[Federal Register Volume 68, Number 214 (Wednesday, November 5, 2003)]
[Notices]
[Pages 62601-62606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27812]


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FEDERAL TRADE COMMISSION

[Docket No. 9308]


Movers Conference of Mississippi, Inc.; Analysis to Aid Public 
Comment

AGENCY: Federal Trade Commission.

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 complaint 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 November 27, 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: [email protected], 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 section 
3.25(f) of the Commission's Rules of Practice, 16 CFR 3.25(f), 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 October 30, 2003), on the World Wide Web, at http://www.ftc.gov/os/2003/10/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 
email box: [email protected]. Such comments will be considered 
by the Commission and will be available

[[Page 62602]]

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 Movers Conference of 
Mississippi, Inc. (``MCM'' or ``Respondent'') to resolve matters 
charged in an Administrative Complaint issued by the Commission on July 
9, 2003. The agreement has been placed on the public record for thirty 
(30) days for receipt of comments from interested members of the 
public. The Agreement is for settlement purposes only and does not 
constitute an admission by MCM 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.
    The Commission's decision to issue its Complaint in this matter was 
made after considering whether Respondent's activities were protected 
by the state action defense. As discussed in detail in Section III 
below, a key element of the state action defense is the extent to which 
the State supervises private action. The facts developed during staff's 
investigation pertaining to the extent to which Mississippi supervised 
rates contained in tariffs filed by Respondent are discussed in this 
Analysis to illustrate how the Commission analyzed Respondent's ability 
to establish a state action defense.\1\
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    \1\ Settlement in this matter precludes the possibility of a 
litigated record. Thus, the Commission's understanding of the facts 
as set forth in this Analysis is based on the record developed 
during staff's investigation. The Commission has decided to include 
discussion of the relevant parts of the investigatory record to 
provide the best guidance it can on the scope of the state action 
defense and to facilitate comment on the proposed Consent Agreement.
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I. The Commission's Complaint

    The Complaint alleged that Respondent Movers Conference of 
Mississippi, Inc., a corporation, violated Section 5 of the Federal 
Trade Commission Act. Specifically, the Complaint alleged that 
Respondent agreed to engage, and had engaged, in a combination and 
conspiracy, an agreement, concerted action or unfair and unlawful acts, 
policies and practices, the purpose or effect of which was 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 39 household goods movers that conduct business 
within the State of Mississippi. One of the primary functions of MCM is 
preparing, and filing with the Mississippi Public Service Commission, 
tariffs and supplements on behalf of its members. These tariffs and 
supplements contain rates and charges for the intrastate transportation 
of household goods and for related services.
    The Complaint alleged that Respondent engaged in initiating, 
preparing, developing, disseminating, and taking other actions to 
establish and maintain collective rates, which had the purpose or 
effect of fixing, establishing or stabilizing rates for the 
transportation of household goods in the State of Mississippi.
    The Complaint further alleged that Respondent organized and 
conducted meetings that provided a forum for discussion or agreement 
between competing carriers concerning or affecting rates and charges 
for the intrastate transportation of household goods.
    The Complaint further alleged that Respondent's conduct was 
anticompetitive because it had the effect of raising, fixing, and 
stabilizing the prices of household goods moves. The acts of Respondent 
also had 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 Mississippi. 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.\2\ It also 
bars Respondent from maintaining a tariff committee or agreeing with 
movers to institute any automatic intrastate rate increases.
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    \2\ A state statute requires that carriers file their tariffs 
and make them available to the public. Miss. Code Ann. Sec.  77-7-
211.
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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 Mississippi 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.
    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.\3\ 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.\4\ 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.\5\ Instead, a State must

[[Page 62603]]

substitute its own control for that of the market.
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    \3\ 16 C.F.R. 2.51. We discuss the state action defense below in 
some detail. See also 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; Iowa Movers and Warehousemen's 
Association, File No. 021-0115 (Aug. 1, 2003) (proposed consent 
order) available at http://www.ftc.gov/os/2003/08/imwaanalysis.htm; 
and Minnesota Transport Services Association, File No. 021-0115 
(Aug. 1, 2003) (proposed consent order) available at http://www.ftc.gov/os/2003/08/mtsaanalysis.htm.
    \4\ 317 U.S. 341 (1943).
    \5\ 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.'' \6\
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    \6\ 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 Mississippi had ``clearly 
articulated and affirmatively expressed as state policy'' the desire to 
replace competition with a regulatory scheme. With regard to this 
prong, it appears that under Mississippi law tariffs must be ``just and 
reasonable.'' \7\ Respondent would meet its burden if it could show 
that these or some other provision of Mississippi law constitutes a 
clear expression of state policy to displace competition and allow for 
collective rate-making among competitors.\8\
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    \7\ Miss. Code Ann. Sec.  77-7-151; Miss. Code Ann. Sec.  77-7-
221.
    \8\ United States v. Southern Motor Carriers Rate Conference, 
471 U.S. 48, 63-65 (1985).
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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.'' \9\ 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.'' \10\
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    \9\ Midcal, 445 U.S. at 105-06.
    \10\ 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.\11\ In this regard, the State must ``have and 
exercise ultimate authority'' over the challenged anticompetitive 
conduct.\12\ 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.'' \13\ 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 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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    \11\ Midcal, 445 U.S. at 106. Accord, Ticor, 504 U.S. at 634-35; 
Patrick v. Burget, 486 U.S. at 100-01.
    \12\ Patrick v. Burget, 486 U.S. at 101 (emphases added).
    \13\ 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,\14\ 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:
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    \14\ Parker, 317 U.S. at 351.

    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.\15\
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    \15\ 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.'' \16\
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    \16\ 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

[[Page 62604]]

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.\17\ 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:

    \17\ 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 * * *.\18\
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    \18\ 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.\19\ 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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    \19\ 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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    In Mississippi, the State had in place rules and regulations 
pertaining to, and had staff assigned to review, household goods 
tariffs. In connection with a recent tariff increase request, 
Respondent sent to the State very general written assertions that 
movers' costs had increased as well as some assertions regarding 
specific cost increases. The staff did undertake some review including, 
for example, checking to see if the cost of packaging material had 
increased as asserted by movers. In addition, the State monitored 
Bureau of Labor Statistics printouts giving the national consumer price 
index and Department of Labor's notices of increases in the national 
minimum wage.
    Nevertheless, Respondent made no showing that the State had done 
the necessary research into the economic conditions of the moving 
industry in Mississippi that would enable it to assess the impact of 
the Respondent's proposal.\20\ Moreover, there was no showing that the 
State sought independently to verify the accuracy of the financial 
information submitted by the movers.\21\
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    \20\ Cf. New England Motor Rate Bureau, Inc., 112 F.T.C. 200, 
233, 266, 279-80 (1989) (active supervision not found because, inter 
alia, the State had ``never conducted an economic study of the 
intrastate trucking industry nor of the effects of its regulatory 
policy on the intrastate trucking industry within the state''). 
Although the First Circuit reversed the Commission's decision, New 
England Motor Rate Bureau v. FTC, 908 F.2d 1064 (1st Cir. 1990), the 
First Circuit's standard for active supervision was later found to 
be ``insufficient'' in Ticor. 504 U.S. at 637.
    \21\ Cf. United States v. Southern Motor Carriers Rate 
Conference, 467 F. Supp. 471, 477 (N.D.Ga. 1979), aff'd, 702 F.2d 
543 (5th Cir. Unit B 1983) (active supervision found where, among 
other things, the State undertook ``on-site review and verification 
of motor carrier books and records''), rev'd on other grounds, 471 
U.S. 48 (1985).
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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. In Mississippi, the 
Public Service Commission did give notice to the public that a hearing 
was to take place to consider increases in rates and it did hold 
hearings where witnesses testified about their increased costs.\23\ For 
reasons discussed throughout, however, the mere fact of a hearing will 
not establish active supervision. To show active supervision, 
Respondent would need to establish that the State takes additional 
steps to ensure that it makes the rates its own.
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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. Sec.  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).
    \23\ See, e.g., August 8, 1995, Notice, Public Service 
Commission of the State of Mississippi, 95-MC-0329, In Re: 
Application of Mississippi Movers Conference Filing Supplement No. 2 
to Mississippi Movers Conference Tariff No 2; October 10, 1995, 
Public Hearing before the Public Service Commission of the State of 
Mississippi, 95-MC-0329, In Re Application of Mississippi Movers 
Conference Filing Supplement No. 2 to Mississippi Movers Conference 
Tariff No 2.
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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.\24\
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    \24\ 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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    In Mississippi, the State issued written orders granting requests 
for price increases.\25\ These written orders simply announced the 
State's decision. The orders did not discuss evidence supporting the 
increases nor did they provide the State's analysis or reasoning when 
the State granted rate increases.
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    \25\ See, e.g., December 19, 1995, Order, Public Service 
Commission of the State of Mississippi, 95-MC-0329, In Re 
Application of Mississippi Movers Conference Filing Supplement No. 2 
to Mississippi Movers Conference Tariff No. 2.
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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

[[Page 62605]]

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.\26\
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    \26\ Ticor, 504 U.S. at 634-35.

    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,\27\ 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 \28\--a careful consideration of the 
specific monetary impact on consumers is critical to any assessment of 
an overall impact on consumer welfare. That consideration should 
include an express quantitative assessment, based on reliable economic 
data, of the specific likely impact upon consumers.
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    \27\ 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.
    \28\ 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 should address consumer 
welfare in its regulatory analysis. In claiming the state action 
defense, a respondent should demonstrate that the state board, in 
evaluating arguably anticompetitive conduct, had carefully considered 
and quantified the likely impact of that conduct on consumers as a 
central element of deciding whether to approve that conduct.\29\
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    \29\ 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, Mississippi has expressly chosen to give 
significant consideration to, among other state interests, the 
interests of consumers when determining whether rates are ``just and 
reasonable'':
    In the exercise of its power to prescribe just and reasonable rates 
for the transportation of passengers or household goods * * * the 
commission shall give due consideration, among other factors, to:
* * * * *
the need, in the public interest, of adequate and efficient 
transportation service by such carriers at the lowest cost consistent 
with the furnishing of such services.\30\
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    \30\ Miss. Code Ann. Sec.  77-7-211.
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    Thus, to establish active supervision, Respondent would be 
obligated to show that the State, when approving the rates at issue, 
performed an analysis and quantification of whether the rates to 
consumers were ``at the lowest cost consistent with the furnishing of 
service.'' Here, however, Respondent did not produce any substantial 
evidence that the State had done such an analysis or that the State had 
adopted a method for evaluating movers' rates against the statutory 
criteria.\31\
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    \31\ Cf. United States v. Southern Motor Carriers Rate 
Conference, 467 F. Supp. 471, 477 (N.D. Ga. 1979), aff'd, 702 F.2d 
543 (5th Cir. Unit B 1983) (active supervision established where, 
among other things, the State reviewed a request for an increase in 
motor carrier rates by analyzing motor carriers' operating ratios), 
rev'd on other grounds, 471 U.S. 48 (1985).
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    In fact, during one Public Service Commission hearing held to 
consider movers' request for an increase in rates, a mover opposed the 
proposed increase on the grounds that he and other movers could 
continue to profitably move customers at the existing rates.\32\ The 
Public Service Commission approved the requested increase in rates 
without explaining why it rejected this testimony or how it decided 
that the higher rates were at the ``lowest cost consistent with the 
furnishing of [moving] services.''
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    \32\ The mover testified as follows:
    ``I think the majority of movers here are making fairly decent 
money doing this business, some an exception, and I can't answer why 
because you can make money doing this and there's no problem with 
that. Any time you buy a box for 50 cents and sell it for $2.20, 
you're going to make money on that box. * * * I was basically going 
to say that my company can currently operate profitably based on 
these rates and provide a good service to the average consumer * * *
    ``I don't know how many of my customers have said, even at 
church when I'm talking to some of my friends and I tell them how 
much I sell a box for, they just look at me and say you're robbing 
us, you're just stealing us blind. And granted this is a hard 
business to make a profit. I'm not one to make a big profit; I just 
make a steady living, feed my kids, take care of my house, and give 
my guys good employment. That's all I do. I'm not out to make a 
million dollars.''
    October 10, 1995, Public Hearing before the Public Service 
Commission of the State of Mississippi, 95-MC-0329, In Re 
Application of Mississippi Movers Conference Filing Supplement No. 2 
to Mississippi Movers Conference Tariff No. 2, at transcript pages 
40, 42, 45.
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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.
    These review techniques may also help to show active state 
supervision in

[[Page 62606]]

other contexts. In this Analysis we have described particular 
techniques that can show active supervision in the context of tariff 
filings. Such filings often involve recurring, concrete acts of private 
rate setting that tend to automatically trigger review on the occasion 
of each such filing. As noted above, however, if a rate filing remains 
in place for a prolonged period of time, the state will have an 
obligation to review the level of those rates on an ongoing basis. 
Similarly, there may be other industries where specific events do not 
trigger a review of private conduct, yet where the state has still 
displaced competition and therefore the state action defense would 
apply only where it could be shown that the conduct was being actively 
supervised. We believe that the review principles described here can be 
adapted to those circumstances as well. Evidence of active supervision 
then might be required, not in connection with particular events, but 
rather on a reasonable periodic basis. That supervision might still 
involve the elements discussed here, such as notice, analysis in light 
of the statutory purposes, and a written decision.
    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 
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 
proposed Order or to modify their terms in any way.

    By direction of the Commission, Commissioner Harbour not 
participating.
Donald S. Clark,
Secretary.
[FR Doc. 03-27812 Filed 11-4-03; 8:45 am]
BILLING CODE 6750-01-P