to this industry connotes specialization, as does its operation of high-cube trailers designed for the high-bulk, low-weight commodities utilized by the bottle and container industry. It contends that the Administrative Law Judge erred in failing to conclude that inasmuch as applicant is seeking to serve a sixth shipper within a single class, and an overall total of eight shippers, it will not be serving more than a "limited number of persons." It further contends that he erred in concluding that applicant is holding itself out as a common carrier to serve the entire bottle and container industry upon request. The Common Carrier Conference asserts that inasmuch as applicant holds authority to transport commodities unrelated to the bottle and container industry, it does not serve a single class of shippers. It maintains that the initial decision should be affirmed.

The evidence, the Administrative Law Judge's recommendations, the exceptions, and the replies there to have been considered. We find the Administrative Law Judge's statement of facts in the initial decision to be substantially correct in all material respects, and except insofar as modified and supplemented in the appendix hereto, we adopt that statement as our own.

A preliminary matter requires disposition regarding the petition for leave to intervene filed by the Common Carrier Conference. Inasmuch as the interest of the conference did not arise until the Administrative Law Judge determined that applicant's proposed operations did not qualify within the meaning of contract carriage as defined in section 203(a)(15) of the act, but instead recommended that common carrier authority be granted, its reply to the exceptions of the Contract Carrier Conference is accepted for filing. The conference obviously has an interest in the issue of the status of applicant's proposed operations and it shall be permitted to intervene in the instant proceeding.

DISCUSSION AND CONCLUSIONS

Section 203(a)(15) of the Interstate Commerce Act defines a contract carrier by motor vehicle as one which engages in motor transportation in interstate or foreign commerce under continuing contracts with one or a limited number of persons. In the initial decision, the Administrative Law Judge found that applicant currently holds contracts to serve seven shippers, and that a grant of the instant application, by enabling it to serve an additional shipper, would place it beyond that point at which it would be serving only a

limited number of persons. Neither section 203(a)(15), nor any other provision of the act, specifies what shall constitute a "limited number of persons." Rather, it is the responsibility of this Commission, under the facts of each case before it, to determine whether a carrier serves a limited number of shippers. P. Saldutti & Son, Inc. v. United States, 210 F. Supp. 307 (D.N.J. 1962).

The Commission has not established a fixed and rigid number of shippers beyond which a carrier may not contract. However, except where a high degree of specialization is involved, a contract carrier seeking to expand service to more than six or eight shippers will be scrutinized with great care to insure that its operations have not evolved into those of a motor common carrier. Umthun Trucking Co. Ext. Phosphatic Feed Supplements, 91 M.C.C. 691, 697 (1967). Service to more than six or eight shippers is not, however, precluded under the Umthun principle; such service will only be examined with careful scrutiny in order to determine a carrier's compliance with the definition of contract carriage contained in section 203(a)(15) of the act. See Contractors Cargo Co.-Ext. of Operations, 105 M.C.C. 683, 700 (1967).

We realize that no simple arithmetic or other formula is available which could be applied to a given factual situation to produce an automatic maximum number of contracting shippers beyond which a carrier may not contract and still be considered as fulfilling its status as a contract carrier. Rather, the governing criteria recognize that, as a practical matter, there must be some measure of flexibility in the number of contracting shippers which might be served at a given time by a motor carrier. Contractors Cargo Co., supra, at 690. The phrase "limited number" is a relative term, without any particular significance in the absence of a comprehensive evaluation of the overall operations of an applicant. Cf. Cardinale Trucking Corp. Extension-Centreville, N. J., 100 M.C.C. 126, 130 (1965). The factors which have been traditionally employed by the Commission in its determination of whether a carrier serves a "limited number of persons" include: (a) the different types of commodities transported, (b) the number of permits under which the carrier operates, (c) the similarity in the services that the carrier provides under its effective continuing contracts, (d) the degree of specialization required by the nature of the business of the involved shippers, (e) the historical manner in which the carrier's operations have grown and developed, and (f) the territory within which the

operations are conducted. See Umthun, supra, at 694-695; Prang Trucking Co., Inc. Ext.-New Brunswick, N.J., 117 M.C.C. 38, 44, 45 (1972); Continental Contr. Car. Corp. Ext.-Modif. of Permit, 121 M.C.C. 882, 886 (1975); and Keller Trucking, Inc., Extension-United States, 121 M.C.C. 42, 49 (1975).

Applying these criteria to the evidence of record in the instant proceeding, we perceive the commodities which applicant is presently authorized to transport to be relatively homogeneous in nature, as did the Administrative Law Judge. Moreover, inasmuch as applicant holds numerous permits to transport the commodities involved herein, the proposed authority will not extend the classes of commodities which it is presently authorized to handle. Applicant serves seven shippers pursuant to permanent contractual authority, most of which could readily be designated as within the bottle and container industry. In fact, it holds authority to transport metal or glass containers and related accessories on behalf of five of these seven shippers. By the instant application, applicant proposes to extend the predominant type of shippers it serves by one, and to extend its total number of shippers to eight. It does not, however, propose to institute a service different from that already provided to its predominant or primary group of shippers. The bottle and container industry, which regularly ships and receives the light and bulky commodities involved herein, requires the specialized and sanitary high-cube, roller-bed equipment, such as that provided by applicant, to satisfy its reasonable transportation requirements. Applicant's historical growth pattern has not been so rampant as to be considered tantamount to the institution of common carrier service. Applicant received authority to serve its first, second, and third shippers in 1968, 1971, and 1972, respectively, and, although it acquired authority to serve four additional shippers in 1972, the instant application (to serve its eighth shipper) was not filed until 1974. We discern no convincing evidentiary basis upon which to predicate a finding that applicant is holding itself out as a common carrier to serve the entire bottle and container industry upon request. Applicant's authorized service area embraces 42 States and the District of Columbia. The instant application also involves a wide geographical area area (ie., 10 Midwestern States and

Pennsylvania).

Where a carrier's services manifest little in the way of specialization in their physical aspects, then the number of shippers served must, in the absence of countervailing considerations, show a real devotion to a very limited number of selected shippers. Stated

differently, the number of shippers which a contract carrier may serve will ordinarily diminish as the degree of specialization in physical services diminishes. Contractors Cargo Co., supra, at 689; Frost Trucking Co., Inc., Extension-Philadelphia, Pa., 110 M.C.C. 203, 208 (1969). Should the instant application be granted, shippers having similar manufacturing characteristics and transportation needs will be increased to six, and applicant's total number of authorized contracting shippers will be increased to eight. Although this number of shippers clearly falls within the outer perimeters of the limitations expressed in the Umthun decision, applicant's proposed operations connote a specialization of services tailored to the needs of a majority of its shippers (i.e., those in the bottle and container industry) so as to still fall within the definition of contract carriage as set forth in section 203(a)(15) of the act. We conclude, therefore, that in the circumstances here presented, applicant's entry into a contract with its eighth shipper will not place it in the category of serving more than a limited number of persons.

Section 203(a)(15) of the act further states that the transportation service to be provided must also meet one of the following alternative tests: (a) the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served, or (b) the provision of a service designed to satisfy the distinct need of each individual customer. Applicant proposes not only to dedicate equipment to the exclusive use of the supporting shipper, but to also provide the specialized equipment required to satisfy the shipper's reasonable transportation demands. Applicant's proposed operation, therefore, qualifies as motor contract carriage.

In determining whether the issuance of a permit will be consistent with the public interest and the national transportation policy, section 209(b) of the act requires that consideration be given to: (1) the number of shippers to be served, (2) the nature of the proposed operations, (3) the effect of a grant of the application upon protestants, (4) the effect of a denial of the application upon applicant and the supporting shipper, and (5) the changing character of shipper's requirements.

As has been indicated, applicant proposes to serve its eighth contracting shipper, and has reached that stage in its development where it will be scrutinized with intensity to insure that it would not thereby be placing itself in a position to serve more than a limited number of persons. This is by no means an impressive showing under the first criterion. Applicant proposes to satisfy shipper's need for

specialized equipment so as to promote the efficient and economical transportation of the involved commodities. Inasmuch as there are no protestants to the instant application, the third criterion need not be considered. A denial of the instant application would not harm applicant but would detrimentally affect shipper to the extent that it would lose the services of a dedicated carrier capable of satisfying its particular equipment requirements and those of its consignees. Finally, the changing character of shipper's transportation requirements does not appear to be a significant factor herein.

Weighing on balance the statutory criteria of section 209(b), we conclude that the record establishes a need for the proposed service as set forth below.

FINDINGS

We find that operation by applicant, in interstate or foreign commerce, as a contract carrier by motor vehicle, over irregular routes, of metal containers and metal container ends (except refuse containers) from Perrysburg, Ohio, to points in Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Ohio, Pennsylvania, Tennessee, and Wisconsin, under a under a continuing contract or contracts with Owens-Illinois, Inc., of Toledo, Ohio, will be consistent with the public interest and the national transportation policy; 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; and that a permit authorizing such operation should be issued. Upon compliance by applicant with the requirements of sections 215, 218, and 221(c) of the act, with the Commission's rules and regulations thereunder, and with the requirements established in Contracts of Contract Carriers, 1 M.C.C. 628 (49 CFR 1053), within the time specified in the order entered concurrently herein, an appropriate permit will be issued.

An appropriate order will be entered.

125 M.C.C.