Jim Rossi (Florida State University College of Law) has posted Why the Filed Rate Doctrine Should Not Imply Blanket Judicial Deference to Regulatory Agencies (Administrative & Regulatory Law News, Fall 2008) on SSRN. Here is the abstract:
The filed rate doctrine is a venerable doctrine of public utility regulation. Federal courts applying the doctrine frequently defer to the regulatory agency and refuse to consider the merits of alleged violations of antitrust, tort or contract claims where resolution would require a departure from a filed rate. For over a century, the filed rate doctrine has served many important purposes. However, with increased attention to market-based approaches to electric power, natural gas and telecommunications regulation, there is reason to question both the doctrine's continued applicability and usefulness. This short essay argues that, as regulators implement competitive markets in utility industries, at a minimum the traditional principles of deference which courts applied in this context need to be reassessed.