The so-called filed rate doctrine immunizes from private antitrust damage claims relating to utility rates that have been approved as reasonable by a regulatory agency. The Sixth Circuit has ruled in Williams v. Duke Energy Int'l, both: (i) that the doctrine did not apply to unfiled secret price concessions granted to favored large retail customers by Duke Energy Corp. ("Duke"), a supplier of electricity, and (ii) that price discriminations in the retail sale of electricity involve a "commodity" subject to the Robinson-Patman Act, rather than a "service" or "intangible " outside the coverage of the Act.
The Sixth Circuit's Decision
The decision resuscitates a putative class action that had been dismissed by the district court on the ground that it lacked jurisdiction because it involved a challenge to a filed rate that should have been brought before the Public Utilities Commission of Ohio ("PUCO"). The Court of Appeals disagreed, declaring that the lower court did in fact have jurisdiction. It stressed: "The filed rate doctrine bars challenges to the reasonableness of a filed rate. Plaintiffs' challenge does not concern the particular rate set by the PUCO, but rather payments made outside the rate scheme." The Sixth Circuit explained that the plaintiffs "do not challenge whether the rates set by the PUCO were reasonable; rather, they contend that [Duke] conspired to aid certain favored companies in avoiding paying the actual filed rate, and that this action . . . harmed plaintiffs by giving the favored companies competitive advantage." Specifically, the plaintiffs had claimed that Duke gave an unfair competitive advantage to some of its largest retail customers by paying them undisclosed substantial rebates in exchange for their withdrawal of objections to the proposed plan below those approved by the PUCO.
In further explaining its ruling, the Sixth Circuit described the purposes of the filed rate doctrine as preventing utility discrimination and preserving the role of administrative agencies in approving rates. In contrast, the challenge brought to the district court did not concern a particular rate set by the PUCO, but undisclosed payments made outside the rate scheme which were "not approved by, filed with, or even supervised by the PUCO." The operative focus of the doctrine is on the term "filed with." Just because the challenged rebate was a rate did not protect it under the doctrine because it was never filed. Plaintiffs did not challenge the reasonability of the filed rate. They claimed instead that the favored customers was not being charged the filed rate, thus the gravamen of their Robinson Patman Act claim for price discrimination.
(1) The filed rate doctrine. The Sixth Circuit quoted a First Circuit opinion to the effect that it is "the filing of the tariffs . . . that triggers the filed rate doctrine." Filing in this context mean the final rates that became effective, not simply the ministerial act of filing, pending their effective date. Approval, however, is not a requirement of the filed rate doctrine.
(2) The Robinson-Patman Act Claim. Section 2(a) of the Robinson-Patman Act, the price discrimination provision, only covers sales of "commodities." Thus, the Act does not apply to the sale of services or intangibles. Most courts considering the issue have ruled that electric power is a tangible product. In the words of the leading case, "electric power can be felt . . . It is produced, sold, stored in small quantities, transmitted and distributed in discrete quantities." In support of its determination, the Panel relied on an earlier Sixth Circuit decision that referred to that quote favorably in dictum. There is at least one adverse district court ruling that was recognized by the Sixth Circuit, but it specifically disagreed with that view. Nevertheless, the issue is not free from doubt.
The Sixth Circuit has reaffirmed the vitality of the filed rate doctrine for rates that are filed, but not as to unfiled rates. It is questionable whether earlier precedent written in an era of tightly regulated uniform electricity pricing is still factually relevant to support a Robinson-Patman claim that electricity is a commodity rather than an intangible whose price changes rapidly to reflect demand changes and an inability to store effectively.