Keywords: motor carriers, interstate commerce act, federal aviation administration authorization act, FAAAA

Today, the Supreme Court granted certiorari in one cases of interest to the business community:

Motor Carriers—Interstate Commerce Act—Federal Preemption

The Federal Aviation Administration Authorization Act ("FAAAA") includes a provision that expressly preempts certain state and local regulation of trucking. In relevant part, it provides that "a State [or] political subdivision of a State...may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier...with respect to the transportation of property." See 49 U.S.C. § 14501(c)(1).

Since 2008, the Port of Los Angeles has required all motor carriers that provide drayage services to shipping lines using the Port to enter into "concession agreements." These agreements require the motor carriers to comply with requirements such as submitting an off-street-parking plan and demonstrating financial responsibility. Today, the Supreme Court granted certiorari in American Trucking Associations, Inc. v. City of Los Angeles, No. 11-798, to consider (1) whether the requirements at issue are justified under a "market participant" exception to the FAAAA's express-preemption provision and (2) whether Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954), which precludes municipalities from enforcing regulations that limit the operating authority of federally licensed motor carriers, prohibits these requirements.

ATA, a national association of motor carriers, sued the City and Port of Los Angeles, contending that the concession-agreement requirements were expressly preempted. The district court upheld the disputed requirements, ruling in part that the Port was acting as a market participant. A divided panel of the Ninth Circuit affirmed in part, holding that the off-street-parking and like provisions were permissible under a market-participant exception to preemption because they served the Port's interest as a "facilities manager." The court of appeals rejected ATA's additional argument that the concession-agreement requirements were invalid under Castle because they improperly limited the operating authority of a federally licensed motor carrier.

The Supreme Court's decision in this case will be of interest to motor carriers and others because it will clarify the scope of the FAAAA's preemption provision as well as of similar preemption provisions in other federal statutes. The decision will also clarify whether Castle independently limits the ability of municipal entities to restrict the operations of federally licensed motor carriers.

Absent extensions, amicus briefs in support of the petitioners will be due on March 27, 2013, and amicus briefs in support of the respondent will be due on April 3, 2013.

Air Wisconsin Airlines Corp. v. Hoeper, No. 12-315: The questions presented are (1) whether a court can deny the immunity from liability provided by the Aviation and Transportation Security Act (which shields airlines from liability for reporting security threats to the Transportation Security Administration) without first deciding whether a report is true; and (2) whether the First Amendment requires a reviewing court in a defamation case to make an independent examination of the record before affirming that a plaintiff met its burden of proving that a statement was false.

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