In view of the overall revenue situation of railroads, there is no merit in some protestants' position that respondents should be required to absorb all cost increases in instant proceeding. Restatement of total cost increases occurring since last general rate increase recognizes a productivity increase reflecting a continuous decline in railroad employment levels; but those cost increases greatly exceed the maximum amount of additional revenue which could possibly be obtained if sought increases were approved in full. Various protestants also contend that several "sick" lines in the East should not be used in constructing composite or average financial data for eastern carriers or for railroads generally; however, deficit lines are part of an interrelated and interdependent railroad system and, in general-revenue proceedings, the Commission must consider the needs of the carriers as a whole or at least by major territorial groupings. Moreover, even without data from deficit lines, increases sought will not be excessive for railroads generally or for a majority of those in the eastern district.--Id., pp. 303-10. Furthermore, in keeping with the Economic Stabilization Program and with Commission regulations thereunder (approved by the Price Commission), record shows that (1) former or existing rate level is the one in effect prior to effective date of 2.5 percent interim surcharge approved in 240 I.C.C. 358, and that the selective percentage increases, ranging from 0 to 10 percent and averaging 4 percent, are proposed in lieu of and not in addition to that surcharge; (2) maximum amount of increased revenue the proposal would provide (if fully applied and absent limitations and holddowns required) is $401 million; (3) that such additional revenue is less than amount of carriers' actual cost increases in 1971 and, therefore, no increase in net operating revenue as part of total operating revenue is expected; and (4) for like reason, no increase in the railroads' rate of return on capital is expected.--Id., pp. 311. That (5) increase proposal is cost justified and does not reflect future inflationary expectations, for increases resulting from negotiated wage contracts are not "anticipated or speculative" but are firm cost increases the industry will have to pay; (6) additional revenue derived will only partially fulfill railroads' revenue requirements and in that sense will return a minimum amount required to assure continued service, or to meet future service requirements; and (7) will achieve the minimum rate of return needed to attract capital at reasonable costs and not impair the railroads' credit. Also, (8) Price Commission policies clearly permit a pass through of increased labor costs due to the wage contracts executed before November 8, 1971, and under the circumstances of record, full labor costs resulting from those and subsequently executed wage contracts should be included in considering carriers' operating costs; and (9) the increase in productivity required to close the gap between maximum revenue obtainable under considered increases and railroads' actual increased costs will exceed by far the Price Commission's suggested 6.3-percent guideline for the railroad industry.--Id., pp. 297-99, 311-12. Petition to file tariffs providing for increased rail protective service charges is "filed by or on behalf of railroads generally throughout the United States" and consequently is subject to procedures governing general increase proceedings set forth at 49 CFR $1102.--Protective Service Charges1972, 341 I.C.C. 573 (576-77). Commission granted petition to institute an investigation into the equacy of protective service charges but conditioned its approval of filing temporary master tariff establishing interim increases for such services upon titioner's service of a copy of the petition on all parties involved in the st general increase ex parte proceeding, Ex Parte No. 281, and also upon an tension of the notice date to the general public.--Id., pp. 578-80. Commission herein instituted a proceeding with a view to modification present regulations (49 CFR $1102, $1104, $1105, $1303, and $1306) governing e filing and posting of notice and furnishing of data to the general public proposed general increases in freight rates and passenger fares by rail and tor carriers.--Notice of Increases in Frt. Rates and Pass. Fares, 341 I.C.C. 9 (590-94). 3(4). DUTY OF COMMISSION WHERE STATE REGULATIONS RESULT IN DISCRIMINATION Undue, Unreasonable, or Unjust Discrimination 50. Revenue discriminations.--Commission found in Ex Parte No. 259 at a critical need existed for additional revenue by Nation's railroads to fset increased operations' costs not previously considered by the Commission. espondents' rate of return on investment of 4.01 percent is right at the vel considered inadequate by the Commission. Respondents' intrastate traffic s not bearing its proportionate share of revenue due to abnormally low intraate rates thus thrusting an undue burden on, and unjust discrimination gainst, interstate commerce.--Virginia Intrastate Frt. Rates and Charges-69, 341 I.c.c. 700 (721-23). In Ex Parte No. 259 (332 I.C.C. 590 and 332 I.C.C. 714), a general venue proceeding, the Nation's railroads showed a need for additional revees to offset increased operating costs not previously considered by the mmission. Georgia intrastate rates are abnormally low thus preventing trastate traffic from bearing a fair share of respondents' revenue needs d causing unjust discrimination against, and undue burden on, respondents' terstate traffic. Unlawfulness ordered removed.--Georgia Intrastate Freight ites, 1969, 341 I.C.C. 778 (805-08). However, in an embraced proceeding, the Georgia maximum and minimum cale of rates was found lower than the interstate scale, for the most part, it not so much lower as to constitute a burden on interstate commerce. ition discontinued.--Id., pp. 808-09. 62. Investigation--Procedure Investi Order prescribing intrastate rate or practice.--Evidence of spondents' revenue need justifies Commission's order that the increases in terstate traffic approved in Ex Parte No. 259 be applied to Virginia intraate rates provided that such increases will not result in levels higher than e level of interstate rates or charges, in official territory, on like traffic er the same line of railroad to, from, or within Virginia.--Virginia Intraate Frt. Rates and Charges--1969, 341 I.C.C. 700 (721-24). The Price Commission issued notice on February 10, 1972, directing that all price increases by privately owned public utilities which were not legally in effect on February 9, 1972, are prohibited until the Price Commission implements changes in its regulations, if any, or until March 10, 1972, whichever first occurs. Accordingly, increases in Ex Parte No. 259 levels ordered herein to remove unlawfulness would be unlawful and this Commission will enter no order effectuating increases at this time.-Georgia Intrastate Freight Rates, 1969, 341 I.C.C. 778 (780). $15 (1). COMMISSION EMPOWERED TO DETERMINE AND PRESCRIBE RATES, CLASSIFICATIONS, Historical Note Nothing in the amendments to $15 made by $202 of the Act of February 5, 1976, Public Law 94-210, 90 Stat. 31, shall be construed to modify the application of $2, $3, or $4 of the Interstate Commerce Act in determining the lawfulness of any rate or practice; to make lawful any competitive prac tice which is unfair, destructive, predatory, or otherwise undermines competition which is necessary in the public interest; to affect existing law of the Commission's authority with respect to rate relationships between ports; or to affect the Commission's authority and responsibility to guarantee the equalization of rates within the same port. The Secretary of Transportation and the Commission are separately to study the effect of the amendments made by $202 on the development of an efficient and financially stable railway system and to transmit the results of their studies to Congress.-90 Stat. 39. $15 (7). COMMISSION TO DETERMINE LAWFULNESS OF NEW RATES; SUSPENSION; REFUNDS Procedure 35. Burden of proof upon the hearing; in general.-Respondents in general-increase proceeding are advised and forewarned that the Commission's acceptance of annualized costs and other data of type submitted in this and in prior general revenue proceedings is not an irrevocable commitment; and that, in the future, a much more variable data base will be required to support a request for revenue relief. To that end, a rulemaking proceeding regarding prescription of minimum evidentiary requirements in railroad general increase cases, to supplement regulations in 49 CFR Part 1002, will be instituted; however, final determination of such requirements will take time. Therefore, as an interim measure, it is decided to indicate the evidentiary showing which should be made in any rail revenue proceeding that might be begun prior to promulgation of specific procedures; and provisions relevant to such a showing, set forth in appendix B, will be referred to as "interim procedures." At the same time, it is made clear that respondents are not precluded from submitting additional evidence to support their proposals.--Increased Freight Rates and Charges, 1972, 341 I.C.C. 288 (312-13)*. $15 (8). HEARING; SCHEDULE SUSPENSION Historical Note For the effect of the amendment made by Public Law 94-210, 90 Stat. 37, see the historical note following $15 (1). $15 (9). MARKET DOMINANCE; SUSPENSION Historical Note For the effect of the amendment made by Public Law 94-210, 90 Stat. 85, see the historical note following §15 (1). 15 (17). SEASONAL, REGIONAL, PEAK-PERIOD RATES; REPORT TO CONGRESS Historical Note For the effect of the amendment made by Public Law 94-210, 90 Stat. 36, see the historical note following $15 (1). For the effect of the amendment made by Public Law 94-210, 90 Stat. 36, see the historical note following $15 (1). $16 (2). PROCEEDINGS IN COURTS TO ENFORCE ORDERS; COSTS; ATTORNEY'S FEES 7. Parties.--See Aluminum Co. of America v. Admiral Merchants Motor Frt., Inc., $205(g), n. 5. 8. Findings and order of Commission prima facie evidence.--In shipper's suits against motor carriers to recover refunds of freight charges, claimed on basis of the Commission's order in rate-increase investigation which postponed hearing therein on condition that respondent carriers refund to shippers any increases not ultimately found just and reasonable, initial issue presented by plaintiff's motions for summary judgment is the propriety and validity of the refund order. Defendants argue that the Commission order was void for numerous reasons; however, that issue has been resolved against them by the Colorado three-judge court which, after reviewing their contentions, dismissed the complaint in Admiral-Merchants Motor Frt., Inc. v. U.S., 321 F. Supp. 353, aff'd. 404 U.S. 802, wherein carriers involved in the Commission proceeding sought to have the refund order overturned. And though, unlike instant case, AdmiralMerchants was not an enforcement proceeding but merely an attack on the refund order, that distinction is not relevant to the issue of propriety of the order.-Aluminum Co. of America v. Admiral Merchants Motor Frt., Inc., 337 F. Supp. 674 (677-78). And in shipper's later suits against other motor carriers for recovery of refunds, based on the same Commission refund order, defendants' initial grounds for opposing plaintiff's summary judgment motions are the same as offered in the earlier case, 337 F. Supp. 647, which decision is incorporated herein by reference; those arguments were considered in the court's prior opinions and, as there outlined, are not found to be meritorious. In addition thereto, defendants now argue that plaintiff seeks to have the court give greater vitality and effect to contested refund order; also that, in view of suggested theory of restitution asserted in the Commission's brief submitted to that three-judge court, the Colorado court's decision upholding the order not intended to foreclose carriers from later challenging it. Clearly, such contentions are of no merit because (1) the Colorado court rested its decisio on a basis wholly apart from that suggested by the Commission and (2) instant suits are not, in any event, restitution suits.--Aluminum Co. of America v. Burlington Truck Lines, Inc., 342 F. Supp. 166 (168-70). Also, contrary to defendants' continued description, plaintiff's cause of action is not based on a theory of reparations. Such persistent characterization of plaintiff's suits can be nothing more than a smoke screen to hide the fact that the Supreme Court has affirmed a decision which states that all carriers who participated in the Commission rate investigation, and who withdrew their objections to the refund order, are estopped from contesting and have waived their right to challenge validity of that order. While that decision is not res adjudicata as to those defendants who were not parties in the Colorado court proceeding, it is not suggested that they were not part of the group of carriers in the Commission proceeding who withdrew objections to the refund order. Therefore, those carriers also are estopped from contesting the order's validity because, under the doctrine of stare decisis, the court must accept the Supreme Court's holding that all carriers involved with the Cr mission rate-increase proceedings are estopped from contesting the validity of the refund order entered therein.--Id., pp. 170-72. Defendants also contend that the Colorado court did not affirm the Commission order, but merely refused complainant carriers the relief sought therein; such myopic reading of that opinion is belied by the statement of issues set forth by the court and the question presented on appeal to the Supreme Court which clearly indicate that both those courts were affirming validity of the refund order. In addition, under established review procedures an affirmance of a Commission order results from a three-judge court's refusal to enjoin; thus, apart from the "presented" issues, when the three-judge court refused to enjoin or set aside the order, and the Supreme Court affirmed, those courts in fact affirmed the validity of the Commission refund order. And under the doctrine of res judicata, defendants are precluded from attacking that ord and the court is likewise bound to accept the validity thereof in instant proceeding. Therefore, plaintiff is granted summary judgment in the amount of refunds specified in its stipulation with each defendant carrier.--Id., 678-79 686-87, 682, 688; shipper entitled to refunds sought.--Land O'Lakes, Inc. v. United-Buckingham Frt. Lines, Inc., 351 F. Supp. 103 (109-10, 113). And the court rejects defendants' added argument that they can now challenge Commission finding, which is only prima facie evidence in instant suits, that carriers had not met their burden of proving that proposed rates were just and reasonable, since they failed to submit evidentiary affidavits to support the claim that they did meet that burden of proof; their failure to submit supporting affidavits is peculiarly important because of the court's limited scope of review over that Commission conclusion in a §16 (2) proceeding See 383 U.S. 576. Moreover, carriers waived any objections to that underlying finding when, as a condition for delay of the hearing on proposed increased rates, they agreed to refund any increases not ultimately approved by the Commission; also, having contested refund portion of the order before a three-judge court, they cannot now urge as invalid an aspect different than |