Southern Rate Conf. v. United States, 471 U.S. 48 (1985)

JUSTICE STEVENS, with whom JUSTICE WHITE joins, dissenting.

The term "price-fixing" generally refers to a process by which competitors agree upon the prices that will prevail in the market for the goods or services they offer. Such behavior is not essential to every public program for regulating industry. In this case, for example, four Southern States have established programs for evaluating the reasonableness of rates that motor carriers propose to charge for intrastate transport, but the States do not require price-fixing by motor carriers. They merely tolerate it.

Reasoning deductively from a dictum in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980), the Court holds that Congress did not intend to prohibit price-fixing by motor carrier rate bureaus -- at least when such conduct is prompted, but not required, by a State Public Service Commission. The result is inconsistent with the language{1} and policies of the Sherman Act, and this Court’s precedent. The Sherman Act only would interfere with the regulatory process if the States compelled price fixing that is unlawful under federal law. In that situation, the regulated carriers would face conflicting obligations under state and federal law, and the success of the States’ regulatory programs would be threatened. Except under those circumstances, immunity from the antitrust laws under the state action doctrine is not available for private persons.{2}

I

Whatever may be its peculiar problems and characteristics, the Sherman Act, so far as price-fixing agreements are concerned, establishes one uniform rule applicable to all industries alike:{3}

agreements and combinations tampering with competitive price structures are unlawful. State legislatures, whose powers are limited by the Supremacy Clause,{4} may not expressly modify the obligations of any person under this federal law. Only Congress, expressly or by implication, may authorize price-fixing, and has done so in particular industries or compelling circumstances. Implied antitrust immunities, however, are disfavored{5} and any exemptions from the antitrust laws are to be strictly construed.{6} These "canon[s] of construction . . . reflec[t] the felt indispensable role of antitrust policy in the maintenance of a free economy." United States v. Philadelphia National Bank, 374 U.S. 321, 348 (1963).

Applying these principles, this Court has consistently embraced the view that "[r]egulated industries are not per se exempt from the Sherman Act." Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456 (1945). For many years prior to the enactment of the Sherman Act, state agencies regulated the business of insurance, but we rejected the view that these programs of public scrutiny supported "our reading into the Act an exemption" allowing insurance businesses to fix premium rates and agents’ commissions. United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 559 (1944). In South-Eastern Underwriters, the Court tersely observed that "if exceptions are to be written into the Act, they must come from Congress, not this Court." Id. at 561. Thereafter, in the McCarran-Ferguson Act of 1945, 59 Stat. 33, Congress decided, as a matter of policy, that the Sherman Act’s prohibition of price-fixing "shall [only] be applicable to the business of insurance to the extent that such business is not regulated by State Law." 15 U.S.C. § 1012(b).

Consistent with its treatment of the insurance business in South-Eastern Underwriters, this Court has repeatedly held that collusive price-fixing by railroads is unlawful even though the end result is a reasonable charge approved by a public rate commission.{7} Georgia v. Pennsylvania R. Co., 324 U.S. at 455-463.; United States v. Tans-Missouri Freight Assn., 166 U.S. 290, 337-340 (1897). In the Pennsylvania Railroad case, the Court explained why this is so:

The fact that the rates which have been fixed may or may not be held unlawful by the [Interstate Commerce] Commission is immaterial to the issue before us. . . . [E]ven a combination to fix reasonable and nondiscriminatory rates may be illegal. [Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156, 161 (1922)]. The reason is that the Interstate Commerce Act does not provide remedies for the correction of all the abuses of ratemaking which might constitute violations of the anti-trust laws. Thus a "zone of reasonableness exists between maxima and minima within which a carrier is ordinarily free to adjust its charges for itself." United States v. Chicago, M., St. P. & P. R. Co., 294 U.S. 499, 506 [1935]. Within that zone, the Commission lacks power to grant relief even though the rates are raised to the maxima by a conspiracy among carriers who employ unlawful tactics. . . . Damage must be presumed to flow from a conspiracy to manipulate rates within that zone.

324 U.S. at 460-461. Collusive price-fixing by regulated carriers causes upward pressure on rates within the zone of reasonableness, and such combinations and conspiracies are generally actionable under the Sherman Act on the theory of the Pennsylvania Railroad case.

Congress reacted to the Pennsylvania Railroad decision much as it reacted to the South-Eastern Underwriters decision. It decided, as a matter of policy, that some price-fixing should be permitted in the transportation industry, and enacted the Reed-Bulwinkle Act of 1948 to effectuate that policy choice.{8} In the Motor Carrier Act of 1980,{9} however, Congress sharply curtailed the availability of this antitrust exemption. Collective ratemaking is still permitted in limited circumstances, but rate bureaus must comply with strict procedural requirements. Seen.19, infra.

The defendants have stipulated that their price-fixing arrangements are identical to those followed by the Carrier Rate Committees in the Pennsylvania Railroad case which were declared unlawful under the Sherman Act. See App. 40-41. They also acknowledge that neither the Reed-Bulwinkle Act nor any other federal statute expressly exempts their price-fixing from the antitrust laws. Nevertheless, they contend that Congress would not have intended to prohibit collective ratemaking by intrastate motor carriers when it is permitted, but not required, by state law.

II

The basis for the defendants’ claim of implied immunity from the antitrust laws is the state action doctrine of Parker v. Brown, 317 U.S. 341 (1943). This Court, however, has repeatedly recognized that private entities may not claim the state action immunity unless their unlawful conduct is compelled by the State.

In the Parker case, this Court held that the Sherman Act does not reach "state action or official action directed by a state." Id. at 351. The case involved price-fixing that was mandated by a California statute in the furtherance of a price-support program for raisin farmers. The Court held that the price-fixing was not prohibited by the Sherman Act:

[T]he prorate program here was never intended to operate by force of individual agreement or combination. It derived its authority and its efficacy from the legislative command of the state, and was not intended to operate or become effective without that command. We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature.

Id. at 350-351. Under Parker, private anticompetitive conduct must be "directed" by the State to be eligible for the state action immunity.

In a later case involving price-fixing by attorneys through minimum fee schedules, the Court unanimously stated:

The threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign. Parker v. Brown, 317 U.S. at 350-352; Continental Co. v. Union Carbide, 370 U.S. 690, 706-707 (1962).

Goldfarb v. Virginia State Bar, 421 U.S. 773, 790 (1975). In Goldfarb, no state statute or Supreme Court rule required the defendant County Bar Association to adopt the minimum fee schedule, and this Court concluded that this

is not state action for Sherman Act purposes. It is not enough that, as the County Bar puts it, anticompetitive conduct is "prompted" by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign.

Id. at 791.

In Cantor v. Detroit Edison Co., 428 U.S. 579 (1976), the Court was also unanimous in its understanding that sovereign compulsion was a prerequisite for state action immunity.{10} The opinion for the Court observed that it has long been settled "that state authorization, approval, encouragement, or participation in restrictive private conduct confers no antitrust immunity." Id. at 592-593 (footnotes omitted).{11} The dissenting Justices agreed: "private conduct, if it is to come within the state action exemption, must be not merely `prompted’ but `compelled’ by state action." Id. at 637 (Stewart, J., dissenting, joined by POWELL and REHNQUIST, JJ.).

In Cantor, the Court only divided on the question whether the compulsion requirement alone was sufficient to confer antitrust immunity. The dissent argued that Congress would not have intended to penalize Detroit Edison for engaging in a light bulb distribution program that had been approved by the Michigan Public Service Commission and that could not be discontinued without approval of the Commission. Id. at 614-615. The Court, on the other hand, acknowledged that continuation of the light bulb program was ostensibly required by the State, but went on to consider whether an antitrust exemption for this conduct was fundamental to the State’s regulatory program. Since Michigan’s statutes only expressed an interest in regulating the electricity market, and not the light bulb market, the Court concluded that,

[r]egardless of the outcome of this case, Michigan’s interest in regulating its utilities’ distribution of electricity will be almost entirely unimpaired.

Id. at 598. Because the State had not articulated any intention to regulate the light bulb market, and the idea for the distribution program had come from the private utility, the State’s requirement that the program continue was not sufficient to establish state action immunity from the antitrust laws.

The Court’s unanimous decision in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980), signaled no departure from settled principles in this area. In discussing the principles of law applicable to state action immunity, the Court quoted extensively from the language in Parker and Goldfarb{12} that recognized the compulsion requirement. In any case, it was quite clear in Midcal that the California statutes required the unlawful resale price maintenance activities. Thus, this Court had no occasion in that case to explore the contours of the compulsion requirement. The references, in the Midcal opinion, to "clearly articulated and affirmatively expressed" policies and "actively supervised" activities merely restated the standards to be applied in evaluating whether conduct ostensibly compelled by the State is entitled to the state action immunity. These requirements limited the scope of the state action immunity for private entities; they did not expand the immunity to protect conduct that is merely prompted by the State.{13}

III

Today the Court abandons the settled view that a private party is not entitled to state action immunity unless the State compelled him to act in violation of federal law. Hereafter, a State may exempt price-fixing from the federal antitrust laws if it clearly articulates its intention to supplant competition with regulation in the relevant market, and if it actively supervises the unlawful conduct by evaluating the reasonableness of the prices charged. The Court justifies this change in the law by finding it more consistent with "principles of federalism and the goal of the antitrust laws, unfettered competition in the marketplace." Ante at 61. I believe these conclusions are unsound.

Deference to State Regulatory Programs

The Court’s reliance today on vague "principles of federalism" obscures our traditional disfavor for implied exemptions to the Sherman Act. We have only authorized exemptions from the Sherman Act for businesses regulated by federal law when "that exemption was necessary in order to make the regulatory Act work `and even then only to the minimum extent necessary.’"{14} No lesser showing of repugnancy should be sufficient to justify an implied exemption based on a state regulatory program.

Any other view separates the state action exemption from the reason for its existence. The program involved in the Parker case was designed to enhance the market price of raisins by regulating both output and price.{15} In other words, the state policy was one that replaced price competition with economic regulation. Price support programs like the one involved in Parker cannot possibly succeed if every individual producer is free to participate or not participate in the program at his option. In Parker, the challenged price-fixing was the heart of California’s support program for agriculture; without immunity from the Sherman Act, the State would have had to abandon the project.

In this case, the common denominator in the States’ regulatory programs for motor carriers is their reservation of the power to evaluate the reasonableness of proposed rates and terms of carriage.{16} In these programs,

no State requires that all rates among competing carriers for identical service be uniform, [and] no State requires, either by statute or regulation, or other express legislative or administrative mandate, that rates proposed by carriers be formulated by rate conferences.

467 F.Supp. 471, 477 (ND Ga.1979). When, as here, state regulatory policies are permissive, rather than mandatory, there is no necessary conflict between the antitrust laws and the regulatory systems; the regulated entity may comply with the edicts of each sovereign. Indeed, it is almost meaningless to contemplate a "regulatory" policy that gives every regulated entity carte blanche to excuse itself from the consequences of the regulation. Even a policy against speeding could not be enforced if every motorist could drive as fast as he chose. When a State declares that a regulated entity need not follow a regulatory procedure, it as much as admits that this element is inconsequential to the ultimate success of the regulatory program.{17}

As I have noted, the Reed-Bulwinkle Act{18} authorizes collective ratemaking by interstate carriers under some circumstances. The Court doubts whether "Congress intended to prevent the States from adopting virtually identical policies at the intrastate level." Ante at 60, n. 22. The Reed-Bulwinkle exemption, however, has been abolished for single-line rate requests, and to the extent that it still applies to general rate requests, the rate bureaus must follow stringent procedural safeguards which channel their conduct into useful informational tasks, and thereby diminish the threat of anticompetitive misconduct.{19} Even if there were sound policy reasons{20} for extending the Reed-Bulwinkle exemption, as amended, to a state regulatory program that did not contain comparable procedural safeguards,

[t]hese considerations are . . . not for us. . . . Congress is the body to amend [the statute], and not this court, by a process of judicial legislation wholly unjustifiable.

United States v. Trans-Missouri Freight Assn., 166 U.S. at 340.

The Policy of Competition

The Court embraces the defendants’ specious argument that

insofar as it encourages States to require, rather than merely permit, anticompetitive conduct, a compulsion requirement may result in greater restraints on trade.

Ante at 61. The Court finds this "result" inconsistent with the policies of the Sherman Act. This argument is seriously flawed.

On a practical level, the Court’s argument assumes that a decision for the Government today would cause the States to rush into enactment legislation compelling price-fixing in the motor carrier industry. Moreover, the Court’s argument assumes that a Congress that only recently has acted to increase competition in the interstate motor carrier field would remain silent in the face of anticompetitive legislation at the intrastate level. These assumptions are wholly speculative.

On a more theoretical level, the Court ignores the anticompetitive effect of the collective ratemaking practices challenged in this litigation.{21} The Court of Appeals correctly observed that

[c]ollective [rate] formulation clearly tampers with the price structure for intrastate commodities; the rate bureau arrangement substitutes concerted pricing decisions among competing carriers for the influence of impersonal market forces on proposed rates.

672 F.2d 469, 478 (CA5, Unit B, now CA11, 1982). The increased rates for transportation caused by this behavior are especially grave in a basic industry, like transportation, where the ripple effects of the increased rates are magnified as raw materials, semifinished and finished goods are transported at various stages of production and distribution.

Active supervision of the rate bureau process -- like that provided in the Motor Carrier Act of 1980 -- might minimize the anticompetitive effects of collective ratemaking. To the extent that the State Regulatory Commissions are structured like the ICC in the Pennsylvania Railroad case, however, they only have the power to reject the rates proposed by the carriers if those rates fall outside the "zone of reasonableness." Unless the Commissions "actively supervise" the price-fixing process itself, they cannot eliminate the upward pressure on rates caused by collusive ratemaking.{22} Unfortunately, the nature of the "active supervision" of those carriers who take part in collective ratemaking is not fully disclosed by the record.{23}

IV

Whether it is wise or unwise policy for the Federal Government to seek to enforce the Sherman Act in this case is not a question that this Court is authorized to consider. The District Court and the Court of Appeals correctly applied established precedent in holding that the Government is entitled to an injunction against the defendants’ price-fixing. Such price-fixing is unlawful unless it is expressly authorized by statute, or required by a State’s regulatory program. Today the Court authorizes collective ratemaking by intrastate motor carriers even though the State has only permitted it in a program regulating the reasonableness of prices in the industry. Immunity of this type was rejected by the Court in the South-Eastern Underwriters and Pennsylvania Railroad cases, but today, under the shroud of the state action doctrine,{24} it is resurrected.

Accordingly, I respectfully dissent.

1.

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.

15 U.S.C. § 1.

2. Of course, public agencies like municipalities need only establish that their anticompetitive conduct is taken pursuant to a clearly articulated and affirmatively expressed state policy. Hallie v. Eau Claire, ante at 46-47. The less stringent requirement reflects the presumption "that the municipality acts in the public interest." Ante at 45; cf. Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1571-1572 (CA5 1984) (en banc) (Higginbotham, J., concurring), cert. pending, No. 84-951.

3. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222 (1940); see also Goldfarb v. Virginia State Bar, 421 U.S. 773, 785 (1975); United States v. McKesson & Robbins, Inc., 351 U.S. 305, 309-310 (1956); United States v. Paramount Pictures, Inc., 334 U.S. 131, 143 (1948).

4.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S.Const., Art. VI, cl. 2.

5. E.g., National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City, 452 U.S. 378, 388-389 (1981); United States v. National Assn. of Securities Dealers, Inc., 422 U.S. 694, 719-720 (1975).

6. E.g., Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 231 (1979); Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 U.S. 1, 11 (1976).

7.

In [Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156 (1922)], the suit was one for damages under the Sherman Act. The charge was that the defendant carriers had formed a rate bureau or committee to secure agreement in respect to freight rates among the constituent railroad companies which would otherwise be competing carriers. As we have seen, the Court held that damages could not be recovered. But Mr. Justice Brandeis, speaking for a unanimous Court, stated that a conspiracy to fix rates might be illegal though the rates fixed were reasonable and nondiscriminatory. He said . . . :

All the rates fixed were reasonable and nondiscriminatory. That was settled by the proceedings before the Commission. . . . But under the Anti-Trust Act, a combination of carriers to fix reasonable and nondiscriminatory rates may be illegal; and if so, the Government may have redress by criminal proceedings under § 3, by injunction under § 4, and by forfeiture under § 6. That was settled by United States v. Trans-Missouri Freight Association, 166 U.S. 290 [1897], and United States v. Joint Traffic Association, 171 U.S. 505 [1898]. The fact that these rates had been approved by the Commission would not, it seems, bar proceedings by the Government.

[260 U.S. at 161-162].

Georgia v. Pennsylvania R. Co., 324 U.S. 439, 457-458 (1945). Although the Court in Pennsylvania Railroad was divided on the question whether Georgia could pursue its antitrust remedy by invoking this Court’s original jurisdiction, the dissenting Justices recognized that the United States could obtain an injunction against the alleged price-fixing in an appropriate forum. See id. at 484, 489 (Stone, C.J., dissenting). It is, of course, the United States that seeks relief in the case now before us.

8.

Parties to any agreement approved by the Commission under this section and other persons are . . . hereby relieved from the operation of the antitrust laws with respect to the making of such agreement, and with respect to the carrying out of such agreement in conformity with its provisions and in conformity with the terms and conditions prescribed by the Commission.

62 Stat. 473. The current version of the exemption is codified at 49 U.S.C. § 10706(b)(2).

9. 94 Stat. 803, 49 U.S.C. §§ 10706(b)(3)(B) (D).

10. See, e.g., Cantor v. Detroit Edison Co., 428 U.S. at 609 (BLACKMUN, J., concurring in judgment).

11. For the proposition stated, the Court relied on Goldfarb v. Virginia State Bar, 421 U.S. at 791; Continental Co. v. Union Carbide, 370 U.S. 690, 706-707 (1962); Parker v. Brown, 317 U.S. 341, 351 (1943); Union Pacific R. Co. v. United States, 313 U.S. 450, 467-468 (1941); and Northern Securities Co. v. United States, 193 U.S. 197, 346 (1904).

12.

Several recent decisions have applied Parker’s analysis. In Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), the Court concluded that fee schedules enforced by a state bar association were not mandated by ethical standards established by the State Supreme Court. The fee schedules therefore were not immune from antitrust attack.

It is not enough that . . . anticompetitive conduct is "prompted" by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign.

Id. at 791.

445 U.S. at 104.

13. As in Cantor, the Court concluded in the Midcal case that the State’s ostensible compulsion of the resale price maintenance program was not alone sufficient to confer state action immunity. The State neither set the prices nor reviewed their reasonableness, nor did it monitor market conditions and evaluate the effectiveness of the program. Under those conditions, the

State simply authorizes price setting and enforces the prices set by private parties. . . . 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.

445 U.S. at 105-106.

14. Cantor v. Detroit Edison Co., 428 U.S. at 597 (quoting Silver v. New York Stock Exchange, 373 U.S. 341, 357 (1963)). In United States v. National Assn. of Securities Dealers, the Court pointed out that

[i]mplied antitrust immunity is not favored, and can be justified only by a convincing showing of clear repugnancy between antitrust laws and the regulatory system. See, e.g., United States v. Philadelphia National Bank, 374 U.S. at 348; United States v. Borden Co., 308 U.S. 188, 197-206 (1939).

422 U.S. at 719-720; see also nn. 5, 6, supra. These cases are, of course, consistent with the "cardinal rule," applicable to legislation generally, that repeals by implication are not favored. Posadas v. National City Bank, 296 U.S. 497, 503 (1936).

15.

The California Agricultural Prorate Act authorizes the establishment, through action of state officials, of programs for the marketing of agricultural commodities produced in the state, so as to restrict competition among the growers and maintain prices in the distribution of their commodities to packers. The declared purpose of the Act is to "conserve the agricultural wealth of the State" and to "prevent economic waste in the marketing of agricultural products" of the state.

317 U.S. at 346.

The declared objective of the California Act is to prevent excessive supplies of agricultural commodities from "adversely affecting" the market, and although the statute speaks in terms of "economic stability" and "agricultural waste," rather than of price, the evident purpose and effect of the regulation is to "conserve agricultural wealth of the state" by raising and maintaining prices, but "without permitting unreasonable profits to producers."

Id. at 355.

16. See Ga.Code Ann. §§ 46-2-25(b), 46-7-18 (Supp.1984); Miss.Code Ann. §§ 77-7-217, 77-7-221 (1972); N.C.Gen.Stat. §§ 62-134(b), 62-146, 62-147 (1982); Tenn.Code Ann. §§ 65-5-203, 65-15-119 (1982).

17. By consolidating petitions for rate modifications, collective ratemaking arguably preserves the resources of the state regulatory Commissions and promotes simplicity and uniformity in the intrastate rate structure. See App. 60-61, 83-84, 90-91. Under the statutes governing the state regulatory programs, however, the carriers may, at any time, decline to participate in collective ratemaking, and deprive the States of these purported advantages. Ante at 51. That being so, it is difficult for the States to argue that these facets of their regulatory systems are essential to the program’s success. Brief for State of Iowa et al. as Amici Curiae 6 ("The authorization of the price-fixing agreement, collective ratemaking, by the states serves no cognizable state interest").

The States also contend that the defendants provide a valuable information-gathering service for motor carriers. App. 60-61, 84, 90. The District Court’s final judgment, however, would not have interfered with this function. Id. at 99 ("Each defendant may provide statistical and other economic data and advice to any carrier wishing to avail itself of defendants’ expertise").

18. Seen. 8, supra.

19. Under the exemption, as amended, the ratemaking conferences, among other things, must disclose the names of their members and affiliates of their members, 49 U.S.C. § 10706(b)(3)(A); the organization must limit discussion and voting to allowed subjects and parties, § 10706(b)(3)(B)(i);

the organization may not file a protest or complaint with the Commission against any tariff item published by or for the account of any motor carrier,

§ 10706(b)(3)(B)(iii);

the organization may not permit one of its employees or any employee committee to docket or act upon any proposal effecting a change in any tariff item,

§ 10706(b)(3)(B)(iv);

upon request, the organization must divulge to any person the name of the proponent of a rule or rate docketed with it, must admit any person to any meeting at which rates or rules will be discussed or voted upon, and must divulge to any person the vote cast by any member carrier on any proposal before the organization,

§ 10706(b)(3)(B)(v); and the organization shall make a final disposition of rate proposals within 120 days, § 10706(b)(3)(B)(vii). See generally ICC v. American Trucking Assn., Inc., 467 U.S. 354 (1984).

20. In the legislative history of the 1980 Motor Carrier Act, however, Congress suggested otherwise:

During the course of its hearings, the Committee heard a good deal of criticism of the rate bureau process. . . . The disadvantage is that the system inherently tends to result in rates that will be compensatory for even the least efficient motor carrier participating in the rate discussions. When this happens, consumers lose the benefit of price competition that would occur if more efficient carriers were able to offer more attractive rates. Another serious problem has been the closed nature of the rate bureau proceedings. Voting upon specific rate proposals is done behind closed doors.

S.Rep. No. 96-641, p. 13 (1980). See also H.R.Rep. No. 96-1069, p. 27 (1980).

21.

It has been held too often to require elaboration now that price-fixing is contrary to the policy of competition underlying the Sherman Act, and that its illegality does not depend on a showing of unreasonableness, since it is conclusively presumed to be unreasonable.

United States v. McKesson & Robbins, Inc., 351 U.S. at 309-310.

22. The Court of Appeals, however, found that the State Commissions’ scrutiny of the reasonableness of proposed rates satisfies the active supervision requirement. 702 F.2d 532, 539, n. 12 (CA5, Unit B, now CA11, 1983) (en banc).

23. Some of the States’ statutes and implementing regulations indicate that the process of collective ratemaking is being supervised on a limited basis. See, e.g., N.C.Gen.Stat. § 62-152.1(c) (1982); Ga.Pub.Serv.Comm’n Rule 1-3-1-.14 (1983); Tenn.Pub.Serv.Comm’n Rule 1220-2-1-.40 (1974).

24. Since the Court does not reach it, ante at 53, n. 11, 55, n. 17, I do not address the merits of the Noerr-Pennington question. See Mine Workers v. Pennington, 381 U.S. 657 (1965); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).