us-ftc-advocacy-filings-cdedba4ccc876c1ae62d489777640fe5•FTC Staff Comment Before the U.S. House Subcommittee on General Oversight and the Economy Concerning H.R. 3824, the Motor Fuel Sales Competition Improvement Act of 1985
FTC Staff Comment Before the U.S. House Subcommittee on General Oversight and the Economy Concerning H.R. 3824, the Motor Fuel Sales Competition Improvement Act of 1985
us-ftc-advocacy-filings-cdedba4ccc876c1ae62d489777640fe5FTC Staff Comment Before the U.S. House Subcommittee on General Oversight and the Economy Concerning H.R. 3824, the Motor Fuel Sales Competition Improvement Act of 1985Advocacy Filing
TESTIMONY OF THE STAFF OF THE FEDERAL TRADE COMMISSION before the SUBCOMMITTEE ON GENERAL OVERSIGHT AND THE ECONOMY of the UNITED STATES HOOSE OF REPRESENTATIVES on BOOSE RESOLUTION 3824 THE -MOTOR FUEL SALES COMPETITION IMPROVEMENTS ACT OF 1985- April 17, 1986
Chairman Mavroules and Mem~ers of the SubCommittee: thank yo~ for t~is opportunity to present the views of the Federal Trade COm~ission's staff on t~e effects on competition and consumers of proposed House Resolution 3824, the "Motor Fuel Sales Competi~ion Improvements Act of 1985." This bill is similar to other legislation offered in the Senate and House, and in state legislatures, to rectify purported market failures and antitrust problems in gasoline markets. The Commission has previousl} approved comments by its staff opposing such legis~ation. The Commission also has opposed si~ilar legislation introduced in the Senate Judiciary Committee, S. 1140 (a copy of a Commission letter to Senator Thurmond dated July 9, 1985, is attached). This statement will summarize the Commission's previous concerns with le9isla~ion of this type. Summary of Opposition to B.R. 3824 The bill's stated purpose is to "amend the Clayton Act to preserve and promote wholesale and retail competition in the retail gasoline market, and for other purposes." The Commission ! endorses these goals, but opposes the specific provisions of H.R. 3824. There is no credible evidence that the anticompetitive practices the bill purports to correct exist. Present federal laws are sufficient to remedy predatory pricing and collusion should these practices occur. Moreover, legislated lessor-lessee contract alteration and vertical divorcement are unnecessary, and would increase the costs of gasoline distribution, eliminate legitimate price competition, and raise prices for motor fuel to consumers.
1. There is no credible evidence of anticompetitive conduct by refiners and producers to support B.R. 3824. If the purpose of n.R. 382~ is to protect gasoline francb.is~es of major, i~tesrated refiners from u~fair and anticompeti~ive practices directed against them by their suppliers, the bill is u~necessary. There is si~ply no credible evidence t~at such practices are either occurring or could successfully be used to harm gasoline dealers. In fact, a DOE exa~ination of the state of competition in gasoline marketing in the United States, bot~ before and after the decontrol of I petroleum refining and marketing in 1981, indicates that gasoline franchisees have not bee~ a~d are not likely to become targets of , anticompetitive practices by refiners. Claims that refiners "subsidize" their own outlets to harm their franchisee dealers are unsubstantiated. Tje studies also in~icate that refiners have no logical motive to ~age war on their franchised dealers. Rather, refiners an~ their franchised outlets are linked by mutual interest, because lessee-dealers are the predominant distribution system for direct gasoline sales by major, integrated refiners. Only a small percentage of the gasoline stations in the United States are operated by major, integrated refiners. Moreover, the Co~~ission's September 1982 study, Mergers in the Petroleum Industry, concluded that wholesale and retail gasoline markets were unconcentrated at the national level and, in general, only moderately concentrated in particular geographic regions. Given the continued importance of the branded, -2-
franchised marketing distribution system to major refiners, traditional antitr~s: and economic theory indicates it would be irrational for an individual refiner to charge its franchisee- dealers prices that would cause them to either secure new sources of supply or go out of business. The likely results of such irrational behaviJr in the current era of reduced gasoline demand and plentiful supplies would be that the refiner would face a decrease in market share, an increase in excess capacity, and higher per unit costs. Thus, individual gasoline franchisors are not likely to engage in predation against the mainstay of their own retail distribution system, their franchised dealers. , 2. Monopolistic and predatory behavior is subject to prosecution under existing federal laws. Even if predatory or monopolistic behavior by refiners were found to exist, passage of H.R. 3824 is unnecessary. H.R. 3824'5 prohibition against refiner or producer collusion is unnecessary ~ecause such conspiracies are su~ject to the criminal and civil prohi~itions of the Sherman Act and Section 5 of the FTC Act. Section 3A of the bill, prohibiting indivicual refiners or ~ producers fro~ requiring their dealers to buy more than 70 percent of their gasoline from them, and prohibiting limitations bj refiners and producers on conversion of existing storage tanks for alternative gasoline supplies, also is unnecessary. There is no evidence of widespread anticompetitive abuses associated with minimum volume requirements and restrictions on usage of refiner- owned storage tanks in current franchise contracts. -3-
3. Legislated lessor-lessee contract alteration and
vertical divorcement are unnecessary and vould raise
costs, diminish price competition, and raise gasoline
prices to consumers.
Fina:ly, H.R. 3824 should not be used to redress perceived
contractual im~alances bet~een refiners or producers and their
lessee-dealers; Congress has already addressed this concern
throus~ its earlier passage of the Petroleum Marketing Practices
Act of 19/0 ("P!'~?;""). The legislative history of the PMPA shows
that it was the intent of the Congress to balance the franchise
relationship in a more equitable manner. H.R. 3824 should not be
allowed to alter this balance without a full study of its
effects.
Passage of H.R. 3824 in fact may be injurious to
franchisees, because its requirements would appear to lessen the
val~e of a franchised dealer networ~ to an integrated refiner.
Therefore, although direct refiner-operated stations presently
cons:itute on:y a small percentage of all retail gasoline
stations, passage of H.R. 3824 might encourage abandonment of
franchised dealer outlets in favor of company-controlled outlets,
assuming that the marketing divorcement part of H.R. 3824 would
:1ot be enacted.
The antitrust laws deter firms from engaging in predatory
behavior, but, at the same time, allow them to lower their costs
through vertical integration. In contrast, the prohibition
against refining/marketing integration found in H.R. 3824 would
ar~itrarily require marketing divorcement according to the amount
of aggregate refinery capacity of certain refiners. By denying
firms the possibility of increasing efficiency through vertical
-4-
i~tegratio~, this legislation cOwld add costs to the distribution of gasoline in the United States, costs that would be borne by cons~~ers. The potential har~ of divorceme~t bills is illustrated by the experience of Maryland, whic~ has already enacted legislation similar to that now being proposed by H.R. 3824. One study, described by DOE as perhaps "the best empirical analysis of the effects of Maryland's divorceme~t la~," has estimated that Maryland consumers are now paying millions of dollars more per year than they would have been paying if the divorcement law had not been enacted. Conclusions Drawing upon an ongoing examination of energy competition, issues, the Commission concludes that the proposed (1) alteration of existing gasoline supply contractual obligations, and (2) vertical divorcement of retail gasoline stations, are likely to have harmful consequences for both competition and consumers. In short, H.~. 3S2~ wo~~j not enhance consumer welfare, but rather ~orld se:~e to insu~=~e one business segment, retail gasoline dealers, fro~ the rigors of the free market. -5-
As competition a~ong gasoli~e marketers has intensified in rece~t years, retail dealers have faced an increasing need to cha~ge wi~h the times 8y operating more efficie~t, high-volume outlets. Protec~io~iSt legislation such as H.R. 3824 would interfere with this competitive process, and wo~ld result in higher co~sumer prices. For these reasons, H.R. 3824 should not be enacted. Thank you for your attention, Mr. Chairman. I would be pleased to answer any questions you or other members of the Committee may have. f -6-
or~,::::E c t ~""'£ C~A'lii ",,"..A f-.o FEDERAL TRADE COMMISSION WASHINGTON ;:lC 20580 Jl;ly 9, 1985 The Honora~le Strom Thurmond Chairman Committee on the Judiciary United States Senate washington, D.C. 20510_ Dear Mr. Chairman: Thank you for your letter of May 20, 1985, requesting Federal Trade Commission views on S. 1140, the "Motor Fuel Sales Competition Improvements Act of 1985." This bill is similar to other legislation offered in the Senate and House, and in s~ate legislatures, to rectify purported market failures and antitrust pro~lems in gasoline markets. The C~mmission's staff has previously opposed such legislation. The Commission is opposed to the enact~ent of S. llAO because this bill is anticompetitive and would be harmful to consumers. Description of S. 1140 The bill's stated purpose is "[t]o amend the antitrust laws in order to preserve and promote wholesale and retail competition in the retail gasoline market and to protect the motoring safety of the American public." Section 2(a) of the bill would make it unlawful for any petroleum producer or refiner, "directly or indirectly, to require any retail motor fuel dealer to purchase mor~ than 70 percent of the monthly retail sales of motor fuel fro~ such producer or refiner or to prohibit the use or conversion of storage tanks and dispensers as provided in subsection (c)." 1 The Commission's staff has filed comments opposing passage of South Carolina House Bill 2663 (marketing divorcement and below cost selling); North Carolina Senate Bill 73 (below cost selling) i and Washington Senate Bill 3418 (marketing divorce~ent). The FTC's Bureau of Competition Assistant Director Ronald B. Rowe has testified in opposition to U.S. House Resolution 5023 in 1984 (below cost pricing), and in opposition to H.R. 1362 in 1981 (marketing divorcement and below cost selling).
The Ho~orable Strom Thurmond -2- Section 2(b) of the bill wo~ld make it unlawful for a producer or refiner to collude with any other producer or refiner to req~ire retail dealers to carry more than 70 percent of the suppliers' fuel or to prevent use of storage tanks to store other suppliers' fuel. Section 2(c) would require trademarked dealers to notify their custo~ers if they carry and dispense motor fuel at one or more pumps that is not supplied by the refiner or producer whose tracesark or trade name is displayed by the dealer. Section 3 would make it unlawful for any "large integrated refiner to opera~e any motor fuel service station in the United States," although such refiners are not prohibited under Section 4 of the bill froD owning the underlying assets of the service station, as long as the refiner does not participate in any way in operating the station., The prohibition in Section 3 would become ef::ective "one year after the date of the enactment of this Act." [Sec. 6(c)) Under Section.S of the bill, a "large, integrated refiner," as used in Sections 3 and 4 of the bill, is defined as a refiner that has thirty percent crude oil self-sufficiency and whose total refining capacity exceeds 175,000 barrels per day. Section 6 of the bill would authorize a federal district co~rt civil action brought by the Federal Trade Commission to prevent or stop violations of S. 1140, "or any regulation prom~lgated thereunder," and gives the district courts certain jur"isdiction to restrain violations, to require compliance, and to "impose monetary penalties under the same terms and conditions as p.ro\"ided in Section 5 (m) (2) (A) of the Federal Trade Commission Act u and to order such additional equitable relief as it deems appiopriate." [Sec. 6(a)) Private civil actions by "any other person affected" by a violation of S. 1140 would allow the successful plaintiff to obtain monetary damages and equitable relief in any district "in which the plaintiff resides or is doing business, or in which the defendant resides, or is doing business." [6 (b) (1) and (2)] Finally, S. 1140 would require the Commission to "prescribe regulations for the collection of information" necessary to dete~mine which refiners would and would not be permitted to operate retail gasoline outlets. [Sec. 6 (e) (1)) II
The Honorable Strom Thurmond Summary of Opposition to S. 1140 -3- S. 1140, althou9~ facially different from the myriad of other retail divorce~ent ane "below-cost" pricing legislation unsuccessfully urged in the United States Congress and in many state legislatures, is but ~ new variety of the same species. Although such bills are usually described by their proponents as necessary to protect dealers from the "monopolistic" and "predatory" practices of their suppliers, no credible evidence has been found that gasoline suppliers have engaged in such practices. None of the provisions of S. 1140 would in any way increase competition; the bill's effect rather would be to protect and increase profit ffiargins for branded gasoline dealers as well as other gasoline dealers. Price competition would be thereby debilitated and the result would be higher gasoline and motor f~el prices for consumers in all regions of the country. The Commission opposes the specific provisions of S. 1140 because: (1) there is no credible evidence that the anticompetitive practices the bill purports to correct exist; (2) present feder~l laws are sufficient to remedy predatory pricing and collusion should these practices occur; and (3) legislated lessor-lessee contract alteration and vertical divorcement are unnecessary, and would increase the costs of gasoline distribution, eliminate legitimate price competition, and raise prices for motor fuel to consu~ers. 1. There is no credible evidence of anticompetitive conduct by refiners and producers to support S. 1140. Proponents of legislation like S. 1140 maintain that its passage is necessary to pro:ect gasoline franchisees of major, int~grated refiners from unfair and anticompetitive practices directed against them by their suppliers. They argue that it is unfair for refiners to operate retail gasoline outlets in competition with their franchised gasoline dealers. According to this view, the refiners "subsidize" their own retail operations by providing gasoline to their own outlets at internal~transfer prices that are both "below cost" and below the wholesale prices charged to independent dealers. We are aware of no evidence that such subsidization has occurred or is occurring anywhere in the United States. In fact, an examination of the state of competition in gasoline marketing in the United States, both before and after the decontrol of petroleu~ refining and marketing in 1981, indicates that gasoline franchisees have not been and are not likely to become targets of an:ico~petitive practices by refiners. Following enactment of II! I
T~e Honorable Strom ~hurmor.d -4-
Title III 0: the Pe~roleum Marketing Practices Act in 1978, 15
U.S.C. § 2841, the Depar:~ent of Energy ("DOE") was required to
study whether the alleged "subsidization" of retail gasoline
operations of majo~ refiners actually existed and, if it did,
whethe: the practice was predatory or anticomP2titive. The final
report to Congress, published in January 1981, was based on an
extensive study of pricing data in several Standard Metropolitan
Statistical Areas for 1978, as well as on internal oil company
documents subpoenaed by the DOE staff. The study concluded that
there was no evidence of such subsidization. In 1984, DOE
published a report that further substantiated its 1981 findings. 3
In its 1984 report, DOE presented the results of an
ex:ensive study of gasoline marketing since decontrol. DOE
concluded that the increased pressures on gasoline retailers
since 1981 were not caused by anticornpetitive behavior by oil
companies. Rather, the decline in the overall number of retail
outlets and the intensification of competition among gasoline
rna:keters could be attributed to decreased consumer demand for
gasoline and a continuing trend toward the use of more efficient,
high-volume retail ,outlets. ~ Statistics published by DOE and
industry publications, such as the Lundberg Letter, indicate that
since federal cont:01s were removed in January 1981, the public
has been the bene:iciary of vigorous price competition.
DOE case studies have revealed no instances of predatory
behavior on the part of major gasoline refiners. Instead, the
studies indicate that the fortunes of refiners and their
franc~ised outlets are inextricably merged, and that the two
groQps "form a mutually sup~orting system backed by company
advertising and prornotion."~ Indeed, lessee-dealers have
ccnt~nued to be by far the largest outlet for the direct gasoline
!
2
3
4
DOE, Final Reoort= The State of Comoetition in Gasoline
Marketinc, January 1981.
DOE, Dereculat~d Gasoline Marketing= Conseauences for
Comoetition, Com~etitors, ane Consumers, January 1984 draft
report [hereinafter cited as 1984 DC~ Report].
Id. at 125-32.
rd. at ii.
The Honorable Strom Thurmond sales of the major, integrated refiners. 6 In fac~, only 3.3 percent of the gasoline stations in the United States ~re operated by the major, integrated refiners themselves. -5- In the context of merger analysis, the Commission's September 1982 study, Mercers in the Petroleum Industrv, concluded that wholesale and retail gasoline markets were unconcentrated at the national level and, in general, only moderately concentrated in particular geographic regions. Given the continued importance of the branded, franchised marketing distribution system to major refiners, traditional antitrust and economic theory indicates that it would be irrational for an individual major refiner-franchisor to charge its franchisee- dealers prices that would cause them to either secure new sources of supply or go out of business. The likely results of such irrational behavior in the current era of reduced gasoline demand and plentiful supplies would be that the refiner would face a decrease in market share, an increas€ in excess capacity, and higher per unit costs. Thus, individual gasoline franchisors are not likely to engage in predation against the mainstay of their own retail distribution svstem, their franchised dealers. , - 2. Monopolistic and predatory behavior is subject to prosecution under existing federal laws. Even if predatory or monopolistic be~avior by refiners were found to exist, it could be reached under the Sherman Act, the Cla~ton Act, or the Federal Trade Commission Act. Section 2 (b)' s prohitition against refiner or producer collusion is unnecessary because such conspiracies are subject to the cri~inal and civil prohibitions of the Sherman Act. Conspiracies in restraint of trade also violate Section 5 of the FTC Act. Section 2 (a), prohibiting individual refiners or producers from req~iring their dealers to buy more than 70 percent of their gasoline from them, and prohibiting refiners and producers from 6 7 In 1981, the eight largest refiners, who, in the aggregate, accounted for about half of all gasoline sales, sold approximately eight times more gasoline throush lessee- dealers than through refiner-owned rttail outlets Id. at 146 (Ta:,le A-lO). Lunc:,erg Letter, Vol. XI, No. 36, Ju:y 6, 198~, at 3.
The Hono:able Strom Thurmond -6- preventing their dealers from converting existing storage tanks for alternative gasoline supplies, also is unnecessary and unwise. These provisions ~ight be justified if there were evidence of widespread antico~petitive abuses. As discussed in the last section, however, allegations of oil company anticompetitive practices and behavior are simply not supported by any credible evidence. Certainly, as a group, the major refiners have not been engaged in predation against their branded franchisees, who constitute the mainstay of their distribution network. Nor does it seem reasonable to conclude that individual oil producers and refiners have in any way been attempting to drive their own franchiseas out of business by operating company-owned retail outlets. 3. ~ Legislated lessor-lessee contract alteration and vertical divorcement are unnecessary and would raise costs, diminish price competition, and raise gasoline prices to consumers. One proponent of the bill contended that Section 2 of S. 1140 is necessary because it "extends throughout the industry the settlement achieved in Bocosian v. Gulf Oil Corp~," 1985-1 T rae e Cas. (CCH ) 'i 66 , 51 0 a t 6 5 , 5 48 (E . D. P a. 1 9 85) . Howe ve r , the litigation in Bocosi~n never resolved the issue of whether supplier abuses had actually occurred. The Boaosian settlement preceded any ruling on the merits of the plaintiff's antitrust claims, and the Bocosian judge resisted attempts to enlarge or mod~fy the consent decree in ways that are now being urged by the proponents of this legislation. Indeed, District Judge VanArtsdalen gave the following response to disappointed members of the Bocosian class suggesting that their claims would likely 8 9 See SUDra notes 5 and 6 and accompanying text. Suora note 7 and 8. Plaintiffs in this class action private suit charged that the major oil company defendants conspired by implementing and maintaining a system of gasoline distribution in which the defendants would own and lease gasoline stations to independent operators so as to prevent plaintiffs from buying their gasoline supplies from anyone but their lessors. The restraints were enforced, accordin; to plaintiffs, by illegal tie-ins conditioning the lease of a service station and the use of the refinery brand name and trademark upon a dealer buying all his gasoline from the refiner-lessor.
The Hono~a8le Strom T~ur~ond
have ~ee~ fou;.d ~ithout merit at trial:
T~e "risks" of esta~lishing liability 1n this
case were great. For bot~ the da~age and
injunctive class, proving liability at trial
would have been extremely difficult. The
plaintiffs clearly had no direct proof of a
conspiracy.
-7-
[Bocosian v. Gulf Oil CorD., 1985-1 Trade Cas. (CCH) ~ 66,510 at
65,548 (E.D. Pa. 1985)) Judge VanArtsdalen also suggested that,
without such direct proof, proving antitrust violations "would
have been a monumental task for plaintiffs." Id.
The district judge also gave the follo~ing response to
plaintiffs who complained that the relief on installation of
individual fuel tanks ano pumps was inadequate:
As to the contention that the right to install
individual tanks and pumps or take other steps
to de-br~nd a station is purely illusory, the
agreement at least recognizes the existence of
such a right. Only time will tell whether and
to what extent this right may be exercised by
lessee-dealers. If, in fact, as plaintiffs
have contended, supplies of gasoline could be
purchased by service station dealers at a
substantially reduced price if allowed to be
purchaseu on a free and open market,
undoubtedly some will find it economically
acvantageous to install separate tanks and
[.!£. ]
In sum, although the proposed requirements of Sections 2(a)
and 2(b) of S. 1140 would greatly expand the agreed-to relief in
the Boo05ian settlement, their enactment, without extensive
further analysis would appear to ignore the sense of Judge
Van~rtscalen's opinion of the allegations and claims for relief
by the 30~osian plaintiffs.
Moreover, to the extent that S. 1140 is intended to redress
imb~lan~es between refiners or producers and their lessee-
dealers, Consress has already addressed this concern through its
earlier passage of the Petroleum Marketing Practices Act of 1973
("PM?A"). T~e legislative history of the Pl-1PA shows
Con~~essional conce~n over alleged abuses of the franchise
I!
I
The Hono=a~le Strom Th~r~ond -8-
relationship.lO Because of perceived unequal bargaining
positions between major refiners and their individual dealers,
franchise agreements were regarded as adhesion contracts in many
instances. For that reason, the PMPA represented Congress'
legislative solution to balance the franchise relationship in a
more equitable manner. In contrast, S. 1140 would abandon such a
balanced approach and skew the balance sharply in favor of
gasoline dealers. Such an alteration without a f~ll study of its
effects is clearly not warranted and may be injurious rather than
helpful to franchisees. This is because the res~irements of
S. 1140 would appear to lessen the value of a franchised dealer
networK to an integrated refiner. Although direct refiner-
operated stations presently constitute only a small percentage of
a:l retail gasoline stations,~~ passage of
S. 11~0 might encourage abandonment of presently favored
franchi,sed dealer outlets in favor of company-co~trolled outlets,
assuming that the marketing divorcement part of S. 1140 would not
be enactec.
Finally, the enforcement standards develope~ over the years
in federal case law under the Sherman, Clayton, and FTC Acts and
their re~edi21 provisions, deter firms from enga;ing in predatory
behavior, but, at the same time, allow them to lower their costs
through vertical integration. In contrast, the prohi~ition
against refining/marketing integration found in S. 1140 would
arbitrarily req~ire marketing divorcement according to the amount
of aggregate refinery capacity of certain refiners. By denying
firms the possibility of increasing efficiency through vertical
inteoratio", this lecislation co~ld add costs to the distribution
of 'gisoline in the U;ited States, costs that would be borne by
co~s~~ers. Prices would also rise as a result 0: the elimination
of competition from refiner-owned stations, whic~ tend to be low-
cos~, gasoli~e-o~ly outlets.
The potential harm of divorcement bills is illustrated by
the experience of Maryland, which has enacted divorcement
legislation similar to that now being proposed by S. 1140.
Economists in one study, described by DO~ as perhaps "the best
empirical analysis of the effects of Maryland's divorcement
10
11
See Senate Reoort No. 95-731, 95th Cong., 2d Sess., 15-19,
29-43 ("Senate Report").
See suora note 6 and accompanying text.
The Honora~le Strom Thurmond la~,ft12 have es~i~ated that Mary:and consumers are now over $15 million dollars more per year than they wo~~d paying if the divorcement la~ had not ~een enacted. Conclusions -9- paying have been Drawing upon our ongoing examination of energy competition issues, we conclude that the proposed (1) alteration of existing gasoline supply contractual obligations, and (2) vertical divorcement of retail gasoline stations, are likely to have harmful consequences for both competition and consumers. In short, S. 1140 would not enhance consumer welfare, but rather would serve to insulate one business segment, retail gasoline dealers, from the rigors of the free market. As co~petition among gasoline marketers has intensified in recent years, retail dealers have faced an increasing need to change wit~ the times ~y operating more efficient, high-volume outlets. Protectionist legislation such as S. 1140 would interfere with this competitive process, and would result in higher consumer pr~ces. For these reasons, the Federal Trade Commission urges that S. 1140 not ~e enacted. By direction of the Commission. 12 13 1984 DO~ Report, sunra note 5, at 105. See Barron & Umbeck, A Du~ious Bill of Divorcement, Regulation, Jan.-Feb. 1983, at 29. See also Testimony of Pester Corp., Cro~n Central Petroleum Corp., on Oct. 21, 1981, before the United States Senate's Judiciary Committee, on a nationwide divorcement bill, S. 326; Barron & Um~eck, The Effects of Different Contractual Arranaements: The Case of Retail Gasoli~e Markets, 27 J. Law & Econ. 313 (1984).
I'"OW ncv-O'al. Le.. 0;4_·. ~S wee ......THlAS ..... wt). ..,U,... alOE" A.. DC.. '""",, ~T."rv C>W.o.AO U .... EDy. MA.$.1 OU,.. C; ......T~. VT<uc 1lO1l" C. '''''lO. W V .... "01 (Ir. OOu. r...u; s.. MO W.o.AO" .. fTlt .. UlJIoi. ()loO() A.l,..Ot l.. S'... ~S~ wY~ 01 .... '$ Of Coo. C...I. ~ ..,.... lAST." c.. "A,""Cl J. UAloN. VT. CKIJl,U l C;USSLrr'. IOWA w..u: • .....,CUS. "O..-r. .If. _I ....AI" :>! fofT 0 ". ......... MO'NlJ,.J. KI.F\.II'(. ......... AA:..1JoI • ~tCTl.A. ,...... ~ 0lI'V""" UDt. 0-' eovwYt.. Ale "- ~ -.""""" L 0""",,, COl.JolJUl.l. ~ e.-ttt...J""r J ' .... IWl .. " Of'D Q..J.JIII. __ ... ~-""~ c:o..-. Gentlemen: t1.nitni ~tat(S ~rnat£ COMMITTEE ON THE JUOIClAR'Y WASHINGTON, D.C. 20510 May 20, 1985 FEDERAL TRADE COMMISSION nECE\V~9 MAY 2'i 'ea5 orm: fir CONGr\lSSIONAl FltLAiIOl·:S \\'ASHINGTO~';. D.C. 205~'J $. 1140 The Corr~ttee on the Judiciary is herewith transmitting for your stuc~ and report thereon in triplicate. To facilitate the work of the Co~~ttee I urgentJ~ request The Cornrni. t ~ee t.hat your repo~ be sub:n.itted within 20 days. should be formally advised in writing if any delay beyond that tirre period is necessary. Sincerely, Chairman , E.nclosures Fece~al Trace Co,,~ission Pen~sylvania Avenue at Sixth Street Was~inston, D.C. 20580
99TH CO~GRESS 1ST SESSION 5.1140 n To &.mend the Vltitrust lAws in order to preserve and promot.e ..-hoJeuJe &.Dd reu.il competition in the retAil ga.soline m.a.rket &.Dd to prot,ect the motoring wet)' of the Amenca.Il public. 11\ TIrE SE~ATE OF THE Ul\lTED STATES lliY 15 (legislative day, APRIL 15), 1985 Mr. METZn"llAeM ((or himseU, Mr. THUlUdOh1>, and Mr. DECONCIh') introduced the rollo".ing bill; ""hich was read t",ice tJld referred 1.0 the Committee OD the J udiciarv A BILL To amend the antitrust laws in order to preserve and promote wholesale and retail competition in the retail gasoline market and to protect the motoring safety of the American public. I 1 Be it enacted by the Senate and House of Representa- 2 tires of the United States of America in Congress assembled, 3 That this Act may be cited as the "Motor Fuel Sales Compe- 4 titian Improyement Act of 1985". 5 WROLESALE prRCHASE OF GASOLI~L 6 SEC. 2. (a) Kot\\ithstanding any other pro\;sion of law 7 and except as pro\ided in this section, it shall be unlav.1ul for 8 any producer or reEner, directly or indirectly, to require any I I I II I
. . 2 1 retail motor fuel dealer to purchase more than 70 per centum .2 of the monthly retail sales of motor fuel from such producer , '3 or refiner or to prohibit the use or conversion of storage ta.nk.s 4 and dispensers as provided in subsection (c). . . ;,' . (b) It shall be a violation of this Act for any producer or refiner to contract, combine, or conspire \\;th any other pro- ducer or refiner for the purpose of violating subsection (a). (c) It shall be unJa\\1uJ for an)' dealer, at a motor fuel senice station displaying a trademark, trade name, or other identifying symbol or name owned by a refiner or producer, to sell motor fuel which is not provided by or for such produc- er or refiner \\ithout pro\iding reasonable notice at the point 13 'of sale that motor fuel dispensed by one or more dispensers is 14 not refined by or for such producer or refiner, except that a "'5 6 7 8 9 10 11 12 15 de~ler may com'en one or more existing storage tanks and 16 dispense;:: or establish ne\\' storage tar.ks and dispensers for 1i sale of motor fuel supplied by other than the owner of the " 18 trademark, trade na;ne, or ide!ltu.:-ing symbol displayed at the 19 station. 20 OPERATIO~ OF MOTOR Ft:EL SER\'1CE STATIO!'S 21 SEC. 3. It shr,Jl be unla\dul for any large integrated 22 refiner to opemte any motor fuel senice station in the United 23 States. 24 EXCEPTIO~S SEC. 4. Kot\\ithstanding section 3, it shall not be a \'io- 26 la tion of this Act for a large integrated refiner to own a11 or .5 11'0 I.S II,I •
3 1 part of the assets of a motor fuel service station so long as 2 such .produce! .~oes not. engage. in the business. of selling 3 motor ,fuel at such station through any- 4 (1) employee; 5 (2) commissionpd agent; 6 (3) person acting on behalf of the reEner or under 7 the reEner's supenision; or 8 (4) person operating such station pursuant to a 9 contract \\ith the rermer which pro\ides that the refin- 10 er has substantial or effective control over the motor 11 fuel operations of the ,station. 12 DEFI:SITlO:SS 13 t SEC. 5. For },urposes of this Act the tenn- 14 (1) "producer" means any person who is engaged, 15 directly or indirectly, in the production of crude oil; 16 (2) "refiner" means any person engaged, directly 1i or indirectly, in the refining of motor fuel or an)' pro- 18 dueer who contracts \\ith another to refine petroleum 19 products for purposes of sale of motor fuel by the pro- 20 ducer; 21 (3) "large integrated refiner" means an)' person 22 who for the most recent calendar year for which data 23 are available- 24 (A) produced, directly or indlrectly, more 25 than 30 per centum of the domestic and imported 26 crude oil supplied to its rermer)'; and .5 114t IS
19 . SEC. 6. (a) The Federal Trade Commission may com- 20 mence a ci\"il action for appropriate relief, including a perrna- 21 nent or temporary injunction, whenever the Federal Trade 22 Commission has reason to belie\"e that any person has violat- 23 ed or is violating any pro\'ision of this Act, or any regulations 24 promulgated thereunder. Any action under this paragraph 25 may be brought in the district court of the United States for 26 the district in which the defendant is located, resides, or is 1 ..~ "3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 4 (B) whos"e total refmel)' capacity exceeds ODe hundred and· seventy-five thousand barrels per daY'. ' (4) "motor fuel" means gasoline, diesel fuel, alco- hol, or ani' mixture of them sold for use in a.utomobiles and related vehicles; (5) "motor fuel service station" meaDS a.ny facility at which motor fuel is sold at retail; (6) "person" includes one or more indi\;du:l!s, partnerships, associations, corporations, legal repre- se~tati\"es, joint-stock companies, trustees and receIv- ers in bankruptcy and reorganization, (;l)mmt-l1 bw trusts, and any organized group, whether or not incor- porated; (7) "rniled States" means the several States, the District of Columbia, and am" territory or possession of- . the lTnited States. E~FOP.CE;;lE~T A~D EFFECTI'"E DATE fI I I I! I
5 1 doing business, and such co'urt shall have jurisdiction to re- 2 strain such ,,;olation and to require 'compliance, to impose 3 monetaT")' penalties under the same terms and conditions as 4 pro\ided in section 5(m)(2)(A) of the Federal Trade Commis- 5 sion Act, and to order such additional equitable relief as it 6 deems appropriate, 7 (b)(l) If any person fails to comply ~;th the reqwre- 8 ments of this section, any other person affected by such fail- 9 ure may maintain a ciyi] action against such person failing to 10 comply \\-1th sych requi;ements for damages and appropriate 11 equitable relief, includi~g temporary and permanent injunc- 12 tiye relief. If the plaintiif freyails in any action under this 13 section, the plaintiff shall be entitled to reasonable attorney 14 a.nd expert \\itness fees to be paid by the defendant, except 15 that in any case in which the court determines that only 16 nominal damages are to be awarded to the plaintiff, the court 1i may, in its discretio;:, detennine not to direct that such fees 18 be paid by the defendant. 19 (2) An a.ction brought pursuant to this section may be 20 brought, \\ithout regard to the amount in controyersy, in the 21 district court of the l7nited States in any judicial district in 22 which the plaintiff resides or is doing business or in which the 23 defendant resides or is doing business, 24 (c) Sections :2 and 3 of this Act shall take effect one 25 year after the date of ,the enactment of this Act. .5 Il~ IS II
.. . 6 1 (d)( 1) The Federal Trade Commission shall prescribe 2 regulations for the collection of information necessary lor the 3 determ.i.nAtions specified in section 3 and for the manner of 4 complying v:ith the requirements of section 2(c). 5 (2) Notv.iths tanding &.D)' other provision of this Act, in- 6 formati'on related to section 3 need not be pro\;ded by private 7 persons if reliable and timely information is available from 8 published sources. 9 (3) Regulations promulgated pursuant to paragraph (1) 10 shall be promulgated, after notice and a reasonable period for, 11 comment by the public, no later than one hundred eighty 12 days afte;- the date of enactment of this Act. , o ... . . ..... • S IW IS '.
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