Letter Opinion 1970 No. 114

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                                                                 August 19, 1970
 
 
 
Honorable Robert D. Timm
Chairman
Washington Utilities and
Transportation Commission
Insurance Building
Olympia, Washington 98501
                                                                                                             Cite as:  AGLO 1970 No. 114
 
 
Dear Mr. Timm:
 
            By a letter previously acknowledged, you have requested the opinion of this office on two questions which we paraphrase as follows:
 
            (1) Under the applicable statutes and rules, may shippers propose changes in the rates of regulated motor carriers to the Utilities and Transportation Commission for hearing and disposition under WAC 480-12-295?
 
            (2) In the event that the first question is answered in the negative, is there any other procedure authorized by statute or rule which would permit shippers to seek changes in carrier rates?
 
            It is our opinion that the first of these questions requires a negative reply and that the second question may be answered affirmatively, as detailed below.
 
                                                                     ANALYSIS
 
            An inquiry identical to your first question has been previously made of this office and answered in the negative in an opinion addressed to the predecessor of the Commission March 22, 1940.  At that time we analyzed the requirements of the applicable statutory provisions and rules, particularly RRS 6382-11, RRS 6382-11a and RRS 10422, and Commission Rule 19-1/2 (providing for what is commonly referred to as the docket procedure).  Observing that common carriers have a commonly recognized right to initiate changes in their established rates, we concluded that RRS 6382-11a did no more than to transfer from the carrier to the Commission the duty of publishing the rates and that Rule 19-112 provided a procedural means for initiating proposed changes in the published rates.  The carriers' right to initiate changes in such rates was preserved, subject to consideration by the Commission as to reasonableness.
 
             [[Orig. Op. Page 2]]    These statutes are now codified as RCW 81.80.130, RCW 81.80.150 and RCW 81.04.110, respectively.  The rule became Commission Rule 57 and is now codified as WAC 480-12-295.  During the years that have intervened since our prior opinion, there have been various amendments to these authorities.  We have examined those changes and are convinced that none would necessitate or warrant a change at this time from our prior opinion.
 
            In fact, that opinion appears to be reinforced by certain of these amendments.  By section 5, chapter 205, Laws of 1957, a proviso was added to RCW 81.80.130, allowing the Commission to approve rates filed by common carriers when it found it to be impractical to fix and publish rates itself.  A corresponding change in RCW 81.80.150 was made by section 6 of that act permitting the Commission under certain conditions to authorize common carriers to publish and file tariffs.  Both of these amendments seem to represent a legislative acknowledgment that, although in certain instances the Commission is not required to publish motor carrier rates, the legislature continues to adhere to the principle that the motor carriers alone, with the Commission, have the power to initiate tariff changes for commodities.  WAC 480-12-295 is similarly limited in accordance with these statutory requirements.  Thus, there appears to be no legal basis for a holding that shippers are permitted to initiate changes in carrier rates under RCW 81.80.150 and WAC 480-12-295.  On the other hand, as our earlier opinion indicates, legal and reasonable arguments are readily available for limiting the power to make such proposals to the carriers themselves.  Consequently, we answer your first question by adhering to our opinion that rate changes of regulated motor carriers may not be initiated by shippers or shipper associations for hearing and disposition under WAC 480-12-295.
 
            In response to your second question, we are of the opinion that shippers are not without recourse to seek rate adjustments notwithstanding the unavailability of WAC 480-12-295.  As was indicated in the 1940 opinion, RCW 81.04.110 (which was RRS 10422 at that time) provides for the filing and processing of complaints against public service companies for violation of law or Commission rule.  Said statute reads in pertinent part:
 
            "Complaint may be made by the commission of its own motion or by any person or corporation, chamber of commerce, board of trade, or any commercial, mercantile, agricultural or manufacturing society, or any body politic or municipal corporation, by petition or complaint in writing, setting forth any act or thing done or omitted to  [[Orig. Op. Page 3]] be done by any public service corporation in violation, or claimed to be in violation, of any provision of law or of any order or rule of the commission."
 
            A carrier might be committing such a violation by his failure to charge just, fair, reasonable and sufficient rates as required by RCW 81.28.010.  A complaint to that effect would thus bring to the Commission the necessity of determining such a just and reasonable rate.  Once such a rate has been ascertained, the Commission would be in a position to proceed under RCW 81.28.230 to establish a new rate and require that it be followed by the carrier.
 
            In summary, we adhere to our earlier opinion that a shipper may not propose rate changes for regulated motor carriers under the procedure described in WAC 480-12-295.  Shippers may, however, seek changes in rates by the Commission through the complaint procedures established by RCW 81.04.110.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
PATRICK McELIGOT
Assistant Attorney General