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GANNETT SATELLITE INFORMATION NETWORK v. BERGER

July 6, 1989

GANNETT SATELLITE INFORMATION NETWORK, INC., d/b/a USA TODAY, Plaintiff,
v.
STEPHEN BERGER, et al., Defendants



The opinion of the court was delivered by: POLITAN

 This is a suit to determine whether plaintiff Gannett Satellite Information Network, Inc. ("Gannett") has a constitutional right to install newspaper vending machines for the distribution of newspapers within the passenger terminals of Newark International Airport, without the consent of the defendants, the Port Authority of New York & New Jersey ("Port Authority") or the airlines leasing space at Newark Airport. *fn1" Plaintiff seeks declaratory and injunctive relief on the grounds that the defendants' refusal to permit newspaper vending machines to be installed at the airport violates plaintiff's First Amendment right to free speech, its Fourteenth Amendment right of due process, its Fourteenth Amendment right of equal protection, and the right to free speech secured by Article One, paragraph 6 of the New Jersey Constitution. *fn2"

 Plaintiff Gannett, a Delaware corporation with its principal office and place of business in Arlington, Virginia, publishes the nationally circulated newspaper known as USA TODAY. Defendant Port Authority is an agency created in 1921 by the States of New Jersey and New York by a congressionally consented to compact. Newark International Airport is among the thirty-three facilities owned or operated by the Port Authority. Additional parties named as defendants in the complaint include the airline defendants, several directors and managers of Port Authority, and a corporation which previously held a lease to operate concession stands in the airport terminals.

 I. FACTS

 Newark Airport occupies 23,000 acres of public land located within the Cities of Newark and Elizabeth, New Jersey. The entire airport facility consists of four passenger terminals, numerous administrative and commercial buildings, public and private parking lots, and a number of streets, sidewalks and roadways. The three principal passenger terminals at Newark Airport are known as Terminals A, B and C. Another terminal, the North Terminal, is no longer fully operational. Although the airport complex is surrounded by security fences, under normal circumstances any member of the public can gain access to nonsecure areas on a 24 hour a day basis. Airport patrons and employees gain access to Newark Airport from interchanges off the New Jersey Turnpike and other major highways.

 In 1985 an estimated 28.5 million airline passengers travelled through Newark Airport, making it the eighth busiest airport in the world that year. In 1987 approximately 23.5 million passengers travelled through the airport. Within the next 10 to 15 years the airport is expected to handle 45 to 50 million travelers annually. In addition to airline passengers, the Port Authority defendants estimate that the number of nonpassengers at Newark Airport is 22.5% of the number of passengers. On a daily basis then, the average population of passengers and other members of the public at Newark Airport for 1985 and 1987 was 79,000 to 95,000. In general, these airport visitors have unrestricted access to the public circulation areas of the passenger terminals. They are free to walk, sit, shop or dine at the various commercial establishments located throughout the terminals.

 In terms of design, Terminals A and B are almost identical. Each terminal has three passenger service levels. The uppermost level is the departure level; the lowest level is the arrivals level; the middle level is the concourse level, where many of the shops and public facilities in the passenger terminal are located. There are passageways that lead from the concourse level of the main terminal buildings to each of three flight stations which contain the various aircraft gates where passengers enter and exit. Defendants have placed security check points close to the entrance of these passageways.

 Terminal C is similar to Terminals A & B except that instead of three flight stations where the aircraft gates are located, there are three corridors or concourses. Aircraft gates, hold areas, shops, restaurants and other services are located along two of these three corridors. The remaining corridor contains facilities for the U.S. Customs Service and Immigration and Naturalization Service operations.

 The majority of available space in the airport terminals is leased to the airline defendants. However, the Port Authority reserves the right to lease space in certain designated areas to independent concessionaires. The right to select these concessionaires is retained by the Port Authority, who negotiates the agreements, sets fees, and monitors operations. In practice, however, the selection of concessionaires is a joint decision requiring approval of both the Port Authority and the airline defendants. Under the terms of the lease, concessionaires have an exclusive or semi-exclusive right to sell various merchandise including newspapers in a particular terminal. For this right, the concessionaires pay a fixed base rent plus approximately 17-1/2 percent of their gross sales. These lease payments from the concessionaires are shared between the Port Authority and the airline defendants.

 The Port Authority retains ultimate control over all terminal space through "use provisions" and other clauses in its lease agreements. These provisions carefully enumerate all of the permitted uses for the leased space. The Port Authority reserves the right to grant or deny a lessee permission for a proposed use outside of those enumerated. In addition, all leases at the airport are subject to those Port Authority Rules and Regulations applicable to airport operations.

 Under these Rules and Regulations, the Port Authority is vested with the authority to make decisions concerning the types of written material that may be distributed at Newark Airport independent of the concessionaires, and under what circumstances such distribution may occur. In 1987 the Rules and Regulations relevant to this case, stated in part:

 
No person shall carry on any commercial activity in any air terminal, other than aircraft operation, without the consent of the Port Authority.
 
* * * *
 
No person shall post, distribute or display signs, advertisements, circulares, printed or written matter at any air terminal without permission.

 Airport Rules and Regulations, Ch. III §§ 2, 9 (Plaintiff's Exhibit 55).

 Port Authority publications regarding services, ground transportation, and other airport matters currently are available free of charge in display racks located throughout the terminal. Sources other than the Port Authority also distribute pamphlets and brochures free of charge from numerous display racks. Among the publications available are brochures printed by the N.J. Department of Tourism and two free newspapers, The Leisure Town Crier and the Leisure Life News, both published by Leisure Technology Corporation.

 On February 5, 1987 plaintiff wrote a letter to the Port Authority proposing the placement of thirty-four newsracks at specific locations in Newark Airport, with six additional newsrack locations for Terminal C after renovations were completed. Subsequent correspondence was exchanged and meetings were held to discuss plaintiff's proposals. On October 14, 1987, a representative of Port Authority indicated, by letter to plaintiff's counsel, that they "ha[d] reached the conclusion that the distribution of USA TODAY [was] adequately served by newsstands" and that "the use of news racks . . . would not serve the best interests of the [Port Authority] Airports." *fn3" On November 12, 1987, plaintiff initiated the action currently before this Court.

 Subsequent to the commencement of this suit, the Port Authority amended the Rules and Regulations to create separate provisions for regulation of commercial and non-commercial activity within the airport terminals. The prohibition of commercial activity without the consent of the Port Authority provides:

 
No person shall carry on any commercial activity at any air terminal without the consent of the Port Authority.

 Revision of Airport Rules and Regulations, Ch. III § A.2 (Plaintiff's Exhibit 56).

 The prohibition against distribution of written materials was amended to provide:

 
No person shall post, distribute or display at an air terminal a sign, advertisement, circular, or any printed or written matter concerning or referring to commercial activity, except pursuant to a written agreement with the Port Authority specifying the time, place and manner of, and fee or rental for, such activity.

 Id. at Ch. III § A.10.

 In addition, a new regulation adopted on February 11, 1988, prohibiting the placement of vending machines in the Port Authority airports states:

 
No vending machines for the sale of goods shall be permitted in the public areas of Kennedy International, Newark International and LaGuardia Airports, which are not occupied by a lessee, licensee or permittee. This prohibition shall not apply to vending machines in rest rooms selling personal hygiene items.

 Id. at Ch. III § A.3.

 This new prohibition only applies to Port Authority controlled space. It does not apply to airline leased space. In addition, it does not bar existing vending machines located in concession areas, nor does it cover those vending machines located in the terminal used to sell services. This absolute prohibition on vending machines for the sale of goods serves as an additional bar to the placement of plaintiff's newsracks within the public areas of the airports.

 II. FACIAL ATTACK

 Plaintiff alleges that the Port Authority Rules and Regulations at issue in this case violate the Constitution because these rules delegate to public officials unfettered discretion to grant or deny permission to exercise First Amendment rights in a public forum. Plaintiff also maintains that the decision banning newsracks ...


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