Airport Commission of Forsyth County, NC v. CAB

• Decision Date: 24 February 1962
• Docket Number: No. 8484.,8484.
• Citation: 300 F.2d 185
• Parties: AIRPORT COMMISSION OF FORSYTH COUNTY, NORTH CAROLINA; Board of Commissioners, Forsyth County, North Carolina, and Winston-Salem Chamber of Commerce, Incorporated, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Eastern Air Lines, Inc., United Air Lines, Inc., Greensboro-High Point Airport Authority, Intervenors.
• Court: U.S. Court of Appeals — Fourth Circuit

300 F.2d 185 (1962)

AIRPORT COMMISSION OF FORSYTH COUNTY, NORTH CAROLINA; Board of Commissioners, Forsyth County, North Carolina, and Winston-Salem Chamber of Commerce, Incorporated, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent Eastern Air Lines, Inc., United Air Lines, Inc., Greensboro-High Point Airport Authority, Intervenors.

No. 8484.

United States Court of Appeals Fourth Circuit.

Argued January 12, 1962.

Decided February 24, 1962.

I. Martin Leavitt, Washington, D. C., and H. Gardner Hudson, Winston-Salem, N. C. (Richard P. Taylor, Steptoe & Johnson, Washington, D. C., and Hudson, Ferrell, Petree, Stockton & Stockton, Winston-Salem, N. C., on brief), for petitioners.

Arthur R. Schor, Attorney, Civil Aeronautics Board, Washington, D. C. (Lee Loevinger, Asst. Atty. Gen., Richard A. Solomon and Donald L. Hardison, Attorneys, Department of Justice, John H. Wanner, General Counsel, Joseph B. Goldman, Deputy General Counsel, and O. D. Ozment, Associate General Counsel, Litigation and Research, Civil Aeronautics Board, Washington, D. C., on brief), for respondent.

James H. Bratton, Jr., Atlanta, Ga. (E. Smythe Gambrell, Harold L. Russell, Allison Wade, and Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, Ga., on brief), for intervenor, Eastern Air Lines, Inc.

Macon M. Arthur, Washington, D. C. (H. Templeton Brown, and Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, Ill., on brief), for intervenor, United Air Lines, Inc. Albert F. Beitel, Washington, D. C., for intervenor, Greensboro-High Point Airport Authority.

Before SOBELOFF, Chief Judge, and BRYAN and BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

This is an appeal from an order of the Civil Aeronautics Board directing the consolidation at Friendship Airport of trunk line services by Eastern and United Air Lines to the area adjacent to Greensboro, Winston-Salem and High Point, North Carolina.

The cities of Greensboro, High Point and Winston-Salem constitute a triangle in the Piedmont area of North Carolina within and around which is rapidly developing an industrial metropolitan complex of national significance. Friendship Airport lies within this triangle. It is approximately ten miles from Greensboro, nineteen from Winston-Salem, and thirteen from High Point. Prior to the issuance of the Board's order the air lines involved divided their services between the Smith Reynolds Airport at Winston-Salem and Friendship Airport, serving Greensboro and High Point. The order required the affected carriers to discontinue their trunk line service to Smith Reynolds Airport. However, the issue is not which airport can better serve the area but whether the job can be done by Friendship alone, because Smith Reynolds is clearly not convenient to the major portion of the territory. The Board reached the conclusion that the area should be served through Friendship alone. The petitioners, Airport Commission of Forsyth County, Board of Commissioners of Forsyth County, and the Winston-Salem Chamber of Commerce, disagree. Upon this appeal we are to review the order to determine if it was lawfully promulgated within the scope of the Board's authority under the Act and if it is supported by substantial evidence.

Specifically the petitioners raise two objections: First, that there was not substantial evidence to support the Board's findings in that the Board ignored the uncontradicted evidence in the record which demonstrated conclusively that the action of the Board would cause detrimental effects to the Winston-Salem area, outweighing any general benefits involved; second, that the offending order was based upon a newly developed policy "pronouncement" which was never published in the Federal Register in compliance with the Administrative Procedure Act.

Both of the air lines affected by the Board's order and the Greensboro-High Point Airport Authority, which operates Friendship Airport, have filed briefs in support of the Board's order.

Under the authority vested in it by the Federal Aviation Act the Board is charged with the duty to develop "an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense", and "the promotion of adequate, economical and efficient service by air carriers". 72 Stat. 740; 49 U.S.C.A. § 1302. One means by which the Board carries out its policies as directed by the Act is its power to control air commerce by the issuance of Certificates of Public Convenience and Necessity to commercial air lines. 72 Stat. 754; 49 U.S.C.A. § 1371.¹ It is the duty of the Board in issuing these Certificates to weigh the rights of all parties concerned against broad considerations of paramount public interests in reaching its decisions. Here the Board found that the following benefits could be expected from consolidation: (1) savings in excess of $375,000.00 annually by the air lines involved; (2) improvements in the type and quality of service to be made available to the over-all community at Friendship Airport, including a new morning flight to New York, low cost coach service, and modern jet service; (3) benefits to the travelling public in a better pattern of connecting service between this area and other points, and the saving of elapsed time for through travellers by the elimination of one stop. Against these benefits the Board weighed the possible detriments to the Winston-Salem area, including the inconvenience to passengers and the increases in ground costs both to freight shippers and passengers. Balancing these detriments against the benefits...