not deny that the shipment was incorrectly loaded in the nose of its trailer, but points out that it was Roadway who loaded the shipment. Most of the shippers complain about not being guaranteed a through rate on shipments involving three carriers. Protestants. testimony notes that it is Roadway, not them, that has a rate restriction on three-line hauls. Roadway attempted to prove that Rooks does not provide a 1-day service on Grand Haven inbound and outbound shipments. To this end, it proffered company manifests which purport to show Rooks' service to be 1 day later. Rooks counters this by pointing out that it is applicant who prepares the manifests, and that, although Rooks delivers the freight to Roadway's dock in 1 day, Roadway does not "work" the trailer until the next day. Therefore, it contends that it is actually Roadway that causes the extra day delay. Applicant, however, did not submit other documents to corroborate its testimony concerning transit times. Most noticeably, applicant submitted no traffic studies from the period of time in which it provided single-line service. Furthermore, the joint board. specifically found that five of the seven shippers produced no underlying documents to corroborate their testimony that Roadway's service was faster than the joint-line service. Protestants introduced documents supporting their testimony. Protestants testified that they would be materially adversely affected in their operations by a grant herein, and submitted documents supporting the fact that there would be a possibility that some protestants' Grand Haven terminals would be seriously cut back in personnel or perhaps closed. DISCUSSIONS AND CONCLUSIONS An applicant for motor common carrier authority has the burden of establishing that the operation it proposes is or will be required by the present or future public convenience and necessity. In considering whether and to what extent this statutory requirement has been met, we must determine whether the new operation will serve a useful purpose, responsive to a public demand or need; whether this purpose can or will be served as well by existing carriers; and whether it can be served by applicant without endangering or impairing the operations of existing carriers contrary to the public interest. Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936). Applying these criteria to the evidence of record in the instant proceeding, we are of the opinion that applicant has not satisfied the requisite burden of proof, and that the application should be denied. The joint-line arrangements involved herein have been in effect for well over 20 years, except for the brief period when applicant instituted single-line service in 1972. The supporting shippers herein desire to have available a single-line service from which they hope to obtain lower rates and transit time savings. It is well established, however, that the mere desire of a shipper for single-line service will not warrant a grant of authority in the absence of a showing of inadequacy in available joint-line services. Poole Truck Line, Inc., Extension-Pensacola, 117 M.C.C. 1, 6. We do not believe that major inadequacies in the joint-line service of protestants have been established by applicant. As previously stated, neither applicant nor its supporting shippers have submitted any underlying documents to corroborate their testimony. Moreover, even if the unsupported testimony was given considerable weight, it still would fall far short of demonstrating that applicant, as far as its portion of the joint-line service is concerned, is blameless for any deficiencies, and that any inadequacies are so substantial as to warrant, on balance, the authorization of a new competitive service. Since Roadway provided a single-line service to these shippers under color of right for over 9 months in 1972, it was in a unique position to compare that service with the joint-line service in which it had participated for over 20 years. It could have produced documents which showed that its single-line service was, in fact, vastly superior. Furthermore, it could have requested its supporting shippers to produce documents at the hearing which supported their common contentions. It did neither. Instead, the joint board had to rely upon the undocumented opinion of public witnesses that Roadway's service was superior. Protestants, on the other hand, did introduce documents from the ordinary course of their businesses supporting their position. Notwithstanding the lack of supportive documentation in applicant's and shippers' testimony, protestants have refuted or satisfactorily explained most of the alleged service failures. For instance, the Laughead Company witness was accurate that its muchneeded shipment was misloaded in the nose of Rooks' trailer. However, Rooks countered that, in fact, it was Roadway's personnel that misloaded the trailer. Shippers complain that they do not get a through rate on three-line hauls. Protestants point out that only Roadway has a three-line rate restriction. Roadway accused Rooks extra day delay on deliveries to Roadway's dock, and it introduced documents purporting to support this allegation. Rooks, however, showed that the freight was there at Roadway's terminal in 1 day, but Roadway did not "work" the trailer until the following day, entering the latter date on the manifest. Roadway's allegation that Rooks "refused" to provide 9 a.m. pickup service was denied. Rooks asserts that it was never even requested to pick up at that time although it would be happy to do so. As noted, shipper's support of the application is predicated upon its desire to have available a single-line service and the attendant advantages which such service would provide. The advantages of a single-line service attested to by the supporting shippers herein are in the abstract and are not supported by concrete references to an explicit and determinable need for the proposed service. They offered no specific evidence sufficient to establish that the existing motor carriers, where used, are unable to provide the needed service, or that such motor carriers take a materially longer time in transit than applicant to effect delivery. There also has been no material evidence presented to support the shippers' assertions that an exceptionally fast delivery service is required. On the other hand, protestants have faithfully provided these shippers with satisfactory service for an extended period of time and no serious defects in such service have been shown. Their continued participation in the involved traffic is essential to the stability of their overall operations. A grant of the sought authority would result in substantial diversion of the involved and potential traffic from protestants to applicant. Such result would not be in the public interest since it would adversely and materially affect protestants' operations without concomitant benefits to the supporting shippers. In our opinion, the availability of applicant's single-line service is a matter of shipper preference and not of public necessity. We conclude that the applicant has failed to sustain its burden of proof, and that the application must, accordingly, be denied. FINDINGS On reconsideration, we find that applicant has failed to establish that the present or future public convenience and necessity require the proposed operation; that the application should be denied; and that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. An appropriate order will be entered. 124 M.C.C. No MC-117574 (SUB-No. 222)' DAILY EXPRESS, INC., EXTENSION-POWER Decided December 22, 1975 In each proceeding public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle over irregular routes. of (1) power cranes, tractors (except truck tractors), self-propelled cranes, backhoes, and shovels, and (2) attachments and parts for such commodities (A) from Norfolk, Va., to Newport News, Va., and (B) between Newport News, Va., on the one hand, and, on the other, points in and east of North Dakota, South Dakota. Nebraska, Kansas, Oklahoma, and Texas, subject to a restriction. Issuance of certificates approved upon compliance by applicants with certain conditions, and applications in all other respects denied. James W. Hagar for applicant in No. MC-117574 (Sub-No. 222). Wilmer B. Hill for applicant in No. MC-113495 (Sub-No. 58). Robert E. Born, Jon E. Hollengreen, J. Michael May, Michael E. Miller, David L. Osborne, Paul F. Sullivan, Donald B. Sweeney, Jr., David C. Venable, and James E. Wilson for protestants. REPORT OF THE COMMISSION DIVISION 1, CommissioneRS MURPHY, GRESHAM, AND CLAPP GRESHAM. Commissioner: Exceptions to the initial decision of the Administrative Law Judge were filed by both applicants and by certain protestants. Appropriate replies were filed by various parties. Appendix A hereto sets forth in detail the parties filing exceptions and replies. Our conclusions differ somewhat from those recommended. By applications filed December 18, 1972, and April 3, 1973 respectively, Daily Express, Inc., of Carlisle, Pa., and Gregory Heavy Haulers, Inc., of Nashville, Tenn., seek certificates of public convenience and necessity authorizing operations in interstate or foreign commerce, as common carriers by motor vehicle, over This report embraces No. MC-113495 (Sub-No. 58). Gregory Heavy Haulers. Inc., Extension-Power Cranes. Etc., from Norfolk, Va. |