control for which the authorized holder of the license is primarily responsible. In this case there was no domination, direction, and control by the actual holder of the license over the tour operations of the defendant. Defendant was found to be performing many of those functions which a broker may not delegate to another, and is therefore operating as a broker without holding appropriate authority in violation of §211(a) of the Interstate Commerce Act. A cease and desist order was entered against the defendants.--Id., p. 172, 173.

§212(a). SUSPENSION, CHANGE, REVOCATION, AND TRANSFER OF CERTIFICATES, PERMITS, AND LICENSES

1. Construction and interpretation.--Respondent excepted to the lack of clarity in the definition of household goods and argued that the unauthorized transportation of new fixtures had been conducted in good faith under its household goods authority. In Practices of Motor Common Carriers of Household Goods, 17 MCC 467 (1939), this commission provided for the transportation by household goods carriers of, among other things, fixtures and furniture which are parts of stores, offices, and various other establishments but only when moving such fixtures and equipment of stores to new locations. Since the inception of regulation, the proper nature of the household goods carriers' transportation of new fixtures has historically been considered to be the transportation of new fixtures as an incident to a change of location of a business establishment. The definition in this respect has been unambiguous. Thus, transportation of new fixtures from places of business unassociated with removal of the establishment or a portion thereof, that is normal repetitive transportation in regular commercial channels as performed by applicant, is not permissible under household goods authority.--American Red Ball Transit Co., Inc., --Investigation, 108 M.C.C. 774(776).

30. Amendment of certificate or permit.--Inasmuch as the original commission decision in defendant carrier's application proceeding became final with the issuance of a certificate of convenience and necessity therein, the commission was thereafter without jurisdiction or authority to modify that certificate merely on the basis of a change of policy which it may have subsequently adopted. Therefore, since the commission's order on reconsideration and the revised certificate, issued on authority thereof, constituted changes based wholly on a change of policy, order of the commission under review, granting certain changes in defendant carrier's certificate, is annulled and set aside.--Garrett Freightlines, Inc. v. United States, 324 F. Supp. 575 (575-6)*.

212(b). TRANSFER OF OPERATING RIGHTS

10. Transfer of operating rights.--Although Commission's transfer rules limit leases to one year except in unusual circumstances, commission found that lease of a certificate of registration for period of 10 years where State Commission had approved lease for such period should be approved. Under $206(a) (6) State Commission has initial duty of determining

whether public convenience and necessity support certificate of registration corresponding to intrastate authority granted.--H. C. Daniel, Houston, Tex., Transferee, 104 M.C.C. 899 (909–10)*.

The purpose of the non-severability clause of $206(a)(6)(7)

was to give commission power which it had under $5 but not under $212 (b) to prevent the creation, from a single underlying intrastate certificate, of two interstate operating rights without a showing of public need for such service. Commission found that the non-severability clause did not foreclose automatically consideration of every situation where there had been separation where, as herein, the parties could not control the separation due to State procedures.--Id., p. 903-4*.

Case herein contains comprehensive discussion of Transfer Rules as they apply to transfers under $212 and supplemental rules governing transfers under §206(a) (6) (7) and a review of the governing precedent.-Id., p. 904-909*.

$212(c). CONVERSION OF AUTHORITY

2. Construction and interpretation.--Petitioner's contention that under decision in United States v. Montgomery, Inc., 376 US 389, the commission is without authority to impose keystone-type restrictions in certificates issued in §212 (c) proceedings and, therefore, restriction in its conversion certificate (imposed in lieu of keystone restriction in its permit) should be removed, ignores the Supreme Court's holding in that case that, on remand, the commission would be free to contest appellee's factual claim as to what service it performed under its permit and to limit the certificate to such activity. Furthermore, following the Montgomery case, the district court in Fischbach Trucking Co. v. United States, 263 F. Supp. 239, unanimously upheld the commission's power under $212 (c) to impose keystone-type restrictions; that court also stated the the Congressional intent underlying §212 (c) requires that the commission impose no new restrictions after conversion and that so long as carrier is permitted to enjoy the same rights it had as a contract carrier, the keystone-type restriction is lawful.--Scott Truck Line, Inc., Modification of Certificate, 108 M.C.C. 896(898-900,905)*.

The legislative history of conversion proceedings under $212(c) of the act indicates that the converted carrier cannot be limited, as a common carrier, to a certain class of shippers and, in this respect, said converted carrier will be left in a better position than it previously enjoyed, i.e., the change from a permit authorizing transportation for limited classes of persons under contract to an operation as a common carrier to serve the general public would very probably result in an expanded scope of operations for a converted carrier under a §212 (c) conversion proceeding.--J. B. Montgomery, Inc., Conversion Application, 108 M.C.C. 638(645)*.

5. Conversion of authority.--Contrary to carrier's argument,

Supreme Court decision in the Montgomery case, 376 US 389, does not hold that the commission has no authority to impose keystone-type restrictions in certificates issued in conversion proceedings; also, the district court later held in the Fischbach case, 263 F. Supp. 239, that the commission could impose such restrictions provided no new restrictions are imposed after conversion and so long as carrier enjoys under the certificate the same privileges it had under its former permit. Therefore, to justify removal of keystone-type restriction in its conversion certificate, petitioner must submit evidence of the services actually provided under its former contract carrier authority; however, other than evidence admitting that 42 percent of the revenue derived from selected shipments would not have been earned had it not construed its authority as not being so restricted (following the Montgomery decision) and its own certificate, petitioner has submitted nothing of substance to warrant removal of the keystone-type restriction.--Scott Truck Line, Inc., Modification of Certificate, 108 M.C.C. 896(905-6)*.

Record clearly shows, and petitioner openly admits, that services not authorized by its certificate have been provided to a substantial extent since the ruling in the Montgomery case; thus its past operations are not founded upon such a reasonable question of mistaken interpretation that they could be considered as having been conducted under a color of right; in fact, such past illegal operations show a pattern of continuous violations tending to establish that carrier is unwilling and unable to conduct future operations in a lawful manner, and reflecting on its fitness to operate as a regulated carrier. More important to the central issue, however, is the fact that the record is devoid of requisite evidence respecting petitioner's operations under its permit prior to conversion, and which of those operations, if any, cannot now be conducted under the certificate in its present form. Petition for modification of certificate is denied, and carrier is admonished to adhere strictly to the limitations therein.--Id., pp. 906-7.

On remand to the commission, the district court affirmed the Supreme Court decision in United States v. Montgomery, Inc., 376 US 389 (1964) that the commission will be free to contest appellee's factual claims as to what service it performed under its contract carrier permit and to limit the common carrier certificate to such activity, but required the commission to abandon the doctrine of substantial parity. This proceeding was assigned for further hearing for the purpose of receiving evidence concerning the service actually performed by applicant under its former contract carrier permit. The examiner's summary of shippers evidence indicates that applicant, during the time it operated as a contract carrier was engaged in an unrestricted general freight operation within the territorial scope described in its permit. Therefore, in view of the judicial action herein, and in consideration of the broad scope of applicant's former contract carrier authority, the certificate to be issued to applicant must be without the keystone-type restrictions imposed in the prior reports. Applicant's operations will be adequately limited by the commodity descriptions without imposition of additional keystone-type restrictions.--J. B.

Montgomery, Inc., Conversion Application, 108 M.C.C. 638 (639-42, 644,646)*. See dissent.

15. Parties; procedure.--Applicant, in a $212 (c) conversion proceeding, moved that the exceptions be stricken because they are filed by parties having no valid standing in the proceeding. There is no merit in applicant's motion to strike the exceptions on the ground that they were filed by parties having no valid standing in the proceeding. The present proceeding is simply a further hearing in a matter commenced in 1958 and all of the present exceptants were parties in the original proceeding and they have remained parties throughout the administrative proceedings. As competing carriers they are parties in interest and have a right to participate in developing a record. Applicant's motion to strike is denied.-J. B. Montgomery, Inc., Conversion Application, 108 M.C.C. 638(641,646)*. $216(b). RATES, FACILITIES FOR CARRIERS OF PROPERTY

Rates by Commodities

125. Commodities; rates prescribed or approved.-

Aluminum: Reduced t.l. rate of $1.35, minimum 38,000 pounds, on aluminum extrusions from Miami to Chicago, approved for respondent only.-Aluminum Extrusions from Miami to Chicago, 325 I.C.C. 188 (188).

$216(c). THROUGH ROUTES AND JOINT RATES

3. Construction and interpretation. --Section 216(c) does not denote the particular type of through routes and joint rates therein authorized to be established, and nowhere else in the act are the terms "through routes" and "joint rates" specifically defined. The section must not be read in conjunction with the provisions of $217(a) in that a lawful through route and joint rate arrangement must represent a joint undertaking by two or more connecting carriers to transport property from a point on the line of the originating carrier to a point on the line of the delivery carrier.--Substituted Service--Piggyback, 322 I.C.C. 301(344)*.

4. Interchange and transfer.--Eastern railroads' contention that proposed rule 4(d) stating that "carriers participating in joint intermodal TOFC service shall interchange traffic only at a common point of service" is unnecessary is without merit. ***The facts of record in the instant proceeding do not warrant any departure from the long-established practice of the commission prohibiting a motor carrier from interchanging traffic at points other than its authorized service points. [citing 72 MCC 2041.--Substituted Service--Piggyback, 322 I.C.C. 301 (355)*.

10. Through routes and joint rates.--It is well established that what is a through route is a matter of fact, and that a through route may be

found to exist in the absence of a joint rate or any cher express arrangement between the carriers involved.--Substituted Service--Piggyback, 322 I.C.C. 301(334)*.

Under a TOFC plan I arrangement, the motor carrier and railroad agree to transport at a single through rate any given shipment of freight falling within the scope of their tariff publication, and no rates are charged or tariffs published with respect to such plan I operation on any other basis. The arrangement between the railroad and the motor carriers, under which the railroad is to be compensated for its portion of the through service, is thus a division agreement specifically authorized by §216(c), and not a separate rate or charge.--Substituted Service-Piggyback, 322 I.C.C. 301 (345)*.

Freight forwarders' contention that plan I TOFC operations allow motor carriers to depart from their statutory role as highway carriers and to function in a manner reserved for freight forwarders is without merit. The equivalent of plan I service was first approved in 1936 in 219 ICC 245 and the directory form of tariff publication received commission sanction in 1939 in 232 ICC 683, approximately 6 and 3 years, respectively, prior to the advent of Federal regulation of the freight forwarder industry. What the forwarders here seek to eliminate then, is a coordinated service, the lawfulness of which had been confirmed prior to congressional recognition of their activities. There is nothing in part IV or its legislative history which suggests that Congress intended to curtail existing coordinated transportation services.--Substituted Service--Piggyback, 322 I.C.C. 301 (347)*.

When a motor common carrier participates in plan I TOFC operation paying the railroad compensation other than that set forth in the railroad's regularly published tariff, the motor carrier's status is that of a connect ing carrier in a joint service provided voluntarily by the participating ra and motor common carriers; and that plan I TOFC operations thus constitute a valid through-route and joint-rate arrangement within the contemplation of $216(c).--Substituted Service--Piggyback, 322 I.C.C. 301 (349)*.

Plan I and plan V, however, share in common the important feature of a through route and joint-rate arrangement: both involve the payment by the shipper of a single through rate which is divided among the carrier participants on a negotiated basis; and both may involve the rendition of joint service between points the motor carrier is authorized to serve in al highway service. The fundamental distinction between plan I and plan V operations is that rail and motor carriers serving different areas may combine their service in plan V operations to perform a through service betwee origin and destination. Another difference is that the tariff rules coveri the rendition of plan I service specifically embrace a holding out by the motor carrier to perform an all-highway service at the election of the ship whereas the rates provided in plan V joint tariffs are applicable only over the joint intermodal route.--Id., p. 349.