Steere Tank Lines, Inc. v. I.C.C.

• Decision Date: 06 February 1984
• Docket Number: 82-4254,82-4035,81-4519,82-4236,82-4190,Nos. 81-4300,81-4508,82-4323 and 82-4262,s. 81-4300
• Citation: 724 F.2d 472
• Parties: STEERE TANK LINES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 472

724 F.2d 472

STEERE TANK LINES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America Respondents.

Nos. 81-4300, 81-4508, 81-4519, 82-4035, 82-4190, 82-4236,

82-4254, 82-4323 and 82-4262.

United States Court of Appeals Fifth Circuit.

Feb. 6, 1984.

Hugh T. Matthews, Dallas, Tex., for petitioner.

H. Glenn Scammel, Richard J. Osterman, Jr., Edward J. O'Meara, Colleen J. Bombardier, I.C.C., William French Smith, Atty. Gen., Robert B. Nicholson, Nancy C. Garrison, Marion L. Jetton, Edward T. Hand, John J. Powers, III, Margaret G. Halpern, Neil R. Ellis, Mark Del Bianco, Dept. of Justice, Washington, D.C., for respondents.

Kenneth R. Hoffman, Austin, Tex., for intervenor Highway Pipeline Trucking Co.

Earl Check, Henry L. Fabritz, Des Moines, Iowa, for intervenor Arizona Tank Lines, Inc.

William J. Lippman, Denver, Colo., for Calzona Transp. Inc.

A. Michael Bernstein, Phoenix, Ariz., for intervenor CTI.

Jerry Prestridge, Austin, Tex., for intervenor Mission Petroleum Carriers, Inc.

Petitions for Review of Orders of the Interstate Commerce Commission.

Before GOLDBERG, GEE and TATE, Circuit Judges.

GEE, Circuit Judge:

Steere Tank Lines, Inc. ("Steere") asks this Court to review and set aside nine separate Interstate Commerce Commission ("ICC") decisions involving motor carrier licensing applications. In each decision the ICC issued a Certificate of Public Convenience and Necessity ("CCN") to each applicant, thereby granting permission to the applicant carrier to transport various commodities by truck within specified geographic areas. Steere protested each of the nine applications before the ICC and filed these appeals with this Court after receiving adverse decisions from the Commission. After reviewing the decisions and the evidence presented in each case, we affirm all nine decisions of the ICC. ¹

I. The Motor Carrier Act

The ICC regulates only a portion of this country's motor carrier business. That portion includes common carriers and contract carriers. ² The nine cases here on appeal all involve common carriers. For a particular trucker to obtain permission to haul goods over additional routes or to carry kinds of freight which it is not presently authorized by the Commission to carry, the motor carrier must petition the ICC for a CCN. Under the Motor Carrier Act of 1980, the petitioner must show the ICC two things to make out a prima facie case: (1) that it is "fit, willing and able" to perform the proposed services, and (2) that the service proposed will serve a useful public purpose, responsive to a public demand or need. 49 U.S.C. Sec. 10922(b)(1) (Supp. V 1981); ³ Steere Tank Lines v. ICC, 687 F.2d 104, 105 (5th Cir.1982) (Steere II ); J.H. Rose Truck Line, Inc. v. ICC, 683 F.2d 943, 950 (5th Cir.1982). Any trucking firms opposing the petitioner's proposed new authority may file formal protests with the Commission. Once the petitioner makes out its prima facie case, however, a presumption is created that the new authority will be consistent with the public convenience and necessity and the burden of proof is shifted to the protestants to show that it will not. Steere Tank Lines, Inc. v. ICC, 714 F.2d 1300, 1303 (5th Cir.1983) (Steere V ); C & H Transportation Co., Inc. v. ICC, 704 F.2d 834, 842 (5th Cir.1983); J.H. Rose Truck Line, 683 F.2d at 950. If the protestants fail to convince the Commission that the proposed new service is inconsistent with the public convenience and necessity, the new authority will be granted in the form of a CCN. Steere V, 714 F.2d at 1304. Any party dissatisfied with the ICC's initial decision may file an appeal within the administrative agency and may seek judicial review in the United States Courts of Appeals after the appeal before the Commission has been exhausted. 28 U.S.C. Secs. 2321, 2342 (1976).

Steere filed protests to all nine of the petitions involved here and exhausted its administrative remedies. ⁴ On appeal to this Court, Steere does not argue that any applicant failed to make its prima facie case. Rather, it contends that it rebutted each case by showing inconsistency with the public convenience and necessity so that the CCNs should not have been issued. Steere maintains that the ICC was required to analyze the relevant motor carrier market, assess the cumulative effect on Steere's operations of a series of grants of authority, and, if it concluded that the multiple grants were consistent with the national transportation policy, 49 U.S.C. Sec. 10101 (Supp. V 1981), explain why.

Note 4--Continued

The petitioner contends that the ICC's action was arbitrary and capricious because it applied an inappropriate standard in determining that the applicants' new trucking services would not be inconsistent with the public convenience and necessity and because it declined to make findings on the cumulative effect of the new services on the market. In arguing that the ICC's method of evaluating any protestant's proof of inconsistency with the public convenience and necessity violates the national transportation policy, Steere insists that under current Commission policy it is impossible for a protestant to demonstrate that inconsistency. Steere points to the absence of any decision in any case within the past two years in which an applicant established its prima facie case pursuant to 49 U.S.C. Sec. 10922(b)(1) (Supp. V 1981) but was denied a CCN due to proof by a protestant of inconsistency with the public convenience and necessity. Thus, we are asked to decide whether the ICC's decisions considered as a whole are consistent with Congressional intent in passing the Motor Carrier Act of 1980, and, if so, whether the ICC's decisions here on appeal are supported by substantial evidence.

Note 4--Continued

II. Congressional Intent: The National Transportation Policy

In interpreting the Motor Carrier Act of 1980, the starting point is the language of the statute itself. American Trucking Associations, Inc. v. ICC, 659 F.2d 452, 459 (5th Cir.1981). If the wording of the statute is clear, there is no need to look further. Id. ⁵ A court should not depart from the official text of a statute by consulting extrinsic material unless the statutory language is unclear or the apparent clarity of language leads to absurdity of result when applied. Id.

The national transportation policy referred to by the parties in this case and contained in the Motor Carrier Act is set out at 49 U.S.C. Sec. 10101 (Supp. V 1981):

(a) Except where policy has an impact on rail carriers, ... to ensure the development, coordination, and preservation of a transportation system that meets the transportation needs of the United States, ... it is the policy of the United States Government to provide for the impartial regulation of the modes of transportation subject to this subtitle, and--

(1) in regulating those modes--

(A) to recognize and preserve the inherent advantage of each mode of transportation;

(B) to promote safe, adequate, economical, and efficient transportation;

(C) to encourage sound economic conditions in transportation, including sound economic conditions among carriers;

(D) to encourage the establishment and maintenance of reasonable rates for transportation, without unreasonable discrimination or unfair or destructive competitive practices;

(E) to cooperate with each State and the officials of each State on transportation matters; and

(F) to encourage fair wages and working conditions in the transportation industry;

(2) in regulating transportation by motor carrier, to promote competitive and efficient transportation services in order to (A) meet the needs of shippers, receivers, passengers, and consumers; (B) allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping and traveling public; (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; (E) provide and maintain service to small communities and small shippers and intrastate bus services; ... (G) improve and maintain a sound, safe, and competitive privately owned motor carrier system; (H) promote greater participation by minorities in the motor carrier system; and (I) promote intermodal transportation; and ...

(b) This subtitle shall be administered and enforced to carry out the policy of this section.

(emphasis added).

We believe that the national transportation policy is clear in its manifestation of Congressional intent; there is no need to look beyond the statute. We have already held that the ICC, in evaluating applications for new CCNs, must consider all evidence in light of a number of factors, most notably those in the national transportation policy. American Trucking Associations, 659 F.2d at 474. See 49 U.S.C. Sec. 10922(b).

Steere suggests that the ICC's present policy of allowing all but unlimited entry of new truck transportation providers into the market will produce ruinous competition among carriers. That argument is certainly logical to a point; of course Congress did not wish, by passing the Motor Carrier Act of 1980, to destroy the motor carrier industry. Nor, while it intended to make it easier for new trucking companies to enter the market by reducing regulation, did it intend to eliminate regulation entirely. Steere V, at 1303; American Trucking Associations, 659 F.2d at 459. Accordingly, Steere's insistence that the ICC evaluate the cumulative effect upon the market of new entrants to that market is not inconsistent with the mandate of the national transportation policy to insure "sound economic conditions among carriers." 49 U.S.C. Sec. 10101(a)(1)(C).

Steere maintains that because the cumulative effect upon the market is an element of the national transportation policy, the ICC must articulate a finding when the cumulative effect...