Pepper Co. The witness for applicant stated that the amount of traffic tendered by Pepper Co., has steadily declined in recent years.

Curtis is an irregular-route motor common carrier specializing in the transportation of meats and other packinghouse products. It operates a substantial fleet of tractors and trailers equipped for the transportation of the involved commodities. Curtis holds authority to provide a substantial portion of the service proposed in parts (1) through (9). The remaining service, except part (10), Curtis assertedly could provide by interlining with named carriers which are not participating in this proceeding. Curtis does not offer keystop or peddle delivery service, and it does not guarantee delivery times, although it attempts to meet timed delivery requirements. Equipment pools are maintained at a number of shippers' locations. Curtis has not recently been tendered any traffic moving from the involved facilities, although it has solicited each of the shippers.

Curtis opposes the application for two reasons. First, it is concerned that under the proposed service applicant would be able to divert consignee-controlled traffic moving from the involved facilities, which traffic applicant cannot now handle. Curtis claims to have participated in such traffic, although it offers no evidence as to the volume and revenues allegedly threatened by the proposed service. Secondly, Curtis believes that it is inequitable for a carrier to gain entrance into the contract carrier field where the burden of proof is slighter, and then "bootstrap" itself into the common carrier field without meeting the requirements of public convenience and necessity as it alleges applicant is trying to do. On cross-examination the witness for Curtis indicated that it is concerned not only with the immediate but also with the potential competitive effect of the entry of a new carrier into the common carrier field, i.e., that upon a grant of the sought authority, applicant will proceed to file additional applications and become more directly competitive.

D-A is a common carrier specializing in the transportation of perishable foodstuffs, including the types of commodities involved in the instant application. It operates a substantial fleet of suitable equipment and holds authorities commensurate to a portion of that sought herein. Specifically, D-A is authorized to provide service (1) from Denver, Colo., to points in Arizona, California, Texas, Idaho, Washington, Oregon, and New Mexico, and (2) from Greeley, Colo., to points in Arizona, California, Texas, Idaho, Washington,

and Oregon. D-A does not guarantee delivery times, although it makes every effort to achieve delivery at a date and time requested. It publishes less-than-truckload (LTL) service tariffs and provides unlimited stops in transit for loading and unloading. Its services have been sought by one of the supporting shippers for a peddle delivery route in Idaho and Oregon, but it declined the traffic. D-A also maintains equipment pools at shippers' locations. In the past protestant has handled consignee- and shipper-controlled traffic from two of the involved facilities on an intermittent basis. At the time of the hearing, however, D-A was receiving no such traffic, although it serves brokers it expects will need such services. D-A opposes the application because it would broaden applicant's authority, permitting applicant to transport traffic now controlled by brokers and exporters. It also opposes the application because of the potential competitive effect of the entrance of applicant, which it considers to be an aggressive carrier, into the common carrier field.

DISCUSSION AND CONCLUSIONS

In all applications under section 207 of the act, including cases such as the instant one involving the conversion of contract to common carrier authority, an applicant is required to prove that the present or future public convenience and necessity require the operations proposed. Under the statute the same showing is required whether applicant is a noncarrier, a contract carrier seeking to convert, or a common carrier seeking to extend its operations. Prior to the 1957 contract carrier legislation, which resulted in the amendments of sections 203(a)(15) and 209(b) of the act, the Commission applied somewhat more liberal criteria in section 207 conversion applications, but the mitigating factors which contributed to the establishment of the more liberal criteria were obviated by the 1957 amendment. It is well recognized that the burden of proof in contract carrier applications is a different and somewhat lesser one than in common carrier applications. Carriers will not be permitted to escape the more stringent burden of proof required for a grant of common carrier authority merely by first acquiring contract carrier authority then converting it after a period of conducting operations thereunder. Connell Transport Co., Inc., Conversion Application, 95 M.C.C. 312, 318 (1964); Mellow, supra.

The basic criteria to be followed in deciding motor common carrier applications are well established. The ultimate question of whether the present or future public convenience and necessity require a proposed operation depends, in substance, on whether the new operation or service will serve a useful purpose, responsive to a public demand or need, whether it can be served as well by existing carriers, and whether it can be served by applicant conducting the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest. In essence, once the public need is established, 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. Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936); and Kaylor and Stuart Extension-Copperhill, Tenn., 124 M.C.C. 441, 445 (1976). In an application for new common carrier authority, unrelated to existing operations, the demonstration that a public need exists will normally be by way of testimony of public witnesses, generally shippers who will utilize the proposed service. If, however, the applicant has been engaged lawfully in transporting the involved traffic, its own evidence concerning such operations may well demonstrate that a need exists for transportation services within the scope of application. Thus, in Connell, supra, at 319, it was noted that an applicant seeking conversion of its contract carrier authority should submit a detailed statement of its past lawful operations for some substantial period of time so that its claim of use of the authority which it seeks to convert can be verified, and that the applicant should offer to surrender for cancellation the authority which has not been the basis of past operations. However, the Connell case, in which no shipper testimony was produced, recognized that past operations alone normally will not be sufficient to warrant the conversion, since such evidence would not alone establish a public need for the proposed services. For example, it is possible that the contracting shippers would find that common carrier services would not meet their requirements. Accordingly, it was stated in Connell that shipper testimony which will demonstrate a need for applicant's services as a common carrier rather than a contract carrier should be produced. Subsequently, in the Ferree case, supra, it was recognized that holding an applicant to a very strict standard of proof on the issue of need for common rather than contract service would require of shippers a knowledge of and an interest in transportation law which they cannot be presumed and

should not be required to have. Accordingly, in Ferree, Division 1 found full compliance with the Connell criterion of shipper testimony, when the shipper had demonstrated a need for service that comports as well with common as with contract carriage. Ferree, supra, at 378-379.^

Applicant here clearly has complied with the first criterion, i.e., it has offered evidence of past operations. As to the second, although some of its outstanding permits have not been a basis for the evidence of past operations, applicant provides evidence of shippers' need for such services in the near future. Applicant has also complied with the third criterion, for it has shown a need for its services as a common carrier through shipper testimony indicating that there is a continuing need for service and that shippers will continue to use applicant's services should the proposed conversion be allowed. Eastern States Transp., Inc., Common Carrier Application, 105 M.C.C. 443, 446 (1967).

The wants and needs of applicant and its supporting shippers must be viewed and weighed in light of the existing framework of common carrier services, the interests of carriers performing these services, and the public which depends upon them. Applicant has provided service to these shippers for a number of years, and thereby it constitutes a part of the existing service structure. Consequently, to the extent the proposed service involves traffic controlled by the supporting shippers, authorization of the proposed service would not create a new or aggravated competitive situation to the detriment of the protestants. Eastern States Transport, supra. Furthermore, we believe that the service applicant will offer as a common carrier will better meet the stated needs of the supporting shippers than those services offered by protestants. Not only would the proposed service embrace all the involved territory, but applicant has generally proven its ability in past operations, and it has shown itself to be more responsive to a number of shippers' requirements, e.g., timed deliveries and keystop and peddle service. Protestants' opposition, although based on pertinent authority, is motivated not so much by the desire to handle the involved traffic, as by the concern that the sought authority will enable applicant to transport consignee-controlled traffic which it cannot now handle, and by a general desire to keep applicant from entering the common

'We do not believe that the change to common carriage would necessarily result in less service being available to the supporting shippers. There is some overlap between the distinct needs of a contracting shipper and the specialized services a common carrier may offer. Compare Moyer Contract Carrier Application, 88 M.C.C. 767, 772 (1962).

carrier field. Notwithstanding the fact that "originating at" and "destined to" restrictions are applied to each portion of the application, the proposed service, if granted, would coincidently endow applicant with capabilities it does not now possess, viz, to handle consignee-controlled traffic. Protestants' asserted interest in such traffic does not warrant protection. Neither protestant is presently handling such traffic on a steady basis; in the past such traffic has been handled only sporadically, and its future availability is speculative. Therefore, even if applicant did take on such traffic it would not adversely affect protestants' operations. The desire to keep aggressive carriers from entering the common carrier field is not in and of itself a legitimate reason for opposing a conversion application proceeding, and such interests cannot provide a basis for denying such an application. The Commission is charged with the duty to insure the general public is provided with a stable and responsive transportation system, and common carriers have the obligation for serving the public generally. Bass Transp. Co., Inc., Ext.-St. Louis, Mo., 125 M.C.C. 233, 240 (1976). Accordingly, where there is a public demand or need for common carrier service, and existing carriers are not as able or willing as applicant to meet this need, and will not be adversely affected, an appropriate service will be authorized.

The Novak criteria are applicable to conversion applications, but, as in all proceedings, serve as mere guidelines in reaching a determination of the ultimate issue of public convenience and necessity. Artus Trucking Company, Inc. v. I.C.C., 377 F. Supp. 1224, 1230-1231 (E.D. N.Y. 1974). Consequently, a certain amount of leeway exists within which an applicant may meet the Novak requirements, although any imprecision in the evidence presented will affect the relative weight accorded such evidence. Mobile Home Express, Ltd., Extension-12 States, 112 M.C.C. 765, 770 (1971). We believe the evidence of past operations and shipper support presented is sufficient to establish representative points to which the involved traffic will move. We further believe that applicant has proved that it can better provide the required service and that it can do so without endangering or impairing the operations of existing carriers. We conclude, therefore, that the advantages to the shipping public of having applicant's services as a common carrier outweigh any real or potential disadvantages to existing services that may result, and that the application should be granted to the extent set forth in our findings.