Steere Tank Lines, Inc. v. I. C. C., 81-4261
| Decision Date | 07 May 1982 |
| Docket Number | No. 81-4261,81-4261 |
| Citation | 675 F.2d 103 |
| Parties | STEERE TANK LINES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hugh T. Matthews, Dallas, Tex., for petitioner.
Kathleen V. Gunning, I. C. C., Robert J. Wiggers, Robert B. Nicholson, Antitrust Div., Dept. of Justice, Washington, D. C., for respondents.
Jack Coke, Jr., Dallas, Tex., David P. Christianson, Los Angeles, Cal., for intervenors respondents VTS Trucking.
Petition for Review of an Order of the Interstate Commerce Commission.
Before RUBIN, SAM D. JOHNSON and GARWOOD, Circuit Judges.
Petitioner Steere Tank Lines, Inc. (Steere) seeks review of an Interstate Commerce Commission order granting intervenor VTS Trucking (VTS) a certificate of public convenience and necessity to operate as a common carrier over irregular routes between points in thirteen western and southwestern states. We affirm the ICC's license grant.
On November 12, 1980, VTS applied for a certificate of public convenience and necessity authorizing it to operate as a motor common carrier to transport petroleum and petroleum products between points in Washington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Utah, Colorado, Arizona, New Mexico, Oklahoma and Texas. Several carriers already licensed to operate in the proposed territory opposed the application. 1 At least two of the carriers, including Steere, argued, inter alia, that VTS had not shown itself to be properly equipped to provide the proposed service because it had only one terminal facility and a limited number of trucks. The application was granted over the objections of the opposing carriers by order served March 12, 1981. Only Steere sought administrative review of the order. The review was denied and Steere appeals to this Court. It claims that the Commission erred in finding VTS fit, willing, and able to perform the granted service because VTS "admittedly does not presently have the terminals or the motor vehicle equipment with which to perform that service."
By passage of the Motor Carrier Act of 1980, Congress modified past provisions of the Interstate Commerce Act for entry into regulated transportation by motor vehicle. This Court's recent decision in American Trucking Associations, Inc. v. ICC, 659 F.2d 452 (5th Cir. 1981) held, however, that the Act retains the traditional requirements as to an applicant's fitness, willingness, and ability to provide the service for which authority is sought. Whether an applicant has the proper equipment to provide that service is an important consideration in determining whether the requirements have been met. American Trucking at 465, 473. 2
Steere contends that the Review Board found VTS did not presently have the equipment to perform the proposed service (and that there is no evidence that VTS intended to purchase any additional equipment), but, that such a finding was considered immaterial. The relevant portion of the Board's opinion is as follows:
Finally, protestants challenge applicant's fitness to perform the proposed service noting that applicant operates only one terminal. However, applicant's present lack of terminals or equipment is not in and of itself reason to deny authority to provide the considered service in view of the demonstrated need for it. Compare Graham Contract Application, 73 MCC 769, 771 (1957) ...
We find :
Performance by applicant of the service described in the appendix will serve a useful public purpose, responsive to public demand or need. Applicant is fit, willing, and able properly to perform the granted service and to conform to the the requirements of Title 49, Subtitle 4, U.S.C., and the Commission's regulations...
The I. C. C. denies that the Board found VTS ill equipped to perform the proposed service. It gives a different interpretation of the Board's language. It claims that the Board was merely noting that a present lack of equipment to meet all potential demand within the involved territory in and of itself is no reason to deny authority in view of the demonstrated need for the service. The Graham case, cited by the Board, while not direct authority for this proposition, provides some support for the I. C. C.'s position. In Graham the Commission held a carrier's lack of terminals is not to be considered conclusive of his ability to meet the shipper's requirements. Hence, the Board could well have meant that a large number of terminals was not necessary to perform the contemplated service. While the question presented here is a close one, we find the Board's...
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