receiving payments from Sammons. Alice Williams was next contacted by telephone on June 13, 1973, when a man who did not identify himself told her that she was not safe where she was living because she had informed applicant's president, Mr. Wayne Waggoner, about the contacts they had had with her and because the Popelka hearings were not going well. Frightened for her life, Alice Williams immediately telephone Mr. Waggoner who was attending the hearing on the involved application at Missoula. Applicant's counsel then advised her that she should bring the matter, including the threat, out in the open by coming to Missoula and testifying about it at the hearing. She appeared at the hearing and testified as to the substance of the telephone calls and the meeting.

II. THE POPELKA APPLICATIONS

Popelka, the applicant in the proceedings in No. MC-26396 (SubNos. 51 and 63), in addition to its operations as a contract carrier, operates as a motor common carrier of specified commodities, primarily lumber products, fertilizer, and feed ingredients, from and to points in Northwestern and Midwestern States. Popelka's contract carrier operation is limited to the transportation of such commodities as are dealt in or used by discount or department stores (except foodstuffs), from points in Ohio to points in Montana and Idaho, under contract with Golden Rule Department Stores, Inc., of Butte, Mont. It maintains its headquarters and principal terminal facility at Livingston, Mont., and has two other terminals at Kalispell and Missoula, Mont. It operates a fleet of 104 tractors and 96 flat-bed trailers which are either controlled through an affiliated holding corporation or leased under long-term agreements with owner-operators. In serving the supporting shippers, applicant proposes to provide an on call, single-line service utilizing vehicles promptly dispatched from one of its three Montana terminals. On return movements, it will transport exempt commodities or traffic presently authorized under its existing authorities. In instances, Popelka will trip lease its vehicles for the return movement to Montana. During the first 5 months of 1973, pursuant to temporary authority, applicant handled 410 shipments within the scope of the applied-for territory, weighing 18.4 million pounds and yielding revenues of $339,472.

Both of the applications in the Sub-Nos. 51 and 63 proceedings are supported by Evans Products Co., of Portland, Oreg. In addition,

the Sub-No. 51 application is supported by Flint Valley Forest Products, Inc., of Philipsburg, Mont., Forest Products Co., of Kalispell, Mont., Kalispell Pole & Timber Co., of Kalispell, Mont., North Pacific Lumber Co., of Portland, Oreg., St. Regis Paper Co., of Libby, Mont., and Slaughter Brothers, Inc., of Dallas, Tex. In view of the number of shippers participating in the proceedings and the extensive record developed relative to their testimony, the evidence of the supporting shippers where applicable will be summarized on a collective basis.

Each of the involved shippers supports the sought authority for traffic originating from their respective production facilities or consignment origins located in the western third of Montana. Shippers are engaged in the distribution and, in some instances, the production of lumber or allied products, including particleboard and plywood. Their annual volume distributed by motor carriers ranges from 142 truckloads shipped by Forest Products to destinations in 8 of the involved States during 1972 to 900 truckloads of particleboard shipped by Evans Products to points in 16 States embraced within the scope of the applications. While most of shippers' overall output is distributed by rail carriage, a general need for motor transportation is expressed in order to serve their customers located at off-rail points, customers ordering less-thancarload shipments, and those requiring delivery within a relatively short time. The service available from existing carriers is characterized by the following deficiencies; consistent lateness for pickups, delays in transit, insufficient and inappropriate equipment, driver attitude problems, and failure to protect lading from weather. Protestant Bee Line has been responsible for the late pickups and has delivered a shipper's products in soiled and waterstained condition. Consolidated and International could not provide requisite flat-bed equipment. Service failures by System and International have resulted in cancellation of shipments and loss of sales and Hi-Ball and Sammons have provided late pickups. One shipper, North Pacific, complained of several problems with respect to the service of protestant Sammons, including drivers discourteous to consignees, lack of precautionary measures to protect cargo en route, late pickups, and delays in transit. In addition, owing to the general equipment shortage in the area, North Pacific has found it necessary to maintain a substantial private carriage fleet of 48 tractors and 70 trailers which it would prefer to eliminate altogether if adequate common carrier service were available.

The supporting shippers herein are highly satisfied with the service provided by Popelka pursuant to its longstanding temporary

authority. In particular, shippers point to applicant's responsive, same-day or next-day pickup service made possible because of its proximately located terminals. Expeditious service is required in order to aovid disruptions in production for shippers without significant storage capacity, to avoid congestion at shippers' loading facilities, and to minimize the fire hazard of accumulated inventory. In contrast to applicant's locally based operation, most protestants have only been able to provide service either by deadheading equipment over relatively long distances or when they have vehicles unloading in the vicinity of shippers' western Montana origins.

Except for the regular-route general freight operation of Consolidated, the protesting motor common carriers hold irregularroute authority to transport lumber and related products from many points in Montana to specified points throughout the destination territories sought in both proceedings. Of the protestants participating herein, Consolidated, Jenkins,' and Sammons maintain terminals in western Montana. In order to serve the origin territory, the remaining motor carriers opposition must deadhead in equipment from distant terminals or rely upon the possibility of inbound traffic terminating in the area. Grover, Hi-Ball, International, Sammons, System, and the Western Railroads have submitted evidence of their traffic handled in the past from and to points within the scope of the applications. These protestants assert that any diversion of this traffic will result in the deterioration of their services. Diamond requests that any authority issued in the Sub-No. 51 proceeding be restricted to traffic originating in the specified origin territory.

DISCUSSION AND CONCLUSIONS

A. The fitness of Sammons Trucking.-Sections 207(a) and 209(b) of the Interstate Commerce Act require, among other things, that before a certificate or permit may be issued, an applicant must be found fit, willing, and able properly to perform the service proposed and to conform to the provisions of the act and the rules and regulations promulgated thereunder. A finding of fitness is, therefore, a prerequisite to a grant of motor carrier operating authority. Such a requirement is not designed to persecute or harass a particular applicant for its past behavior, but instead to ensure the conduct cits operations in a lawful manner. The shipping public is Jenkins stations two tractors and five trailers at Helena, Mont. From February 12, 1971, when its pertinent authority in conflict herein was issued, until the date of involved hearings, Jenkins handled one consignment within the scope of these applications.

thereby protected from a carrier whose conduct demonstrates an unwillingness to operate within the framework and requirments of regulation. Where the record of an applicant's past conduct demonstrates a pattern of serious or continuing unlawfulness, the applicant has the burden of refuting the import of its past conduct in order to establish its fitness to receive additional authority. See Kroblin Refrigerated Xpress, Inc. v. United States, 197 F. Supp. 39 (N.D. Iowa, 1961); Fournier's Express, Inc., Ext.-Hartford, Conn., 108 M.C.C. 584 (1969); and Jones Common Carrier Application, 96 M.C.C. 100 (1964).

The determination as to whether this burden has been met must be made upon a full consideration of the nature and extent of the violations committed by applicant, the mitigating circumstances, if any, shown to exist and to have existed, whether applicant's conduct represents a flagrant and persistent disregard of the provisions of the act and of the carrier's certificates or permits, whether applicant has made a sincere effort to correct its past mistakes, and whether applicant is willing and able to comport in the future with the statute and the applicable rules and regulations of this Commission. Distributors Service Co., Extension-Foods, 118 M.C.C. 322, 329 (1973). Each proceeding must be determined on the basis of its own particular facts and circumstances. L & M Express Co., Extension-Crewe, Va., 106 M.C.C. 334, 338 (1968).

The records in the proceedings consolidated here in establish that Sammons Trucking has a history of successive investigations of its fitness and that recently the carrier, through its ranking officials, has engaged, or is implicated, in a series of instances involving highly improper conduct of significant import to this Commission and its interest in enforcing regulations and procedures which are not tainted by duress, threats, or other forms of illegality. Sammons. generally responds that since its inception in 1962, the expansion and vigor characteristic of its enterprise has brought upon it the substantial enmity of its competitors. According to Sammons, this hostility by others has led to serious unsubstantiated accusations. which in turn have provoked the intervention of this Commission's Bureau of Enforcement. While we join with Sammons in the view that the accusations are grave, we are also of the opinion that they are corroborated by the ample record developed in these proceedings.

The testimony is uncontroverted that subsequent to Administrative Law Judge Dodge's initial decision in Lambert

Purchase, supra, which found Sammons unfit to acquire the rights of the vendor, Sammons' executive vice president, Richard Bebel, came to the Washington, D.C., office of Administrative Law Judge Dodge and spoke words to the effect that "I am coming gunning for you" or "I am going to get my gun." The evidence, therefore, establishes, and Sammons does not dispute, that a Sammons official, Richard Bebel, did in fact use language directed to the Administrative Law Judge which reasonably could be construed as a threat to do serious bodily harm. A specific finding to this effect has been made in the initial decision with regard to Sammons' fitness to conduct the service proposed in No. MC-124692 (Sub-No. 130). We view with similar gravity the threat to Gerry Rawles made by Myron (Pete) Sammons, the then president and principal stockholder of Sammons Trucking, which the carrier does not deny, but rather has admitted. In this regard, the record shows that Rawles, a division transportation manager for St. Regis Paper Company, received a telephone call from Myron Sammons threatening Rawles' life if he did not withdraw his service complaints against Sammons Trucking. The Alice Williams matter, moreover, is an additional incident implicating the carrier in clearly improper activities, albeit controverted by Sammons insofar as its knowing direction is concerned, which culminate in yet another attempt at duress and a threat upon the life of an individual or participant in regulatory proceedings before this Commission for the purpose of unlawfully affecting the outcome of such proceedings.

In regard to the Bebel threat, Sammons' explanation that the relationship between Bebel and the involved Administrative Law Judge was cordial and that the purpose of meetings initiated by Bebel was to "solicit information of an extraordinary nature that might be helpful," does not excuse the extreme, coercive words spoken and, in fact, tends to substantiate the proclivity on Sammons' part to go beyond the bounds of propriety to influence decisions. The explanation that Rawles' service complaints levied against Sammons constituted "the thorn in the side of protestant Sammons which at a crucial unfortunate time became unbearable" and that the subsequent threat upon Rawles' life was "an irresponsible remark made by a man under the influence of alcohol," cannot in good conscience be accepted in mitigation of this incident. Even if we were not to consider the incident involving Alice Williams, the gravity and similarity of the prior threats by Sammons' officials demonstrate a disturbing tendency on Sammons