Lowering the Filed Tariff Shield: Judicial Enforcement for a Deregulatory Era

The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend resources in using the regulator as a strategy to immunize conduct from antitrust and common law antitrust claims. This Article assesses how the filed tariff doctrine creates an opportunity for strategic manipulation of the tariffing process, encouraging firms to rent seek by over-divulging information to regulators. Neither regulators nor courts are equipped or inclined to police such manipulation, resulting in an expansion of the application of the filed tariff shield. Under natural monopoly regulation, the filed tariff doctrine may have enhanced social welfare, to the extent it encourage private firms to focus their resources on the agency regulatory process. However, as regulation has moved away from the natural monopoly model, the filed tariff doctrine has contributed to a jurisdictional gap in the enforcement of market norms. As a result, federal regulators are unable to effectively deter private misconduct but common law and antitrust claims that also hold promise of deterrence are frequently barred from litigation in federal courts. With deregulation and the broadening of market norms, the jurisdictional gap has widened, threatening harm to consumers and competition. The Article concludes by proposing a way for courts to narrow the gap in enforcement of market norms - by lowering the filed tariff shield and looking to federal preemption law and antitrust defenses and immunities. These alternative doctrines provide courts the flexibility necessary to ensure effective deterrence in a dual enforcement regime. Although they may enhance uncertainty for private firms, the also hold promise to encourage private actors to focus their lobbying efforts on Congress, rather than on agencies that can give them the benefits of the filed tariff shield but lack the authority and resources to directly regulate them