Page images

that area. According to its abstract it has handled only two shipments from Aurora for a total weight of 400 pounds with a revenue of approximately $22. It has served the supporting shipper Century Manufacturing Company outbound on appproximately six shipments of less than a cumulative weight of 1,200 pounds.

Freeman Transfer, a Nebraska corporation, Freeman Transfer, a Kansas corporation, and Great Northern Cartage Company, a Nebraska corporation, are companies with common control having been approved by the Commission. Its basic authority is general and specified commodities over regular and irregular routes between points in Nebraska within a 50-mile radius of Nickerson, Nebr., including Nickerson, on the one hand, and, on the other, points in Nebraska, including Aurora. It operates 3 semitrailers, 1 van-type trailer, I meat trailer and one 40-foot flat-bed trailer. The companies are able to conduct interline operations and had approximately $100,000 gross revenue for 1972. It does not handle LTL traffic at the present time. None of the companies has ever handled a shipment from Aurora. The witness testified that he recalled one inbound shipment of bottles to a pickle company.


An applicant for motor common carrier authority has the burden of demonstrating by convincing evidence that its proposed service is or will be required by the present or future public convenience and necessity. In ascertaining whether and to what extent this statutory requirement has been met, it must be decided whether the new operation will serve a useful purpose, responsive to a demonstrated public need; whether this purpose can or will be served as well by existing carriers; and whether it can be served by applicant without endangering the operations of existing carriers contrary to the public interest. Pan-American Bus Lines Operation, I M.C.C. 190, 203 (1936). It is well settled that existing motor carriers generally are entitled to all traffic that can be handled economically and efficiently within the scope of their existing authority before a new, competing service may be authorized.

In considering whether and to what extent applicant's evidentiary burden has been borne satisfactorily, it must be determined whether the new operation will serve a useful purpose, responsive to a public need or demand; whether this purpose can or will be served as well by existing lines or carriers; and whether it can be served by applicant without endangering the operations of existing carriers contrary to the public interest. The minimum showing expected of an applicant includes evidence from shippers clearly identifying the commodities they ship or receive, the points to or from which their traffic moves, the volume of freight they would tender to applicant, the transportation services now used for moving their traffic, and any deficiencies in existing service. These minimum evidentiary requirements apply to applications for contract carrier permits (Novak Contract Carrier Application, 103 M.C.C. 555, 557 (1967)), for common cerrier certificates (Cloud Common Carrier Application, 115 M.C.C. 77, 79 (1972)). They have been approved by the courts in Richard Dahan, Inc. v. I.C.C., 335 F. Supp. 337 (D.C.N.J. 1971), and have most recently been insisted upon by the Commission's division 1 in Sterling Trucking, Inc., Ext. Additional States, 118 M.C.C. 374, 377 (1973). In this case the Administrative Law Judge is of the opinion that applicant has met its burden and the application will be granted to the extent outlined below.

At the completion of applicant's case, protestants offered an extensive argument on behalf of a motion for a bench denial of the application. Reduced to its essentials, they argue that applicant failed to prove a prima facie case based upon supporting shippers' failure to clearly identify the commodities involved, the lack of specific

information on claims of deficiency of service by existing carriers, the lack of identity of movements to the destination States and service points or customers therein, and the lack of specific information of volume and frequency of movement for inbound and outbound shipments. The motion was denied and protestants presented their case.

Without detailing again the evidence presented by the supporting shippers, the various commodities involved herein were in many instances described with particularity including pictorial exhibits clearly indicating the specifications of some of these commodities. The remaining commodities were aptly described by the witnesses. Cumulatively, the commodities involved would properly be designated within the range of general commodities and it is so found.

It is true that some of the supporting evidence is weakened by insufficient documentaton of transit times and service failures, and that such evidence often revealed either a general unfamiliarity with existing service, or merely a preference for applicant's proposed service. It is equally true, on the other hand, that such evidence, when considered in its entirety, amply warrants the conclusion that existing service is deficient in many respects. This is particularly true when consideration is given to the size of the community involved and the amount of the volume of freight to be tendered. The majority of shippers require flat-bed equipment and have obviously been hampered by what appears to be an inability on the part of existing carriers to supply such equipment especially on a single-line service to the destination States under consideration. The shippers have had unsatisfactory results from their attempts to use carriers which must interline traffic, and they are most reluctant to continue to rely on that service. Shippers need a prompt service able to meet their special requirements for present and expanding businesses. Except for applicant's proposal, no service has been shown to meet these requirements. Protestants must either interline, or follow circuitous routing; or are unable to provide the flat-bed equipment needed by most of the supporting shippers. These shortcomings, either alone or in combination, render the existing service less than adequate to meet the public need shown. Compare West Brother, Inc. v. United States, 303 F. Supp. 1171 (1969), and Texas Mexican Railway Company v. United States, 250 F. Supp. 946 (1966). It is true that the Commission has often held that protestants generally are entitled to transport all the traffic which they can handle adequately before a new competitive service may be authorized. Adequacy of existing service, once a need for service has been established, has been an important element in determining whether the public convenience and necessity require certification of a new carrier. However, it is only one of many factors to be considered in arriving at the broader determination of public convenience and necessity, a finding of inadequacy is not indispensable to the issuance of a certificate, and the Commission may authorize a certificate even though existing carriers may be able to furnish the proposed service. Nashua Motor Exp., Inc. Petition for Modification, 96 M.C.C. 583 (1964); No. MC29079 (Sub-No. 44); Quality Carriers, Inc. v. U.S., 289 F. Supp. 809 (E.D. Wis. 1968); Younger Brothers, Inc., v. U.S., 289 F. Supp. 545 (S.D. Texas, 1968); Morgan DriveA way. Inc. v. U.S., 268 F. Supp. 886 (N.D. Ind., 1967). In any event, the evidence satisfactorily demonstrates that a direct, single-line service, such as proposed here, will expedite deliveries and minimize the difficulties resulting from use of multiple connecting carriers. With the equipment and service applicant intends to employ, there is no reason why shippers' needs will not be fully met. The advantages of direct, single-line service to all the States herein are plain. Of course, shippers are not entitled to single-line service as a matter of right. But when the operating policies of existing carriers become so oppressive and limited as to prevent shippers from

receiving a service suited to their reasonable transportation requirements, such practices should not be allowed to continue to the exclusion of all competition. Where a shipper establishes a need for the availability of a better service, he should be provided with it. Cf. Pittsburgh & New England Trucking Co., Extension, 113 M.C.C. 46 (1971).

Nor does it appear that any protestant's operations will be so impaired as a result of the issuance of authority here as to prevent it from rendering service to the public in the future. Liberty Trucking Co. Ext.-Lake Mills, Wis.,111 M.C.C. 423 (1970). And as noted before, the Commission is not required to find inadequacy of service in every case. Other vital elements, such as the desirability of the particular type of service to be performed, may and properly should be considered, and are present here. See PanAmerican Bus Lines Operation, 1 M.C.C. 190 (1936); Nashua Motor Express, Inc., v. United States, 230 F. Supp. 646 (D.N.H. 1964); and Patterson Extension-York, Pa., 111 M.C.C. 645 (1970), and cases cited therein.

Protestants also take issue with applicant's presentation of evidence or lack thereof-concerning the points to and from which the traffic moves and the volume of traffic that would be tendered the applicant. Admittedly, the testimony of Mr. Stuchlik leaves much to be desired in the consideration of an application seeking the broad authority as here. Standing alone this testimony could hardly support a grant of authority in any event. But the fact of the matter is that his testimony was supplemented by representatives of Century, Eco and Midland. Collectively, these shippers defined the commodities of particular interest to them and sufficiently indicated the volume of traffic and type of traffic to be tendered the applicant. Their present and future needs were sufficiently presented to warrant a grant of authority to the destination States on a statewide basis. Each of the supporting shippers attested to the increase of business and the future needs of their respective companies. In Gibbon Extension-Liquid Petroleum Wax, 67 M.C.C. 252, 253, the Commission stated:

Future need for a proposed service may be established by a showing that the supporting shippers are actually soliciting business or have some definite plan upon which it can be reasonably found that the commodities sought to be transported will move in the near future.

See also Tank Lines, Inc., Extension-Delaware, 86 M.C.C. 198; Schutt, Inc., Extension Lockport, N. Y., 112 M.C.C. 471; and Curtis, Inc., Extension-Springfield, N.J., 99 M.C.C. 481.

The present and future needs here established require the motor carrier services and operations by the applicant and such services are found necessary in order to assure the availability of adequate service.

The evidence of record cannot justify the expressed fears of certain protestant carriers concerning diversion of traffic and the loss of revenues incidental thereto. Minimal evidentiary showing was presented to support a finding that would tip the balance in favor of protestants. Indeed the evidence clearly shows that in many instances protestants have neither attempted to provide service for the shippers nor would the effect of diversion be more than minimal in considering the overall financial capabilities of most protestants. Time and time again, the Commission has held and the courts sustained the proposition that new or additional operating authority can be granted, notwithstanding the fact that service rendered by existing carriers may be adequate, because the public will best be served by such a grant even though the new competition will cause a decrease of revenues from carriers presently

providing service. See, for example, Gateway Transp. Co., Inc., Ext.-St. Marys, Ga., 114 M.C.C. 484, 486-487 (1971); Braswell Motor Freight Lines, Inc., Extension, 112 M.C.C. 558, 570 (1970); Wehe Common Carrier Application, 112 M.C.C. 315, 319320 (1970); Patterson Extension-York, Pa., 111 M.C.C. 645, 650 (1970); M. R. & R. Trucking Co. Extension-Atlanta, Ga., 82 M.C.C. 473, 484 (1960), sustained sub nom. Atlanta-New Orleans Motor Freight Co. v. United States, 197 F. Supp. 364, 370 (N.D. Ga. 1961); No. MC-67514 (Sub-No. 1), Virginia Dare Transportation Company, Incorporated, Extension-Norfolk, Va., 49 M.C.C. 848 (1949) (not printed in full), sustained sub nom. Norfolk Southern Bus Corp. v. United States, 96 F. Supp. 756, 761 (E.D. Va. 1950), affirmed memorandum 340 U.S. 802 (1950); and No. MC-70662 (SubNo. 5), Cantlay & Tanzola, Inc., Extension of Operations-Las Vegas and St. George, 46 M.C.C. 843 (1946) (not printed in full), sustained sub nom. Lang Trans. Corp. v. United States, 75 F. Supp. 915, 931 (S.D. Calif. 1948).

Furthermore, some protestants testified that they are faced with competition from other carriers serving Aurora on a regular basis. However, most of the competitors named either withdrew their protest or failed to appear in opposition to the application. It is settled that withdrawal of protests and opposition is an indication that existing motor carriers do not expect to suffer any material detriment from a grant of the authority sought. West Bros., Inc., Extension-U. S. Highway 11, 98 M.C.C. 572, 574.

There is in this case the additional fact of the size of the community of Aurora and the broad authority sought. The protestants make the point that size is of no significance while applicant counters with the point that we are not dealing here with a thriving metropolis and the obvious service benefits available to such areas. Yet an assessment of the reasonableness of the authority sought herein must reflect an awareness that applicant will be restricted to traffic originating at and destined to Aurora. In this fashion applicant is not permitted to tack any of its existing authorities with a grant herein. And certainly the broad authority sought herein is not of itself a prerequisite to summary rejection of the application.

Considering all the evidence, the Administrative Law Judge is of the opinion that applicant has shown a need for its proposed operations and that the shippers have established that they should have available the service of the instant application, and that the existing carriers will not be materially adversely affected by the authority approved herein.

Since no evidence has been offered which would support a grant of authority for the transportation of commodities in bulk or any of the other commodities usually excepted from a grant involving general commodities, the grant herein will reflect these exceptions.


Upon consideration of all evidence of record, the Administrative Law Judge finds that the present and future public convenience and necessity require the operation by Coldway Food Express, Inc., as a common carrier by motor vehicle in interstate or foreign commerce, over irregular routes, of general commodities (except those of unusual value, classes A and B explosives, household goods as defined by the Commission, commodities in bulk, and those requiring special equipment) between Aurora, Nebr., on the one hand, and, on the other, points in the United States (except Hawaii and Alaska), restricted to traffic originating at or destined to Aurora, Nebr.

The Administrative Law Judge further finds that Coldway Food Express, Inc., 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 an appropriate certificate should be issued; that this decision is not a major Federal administrative action significantly affecting the quality of the human environment for better or for worse, within the meaning of the National Environmental Policy Act of 1969; and that in all other respects the application should be denied.

WHEREFORE, IT IS THE ORDER of the Administrative Law Judge that: In the absence of a stay or postponement by the Commission or the timely filing of exceptions, the effective date of this order shall be 30 days from the date of service thereof,

Upon full compliance by applicant with the requirements of sections 215, 217, and 221(c) of the Interstate Commerce Act and the rules and regulations prescribed thereunder, a certificate shall be issued to applicant authorizing the operation described in the findings above;

Unless compliance is made by applicant under the preceding paragraph within 90 days of the effective date of this order, or such additional time as may be authorized by the Commission, the grant of authority made herein shall be null and yoid and the application shall stand denied in its entirety, and Except to the extent granted hereby, the application be, and it is hereby, denied.

124 M.C.C.

« PreviousContinue »