(The following story by John D. Boyd appeared on The Journal of Commerce website on November 11, 2009.)
WASHINGTON, D.C. — The rail reform bill being prepared for the Senate Commerce, Science and Transportation Committee is unlikely to strip railroads of their limited antitrust immunity, said a key Republican senator.
“I would be surprised if it does” include a measure to change how railroads are now treated under antitrust law, said Sen. John Thune, R-S.D. He is ranking minority member on the surface transportation subcommittee.
Senators and staff of that panel, chaired by Sen. Frank Lautenberg, D-N.J., have been working on the bill for months behind the scenes, along with aides to Sen. Jay Rockefeller, D-W.Va., who chairs the full Commerce Committee.
Thune told The Journal of Commerce that if language to strip railroads of their current antitrust protections is offered at all, “that probably ends up being in the form of a floor amendment, I would guess” instead of being included in the committee’s bill.
That bill is expected to focus on other ways to provide rail customers with greater access to railroad competition on rates and service for freight shipments.
Last spring, a bill from the Judiciary Committee and sponsored by Sen. Herb Kohl, D-Wis., was slated to reach the Senate floor for debate when the railroad industry launched a heavy lobbying effort to derail it.
It would have removed the limited exemption railroads now enjoy from the type of antitrust challenge other industries face from suits in federal district court and actions by state attorneys general. For most economic issues, railroads are mainly regulated by the Surface Transportation Board, whose decisions are subject to court of appeals review.
The Kohl measure would have made railroad mergers subject to review by the Department of Justice and Federal Trade Commission, while most are now handled solely by the STB.
In the face of opposition from Commerce Committee leaders, Kohl pulled his bill hours before it was to reach the full Senate. He later said he and Rockefeller had agreed to include the antitrust language in the broader rail regulatory reform bill that Rockefeller was already developing.
In the months since, however, a similar bill has been making its way through the House of Representatives. Some railroad officials have continued to challenge the proposal, warning that its provisions would add layers of complexity and cost to rail regulation. On the other side of the issue, some rail customers have kept pushing for that change in law, to put railroads on the same footing as shippers under antitrust law.