[Federal Register Volume 68, Number 154 (Monday, August 11, 2003)]
[Notices]
[Pages 47571-47576]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 03-20371]
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FEDERAL TRADE COMMISSION
[File No. 021 0115]
Minnesota Transport Services Association; Analysis To Aid Public
Comment
AGENCY: Federal Trade Commission.
[[Page 47572]]
ACTION: Proposed consent agreement.
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SUMMARY: The consent agreement in this matter settles alleged
violations of Federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis to
Aid Public Comment describes both the allegations in the draft
complaint that accompanies the consent agreement and the terms of the
consent order--embodied in the consent agreement--that would settle
these allegations.
DATES: Comments must be received on or before September 1, 2003.
ADDRESSES: Comments filed in paper form should be directed to: FTC/
Office of the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW.,
Washington, DC 20580. Comments filed in electronic form should be
directed to: consentagreement@ftc.gov, as prescribed in the
SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Dana Abrahamsen, FTC, Bureau of
Competition, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202)
326-2906.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec. 2.34 of
the Commission's Rules of Practice, 16 CFR 2.34, notice is hereby given
that the above-captioned consent agreement containing a consent order
to cease and desist, having been filed with and accepted, subject to
final approval, by the Commission, has been placed on the public record
for a period of thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for August 1, 2003), on the World Wide Web, at http://www.ftc.gov/os/
2003/08/index.htm. A paper copy can be obtained from the FTC Public
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington,
DC 20580, either in person or by calling (202) 326-2222.
Public comments are invited, and may be filed with the Commission
in either paper or electronic form. Comments filed in paper form should
be directed to: FTC/Office of the Secretary, Room 159-H, 600
Pennsylvania Avenue, NW., Washington, DC 20580. If a comment contains
nonpublic information, it must be filed in paper form, and the first
page of the document must be clearly labeled ``confidential.'' Comments
that do not contain any nonpublic information may instead be filed in
electronic form (in ASCII format, WordPerfect, or Microsoft Word) as
part of or as an attachment to email messages directed to the following
e-mail box: consentagreement@ftc.gov. Such comments will be considered
by the Commission and will be available for inspection and copying at
its principal office in accordance with section 4.9(b)(6)(ii) of the
Commission's Rules of Practice, 16 CFR 4.9(b)(6)(ii)).
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission has accepted for public comment an
Agreement Containing Consent Order with Minnesota Transport Services
Association (``MTSA'' or ``Respondent''). The Agreement is for
settlement purposes only and does not constitute an admission by MTSA
that the law has been violated as alleged in the Complaint or that the
facts alleged in the Complaint, other than jurisdictional facts, are
true.
I. The Commission's Complaint
The proposed Complaint alleges that Respondent Minnesota Transport
Services Association, a corporation, has violated and is now violating
Section 5 of the Federal Trade Commission Act. Specifically, the
proposed Complaint alleges that Respondent has agreed to engage, and
has engaged, in a combination and conspiracy, an agreement, concerted
action or unfair and unlawful acts, policies and practices, the purpose
or effect of which is to unlawfully hinder, restrain, restrict,
suppress or eliminate competition among household goods movers in the
household goods moving industry.
Respondent is an association organized for and serving its members,
which are approximately 89 household goods movers that conduct business
within the State of Minnesota. One of the primary functions of
Respondent is preparing, and filing with the Minnesota Department of
Transportation, tariffs and supplements on behalf of its members. These
tariffs and supplements contain rates and charges for the intrastate
and local transportation of household goods and for related services.
The proposed Complaint alleges that Respondent is engaged in
initiating, preparing, developing, disseminating, and taking other
actions to establish and maintain collective rates, which have the
purpose or effect of fixing, establishing or stabilizing rates for the
transportation of household goods in the State of Minnesota.
The proposed Complaint further alleges that Respondent organizes
and conducts meetings that provide a forum for discussion or agreement
between competing carriers concerning or affecting rates and charges
for the intrastate transportation of household goods.
The proposed Complaint further alleges that Respondent's conduct is
anticompetitive because it has the effect of raising, fixing, and
stabilizing the prices of household goods moves. The acts of Respondent
also have the effect of depriving consumers of the benefits of
competition.
II. Terms of the Proposed Consent Order
The proposed Order would provide relief for the alleged
anticompetitive effects of the conduct principally by means of a cease
and desist order barring Respondent from continuing its practice of
filing tariffs containing collective intrastate rates.
Paragraph II of the proposed Order bars Respondent from filing a
tariff that contains collective intrastate rates. This provision will
terminate Respondent's current practice of filing tariffs that contain
intrastate rates that are the product of an agreement among movers in
the State of Minnesota. This paragraph also prohibits Respondent from
engaging in activities such as exchanges of information that would
facilitate member movers in agreeing on the rates contained in their
intrastate tariffs. For example, the order bars Respondent from
providing to other carriers certain non-public information.\1\ It also
bars Respondent from maintaining a tariff committee or agreeing with
movers to institute any automatic intrastate rate increases.
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\1\ Under a state statute, a carrier's tariff filing
``constitutes notice to the public'' of the contents of the tariff.
Minn. Stat. Ann. Sec. 221.161(Subd. 1).
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Paragraph III of the proposed Order requires Respondent to cancel
all tariffs that it has filed that contain intrastate collective rates.
This provision will ensure that the collective intrastate rates now on
file in the State of Minnesota will no longer be in force, allowing for
competitive rates in future individual mover tariffs. Paragraph III of
the proposed Order also requires Respondent to cancel any provisions in
its governing documents that permit it to engage in activities barred
by the Order.
Paragraph IV of the proposed Order requires Respondent to send to
its members a letter explaining the terms of the Order. This will make
clear to members that they can no longer engage in collective rate-
making activities.
[[Page 47573]]
Paragraphs V and VI of the proposed Order require Respondent to
inform the Commission of any change in Respondent that could affect
compliance with the Order and to file compliance reports with the
Commission for a number of years. Paragraph VII of the proposed Order
states that the Order will terminate in 20 years.
III. Opportunity for Modification of the Order
Respondent can seek to modify the proposed Order to permit it to
engage in collective rate-making if it can demonstrate that the ``state
action'' defense would apply to its conduct.\2\ The state action
doctrine dates back to the Supreme Court's 1943 opinion in Parker v.
Brown, which held that, in light of the States' status as sovereigns,
and given basic principles of federalism, Congress would not have
intended the Sherman Act to apply to the activities of States
themselves.\3\ The defense also has been interpreted in limited
circumstances to shield from antitrust scrutiny private firms'
activities that are conducted pursuant to state authority. States may
not, however, simply authorize private parties to violate the antitrust
laws.\4\ Instead, a State must substitute its own control for that of
the market.
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\2\ 16 CFR 2.51. Because of this possibility, and because the
issues raised by this case frequently arise, it is appropriate to
address the state action defense in some detail as we did in Indiana
Household Movers and Warehousemen, Inc., File No. 021-0115 (Mar. 18,
2003) (proposed consent order) available at http://www.ftc.gov/os/
2003/03/indianahouseholdmoversanalysis.pdf
\3\ 317 U.S. 341 (1943).
\4\ Parker v. Brown, 317 U.S. at 351 (``[A] state does not give
immunity to those who violate the Sherman Act by authorizing them to
violate it, or declaring that their action is lawful.'').
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Thus, the state action defense would be available to Respondent
only if it could demonstrate that its conduct satisfied the strict two-
pronged standard the Supreme Court set out in California Retail Liquor
Dealers Ass'n v. Midcal Aluminum, Inc.: ``the challenged restraint must
be `one clearly articulated and affirmatively expressed as state
policy' '' and ``the policy must be `actively supervised' by the state
itself.''\5\
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\5\ 445 U.S. 97, 105 (1980) (``Midcal'') (quoting City of
Lafayette v. Louisiana Power & Light, 435 U.S. 389, 410 (1978)). The
``restraint'' in this instance is the collective rate-setting. This
articulation of the state action doctrine was reaffirmed by the
Supreme Court in FTC v. Ticor Title Insurance Co. (``Ticor''), 504
U.S. 621, 633 (1992), where the Court noted that the gravity of the
antitrust violation of price fixing requires exceptionally clear
evidence of the State's decision to supplant competition.
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Under the first prong of Midcal's two-part test, Respondent would
be required to show that the State of Minnesota had ``clearly
articulated and affirmatively expressed as state policy'' the desire to
replace competition with a regulatory scheme. With regard to this
prong, a Minnesota statute in effect until recently specifically
addressed collective rates:
In order to ensure nondiscriminatory rates and charges for
shippers and receivers, the board shall establish a collective rate-
making procedure which will ensure the publication and maintenance
of just and reasonable rates and charges under uniform, reasonably
related rate structures.\6\
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\6\ MINN. STAT. ANN. section 221.165.
On June 8, 2003 this statute was repealed.\7\ With this statute
repealed, Respondent would meet its burden only if it could show that
some other provision of Minnesota law constitutes a clear expression of
state policy to displace competition and allow for collective rate-
making among competitors.
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\7\ H.F. 1214, 83rd Leg. (MINN. 2003-2004).
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Respondent has asserted that the majority of its members were
essentially compelled to file collective tariffs with the state because
the state statute contemplated granting exemptions from filing
collective rates only under limited circumstances.\8\ The repeal of the
Minnesota collective rate statute moots this issue in this case.
However, even assuming a state statute compels private entities to file
collective rates, this would not remove anticompetitive conduct from
potential Federal antitrust liability. The Supreme Court has made clear
that where a state statute compels a private party to engage in a per
se violation of the Federal antitrust laws in order to comply with the
state statute, the state statute will be pre-empted by the Federal
Sherman Act unless the requirements of the state action doctrine have
been met. Rice v. Norman Williams Co., 458 U.S. 654, 661 (1982).\9\ If
a state statute compelled competitors to file collective rates, it
would be mandating horizontal price fixing, which is the classic per se
violation of the Sherman Act. If a state chooses to compel such
facially anticompetitive private conduct, the private parties are free
from Federal antitrust liability only when the requirements of the
state action doctrine have been met, including active supervision by
the state of the private collective rate-setting.\10\
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\8\ MINN. STAT. ANN. section 221.165; Minnesota Administrative
Rule Sec. 8900.1000 (Subpart 2) (exemption can be granted if the
mover ``will suffer no hardship in publishing its own rates,'' the
grant will ``not conflict with the legislative purpose to be
accomplished by commissioner approval of collective ratemaking'' and
``the grant will be consistent with the public interest''). There is
no evidence that the movers participating in the collective tariffs
sought exemptions.
\9\ A state statute may be ``condemned under the antitrust laws
* * * if it mandates or authorizes conduct that necessarily
constitutes a violation of the law in all cases, or if it places
irresistible pressure on a private party to violate the antitrust
laws in order to comply with the statute. Such condemnation will
follow under section 1 of the Sherman Act when the conduct
contemplated by the statute is in all cases a per se antitrust
violation.'' Rice, 458 U.S. at 661.
\10\ As the Supreme Court itself noted in Rice v. Norman
Williams Co., its earlier decision in Midcal, articulating the two
prongs of the state action doctrine, overturned a statute that
``required members of the California wine industry to file fair
trade contracts or price schedules with the State, and provided that
if a wine producer had not set prices through a fair trade contract,
wholesalers must post a resale price schedule for that producer's
brands.'' 458 U.S. at 659 (emphasis in original). Thus, the statute
at issue in Midcal ``facially conflicted with the Sherman Act
because it mandated resale price maintenance, an activity that has
long been regarded as a per se violation of the Sherman Act.'' Id.
at 659-60 (emphasis in original).
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Under the second prong of the Midcal test, Respondent would be
required to demonstrate ``active supervision'' by state officials. The
Supreme Court has made clear that the active supervision standard is a
rigorous one. It is not enough that the State grants general authority
for certain business conduct or that it approves private agreements
with little review. As the Court held in Midcal, ``The national policy
in favor of competition cannot be thwarted by casting such a gauzy
cloak of state involvement over what is essentially a private price-
fixing arrangement.''\11\ Rather, active supervision is designed to
ensure that a private party's anticompetitive action is shielded from
antitrust liability only when ``the State has effectively made [the
challenged] conduct its own.''\12\
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\11\ Midcal, 445 U.S. at 105-06.
\12\ Patrick v. Burget, 486 U.S. 94, 106 (1988).
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In order for state supervision to be adequate for state action
purposes, state officials must engage in a ``pointed re-examination''
of the private conduct.\13\ In this regard, the State must ``have and
exercise ultimate authority'' over the challenged anticompetitive
conduct.\14\ To do so, state officials must exercise ``sufficient
independent judgment and control so that the details of the rates or
prices have been established as a product of deliberate state
intervention, not simply by agreement among private parties.''\15\ One
asserting the state action defense must demonstrate that the state
agency has ascertained the relevant facts, examined the substantive
merits of the private action, assessed whether that private action
comports with the underlying statutory criteria established
[[Page 47574]]
by the state legislature, and squarely ruled on the merits of the
private action in a way sufficient to establish the challenged conduct
as a product of deliberate state intervention rather than private
choice.
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\13\ Midcal, 445 U.S. at 106. Accord, Ticor, 504 U.S. at 634-35;
Patrick v. Burget, 486 U.S. at 100-01.
\14\ Patrick v. Burget, 486 U.S. at 101 (emphases added).
\15\ Ticor, 504 U.S. at 634-35.
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IV. General Characteristics of Active Supervision
At its core, the active supervision requirement serves to identify
those responsible for public policy decisions. The clear articulation
requirement ensures that, if a State is to displace national
competition norms, it must replace them with specific state regulatory
standards; a State may not simply authorize private parties to
disregard Federal laws,\16\ but must genuinely substitute an
alternative state policy. The active supervision requirement, in turn,
ensures that responsibility for the ultimate conduct can properly be
laid on the State itself, and not merely on the private actors. As the
Court explained in Ticor:
\16\ Parker, 317 U.S. at 351.
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States must accept political responsibility for actions they
intend to undertake. . . . Federalism serves to assign political
responsibility, not to obscure it. . . . For States which do choose
to displace the free market with regulation, our insistence on real
compliance with both parts of the Midcal test will serve to make
clear that the State is responsible for the price fixing it has
sanctioned and undertaken to control.\17\
\17\ 504 U.S. at 636.
Through the active supervision requirement, the Court furthers the
fundamental principle of accountability that underlies federalism by
ensuring that, if allowing anticompetitive conduct proves to be
unpopular with a State's citizens, the state legislators will not be
``insulated from the electoral ramifications of their decisions.'' \18\
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\18\ See New York v. United States, 505 U.S. 144, 168-69 (1992).
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In short, clear articulation requires that a State enunciate an
affirmative intent to displace competition and to replace it with a
stated criterion. Active supervision requires the State to examine
individual private conduct, pursuant to that regulatory regime, to
ensure that it comports with that stated criterion. Only then can the
underlying conduct accurately be deemed that of the State itself, and
political responsibility for the conduct fairly be placed with the
State.
Accordingly, under the Supreme Court's precedents, to provide
meaningful active supervision, a State must (1) obtain sufficient
information to determine the actual character of the private conduct at
issue, (2) measure that conduct against the legislature's stated policy
criteria, and (3) come to a clear decision that the private conduct
satisfies those criteria, so as to make the final decision that of the
State itself.
V. Standard for Active Supervision
There is no single procedural or substantive standard that the
Supreme Court has held a State must adopt in order to meet the active
supervision standard. Satisfying the Supreme Court's general standard
for active supervision, described above, is and will remain the
ultimate test for that element of the state action defense.
Nevertheless, in light of the foregoing principles, the Commission
in this Analysis identifies the specific elements of an active
supervision regime that it will consider in determining whether the
active supervision prong of state action is met in future cases (as
well as in any future action brought by Respondent to modify the terms
of this proposed Order). They are three: (1) The development of an
adequate factual record, including notice and opportunity to be heard;
(2) a written decision on the merits; and (3) a specific assessment--
both qualitative and quantitative--of how the private action comports
with the substantive standards established by the state legislature.
All three elements further the central purpose of the active
supervision prong by ensuring that responsibility for the private
conduct is fairly attributed to the State. Each will be discussed
below.
A. Development of an Adequate Factual Record, Including Notice and
Opportunity To Be Heard
To meet the test for active state supervision, in this case
Respondent would need to show that the State had in place an
administrative body charged with the necessary review of filed tariffs
and capable of developing an adequate factual record to do so.\19\ In
Ticor, the Court quoted language from earlier lower court cases setting
out a list of organizational and procedural characteristics relevant as
the ``beginning point'' of an effective state program:
\19\ At the time of any request for a modification, Respondent
will be required to produce evidence of what the state reviewing
agency is likely to do in response to collective rate-making. We
recognize that this involves some prediction and uncertainty,
particularly when the Respondent requests an order modification on
the basis of a state review program that might be authorized but not
yet operating, as the Respondent will still be under order. In such
cases it may be appropriate for the Respondent to show what the
state program is designed, directed, or organized to do. If a
particular state agency is already conducting reviews in some
related area, evidence of its approach to these tasks will be
particularly relevant.
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[T]he state's program is in place, is staffed and funded, grants
to the state officials ample power and the duty to regulate pursuant
to declared standards of state policy, is enforceable in the state's
courts, and demonstrates some basic level of activity directed
towards seeing that the private actors carry out the state's policy
and not simply their own policy . * * *\20\
\20\ Ticor, 504 U.S. at 637 (citations omitted).
Moreover, that body would need to be capable of compiling, and
actually compile, an adequate factual record to assess the nature and
impact of the private conduct in question. The precise factual record
that would be required would depend on the substantive norm that the
State has provided; the critical question is whether the record has
sufficient facts for the reviewing body sensibly to determine that the
State's substantive regulatory requirements have been achieved. In the
typical case in which the State has articulated a criterion of consumer
impact, obtaining reliable, timely, and complete economic data would be
central to the regulatory board's ability to determine if the State's
chosen criterion has been satisfied.\21\ Timeliness in particular is an
ongoing concern; if the private conduct is to remain in place for an
extended period of time, then periodic state reviews of that private
conduct using current economic data are important to ensure that the
restraint remains that of the State, and not of the private actors.
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\21\ As the Ticor Court held, ``state officials [must] have
undertaken the necessary steps to determine the specifics of the
price-fixing or ratesetting scheme.'' Id. at 638.
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Additionally, in assembling an adequate factual record, the
procedural value of notice and opportunity to comment is well
established. These procedural elements, which have evolved in various
contexts through common law, through State and Federal constitutional
law, and through Administrative Procedure Act rulemakings,\22\ are
powerful engines for ensuring that relevant facts--especially those
facts that might tend to contradict the proponent's contentions--are
brought to the state decision-maker's attention.
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\22\ The Administrative Procedure Act defines a rule, in part,
as ``the whole or a part of an agency statement of general or
particular applicability and future effect designed to implement,
interpret, or prescribe law or policy.'' 5 U.S.C. 551(4). Actions
``concerned with the approval of `tariffs' or rate schedules filed
by public utilities and common carriers'' are typical examples of
rulemaking proceedings. E. Gellhorn & R. Levin, Administrative Law &
Process 300 (1997).
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[[Page 47575]]
B. A Written Decision
A second important element the Commission will look to in
determining whether there has been active supervision is whether the
state board renders its decision in writing. Though not essential, the
existence of a written decision is normally the clearest indication
that the board (1) genuinely has assessed whether the private conduct
satisfies the legislature's stated standards and (2) has directly taken
responsibility for that determination. Through a written decision,
whether rejecting or (the more critical context) approving particular
private conduct that would otherwise violate the Federal antitrust
laws, the state board would provide analysis and reasoning, and
supporting evidence, that the private conduct furthers the
legislature's objectives.\23\
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\23\ A record preserved by other means, such as audio or video
recording technology, might also suffice, provided that it
demonstrated that the board had (1) genuinely assessed the private
conduct and (2) taken direct responsibility. Such an audio or video
recording, however, will be an adequate substitute for a written
opinion only when it provides a sufficiently transparent and
decipherable view of the decision-making proceeding to facilitate
meaningful public review and comment.
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C. Qualitative and Quantitative Compliance with State Policy Objectives
In determining active supervision, the substance of the State's
decision is critical. Its fundamental purpose must be to determine that
the private conduct meets the state legislature's stated criteria.
Federal antitrust law does not seek to impose Federal substantive
standards on state decision-making, but it does require that the
States--in displacing Federal law--meet their own stated standards. As
the Ticor Court explained:
Our decisions make clear that the purpose of the active supervision
inquiry is not to determine whether the State has met some normative
standard, such as efficiency, in its regulatory practices. Its
purpose is to determine whether the State has exercised sufficient
independent judgment and control so that the details of the rates or
prices have been established as a product of deliberate state
intervention, not simply by agreement among private parties. Much as
in causation inquiries, the analysis asks whether the State has
played a substantial role in determining the specifics of the
economic policy. The question is not how well state regulation works
but whether the anticompetitive scheme is the State's own.\24\
\24\ Ticor, 504 U.S. at 634-35.
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Thus, a decision by a state board that assesses both qualitatively and
quantitatively whether the ``details of the rates or prices'' satisfy
the state criteria ensures that it is the State, and not the private
parties, that determines the substantive policy. There should be
evidence of the steps the State took in analyzing the rates filed and
the criteria it used in evaluating those rates. There should also be
evidence showing whether the State independently verified the accuracy
of financial data submitted and whether it relied on accurate and
representative samples of data. There should be evidence that the State
has a thorough understanding of the consequences of the private
parties' proposed action. Tariffs, for instance, can be complex, and
there should be evidence that the State not only has analyzed the
actual rates charged but also has analyzed the complex rules that may
directly or indirectly impact the rates contained in the tariff.
If the State has chosen to include in its statute a requirement
that the regulatory body evaluate the impact of particular conduct on
``competition,'' ``consumer welfare,'' or some similar criterion,
then--to meet the standard for active supervision--there should be
evidence that the State has closely and carefully examined the likely
impact of the conduct on consumers. Because the central purpose of the
Federal antitrust laws is also to protect competition and consumer
welfare, \25\ conduct that would run counter to those Federal laws
should not be lightly assumed to be consistent with parallel state
goals. Especially when, as here, the underlying private conduct alleged
is price fixing--which, as the Ticor Court noted, is possibly the most
``pernicious'' antitrust offense \26\--a careful consideration of the
specific monetary impact on consumers is critical to any assessment of
an overall impact on consumer welfare. To the maximum extent
practicable, that consideration should include an express quantitative
assessment, based on reliable economic data, of the specific likely
impact upon consumers.
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\25\ Indeed, consideration of consumer impact is at the heart of
``[a] national policy'' that preserves ``the free market and * * * a
system of free enterprise without price fixing or cartels.'' Id. at
632.
\26\ Id. at 639 (``No antitrust offense is more pernicious than
price fixing.'').
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It bears emphasizing that States need not choose to enact criteria
such as promoting ``competition'' or ``consumer welfare''--the central
end of Federal antitrust law. A State could instead enact some other
criterion. Then, the State's decision would need to assess whether that
objective had been met.
On the other hand, if a State does not disavow (either expressly or
through the promulgation of wholly contrary regulatory criteria) that
consumer welfare is state regulatory policy, it must address consumer
welfare in its regulatory analysis. In claiming the state action
defense, a respondent would need to demonstrate that the state board,
in evaluating arguably anticompetitive conduct, had carefully
considered and expressly quantified the likely impact of that conduct
on consumers as a central element of deciding whether to approve that
conduct.\27\
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\27\ This requirement is based on the principle that the
national policy favoring competition ``is an essential part of the
economic and legal system within which the separate States
administer their own laws.'' Id. at 632.
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In the present case, Minnesota has chosen to give consideration to,
among other state interests, the interests of consumers. Statutes
require that the rates not be ``unjust, unreasonable, unjustly
discriminatory, unduly preferential or prejudicial''\28\ and that they
not be ``excessive.''\29\ Thus, to establish active supervision,
Respondent would be obligated to show that the State, prior to
approving the rates at issue, performed an analysis and quantification
of whether the rates to consumers are ``excessive.''
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\28\ Minn. Stat. Ann. section 221.161(Subd. 1).
\29\ Minn. Stat. Ann. section 221.161(Subd.2).
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VI. Opportunity for Public Comment
The standards of active supervision remain those laid out by the
Supreme Court in Midcal and its progeny. Those standards have been
explained in detail above to further illustrate how they would apply
should Respondent seek to modify this proposed Order. Applying these
standards, the Commission believes, will further the principles of
federalism and accountability enunciated by the Supreme Court, will
help clarify for States and private parties the reach of Federal
antitrust law, and will ultimately redound to the benefit of consumers.
The proposed Order has been placed on the public record for 30 days
in order to receive comments from interested persons. Comments received
during this period will become part of the public record. After 30
days, the Commission will again review the Agreement and comments
received, and will decide whether it should withdraw from the Agreement
or make final the Order contained in the Agreement.
By accepting the proposed Order subject to final approval, the
Commission anticipates that the competitive issues described in the
proposed Complaint will be resolved. The purpose of this analysis is to
invite and facilitate public comment concerning the proposed Order. It
is not intended to constitute an official interpretation of the
Agreement and
[[Page 47576]]
proposed Order or to modify their terms in any way.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 03-20371 Filed 8-8-03; 8:45 am]
BILLING CODE 6750-01-P