sustained its evidentiary burden. Three shippers support the instant application. Their support is predicated on a desire to again utilize applicant's single-line service, which was formerly provided under applicant's incorrect interpretation of the Commission's Superhighway Rules. We believe that shippers' desire for applicant's proposed single-line service is based on preference only and we are not persuaded on this record that shippers are not, at present, being afforded satisfactory motor carrier service, joint-line or otherwise, by presently authorized carriers. Applicant has offered meaningful basis of comparison between the single-line service it provided for 15 months and its joint-line service with GLX. The abstracts submitted by applicant or shippers to denigrate the quality of joint-line service provided shippers Dow Chemical and Dow Corning by applicant and GLX are misleading as they exaggerate the transit times of GLX by including intervening weekends. Shipper Hawkins, an agent for Dow Chemical, does little more than avow in a most general way its inability to secure adequate motor carrier service. Dow Corning, while supporting the proposed single-line service of applicant, apparently has made little use of the single-line service of protestants where feasible. Dow Corning, without first utilizing the available single-line service and pointing out the weaknesses of such service, it hardly in a position to contend that all available service, except applicant's single-line service, is inadequate. Dow Corning has offered no real explanation for its limited use of protestants' direct service. Shipper Everett Carpet makes generalized statements regarding the alleged inferior service of protestants GLX and Consolidated without submitting specific information substantiating such allegations. Moreover, the record is unclear with regard to the service utilized at present by Everett. What is clear, however, is that, again, there has been no valid comparison made by shipper Everett between the proposed singleline service of applicant and the joint-line service now available. Protestants have served the supporting firms. GLX has demonstrated its ability over a period of many years to afford timely joint-line service in concurrence with applicant Consolidated, has served the involved shippers for many years and is not aware of complaints regarding its service. In summary, therefore, the supporting shippers have available the services of protestants to the involved area, and those supporting firms which have utilized those services express only general complaints, offer little basis for meaningful comparisons, and submit no satisfactory documentary evidence in support of their complaints. Compare Roadway Exp., Inc., Ext.-Grand Haven, Mich., 124 M.C.C. 80 (1975). We are thus of the opinion that the supporting shippers have available satisfactory joint-line service, as well as adequate single-line service; that the evidence does not demonstrate a public need for applicant's proposed single-line service; that the proposed service could not be authorized without unduly impairing protestants' services contrary to the public interest; and that, accordingly, the application should be denied. FINDINGS We find that applicant has failed to establish that the present and future public convenience and necessity require the proposed operation; 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; and that the application should be denied. An appropriate order will be entered. 124 M.C.C. No. MC-139117 (SUB-NO. 1) STANLEY AMSDEN COMMON CARRIER APPLICATION Decided June 10, 1976 On reconsideration, findings in prior order (not printed), of February 14, 1975, reversed. Affiliation between applicant and a shipper of the involved commodities found to preclude findings that the public convenience and necessity require the proposed service and that applicant is fit to conduct the operations described. Application denied. R. W. Burgess for applicant. Frank W. Taylor, Jr., and Ernest A. Brooks II for protestants. REPORT OF THE COMMISSION ON RECONSIDERATION DIVISION 1, ACTING AS AN Appellate DIVISION, MURPHY, Commissioner: By application filed October 24, 1973, Stanley Amsden, doing business as Stanley Amsden Trucking, of Centerville, Mo., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of lumber and lumber products, from points in Dent and Reynolds Counties, Mo., to points in Illinois, Indiana, Ohio, and Pennsylvania. The application is opposed by MWM Truck Lines, Inc., and Steel Haulers, Inc., both motor common carriers. The modified procedure was followed. By order entered February 14, 1975 (not printed), the Commission, Review Board Number 3, found that shippers require transportation of the sought commodities to points in the involved destination States; and that protestants, to the extent they hold appropriate authority to perform such service, have frequently failed to provide equipment within a reasonable time, or to deliver shipments expeditiously upon being tendered traffic within the scope of this proceeding. It accordingly granted the application substantially as sought. Thereafter, upon consideration of protestants' petitions, the proceeding was reopened for reconsideration on the present record by order entered October 7, 1975. In its order the review board recognized that applicant is, in addition, the owner and operator of Amsden Wood Products, a producer and distributor of the traffic which is the subject of this proceeding. It determined, however, on the basis of prior Commission decisions,' that this circumstance is not of such consequence as to render authorization of the proposed service contrary to the public interest. Accordingly, in granting the application, it merely imposed conditions in its findings requiring the maintenance by applicant of separate records for his transportation and nontransportation business activities, and precluding the performance of proprietary and for-hire carriage operations at the same time and in the same vehicle. 2 Protestants, in their petitions, collectively contend the supporting testimony lacks a a clear description of shippers' service requirements, and that matter embraced in their opposing verified statements precludes a finding that they have failed to provide reasonably continuous and adequate service for shippers. Further, they submit that the review board afforded insufficient consideration to the potential for discrimination inherent in the common ownership of Stanley Amsden Trucking and Amsden Wood Products. They accordingly assert that a proper analysis of the facts and issues in this proceeding compels the conclusion that this application should be denied. Applicant, in his reply, submits that 'In analyzing this situation the review board relied on decisions wherein the Commission has approved applications for motor carrier authority notwithstanding the existence of a common control relationship between an applicant and a supporting shipper. Cases cited include: Super Speed Transport, Inc., Common Carrier Application, 96 M.C.C. 335 (1964); National Trailer Convoy, Inc., Ext. Initial Movements, 100 M.C.C. 101 (1965); and Sullivan Lines, Inc., Extension-Far West, 118 M.C.C. 801 (1973). Protestant MWM, in addition to arguing that the evidence fails to demonstrate that its service is inadequate in any material respect, asserts that the review board should have taken official notice of the issuance to it on January 21, 1975, of a certificate in No. MC-128184 (Sub-No. 1) authorizing the transportation of the involved commodities, as pertinent, from points in Dent and Reynolds Counties to points in Ohio and Pennsylvania. The record does not indicate the filing of any motion that official notice be taken of this circumstance prior to the entry of the review board's decision which would have brought this circumstance to its attention. Accordingly, protestant's assignment of error in this regard is entitled to little weight. Similarly, to limit the scope or discussion, our consideration of MWM's operations below will refer specifically only to those provided by it as of the time the present record was closed. the conditions imposed by the review board in its grant are sufficient to guarantee that he will not engage in discriminatory or preferential practices contrary to the Interstate Commerce Act and that the decision is otherwise correct in all material respects and should be affirmed. The evidence, the review board's order, and the pleadings have all been considered. While our conclusions differ from those heretofore arrived at, the factual summary of the review board is correct in all material respects and is restated below only insofar as necessary for clarity of discussion. PERTINENT FACTS Applicant represents in his verified statement that while he holds no authority from this Commission he has become experienced in the transportation field by virtue of his having performed proprietary service. on behalf of Amsden Wood Products (hereinafter Wood Products) since March 1972.' He indicates that he has acquired four tractors and five flat-bed trailers with which to conduct these private carriage operations, and he believes he would be able to expand his fleet if traffic volume pursuant to a grant herein so warrants. His testimony includes a description of the characteristics of the service he intends to provide if this application is granted, and as operator of Wood Products he lists a number of instances of purported service failures experienced in utilizing protestants for the transportation of traffic within the scope of this proceeding. He includes data, referred to in footnote 3, describing his financial posture as of December 31, 1973. Testimony has been submitted in support of the application by Moseley Manufacturing Co., of Jefferson City, Mo., Forest-Mill Industries, Inc., of Palos Hill, Ill., The Richard Goepel Company, of Moline, Ill., and Springdale Lumber Company, of La Grange, Ill. These firms engage in operations as brokers of, or dealers in, lumber and lumber products, purchasing the output of mills in the sought 'Recognition is necessary at this point of questions raised by protestants as to whether the alleged proprietary operations may not have, in fact, constituted unlawful for-hire service. Their position is based on data in the record (consisting of a copy of a 1973 Federal Partnership Income Tax Return) which indicates that Wood Products may be organized as a partnership, while applicant professes to be conducting motor carrier activities in his individual capacity. In response to these assertions, applicant emphatically insists that Wood Products is a proprietorship, and consistent with his position in this respect, data which he submits concerning his financial fitness aggregates the assets and liabilities of both his transportation and nontransportation activities. The significance of these matters in the disposition of this proceeding is considered in our Discussion and Conclusions, below. |