Regular Common Carrier Conference v. U.S., s. 85-1146

Decision Date24 June 1986
Docket NumberNos. 85-1146,85-1147 and 85-1265,s. 85-1146
PartiesREGULAR COMMON CARRIER CONFERENCE, et al., Petitioners v. UNITED STATES of America and Interstate Commerce Commission, Respondents. REGULAR COMMON CARRIER CONFERENCE, et al., Petitioners v. UNITED STATES of America and Interstate Commerce Commission, Respondents. AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner v. UNITED STATES of America and Interstate Commerce Commission, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petitions for Review of Orders of the Interstate Commerce commission.

Kevin M. Williams, Arlington, Va., for Regular Common Carrier Conference, with whom Bryce Rea, Jr., Donald E. Cross and Leo C. Franey, Washington, D.C., for Central & Southern Motor Freight Tariff Associations, Inc., et al., John W. McFadden, Jr., and Elliott Bunce, Arlington, Va., for Eastern Central Motor Carriers Ass'n, Inc., and William S. Busker, Daniel R. Barney and Kenneth E. Siegel, Alexandria, Va., for American Trucking Associations, Inc., were on brief, for petitioners in Nos. 85-1146, 85-1147 and 85-1265.

Timm L. Abendroth, Atty., I.C.C., with whom Robert S. Burk, Gen. Counsel, and John J. McCarthy, Jr., Deputy Associate Gen. Counsel, I.C.C., Washington, D.C., were on brief, for respondents in Nos. 85-1146, 85-1147 and 85-1265. Robert B. Nicholson and Robert J. Wiggers, Attys., U.S. Dept. of Justice, Washington, D.C., also entered appearances for respondent United States.

Before GINSBURG, SCALIA and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

The Regular Common Carrier Conference and other motor carrier trade associations seek review of two unpublished decisions of the Interstate Commerce Commission. They contend that the ICC acted without statutory authority in approving a tariff rule under which certain freight forwarders may agree to provide services to shippers at unpublished rates determined by averaging prior charges to those shippers.

I

A "freight forwarder" is a transportation broker who assembles and consolidates numerous small shipments into one large load, arranges for long-haul transportation of the consolidated shipment, breaks the consolidated load into small individual shipments, and delivers those packages to the ultimate consignees. As carriers over which the ICC has jurisdiction, see 49 U.S.C.A. Sec. 10561(a) (West Supp.1986), freight forwarders are subject to the rate regulation of the Interstate Commerce Act, 49 U.S.C.A. Secs. 10701-10786. The Act contains, however, provision for ICC waiver of some of the rate regulation requirements. See 49 U.S.C.A. Sec. 10762(d)(1).

Application for such a waiver was filed with the Commission on February 28, 1984, by the Freight Forwarders Tariff Bureau, Inc. ("FFTB"), an organization of freight forwarders that acts as the tariff publishing agent for its members under a collective ratemaking agreement. FFTB sought Commission permission to publish the following rule in Tariff ICC FFT 116, a "governing rules tariff" which applies to most service offered by FFTB members:

1. To simplify rating and audit, Forwarder may, upon customer's request, provide an average rate based on the average characteristic rating and mileage of freight tendered by the customer. Such average rate will be used for all future rating and shall be updated as freight characteristic rating and mileage change.

2. Average rates will expire in 14 days if not accepted by the customer.

Because the rule does not provide that the "average rate" offered to the shipper will be published in any tariff, FFTB sought special permission to depart from, inter alia, 49 U.S.C.A. Sec. 10762(a)(2) & (c)(3) and 49 C.F.R. Sec. 1300.4(i) (1983).

On April 17, 1984, certain of the petitioners before us (who represent carriers that compete directly with FFTB members) filed a protest against the proposed rule, arguing that it violated several provisions of the Act that are not subject to waiver by the Commission. In its reply, FFTB agreed with most of the protest and conceded that the rule was "illegal," but argued that the Commission should nevertheless approve the application because a freight forwarder in competition with FFTB members had earlier published the same rule without seeking ICC approval and the agency had failed to act against it. The ICC (with Chairman Taylor and one other member dissenting) approved FFTB's special permission application. See Special Tariff Authority No. 84-04859--Average Rates, Application No. 3638 (decided Dec. 14, 1984). Shortly thereafter, FFTB filed the new rule with the Commission in Tariff ICC FFT 116. The Commission, by the same vote, accepted the tariff over the renewed protests of petitioners. See Freight Forwarder Tariff Bureau, Inc.--Average Rates, No. 39928 (decided Mar. 6, 1985). Petitioners now seek review under 28 U.S.C. Sec. 2342(5) (1982).

II

We dismiss at the outset the Commission's claims that the actions under review are not final, that the controversy is not yet ripe for judicial resolution, and that petitioners lack standing to bring this challenge. As to finality: In approving the FFTB's special permission application and in approving the tariff containing the rule, the Commission has twice rejected petitioners' arguments on the merits. Thus, this case is quite different from Papago Tribal Utility Authority v. FERC, 628 F.2d 235 (D.C.Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980), and similar cases in which agencies accepted tariff filings for the very purpose of being able to consider objections to the filings. See ASARCO, Inc. v. FERC, 777 F.2d 764, 771-73 (D.C.Cir.1985). As to ripeness: The Commission argues that petitioners should be required to wait until they actually suspect an FFTB member of abusing the new rule, file a complaint, seek discovery, and then, depending on the results of discovery, ask the Commission for help. But the gravamen of petitioners' complaint is that any use of the rule is an abuse, precisely because it does not permit petitioners and others to know what rates are being offered. When the very basis of attack is the secrecy of rates and hence the inability to challenge them, it would be absurd to hold the controversy unripe because petitioners cannot identify instances where the secret rates have been unreasonable or discriminatory. There is no doubt, moreover, that the rule affects petitioners' primary conduct, see Air New Zealand Ltd. v. CAB, 726 F.2d 832, 835-36 (D.C.Cir.1984), since it renders them unable to match their competitors' unknown prices. The hardship petitioners now suffer from the "average rate" rule, and the fitness of the legal issues for judicial resolution, render this controversy ripe. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Finally, as to standing: The competitive injury just described constitutes injury in fact, and competitive injury is included within the zone of interests protected by the Interstate Commerce Act. See Central & Southern Motor Freight Tariff Ass'n v. United States, 757 F.2d 301, 312 (D.C.Cir.1985).

Turning to the merits of the matter, the waiver provision that was the basis for the Commission's action reads as follows:

The Commission may reduce the notice period of subsections (a) and (c) of this section if cause exists. The Commission may change the other requirements of this section if cause exists in particular instances or as they apply to special circumstances.

49 U.S.C.A. Sec. 10762(d)(1). The section to which this waiver provision applies is Sec. 10762, entitled "General tariff requirements," setting forth details concerning the contents, manner of filing, publication and alteration of common carrier tariffs. We agree with the dissenting commissioners that what the Commission has done here goes beyond "chang[ing] the ... requirements of this section," and nullifies other ...

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