Kentucky Household Goods Carriers Ass'n v. Federal Trade Commission

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0615n.06
Filed: August 22, 2006
No. 05-4042
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KENTUCKY HOUSEHOLD GOODS )
CARRIERS ASSOCIATION, INC., )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF AN
) ORDER OF THE FEDERAL TRADE
FEDERAL TRADE COMMISSION, ) COMMISSION
)
Respondent. )
Before: DAUGHTREY and COOK, Circuit Judges; and COLLIER, District Judge.*
PER CURIAM. Kentucky Household Goods Carrier Association petitions this court for
review of a Federal Trade Commission order affirming an administrative law judge’s decision that
the Association’s ratemaking activities constituted unlawful horizontal price fixing, unexempted
from antitrust scrutiny by the “state-action” doctrine. We agree with the Commission and adopt as
the panel’s opinion, the reasoning, findings of fact, and legal conclusions of the ALJ’s decision, as
reviewed and explained in the Commission’s order, and briefly discuss the arguments posed by this
appeal.
*
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 05-4042
Kentucky Household v. FTC
In view of the scant evidence demonstrating that the Kentucky Transportation Cabinet, the
state agency authorized to fix or approve the rates charged by the Association’s members, actively
supervised the Association, we cannot say the Commission erred in finding the state-action doctrine
inapplicable here. Among other things, the Cabinet held no hearings regarding the Association’s
proposed rate increases, provided no notice of impending rate changes, and published no written
decision explaining its reasons for implementing rate changes. This inaction demonstrates that the
state did not exercise “sufficient independent judgment and control so that the details of the rates
or prices [were] established as a product of deliberate state intervention.” FTC v. Ticor Title Ins.
Co., 504 U.S. 621, 634 (1992). The spurious distinctions the Association draws between its case
and the authorities relied upon below, namely Ticor, 504 U.S. 621 and Cal. Retail Liquor Dealers
Ass’n v. Midcal Aluminum, 445 U.S. 97 (1980), do not convince us otherwise.
Moreover, the Cabinet did not participate in the trial before the ALJ (except to make a
closing argument) or seriously pursue intervention on appeal. And the state attorney general, in its
amicus curiae brief filed in support of the Commission, asserted: “[T]he FTC’s Decision and Order
is consistent with and fully supported by Kentucky law.” Such lackluster support for the claimed
ratemaking role played by the state (the intended beneficiary of the state-action exemption) further
supports the Commission’s conclusion that the exemption is inapplicable here. Cf. Midcal, 445 U.S.
at 112 n.12 (commenting the State of California “has shown less than an enthusiastic interest in its
wine pricing system” in finding that the state-action exemption did not apply).
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No. 05-4042
Kentucky Household v. FTC
We deny the petition for review.
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