[Federal Register Volume 68, Number 214 (Wednesday, November 5, 2003)]
[Notices]
[Pages 62606-62607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27813]


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FEDERAL TRADE COMMISSION

[File No. 021 0115]


New Hampshire Motor Transport Association; 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 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 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 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 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 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 New Hampshire Motor Transport 
Association (``NHMTA'' or ``Respondent''). The Agreement is for 
settlement purposes only and does not constitute an admission by NHMTA 
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 New Hampshire Motor 
Transport 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 
State of New Hampshire.
    Respondent is an association organized for and serving its members, 
which are approximately 400 firms primarily engaged in the trucking 
industry, of which approximately 19 members are household goods movers 
that conduct business within the State of New Hampshire. One of the 
functions of Respondent is preparing, and filing with the New Hampshire 
Department of Safety's Bureau of Common Carriers, tariffs and 
supplements on behalf of members engaged in moving household goods. 
These tariffs and supplements contain rates and charges for the 
intrastate and local transportation of

[[Page 62607]]

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 tariff rules which have the purpose 
or effect of fixing, establishing or stabilizing rates for the 
transportation of household goods in the State of New Hampshire. The 
proposed Complaint further alleges that Respondent files with the New 
Hampshire Bureau of Common Carriers tariffs containing rules that 
institute automatic increases to carriers' rates.
    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 requiring 
Respondent to cease and desist from its practice of filing tariffs 
containing rules that call for automatic increases in movers' 
intrastate rates.
    Paragraph II of the proposed Order bars Respondent from filing a 
tariff that contains rules mandating automatic price increases. This 
provision will terminate Respondent's current practice of filing 
tariffs that contain such rules that are the product of an agreement 
among movers in the State of New Hampshire. This paragraph also 
prohibits Respondent from engaging in activities such as exchanges of 
information that would facilitate member movers' agreement to include 
such rules in their intrastate tariffs. For example, the order bars 
Respondent from providing certain non-public information to member 
carriers.\1\
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    \1\ A state statute requires carriers to keep their tariffs 
``open to public inspection.'' N.H. Rev. Stat. Sec.  375-A:9.
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    Paragraph III of the proposed Order requires Respondent to cancel 
all tariffs that it has filed that contain rules concerning automatic 
rate increases. This provision will ensure that the intrastate tariffs 
containing such rules now on file in the State of New Hampshire will no 
longer be in force, allowing for 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 a 
letter explaining the terms of the Order to its members engaged in 
moving household goods. This will make clear to members that they can 
no longer engage in activities prohibited by the Order.
    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

    Should the Commission issue a final Order in this matter, 
Respondent can seek to modify that Order to permit it to engage in 
collective action regarding prices if it can demonstrate that the 
``state action'' defense would apply to its conduct.\2\ The Commission 
has recently explained in detail the factors it would consider in 
determining whether the state action defense is met.\3\ At present, 
Respondent would not be able to establish that its conduct is covered 
by the state action defense because the State of New Hampshire does not 
actively supervise the tariffs filed by Respondent.
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    \2\ 16 CFR 2.51.
    \3\ See Analysis of Proposed Consent Order to Aid Public Comment 
in: Indiana Household Movers and Warehousemen, Inc. (Mar. 18, 2003) 
available at http://www.ftc.gov/os/2003/03/indianahouseholdmoversanalysis.pdf; Iowa Movers and Warehousemen's 
Association (Aug. 1, 2003) available at http://www.ftc.gov/os/2003/08/imwaanalysis.htm; and Minnesota Transport Services Association 
(Aug. 1, 2003) available at http://www.ftc.gov/os/2003/08/mtsaanalysis.htm.
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IV. Opportunity for Public Comment

    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 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. 03-27813 Filed 11-4-03; 8:45 am]
BILLING CODE 6750-01-P