Before EDGERTON, Chief Judge, and PRETTYMAN and BASTIAN, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Lines, Inc., Trans World Airlines, Inc.,
Date Decided: June 12, 1958.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDGERTON
On Petition for Rehearing.
On March 18, 1957, after a rule-making proceeding in which it had previously reached different conclusions, the Civil Aeronautics Board decided that § 404(a) of the Civil Aeronautics Act, 52 Stat. 993, 49 U.S.C.A. § 484(a), does not contemplate establishment of "joint rates" by airlines and freight forwarders; that § 412, 52 Stat. 1004, 49 U.S.C.A. § 492, does not authorize the Board to approve agreements between air freight forwarders and airlines fixing rates for air transportation which would otherwise violate the rate-making provisions of the Act; but that special reduced rates for air freight forwarders are not necessarily unlawful and a regulation prohibiting the filing of such rates by airlines would be premature. Airborne Freight Corporation asks us to review and set aside this decision of the Board.
Airborne assembles and ships air freight. Such shippers are called "air freight forwarders" and sometimes described as "indirect air carriers". Airborne contends it is an "air carrier" within the meaning of § 404(a) of the Act which provides that every "air carrier" shall provide through service "in connection with other air carriers" and shall establish "joint rates"; and § 412 which provides that any "agreement" of an "air carrier" with "any other air carrier" shall be filed with the Board. Airborne says it may therefore make, and file with the Board, agreements with airlines by which it will pay lower rates for air transportation than the rates specified in the currently effective tariffs of the airlines.
In the light of United States v. Storer Broadcasting Co., 351 U.S. 192, 198, 76 S. Ct. 763, 100 L. Ed. 1081, we think Airborne has standing to sue. Accordingly our opinion of May 1, 1958 is withdrawn and our judgment dismissing the petition for review is vacated. We find no error in the Board's order.