OKLAHOMA SPORTS PROPERTIES v. SCHOOL DISTRICT #11

OKLAHOMA SPORTS PROPERTIES v. SCHOOL DISTRICT #11
1998 OK CIV APP 40
957 P.2d 137
69 OBJ 1516
Case Number: 88408
Decided: 03/13/1998
Mandate Issued: 04/17/1998

OKLAHOMA SPORTS PROPERTIES, INC., Plaintiff/Appellant,
vs.
INDEPENDENT SCHOOL DISTRICT #11 OF TULSA COUNTY, OKLAHOMA, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA
HONORABLE JEFFERSON SELLERS, JUDGE
AFFIRMED

Leslie A. Ellis Kissinger, Claremore, Oklahoma, For Appellant,
J. Douglas Mann, Jerry A. Richardson, Rosenstein, Fist & Ringold, Tulsa, Oklahoma, For Appellee.

LARRY E. JOPLIN, Judge

¶2 OSPI sought to broadcast a live, play-by-play radio account of the football game between Muskogee High School and Owasso High School to be played October 4, 1996 at the Owasso High School stadium. Sometime prior to game day, ISD demanded payment of a $200 broadcast rights fee for the right to broadcast the game. OSPI then commenced the instant action, seeking to enjoin and restrain ISD from the levy and collection of the broadcast rights fee. At hearing on October 1, ISD presented evidence to the effect that the rules of the Frontier Conference of which Owasso High School was a member permitted the levy and collection of a $200 broadcast rights fee for the right to broadcast a game by radio, and argued that ISD possessed the implied authority under Oklahoma law to assess and collect such a fee. OSPI

¶3 Upon consideration of the evidence and argument of the parties, the trial court denied OSPI's requested injunctive relief, holding that the collection of a broadcast rights fee to be within the implied powers of ISD, not violative of constitutional guarantees. OSPI then paid the broadcast rights fee "under protest," and initiated the present appeal.

¶4 OSPI first challenges ISD's legal authority to assess and collect a broadcast rights fee. In this particular, Oklahoma statutes grant the various independent school districts of this state various powers to acquire, build, maintain and control property (including gymnasiums, stadiums and playgrounds) of the district, as well as the power to promulgate rules therefor.

The school board has and can exercise those powers that are granted in express words; those fairly implied in or necessarily incidental to the powers expressly granted, and those essential to the declared objects and purposes of the corporation.

Board of Education of Oklahoma City v. Cloudman

¶5 OSPI next asserts the imposition of a broadcast rights fee infringes upon the rights guaranteed under the First and Fourteenth Amendment to the United States Constitution, arguing that the charging of fees to broadcast news gatherers, such as OSPI, without commensurate charging of fees to other news gatherers, such as the print media, unfairly and impermissibly differentiates between the types of news gatherers in general, contrary to constitutional protections. See, e.g., Oklahoma Broadcasters Association v. Oklahoma Tax Commission, 1990 OK 30, 789 P.2d 1312 ("'[D]ifferential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to supression of expression, and such a goal is presumptively unconstitutional.") However, we find Oklahoma Broadcasters Association distinguishable as proscribing only the different governmental tax treatment of various members of the press without valid reason therefor. In the present case, we are presented with no differentiated governmental tax treatment of the various news media. Rather, we are presented with the independent school district, acting in a proprietary, not governmental, matter, over which the constitution does not proscribe different treatment of the various news media. See, Post Newsweek Stations-Connecticut, Inc. v. Travelers Insurance Co., 510 F. Supp. 81 (D.C. Conn. 1981); KTSP-Taft Television and Radio v. Arizona State Lottery Comm'n., 646 F. Supp. 300 (D.C. Ariz. 1986), appeal dismissed, 827 F.2d 772 (9th Cir. 1987). We therefore find no constitutional infringement as alleged.

¶6 "The rules governing appellate review in regard to injunctive relief are well

JONES, V.C.J., concurs;

 GARRETT, J., (concurs in result)

¶1 I concur with this decision, except for the reference to "proprietary not govermental" matter. In my view this has no probative value in this case.