Section 2 of the act prohibits unjust discrimination in the rates and charges maintained by railroads. The Commission has generally required a complaining shipper to establish that defendant carrier has charged different rates for like and contemporaneous service in the transportation of like kinds of traffic moving under substantially similar transportation conditions. See Lindberg & Sons v. Chicago and N. W. Transp. Co., 353 I.C.C. 283, 287 (1977). On the record before us, the transcontinental connecting carriers have not had an opportunity to address the issues of like and contemporaneous service or the similarity of transportation conditions. As will be later discussed, however, we do find the arguments advanced by the Southern to be unpersuasive insofar as it attempts to justify the disparate rates. The Commission has generally recognized four elements to support a finding of a section 3(1) violation. There must be a showing (1) that a disparity in rates exists, (2) that complainant has suffered competitive injury, either actual or potential, (3) that defendant is the common source of the preferential treatment and the prejudicial treatment, and (4) that the disparity is not justified by transportation conditions. See Investigation of Railroad Freight Rate Structure, 345 I.C.C. 1364, 1417 (1967). In the cited case the Commission also recognized that, should complainant sustain its burden of proof as to the first three of these elements, the burden shifts to defendant or defendants to disprove the fourth element. Again, on the record before us we are unable to conclude that defendant alone is the source of the alleged unlawful rate provisions. The absence of the connecting carriers precludes an appropriate conclusion on the issue of transportation conditions. As previously noted, we do not find the arguments raised by defendant for its part persuasive. Southern denies any violation of the act and urges retention of the present groupings for Atlanta area lumber receivers for several reasons. First, Southern suggests that the groups reflect two distinct clusters of receivers.' However, we find this argument unpersuasive as the clusters are very close. The distance between the furthest competitor in the Atlanta rate zone and the closest competitor in the long rate zone is less than a mile. More. importantly, all members of both clusters are competing in the same market. Second, Southern points out that to draw the line between the two zones to include M-B would create a bulge. However, we fail to see 'Actual distances are shown in appendix A. how this is material or why any adjustment in groupings would properly be limited only to M-B's facilities. As seen in the map in appendix B, the "line" between the two rate zones is not presently straight. Further, it seemingly divides the Atlanta metropolitan area. Therefore, it would seem highly appropriate to redraw the line so as not to divide the competitors in a single market, particularly since the transcontinental lumber rates are not distance related. Southern cites several cases to support its position that it is not required to consider a competitive market when it draws the demaraction line. In Bognor & Co., Inc., v. Pennsylvania R. Co., 305 I.C.C. 21, 24 (1958), the Commission stated that group adjustments are more or less arbitrary and may have the appearance of injustice. While it is clear that preference and prejudice arising from rate zones may or may not be undue depending on the circumstances, the question must be considered in the light of the entire adjustment and the purpose for which it was established and maintained. Each case must be determined on its own facts and circumstances. Rate groups are normally designed to stabilize rate relationships between producing points and competing markets. Southern presents no convincing evidence that the line dividing the rate groups should continue as originally drawn in the face of the growth of the Atlanta metropolitan area. Southern also cites Silverton Supply Co. v. Chesapeake & O. Ry. Co., 273 I.C.C. 382 (1948) as showing Commission approval of zones having greater rate differences over even shorter distances than now before us. However, the Commission decided that case on the particular facts, which disclosed other factors offsetting the difference in rates. Southern fails to present evidence here of other factors offsetting higher rates to M-B. Southern relies on Wigginton v. Chicago & N. W. Ry. Co., 227 I.C.C. 41 (1938), 229 I.C.C. 61 (1938) for the proposition that enlargement of the urban area does not necessarily warrant revision of the lines between rate zones. Yet, in that case, the Commission decreased the difference in the rates because the existing rate differential created a competitively disadvantageous situation. This Commission concluded that shippers and receivers of freight are entitled to receive rates on par with the market of which they are a part in S & K Farms, Inc., v. The Long Island R. Co., 357 I.C.C. 562 (1978). The rates M-B are assessed are not on par with the Atlanta rate group. In fact as can be seen from the map in appendix B, M-B's rates would place it in a totally different market. Additionally, the two rate zones in question cover extensive areas. Where rate zones or groups are small, Southern's defense that M-B is in a cluster outside the Atlanta cluster may be persuasive. However, here there is a small cluster barely outside a large rate zone. While rate zones are by their very nature somewhat arbitrary, here the line dividing the two zones appears unjustified when balancing the carriers' needs against those of the adversely affected shippers. Southern contends that M-B has suffered no injury, and cites Hoffstot v. Monongahela Ry. Co., 248 I.C.C. 248 (1941) for support. M-B, on the other hand, has shown that it is in a major market and that lumber is a high volume, low markup product. As there is generally a small margin of profit in the lumber business, M-B must charge its customers more for lumber than its competitor charges or absorb higher transportation costs out of the small profit. We also find that complainant has failed to demonstrate injury in the amount of the $23,247.08 in reparations sought. Where competitive injury is alleged, it is well settled that the measure of recovery is not necessarily the difference in charges paid by the complaining shipper. I.C.C. v. U.S. ex rel Campbell et al., 289 U.S. 385 (1933). Complainant must demonstrate the amount its business has been damaged because its competitors have paid less for transcontinental transportation services. We believe that the differences in charges paid is not an appropriate showing of damages in this case because prior to the decision to relocate in 1972, complainant knew both that a higher level of rates was applicable to facilities near Duluth and that other Atlanta dealers, aside from Supply, unquestionably enjoyed the lower level of rates. The record does not etablish that Supply either individually or in conjunction with other lumber dealers sets the price for lumber in the Atlanta area. In fact, the verified statements of M-B suggests that on certain occasions, Supply has purchased lumber through M-B. While a certain level of injury may be presumed from the inequities alleged by complainant, we do not believe the record properly reflects a specific measure of damages. Our conclusions and findings of course are premised on the record before us. They are not a bar to future proceedings or to any appropriate rate adjustments in the future. It is ordered: 1. Southern shall cease and desist from effecting any changes in transportation rates or charges by any means other than lawfully published tariffs filed with the Commission. |