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part all too freely to resort to the menance of threatened bodily violence in order to influence the disposition of proceedings in which its interests are involved. Thus, Sammons has manifested, as a general pattern of conduct established through its actions, that it will engage in illegal activities with hoped-for impunity in an attempt to corrupt the regulatory process for its own devices. We conclude, therefore, that Sammons purposely and willfully engaged in the described conduct in order improperly to affect proceedings before this Commission; that Sammons' conduct exemplifies the carrier's abhorrence of due process and its obvious disregard of the law, and that on the record before us we are precluded from finding that Sammons is fit and willing to operate in accordance with the Interstate Commerce Act and the Commission's regulations thereunder.

A review of Sammons' past record shows no likely promise that it would comply with the law and our regulatory procedures if it were granted a limited 3-year certificate as recommended. The issuance of such a certificate would not appear to be sufficient incentive for it to comply with the law, particularly when one considers the gravity and repetition in the carrier's conduct. Therefore, in finding Sammons unfit, no authority can be issued in those of its applications now pending before this Commission, including the proceedings in which a need for the proposed service was found but which were held open pending the determination of applicant's fitness herein. Nationwide Carrier, Inc., Ext.-Foodstuffs, 120 M.C.C. 353 (1974). These matters are now being separately considered by us. We deem it unnecessary,

however, recommended by the Administrative Law Judge in the Popelka proceedings, to at this time reopen Sammons' fitness action in No. MC-124692 (Sub-No. 84), or institute a separate investigation and revocation of certificate proceeding against Sammons. We believe that our decision in this regard is consistent with our objective not to punish for past wrongdoing, but rather to ensure the willingness and ability of the carrier to conduct its future operations in a lawful manner and, in accordance with this policy, we believe that Sammons should not be subjected to harsher measures than those imposed against it herein. It should be emphasized, however, that any continued unlawful activities or operations will necessarily lead to the institution of a proceeding looking toward the imposition of appropriate sanctions, including the possible revocation of existing authority. See Metler Hauling & Rigging Ext. Loudon County, Tenn., 117 M.C.C. 557, 561 (1972).


In finding Sammons unfit to receive additional authority and in denying the Sub-No. 130 application, we wish to emphasize that we are not unsympathetic to the supporting shipper's need for for-hire motor carrier service. In this regard, motor carrier regulation is not so narrow as to preclude shipper from obtaining relief elsewhere. Shipper may immediately support other carriers for temporary authority to provide the required service. It may also support other carriers for permanent operating authority substantially similar to that involved herein. See Metler Hauling & Rigging Ext. Loudon County, Tenn., supra, at 560.

B. Public convenience and necessity in the Popelka proceedings.—When confronted with proceedings of this type we must make a special effort to consider impartially, and not be guided by, subsidiary matters of the case, however demonstrative or sensational, in reaching a proper determination of the merits of an applicant's proposed service. In making such a determination, we must consider whether the proposed operation will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing carriers; and whether it can be served by applicant with its proposed service without endangering or impairing the operations of existing carriers contrary to the public interest, see Pan-American Bus Lines Operation, I M.C.C. 190, 203 (1936). In essence, the question is whether the advantages to those members of the public that would use the proposed service outweigh the disadvantages, real or potential, to existing carriers (and those who depend on their services) that may result.

Upon consideration of these fundamentals, we are convinced that Popelka has established a public need for the proposed services. The supporting firms annually distribute large quantities of lumber and related commodities to numerous consignees located throughout the respective destination

The shippers' needs for transportation are dictated in large part by the nature of the origin territory. In this regard, because the involved area of western Montana is sparsely populated with very little commercial activity other than the lumber industry, shippers do not have access to large pools of equipment terminating in the area which is also suitable for outbound movements of lumber and other products. This factor is clearly supported by the record which indicates that it is not an unusual occurrence for a shipper in the considered area to be informed by permanently authorized carriers that it would be more than a week before equipment is available for back haul transportation. The record also shows that shippers have limited

storage facilities at their mills and hence require pickups on relatively short notice in order to avoid a fire hazard and congestion of excess inventory and vehicles at loading docks. Popelka, with its proximately located terminals at Kalispell, Livingston, and Missoula, has amply demonstrated its ability and willingness to meet the supporting firms' requirements. This Commission has viewed with favor applications for common carrier authority where a locally domiciled applicant offers a service more responsive than that available from existing carriers. Transport Trucking Co. Extension Kansas City, Mo., 47 M.C.C. 702 (1948); Coastal Tank Lines Inc., Extension Pittsburgh, 48 M.C.C. 121 (1948); Jensen Extension-Corn Sirup, 54 M.C.C. 271 (1952); and Dixon Bros., Inc., Extension Colorado, 113 M.C.C. 357 (1971). It is our view that applicant's proposal is economically feasible inasmuch as on return movements it will transport exempt commodities or traffic presently authorized under its existing authorities and, in some instances, Popelka will triplease its vehicles for the return movements


Montana. Moreover, applicant's substantial operations on behalf of the supporting firms pursuant to temporary authority demonstrate an ability successfully to conduct the proposed service.

While protestants Consolidated, Jenkins, and Sammons maintain terminals in the origin territory, Consolidated's fleet does not include flat-bed trailers and Jenkins has not participated in the involved traffic movements to any significant extent. Other protesting carriers are required either to deadhead vehicles over long distances to effect pickups or have appropriate equipment unloading in the area. Shippers have demonstrated that the service of carriers relying upon vehicles merely terminating in western Montana is clearly inadequate in meeting their needs, and it should be reemphasized here that it is this Commission's policy to strive to discourage wherever possible inefficient operations entailing empty vehicle movements over relatively long distances. Some existing carriers, including Sammons and the Western Railroads, will no doubt have a certain amount of traffic diverted from them. Such carriers, however, have no absolute immunity against future competition, even when the added competition may cause a decline in revenues, where the issuance of new authority may best serve the public interest, cf. Patterson Extension-York, Pa., 111 M.C.C. 645 (1970). We believe that the operations of the carriers opposing the service proposed are sufficiently stable to absorb any loss of revenues resulting from a grant herein without serious impairment, especially in view of Popelka's existing competitive operations in the area and its service on the shippers' behalf pursuant to its longstanding temporary authority which corresponds to that sought herein. We conclude, therefore, that the advantages to be derived by the shipping public from Popelka's improved service will outweigh the disadvantages, real or potential, that may accrue to existing carriers in the area, cf. All American Bus Lines, Inc., Common Carrier Application, 18 M.C.C. 755, 776-777 (1939).

Several final matters require our consideration. In conformity with the Administrative Law Judge's recommendations. and conclusions to which applicant Popelka did not file exceptions, (a) only those destination States for which an actual need for service has been shown will be granted, (b) consistent with the evidence, the grant of authority in No. MC-26396 (Sub-No. 63) will be limited to the transportation of particleboard from Missoula, Mont., (c) this Commission's usual condition with respect to the construing of duplicative authorities will be included, and (d) the recommended "originating at and destined to" restrictions will be imposed in order to preclude eventual elimination of the involved origin gateways pursuant to the rules set forth in Ex Parte No. 55 (Sub-No. 8), Gateway Elimination, 119 M.C.C. 530, 562 (1974).

Because Popelka holds a permit issued in No. MC-136777 (SubNo. 3), a dual operations issue arises under section 210 of the Interstate Commerce Act. Inasmuch as the commodities to be transported by applicant under the certificates authorized to be issued in the instant proceeding are different from the commodities authorized to be transported under its relevant permit, we see no opportunity for engaging in any discriminatory or undesirable practices against which section 210 of the act is aimed. Accordingly, we conclude that the resulting dual operations will be consistent with the public interest and the national transportation policy, subject, however, to the usual reservation of the Commission's jurisdiction in the matter.


In No. MC-124692 (Sub-No. 130), we find that Sammons Trucking has failed to show that it is fit and able properly to perform the proposed service or to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations thereunder; that this decision is not a major Federal action significantly affecting the quality of the human environment within

the meaning of the National Environmental Policy Act of 1969; and that the application should be denied.

In No. MC-26396 (Sub-Nos. 51 and 63), we find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, (1) in No. MC-26396 (SubNo. 51), of lumber, lumber products, and wood products, from points in Montana on and west of U.S. Highway 91, and from points in Park County, Mont., to points in Arkansas, Colorado, Illinois, Indiana, Kansas, Michigan, Mississippi, Missouri, New Mexico, Ohio, Oklahoma, Texas, and Wyoming, restricted to the transportation of shipments originating at the named origin points and destined to the named destination States, and (2) in No. MC26396 (Sub-No. 63), of particleboard, from Missoula, Mont., to points in Iowa, Minnesota, North Dakota, South Dakota, Tennessee, and Wisconsin, restricted to the transportation of shipments originating at the named origin and destined to the named destination States; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations thereunder; that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969; that appropriate certificates should be issued, subject to the condition that the authorities granted herein, to the extent that they duplicate authority heretofore granted to applicant, shall not be construed as conferring more than a single operating right; and that the applications in all other respects should be denied.

We further find that the holding by applicant in No. MC-26396 (Sub-Nos. 51 and 63), of the certificates authorized herein and of the permit heretofore issued to it in No. MC-136777 (Sub-No. 3), will be consistent with the public interest and the national transportation policy, subject to the right of the Commission, which is hereby expressly reserved, to impose such terms, conditions, or limitations in the future as may be necessary to insure that applicant's operations shall conform to the provisions of section 210 of the Interstate Commerce Act.

Upon compliance by applicant in No. MC-26396 (Sub-Nos. 51 and 63), with the requirements of sections 215, 217, and 221(c) of the act and with the Commission's rules and regulations thereunder, within the time specified in the order entered concurrently herein, appropriate certificates will be issued. An appropriate order will be entered.

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