The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_1671/89_1671.o

Text File | 1991-04-01 | 36.2 KB | 574 lines

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

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
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 offering artificially low rates, spreading untrue and
malicious rumors about Omni, and attempting to induce Omni's customers to
break their contracts.  Finally (and this is what gives rise to the issue
we address today), COA executives met with city officials to seek the
enactment of zoning ordinances that would restrict billboard construction.
COA was not alone in urging this course; a number of citizens concerned
about the city's recent explosion of billboards advocated restrictions,
including writers of articles and editorials in local newspapers.
    In the spring of 1982, the city council passed an ordinance requiring
the council's approval for every billboard constructed in downtown
Columbia.  This was later amended to impose a 180-day moratorium on the
construction of billboards throughout the city, except as specifically
authorized by the council.  A state court invalidated this ordinance on the
ground that its conferral of unconstrained discretion upon the city council
violated both the South Carolina and Federal Constitutions.  The city then
requested the State's regional planning authority to conduct a
comprehensive analysis of the local billboard situation as a basis for
developing a final, constitutionally valid, ordinance.  In September 1982,
after a series of public hearings and numerous meetings involving city
officials, Omni, and COA (in all of which, according to Omni, positions
contrary to COA's were not genuinely considered), the city council passed a
new ordinance resticting the size, location, and spacing of billboards.
These restrictions, particularly those on spacing, obviously benefited COA,
which already had its billboards in place; they severely hindered Omni's
ability to compete.
    In November 1982, Omni filed suit against COA and the city in Federal
District Court, charging that they had violated 15 1 and 2 of the Sherman
Act, 26 Stat. 209, as amended, 15 U. S. C. 15 1, 2, {1} as well as South
Carolina's Unfair Trade Practices Act, S. C. Code MDRV 39-5-140 (1976).
Omni contended, in particular, that the city's billboard ordinances were
the result of an anticompetitive conspiracy between city officials and COA
that stripped both parties of any immunity they might otherwise enjoy from
the federal antitrust laws.  In January 1986, after more than two weeks of
trial, a jury returned general verdicts against the city and COA on both
the federal and state claims.  It awarded damages, before trebling, of
$600,000 on the MDRV 1 Sherman Act claim, and $400,000 on the MDRV 2 claim.
{2}  The jury also answered two special interrogatories, finding
specifically that the city and COA had conspired both to restrain trade and
to monopolize the market.  Petitioners moved for judgment notwithstanding
the verdict, contending among other things that their activities were
outside the scope of the federal antitrust laws.  In November 1988, the
District Court granted the motion.
    A divided panel of the United States Court of Appeals for the Fourth
Circuit reversed the judgment of the District Court and reinstated the jury
verdict on all counts.  891 F. 2d 1127 (1989).  We granted certiorari, 496
U. S. --- (1990).

II
    In the landmark case of Parker v. Brown, 317 U. S. 341 (1943), we
rejected the contention that a program restricting the marketing of
privately produced raisins, adopted pursuant to California's Agricultural
Prorate Act, violated the Sherman Act.  Relying on principles of federalism
and state sovereignty, we held that the Sherman Act did not apply to
anticompetitive restraints imposed by the States "as an act of government."
317 U. S., at 352.
    Since Parker emphasized the role of sovereign States in a federal
system, it was initially unclear whether the governmental actions of
political subdivisions enjoyed similar protection.  In recent years, we
have held that Parker immunity does not apply directly to local
governments, see Hallie v. Eau Claire, 471 U. S. 34, 38 (1985); Community
Communications Co. v. Boulder, 455 U. S. 40, 50-51 (1982); Lafayette v.
Louisiana Power & Light Co., 435 U. S. 389, 412-413 (1978) (plurality
opinion).  We have recognized, however, that a municipality's restriction
of competition may sometimes be an authorized implementation of state
policy, and have accorded Parker immunity where that is the case.    The
South Carolina statutes under which the city acted in the present case
authorize municipalities to regulate the use of land and the construction
of buildings and other structures within their boundaries. {3}  It is
undisputed that, as a matter of state law, these statutes authorize the
city to regulate the size, location, and spacing of billboards.  It could
be argued, however, that a municipality acts beyond its delegated
authority, for Parker purposes, whenever the nature of its regulation is
substantively or even procedurally defective.  On such an analysis it could
be contended, for example, that the city's regulation in the present case
was not "authorized" by S. C. Code MDRV 5-23-10 (1976), see n. 3, supra, if
it was not, as that statute requires, adopted "for the purpose of promoting
health, safety, morals or the general welfare of the community."  As
scholarly commentary has noted, such an expansive interpretation of the
Parker-defense authorization requirement would have unacceptable
consequences.

    "To be sure, state law `authorizes' only agency decisions that are
substantively and procedurally correct.  Errors of fact, law, or judgment
by the agency are not `authorized.'  Erroneous acts or decisions are
subject to reversal by superior tribunals because unauthorized.  If the
antitrust court demands unqualified `authority' in this sense, it
inevitably becomes the standard reviewer not only of federal agency
activity but also of state and local activity whenever it is alleged that
the governmental body, though possessing the power to engage in the
challenged conduct, has actually exercised its power in a manner not
authorized by state law.  We should not lightly assume that Lafayette's
authorization requirement dictates transformation of state administrative
review into a federal antitrust job.  Yet that would be the consequence of
making antitrust liability depend on an undiscriminating and mechanical
demand for `authority' in the full administrative law sense."  P. Areeda &
H. Hovenkamp, Antitrust Law MDRV 212.3b, p. 145 (Supp. 1989).


We agree with that assessment, and believe that in order to prevent Parker
from undermining the very interests of federalism it is designed to
protect, it is necessary to adopt a concept of authority broader than what
is applied to determine the legality of the municipality's action under
state law.  We have adopted an approach that is similar in principle,
though not necessarily in precise application, elsewhere.  See Stump v.
Sparkman, 435 U. S. 349 (1978).  It suffices for the present to conclude
that here no more is needed to establish, for Parker purposes, the city's
authority to regulate than its unquestioned zoning power over the size,
location, and spacing of billboards.
    Besides authority to regulate, however, the Parker defense also
requires authority to suppress competition -- more specifically, "clear
articulation of a state policy to authorize anticompetitive conduct" by the
municipality in connection with its regulation.  Hallie, 471 U. S., at 40
(internal quotation omitted).  We have rejected the contention that this
requirement can be met only if the delegating statute explicitly permits
the displacement of competition, see id., at 41-42.  It is enough, we have
held, if suppression of competition is the "foreseeable result" of what the
statute authorizes, id., at 42.  That condition is amply met here.  The
very purpose of zoning regulation is to displace unfettered business
freedom in a manner that regularly has the effect of preventing normal acts
of competition, particularly on the part of new entrants.  A municipal
ordinance restricting the size, location, and spacing of billboards (surely
a common form of zoning) necessarily protects existing billboards against
some competition from newcomers. {4}
    The Court of Appeals was therefore correct in its conclusion that the
city's restriction of billboard construction was prima facie entitled to
Parker immunity.  The Court of Appeals upheld the jury verdict, however, by
invoking a "conspiracy" exception to Parker that has been recognized by
several Courts of Appeals.  See, e. g., Whitworth v. Perkins, 559 F. 2d 378
(CA5 1977), vacated, 435 U. S. 992, aff'd on rehearing, 576 F. 2d 696
(1978), cert. denied, 440 U. S. 911 (1979).  That exception is thought to
be supported by two of our statements in Parker: "[W]e have no question of
the state or its municipality becoming a participant in a private agreement
or combination by others for restraint of trade, cf. Union Pacific R. Co.
v. United States, 313 U. S. 450."  Parker, 317 U. S., at 351-352 (emphasis
added).  "The state in adopting and enforcing the prorate program made no
contract or agreement and entered into no conspiracy in restraint of trade
or to establish monopoly but, as sovereign, imposed the restraint as an act
of government which the Sherman Act did not undertake to prohibit."  Id.,
at 352 (emphasis added).  Parker does not apply, according to the Fourth
Circuit, "where politicians or political entities are involved as
conspirators" with private actors in the restraint of trade.  891 F. 2d, at
1134.
    There is no such conspiracy exception.  The rationale of Parker was
that, in light of our national commitment to federalism, the general
language of the Sherman Act should not be interpreted to prohibit
anticompetitive actions by the States in their governmental capacities as
sovereign regulators.  The sentences from the opinion quoted above simply
clarify that this immunity does not necessarily obtain where the State acts
not in a regulatory capacity but as a commercial participant in a given
market.  That is evident from the citation of Union Pacific R. Co. v.
United States, 313 U. S. 450 (1941), which held unlawful under the Elkins
Act certain rebates and concessions made by Kansas City, Kansas, in its
capacity as the owner and operator of a wholesale produce market that was
integrated with railroad facilities.  These sentences should not be read to
suggest the general proposition that even governmental regulatory action
may be deemed private -- and therefore subject to antitrust liability --
when it is taken pursuant to a conspiracy with private parties.  The
impracticality of such a principle is evident if, for purposes of the
exception, "conspiracy" means nothing more than an agreement to impose the
regulation in question.  Since it is both inevitable and desirable that
public officials often agree to do what one or another group of private
citizens urges upon them, such an exception would virtually swallow up the
Parker rule: All anticompetitive regulation would be vulnerable to a
"conspiracy" charge.  See Areeda & Hovenkamp, supra, MDRV 203.3b, at 34,
and n. 1; Elhauge, The Scope of Antitrust Process, 104 Harv. L. Rev. 667,
704-705 (1991). {5}
    Omni suggests, however, that "conspiracy" might be limited to instances
of governmental "corruption," defined variously as "abandonment of public
responsibilities to private interests," Brief for Respondent 42, "corrupt
or bad faith decisions," id., at 44, and "selfish or corrupt motives,"
ibid.  Ultimately, Omni asks us not to define "corruption" at all, but
simply to leave that task to the jury: "[a]t bottom, however, it was within
the jury's province to determine what constituted corruption of the
governmental process in their community."  Id., at 43.  Omni's amicus
eschews this emphasis on "corruption," instead urging us to define the
conspiracy exception as encompassing any governmental act "not in the
public interest."  Brief for Associated Builders and Contractors, Inc. as
Amicus Curiae 5.
    A conspiracy exception narrowed along such vague lines is similarly
impractical.  Few governmental actions are immune from the charge that they
are "not in the public interest" or in some sense "corrupt."  The
California marketing scheme at issue in Parker itself, for example, can
readily be viewed as the result of a "conspiracy" to put the "private"
interest of the State's raisin growers above the "public" interest of the
State's consumers.  The fact is that virtually all regulation benefits some
segments of the society and harms others; and that it is not universally
considered contrary to the public good if the net economic loss to the
losers exceeds the net economic gain to the winners.  Parker was not
written in ignorance of the reality that determination of "the public
interest" in the manifold areas of government regulation entails not merely
economic and mathematical analysis but value judgment, and it was not meant
to shift that judgment from elected officials to judges and juries.  If the
city of Columbia's decision to regulate what one local newspaper called
"billboard jungles," Columbia Record, May 21, 1982, p. 14-A, col. 1; App.
in No. 88-1388 (CA4), p. 3743, is made subject to ex post facto judicial
assessment of "the public interest," with personal liability of city
officials a possible consequence, we will have gone far to "compromise the
States' ability to regulate their domestic commerce," Southern Motor
Carriers Rate Conference, Inc. v. United States, 471 U. S. 48, 56 (1985).
The situation would not be better, but arguably even worse, if the courts
were to apply a subjective test: not whether the action was in the public
interest, but whether the officials involved thought it to be so.  This
would require the sort of deconstruction of the governmental process and
probing of the official "intent" that we have consistently sought to avoid.
{6}  "[W]here the action complained of . . . was that of the State itself,
the action is exempt from antitrust liability regardless of the State's
motives in taking the action."  Hoover v. Ronwin, 466 U. S. 558, 579-580
(1984).  See also Llewellyn v. Crothers, 765 F. 2d 769, 774 (CA9 1985)
(Kennedy, J.).
    The foregoing approach to establishing a "conspiracy" exception at
least seeks (however impractically) to draw the line of impermissible
action in a manner relevant to the purposes of the Sherman Act and of
Parker: prohibiting the restriction of competition for private gain but
permitting the restriction of competition in the public interest.  Another
approach is possible, which has the virtue of practicality but the vice of
being unrelated to those purposes.  That is the approach which would
consider Parker inapplicable only if, in connection with the governmental
action in question, bribery or some other violation of state or federal law
has been established.  Such unlawful activity has no necessary relationship
to whether the governmental action is in the public interest.  A mayor is
guilty of accepting a bribe even if he would and should have taken, in the
public interest, the same action for which the bribe was paid.  (That is
frequently the defense asserted to a criminal bribery charge -- and though
it is never valid in law, see, e. g., United States v. Jannotti, 673 F. 2d
578, 601 (CA3) (en banc), cert. denied, 457 U. S. 1106 (1982), it is often
plausible in fact.)  When, moreover, the regulatory body is not a single
individual but a state legislature or city council, there is even less
reason to believe that violation of the law (by bribing a minority of the
decisionmakers) establishes that the regulation has no valid public
purpose.  Cf. Fletcher v. Peck, 6 Cranch 87, 130 (1810).  To use unlawful
political influence as the test of legality of state regulation undoubtedly
vindicates (in a rather blunt way) principles of good government.  But the
statute we are construing is not directed to that end.  Congress has passed
other laws aimed at combatting corruption in state and local governments.
See, e. g., 18 U. S. C. MDRV 1951 (Hobbs Act).  "Insofar as [the Sherman
Act] sets up a code of ethics at all, it is a code that condemns trade
restraints, not political activity."  Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 140 (1961).
    For these reasons, we reaffirm our rejection of any interpretation of
the Sherman Act that would allow plaintiffs to look behind the actions of
state sovereigns to base their claims on "perceived conspiracies to
restrain trade,"  Hoover, 466 U. S., at 580.  We reiterate that, with the
possible market participant exception, any action that qualifies as state
action is "ipso facto . . . exempt from the operation of the antitrust
laws," id., at 568.  This does not mean, of course, that the States may
exempt private action from the scope of the Sherman Act; we in no way
qualify the well established principle that "a state does not give immunity
to those who violate the Sherman Act by authorizing them to violate it, or
by declaring that their action is lawful."  Parker, 317 U. S., at 351
(citing Northern Securities Co. v. United States, 193 U. S. 197, 332,
344-347 (1904)).  See also Schwegmann Brothers v. Calvert Distillers Corp.,
341 U. S. 384 (1951).

III
    While Parker recognized the States' freedom to engage in
anticompetitive regulation, it did not purport to immunize from antitrust
liability the private parties who urge them to engage in anticompetitive
regulation.  However, it is obviously peculiar in a democracy, and perhaps
in derogation of the constitutional right "to petition the Government for a
redress of grievances," U. S. Const., Amdt. 1, to establish a category of
lawful state action that citizens are not permitted to urge.  Thus,
beginning with Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., supra, we have developed a corollary to Parker: the federal
antitrust laws also do not regulate the conduct of private individuals in
seeking anticompetitive action from the government.  This doctrine, like
Parker, rests ultimately upon a recognition that the antitrust laws,
"tailored as they are for the business world, are not at all appropriate
for application in the political arena."  Noerr, supra, at 141.  That a
private party's political motives are selfish is irrelevant: "Noerr shields
from the Sherman Act a concerted effort to influence public officials
regardless of intent or purpose."  United Mine Workers of America v.
Pennington, 381 U. S. 657, 670 (1965).
    Noerr recognized, however, what has come to be known as the "sham"
exception to its rule: "There may be situations in which a publicity
campaign, ostensibly directed toward influencing governmental action, is a
mere sham to cover what is actually nothing more than an attempt to
interfere directly with the business relationships of a competitor and the
application of the Sherman Act would be justified."  365 U. S., at 144.
The Court of Appeals concluded that the jury in this case could have found
that COA's activities on behalf of the restrictive billboard ordinances
fell within this exception.  In our view that was error.
    The "sham" exception to Noerr encompasses situations in which persons
use the governmental process -- as opposed to the outcome of that process
-- as an anticompetitive weapon.  A classic example is the filing of
frivolous objections to the license application of a competitor, with no
expectation of achieving denial of the license but simply in order to
impose expense and delay.  See California Motor Transport Co. v. Trucking
Unlimited, 404 U. S. 508 (1972).  A "sham" situation involves a defendant
whose activities are "not genuinely aimed at procuring favorable government
action" at all, Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U. S.
492, 500, n. 4 (1988), not one "who `genuinely seeks to achieve his
governmental result, but does so through improper means,' " id., at 508, n.
10 (quoting Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 827 F. 2d 458,
465, n. 5 (CA9 1987)).
    Neither of the Court of Appeals' theories for application of the "sham"
exception to the facts of the present case is sound.  The court reasoned,
first, that the jury could have concluded that COA's interaction with city
officials "was `actually nothing more than an attempt to interfere directly
with the business relations [sic] of a competitor.' "  891 F. 2d, at 1139
(quoting Noerr, supra, at 144).  This analysis relies upon language from
Noerr, but ignores the import of the critical word "directly."  Although
COA indisputably set out to disrupt Omni's business relationships, it
sought to do so not through the very process of lobbying, or of causing the
city council to consider zoning measures, but rather through the ultimate
product of that lobbying and consideration, viz., the zoning ordinances.
The Court of Appeals' second theory was that the jury could have found
"that COA's purposes were to delay Omni's entry into the market and even to
deny it a meaningful access to the appropriate city administrative and
legislative fora."  891 F. 2d, at 1139.  But the purpose of delaying a
competitor's entry into the market does not render lobbying activity a
"sham," unless (as no evidence suggested was true here) the delay is sought
to be achieved only by the lobbying process itself, and not by the
governmental action that the lobbying seeks.  "If Noerr teaches anything it
is that an intent to restrain trade as a result of government action sought
. . . does not foreclose protection."  Sullivan, Developments in the Noerr
Doctrine, 56 Antitrust L. J. 361, 362 (1987).  As for "deny[ing] . . .
meaningful access to the appropriate city administrative and legislative
fora," that may render the manner of lobbying improper or even unlawful,
but does not necessarily render it a "sham."  We did hold in California
Motor Transport, supra, that a conspiracy among private parties to
monopolize trade by excluding a competitor from participation in the
regulatory process did not enjoy Noerr protection.  But California Motor
Transport involved a context in which the conspirators' participation in
the governmental process was itself claimed to be a "sham," employed as a
means of imposing cost and delay.  ("It is alleged that petitioners
`instituted the proceedings and actions . . . with or without probable
cause, and regardless of the merits of the cases.' "  404 U. S., at 512.)
The holding of the case is limited to that situation.  To extend it to a
context in which the regulatory process is being invoked genuinely, and not
in a "sham" fashion, would produce precisely that conversion of antitrust
law into regulation of the political process that we have sought to avoid.
Any lobbyist or applicant, in addition to getting himself heard, seeks by
procedural and other means to get his opponent ignored.  Policing the
legitimate boundaries of such defensive strategies, when they are conducted
in the context of a genuine attempt to influence governmental action, is
not the role of the Sherman Act.  In the present case, of course, any
denial to Omni of "meaningful access to the appropriate city administrative
and legislative fora" was achieved by COA in the course of an attempt to
influence governmental action that, far from being a "sham," was if
anything more in earnest than it should have been.  If the denial was
wrongful there may be other remedies, but as for the Sherman Act, the Noerr
exemption applies.
    Omni urges that if, as we have concluded, the "sham" exception is
inapplicable, we should use this case to recognize another exception to
Noerr immunity -- a "conspiracy" exception, which would apply when
government officials conspire with a private party to employ government
action as a means of stifling competition.  We have left open the
possibility of such an exception, see, e. g., Allied Tube, supra, at 502,
n. 7, as have a number of Courts of Appeals.  See, e. g., Oberndorf v.
Denver, 900 F. 2d 1434, 1440 (CA10 1990); First American Title Co. of South
Dakota v. South Dakota Land Title Assn., 714 F. 2d 1439, 1446, n. 6 (CA8
1983), cert. denied, 464 U. S. 1042 (1984).  At least one Court of Appeals
has affirmed the existence of such an exception in dicta, see Duke & Co. v.
Foerster, 521 F. 2d 1277, 1282 (CA3 1975), and the Fifth Circuit has
adopted it as holding, see Affiliated Capital Corp. v. Houston, 735 F. 2d
1555, 1566-1568 (1984) (en banc).
    Giving full consideration to this matter for the first time, we
conclude that a "conspiracy" exception to Noerr must be rejected.  We need
not describe our reasons at length, since they are largely the same as
those set forth in Part II above for rejecting a "conspiracy" exception to
Parker.  As we have described, Parker and Noerr are complementary
expressions of the principle that the antitrust laws regulate business, not
politics; the former decision protects the States' acts of governing, and
the latter the citizens' participation in government.  Insofar as the
identification of an immunitydestroying "conspiracy" is concerned, Parker
and Noerr generally present two faces of the same coin.  The
Noerr-invalidating conspiracy alleged here is just the Parker-invalidating
conspiracy viewed from the standpoint of the private-sector participants
rather than the governmental participants.  The same factors which, as we
have described above, make it impracticable or beyond the purpose of the
antitrust laws to identify and invalidate lawmaking that has been infected
by selfishly motivated agreement with private interests likewise make it
impracticable or beyond that scope to identify and invalidate lobbying that
has produced selfishly motivated agreement with public officials.  "It
would be unlikely that any effort to influence legislative action could
succeed unless one or more members of the legislative body became . . .
`coconspirators' " in some sense with the private party urging such action,
Metro Cable Co. v. CATV of Rockford, Inc., 516 F. 2d 220, 230 (CA7 1975).
And if the invalidating "conspiracy" is limited to one that involves some
element of unlawfulness (beyond mere anticompetitive motivation), the
invalidation would have nothing to do with the policies of the antitrust
laws.  In Noerr itself, where the private party "deliberately deceived the
public and public officials" in its successful lobbying campaign, we said
that "deception, reprehensible as it is, can be of no consequence so far as
the Sherman Act is concerned."  365 U. S., at 145.

IV
    Under Parker and Noerr, therefore, both the city and COA are entitled
to immunity from the federal antitrust laws for their activities relating
to enactment of the ordinances.  This determination does not entirely
resolve the dispute before us, since other activities are at issue in the
case with respect to COA.  Omni asserts that COA engaged in private
anticompetitive actions such as trade libel, the setting of artificially
low rates, and inducement to breach of contract.  Thus, although the jury's
general verdict against COA cannot be permitted to stand (since it was
based on instructions that erroneously permitted liability for seeking the
ordinances, see Sunkist Growers, Inc. v. Winckler & Smith Citrus Products
Co., 370 U. S. 19, 29-30 (1962)) if the evidence was sufficient to sustain
a verdict on the basis of these other actions alone, and if this theory of
liability has been properly preserved, Omni would be entitled to a new
trial.
    There also remains to be considered the effect of our judgment upon
Omni's claim against COA under the South Carolina Unfair Trade Practices
Act.  The District Court granted judgment notwithstanding the verdict on
this claim as well as the Sherman Act claims; the Court of Appeals reversed
on the ground that "a finding of conspiracy to restrain competition is
tantamount to a finding" that the South Carolina law had been violated, 891
F. 2d, at 1143.  Given our reversal of the "conspiracy" holding, that
reasoning is no longer applicable.
    We leave these remaining questions for determination by the Court of
Appeals on remand.  The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with this opinion.
    It is so ordered.









------------------------------------------------------------------------------
1
    Section 1 provides in pertinent part: "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."  15 U. S. C. MDRV 1.
    Section 2 provides in pertinent part: "Every person who shall
monopolize, or attempt to monopolize, or combine or conspire with any other
person or persons, to monopolize any part of the trade or commerce among
the several States, or with foreign nations, shall be deemed guilty of a
felony."  15 U. S. C. MDRV 2.

2
    The monetary damages in this case were assessed entirely against COA,
the District Court having ruled that the city was immunized by the Local
Government Antitrust Act of 1984, 98 Stat. 2750, as amended, 15 U. S. C. 15
34-36, which exempts local governments from paying damages for violations
of the federal antitrust laws.  Although enacted in 1984, after the events
at issue in this case, the Act specifically provides that it may be applied
retroactively if "the defendant establishes and the court determines, in
light of all the circumstances . . . that it would be inequitable not to
apply this subsection to a pending case."  15 U. S. C. MDRV 35(b).  The
District Court determined that it would be, and the Court of Appeals
refused to disturb that judgment.  Respondent has not challenged that
determination in this Court, and we express no view on the matter.

3
    S. C. Code MDRV 5-23-10 (1976) ("Building and zoning regulations
authorized") provides that "[f]or the purpose of promoting health, safety,
morals or the general welfare of the community, the legislative body of
cities and incorporated towns may by ordinance regulate and restrict the
height, number of stories and size of buildings and other structures."
    S. C. Code MDRV 5-23-20 (1976) ("Division of municipality into
districts") provides that "[f]or any or all of such purposes the local
legislative body may divide the municipality into districts of such number,
shape and area as may be deemed best suited to carry out the purposes of
this article.  Within such districts it may regulate and restrict the
erection, construction, reconstruction, alteration, repair or use of
buildings, structures or land."
    S. C. Code MDRV 6-7-710 (1976) ("Grant of power for zoning") provides
that "[f]or the purposes of guiding development in accordance with existing
and future needs and in order to protect, promote and improve the public
health, safety, morals, convenience, order, appearance, prosperity, and
general welfare, the governing authorities of municipalities and counties
may, in accordance with the conditions and procedures specified in this
chapter, regulate the location, height, bulk, number of stories and size of
buildings and other structures. . . .  The regulations shall . . . be
designed to lessen congestion in the streets; to secure safety from fire,
panic, and other dangers, to promote the public health and the general
welfare, to provide adequate light and air; to prevent the overcrowding of
land; to avoid undue concentration of population; to protect scenic areas;
to facilitate the adequate provision of transportation, water, sewage,
schools, parks, and other public requirements."

4
    The dissent contends that, in order successfully to delegate its Parker
immunity to a municipality, a State must expressly authorize the
municipality to engage (1) in specifically "economic regulation," post, at
4, (2) of a specific industry, post at 7.  These dual specificities are
without support in our precedents, for the good reason that they defy
rational implementation.
    If, by authority to engage in specifically "economic" regulation, the
dissent means authority specifically to regulate competition, we squarely
rejected that in Hallie, as discussed in text.  Seemingly, however, the
dissent means only that the State authorization must specify that sort of
regulation whereunder "decisions about prices and output are not made by
individual firms, but rather by a public body."  Post, at 4.  But why is
not the restriction of billboards in a city a restriction on the "output"
of the local billboard industry?  It assuredly is -- and that is indeed the
very gravamen of Omni's complaint.  It seems to us that the dissent's
concession that "it is often difficult to differentiate economic regulation
from municipal regulation of health, safety, and welfare," post, at 9, is a
gross understatement.  Loose talk about a "regulated industry" may suffice
for what the dissent calls "antitrust parlance," post, at 4, but it is not
a definition upon which the criminal liability of public officials ought to
depend.
    Under the dissent's second requirement for a valid delegation of Parker
immunity -- that the authorization to regulate pertain to a specific
industry -- the problem with the South Carolina statute is that it used the
generic term "structures," instead of conferring its regulatory authority
industry-by-industry (presumably "billboards," "movie houses," "mobile
homes," "TV antennas," and every other conceivable object of zoning
regulation that can be the subject of a relevant "market" for purposes of
antitrust analysis).  To describe this is to refute it.  Our precedents not
only fail to suggest but positively reject such an approach.  "The
municipality need not `be able to point to a specific, detailed legislative
authorization' in order to assert a successful Parker defense to an
antitrust suit."  Hallie, 471 U. S., at 39 (quoting Lafayette, 435 U. S.,
at 415).

5
    The dissent is confident that a jury composed of citizens of the
vicinage will be able to tell the difference between "independent municipal
action and action taken for the sole purpose of carrying out an
anticompetitive agreement for the private party."  Post, at 12.  No doubt.
But those are merely the polar extremes, which like the geographic poles
will rarely be seen by jurors of the vicinage.  Ordinarily the allegation
will merely be (and the dissent says this is enough) that the municipal
action was not prompted "exclusively by a concern for the general public
interest," post, at 3 (emphasis added).  Thus, the real question is whether
a jury can tell the difference -- whether Solomon can tell the difference
-- between