Household Goods Forwarders Tariff Bureau v. I.C.C.

• Citation: 968 F.2d 81
• Decision Date: 30 June 1992
• Docket Number: No. 91-1350,91-1350
• Parties: , 1992-1 Trade Cases P 69,883 HOUSEHOLD GOODS FORWARDERS TARIFF BUREAU, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 81

968 F.2d 81

296 U.S.App.D.C. 345, 1992-1 Trade Cases P 69,883

HOUSEHOLD GOODS FORWARDERS TARIFF BUREAU, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America,

Respondents.

No. 91-1350.

United States Court of Appeals, District of Columbia Circuit.

Argued April 23, 1992.

Decided June 30, 1992.

Alan F. Wohlstetter, with whom Stanley I. Goldman was on the brief, for petitioner.

Michael L. Martin, Atty., I.C.C., with whom James F. Rill, Asst. Atty. Gen., Robert B. Nicholson, John P. Fonte, and John C. Filippini, Attys., Dept. of Justice, and Robert S. Burk, General Counsel and Craig M. Keats, Associate General Counsel, I.C.C., were on the brief, for respondents. Ellen D. Hanson, Atty., I.C.C., also entered an appearance, for respondents.

Before RUTH BADER GINSBURG, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The Household Goods Forwarders Tariff Bureau (HGFTB) appeals the decision of the Interstate Commerce Commission (ICC or Commission) to revoke its antitrust immunity. Because the Commission applied the correct standard in evaluating the need for an antitrust exemption and because the Commission adequately articulated its reasons for revoking the immunity, we deny HGFTB's petition for review.

I.

The Household Goods Forwarders Tariff Bureau (HGFTB) is a rate bureau for household goods freight forwarders. A domestic freight forwarder is a common carrier that assembles and consolidates smaller shipments at origin, sorts them for delivery at destination and arranges for a motor or rail carrier to perform the line-haul transportation between the assembly and distribution points. 49 U.S.C. § 10102(9). The forwarder "assumes responsibility for the transportation from the place of receipt to the place of destination." Id. This case concerns "household goods" (HHG) freight forwarders. HHG freight forwarders handle used household goods, unaccompanied baggage and used automobiles. Id. § 10102(12).

As common carriers subject to the ICC's jurisdiction, HHG freight forwarders must file tariffs with the ICC setting forth their rates and charges. During the nineteen year period preceding the Commission action leading to this appeal, i.e. from 1972-1991, the rates for HHG freight forwarders were set collectively by HGFTB. HGFTB was exempted from the antitrust laws for this purpose. See Household Goods Forwarders Tariff Bureau-Agreement, Section 5a Application No. 106 (ICC Apr. 25, 1972) (1972 Decision ).

Another transporter is the "household goods motor carrier." An HHG motor carrier transports HHGs from place to place. HHG motor carriers have their own authorized rate bureau, the Household Goods Carriers' Bureau (HGCB), which collectively sets rates. HHG freight forwarders, in conducting their business, utilize the services of HHG motor carriers. The cost of motor carrier service is a major component of HHG forwarder rates. See Household Goods Forwarders Tariff Bureau, Section 5a Application No. 106 at 6 (ICC June 5, 1991) (1991 Decision ).

The controversy in this case involves the legislative and regulatory history of common carrier antitrust exemptions. In the 1940s, Congress passed the Reed-Bulwinkle Act, Pub.L. No. 80-662, 62 Stat. 472 (1948) (current version at 49 U.S.C. § 10706), which gave the ICC the authority to grant antitrust immunity to common carriers' collective ratemaking to the extent the Commission determined such arrangements to be in the public interest. According to the Act, in order to receive antitrust immunity, a group of carriers must submit its collective ratemaking agreement to the Commission for approval and must demonstrate that the agreement will further the national transportation policy (NTP). ¹ 49 U.S.C. § 10706(a)(2)(A).

As part of its deregulation trend, however, Congress has directly limited the ability of many types of carriers to engage in collective conduct. See generally Central & S. Motor Freight Tariff Ass'n v. United States, 757 F.2d 301, 309-12 (D.C.Cir.), cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985). The Motor Carrier Act of 1980, Pub.L. No. 96-296, 94 Stat. 793 (codified in scattered sections of 49 U.S.C.) (MCA 80), limited the degree to which HHG motor carriers could engage in collective ratemaking. Under the MCA 80, HHG motor carriers may no longer engage in most activities involving collective ratemaking for single-line transportation. ² See 49 U.S.C. § 10706(b)(3)(D). Pertinent exceptions to this prohibition allow the HGCB to consider general rate increases and decreases as well as changes in commodity classifications and tariff structures. See id. § 10706(b)(3)(D)(i)-(iv). In addition, the legislation includes a presumption that any motor carrier rate bureau agreement falling within these exceptions will be granted antitrust immunity, unless the Commission finds that the agreement is inconsistent with the NTP. Id. § 10706(b)(2).

At the request of the freight forwarder industry, Congress passed the Surface Freight Forwarder Deregulation Act of 1986 (SFFDA), Pub.L. No. 99-521, 100 Stat. 2993 (codified in scattered sections of 49 U.S.C.), which withdrew antitrust immunity for freight forwarders of general commodities. However, Congress acceded to the request of the HHG freight forwarders that their antitrust immunity remain intact. Because the antitrust immunity for HHG freight forwarders was unaltered by the 1986 legislation, they remain subject to the original prerequisite that they demonstrate that their agreements will further the NTP before they can receive antitrust immunity. See 49 U.S.C. § 10706(c).

Meanwhile, in January 1978, the Commission issued a decision reopening all previously approved non-rail collective ratemaking agreements to reevaluate whether those agreements continued to merit antitrust exemption. Reopening of Section 5a Application Proceedings to Take Additional Evidence, Ex Parte No. 297 (Sub-No. 4) (ICC Jan. 26, 1978) (Reopening Decision ). Twelve years later, ³ after reviewing the application submitted by the HHG freight forwarders in response to the Reopening Decision, the Commission issued a decision calling into question the HHG forwarders' antitrust immunity. Household Goods Forwarders Tariff Bureau, Section 5a Application No. 106 (ICC Nov. 28, 1989) (1989 Decision ). In conformance with a three-part test set forth in the Reopening Decision, the 1989 Decision directed HGFTB to establish (1) that its agreements would further the NTP and (2) that either (a) its agreements would not have anticompetitive effects, or (b) if anti-competitive effects were found, the benefits to the public interest would outweigh those effects. Id. at 2; Reopening Decision at 3. The Commission proposed to apply the test using the standards it applied to HGCB agreements under MCA 80. The Commission explained:

Thus, in addition to the provisions of 49 U.S.C. 10706(b)(3)(D), generally prohibiting the voting on and discussion of single-line rates, we propose to examine the agreement with a view to, for example, protecting the right of independent action and guaranteeing that meetings and procedures be open and fair (see 49 U.S.C. 10706(b)(3)(B)(ii) and 49 U.S.C. 10706(b)(3)(B)(iv)-(vii)).

1989 Decision at 2-3. Although the Commission acknowledged that it was not required by statute to apply the additional standards to HHG forwarders, the Commission expressed the belief that because "freight forwarders exhibit many characteristics of motor carriers, ... the goals of the NTP, particularly those favoring increased competition, support application of comparable conditions and prohibitions." Id. at 2.

HGFTB, in response, emphasized that it did not seek the blanket antitrust immunity conferred in 1972. Rather, the Bureau simply sought immunity for the same types of collective activity engaged in, with MCA 80 permission, by the HHG motor carriers. ⁴ 1991 Decision at 3-4. HGFTB claimed that this protection was necessary to enable HHG freight forwarders to compete on a fair basis with HHG motor carriers. ⁵ Id. HGFTB also claimed that allowing it to retain its antitrust immunity would further the NTP. Id. at 4.

In a 3-2 decision, the ICC concluded that HGFTB failed to meet its burden of establishing that its agreement would further the goals of the NTP. Id. at 6-7. The Commission therefore revoked the Bureau's antitrust immunity. Id. at 7. The Commission found that HGFTB had not provided concrete evidence as to why its members required collective action to remain competitive, had failed to show that its collective activities would not be anticompetitive and had not demonstrated that the anticompetitive aspects of its collective activities would be outweighed by public benefits. Id. at 6-7. In arriving at its conclusions, the Commission relied on comments submitted by the Department of Defense (DOD) describing DOD's experience employing HHG freight forwarders unaffiliated with the Tariff Bureau. The Commission reasoned that DOD's experience showed that HHG freight forwarders can thrive without antitrust immunity. Id. at 6.

II.

HGFTB claims that the Commission's decision to revoke its antitrust immunity was arbitrary and capricious in several respects. The Bureau first claims that because the Commission had previously granted it immunity and because the law has not changed since that time, there was no basis for the Commission's reversal. It is undisputed that although the codification of the relevant statutes has changed over time, the substantive law concerning antitrust exemptions for HHG freight forwarders has not changed since HGFTB's antitrust exemption was granted twenty years ago. The unchanged nature of the law, however, does not prohibit the Commission from reexamining whether an antitrust exemption continues to be justified. An agency may change its position as long as it provides a reasoned basis...