SSW, inc. v. Air Transport Ass'n of America, No. 10731.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: CLARK, PROCTOR and BAZELON, Circuit
• Citation: 191 F.2d 658
• Docket Number: No. 10731.
• Decision Date: 12 July 1951
• Parties: S. S. W., Inc. v. AIR TRANSPORT ASS'N OF AMERICA et al.

191 F.2d 658 (1951)

S. S. W., Inc.
v.
AIR TRANSPORT ASS'N OF AMERICA et al.

No. 10731.

United States Court of Appeals District of Columbia Circuit.

Decided July 12, 1951.

191 F.2d 659

Warren E. Miller and Harold L. Schilz, Washington, D. C., with whom John F. Clagett and John James Klak, Washington, D. C., were on the brief, for appellant.

Howard C. Westwood and Hubert A. Schneider, Washington, D. C., for appellees.

Jo V. Morgan, Jr., and Stuart G. Tipton, Washington, D. C., were on the brief for appellees Air Transport Ass'n of America and Air Traffic Conference of America.

Howard C. Westwood and Ernest W. Jennes, Washington, D. C., were on the brief for appellee American Airlines, Inc.

Roger J. Whiteford, Hubert A. Schneider and Jo V. Morgan, Jr., Washington, D. C., were on the brief for appellee Braniff Airlines, Inc.

James M. Landis, Washington, D. C., was on the brief for appellee Colonial Airlines, Inc.

Stanley Gewirtz, Washington, D. C., also entered an appearance for appellee Colonial Airlines, Inc.

W. Glen Harlan, Atlanta, Ga., was on the brief for appellee Eastern Air Lines, Inc.

191 F.2d 660

Robert B. Hankins and Macon M. Arthur, Washington, D. C., were on the brief for appellee Capital Airlines, Inc.

C. Edward Leasure, Washington, D. C., was on the brief for appellees Continental Air Lines, Inc., and Northwest Airlines, Inc.

Henry J. Friendly, New York City, and James G. Johnson, Jr., Washington, D. C., were on the brief for appellee Pan American Airways, Inc.

William Caverly, Washington, D. C., was on the brief for appellee Trans World Airlines, Inc.

James Francis Reilly, Washington, D. C., and Leo F. Tierney, Chicago, Ill., were on the brief for appellee United Air Lines, Inc.

Warren E. Miller, Washington, D. C., for intervenors Air Transport Associates, Inc., and Golden North Airways, Inc.

Before CLARK, PROCTOR and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant, an "irregular" or "non-scheduled" interstate air carrier, brought suit under the antitrust laws against appellees, who are regularly certificated air carriers, and their trade association. Alleging that appellees have combined and conspired to restrain and to monopolize the air-borne commerce of the United States by suppressing competition therein and by controlling the channels through which prices, terms and conditions thereof are determined, appellant asked for injunctive relief and for treble damages. The specific acts and the course of conduct by which appellees are said to be pursuing their objective are described in paragraph 22 of the complaint. That paragraph accuses appellees of conspiring to:

"(a) Solicit, persuade, induce, and coerce ticket agencies and travel bureaus from acting as agents for plaintiff and other irregular air carriers and `nonskeds' and from making sales and distribution of tickets, charters and contracts on their behalf;

"(b) Influence administrative agencies to impose rules, regulations and inspections favorable to the certificated air carriers and burdensome to the `nonskeds', and obtain subsidy and other preferences denied the `nonskeds';

"(c) Discredit and disparage the plaintiff and other `nonskeds', or irregular air carriers, and destroy public confidence in them by means of false and misleading advertisements and news releases and stories;

"(d) Eliminate and prevent competition for air carrier passenger and freight transportation;

"(e) Offer transportation at cut prices until competition was eliminated, and then to compensate themselves by reimbursement from other operations or by increasing or enhancing prices after competition is eliminated;

"(f) Utilize their domination and control over the air-borne commerce of the nation to encourage and promote consolidations, mergers, expansion and debt refundings in order to completely dominate the field and eliminate `nonskeds' and irregular air carriers;

"(g) Use such dominant control to obtain huge quantity discounts from major gasoline and oil suppliers not available to the plaintiff and other comparable `nonskeds';

"(h) Cause refusal and delay of vital maintenance and other services at airports to the plaintiff and other `nonskeds.'"

The District Court denied relief on the ground that the complaint raised matters which "the Civil Aeronautics Act 49 U.S. C.A. § 401 et seq. was passed to correct" and which fall, therefore, within the primary jurisdiction of the Civil Aeronautics Board. Appellant contends, as it did in the trial court, that the Board has no authority to enjoin the broad conspiracy alleged to exist or to award damages attributable to that unlawful conspiracy.

Here, as in Pennsylvania Water & Power Co. v. Federal Power Commission,¹ we are called upon to consider the

191 F.2d 661

effect of the antitrust laws upon a regulated industry. The problem is "one of the interrelation of two statutory schemes — each of which reflects different historical pressures and different conceptions of the public interest. The Sherman Act 15 U.S.C. A. §§ 1-7, 15 note and related laws represent an attempt to keep the channels of competition free so that prices and services are determined by the workings of a free market."² Regulation of a specific industry, on the other hand, "evidences congressional recognition that competition can assure protection of the public interest only in an industrial setting which is conducive to a free market and can have no place in industries which are monopolies because of public grant, the exigencies of nature, or legislative preference for a particular way of doing business." The aircraft industry, like railroads and power, is one in which Congress has decided that the public interest is best served, not by free competition, but rather by direct and uniform regulation by an "agency authorized to supervise almost every phase of the regulated company's business."³

It is apparent that "the antitrust laws can have only limited application to industries regulated by specific statute."⁴ But, in view of the importance of the antitrust laws to the unregulated part of the economy, the rule has been developed that the mere existence of a regulatory statute does not result in complete withdrawal of the regulated industry from the operation of the antitrust laws. Such repeals by implication are not favored. The antitrust laws have been held to be superseded by specific regulatory statutes only to the extent of the repugnance between them.⁵ In U. S. Navigation Co. v. Cunard S. S. Co., 1932, 284 U.S. 474, 485, 52 S.Ct. 247, 250, 76 L.Ed. 408, the case relied upon by the District Court in its dismissal of the complaint, Mr. Justice Sutherland applied that rule to an antitrust suit brought against a company subject to the Shipping Act, 46 U.S.C.A. § 801 et seq.: "A comparison of the enumeration of wrongs charged in the bill with the provisions of the sections of the Shipping Act * * * conclusively shows, without going into detail, that the allegations either constitute direct and basic charges of violations of these provisions or are so interrelated with such charges as to be, in effect, a component part of them; and the remedy is that afforded by the Shipping Act, which to that extent supersedes the anti-trust laws."⁶ Similarly, a rate which is the product of a conspiracy under the antitrust laws may nevertheless be a legal rate because the governing criterion is a regulatory statute.⁷ If, however, the regulatory agency has not been authorized to deal with the subject matter of the complaint, as was the case with the Interstate Commerce Commission and broad rate fixing combinations, the courts retain jurisdiction under the antitrust laws to grant relief.⁸ Thus, in each case brought against a regulated company under the antitrust laws, the subject matter and remedy afforded by the regulatory statute are compared with that of the antitrust laws. If the latter either cover subject matter outside the scope of the Commission's power or provide a remedy which the Commission may not give, then they remain in effect to that limited extent. This sort of approach gives the greatest possible effect to congressional intent. It subjects problems intended to be dealt with in a uniform manner within the framework

191 F.2d 662

of a particular industry to the agency empowered to regulate that industry. At the same time, it gives effect to the antitrust laws in those areas not carved out from them by more specific economic regulation

Examination of the Civil Aeronautics Act discloses that it provides for detailed and comprehensive economic regulation by the Board of air carriers subject to its jurisdiction. In addition to the customary control over entry into the field, through issuance of certificates of public convenience and necessity,⁹ and supervision of rates and services,¹⁰ the Board is given authority over mail rates¹¹ and loans and financial aid from United States agencies generally.¹² So far as competitive practices are concerned, the Board is authorized (1) to initiate or hear complaints of "unfair or deceptive practices or unfair methods of competition in air transportation" and to issue cease and desist orders against such practices or methods of competition;¹³ (2) to approve — and thereby to exempt from the antitrust laws¹⁴ — or disapprove mergers, consolidations and acquisitions of control,¹⁵ whether direct or indirect,¹⁶ as well as pooling and other agreements.¹⁷ The provision dealing with pooling and other agreements indicates the comprehensive sweep of the Act in its relationship to the antitrust laws. It provides that "Every air carrier shall file with the Board a true copy, or, if oral, a true and complete memorandum, of every contract or agreement (whether enforceable by provisions for liquidated damages, penalties, bonds, or otherwise)...