Baggett Transp. Co. v. U.S.
| Decision Date | 25 January 1982 |
| Docket Number | 81-7550,Nos. 81-7248,s. 81-7248 |
| Citation | 666 F.2d 524 |
| Parties | BAGGETT TRANSPORTATION COMPANY, Birmingham, Alabama, Tri-State Motor Transit Company, Joplin, Missouri, and C. I. Whitten Transfer Co., Huntington, West Virginia, Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. to 81-7552 and 81-7619 to 81-7621. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
William G. Somerville, Birmingham, Ala., for all petitioners.
Mel P. Booker, Jr., Alexandria, Va., for Baggett Transp. Co.
Max G. Morgan, Edmond, Okl., for Tri-State.
J. G. Dail, Jr., McLean, Va., for C. I. Whitten.
Robert B. Nicholson, Nancy C. Garrison, Susan J. Atkinson, Dept. of Justice, Edward O'Meara, ICC, Washington, D. C., for respondents.
Donald E. Cross, Washington, D. C., for intervenor Riss Internat'l Corp.
Alan Foss, Fargo, N. D., for intervenor International Transport, Inc.
Stanley E. McCormick, Elliott Bunce, Arlington, Va., for intervenor Ryder Truck Lines, Inc.
E. Larry Wells, Edwin M. Snyder, Dallas, Tex., for intervenor T.I.M.E.-DC, Inc. Guy H. Postell, Atlanta, Ga., for intervenor Superior Trucking Co., inc.
Turney & Turney, Robert E. Campbell, William O. Turney, Washington, D. C., for intervenor Leonard Brothers Trucking Co., Inc.
J. Michael May, Marietta, Ga., for intervenor Home Transp. Co., Inc.
Petitions for Review of Orders of the Interstate Commerce Commission.
Before TUTTLE, HILL and JOHNSON, Circuit Judges.
These are petitions by Baggett Transportation Company and other protesting present carriers to set aside the grant of common carrier authority to transport explosives to the seven applicants for licenses by the Interstate Commerce Commission.
The petitioners attack the Commission's orders on the ground that there was insufficient factual basis in the record to permit the Commission to determine that the proposed operations would serve a useful public purpose, responsive to a public demand or need; that there was insufficient evidence to permit the Commission to ignore the effect of the granting of the orders on the present carriers; that the Commission failed to make findings, supported by substantial evidence, on certain specified goals of the National Transportation Act; and that it was an abuse of discretion for the Commission to fail to consolidate these seven and five other pending applications for similar licenses while they were being considered by the Commission. 1
Prior to the adoption by Congress of the Motor Carrier Act of 1980, Pub.L.No. 96-296, 94 Stat. 793, the controlling statutory standard which controlled the Commission in licensing motor carriers was that the proposed service "be required by the present or future public convenience and necessity." 49 U.S.C. § 10922 (1978 Supp. ii). Under the new statute, Section 10922(b)(1) and (2) now instruct the Commission with respect to the granting of such licenses. These sections provide as follows:
(1) Except as provided in this section, the Interstate Commerce Commission shall issue a certificate to a person authorizing that person to provide transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title as a motor common carrier of property if the Commission finds-
(A) that the person is fit, willing, and able to provide the transportation to be authorized by the certificate and to comply with this subtitle and regulations of the Commission; and
(B) on the basis of evidence presented by persons supporting the issuance of the certificate, that the service proposed will serve a useful public purpose, responsive to a public demand or need;
unless the Commission finds, on the basis of evidence presented by persons objecting to the issuance of a certificate, that the transportation to be authorized by the certificate is inconsistent with the public convenience and necessity.
(2) In making a finding under paragraph (1) of this subsection, the Commission shall consider and, to the extent applicable, make findings on at least the following:
(A) the transportation policy of section 10101(a) of this title; and
(B) the effect of issuance of the certificate on existing carriers, except that the Commission shall not find diversion of revenue or traffic from an existing carrier to be in and of itself inconsistent with the public convenience and necessity.
49 U.S.C. § 10922(b)(1) and (2).
It will thus be seen that the primary obligation of the applicant is to satisfy the (7) With respect to transportation of property by motor carrier, to promote competitive and efficient transportation services in order to
Commission that it is fit, willing and able to provide the service and that the service proposed will "serve a useful public purpose, responsive to a public demand or need." Thereupon, the burden shifts to any protestant to persuade the Commission that "on the basis of evidence presented by persons objecting to the issuance of (the) certificate, the transportation to be authorized by the certificate is inconsistent with the public convenience and necessity." Because of the reference under (2)(A) above to the transportation policy of Section 10101(a) we find that the following provisions of Section 10101(a) are relevant to this discussion. They provide as follows:
(A) meet the needs of shippers, receivers, and consumers ...
(C) allow the most productive use of equipment and energy resources
(D) enable efficient and well managed carriers to earn adequate profits, attract capital, and maintain fair wages and working conditions....
(F) improve and maintain a sound, safe, and competitive privately owned motor carrier system.
While the facts in these several cases on appeal differ somewhat, they are alike in sufficient respects to permit us to deal with them in a single opinion. At a minimum, as shown in the record of the application of Riss International Corporation, on appeal here under No. 81-7248, we find the following factual basis on which the Commission made its order: The sworn application of Riss, supported by the sworn certification of Shipper Support by the Military Traffic Management Command of the Department of Defense, executed by the director of Inland Traffic of MTMC.
The record also included an application to intervene by Tri-State Motor Transit Company as a protestant to the application; protest of American Farm Lines, Inc. to the application; and protest of Baggett Transportation Company to the application. Some of the same protestants, but not all of them, filed in opposition to one or more of the other applicants whose licenses are attacked by this appeal.
The applications, without exception, so clearly supported the Commission's determination that the applicants were "fit, willing and able" that we find any objection to the Commission's action based on this factor purely frivolous. The applicants all showed considerable authority under existing certificates to transport similar commodities. They showed knowledge of, and ability to comply with, the particular requirements of handling hazardous cargo, and for the most part they showed current ownership of the type of equipment necessary for this type of transportation. There can be no doubt about the fitness, ability and willingness of these applicants, as determined by the Commission.
We turn next to the question whether there was sufficient evidence presented by persons supporting the issuance of the certificates to permit the Commission to determine "that the service proposed will serve a useful purpose, responsive to a public demand or need." The protestants take the bald position that the support given by MTMC and, in one case, by a private commercial shipper of explosives, was totally insufficient to permit a finding on this issue favorable to the applicants. For their part, the applicants point to the significant change in policy motivating Congress in enacting the Transportation Act of 1980 which, admittedly, makes much easier an entry into the motor carriage business than was possible under the old law. Without reference to the legislative history, it is plain that the burden borne by a person seeking certification is now much less than formerly, when such an applicant was required to show that his entry was required by "public convenience and necessity." Now, the burden on the applicant is to show The MTMC support for each of the applicants was substantially the same. It contained the following responses to inquiries on the Verified Certification of Shipper or Witness Support form furnished by the Commission:
"that the service proposed will serve a useful purpose, responsive to a public demand or need." Thereafter, the burden shifts to any protestant to convince the Commission "that the transportation to be authorized by the certificate is inconsistent with the public convenience and necessity."
(3) General description of business entity:
The DOD has designated MTMC as the Single Manager Operating Agency for military traffic, land transportation and common-user ocean terminals. MTMC is responsible for the direction, control and supervision of all functions incident to the effective and economical procurement and use of freight transportation services from commercial transportation companies. The primary function of MTMC includes providing traffic management support for the movement of Defense freight within the continental United States.
(4) Description of commodities which would be transported under the sought operating authority. (Not applicable in passenger applications):
Classes A & B Ammunition, Explosives, Weapons, and Articles designated sensitive by the US Government between all points in the United States. (This application duplicates, in part, authority presently held by applicant.)
(5) Amount of traffic that would be tendered to applicant if the application were...
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