On petition applicant asserts that the review board failed to place proper emphasis on the concept of "public convenience" rather than "necessity"; that it erred in failing to find that protestants are unable to provide the type of economical charter service proposed by applicant; and that it erred in failing to find that no traffic would be diverted from protestants upon grant of the authority sought. In reply, protestants generally contend that no deficiencies in existing services were demonstrated; that the support for the application is based on an expectation of lower rates, which it is contended are not a proper consideration in an application for motor carrier authority; and that the order of the review board was correct, and should, therefore, be affirmed.

The evidence, the review board's order, and the pleadings have been considered. We find the board's statement of facts to be substantially correct, and, as modified and supplemented herein, we adopt that statement as our own.

FACTS

Holiday holds no permanent authority from this Commission. It currently operates city bus routes in Moorhead, and holds intrastate authority to conduct charter operations within Minnesota. Holiday operates 64 buses of various seating capacities, including 37 transit buses which it intends to utilize to conduct charter operations within 20 miles of Moorhead, and 24 intercity and schoolbuses which it intends to utilize to conduct the remainder of the operations sought herein. Prior to October 1973, applicant provided equipment for charter service in trip-lease arrangements with Fergus Bus Lines of Fergus Falls, Minn. After that date it entered into lease agreements directly with charter groups, supplying them with a list of qualified drivers. Holiday believes that it is better able to provide an economical charter service than existing carriers. Holiday submitted appropriate operational feasibility and financial data. The application is supported by the athletic director of an area college and individuals representing a senior citizens program, a 4-H group, and four travel agencies.

The Clay County Senior Citizen's Program arranges tours for senior citizens who reside in Becker, Clay, Ottertail, and Wilkin Counties, Minn., and has also worked with senior citizens from Cass County, N. Dak. It has arranged tours to named points in Washington, Minnesota, South Dakota, Wyoming, and Canada. Applicant has handled some of its tours under a lease arrangement,

and the organization has been satisfied with applicant's service. It supports applicant because it asserts that it requires an economical charter bus service.

Kenneth Rose, West Ottertail County Agent, is responsible for coordinating the activities of the local 4-H club. The group visits other county 4-H organizations as well as State fairs and agricultural expositions. The club has traveled to points in Kansas, Iowa, Wisconsin, and Minnesota in the past. It formerly utilized the service of Fergus, but since that carrier ceased operations it has assertedly been without adequate charter bus service. Mr. Rose states that the club has contacted Greyhound in the past, but found its rates to be prohibitive. The club has not utilized applicant's services in the past, but Mr. Rose states that it will do so if the instant application is granted.

The athletic teams of Moorhead State College, in Moorhead, travel to some events by chartered bus. During the school year the college's teams travel to points in Michigan, North Dakota, South Dakota, Nebraska, and Minnesota. It does not utilize Greyhound's service because of dissatisfaction with that carrier's rates and also because of an alleged service failure which occurred in 1967. It has utilized applicant's service on intrastate movements and some interstate trips under lease arrangements and has found that service to be satisfactory. It expects to continue to utilize applicant's service if the instant application is granted.

Four travel agencies-Herbst Travel International of Fargo, N. Dak., Bastien Travel Agency of Wahpeton, N. Dak., Lake Region Travel Service of Detroit Lakes, Minn., and First International Travel, Inc., of Fargo, N. Dak.-all arrange charter bus service for groups traveling from points in one or more of the counties here involved. All four stated that many of the groups that they serve have limited financial resources and have a need for economical charter service. Bastien, for example, arranges charter bus operations for the Wahpeton Indian School, including both field trips and the transportation of students between the school and their homes in the spring, fall, and at Christmas. All four witnesses testified that some of their groups have been served by Holiday in the past, either on intrastate trips or under lease arrangements, and have been well satisfied with the service.

125 M.C.C.

PROTESTANTS

Greyhound conducts regular-route passenger operations over certificated routes traversing each of the involved origin counties, except Richland County, and thus may conduct incidental charter operations in connection with these authorized regular routes. Greyhound operates a fleet of 659 buses, all of which are airconditioned and restroom equipped. Greyhound's charter revenue from Fargo was $92,472 in 1973 and $67,287 for the first 6 months of 1974; its charter revenue from Moorhead was $14,842 in 1973. It asserts that charter revenues are relied on by Greyhound to provide income to maintain the quality of its regular-route services. It is Greyhound's contention that no public need has been demonstrated for the proposed service, but rather that the support for this application is based merely on a desire for lower rates.

Doyle Transit operates the Fargo Metropolitan Transit System and holds interstate authority to transport passengers, (a) over regular routes, between Fargo and Oakes, N. Dak.; between Oakes and Ellendale, N. Dak.; and between Fargo and Moorhead; and (b) over irregular routes, in special operations, between Fargo and points within 5 miles of Fargo. Doyle asserts that its incidental charter rights encompass all of Cass and Richland Counties, N. Dak., and that by tacking it may also originate charter service at Moorhead. Its charter revenues amounted to $34,833 in 1973 and $49,394 for the first 7 months of 1974. It operates a fleet of approximately 40 buses of varying types and passenger capacities. Doyle argues that none of the supporting witnesses have specified any deficiencies in its service and that a grant of authority herein would subject its charter traffic to diversion.

Ottertail Coaches is engaged primarily in the transportation of schoolchildren to and from school. We take official notice of the fact that by report and order of February 14, 1975, the Commission, Review Board No. 3, in No. MC-139270, Ottertail Coaches, Inc., Common Carrier Application (not printed), granted Ottertail authority, as pertinent, to transport passengers and their baggage, in charter operations, beginning and ending at points in 13 Minnesota counties, including the 4 Minnesota counties involved herein, and extending to points in the United States (except Alaska and Hawaii). Ottertail operates 26 schoolbuses, 4 club wagons, and 1 air-conditioned motor coach, and it asserts that, once its certificate

1

'Petitions for reconsideration were denied by Division 1, Acting as an Appellate Division, by order entered November 17, 1975.

is issued, it will be able to purchase or lease additional equipment if required. It is Ottertail's contention that the sparse population of the involved Minnesota origin territory will not support another charter bus operation and that, therefore, the application should be denied.

DISCUSSION AND CONCLUSIONS

In applications for motor common carrier authority, we have consistently followed the criteria set forth in Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936). Consequently, whether or not the present or future public convenience and necessity require the proposed operation depends on whether the new 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 the proposed operation without endangering or impairing the operations of existing carriers contrary to the public interest. Essentially, 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 services that may result. All American Bus Lines, Inc., Common Carrier Application, 18 M.C.C. 755, 776-777 (1939). An examination of the evidence in light of these criteria fails to establish a need for the proposed service.

We are aware that the Commission has acknowledged that, in proceedings involving passenger applications, it is unrealistic to expect testimony of the same specificity and certainty as we normally require from shippers of freight. See, e.g., Brush Hill Transp. Co. Com. Car. Applic., 112 M.C.C. 348, 356 (1970); Suburban Transit Corp. Common Carrier Application, 71 M.C.C. 205, 211-212 (1957). Compare Cook Broker Application, 119 M.C.C. 709, 715-716 (1974). Not only are such witnesses likely to be unfamiliar with the nature of proceedings before this Commission, but they are also likely to represent groups which require transportation a relatively infrequent and somewhat unpredictable basis. Nevertheless, when the evidence in support of this application is considered in the most favorable manner we are unable to conclude that it is sufficient to support a grant of the authority sought.

The evidence of the four travel agencies supporting this application has been considered in reaching our decision. Although

A certificate was issued to Ottertail on June 17, 1976.

they do not personally use the service proposed, because of their business or professional capacity the travel agents are in a position to reflect the transportation needs of the traveling public. See Grand Island Transit Corp. Ext.-Special Operations, 78 M.C.C. 786, 789 (1959); Dominick Spinelli Common Carrier Application, 107 M.C.C. 799, 808 (1968). However, like the review board below, we also take official notice that the travel agents supporting this application are not licensed as brokers with this Commission. Therefore, they are cautioned that arrangements for charter parties

or

groups should be made in strict compliance with the requirements set forth in Tauck Tours, Inc., Extension-New York, N. Y., 54 M.C.C. 291 (1952).

The support for this application by potential passengers is limited to only three groups of undisclosed size: a senior citizens organization, a 4-H club, and the athletic department of an area college. These groups generally fail to indicate in what manner, or to what extent they would utilize the proposed service in the future. Rather, their support is based solely on a desire for an economical source of charter bus service. To the extent that the supporting witnesses express any dissatisfaction with existing services, it is generally that they believe protestant Greyhound's rates to be too high. Although rates are generally not a factor to be considered in deciding an application for operating authority, where those lower rates are the result of a less luxurious mode of travel the type of service offered is a factor to be considered in deciding whether the proposed operation will serve a useful public purpose.

The evidence indicates, however, that protestants Doyle and Ottertail offer the type of economical, nonluxury service desired by those supporting this application. Collectively, they hold authority to provide the entire scope of charter operations proposed. Further, the evidence fails to indicate that protestant Doyle's service has even been tried." Although neither protestant Doyle nor Ottertail hold authority to provide service in special operations, the record is totally devoid of any evidence which would establish any need for that type of service. Therefore, based on the minimal evidence of need and the existence of two untried protestants which collectively hold authority to provide the charter service proposed, we conclude that the application must be denied.

Finally, we note, as did the review board in its decision, that the leasing arrangements made by applicant directly with the traveling

'At the time the supporting statements were executed. Ottertail had not yet been issued a certificate. nor did it hold temporary operating authority.