

Chippewa Falls, 105 Wis.2d 533, 314 N.W.2d 321 (1982).8

7. Pursuant to the Oklahoma Constitution, the Legislature must

provide for the incorporation and organization of cities and towns

by general laws (art. 18, § 1); municipalities are subject to the general

laws of this state (art.18, § § 2 and 3,); and, municipalities may engage

in any business which the municipality has the power to franchise

(art. 18, § 6). Under these provisions, municipalities are corporate

bodies capable of many acts of private corporations as well as acts

of government. City of Blackwell v. Lee, 1936 OK 767, 4 5, 62 P.2d

1219, 1220.

In City of Lafayette, La. v. Louisiana Power & Light Co., supra.,

the city argued that its status as a municipality automatically afforded

it state action immunity. The U.S. Supreme Court refused to afford

the city the same deference it afforded the states, explaining that

cities are not sovereign and they are not free to pursue their parochial

interests via anti-competitive conduct. City of Lafayette, La. v.

Louisiana Power & Light Co., 435 U.S. at 411-13, 98 S.Ct. at 1136.

8. For the most part, the decisions of other sister jurisdictions

considering application of the Parker doctrine are inapposite because

of their respective state statutes. Three states have rejected the federal

state action immunity doctrine. Massachusetts did so because its

(Cont'd)

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Appendix

In rejecting the federal state action immunity doctrine, the

Wisconsin court said:

... The Parker decision rested on general

principles of federalism involving the relationship

of the federal government to the sovereign

states, and on the specific constitutional limits on

(Cont’d)

antitrust statutes explicitly provided that the law did not apply to

any activities subject to regulation or supervision by state agencies,

Monsanto Co. v. Dept. of Public Utilities, 412 Mass. 25,586 N.E.2d

982 (1992). New Jersey did so because its antitrust statutes specified

that the law shall not apply to any activity directed or authorized or

permitted by any conflicting or inconsistent statute, Fanelli v. City

of Trenton, 135 N.J. 582, 641 A.2d 541 (1994). New York, at least

by implication, determined that its state antitrust statutes did not

provide for state action immunity comparable to the federal doctrine.

Capital Telephone v. New York Telephone, 540 N.Y.S.2d 895 (A.D.3

Dept.1989). However, three states have followed the federal state

action immunity analysis. Louisiana did so because its antitrust statute

did not expressly include or exclude municipalities, Reppond v. City

of Denham Springs, 572 So.2d 224 (La.App. 1 Cir.1990). Colorado

did so because its antitrust statute specifically provided that persons

and activities immune from federal law are immune from state law,

City of Colorado Springs v. Mountain View Electric Association, Inc.,

925 P.2d 1378, 1387 (Colo.1996). Illinois held that an airport

authority is protected by the state action immunity doctrine in DuPage

Aviation Corp. v. DuPage Airport Authority, 229 Ill.App.3d 793, 54

N.E.2d 1334, 171 Ill.Dec. 814 (1992), but subsequently decided that

its antitrust statutes expressly provide that no provision of the antitrust

statutes shall be construed to make activities of a unit of local

government illegal, Alarm Detection Systems, Inc. v. Village of

Hinsdale, 326 Il.App.3d 372, 76 N.E.2d 782, 226 Ill.Dec. 599

(2001).

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federal power contained in the tenth and eleventh

amendments. (Footnote omitted.) These principles

are not present in this case. The relationship

between the federal government and the states is

not parallel to the relationship between the state

government and the cities. Cities are creatures of

the state, derive their power from it, and are not

recognized as independent sovereigns. (Citation

omitted.) The concern in Parker and recent United

States Supreme Court cases applying it (Footnote

omitted.) has to do with potential conflicts

between the laws of two different sovereigns—

federal and state governments.

By contrast, the present case involves

a conflict between the state laws dealing

with municipalities and the state antitrust law.

The rationale behind the Parker exemption is not

applicable to this type of case. ...

314 N.W.2d at 324.

420 The Oklahoma Antitrust Reform Act expressly

includes municipalities in the definition of “person” subject

to its provisions in § 202(3). Nevertheless, Tulsa argues that

§ 212, which requires that our antitrust statutes be interpreted

consistent with federal law, implicitly adopts the federal

doctrine of state action immunity as applied to municipalities.

We disagree. We will not apply a rule of construction to render

meaningless express provisions of the Act, such as the

definition of “person” in § 202(3). Accordingly, we reject

Tulsa’s argument. We conclude that municipalities are not

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immune from the Oklahoma Antitrust Reform Act under the

federal doctrine of state action immunity.

VI. The Municipal Airports Act, 3 O.S.2001, §§ 65.1, et seq.,

authorizes municipalities to operate and regulate parking

facilities and fix the rates for the parking services at

municipal airports for the benefit of the public

and as a public necessity without regard to the

anti-competitive effects.

421 More than half a century ago, the Legislature

authorized municipalities to plan, develop, and operate

public airports by enacting the Municipal Airports Act.’

In comprehensive terms, the Act authorizes every municipality

to plan, develop, construct, maintain, equip, operate, regulate,

protect and police public airports, “including the construction,

installation, equipment, maintenance and operation at such

airports of buildings and other facilities for the servicing of

aircraft or for the comfort and accommodation of air travelers”.

3 O.S.2001, § 65.2(a). The Act recognizes that air travel is

imbued with public purpose and airports are a public necessity

by declaring that the exercise of “powers herein granted to

municipalities” are “public and governmental functions,

exercised for a public purpose, and matters of public necessity”.

3 O.S.2001, § 65.16.

922 One of the powers the Act grants to municipalities

is the power to regulate airport parking. The Act provides

that in making airport facilities and services available, a

“municipality may establish the terms and conditions and

fix the charges, rentals or fees for the privileges or services,

9. 1947 Okla. Sess. Laws, p. 22, is the original enactment.

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which shall be reasonable and uniform for the same class of

privilege or service and shall be established with due regard

for the property and improvements used and the expenses of

operation to the municipality.” 3 O.S.2001, § 65.5(a)(3).

It also provides in specific terms that a municipality may

adopt such regulations as it deems necessary for the

management, government and use of the municipal airport,

3 O.S.2001, § 65.8(a).

423 In enacting the Municipal Airports Act, the Legislature

vested municipalities with broad regulatory and administrative

powers in operating public airports. Among those powers, the

Act authorizes municipalities to establish the terms and

conditions and fix the charges for airport facilities and services.

It follows logically that such regulation may have anti-

competitive effects. In other words, the Act allows a municipality

to operate parking facilities at its public airport and to fix

reasonable rates for the parking services without regard to the

anti-competitive effects.

VII. Because the Legislature intended to allow a

municipality to operate parking facilities at a municipal

airport as an arm of the state for the public good, a

municipality may, like the state itself, fix the rate for

airport parking service even though it may have

anti-competitive effects.

424 The overriding issue in this case is the reconciliation

of two ostensibly conflicting enactments of a single

sovereign—the State of Oklahoma. The Oklahoma Antitrust

Reform Act makes it unlawful for a person, including a

municipality, to monopolize or attempt to monopolize any

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part of trade or commerce in a relevant market. 79 O.S.2001,

§ 203(B). On the other hand, the Municipal Airports Act

allows a municipality to operate and regulate parking

facilities and fix the rate for parking services at the municipal

airport without regard to the anti-competitive effects.

3 0.S.2001, § 65.5(a)(3). In resolving this apparent

inconsistency between a state law dealing with municipalities

and the state antitrust law, the job quite simply is to ascertain

and give effect to legislative intent. City of Durant v. Cicio,

2002 OK 52, 913, 50 P.3d 218, 221. See also, Milton Handler,

Antitrust, 78 Columbia L.R. 1363, 1378 (1978).

425 In resolving this statutory conflict, we are mindful

that the exercise of municipal authority is subject to the

general laws of the state. City of Sapulpa v. Land, 223 P. at

646. Where municipal conduct is challenged under a general

statute, the statutory grant of municipal authority must be

strictly construed in favor of the general statute. Y & Y Cab

Service v. City of Oklahoma City, 1933 OK 547, 167 Okla.

134, 28 P.2d 551, 552-53. Absent an express exemption, a

municipality’s conduct cannot be exempted from the

proscriptive reach of a general statute unless the express

provisions of a conflicting state statute permits or authorizes

the municipality to engage in conduct that is inconsistent

with or contrary to the general statute.

426 The Oklahoma Antitrust Reform Act is a general

statute of statewide concern that uniformly applies to every

municipality. It is designed to prohibit anti-competitive

conduct that is harmful to the public. Board of Regents v.

National Collegiate Athletic Association, supra., and

Krebsbach v. Henley, supra. Accordingly, unless it can be

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said that the Municipal Airport Act authorizes Tulsa to fix

parking rates for the good of the public, Tulsa has, if Fine’s

allegations are proved, violated Oklahoma’s antitrust law.

427 Prior to enactment of the Municipal Airports Act,

municipalities with 2000 inhabitants had statutory authority to

engage in the operation of an airport.'° We viewed the operation

of a municipal airport as a proprietary function."' In enacting

10. 1931 Oklahoma Compiled Statutes, § 6350.

11. City of Blackwell v. Lee, 1936 OK 767, 178 Okla. 338, 62

P.2d 1219. A 1958 amendment to Tulsa’s municipal charter created

the Airport Authority to operate the airport as a financially

independent utility of the city. City of Tulsa by and through Tulsa

Airport Authority v. Air Tulsa, Inc., 1992 OK 146, 4 2 and ¥ 14, 851

P.2d 519, 520 and 522. This perception of a municipal airport as a

proprietary function was changed in the 1947 Municipal Airports

Act when the Legislature, in § 65.16, characterized the operation of

a municipal airport as a governmental function, finding public purpose

and public necessity.

Generally, all functions of a municipality are public in nature

whether the municipality acts in a proprietary capacity or a

governmental capacity. When a municipality acts in a proprietary

capacity, it does so as a private corporation for its own purposes and

benefits separate from the duties and powers imposed upon by the

state, however, when a municipality acts in a governmental capacity,

it does so as an arm of the state for the convenient administration of

the government within territorial bounds of the municipality, for the

public good on behalf of the state rather than for itself. Public Service

Co. of Oklahoma v. City of Tulsa, 1935 OK 904, 174 Okla. 58, 50

P.2d 166, Syllabus, No. 2.

Fine does not challenge the Legislature’s “nublic purpose and

public necessity” perception of municipal air~ Even though the

(Cont’d)

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the Municipal Airports Act, the Legislature authorized

municipalities to plan, develop and operate public airports and

declared these activities to be “public and governmental

functions”. 3 O.S.2001, § 65.16. It also granted municipalities

various powers, including the power to “fix the charges, rentals

or fees for the privileges or services” at a municipal airport,

3 O.S.2001, § 65.5(a)(3), and declared these powers to be

exercised “for a public purpose, and matters of public necessity”.

3 O.S.2001, § 65.16. A reading of these provisions leads us to

but a single conclusion—When a municipality operates an

airport pursuant to the Municipal Airports Act, it is acting in a

governmental capacity as an arm of the state to meet a public

need and not solely for its own benefit.

428 Because the Legislature intended to allow a

municipality to operate parking facilities at a municipal

airport as an arm of the state for the public good, a

municipality may, like the state itself, fix the rate for the

airport parking service even though it may have anti-

competitive effects.'* Accordingly, we determine that Tulsa’s

(Cont'd)

question might ultimately become a judicial one, what constitutes

a public purpose and public necessity is a legislative matter.

In re Initiative Petition No. 319, 1984 OK 23, § 14, 682 P.2d 222,

224. Where there is no allegation or evidence challenging the

legislative characterization of the public nature of a particular subject

matter, the courts will not interfere with a legislative declaration of

public purposes. Democratic Party of Oklahoma v. Estep, 1982 OK

106, J 14, 652 P.2d 271, 276, footnote 19.

12. The Court of Civil Appeals also created a sweeping

immunity from antitrust liability for a municipality if the challenged

conduct is within the “police power.” Police power is an inherent

(Cont'd)

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operation of an airport parking facility as authorized by the

Municipal Airports Act, 3 O.S.2001, §§ 65.1, et seq. is not

subject to the Oklahoma Antitrust Reform Act, 79 O.S.2001,

§§ 201, et seq.

VIII, Conclusion

929 The Oklahoma Antitrust Reform Act, while

expressly excluding the state from antitrust liability, clearly

subjects municipalities to liability for anti-competitive

conduct. Municipalities are not immune from the Act under

the federal doctrine of state action immunity. The Municipal

Airports Act authorizes municipalities to operate and regulate

parking facilities and fix the rates for the parking services at

municipal airports for the benefit of the public and as a public

necessity. Because the Legislature intended to allow a

municipality to operate parking facilities at a municipal

airport as an arm of the state for the public good, a

municipality may, like the state itself, fix the rate for airport

parking service even though it may have anti-competitive

effects. We hold that the district court did not err when it

dismissed Fine’s petition for want of any legal liability on

(Cont'd)

attribute of sovereignty possessed by every state. State ex rel.

Roth v. Waterfield, 1933 OK 546, 29 P.2d 24. The police power pertains

to such rules and regulations relating to personal and pro rights

affect the public health, safety and welfare. 16A C.J.S. Constitutional

Law § 432. Tulsa is not exercising municipal “police power” when it

fixes the price of airport parking because such regulation does not affect

personal or property rights. The case relied on by the Court of Civil

Appeals, Ex Parte Houston, 1950 OK CR 93, 224 P.2d 281, does not

support the proposition that fixing the price of parking at a municipal

airport is an exercise of police power.

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the part of Tulsa under the state antitrust statutes, even though

the district court based its dismissal on incorrect legal

conclusions."

CERTIORARI PREVIOUSLY GRANTED; OPINION

OF THE COURT OF CIVIL APPEALS VACATED;

DISMISSAL ORDER OF THE

DISTRICT COURT AFFIRMED.

Watt, C.J., Opala, V.C.J., and Lavender, Hargrave,

Summers, Boudreau, and Winchester, JJ., concur.

Hodges, J., concurs in result.

Kauger, J., recused.

13. A trial court will be affirmed on appeal where it reaches

the correct result although its decision is based upon erroneous legal

conclusions. Shelley v. Kiwash Electric Coop., 1996 OK 44, 4 ‘16,

914 P.2d 669, 674.