North American Van Lines, Inc. v. I. C. C.

Citation666 F.2d 1087
Decision Date09 December 1981
Docket Number81-1726,Nos. 81-1724,s. 81-1724
PartiesNORTH AMERICAN VAN LINES, INC., Allied Van Lines, Inc., American Movers Conference, Inc., Aero Mayflower Transit Co., Inc., Atlas Van Lines, Inc., and United Van Lines, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. AMERICAN RED BALL TRANSIT CO. and Household Goods Carriers Bureau, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America and Consumers Union of United States, Inc., Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

David L. Schiavone, Chicago, Ill., for petitioners.

Roger K. Davis, Consumers Union of U. S., Inc., H. Glenn Scammel, I. C. C., Washington, D. C., for respondents.

Before PELL and CUDAHY, Circuit Judges, and DUMBAULD, * Senior District Judge.

DUMBAULD, Senior District Judge.

"Deregulation" is the current "buzzword" with respect to all forms of transportation. Beginning under the Jimmy Carter administration with the Airline Deregulation Act of October 24, 1978, 92 Stat. 1705, 49 U.S.C. § 1301 et seq. whose title describes it as an Act "to encourage, develop, and attain an air transportation system which relies on competitive market forces to determine the quality, variety, and price of air services," 1 the increased reliance on what President Ronald Reagan has called "the magic of the market place" was extended to motor carriers by the Act of July 1, 1980, 94 Stat. 793, 49 U.S.C. § 10101, and to railroads by the Act of October 14, 1980, 94 Stat. 1895, 49 U.S.C. § 10101 (known from the name of its House sponsor, as the "Staggers Rail Act of 1980"). Likewise, one day later, the Household Goods Transportation Act of October 15, 1980, 94 Stat. 2011, 49 U.S.C. § 10101 note, with which we are concerned in the case at bar, was enacted.

Historians might philosophize that excessive reliance upon market forces may prove shortsighted and resurrect some of the ancient evils which led to the enactment in 1887 of the Interstate Commerce Act in the first place. Was it not the uninhibited operation of marketplace forces which enabled John D. Rockefeller's Standard Oil Company to obtain from railroads a rebate, not only upon its own traffic, but also upon that of its competitors? Be that as it may, it is for the courts and the Interstate Commerce Commission to carry out with fidelity the policies and provisions of legislation as formulated by the Congress.

Section 2(a) of the Household Goods Transportation Act contains the following declaration of policy:

The Congress hereby finds-

(1) that a safe, stable, and financially sound system of transportation of household goods by motor common carriers is vital to the maintenance of a strong national economy and strong national defense;

(2) that the best means of assuring such a system is through competition and reduced regulation;

(3) that maximum flexibility on the part of the carriers in the pricing of their services best serves the shippers of household goods and allows a variety of quality and price options to meet market demands; and

(4) that the interest of individual shippers can be best protected by allowing carriers of household goods maximum flexibility in serving the needs of their shippers, by providing accurate and complete information concerning carriers' performance and individual shippers' rights and remedies, by reducing the amount of unnecessary regulations, and by strengthening remedies for violations of those regulations that are necessary for protection of individual shippers.

Various specific new rules were included in the Act in response to historically experienced abuses and complaints frequently put forward by shippers. 49 U.S.C. 10734 authorized non-preferential, non-predatory rates for transportation based upon a binding estimate. Guaranteed pick-up and delivery time is also authorized (provided the carrier makes available a (lower) rate without such guaranteed service).

These innovations were inspired by the proverbially prevalent practice of issuing low estimates and then upon delivery exacting from the shipper charges based upon higher actual weights. Complaints about failure to meet pick-up and delivery promises were also rampant in the industry.

49 U.S.C. § 11711 provides for establishment of dispute settlement procedures for disputes between carriers and shippers. 49 U.S.C. § 11917 makes willful use of fraudulent weights ("weight-bumping") a crime.

49 U.S.C. § 11110 authorizes issuance of regulations by the Commission:

(a)(1) The regulations and paperwork required of motor common carriers providing transportation of household goods ... shall be minimized to the maximum extent feasible consistent with the protection of individual shippers.

(2) The Interstate Commerce Commission may issue regulations, including regulations protecting individual shippers, in order to carry out this subtitle with respect to the transportation of household goods by motor common carrier.

(3) Regulations of the Commission protecting individual shippers shall include, where appropriate, reasonable performance standards for the transportation of household goods.... In establishing performance standards under this paragraph, the Commission shall take into account at least the following:

(A) the level of performance that can be achieved by a well managed motor common carrier transporting household goods;

(B) the degree of harm to individual shippers which could result from a violation of the regulation;

(C) the need to set the level of performance at a level sufficient to deter abuses which result in harm to consumers and violations of regulations;

(D) service requirements of the carriers (E) the cost of compliance in relation to the consumer benefits to be achieved from such compliance; and

(F) the need to set the level of performance at a level designed to encourage carriers to offer service responsive to shipper needs.

(4) Nothing in this section shall be construed to limit the Commission's authority to require reports from motor common carriers providing transportation of household goods or to require such carriers to provide specified information to consumers concerning their past performance.

(b)(1) Every motor common carrier providing transportation of household goods ... may, upon request of a prospective shipper, provide the shipper with an estimate of charges for transportation of household goods and for the proposed services. The Commission shall not prescribe specific formulas, forms, methods, or techniques for providing a prospective shipper with such an estimate. The Commission shall not prohibit any such carrier from charging a prospective shipper for providing a written, binding estimate for the transportation and proposed services, nor shall the Commission require the final charges to a shipper to be based on an estimate.

(2) Any charge for an estimate of charges provided by a motor common carrier to a shipper for transportation of household goods ... shall be subject to the antitrust laws ...

(c) The Commission shall issue regulations that provide motor carriers providing transportation of household goods ... with the maximum possible flexibility in weighing shipments, consistent with assurance to the shipper of accurate weighing practices. The Commission shall not prohibit such carriers from backweighing shipments or from basing their charges on the reweigh weights if the shipper observes both the tare and gross weighings (or, prior to such weighings, waives in writing the opportunity to observe such weighings) and such weighings are performed on the same scale.

In response to this mandate, the Commission promptly on October 16, 1980, issued a notice of proposed rulemaking (amended October 27, 1980) accompanied by a draft of proposed revised operational regulations. 45 days were allowed for comments, and comments were filed by over 100 individuals and organizations, including petitioners, the Department of Transportation (DOT), the GSA, the U.S. Office of Consumer Affairs, and the Consumers Union of United States, Inc. Making some modifications in response to comments received, the Commission on March 11, 1981, issued its final operational rules. At the same time it invited comments on a draft of certain proposed performance standards.

Petitioners invoked the jurisdiction of this Court under 28 U.S.C. §§ 2321(a), 2342(5), and 2349, on May 7, 1981, alleging that the regulations adopted by the Commission violate the Act pursuant to which they were issued. The effective date of the regulations has been stayed by orders of this Court pending consideration of the case.

Petitioners begin their attack on the regulations with the rhetorical objection that they increase paperwork, rather than reducing it in accordance with 49 U.S.C. § 11110(a)(1), quoted supra.

This is a rather subjective type of requirement, expressing, as Judge Learned Hand might say, "a mood rather than a command" (Reeves v. Anderson, 43 F.2d 679, 682 (C.C.A. 2, 1930) ), and a reviewing court could not appropriately invalidate a corpus of regulations on this ground in the absence of a flagrant showing of bad faith on the part of the agency involved. No such showing has been offered here. Indeed, at argument counsel were unable to indicate in quantitative terms either the comparative verbosity of the new and old regulations or the comparative amounts of paperwork necessitated by compliance therewith. 2 The Commission in its October 27, 1980, notice professed its intention to adopt new regulations "in conformity with the Household Goods Transportation Act of 1980" and its purpose "to reduce the paperwork burden" on carriers, and "to eliminate regulation to the maximum extent feasible." Under the circumstances, we cannot conclude that the new regulations are invalid by reason of verbosity, especially when 49 U.S.C. § 11110(a)(1) itself requires minimization of...

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