On Petition for Review of an Order of the Interstate Commerce Commission
Before Fairchild, Chief Judge, Swygert, Circuit Judge, and Jameson, Senior District Judge.*fn*
In this action for review, filed pursuant to 28 U.S.C. §§ 2321 and 2342, petitioners (a number of railroads and the Association of American Railroads) seek to set aside an order of the Interstate Commerce Commission requiring railroads to publish tariffs setting forth operating schedules between major terminals and interchange points.*fn1
I. Proceedings Before Interstate Commerce Commission
In 1970 and 1971 various railroads sought and obtained increases in their tariffs. In these "general rate" cases,*fn2 numerous shippers complained of rail service deficiencies. In response to the shipper complaints, the Interstate Commerce Commission (ICC), on November 5, 1971, instituted a massive investigation into all aspects of railroad carrier service. (Ex Parte No. 270, (Sub No. 2)). All railroads subject to the jurisdiction of the Commission were made respondents in this proceeding. A former member of the Commission was appointed Coordinator of the investigation. Written statements were solicited and received from rail carriers, shippers, and other interested parties, including the Special Projects Staff (SPS) of the Commission's Bureau of Enforcement. In 1975 the proceeding was reopened to receive additional comments.
On April 2, 1976, the Coordinator filed a comprehensive report,*fn3 in which he made 14 findings, including as Finding No. 3 that the railroads "should be Requested to prepare and publish service schedules . . .". 345 ICC at 1310.*fn4 (Emphasis added.) Exceptions to the Coordinator's Report were filed by petitioners, shippers, and the SPS. The full Commission then considered the Coordinator's Report, the exceptions thereto, and prior reports.
The Commission in its decision of July 19, 1978, provided, Inter alia, that "tariff" publications of railroad operating schedules involving transportation of nonperishable commodities between major terminals and interchange points be Required.*fn5 If carriers did not comply by publishing their operating schedules within 210 days, the Commission would take "such further action as may be necessary". 345 ICC at 2969-70. It is this portion of the Commission's order petitioners seek to set aside.
II. Contentions on Petition for Review
Petitioners contend that (1) the Commission is without jurisdiction to require railroads to publish operating schedules in "tariff form"; (2) if the ICC did have jurisdiction to require tariff publication of operating schedules, there is no rational basis in the record to support this requirement; and (3) if the ICC did have jurisdiction, it has lapsed because of the failure to conclude the investigation within the time prescribed by Section 17(14)(b) of the Interstate Commerce Act, 49 U.S.C. § 17(14)(b).*fn6
III. Section 6 of Interstate Commerce Act
Petitioners argue that Section 6 of the Interstate Commerce Act, 49 U.S.C. § 6, is the only section of the Act which deals with the scope and content of tariffs, and that under this section "tariffs" apply only to "rates, fares and charges" and may not be extended to include operating schedules. The Commission contends that section 6 merely sets minimum standards and that under the "modern view" of agency powers tariff publication of schedules is permissible, since it is not expressly prohibited by section 6.
It is well settled that "tariffs bind both carriers and shippers with the force of law. Under § 6 of the Interstate Commerce Act the carrier cannot deviate from the rate specified in the tariff for any service in connection with the transportation of property". Lowden v. Simonds, etc., Grain Co., 306 U.S. 516, 520, 59 S. Ct. 612, 614, 83 L. Ed. 953 (1939).*fn7
Section 6 provides in pertinent part:
(1) Every common carrier subject to the provisions of this chapter shall file with the Commission . . . and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. . . . The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed, and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee. . . .
(3) No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commission and to the public . . . Provided, That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions: Provided further, That the Commission is authorized to make suitable rules and regulations for the simplification of schedules of rates, fares, charges, and classifications and to permit in such rules and regulations the filing of an amendment of or change in any rate, fare, charge, or classification without filing complete schedules covering rates, fares, charges or classifications not changed if, in its judgment, not inconsistent with the public interest.
(6) The schedules required by this section to be filed shall be published, filed, and posted in such form and manner as the Commission by ...