Regular Route Common Carrier Conference of Colorado Motor Carriers Ass'n v. Public Utilities Com'n of State of Colo.

• Decision Date: 12 September 1988
• Docket Number: No. 87SA123,87SA123
• Citation: 761 P.2d 737
• Parties: REGULAR ROUTE COMMON CARRIER CONFERENCE OF the COLORADO MOTOR CARRIERS ASSOCIATION; Northwest Transport Service, Inc.; and Trans-Western Express, Ltd., Petitioners-Appellants, v. PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO; The Contract Carriers Conference of the Colorado Motor Carriers Association; Ashton Trucking Company; Jim Chelf, Inc., and Leprino Transportation Company, Respondents- Appellees. The CONTRACT CARRIERS CONFERENCE OF the COLORADO MOTOR CARRIERS ASSOCIATION; Ashton Trucking Company; Jim Chelf, Inc.; and Leprino Transportation Company, Petitioners-Appellees, v. PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO; Regular Route Common Carrier Conference of the Colorado Motor Carriers Association; Northwest Transport Service, Inc.; and Trans-Western Express, Ltd., Respondents- Appellants.
• Court: Colorado Supreme Court

Page 737

761 P.2d 737

REGULAR ROUTE COMMON CARRIER CONFERENCE OF the COLORADO

MOTOR CARRIERS ASSOCIATION; Northwest Transport

Service, Inc.; and Trans-Western

Express, Ltd., Petitioners-Appellants, v. PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO; The

Contract Carriers Conference of the Colorado Motor Carriers

Association; Ashton Trucking Company; Jim Chelf, Inc., and

Leprino Transportation Company, Respondents- Appellees.

The CONTRACT CARRIERS CONFERENCE OF the COLORADO MOTOR

CARRIERS ASSOCIATION; Ashton Trucking Company;

Jim Chelf, Inc.; and Leprino

Transportation Company, Petitioners-Appellees, v. PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO;

Regular Route Common Carrier Conference of the Colorado

Motor Carriers Association; Northwest Transport Service,

Inc.; and Trans-Western Express, Ltd., Respondents- Appellants.

No. 87SA123.

Supreme Court of Colorado,

En Banc.

Sept. 12, 1988.

Rehearings Denied Oct. 11, 1988.

Jones, Meiklejohn, Kehl & Lyons, John P. Thompson, Denver, for Regular Route Common Carrier Conference, Northwest Transport Service, Inc., and Trans-Western Exp., Ltd.

John J. Conway, Denver, for Contract Carriers Conference of the Colorado Motor Carriers Ass'n, Ashton Trucking Co., Jim Chelf, Inc., and Leprino Transp. Co.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eugene C. Cavaliere, Deputy Atty. Gen., Denver, for Colorado Public Utilities Comn.

QUINN, Chief Justice.

This case is before us on direct appeal by the Public Utilities Commission (Commission) and individual motor vehicle common carriers from a judgment of the Denver District Court. ¹ In a judicial review proceeding involving various rules adopted by the Commission with respect to contract carriers, the district court upheld certain rules and set others aside. The individual common carriers and the Regular Route Common Carrier Conference of the Colorado Motor Carriers Association (common carriers) appeal from that part of the judgment upholding two rules which the common carriers challenged on judicial review, and the Commission and the common carriers appeal from that part of the judgment setting aside various rules which the individual contract carriers and the Contract Carriers Conference of the Colorado Motor Carriers Association (contract carriers) challenged on judicial review. We affirm that part of the judgment upholding the two rules challenged by the common carriers and reverse that part setting aside the several rules contested by the contract carriers in the judicial review proceeding in the district court.

I.

Pursuant to its statutory authority, §§ 40-2-108 and 40-11-105(1), 17 C.R.S. (1984), the Commission commenced a rulemaking proceeding in November 1984 in order to revise and amend various rules governing contract carriers which, in Colorado, are regulated by the Contract Motor Carriers Act, §§ 40-11-101 to -117, 17 C.R.S. (1984 & 1987 Supp.). A contract carrier generally furnishes transportation services for pay at the convenience of, and subject to a satisfactory agreement with, its customer. See Public Utilities Commission v. DeLue, 175 Colo. 317, 321, 486 P.2d 1050, 1052 (1971). ² Common carriers are regulated by the Motor Vehicle Carriers Act, §§ 40-10-101 to -120, 17 C.R.S. (1984 & 1987 Supp.), and, in contrast to contract carriers, are required by law to provide transportation services to all members of the public upon payment of the approved rate. See McKay v. Public Utilities Commission, 104 Colo. 402, 413, 91 P.2d 965, 970 (1939).

During the rulemaking proceeding, various common carriers and contract carriers filed objections, suggested modifications, and comments concerning the proposed rules. A hearing on the rules was conducted by a hearing examiner on January 30 and February 19, 1985, during which testimony and exhibits were received into evidence. Written position statements were subsequently filed by the common carriers, the contract carriers, and the Commission staff.

On October 7, 1985, the hearing examiner rendered a recommended decision in which he modified certain of the proposed rules and recommended their adoption. All parties to the hearing were served with copies of the hearing examiner's recommended decision and, pursuant to section 40-6-109(2), 17 C.R.S. (1984), were given twenty days within which to file exceptions. The common carriers, the contract carriers, and the Commission staff filed exceptions to the recommended decision. The Commission granted the exceptions filed by the Commission staff, as well as some of the exceptions filed by the contract carriers, and on June 3, 1986, adopted the rules in their final form.

Since this appeal centers on various parts of Rules 7, 16, and 17, we set out in full those parts of the rules at issue. Rule 7 is entitled "Equipment" and part (c) provides as follows:

Any contract carrier permitting any person, firm, or corporation to operate vehicles under his or its permit, either with or without the authorization of the Commission, shall be responsible for any violations of the public utilities law or any of the rules and regulations of the Commission committed by such user.

Rule 16, which is entitled "Rates and Charges," is made up of parts (a), (b), (c), and (d). Parts (a), (b), and (c), provide as follows:

(a) Every contract carrier by motor vehicle operating in intrastate commerce and competing with any authorized motor vehicle common carriers shall charge and receive for the transportation of persons and property not less than the minimum rates and charges applicable to such contract carrier. The minimum rates and charges shall not be less than the rates prescribed by the Commission for motor vehicle common carriers for substantially the same or similar service.

(b) When competing with any two or more connecting motor vehicle common carriers who are providing substantially the same or similar service and who have on file with the Commission a tariff of joint through rates based upon the through mileage prescribed in any Order of the Commission fixing the rates of motor vehicle common carriers, every contract carrier by motor vehicle shall charge not less than the minimum rates prescribed by the Commission, which shall not be less than those provided in any such joint tariff applicable to the points served. If, however, a single line rate is in effect for a scheduled motor vehicle common carrier between the same points, the single line rate, if less than the joint line rate, shall be the minimum for the contract carrier.

(c) The Commission may, at any time after hearing, change any tariff or rate of any contract carrier competing with a motor vehicle common carrier providing substantially the same or similar service, and may fix the actual rates to be charged by any contract carrier.

Part (d) of Rule 16 was added by the hearing examiner in his recommended decision, and the second sentence of the rule was subsequently modified by the Commission and, as modified, adopted by the Commission in the following form:

(d) A contract carrier shall be deemed to be in competition with a common carrier who is providing substantially the same or similar service when regular route, scheduled, line haul, common carrier service is available for the same or similar commodities between the same points and locations proposed in the application for a permit. Although they may be included among the factors to be considered in determining whether or not the services of contract carriers are distinctly different or superior to those provided by authorized common carriers, the fact that a contract carrier provides distinctly different or superior service to that offered by authorized common carriers by providing, for example, more frequent service, 24-hour service, ancillary non-transportation services, or service to a particular location, for example, does not necessarily render the service of the contract carrier noncompetitive.

Rule 17 is entitled "Tariffs to be Filed" and provides in parts (a), (b), and (c) as follows:

(a) Every contract carrier shall file with the Commission, within the time and in the form prescribed, and shall keep on file with the Commission at all times, tariffs which clearly reveal the rates and charges being assessed for services performed.

(b) Every contract carrier competing with any scheduled motor vehicle common carrier shall file tariffs of rates and charges which shall not be less than the lowest rate or charge prescribed by the Commission for any competing, scheduled, motor-vehicle common carrier for substantially the same or similar services.

(c) Every Class B contract carrier by motor vehicle, when transporting commodities other than explosives; milk and cream; heavy and bulk commodities; oilfield equipment; water; livestock; farm products; brick; cement; cinders; clay or shale; lime; and gypsum or gypsum products (all listed commodities as described in Case 1585, Part I, Section B-2, Item 75, Part I, Section F, and all parts of Section[s] II and III), in competition with any duly authorized motor vehicle common carrier operating over regular routes or between fixed points, shall charge and collect rates and charges which shall not be less than the percentage increment established by the Commission, which increment shall be greater than the rates prescribed in Case 1585 [which is the Commission's ongoing rate docket] for the scheduled common carrier or carriers, but in no case more than 20 percent greater.

After the Commission adopted the rules in their final form, the common carriers and the contract carriers sought judicial review in the Denver District Court. The common carriers challenged the second sentence of Rule 16(b) and all of Rule 17(b), but the district court rejected the challenges and upheld both rules as consistent with the rulemaking authority granted to the Commission by section 40-11-105(2), 17 C.R.S. (1984), of the...