The Keogh or 'Filed-Rate' Doctrine

AuthorChristopher L. Sagers
In some regulated industrieselectrical power, natural gas and
telecommunications, for examplemarket participants are required to
file their rate-related information with a state or federal agency. These
filings (which are sometimes referred to as “tariffs”) usually describe a
company’s services or products, along with the terms and prices at which
the company offers them to its customers.
Statutes requiring rate filing often require the relevant agency to
ensure that rates are reasonable.
The statutes may also prohibit deviation
from the filed rate.
These statutory provisions, along with a general
judicial distaste for interfering with the work of regulatory agencies,
. Under the Federal Communications Act of 1934, for example, certain
telecommunications providers are required to file tariffs with the Federal
Communications Commission (FCC) that set forth the providers’ rates,
terms, and conditions of service, and are required to adhere to those rates,
terms, and conditions. See 47 U.S.C. § 203(a), (c). Likewise, the Natural
Gas Act requires certain participants in the natural-gas market to file their
“rates and charges . . . , and the classifications, practices, a nd regulations
affecting such rates and c harges” with the Federal Energy Regulator y
Commission (FERC). 15 U.S.C. § 717c(c).
. See, e.g., 15 U.S.C. § 717c(a) (“All rates and charges made, demanded, or
received by a ny natural-gas company for or in connection with the
transportation or sale of natural gas . . . shall be just and re asonable, and
any such rate or charge that is not just and reasonable is declared to be
unlawful.”); id. § 717d (giving FERC authority to set “just and
reasonable” rates, in certain circumstances); 47 U.S.C. § 205 (giving the
FCC limited authority to prescribe “just and reasonable” rates for
telecommunications services).
. See, e.g., 47 U.S.C. § 203(c).
. See, e.g., Sun City Taxpayers Ass’n v. Citizen Utils. Co., 45 F.3d 58, 62
(2d Cir. 1995) (filed rate doctrine recognizes that “(1) legislatively
appointed regulatory bodies have institutional competence to address
rate-making issues; (2) courts lack the competence to set . . . rates; and (3 )
the interference of courts in the rate-making process would subvert the
authority o f rate-setting bodies and undermine the regulatory regime.”);
A Handbook on the Scope of Antitrust
to the so-called filed rate or filed tariff doctrine. At its most basic level,
the filed rate doctrine is really two doctrines: a rule of administrative law
that bars a regulated company from selling its services at terms or prices
that differ from those described in the company’s tariff, and a rule that so
long as the regulated firm charges the filed rate, it cannot be liable to
private plaintiffs in money damages on any theory of liability.
speaking, the doctrine does not exempt or immunize any conduct from
antitrust specifically. It merely bars private recovery of money damages.
The doctrine originated in 1907
and was first applied to antitrust in
1922, in Keogh v. Chicago & Northwestern Railway Co.
The courts recognize some exceptions to this rule. It does not bar
antitrust enforcement actions by the government,
it does not necessarily
bar claims for injunctive relief,
and most Circuits hold that it does not
apply to antitrust claims brought by one competitor against another.
A. The Filed-Rate Doctrine in General
Courts now commonly say that the filed-rate doctrine reflects two
policies: the goals of “nondiscrimination” and “nonjusticiability.
see also Square D Co. v. Niagara Frontier Tariff Bur., Inc., 760 1347,
1351 (2d Cir. 1985), aff’d 4 76 U.S. 409 (1986) (carefully analyzing
leading case of Keogh v. Chi. & Nw. Ry. Co., 260 U.S. 156 (1922), and
finding among its rationales a preference for judicial deference to agency
. See, e.g., Town o f Norwood v. FERC, 217 F.3d 24 , 28 (1st Cir. 2000)
(stating that filed-rate doctrine “is actually a set of rules that have evolved
over time but revolve around the notion that [where regulated entities are
required to file rates with the regulatory agency], utility filings with the
regulatory agenc y p revail over unfiled contracts or other claims seeking
different rates or terms t han those reflected in t he filings with the
. See part VIII.A below.
. Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 (1907).
. 260 U.S. 156 (1922). In the antitrust context, courts often refer to the
filed-rate doctrine as the Keogh doctrine.
. See part VIII.B.3 below.
. See id.
. See id.
. Arkansas La. Gas Co. v. Hall, 453 U.S. 571, 577 (1981) (“The
considerations underlying the doctrine . . . are preservation o f the
agency’s primary jurisdiction over reasonableness of rates and the need to
insure that regulated companies charge only those rates of which the
agency has been made cognizant.” (interna l quotation marks omitted)).

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