No. MC-117806 (SUB-No. 1) ANTIETAM TRANSIT COMPANY, INC., COMMON Decided February 17, 1961 On reconsideration, findings in prior report, 83 M.C.C. 175, reversed. Applicant found not shown to be fit to receive a certificate of public convenience and necessity authorizing the proposed operation. Application denied. Appearances as shown in the prior report, and, in addition, James F. Neal for protestants. REPORT OF THE COMMISSION ON RECONSIDERATION BY THE COMMISSION: By application filed May 25, 1959, Antietam Transit Company, Inc., of Hagerstown, Md., seeks a certificate of public conveience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of passengers and their baggage, and express, mail and newspapers in the same vehicles with passengers, between State Line, Pa., and Hagerstown, over U.S. Highway 11, serving all intermediate points. Potomac Motor Lines, Inc., and Eastern Greyhound Line, Inc., Division of the Greyhound Corporation oppose the application. The Bureau of Inquiry and Compliance of this Commission intervened. In the prior report herein, 83 M.C.C. 175, decided June 17, 1960, division 1 granted applicant the authority sought. Thereafter, upon joint petition of protestants, to which applicant replied, the proceeding was reopened for reconsideration on the present record by order of December 15, 1960. In their petition for reconsideration protestants contend that applicant's past unathorized operations make it unfit to conduct the proposed operations; that there is no real and substantial need for applicant's proposed operation; and that the application is an ill concealed subterfuge by applicant to acquire by indirection the charter rights that it was recently denied on direct application. Applicant replies that there is a public need for the proposed service which cannot adequately be met by existing passenger carriers; that it is fit, willing, and able to perform the proposed operation; that its past unlawful operations were performed in "good faith"; and that it has made no attempt to distort, conceal, or otherwise misrepresent its operations. Applicant holds no authority from this Commission. On July 1, 1957, it acquired the intrastate operating rights of Potomac Edison Company, a motor common carrier of passengers operating wholly within Maryland, and since that date it has conducted extensive passenger operations in the Hagerstown area. As here pertinent, it is authorized to conduct intrastate operations over U.S. Highway 11 between Hagerstown and the Maryland-Pennsylvania State line, a distance of approximately 7 miles; and it here seeks authority to extend its operations into Pennsylvania for a distance of 0.6 mile to State Line. Applicant proposes to originate its northbound operations at Hagerstown and its southbound operations at the "square" in State Line, picking up and discharging passengers at points on U.S. Highway 11 between the two points. Approximately 5 or 6 months after acquisition of its intrastate authority, applicant began operating in Pennsylvania, and it continued to transport passengers between Hagerstown and State Line continuously for at least 2 years. At the time of the hearing in November 1959, it was operating 12 schedules daily, except Sunday, between these points. Passengers were charged a 30-cent fare, and the service was performed pursuant to published schedules. In May 1959, applicant's present counsel advised it that its operations were unlawful and that operating authority from this Commission was needed in order to continue such operations. Applicant, nevertheless, continued the described operations, and on May 25, 1959, it filed the instant application and also an application for temporary authority to transport passengers between Hagerstown and State Line. The application for temporary authority was denied, and a short time thereafter applicant filed a second such application, which was also denied. An employee of this Commission's Bureau of Motor Carriers, by correspondence dated May 29, 1959, and again at a conference with applicant and its counsel on June 8, 1959, advised applicant that its operations were unlawful and should be discontinued. The operations, however, were still being performed in November 1959 when the hearing herein was held. On May 2, 1960, a United States District Court 1 issued a preliminary injunction restraining applicant from continuing to conduct these operations. 1 Applicant's president, Joseph G. Succa, has had 24 years' experience in the passenger transportation field, and he is also president of another motor carrier of passengers, Valley Transportation Company, of Lemoyne, Pa., whose Pennsylvania intrastate operating authority was registered with this Commission on July 17, 1956, in No. MC-99779, under the second proviso of section 206(a)(1) of the 1 United States District Court for the District of Maryland in Civil Action No. 11879, Interstate Commerce Commission v. Antietam Transit Co., Inc., in a memorandum decision of May 2, 1960. Interstate Commerce Act. Applicant maintains its office and garage with complete maintenance facilities at Hagerstown and operates 45 buses. 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. We are of the opinion that applicant's willful and deliberate performance of unauthorized operations and its continued refusal to abide by the provisions of the act require a conclusion that it is not fit properly to conduct the proposed operation, and that the application should be denied. Applicant's president has had 24 years of transportation experience, and, as president of another carrier which has conducted operations in interstate commerce, has been subject to the requirements of the act and the regulations of this Commission. Clearly, he should be familiar with the certificate and permit requirements of the act. The filing of two unsuccessful applications for temporary authority to conduct the proposed operation and the fact that applicant's officers were informed by representatives of this Commission and by applicant's own counsel that its operations were unlawful make it certain that the persons in control of applicant were aware that they were violating the law. However, its unauthorized operations were continued, even after the hearing in the instant application was held, until enjoined by a Federal court. Applicant admits that it has operated unlawfully, and its explanation that its service was required by the public is no justification for its past unauthorized operations. See Bass Extension-Philadelphia, 66 M.C.C. 189. We can only conclude that applicant, in spite of numerous warnings, and in spite of the full knowledge of its president of the requirements of the act, has willfully violated the act; that it cannot be found fit to receive a grant of authority; and that the application should be denied. Applicant is directed to refrain from all unauthorized transportation in the future. In view of this conclusion, we do not deem it necessary to review the findings in the prior report relating to whether a need for the proposed service has been shown. We find that applicant has failed to show that it is fit properly to conduct the proposed operation or to conform to the requirements of the Interstate Commerce Act and our rules and regulations there At the time of the hearing herein, Succa owned 50 percent of the capital stock of applicant and 10 percent of that of Valley, and he was manager of both companies. Our records show that he now owns 50 percent of Valley's stock (the remainder being held by his father) and that he is president of that company. These two carriers are thus under common control. As Valley is under the control of a person who controls motor carriers operating in more than a single State, it is not eligible to conduct operations in interstate commerce in Pennsylvania pursuant to a second proviso registration. If it is continuing to conduct such operations under its second proviso filing, it should discontinue them until appropriate authority therefor is obtained. |