454
Thomas, J., dissenting
§ 1312.4(d) (1993) is precisely the question we are asked to answer.5
In failing even to consider the Commission's authority to promulgate the void-for-nonparticipation rule, and thereby to void effective tariffs, the Court also fails to consider any limit the Act might place on that authority. Under the Court's holding, it would appear that the Commission could provide that tariffs will become void, without "any agency action at all," ante, at 442, because of any number of technical or substantive defects, all in the name of enforcing the provisions of the Act and ICC regulations. In each instance, noncompliance would enable a carrier and preferred shippers to negotiate more favorable rates with the assurance that the rate on file could not be enforced. Until the Commission examines the carrier's tariff carefully and sets it aside (actions ostensibly made unnecessary by the void-for-nonparticipation rule), the unfiled rates, rather than the filed-but-void tariff, will govern the relationship between the parties.
The unfortunate lesson for the Commission is that its Court-sanctioned voiding power provides the key to unraveling the Act's filed rate requirements.6 If the Court is correct, the Commission's mistake in Maislin was its choice of remedies, not its objective. In Maislin, the Commission attempted to justify its policy of refusing to enforce a filed tariff rate where the parties had negotiated a different rate
5 The Court's suggestion that the carrier "cannot have it both ways," ante, at 440—that is, that it cannot rely rigidly on the filed rate doctrine in some cases to enforce the effective rates on file with the Commission and at the same time not suffer the harsh consequences of the doctrine when its rate on file is ineffective—presents the same problem. The Court assumes that there is no filed rate to bind any party in the absence of current participation in the HGCB distance guide.
6 It is also worth noting that the Court's rationale should apply equally to other agencies operating under filed rate regimes, such as, for example, the Federal Communications Commission. See 47 U. S. C. § 203 (1988 ed. and Supp. IV).
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