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KANSAS v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 30, 1992

STATE OF KANSAS, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al. Defendants.

The opinion of the court was delivered by: JOHN H. PRATT

MEMORANDUM OPINION

 The case before the Court involves a constitutional challenge to a provision of the International Air Transportation Competition Act of 1979 ("International Competition Act"), P.L. 96-192, 94 Stat. 35, 48-49 (1980), that limits airline operations at Love Field, one of the Dallas-area airports. The provision, known as the Wright Amendment, restricts to Texas or its four contiguous states commercial passenger air traffic departing from or arriving at Love Field. All parties have filed motions for summary judgment. Because we find that the Wright Amendment is permissible economic regulation which does not violate either the Port Preference Clause or the First Amendment of the United States Constitution or the right to interstate travel, we grant defendants' and intervenors' motions for summary judgment and deny plaintiffs'.

 I. Background

 The Wright Amendment, named for its sponsor, Jim Wright, then majority leader of the House of Representatives, was added to the International Competition Act in order to resolve a long-standing dispute between the cities of Dallas and Fort Worth, Texas over the question concerning which of these two cities, closely related geographically, would have the regional airport. *fn1" Love Field is located 5 - 6 miles from Dallas, whereas Dallas-Fort International Airport ("DFW"), the newer regional airport, is approximately 18 miles from the center of Dallas. *fn2" The Wright Amendment, Section 29 of the International Competition Act, represents a legislative determination that DFW should be the long-haul, major airport in the area. The Wright Amendment prohibits any air carrier from offering interstate flights with aircraft carrying more than 56 people at Love Field unless (a) the service existed on November 1, 1979, or (b) the service is provided by a flight to or from a point inside Texas and the four states bordering on Texas (Louisiana, Arkansas, Oklahoma, and New Mexico) ("Love Field Service Area"). *fn3" Airlines may not operate flights or provide through service from Love Field to a point outside the Love Field Service Area, and may not allow passengers to interline on Love Field flights. *fn4" The Amendment states that airlines may not "offer for sale" transportation from Love Field to a point outside the Love Field Service Area. Department regulations prohibit an airline from advertising or volunteering information on service from Love Field to areas outside the Love Field Service Area, but do not prohibit an airline or travel agent from providing such information when a traveller asks for it. *fn5"

 The Wright Amendment has been challenged before and has survived. As recently as May 9, 1991, the Fifth Circuit ruled that the Amendment did not violate the Constitution in Cramer v. Skinner, 931 F.2d 1020 (5th Cir.), cert. denied, 116 L. Ed. 2d 242, 112 S. Ct. 298 (1991). *fn6" Additionally, this Circuit has previously upheld the validity of the Department of Transportation ("DOT") Order that implements the Amendment. *fn7" See Continental Air Lines, Inc. v. Department of Transportation, 843 F.2d 1444 (D.C. Cir. 1988).

 II. Standing To Sue

 Before reaching the merits, we consider defendants' argument that plaintiffs lack standing. Plaintiffs in this action include the State of Kansas; the Wichita Airport Authority; Central College, Inc. (a travel agency); and nine individuals. *fn8" Defendants include the United States of America; Samuel Skinner; the United States DOT; John V. Coleman; and the Office of Aviation Analysis. Additionally, Dallas-Fort Worth International Airport Board and American Airlines, Inc. have been permitted to intervene.

 When a court considers the issue of standing on a motion for summary judgment, the plaintiff must submit affidavits that indicate that a genuine issue of fact exists on this issue. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 110 S. Ct. 3177, 3184, 111 L. Ed. 2d 695 (1990). A party who invokes the court's authority must show that the party "personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979). The injury must be traceable to the challenged action and must be remediable by a favorable decision. Id. at 472. For the purposes of determining standing, we must assume the challenged conduct is unconstitutional or otherwise contrary to law. See Warth v. Seldin, 422 U.S. 490, 502, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); Cramer v. Skinner, 931 F.2d 1020, 1025 (5th Cir.), cert. denied, 116 L. Ed. 2d 242, 112 S. Ct. 298 (1991).

 Defendants challenge the standing of ten of the twelve plaintiffs to bring this case, but do not question the standing of the remaining two, Bebe Daniels and Bernie Dworkin. If either of these plaintiffs has standing to bring this case, even if all ten of the other plaintiffs lack standing, this Court still has jurisdiction to "entertain those common issues presented by all plaintiffs." General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 402 n. 22, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982). See also Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160, 70 L. Ed. 2d 309, 102 S. Ct. 205 (1981); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 n. 9, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). Accordingly, we now turn to whether or not Daniels and Dworkin have asserted an injury sufficient to support standing.

 Both Daniels and Dworkin have asserted three discrete injuries: 1) the deprivation of their First Amendment right to hear; 2) the deprivation of their fundamental right to travel; and 3) economic injury. Plaintiffs can establish standing if they can show a "substantial probability" that even one of their asserted injuries will be redressed by a favorable ruling. See Larson v. Valente, 456 U.S. 228, 243 n. 15, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982)

 Bebe Daniels is a 80-year old widow who resides in close proximity to Love Field. See Declaration of Bebe Daniels in support of Plaintiffs' Motion for Summary Judgment, or in the Alternative, for Partial Summary Adjudication ("Daniels Decl.") P 3. Daniels claims that on her annual visit to Chicago, she travels via Love Field on Southwest Airlines because it is the least expensive carrier serving Dallas and Chicago. She alleges that on visits in 1989 and 1990 she was forced to disembark in Tulsa, Oklahoma, retrieve and recheck her luggage, and wait for at least 45 minutes before she could continue on her trip, because of the limitations imposed by the Wright Amendment. She further claims that on one occasion when returning from Chicago, she had to disembark the aircraft in Tulsa, even though the plane was continuing to her destination in Love Field. She states that "Southwest's employees politely informed me that they were forbidden by the Wright Amendment from allowing me to board Flight 43, because I had just arrived on a flight (i.e., Flight 953) which had crossed the Restricted Borders." Daniels Decl. P 17. Consequently, she had to await the next flight to Love Field, which left one hour and five minutes later. Daniels Decl. P 19.

 Bernie Dworkin, a resident of Dallas who is a frequent traveler outside of the Love Field Service Area, alleges that he believes Southwest provides the most inexpensive fares and that because of the Wright Amendment he is forced to either pay more to use a carrier that operates out of DFW or face "detention" at an intermediate airport. Declaration of Bernie Dworkin in Support of plaintiffs' Motion for Summary Judgment, or in the Alternative, for Partial Summary Adjudication ("Dworkin Decl.") P 8.

 Both Daniels and Dworkin assert that they are dependent on airline personnel, travel agents, and printed media published by airlines in planning their trips and that the publication of single-sum fares and published schedules would help their travel planning. Daniels Decl. PP 21-22; Dworkin Decl. PP 14-15.

 A. First Amendment

 Plaintiffs assert that the Wright Amendment regulates the content of protected commercial speech and violates the right of individuals to receive such information. See Complaint P 86. Daniels and Dworkin are limited by the Wright Amendment from learning of the availability of double ticketed service whereby they could fly from Love Field to a point outside the Love Field Service Area. They are not permitted to be told the total cost of such a trip as a single sum. The Wright Amendment also prevents the airline guide publication of connecting flight schedules, thereby preventing those passengers who know of the possibility of double ticketing from expediently planning their trip.

 The abridgement of the First Amendment right to receive information is a judicially cognisable injury. See Virginia State Board of pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976). As the Fifth Circuit noted in Cramer v. Skinner, the plaintiffs are "affected by the Love Field amendment's restrictions whenever [they plan] a trip beyond the Love Field service area." Cramer, 931 F.2d at 1027. The Fifth Circuit found that this injury placed the First Amendment claim in a "concrete factual context" that was conducive to realistic judicial appraisal. Id. (quoting Valley Forge Christian College, 454 U.S. at 472.) We agree. Daniels and Dworkin have established that at the least they are hindered in their receipt of truthful information because of restrictions imposed by the Wright Amendment. Consequently, we find, as the Fifth Circuit did, that Dworkin and Daniels have alleged a sufficient injury to assert standing to litigate the First Amendment claim.

 Assuming for the purposes of this analysis that the Wright Amendment and the DOT regulations do violate the plaintiffs' First Amendment right to receive information, we now look to whether a favorable ruling would redress the injury.

 Southwest has indicated that in the absence of the statute it would advertise both the availability and the cost of service between Love Field and points beyond the Love Field Service Area. See Supplemental Statement of Material Facts as to Which Plaintiffs Contend There is No Genuine Issue ("Supplemental Facts")§ ac. Plaintiffs then would be able to comparison shop more easily, and would encounter greater flexibility in planning their travel. Thus, Dworkin's and Daniels' injuries are fairly traceable to the Wright Amendment. There is a substantial probability that a favorable decision would redress their injury.

 B. Right to Interstate Travel

 It has long been settled that the Constitution protects the right to travel interstate. See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901, 90 L. Ed. 2d 899, 106 S. Ct. 2317 (1986). Plaintiffs Dworkin and Daniels allege that they have suffered an injury in fact because they have been "detained" at intermediate airports as a result of the Wright Amendment's prohibition on travel from beyond the Love Field Service Area to Love Field. Their declarations allege specific trips where they were required to disembark in an intermediate airport, reclaim luggage, and wait more than 45 minutes before they were permitted to continue on their journey to Love Field, even though there was an earlier flight that they could have taken. Dworkin also alleges an injury insomuch as he was denied access to a flight open to all passengers other than those from Love Field. We find that this is a sufficient actual injury that is fairly traceable to the challenged amendment. If not for the Wright Amendment, Dworkin and Daniels would not have had to reclaim baggage or take a connecting service flight other than the most convenient.

 Further, there is reason to believe that plaintiffs' injuries would be redressed if they received a favorable decision. At the very least, plaintiffs would be allowed to check their luggage through to their final destination, and they would not be subject to any "detention" period at intermediate airports. Southwest has also indicated that it would likely institute same-plane through service between Love Field and Chicago if the Wright Amendment were struck down. *fn9"

 C. Economic Injury

 Similarly, the economic injuries which plaintiffs Dworkin and Daniels assert, while more intangible, are sufficiently concrete to provide standing. Daniels has asserted that the Wright Amendment prohibits discounted through fares, which has caused her financial harm. Dworkin claims that because of the wait between connecting flights he chose to fly to Phoenix from DFW instead of Love Field, and therefore that he had to pay a higher fare than he would have paid for double ticketed service from Love Field. Plaintiff had offered a deposition of Herbert Kelleher, the CEO of Southwest Airlines Co., who testified that it was substantially probable that if not for the Wright Amendment, Southwest would offer through fares, baggage checking, and nonstop service between Love Field and San Diego, Los Angeles, San Francisco, Phoenix and Las Vegas. Mr. Kelleher also testified that through fares were generally lower than the sum of Point to point fares. See Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Cross Motions for Summary Judgment ("Plaintiffs' Opposition") Ex. A. at 27-31.

 We conclude that Plaintiffs Daniels and Dworkin have standing because they have sufficiently shown that they have suffered injuries, that their injuries are fairly traceable to the challenged conduct, and that there is a substantial probability that they will be redressed by a favorable outcome. *fn10" Accordingly, we now turn to the merits of plaintiffs' challenge.

 III. Challenges to the Constitutionality of the Wright Amendment

 Plaintiffs bring several constitutional challenges to the Wright Amendment. Specifically, they allege that it violates the Port Preference Clause, the right to travel interstate, and the First Amendment. We consider each in turn.

 A. Port Preference Clause

 Plaintiffs contend that the Wright Amendment violates the Port Preference Clause by "establishing a direct preference for the ports of the Enumerated States over those of the Unenumerated States." Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Summary Judgment, or In the Alternative, for Partial Summary Adjudication ("Plaintiffs' Mem.") at 18.

 The Port Preference Clause provides:

 No Preference shall be given by any Regulation of Commerce or Revenue to Ports of One State over those of another: nor shall Vessels bound to, or from one State be obliged to enter, clear, or pay duties in another.

 U.S. Const. art. I, § 9, cl. 6. The Clause has been interpreted only rarely over the last two hundred years, but the limited existing jurisprudence indicates that it operates as a narrow exception to Congress' power to regulate commerce.

  Plaintiffs make an ambitious argument because we can find no case in which the Port Preference Clause has been used to strike down an act of Congress. Although the case law and legislative history offer some support for plaintiffs' argument that the Port Preference Clause prohibits precisely this type of statute -- one that discriminates on the basis of states qua states -- we believe that the Port Preference Clause has been rendered almost a historical nullity. As we find that the Wright Amendment was enacted incident to Congress well-established power to regulate air transportation, and as there is no evidence that any impermissible motive led to the adoption of the four state Love Field Service Area, we hold that the bright Amendment does not violate the Port Preference Clause of the United States Constitution. The following discussion is illuminating not only as to the history and origins of the Clause but also as to its treatment in the Courts.

 The Port Preference Clause was originally enacted to calm the fears of Maryland that Virginia would use its political clout to force ships bound for Maryland to stop and clear customs at Norfolk, Virginia, before entering the Chesapeake Bay. See City of Milwaukee v. Yeutter, 877 F.2d 540, 545 (7th Cir.), cert. denied, 493 U.S. 976, 107 L. Ed. 2d 503, 110 S. Ct. 500 (1989) (citing 2 The Records of the Federal Convention of 1787 at 417 (Max Farrand ed. rev. ed. 1966) ("Federal Convention Records")). Although the language adopted at the convention was weaker than some preferred, it is well established that the goal of the clause was to prevent the national government from explicitly privileging the port and related duty collection of certain states. *fn11" It was originally proposed with the Uniformity Clause, Art. I, § 8, cl. 1., and "reported out of a special committee as an interrelated limitation on the National Government's commerce power". United States v. Ptasynski, 462 U.S. 74, 80 n. 10, 76 L. Ed. 2d 427, 103 S. Ct. 2239, 52 A.F.T.R.2d (P-H) 6495 (1983) (citing 2 Federal Convention Records at 437). See also Knowlton v. Moore, 178 U.S. 41, 104, 44 L. Ed. 969, 20 S. Ct. 747, 3 A.F.T.R. (P-H) 2684 (1900) (two clauses had the same significance).

 In the two hundred-odd years since its adoption, the Port Preference Clause has been interpreted only rarely, and then, under its most narrow construction. Indeed, we must go back to the year 1856, almost a century and a half ago, to find the leading case on the Port Preference Clause. In Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856), Pennsylvania challenged the construction of a bridge over the Ohio River near Wheeling, West Virginia. Pennsylvania contended that the low height of the bridge discouraged river traffic from continuing up river to Pittsburgh and that Congress' explicit approval of the construction of the bridge thereby violated the Port Preference Clause. The Supreme Court found that the construction of the bridge did not violate the Port Preference Clause. The Supreme Court interpreted the clause narrowly, finding that it did not prohibit regulation that had disparate effects on various ports, but only those acts which directly discriminated against states:

 Indeed, the clause, in terms, seems to import a prohibition against some positive legislation by Congress to this effect, and not against any incidental advantages that might possibly result from the legislation of Congress upon other subjects connected with commerce, and confessedly within its powers. . . . The truth seems to be, that what is forbidden is, not discrimination between individual ports within the same or different states, but discrimination between states; and if so, in order to bring this case within the prohibition, it is necessary to show, not merely discrimination between Pittsburgh and Wheeling, but discrimination between the ports of Virginia and those of Pennsylvania.

 59 U.S. at 433-35. Later cases have supported this approach. As it has been interpreted, the Port Preference Clause does not bar statutes regulating commerce that incidentally operate to the prejudice of the ports in a neighboring state, but it forbids discrimination between states. See, e.g., Louisiana Public Service Commission v. Texas & New Orleans R.R., 284 U.S. 125, 131, 76 L. Ed. 201, 52 S. Ct. 74 (1931); Armour Packing Co. v. United States, 209 U.S. 56, 80, 52 L. Ed. 681, 28 S. Ct. 428 (1908); South Carolina v. Georgia, 93 U.S. 4, 13, 23 L. Ed. 782 (1876). Similarly, facially neutral statutes that disparately affect states do not violate the clause. See Alabama Great Southern R.R. v. United States, 340 U.S. 216, 229, 95 L. Ed. 225, 71 S. Ct. 264 (1951).

 This is not the first time that the Port Preference Clause has been used in an attempt to challenge airport perimeter rules. In City of Houston v. Federal Aviation Administration, 679 F.2d 1184 (5th Cir. 1982), the Fifth Circuit upheld a F.A.A. regulation that prohibited the use of National Airport for non-stop flights to cities that were more than 1,000 miles from Washington, D.C. After reviewing the Port Preference Clause jurisprudence, the Fifth Circuit distilled the parameters of the Port Preference Clause as it has been interpreted by the Supreme Court:

 Government actions do not violate the Clause even if they result in some detriment to the port of a state, where they occur (i) as an incident to some otherwise legitimate government act regulating commerce or (ii) more as a result of the accident of geography than from an intentional government preference.

 679 F.2d at 1197. The Fifth circuit upheld the 1,000 mile perimeter rule for Washington National Airport, noting that the rule was facially neutral, and that it did not discriminate against any particular state. Id. at 1198.

 In Cramer v. Skinner, 931 F.2d 1020 (5th Cir.), cert. denied, 116 L. Ed. 2d 242, 112 S. Ct. 298 (1991), the Fifth circuit relied on the prior City of Houston and found that the Wright Amendment satisfied both prongs of the test. The Circuit held that the Wright Amendment was enacted incident to Congress' regulation of interstate airline service and "pursuant to its rational decision to maintain the agreement between Dallas and Fort Worth," 931 F.2d at 1032, and that the four states preferred by the Amendment were preferred as an accident of geography rather than as the result of an intentional government preference. Id.

 Cramer has not demonstrated that Congress deliberately discriminated against the 45 states not bordering on Texas by reguiring travelers from such states to use DFW if they wish to travel to Dallas-Fort Worth on a nonstop or "through" ticket.

 931 F.2d at 1032 n. 14.

 The Wright Amendment was enacted pursuant to the government's power to regulate air transportation and to resolve a long-standing dispute that had impeded the development of the region's air resources. It does not require that all flights from Kansas to Texas first stop in one of the four contiguous states; it only conditions those heading to or leaving from Love Field. Nothing is stopping flights from Kansas from flying directly to DFW, only a few miles from Love Field. *fn12"

 Finally, while the choice of the surrounding states as the Love Field Service Area rather than a straight distance perimeter rule may be a less desirable alternative, it is not unconstitutional. As other courts have noted, any perimeter rule is by its nature somewhat arbitrary. *fn13" There is no evidence that Congress chose these four states with any evil motive, or for any reason other than they were the closest ones. The use of political boundaries in lieu of geographical ones does not, without more, turn an otherwise permissible "accident of geography" into an impermissible use of state power. This would be elevating form over substance.

 As an initial proposition, plaintiffs make a compelling argument that the Port Preference Clause, as it was enacted, was designed to prevent this type of legislation. However, it has not so been interpreted by the courts of this land. In the end, we are forced to agree with Justice Holmes who said: "Upon this point a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 65 L. Ed. 963, 41 S. Ct. 506, 3 A.F.T.R. (P-H) 3110 (1921). We hold that the Wright Amendment does not violate the Port Preference Clause of the Constitution.

 B. Right to Travel Interstate

 Plaintiffs also argue that the Wright Amendment violates the right to travel interstate by creating an impermissible classification based upon the exercise of a fundamental right. See Plaintiffs' Mem. at 29-30. We do not accept this contention. Instead, we hold that the Wright Amendment is not an unconstitutional violation of the right to interstate travel because it is a minor restriction, and furthers legitimate governmental goals.

 ""Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution."" *fn14" Although the textual support for this right has been located in various provisions of the Constitution, *fn15" "whatever its origin, the right to migrate is firmly established and has been repeatedly recognized. . . " . Attorney General of New York v. Soto-Lopes, 476 U.S. 898, 903, 90 L. Ed. 2d 899, 106 S. Ct. 2317 (1986) (plurality opinion).

 Where the fundamental right to travel is implicated, a statute can be upheld only if it is supported by a showing of compelling interest on the part of the government. See 476 U.S. at 904. However, not every restriction on travel operates to implicate the fundamental right. See id. at 903 (state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right); Jones v. Helms, 452 U.S. 412, 423, 69 L. Ed. 2d 118, 101 S. Ct. 2434 (1981). *fn16" The relevant question is not only the extent of the governmental restriction involved, but also the necessity for the restriction. See Zemel v. Rusk, 381 U.S. 1, 14, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965).

 The Wright Amendment operates only as an inconsequential impediment to the right to travel and does not implicate the fundamental right. The Wright Amendment does not prohibit interstate travel, it merely makes it slightly more of a hindrance for those travelers who insist on using Love Field. As the Fifth Circuit noted in Cramer, "The Love Field Amendment does not bar travelers from distant cities from using Love Field. Rather, just as the perimeter rule at issue in City of Houston, it makes travel less convenient for such passengers. Love Field remains attractive for many long-distance travelers, . . . despite the statutory restrictions" 931 F.2d at 1030. There is no constitutional right to the most convenient form of transportation. *fn17" No one is prevented from travelling to any state in the Union by the Wright Amendment; they are merely restricted from Using one airport to do so. *fn18" Nor is anybody completely prevented from using Love Field to travel beyond the Love Field Service Area: the Wright Amendment merely delays their departure for a short period. "Not all waiting periods are impermissible." *fn19" If anyone wants to fly into Texas they can do so; if they insist on flying into Love Field, they can also do so, but with some restrictions. The Wright Amendment merely makes some travel less convenient for some residents, but it does not prevent them from exercising their right to travel interstate. *fn20"

 Further, Congress imposed the Wright Amendment for rational reasons: to legislatively support a dispute resolution reached by the two cities. The perimeter rule reinforced the development of DFW into the leading airport in the area, and indeed one could argue (as defendants do) that the Wright Amendment was designed to facilitate interstate travel.

 Consequently, we find that the Wright Amendment does not impermissibly infringe on the right to interstate travel. *fn21"

  C. First Amendment

 Plaintiffs' final claim is that the Wright Amendment impermissibly abridges the First Amendment by limiting protected commercial speech. This claim was also asserted to support plaintiffs' assertion of their standing to sue. Commercial speech is that speech which proposes a commercial transaction. See Board of Trustees v. Fox, 492 U.S. 469, 473-74, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (1986). There is no doubt that the speech at issue here, the advertising of flights available from Love Field, proposes a commercial transaction and is commercial speech.

 To analyze the lawfulness of restrictions on commercial speech, the Supreme Court has indicated that the proper approach is first to

 'determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.'

 Board of Trustees, 492 U.S. at 475 (quoting Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980)). As no party has alleged that the speech at issue here does not concern lawful activity or is misleading, we will assume that the speech at issue is protected by the First Amendment.

 We next turn to whether the asserted governmental interest is substantial and whether the regulation is broader than is necessary to serve that interest. The defendants assert that the government's interest was to resolve the differences between Dallas and Fort Worth in developing a regional airport. See also H.R. Conf. Rep. No. 716, 96th Cong., 1st Sess. 24-26 (1979) ("Perhaps the most important point about section 29 is that it provides a fair and equitable settlement for a dispute that has raged in the Dallas/Fort Worth area for many years"). This is a substantial governmental interest. It is beyond question that Congress has the power to regulate air transportation in this country, and the development of airports falls squarely within that ambit. The Wright Amendment serves to finally resolve a dispute that had prevented the region from developing its resources.

 The Wright Amendment directly advances the interest asserted by reducing demand for air travel from Love Field. Lack of advertising will lead to a lack of consumer awareness, and while it is not a particularly attractive government goal to keep consumers in the dark, a ban on advertising available services will further the interest in promoting DFW to the exclusion of Love Field. See Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 342, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (1986) (prohibiting casino advertising would further government's interest in reducing demand); Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 569, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980) ("There is an immediate connection between advertising and demand for electricity.") Nor is the statute more extensive than necessary to serve the interest. It does not prohibit the knowledgeable consumer from receiving the information she seeks upon request.

 The restriction on speech does not have to be the least restrictive available. Instead, there must be a "'fit' between the legislature's ends and the means chosen to accomplish those ends. Board of Trustees, 492 U.S. at 480 (quoting Posadas, 478 U.S. at 341). There is clearly such a fit here as the advertising restrictions will lead more people to fly through DFW than would be the case if they knew service was available through Love Field.

 Accordingly, we find that the Wright Amendment's restrictions on commercial speech do not impermissibly abridge the First Amendment.

 In conclusion, we join the Fifth Circuit to find that the Wright Amendment does not violate the Constitution. We therefore grant defendants' and intervenors' motions for summary judgment and deny plaintiffs' motion. An Order consistent with the foregoing is filed this day.

 JOHN H. PRATT

 United States District Judge

 Date: 30 June 1992

 ORDER - June 30, 1992, Filed

 In accordance with tile Memorandum Opinion filed this day, it is, by the Court, this 30th day of June, 1992, hereby

 ORDERED that Plaintiffs' Motion for Summary Judgment, or in the alternative, for Partial Summary Adjudication, is denied; and it is

 ORDERED that Defendants' and Intervenors' Motions for Summary Judgment are granted; and it is

 FURTHER ORDERED that this case is dismissed with prejudice.

 JOHN H. PRATT

 United States District Judge


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