Cost study requirements modified to enable carriers to present cost data on a combined carrier basis inasmuch as prior regulation requiring disclosure on an individual carrier basis might adversely affect a carrier's competitive position. Also, procedures modified to permit updating of cost data on either an individual or composite carrier basis utilizing carriers whose revenues from issue traffic amount to 50 percent or more of their total revenues.--Id., pp. 12-14. Similarly, Commission modified its requirements as to data on carriers' revenue needs so that disclosure on an individual carrier basis is not required but authentication of data by underlying individual carrier data will be required as previously indicated. Also, a showing of carriers' present financial condition will be required.--Id., pp. 14-16. With regard to notification of public, both in respect to reaching of all interested parties, and in a timely manner, Commission concluded that compliance with rule 22 of our General Rules of Practice requiring "simultaneous service" will be adequate and prior regulations in 339 I.C.C. 324 modified to reflect this conclusion.--Id., pp. 16-17. 250. Investigations by Commission.--Investigation of respondent's transportation of "woodshavings" found not to be unauthorized transportation as commodity description "woodchips" in respondent's common carrier certificate was found to embrace "woodshavings." Investigation discontinued.--Puget Sound Truck Lines--Investigation & Revocation, 114 M.C.C. 25 (29). In an investigation initiated by the Commission, it was held that the operations of Skyline Transport, Inc. were in violation of $206(a) of the Act, and the terms, conditions, and limitations of the certificate of public convenience and necessity theretofore issued. Cease and desist order issued.-Skyline Transport, Inc.--Investigation & Revocation, 115 M.C.c. 807 (827). $204(e), (f). USE OF MOTOR VEHICLES NOT OWNED BY MOTOR CARRIERS Historical Note The Commission recommends that $204 (e) be amended to grant standby authority to the Commission to regulate fuel compensation provisions of owneroperator contracts in transportation emergencies.--Annual Reports, 1975, 77. $205(g). COURT REVIEW OF COMMISSION'S ORDERS; COMPELLING COMMISSION TO TAKE JURISDICTION 5. Review of final orders.--Competing lines, such as plaintiff motor carriers who oppose the grant of a certificate to intervenor-defendant, are parties in interest within the statute; therefore, plaintiffs have standing to bring suit under $205 (g) to enjoin enforcement of, and also to set aside, the Commission's decision and order granting additional authority to defendant carrier.--St. Johnsbury Trucking Co. v. United States, 326 F. Supp. 938 (940)*. 206(a)(1). 2. CERTIFICATE OF CONVENIENCE AND NECESSITY; NECESSITY FOR; Construction and interpretation.--Respondent to investigation was found to have violated $206 (a) of the Act, by transporting materials not authorized by its certificate.-Skyline Transport, Inc.--Investigation & Revocation, 115 M.C.C. 807 (823-24). 50. "Grandfather" clause; bona fide operation.--In a consolidated proceeding, relief was granted to one applicant for modification of his authority derived from a grandfather certificate, on the basis of documentary evidence of operations and expressions of shipper support; similar applicants' petitions were denied on the absence of shipper support. In the latter circumstance, modification must be shown to be warranted on two bases: that the specific authority under consideration was intended at the time of issuance to authorize a broader service than that encompassed in the terminology used under present day interpretation, and that the authority has been continuously used to perform the broader service. The Commission acknowledged some former confusion as to evidentiary standards, however, and denied the petitions without prejudice to each of the petitioners filing an appropriate pleading for further hearing within a specified time period.--North Penn Transfer, Inc.--Petition for Modification, 115 M.C.C. 208 (216-18). $206(b). APPLICATION FOR CERTIFICATE; FORM AND CONTENTS 16. Amendment of application.--Plaintiff (protesting carrier) was put on notice that restrictive amendments to an application must be acceptable to the Commission and that protestants who withdraw from a proceeding relying on such a proposed amendment do so at their own peril by the Commission's opinion in the Fox-Smythe case, 106 M.C.C. 1; by its Rules of Practice, particularly Rule 247 (d) (5); and by the warning in the Federal Register, in which notice of intervenor's application appeared, that restrictions not acceptable to the Commission would be eliminated. Thus, though the Commission did not rule on restrictive amendment in question prior to the hearing, plaintiff was not entitled to presume that it would be accepted; and since plaintiff withdrew from the proceeding in reliance on that amendment at its own peril, it cannot complain that it was denied an opportunity to oppose the application actively. The Commission's denial of plaintiff's request for reopening to allow it to present its evidence in opposition was not procedurally defective; suit to enjoin and annul Commission orders, dismissed.--Frozen Food Exp., Inc. v. United States, 328 F. Supp. 666 (667, 669-70)*. 18. Burden of proof.--To warrant authority to transport used household goods, applicant must present evidence of its past good faith operations and indicate support from shippers it has served. Otherwise, applicant must show that proposed operations are required by the public convenience and necessity.--Panda Transport, Inc., Extension--Baltimore, Md., 114 M.C.C. 75 (79)*. 25. Hearing, generally.--The Commission's decision not to reopen considered proceeding, wherein intervening carrier's application was granted without a proposed restrictive amendment, did not constitute denial of due process to plaintiff (protestant) who had withdrawn from the proceeding in reliance on that restrictive amendment. The opinion in the Fox-Smythe case, 106 M.C.C. 1, and warning in the Federal Register--that restrictions not acceptable to the Commission would be eliminated-were sufficient to put plaintiff on notice that amendments must be acceptable to the Commission and that anyone who withdraws relying on a proposed amendment does so at his own peril. Moreover, an application proceeding is not like a lawsuit where the court normally accepts stipulations and restrictions agreed to by the parties and does not superimpose third-party interests on the litigants. The Commission is required to represent the public, a third party, when it grants or denies certificates and, in that capacity, it cannot defer to the parties and permit them to define the metes and bounds of the controversy.-Frozen Food Exp., Inc. v. United States, 328 F. Supp. 666 (669–70)*. $207(a). ISSUANCE OF CERTIFICATE AUTHORIZED TO QUALIFIED APPLICANTS FOR REGULAR ROUTES AND BETWEEN FIXED TERMINI In general: Restrictions to service at facilities of named shippers are imposed in grants of authority only where affirmatively justified by the evidence. Record herein shows clearly that applicant intended throughout this proceeding to seek appropriate authority to serve all shippers of the considered commodities in Philadelphia, Pa. Unrestricted authority granted.- Weiss Transportation Co. Extension--Delaware, 114 M.C.C. 70 (72-73)*. Plant site: Applicant granted authority sought to transport various commodities (excluding those in bulk), from plant sites and storage facilities of supporting shipper to points in three States, based on public convenience and necessity.--Pulley Freight Lines, Inc., Extension--Compounds, 115 M.C.C. 106 (109-10)*. Tacking: Defendant tacked authority to transport household goods (a) between Juneau, Alaska, on the one hand, and, on the other, Anchorage and Fairbanks, Alaska, and (b) between points in a specified portion of southeastern Alaska, including Juneau, on the one hand, and, on the other, Seattle, Wash., to perform a through service from Anchorage to Seattle. The necessity for substituting water for motor transportation in order to continue this service when the Alaska Ferry System could no longer be utilized was held to be justified by the Commission.--Wold Storage & Transfer, Inc. v. Alaska Transfer, Inc., 115 M.C.C. 288 (289). Since applicant had requested an amendment to the application restricting requested routes against the transportation of traffic moving between a described area of its regular route authority in the New England States, New York and Pennsylvania, on the one hand, and, on the other, points in the Carolinas and Georgia, and beyond; and the fact that there is minimal support therefore, restriction against service, direct or indirect, between the considered areas is warranted.--Transamerican Freight Lines, Inc., Extension, 115 M.C.C. 416 (430). Although "partial" restrictions against tacking and interchange are as a general rule considered undesirable, the complexity and geographical scope of the general commodity authority granted requires the imposition of such a restriction.--Id. (430). below. Existing motor carriers: See Curtis, Inc. v. United States, n. 9, Monopoly: The mere existence of a monopoly, standing alone, is not sufficient justification for the establishment of a new operation in the absence of a showing of some inferiority or inadequacy in the transportation service of the existing carriers.-D & M Taxi Co., Inc., Extension--More Passengers, 115 M.C.C. 294 (297)*. 9. Jurisdiction of Commission.--In its action to set aside Commission orders granting authority to the three defendant carriers, plaintiff (protestant in Commission proceedings) failed to show that it has a right to be absolutely free from competition in order to be afforded the opportunity to meet the "performance report" requirements which the Commission attached as a condition to the granting of plaintiff's opposing authority. As the Supreme Court stated, in 389 U.S. 409, the Commission's power is not so circumscribed; no such limitation has been established by Commission decisions or by judicial determinations; and, while public interest in maintaining the health and stability of existing carriers should be considered, the Commission may, on appropriate findings, authorize a certificate even though existing carriers might arrange to furnish successfully the proposed service. The challenged Commission orders appear reasonable and well founded; sustained.--Curtis, Inc. v. United States, 327 F. Supp. 291 (293-94)*. Since Congress has delegated to the Commission a broad discretion in determining what constitutes public convenience and necessity under $207(a), the scope of judicial review of a report and order issuing a certificate is limited. Commission orders should not be set aside, modified, or disturbed by a court on review if they lie within the scope of the Commission's authority and are based upon adequate findings which are supported by substantial evidence upon the record as a whole, even though the court might have reached a different conclusion on the facts presented.-Allard Express, Inc. v. United States, 263 F. Supp. 171 (173-74)*. 10. Violation of act.--See St. Johnsbury Trucking Co. v. United States, n. 25, Past operations, below. 25. Necessity, demand for service, in general.--Commission -issued a special certificate of public convenience and necessity to any carrier meeting the special eligibility requirements detailed herein inasmuch as a need for transportation of "waste" products for recycling and reuse has been shown by the national concern for our environmental quality and the deterioration of our natural surroundings.--Transportation of "Waste" Products for Reuse, 114 M.C.C. 92 (109-10). Proposal for a notional finding of public convenience and necessity to expedite the transportation of new furniture rejected as there does not appear to be the broad range of support that should exist for the adoption of proposal which would affect large segments of the shipping public and the motor carrier industry.--Motor Service on Shipments of New Furniture, 114 M.C.C. 144 (160-62). While there are numerous carriers presently operating in the area of the proposed service, evidence adduced from a large number of shippers, most of whom ship less-than-truckload amounts, indicates a need for complete, expeditious, single-line service. The grant of authority made is conditioned on applicant's filing of the annual performance report specified.--Transamerican Freight Lines, Inc., Extension, 115 M.C.C. 416 (426, 429). Commodity description: Defendant (applicant) operated from 1946 under a "special equipment" authority, transporting iron and steel articles on specially designed flat-bed trucks. After Commission held in 1959 in 79 M.C.C. 335 that such flat-bed trailers should not be classified as special equipment, applicant applied for and received authority to transport iron and steel articles to the same points, since its past operation had been conducted openly under a misinterpretation of its authority and since public need was shown for continuance of the operation. Sustained.--Allard Express, Inc. v. United States, 263 F. Supp. 171 (172-74)*. Many articles commonly transported by heavy haulers, though within the academic definition of machinery, have names, characteristics, and uses of their own and may not be transported under the commodity description "heavy machinery." It is therefore clear that authorities framed by reference to the commodities which may be transported, such as "heavy machinery," are not as broad as those certificates phrased in terms of the service provided.-North Penn Transfer, Inc.--Petition for Modification, 115 M.C.C. 208 (214). The phrase "raw materials" was held to be restricted by the phrase "used in the manufacture of piece goods," since to grant unlimited authority to transport raw materials would have been an absurd act, and the term "materials" has been consistently held to be used only in connection with a particular industry.--Skyline Transport, Inc.--Investigation & Revocation, 115 M.C.C. 807 (823). Denied: Applicant's proposed operations found to be common carriage of general commodities, rather than alleged contract carriage, and evidence of record does not warrant the granting of motor common carrier authority as no need for additional service has been shown.--C-Line, Inc., Extension--Precious Jewelry, 114 M.C.C. 226 (232-33). Applicant's petition for permanent extension of authority held on a temporary grant was denied when evidence adduced by protestants revealed supporting shipper not to have made a concerted effort to utilize other available carriers whose service to points in question was considered adequate by Commission. It has been held frequently that emergency transportation demands during peak periods of shipping activity do not afford a proper |