The FCC's action against AT&T was prompted by a petition to intervene filed by the EEOC in a proposed rate increase submitted by AT&T on November 19. 1970. The EEOC petition was supported by numerous other parties who also requested intervention in this matter. The FCC, in ordering the proposed rate increase for hearing, recognized that "the matters raised by it (the EEOC) are indeed crucial considerations in effectuating our statutory responsibilities,” and concluded that "there are outstanding substantial questions of law and fact which can be resolved only after a full evidentiary hearing..." Accordingly, the FCC ordered a full hearing on the matter of the employment practices of AT&T and its operating companies, pursuant to its discrimination rules. While the hearing has not yet been concluded, extensive investigation and analysis has already been done, and any questions about the Commission's sincerity in adopting its rules and regulations has certainly been dispelled.

The actions and decisions of the FCC, discussed in this section, leave little doubt as to the authority and the ability of a Federal agency to enact similar procedures to insure the protection of the public interest. While we will discuss more fully the issues of ICC jurisdiction to adopt its own rules in this area in part V of our comment, we submit that the statutory history created by the FCC in this area has already resolved most of the legal issues which may be raised in opposition to ICC action and has dispelled any specters of practical obstacles which may be interposed. While we recognize that the FCC and the ICC were not established by the same law, we submit that the public interest obligations of the two agencies, and the milieu in which the two agencies operate is so similar, that the actions by one clearly indicate the viability of similar actions by the other.

V. THE INTERSTATE COMMERCE COMMISSION NOT ONLY HAS AMPLE LEGAL AUTHORITY TO ISSUE EQUAL EMPLOYMENT OPPORTUNITY REGULATIONS BUT ALSO HAS BOTH A STATUTORY AND CONSTITUTIONAL DUTY TO DO SO

In part III of our comment, we demonstrated conclusively that the ICC has not been preempted from regulating the employment practices of the trucking industry because the passage of Title VII. The ICC jurisdiction in this area, which we have assumed up to now, therefore, remained unaffected. This part of our comment will establish the several statutory bases for such ICC jursidiction. Not only does the ICC have such jurisdiction, but the very mandate of its statute requires it to enact such regulations. The rapid development of court cases interrupting the term "public interest" conclusively establishes that the ICC is required to consider the employment practices of its regulatees in any determination it makes on behalf of the interest". This can only be done if the ICC issues the necessary regulations. Finally, the ICC is compelled, apart from statutory considerations, by the Fifth Amendment of the Constitution to issue non-discrimination regulations so as not to be a participant in the unlawful "state action" of discrimination which is pervasive in the trucking industry.

(1) The Interstate Commerce Commission has jurisdiction to issue equal employment opportunity regulations

The very language of the Interstate Commerce Act at several different points encompasses jurisdiction over the employment discrimination of the Commission's regulatees,

In 1940, Congress summarized the National Transportation Policy of this country. It stated, in pertinent part:

"It is hereby declared to be the National Transportation Policy of the Congress.. to encourage... reasonable changes for transportation services, without unjust discriminations, undue preferences or advantages . . .; and to encourage fair wages and equitable working conditions;—all to the end of developing, coordinating and preserving a national transportation system . . . adequate to meet the needs of commerce of the United States . . . All of the provisions of [the Interstate Commerce] Act shall be administered and enforced with a view to carrying out the above declaration of policy. (Emphasis added.)11

This Policy enumerates several separate elements of our transportation policy which are clearly components of equal employment opportunity. Since the Com

114 Commission decision in its Memorandum Opinion and Order in FCC Docket No. 19129 in 27 F.C.C. 2d 151, 159 (1971).

115 27 F.C.C. 2d 309 (1971).

118 54 Stat. 899 (1940). The declaration of National Transportation Policy is found in the "Historical Note" preceding 49 U.S.C. §§ 1, 301, 901, and 1001 (1963).

mission is charged with carrying out its responsibilities in view of these criteria, it ipso facto has jurisdiction to issue regulations concerning them.

The policy requires the "maintenance of reasonable charges for transportation services." Yes, employment discrimination has just the opposite effect. It is a basic economic principle that the smaller the supply of labor the higher the price that labor can command. Discrimination against minorities and women limits the numbers of workers available to fill a job-in this case only Anglo males. These Anglo males can then command a higher wage rate. The result is that costs for transportation services become greater than they need to be; reasonable charges are not maintained.117

The Commission must consider encouraging "fair wages and equitable working conditions" throughout the transportation industry. It is clear that the intention of this phrase in the National Transportation Policy was to afford and insure workers in the regulated transportation industry the same benefits that social legislation had provided other workers. In this regard it must be noted that "equitable working conditions" includes not only the circumstances in which one works but also with whom one works. The cases approving this point under the National Labor Relations Act are quite clear.115 Employment discrimination in trucking is, therefore, plainly included in the phrase "working conditions". Just as certainly, such discrimination, until halted, discourages rather than encourages equity. Similarly "fair wages" is the very essence of the attack on employment discrimination. In all these ways. the ICC has been mandated by Congress to assume jurisdiction in an area which necessarily involves equal employment opportunity.

While, as shown above, the National Transportation Policy provides the ICC with sufficient authority to regulate the employment practices of the trucking industry, some might (incorrectly) argue that this Policy is merely a general statement and that authority must be found in the statute itself. While we do not feel this is necessary, the Interstate Commerce Act specifically provides such authority in at least two different places.

The Act, in section 216(d), states in pertinent part:

"It shall be unlawful for any common carrier by motor vehicle [subject to the Act]. . . to subject any particular person... to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever ... (Emphasis added.)"

The plain language of § 216(d) bars any unjust discriminatory practice of a regulated motor carrier. This language does not apply only to economic discrimination. Since 1941, in Mitchell v. United States, the Supreme Court has held that this same language includes racial discrimination."

120

In Mitchell, a Negro was confined to segregated accommodations on a Pullman train. In answering the question of whether such a case came within the provisions of the Act, the Court stated:

"The denial to appellant of equality of accommodations because of his race would be an invasion of a fundamental individual right which is guaranteed against state action by the Fourteenth Amendment . . . and in view of the nature of the right and our constitutional policy, it cannot be maintained that the discrimination as it was alleged was not essentially unjust. In that aspect it could not be deemed to lie outside the purview of the sweeping prohibitions of the Interstate Commerce Act." 121

117 See generally, Race and Poverty: The Economics of Discrimination 13, 58-59, 60-67 (J. Kain ed. 1969). A recent report which explored ways by which trucking companies could recruit and train inner city workers as a source of a additional manpower concluded, "By screening out the potentially best workers, trucking companies do themselves a costly disservice." Tri-Faith Trucking Terminal Employment Project, supra.

118 New Negro Alliance v. Sanitary Grocery Co., 304 U.S. 542 (1947); NLRB v. Tanner Motor Livery, 349 F.2d 1 (9th Cir. 1965). Furthermore, section 703 of Title VII prohibits any discrimination with respect to "terms, conditions, or privileges of employment." 42 U.S.C. 2000e-2.

119 313 U.S. 80, 61 S.Ct. 873 (1941).

120 Mitchell involved discrimination by a railroad under section 3(1) of the Interstate Commerce Act, 49 U.S.C. § 3(1). Sections 216(d) and 3(1) are virtually identical except that in the latter the phrase "common carrier" appears while in the former it is "common carrier by motor vehicle." In Boynton v. Commonwealth of Virginia, 364 U.S. 454, 81 S.Ct. 182 (1960) and United States v. City of Jackson, Mississippi, 318 F.2d (5th Cir., 1963), the Courts held that segregated bus terminals violate section 216(d) of the Act. See text, infra. See also, Fitzgerald v. Pan American World Airways, 229 F.2d 499 (2d Cir. 1956) ("antidiscrimination" provision of Civil Aeronautics Act of 1938 (49 U.S.C. § 484 (b) (1952 ed.)) (now Federal Aviation Act of 1958, 49 U.S.C. § 1374 (b)) modeled after § 216(d) prohibits segregated accomodations on airplanes).

121 Mitchell, supra, at 94; 61 S.Ct. 877.

The Supreme Court, in Mitchell, found that the "sweeping prohibitions" of the Interstate Commerce Act were intended to bar any discrimination by a federally regulated common carrier against any person in any manner whatsoever.

"[N]ot only was the evil of discrimination the principle thing aimed at, but there is no basis for the contention that Congress intended to exempt any discriminatory actions or practice of interstate carriers affecting Interstate Commerce which it had the authority to reach. (Emphasis added).”

122

This broad view of the Act's prohibition of racial discrimination has been further expanded. In Boynton v. Commonwealth of Virginia,123 the Supreme Court held that section 216(d) prohibits a restaurant operating in a bus terminal from discriminating on the basis of race as part of its transportation obligations.124 In United States v. City of Jackson, the Fifth Circuit Court of Appeals found segregated terminal facilities as well as signs on city streets outside the terminals violate section 216 (d). It noted:

"As has been often stated, the Interstate Commerce Act . . . has behind it the full force of the Commerce clause giving the statute the broadest possible sweep of Congressional power." 125

127

It hardly needs to be recounted again that Congress and the courts have declared discrimination to be a burden on interstate commerce.12 That emloyment discrimination in the trucking industry impedes the free flow of commerce is equally clear. Employment discrimination in the industry inevitably leads to unrest and its resultant effects impeding the preservation of transportation service. Since Section 216(d) of the Interstate Commerce Act prohibits motor carriers from engaging in or associating with any form of racial discrimination affectng the free flow of interstate commerce, and as a matter of law employment discrimination by the industry has such an effect, it also inescapably authorizes the ICC to regulate the employment practices of interstate common carriers."

128

The other statutory provisions which provide the Commission with the requisite authority to issue equal employment regulations are found in sections 206 and 207 of the Act 129 providing that no carrier may engage in interstate commerce without a certificate of "public convenience and necessity" issued by the Commission and section 209 of the Act 130 conditioning issuance of a permit upon a finding by the Commission that "the proposed operation [by an applicant] will be consistent with the public interest and the national transportation policy declared in this Act."

Federal regulatory agencies have been granted broad powers, which must be exercised in the public interest. The ICC is no exception.'

131

132

122 Id. See also, Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843 (1950) (segregated railroad dining cars violate the Act). Cf., Bo-Lo Excursion Co. v. People of State of Michigan, 333 U.S. 28, 68 S.Ct. 358 (1948); Solomon v. Pennsylvania R. Co., 96 F.Supp. 709 (S.D.N.Y. 1951).

123 364 U.S. 454, 81 S.Ct. 182 (1960).

124 Id., at 459-460; 81 S.Ct. 186.

125 318 E 2d 1 at 10 (1963).

128 The rationale for Title VII of the Civil Rights Act of 1964 is the need to eliminate the obstruction to commerce that discrimination causes. See generally, Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348 (1964). Cf; NLRB v. Jones & Laughlin Steel, 312 U.S. 1, 57 S.Ct. 675 (1937) (free flow of interstate commerce requires protection of members of labor unions).

127 See, e.g., supra note 1.

128 In determining that the Federal Aviation Act of 1958 did not preempt state equal employment laws covering airline personnel, the Supreme Court noted with respect to the Federal Aviation Act's "antidiscrimination clause" paralleling section 216(d) of the I.C.A. that:

"But we may assume, for present purposes, that these provisions ["antidiscrimination" provisions of the Federal Aviation Act of 1958] prohibit racial discrimination against passengers and other customers and that they protect job applicants or employees from discrimination on account of race. The Civil Aeronautics Board and the Administrator of the Federal Aviation Agency have indeed broad authority over flight crews of air carriers, much of which has been exercised by regulations. (Footnotes omitted; emphasis added). Colorado Anti-Discrimination Commission v. Continental Airlines, 372 U.S. 714 at 723, 83 S.Ct. 1022 at 1026-1027."

12 49 U.S.C. §§ 306 and 307 (1963).

130 49 U.S.C. § 309 (1963).

121 See, e.g. Scenic Hudson Preservation Conference v. F.P.C. supra; Namekegon Hydro Co. v. F.P.C. supra; Palisades Citizens Assoc., Inc. v. C.A.B., supra; Udall v. F.P.C., 387 U.S. 428 (1967) (environmental preservation included as component of the public interest). 132 Although there is no general public interest requirement in the Interstate Commerce Act (excepting § 209 pertaining only to permits), a duty to protect the public and apply the Act in the public interest has been read into the Act by caselaw. Inland Motor Freight v. U.S., 36 F. Supp. 885 (D. Idaho, 1941); Red Ball Motor Freight v. Herrin Transportation Co., 98 F. Supp. 248 (D. Tex., 1950).

The scope and content of the "public interest" is a continuously developing concept. For example, in Smith v. ICC,133 the Supreme Court pronounced: "[T]he outlook of the Commission and its powers must be greater than the interest of the railroads, or of that which may affect those interests. It must be as comprehensive as the interest of the whole country."

The ICC itself, in certain circumstances, has recognized its responsibility under the expanding phrase "public interest." In one case, it considered the fact that a certified carrier was not able to provide adequate services since it had in its contract with a Teamsters Union an illegal "hot cargo" clause. A lower court held:

"It is true that the Commission does not have jurisdiction to consider the illegality or propriety of agreements between motor carriers and labor organizations, between employers and employees, or to adjudicate labor disputes on controversies but the Commission under the provisions of the Interstate Commerce Act is concerned with and has jurisdiction over the actions of motor carriers in relation to their obligation to the public." (Emphasis added. ) 134

The Supreme Court, in reversing and remanding the case for a full determination on the record, specifically approved the power of the Commission to consider where the public interest lay.135

In a very recent case, the Commission granted a certificate of public convenience and necessity to a limousine service with Spanish-speaking drivers even though another carrier had the same route. The court rejected the priorcertified carrier's argument that "the elements considered by the Commission, particularly the fact that Spanish-speaking drivers will make travel more convenient for Spanish-speaking passengers, are improper grounds for issuance of a certificate."

136

This case illustrates the fact that elements outside the ones considered in the past are necessary to accommodate the public interest of today. Surely it would be contradictory if, on the one hand, the Commission considers national origin within the public interest yet on the other, when dealing with the employment practices of its regulatees, it doesn't. If Spanish-speaking drivers serve the public interest, the policy, for instance of the prior-certified carriers of discriminating against Spanish-speaking drivers in employment, does not. Consideration of the employment practices of regulatees in a case like the one above becomes vital in maintaining a consistent policy.

138

It is well established that important national policies are to be considered in an agency's determination of the public interest. That free competition, for example, as a national policy has been reflected in agency and court decisions.13 Once an interest achieves the status of a national policy it becomes incumbent upon every agency of government to aid, through its decisions, its realization." There are difficulties at times in determining what is a natoinal policy.189 There is no difficulty, however, in agreeing that the elimination of discriminaiton in employment is a national policy of the "highest priority." 140 We are therefore, as this entire comment suggests, respectfully requesting the ICC to take up the pub

133 245 U.S. 33, at 45 (1917).

134 Burlington Truck Lines, Inc. v. Interstate Commerce Commission, 194 F. Supp. 31 (D. Ill., 1962).

135 Id., 371 U.S. 156, at 167, 83 S.Ct. 239, at 245 (1962).

138 National Bus Traffic Assoc. v. U.S., 284 F. Supp. 270, at 272 (N.D. Ill., 1967), aff'd, 391 U.S. 460, 88 S.Ct. 1847 (1967).

137 See Federal Maritime Comm'n v. Aktienbolgoget Sveska Linien, 390 U.S. 238, 244 (1968); McLean Trucking Co. v. United States, 321 U.S. 67, 87 (1944); Silver v. New York Stock Exchange 373 U.S. 341 (1963).

138 Cf. Banzhaf v. FCC., 405 F.2d 1082 at 1097 (1968). The court stated in upholding an FCC order requiring free anti-smoking response time to cigarette commercials on the airways under the Commission's broad mandate to act in the public interest, that "the public health has in effect become a kind of basic law both justifying new extensions of old powers and evoking the legitimate concern of government wherever its regulatory power extends". (Emphasis added).

139 In a recent pamphlet on population redistribution and decentralization and the role of trucking, the American Trucking Association seems to be looking forward to the day when "A number of bills that are pending in the current session of Congress to establish economic and population dispersal as a specific national policy are passed." (Emphasis added). At which time, the American Trucking Associations will, apparently, (rightfully) seek agencies of government to include a consideration of such national policy in all their determinations. American Trucking Associations, Inc., Wash., D.C., The Geography of Survival, 9 (1971).

140 See, e.g., Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968): Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Executive Order 11375, 32 Fed. Reg. 14303 (1967), amending Executive Order 11246, 30 Fed. Reg. 12319 (1965).

lic interest of the elimination of discrimination through issuance of rules to that effect covering the trucking industry initially and other aspects of surface transportation later." Regulatory agencies have been required to consider antitrust policies," and labor-management policies, and the effects of their decisions on racial policy.

142

143

This last category is most dramatically illustrated by the recent case of Shannon v. U.S. Dep't of Housing and Urban Development." In that case, the court, in an extended discussion, read into the responsibilities of the Secretary a broad requirement that he must consider the effects of government sponsored housing on the racial concentration of the area. It is clear that the case stands for the proposition that where a government agency by its actions or inactions in an area in which it has primary authority may adversely affect this country's national policy on race it is acting unlawfully. The ICC has primary authority over regulated truckers; its failure to consider fair employment in the industry would be contrary to national policy. This, the Courts have said, an agency is prohibited from doing.

This section has argued that the ICC has authority under the National Transportation Policy, section 216(d) of its Act, and the requirement that it act in the public interest (which encompasses compliance with national policies). While we feel these various reasons are sufficient, a recent case conclusively decides the issue.

In Potomac Electric Power Co. (Pepco) v. Public Service Commission of the District of Columbia, the precise issue of this proceeding was raised. The Public Service Commission is charged with regulating the public utilities industry in the public interest. On petition from the National Urban League, the Commission ordered Pepco's rate increase to be conditioned upon its achieving fair employment practices. Pepco appealed. Judge Pratt of the federal District court of the District of Columbia held:

"Because Pepco is a private utility pursuing an essentially governmental function, guaranteed a stated rate of return on its investment, and regulated in the public interest, the Court concludes that the Commission had authority and power to examine Pepco's employment practices, either as a part of a rate proceeding or as an independent matter. (Emphasis added)." Since the ICC has virtually life and death control over its licensees 146 and regulates in the public interest," the ICC without further argument has authority and power over the employment practices of its regulatees."

145

148

(2) The Interstate Commerce Commission has a statutory duty to promulgate rules requiring nondiscrimination in the trucking industry

We have shown above that the ICC has authority under the National Transportation Policy, the "antidiscrimination" provisions of its statute, section 216(d) of the Act, and the requirement that it regulate in the public interest, to issue rules and regulations covering the employment practices of the surface transportation industry. In fact, the blatant and pervasive discrimination which we have outlined in part II of our comment contravenes each of these provisions. In similar cases, the courts have made mandatory the broad considerations of the suspect areas like, in this case, employment practices, before an agency may make its final determination on a grant of a particular license or other authority. The courts, as well as the agencies, have recognized that the only way in which to insure the proper consideration of such broad considerations is to adopt rules and regulations covering the matter.

An agency must take a national policy into consideration before making a determination of any kind. As one court has recently said regarding an agency's

141 Comment. Administrative Agencies, The Public Interest and National Policy: Is A Marriage Possible? 59 Geo. L.J. 420, 431-33. 442-44 (1970).

142 "It is clear that antitrust concepts are intimately involved in a determination of what action is in the public interest, and therefore, the Commission is obliged to weigh antitrust policy." Northern Natural Gas Co. v. Federal Power Commission, 399 F.2d 953 at 958. (D.C. Cir. 1968).

143 Retail Store Employees Union v. Federal Communications Commission, 436 F.2d 248 (1970).

144 436 F.2d 809 (3rd Cir. 1970).

145 C.A. No. 2382-70/2384–70 (D.DC.. Feb. 23, 1971).

146 Sections 206 and 207 of the Act, 49 U.S.C. 306 and 307.

147 Id.. Section 209, 49 U.S.C. 309; see supra note 98.

148 Similar reasoning applies to railroads which are guaranteed a fair rate of return and have many of the same attributes as a public utility.