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01/23/79 Carolina, Clinchfield and v. Te Commerce Commission and

January 23, 1979

CAROLINA, CLINCHFIELD AND OHIO RAILWAY, ET AL., PETITIONERS

v.

INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS; NATIONAL ASSOCIATION OF



Before WRIGHT, Chief Judge, and LEVENTHAL and WILKEY, Circuit Judges.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

REGULATORY UTILITY COMMISSIONERS, INTERVENOR 1979.CDC.18

Petition for Review of an Order of the Interstate Commerce commission.

APPELLATE PANEL:

Opinion for the Court filed by WILKEY, Circuit Judge.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY

This case involves the procedures through which the Interstate Commerce Act protects railroads from intrastate rates which discriminate against interstate commerce. Petitioners, certain interstate railroads operating in the state of North Carolina, seek review of Interstate Commerce Commission orders *fn1 rejecting a tariff filing which the Commission claims it has no authority to process. The tariff sought to apply to traffic moving wholly within North Carolina a four per cent general rate increase that had previously been filed and placed into effect for interstate traffic nationwide, including North Carolina. We believe the Commission has correctly construed its statutory authority affecting intrastate rates and, accordingly, we affirm. I. BACKGROUND

A. History and Statutory Structure

An understanding of this controversy requires a little background. At least since the Shreveport case *fn2 it has been settled that there is federal authority under the Commerce Clause to regulate Intrastate rates which affect interstate commerce. Congress exercised this authority in the Transportation Act of 1920 which, by adding new paragraphs (3) and (4) to § 133 of the Interstate Commerce Act, in effect codified the Shreveport decision.4 Section 13(3) authorized the Commission to investigate intrastate rates and § 13(4) expressly empowered the Commission to "prescribe" intrastate rates in order to cure undue discrimination against interstate commerce, but only "after (a) full hearing."

The procedures which have historically governed Interstate ratemaking are quite different. These are set out in § 15 of the Act.5 Under these provisions the ratemaking initiative lies with the railroads. Rate changes are filed with the ICC6 and take effect immediately unless suspended by the Commission. Section 15(8) provides that when a tariff schedule is filed, the Commission, on its own initiative or on complaint of an interested party, may conduct a hearing to determine if the proposed rates are lawful.7 If a hearing is held, the Commission may suspend operation of the new rates for a maximum of seven months, but only if it is shown by a complainant (1) that the proposed rate change will cause him substantial injury and (2) that he is likely to prevail on the merits.8 Although the complainant has the burden of establishing the conditions for a suspension,9 the railroads have the ultimate burden of proving that their rates are lawful.10

Petitioners contend that this long-standing difference in the procedures governing interstate and intrastate ratemaking was changed by the addition in 1976 of a new paragraph (5) to § 13 of the Act.11 Section 13(5) allows state regulatory authorities 120 days to act upon carrier applications to adjust intrastate rates to correspond to the rates for similar interstate traffic. However, if the state authority has not "acted finally" within the 120-day period, the ICC is given "exclusive authority . . . to prescribe the intrastate rate." Petitioners argue that the grant of "exclusive authority" to the ICC entitles the railroads to file intrastate rate changes pursuant to § 15(8), just as they file interstate rates, thus making intrastate rate changes automatically effective unless a complainant can meet the § 15(8) burden. The Commission disagrees, maintaining that § 13(4), with its "full hearing" requirement, affords the exclusive means of affecting intrastate rates contemplated by the Act.

Finally, the Interstate Commerce Act was newly codified in October 1978, shortly before this case was argued. Although Congress expressly stated that it intended no substantive change in the law, it did alter the structure and wording of numerous provisions, including §§ 13(4) and 13(5).12 We think the codification largely resolves against petitioners the ambiguities which led to the instant controversy, but it should be recalled that the parties proceeded throughout on the basis of the earlier version.

B. The Course of These ...


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