between the filed rate and unpublished negotiated rate, this practice was unreasonable.
The regulations in the present case are of an entirely different nature. In some cases, it will be determined that the carrier did comply with the credit regulations, and in those instances the filed rate will be recoverable. In other cases, and this is what defendant is asserting here, the carrier will not have complied with the regulations and therefore not be entitled to recover the full filed rate. Accordingly, it remains for the ICC to determine first, whether these credit regulations have been complied with.
For the foregoing reasons, this court rejects the Transcon analysis. The Transcon court overlooks the fact that 49 U.S.C. § 10743(b)(1) allows one exception to the filed rate doctrine, that the ICC can make regulations to that effect. Indeed, the Interstate Commerce Act grants the ICC the power to decide whether a loss-of-discount remedy is applicable when applying the regulations. To hold as did the court in Transcon, in effect renders meaningless all the conditions to an extension of credit in 49 C.F.R. 1320-29. The regulations outlined by the ICC pursuant to its granted authority must be complied with before a carrier can invoke a loss-of-discount remedy. Otherwise, the ICC is stripped of authority as granted by Congress in the Interstate Commerce Act.
United States v. Western Pacific R.R. Co., 352 U.S. 59, 77 S. Ct. 161, 1 L. Ed. 2d 126 (1956) supports this finding. In Western Pacific, the plaintiff sued the United States to recover the difference between the tariff rates actually paid and the filed rates. The government motioned to refer the proceedings to the ICC to decide whether the tariff was a reasonable practice. Western Pacific, 352 U.S. at 61. At issue was whether the tariff was applicable to the particular shipments. In concluding that the ICC had primary jurisdiction over the matter, the Supreme Court stated:
Where words in a tariff are used in a peculiar or technical sense, and where extrinsic evidence is necessary to determine their meaning or proper application, so that 'the inquiry is essentially one of fact and of discretion in technical matters,' then the issue of tariff application must first go to the Commission.
Western Pacific, 352 U.S. at 65 (quoting Great Northern R.R. Co. v. Merchants Elevator Co., 259 U.S. 285, 66 L. Ed. 943, 42 S. Ct. 477 (1922)).
The Court held that both the issues of tariff construction and the filed rate reasonableness were within the primary jurisdiction of the ICC. Western Pacific, 352 U.S. at 69 ("Where . . . the questions of construction and reasonableness are so intertwined that the same factors are determinative on both issues, then it is the Commission which must first pass on them.").
In the instant case, this court finds that the determination of whether plaintiff has complied with the ICC's credit regulations is analogous to the determination in Western Pacific concerning the construction and application of the tariff. Therefore, this court will refer the entire matter to the ICC. As the ICC has promulgated these regulations pursuant to congressional authority, the ICC, an agency with expert and specialized knowledge in this field, must be the forum that first considers whether plaintiff has complied with the applicable credit regulations.
For the foregoing reasons, this court grants defendant's motion for stay of proceedings and referral to the Interstate Commerce Commission. Further, this court refers to the Interstate Commerce Commission the following issues: (1) whether plaintiff has complied with the necessary regulations in order to be granted a loss-of-discount remedy; and (2) if so, whether the filed rate which plaintiff now seeks is "reasonable" pursuant to 49 U.S.C. 10701(a).
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: October 16, 1992