violations which occurred subsequent to notice that this temporary authority had expired were willful violations. The Bureau maintains that applicant's other violations (e.g., failing to show required information on freight or expense bills) are equally serious.

In reply, applicant argues that its operations in issue did not violate the act and the Commission's regulations. Applicant contends that its operations were conducted lawfully under its SubNo. 5 TA authority, which applicant alleges was canceled erroneously by the Commission.

The facts bearing on the expiration of applicant's Sub-No. 5 TA authority are set forth more fully in the appendix.

By order served December 9, 1970, in No. MC-133937 (Sub-No. 5 TA), the Commission, the Motor Carrier Board, granted applicant temporary authority for 180 days to transport general commodities, except commodities in bulk, between airports located at or near Charlotte and Atlanta, restricted to traffic having a prior or subsequent out-of-State movement. In this Sub-No. 5 TA application, applicant had stated that, in No. MC-133937 (Sub-No. 2), it currently had pending before the Commission an application for permanent authority to perform this same service between the Charlotte and Atlanta airports. (The Sub-No. 2 application had previously been filed with the Commission on December 18, 1969).

On January 25, 1971, applicant filed another application in No. MC-133937 (Sub-No. 7) for this same authority to operate between the Atlanta and Charlotte airports. The Sub-No. 7 application duplicated part (3) of the Sub-No. 2 application, which application was still pending before the Commission on exceptions. As of that date the joint board had recommended a partial grant of the Sub-No. 2 application, with part (3) to be denied. Applicant had not excepted to that recommendation but one protestant had filed exceptions.

By letter dated June 7, 1971, the Commission notified applicant that applicant's Sub-No. 5 TA temporary authority would continue in effect until final determination of the application for corresponding permanent authority in the Sub-No. 2 proceeding. No protest or objection to this letter was made by applicant.

On January 24, 1972, the application in the Sub-No. 2 proceeding was finally determined, with the authorization sought under part (3) denied. Accordingly, by notice served February 1, 1972, the Commission notified applicant that the Sub-No. 5 TA temporary authority had expired because of the final determination of the

application for corresponding permanent authority in the Sub-No. 2 proceeding. This notice. was served upon applicant's listed representative, Henry P. Willimon, vice president and attorney for applicant; and no protest or objection to this notice was made immediately after its service. Applicant's additional counsel, Leonard A. Jaskiewicz, counsel for applicant in the instant proceeding, contends that he did not receive this notice until May 25, 1972.

By letter dated June 21, 1972, applicant, through its counsel Stephen L. Wie man contended that the Sub-No. 5 TA temporary authority had not expired, but was still in legal force and effect until final determination of the application in the Sub-No. 7 proceeding still pending before the Commission. Applicant's letter was not answered by the Commission. On September 12, 1972, applicant filed a petition for reinstatement of the Sub-No. 5 TA temporary authority. Citing Pan-Atlantic Steamship Corporation v. Atlantic Coastline Railroad Company, 353 U.S. 436 (1957), applicant contended that the Sub-No. 7 application, not the Sub-No. 2 application, was the proper corresponding application for permanent authority to the Sub-No. 5 TA application.

By order served October 24, 1972, the Commission, Division 1, denied applicant's petition for reinstatement. Applicant then sought reconsideration of this decision by a petition filed November 22, 1972. By order served February 8, 1973, the Commission, Division 1, denied applicant's petition for reconsideration.

Applicant continued operations between the Atlanta airport and Charlotte after service of the notice on February 1, 1972, until January 11, 1973.

By order dated January 15, 1973, the Commission's Motor Carrier Board granted applicant emergency temporary authority to provide the identical service between the Atlanta airport and Charlotte. The order stated that it would not prejudice any finding made with respect to applicant's fitness nor prejudice any type of action of prosecution or enforcement against the applicant. Applicant has apparently held no authorization to perform this service since July 29, 1973.

In the instant proceeding, the joint board found that (1) applicant's prior operations in issue were understandable and excusable, (2) applicant's efforts to reverse the termination of its Sub-No. 5 TA temporary authority and its operations under advice of counsel create a presumption that applicant was operating under

color of right, and (3) applicant is fit to conduct the proposed service.

DISCUSSION AND CONCLUSIONS

In a proceeding of this nature, the burden of establishing its fitness properly to perform a proposed transportation service in keeping with the applicable statutory and other regulatory requirements is upon the applicant seeking new or additional motor carrier authority. Kroblin Refrigerated Xpress, Inc. v. United States, 197 F. Supp. 39, 47 (N.D. Iowa 1961). The determination as to whether this burden has been satisfied 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 have existed, whether applicant's conduct represents a flagrant and persistent disregard of the provisions of the Interstate Commerce Act, 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 pertinent rules and regulations of the Commission. Eagle Motor Lines, Inc., Ext.-Lincoln, Ala., 107 M.C.C. 499, 503 (1968). It is also clear that each proceeding involving substantial questions as to an applicant's fitness 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 (1968); and Johnny Brown's, Inc., Extension-Winchester, Va., 111 M.C.C. 905, 908-909 (1970).

In the instant proceeding, applicant's listed representative, Henry P. Willimon, vice president and attorney for applicant, was informed by notice served February 1, 1972, that applicant's Sub-No. 5 TA temporary authority had expired. That notice expressly stated (a) that the expiration was because of the final determination of applicant's Sub-No. 2 application for corresponding permanent authority, and (b) that applicant "may no longer conduct operations" under the Sub-No. 5 TA temporary authority.

After more than 4 months of operations following service of the above-mentioned notice, applicant presented for the first time its contention that its Sub-No. 7 application, rather than it Sub-No. 2 application, was the proper corresponding application for permanent authority corresponding to its Sub-No. 5 TA application for temporary authority. Applicant's letter to the Commission, dated June 21, 1972, submitted this contention very briefly.

On September 12, 1972, as aforestated, applicant filed a petition for reinstatement of its Sub-No. 5 TA temporary authority, in which it explained its position more completely than in its letter dated June 21, 1972. In its petition for reinstatement, applicant argued that its Sub-No. 2 application could not correspond to the Sub-No. 5 TA temporary authority under the criteria set forth in the Supreme Court's decision in Pan-Atlantic Steamship Corporation v. Atlantic Coastline Railroad Company, supra. Because the Sub-No. 2 application was filed before the Sub-No. 5 TA application, applicant contended it did not fulfill the criteria stated in the Pan-Atlantic case. The Commission, applicant argued, was required to designate the Sub-No. 5 TA application as corresponding only to the Sub-No. 7 application, which was filed after the Sub-No. 5 TA application. These contentions by applicant, however, are incorrect in their interpretation of the Supreme Court's decision in the Pan-Atlantic case, supra. It should be noted that the application for permanent authority in the Pan-Atlantic case was filed before (May 5, 1955) the grant of the temporary authority therein (May 18, 1955), just as has been the case here in which applicant's Sub-No. 2 application for permanent authority was filed before the grant of applicant's SubNo. 5 TA temporary authority. The Pan-Atlantic decision, therefore, does not require that a temporary authority should correspond only to an application for permanent authority which is filed after a grant of the involved temporary authority.

In the light of the Pan-Atlantic decision, supra, the Commission's notice served February 1, 1972, was correct in informing applicant that its Sub-No. 5 TA temporary authority had expired. Applicant's many violations after that notice, therefore, were neither justifiable nor excusable.

On the other hand, considering all of the circumstances herein, we believe that applicant is willing and able to comport in the future with the statute and the applicable rules and regulations, and conclude that applicant's violations do not require a finding of unfitness. Although applicant has engaged in unauthorized operations, such activities do not necessarily constitute a bar to a grant of authority to perform a needed service. See Thompson Contract Carrier Application, 72 M.C.C. 179, 181 (1957).

Prior to February 1974, we note that applicant took several actions towards correcting its unauthorized operations and complying with this Commission's rules and regulations. Applicant's letter of June 21, 1972, petition for reinstatement filed September

12, 1972, and petition for reconsideration filed November 22, 1972, all sought to extend its Sub-No. 5 TA temporary authority until the final determination of applicant's Sub-No. 7 application for permanent authority. Following the denial of these petitions, applicant obtained emergency temporary authority to continue the involved operations. Also on May 10, 1972, an attempt was made to republish the applicable rates so as to replace the rates for the herein involved service which had expired earlier. This tariff was rejected by the Commission as the Sub-No. 5 TA had expired.

In the investigation proceeding, in No. MC-C-7934, supra, moreover, applicant cooperated with the Bureau in agreeing to a stipulation of facts, which described the unauthorized operations found to have occurred therein. Following this, the record does not indicate that applicant has failed to comply with the cease and desist order issued in No. MC-C-7934 against the performance of the involved unauthorized operations.

These actions by applicant, under the circumstances of the involved proceeding, tend to support partially at least applicant's contention that its unauthorized operations were conducted in good faith under advice of counsel that such operations were authorized and lawful. See Colonial Motor Frt. Line-Control-Griggs Trucking Co., 116 M.C.C. 551, 556 (1974).

Regarding applicant's other alleged violations, which generally involve failures to show all required information on freight or expense bills, receipts or bills of lading, or other documents, we note that applicant does not deny these violations which are set forth in the compliance report (exhibit 20) prepared by District Supervisor Strotheid. At the least, these violations indicate a substantial neglect or indifference on applicant's part in complying diligently with the rules and regulations issued by this Commission, but are not, in our view, of such a serious nature as applicant's unauthorized operations.

In view of the violations actually established on this record, therefore, which are of a serious nature and must not be condoned, we do not believe that an unconditional grant of authority is warranted. Accordingly, and so that we may be assured of applicant's strict compliance with regulation in the future, we will limit the authority granted herein to a 3-year term, at which time we will have the opportunity to reappraise applicant's compliance record. Cf. Johnny Brown's, Inc., Extension-Winchester, Va., supra. The certificate to be issued herein will expire at the end of