additional authority. The record in this proceedings establishes (1) that at times applicant has failed to render reasonably continuous and adequate service, (2) that it has not kept its records in accordance with the commission's accounting regulations, (3) that it is commonly controlled with other motor carriers in apparent violation of the provisions of §5(2) of the act, (4) that it falsely answered at least one question relating to common control in its application and (5) that its principal stockholder operates as a broker without authority under §211 of the act, participates in the receipt of a rate concession in violation of §§217(b) and 222 (c) of the act, or participates in improper pooling of revenues within the purview of §5(1) of the act.--People Express Co., Extension-Containers, 108 M.C.C. 174(175).

Applicant's application for a grandfather certificate of registration under the grandfather provisions of §206(a)(7) was denied because of its admitted affiliation with a multi-state carrier engaged in interstate commerce. Applicant misrepresented its status on its 206(a)(7) application with respect to whether or not it was under common control with any other person. In its corresponding 207(a) application for operating authority, applicant has failed to rebut or offer any explanation for such conduct. An applicant who willfully and knowingly misrepresents its operating status before the commission can hardly be trusted to comply with the obligations that a regulated carrier is expected to observe in its relations with shippers and the general public; denied.--Merritt Corp. Common Carrier Application, 108 M.C.C. 865(869, 871, 872)*.

Before granting authority to engage in motor carrier operations, we must find, among other things, that an applicant is fit properly to conduct the proposed service. Applicant has conducted its past motor transportation activities in a manner which demonstrates a substantial indifference to or a willful disregard of the applicable safety regulations. Applicant has been shown to be guilty of a number of serious violations perpetuated shortly after it received its initial temporary authority and continuing almost up to the time of the hearing. Compliance with the safety requirements is necessary to protect the public and to promote safe operating conditions on the highways. Applicant's only excuse for these violations was ignorance of the applicable safety rules and regulations. Applicant's past conduct demonstrates a pattern of serious and continuous violations which make it unlikely that it will be willing and able to conduct its future operations in a lawful manner. A carrier's self-serving statements and belated remedial efforts announced at the time of the hearing are not persuasive of future compliance and can be afforded little weight when viewed against a background of continued noncompliance; denied.--Ewen Brothers, Inc., Com. Car. Applic., 108 M.C.C. 878(885,886).

Past operations; Although applicant was allowed to continue operations under the former second proviso of $206(a)(1), after denial of its 206(a) (7) grandfather application, pending determination of

corresponding 207(a) application, in view of its admitted affiliation with a multi-state carrier the past operations of applicant under the registration provisions have been unlawful from the beginning, and thus, the prior operations under the former second proviso were not conducted under color of right, and applicant's past operations may not be considered in determining whether or not the proposed service is required by the public.-Merritt Corp. Common Carrier Application, 108 M.C.C. 865(870)*.

See also Wilson Trucking Corp.--Purchase--Compton Lines, Inc.,

at §5(2), n. 110 Certificate under $207.

Public need: On reconsideration, authority sought herein granted to extent that evidence of record shows a need for the proposed service and existing service is shown to be inadequate to meet shippers' transportation needs.--West Brothers, Inc., Extension--Baton Rouge, La., 108 M.C.C. 485 (489-91)*.

Extension authority proposed by applicant granted, although ordinarily a grant of new authority will not be issued until it is established that the existing carriers are unable or unwilling to handle the available traffic. A finding that the existing service is inadequate is not a prerequisite nor indispensable to the grant of a certificate of public convenience and necessity; especially when the applicant's proposed operation has developed in response to a specific public need, and it would not be in the public interest to deny applicant continued participation in traffic which it developed under a color of right.-W. C. McQuaide, Inc., Extension--Air Freight, 108 M.C.C. 24(27).

Special equipment: Applicant seeks authority to transport liquid asphalt sealer in bulk in tank vehicles. Applicant's proposed service includes the spreading of liquid sealer from the same tank vehicles on the surface at the jobsite location shortly after the completion of the line-haul movement. The involved commodity is used as a sealer for asphalt paving. Sales of this commodity include the work of spreading the sealer on the paving. Such jobs require trucks equipped with spreaders and operated by specially trained personnel. Shipper seeks to obtain a single carrier to serve all points in the 11 destination states in order that it may have better control over the distribution of its traffic. It is clear on this record that spreading the sealer on the surface is the most feasible means of accomplishing the delivery of the commodity. Protestants do not have tank trucks equipped with spreaders which is necessary to spread this commodity on the paving at the various jobsites. Thus, no existing motor carrier is shown to be able to render the complete service, including transportation and spreading, as proposed by applicant. Consequently, we conclude that the proposed service is required by the public convenience and necessity; authority granted.--W. S. Hatch Co. Extension --11 States, 108 M.C.C. 853(856,857,861,862).

Through service: The record shows that the supporting shipper

has experienced difficulties in utilizing the joint-line service of protestants to points within the destination territories because of shipper's need for expeditious, safe, and reliable service on movements of furniture to points within the described destination territories. Protestants contend that shippers are not entitled as a matter of right to single-line service where reasonably adequate joint-line service is available. While it is true that existing carriers are normally entitled to handle whatever traffic they can before additional services are authorized, this does not mean that shipper must be deprived of the opportunity to utilize what appears to be a practical, efficient and comprehensive method of distributing its products simply because an existing service may be faced with added competition. Authority granted except as to authority duplicative of the direct single-line service of two of the protestants.--Trans-Cold Express, Inc., Extension--Furniture, 108 M.C.C. 129 (138, 139, 141).

Volume of traffic: Volume of traffic involved herein now available for movement found to require the proposed service, with indicated restrictions, of 11 applicants as well as that of protestant. Although expansion of commercial zone of involved area would alleviate the difficulties of shippers, the delay resulting from such a proceeding should be avoided. The record does not support protestant's contention that grants of authority would prevent existing carriers from meeting its public obligations or impair the quality of overall service.--Consolided Freightways Corp. of Del. Ext.--Phoenix, 108 M.C.C. 379(383-5).

28. Change in route; alternate route.

Deviation rules: Applicant, a carrier of passengers and their baggage, by application (letter-notice) notified the commission of its intention to use an alternate route under the commission's Deviation Rules Revised, 1957, (49 CFR 311.1). Before operations may be lawfully conducted under §(c)(8)(i) of the Deviation Rules, applicant must indicate that (1) the superhighway extends in the same general direction as the authorized service route, and (2) that its use will not materially change the existing competitive situation between such carrier and any other. Applicant's proposal is not in harmony with the general purpose and intent of the Deviation Rules because it would substitute one superhighway for another; such proposal is not within the relief contemplated in the superhighway provisions of the Deviation Rules.--Arrow Line, Inc., Ext.--Deviation Route, 108 M.C.C. 92(94).

Also, applicant's proposed deviation route is so much shorter and faster from the standpoint of time and distance that the reduced transit time would be to the competitive disadvantage of the existing passenger carriers as reduced transit time is a decisive factor in the extremely competitive bus industry; denied.--Id., p. 94, 95.

35. Operations by and with railroads.-

Substituted freight service: Applicant is a commonly controlled affiliate of another railroad having multi-state subsidiary motor carrier authority; on acquisition of applicant by the other railroad, applicant's right to engage in single-state subsidiary motor service under the exemption proviso of §206(a)(1) ceased by operation of law. Applicant now seeks to convert its temporary authority to engage in substitute motor-for-rail in single-state operation into permanent authority to conduct this same service and in addition commercial zone authority that would extend into adjacent states.--Chicago & Eastern Illinois R. Co. Com. Car. Applic., 108 M.C.C. 53(54,61,62,66).

Applicant made no attempt to restrict its proposal to motor carrier service auxiliary to or supplemental of its rail service; therefore, applicant must show that special circumstances exist, i.e., applicant must show a public need for the service and that the service of the existing carriers is inadequate; having failed to show that existing carriers are unwilling or unable to meet the transportation needs of the public, the application must be denied.--Id., pp. 61, 62, 66.

§208(c.). TRANSPORTATION OF SPECIAL OR CHARTER PARTIES

10. Special or charter party operation.--Four applicants sought similar authority to transport passengers and their baggage, in special operations, beginning and ending at points in Westchester County, N. Y. and extending to points in the United States. The evidence of record indicates that the potential tour patronage from Westchester County would support the operations of only one applicant. When the number of applicants exceeds the number of carriers for which there is a need for service, we are required to evaluate the applicants and to choose which of them should be granted operating authority. Priority in time of filing similar applications, although of pertinent consideration at times, does not justify the granting of the first filed application where as here, there exist other factors weighing against this result. Manhattan (one of the four applicants) proposes to pickup and discharge passengers at those points which are most convenient for the majority of patrons of a particular tour. There is no indication that any of the other applicants is able to offer such an extensive tour service. Manhattan's proposed service will adequately provide the needed service and will alleviate the present inconvenience experienced by some tour patrons who must arrange their own transportation to and from other tour origin and termination points.--Manhattan Transit Co. Ext.--Westchester County, 108 M.C.C. 763 (764,770,771).

§210a. TEMPORARY AUTHORITY

1. Construction and interpretation. --The Commission's action granting temporary authority is subject to judicial review only when it is arbitrary or capricious or where the agency exceeded its statutory authority of committed an error of law. And as the definition of an arbitrary or

capricious administrative action in O'Boyle v. Coe, 155 F.Supp. 581, applies to commission grants of temporary authority, the record must show only that there was "some evidence" upon which it could base its decision. Therefore, the commission's initial grant and extension of temporary authority to defendant carrier were not arbitrary or capricious when record before the court, to which more than 30 supporting statements of shippers are attached, shows the agency had sufficient information to give the application therefor reasoned consideration. The court will not inquire into soundness of the decision reached by the commission after such consideration.--Navajo Freight Lines, Inc. v. United States, 320 F.Supp. 318 (320)*.

Also, the commission acted within its legal authority in extending considered temporary authority until final disposition of pending application for permanent authority. The Supreme Court held in the Pan-Atlantic case, 353 US 436, that the commission has authority to extend duration of temporary authority until final disposal of the permanent-authority application; and though plaintiff contends that, in addition, the Pan-Atlantic case requires the commission to meet four listed criteria before exercising that power, and claims two of those criteria were not met, the evidence of record in the case shows, to the contrary, that all four of those criteria were, in fact, met. Accordingly, since there was some evidence to support the initial grant and extension of temporary authority, and the commission acted within its legal authority, plaintiff's action to enjoin the commission's orders is dismissed.-Id., pp. 320-1.

§211(b). ISSUANCE OF BROKER LICENSE

24. When license necessary, in general.--A New York City newspaper was charged with illegally engaging in operations as a broker without first having obtained appropriate authority from the commission. Defendant entered into a purported agency agreement with an authorized broker; however, the defendant had assumed the power to establish and develop tours, to enter into contracts, to establish charges, to take the risk of profit and loss, and had assumed the responsibility to maintain records of the transportation arranged without consultation with the purported principal. An independent travel agent may perform those functions which establish and maintain contact between a tour patron and the broker who is licensed to establish and conduct such tours. However, a broker's license entails many responsibilities of a personal nature that can be performed only at a point specified in the license and only by the actual holder of the license.--Manhattan Transit Company v. Staats Herold Corp., 108 M.C.C. 168 (173).

The basic discretionary acts of a broker may not be performed by another, separate entity, and the power to exercise a broker's primary functions may not be leased, sold, or otherwise transferred without the approval of the commission. A licensed broker may not delegate to another, under a purported agency agreement those basic functions of direction and