Vanguard Interstate Tours, Inc. v. I.C.C., 83-1671
| Decision Date | 13 June 1984 |
| Docket Number | No. 83-1671,83-1671 |
| Citation | 735 F.2d 591 |
| Parties | VANGUARD INTERSTATE TOURS, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jeremy Kahn, Washington, D.C., for petitioner.
Evelyn G. Kitay, Atty., I.C.C., Washington, D.C., with whom John Broadley, Gen. Counsel, and Lawrence H. Richmond, Deputy Associate Gen. Counsel, I.C.C., and Robert B. Nicholson and Andrea Limmer, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents.
Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
This case involves the scope of a motor carrier's statutory right to intervene in Interstate Commerce Commission route application proceedings under the Bus Regulatory Reform Act of 1982 (BRRA), 49 U.S.C.A. Sec. 10922(c) (1983). The sole issue in this case is whether the Commission may limit intervention in such proceedings to motor carriers possessing permanent authority to serve the routes for which a new carrier seeks competing authority. Resolution of this question depends on the interpretation given the statutory language "[n]o motor common carrier of passengers may protest an application to provide transportation * * * unless * * * it possesses authority to handle, in whole or in part, the traffic for which authority is applied[.]" 49 U.S.C.A. Sec. 10922(c)(7)(A)(i). We hold that the Commission cannot, consistently with the intent of Congress, interpret these words as limiting intervention to carriers possessing permanent authority. We therefore reverse the Commission's decision to deny Vanguard Interstate Tours the right to intervene to challenge the application of a competing carrier, Mt. Kisco Bus Lines, for routes over which Vanguard had a form of temporary authority at the time the competitor's application was filed. This holding requires us to vacate the Commission decision awarding Mt. Kisco permanent authority for certain routes, and to remand for new proceedings in which Vanguard may intervene to protest Mt. Kisco's application.
Vanguard Interstate Tours and Mt. Kisco Bus Lines are two motor common carriers that provide commuter bus service in Westchester County, New York. The present case grows out of their efforts to obtain authority from the Commission to serve particular commuter routes between Westchester County and New York City. In late 1982 and early 1983 both carriers sought authority for virtually identical routes that serve towns in eastern Westchester County including White Plains, Lewisboro, and Armonk, New York. A Commission grant of authority for a given route is not necessarily exclusive; Vanguard and Mt. Kisco, in other words, could both obtain authority to serve identical routes. When one carrier possesses, or has applied for, authority over a particular route, however, that carrier may have a statutory right to protest--as inconsistent with the public interest--the other carrier's application for concurrent authority to serve the same route. See 49 U.S.C.A. Sec. 10922(c)(7). It is the scope of Vanguard's statutory right of intervention to protest Mt. Kisco's application that is at the heart of this controversy. To grasp the precise legal point at issue here a thorough understanding of the facts is necessary.
As of October 1, 1982, neither Vanguard nor Mt. Kisco nor any other motor common carrier was serving the routes in question. On October 9th of that year Vanguard applied for two types of preliminary authority to serve the routes: "emergency temporary authority" and "temporary authority." The Commission grants "emergency temporary authority" to a carrier "to provide transportation to a place or in an area having no motor carrier capable of meeting the immediate needs of the place or area if the Commission determines that, due to emergency conditions, there is not sufficient time" to undertake the lengthier process of evaluating an application for temporary authority. 49 U.S.C.A. Sec. 10928(c) (1983). Grants of emergency temporary authority last 30 days, and applications for such authority must be acted upon within 15 days of filing. See id. The Commission grants "temporary authority" to a carrier "to provide transportation to a place or in an area having no motor carrier capable of meeting the immediate needs of the place or area." Grants of temporary authority last 270 days, and applications for such authority must be acted upon within 90 days of filing. See id. Sec. 10928(b).
Though a grant of temporary authority "does not establish a presumption that permanent authority to provide transportation will be granted," id. Sec. 10928(b)(1), neither does it impede the eventual grant of permanent authority if a carrier can meet fitness requirements. 1 Carriers often apply for these grants of temporary authority with the intent and expectation that they will mature into grants of permanent authority. Commission regulations accommodate and encourage this process. When a carrier files an application for "temporary authority" within 15 days of having filed an application for "emergency temporary authority," the initial 30-day grant of "emergency temporary authority" may be extended until the application for "temporary authority" is disposed of. 49 C.F.R. Sec. 1162.2(d)(2) (1983). Similarly, a grant of "temporary authority" may be extended beyond the 270-day limit until a carrier's application for permanent authority is disposed of. Id. Sec. 1163.1(a). The statutory procedure of granting authority in three stages facilitates immediate service to communities in need while the Commission undertakes the somewhat lengthy process of determining a carrier's fitness to receive permanent authority over a route. See Gamble v. ICC, 636 F.2d 1101, 1103 (5th Cir.1981).
In the present case the Commission granted Vanguard "emergency temporary authority" effective November 1, 1982, and Vanguard began service on that date. On December 9th the Commission granted Vanguard "temporary authority." Between these two dates, however, Mt. Kisco made an application for permanent authority to serve the routes that Vanguard was then serving under the grant of "emergency temporary authority." On January 8, 1983 Vanguard also applied for permanent authority over the routes. Eventually both carriers would receive permanent authority. But Vanguard sought, and was denied, the right to intervene in Commission proceedings in early 1983 to challenge Mt. Kisco's application. Vanguard now claims that this denial of intervention violated the terms of BRRA and thus requires that the grant of permanent authority to Mt. Kisco be vacated.
The dispute between Vanguard and the Commission centers on the proper interpretation of Section 6 of BRRA, 49 U.S.C.A. Sec. 10922(c), which governs both awards of permanent authority and rights of intervention to challenge applications for such authority. Essentially, Section 6 establishes two avenues for applicants: "fitness only" applications and "public interest" applications. "Fitness only" applications are made for authority to serve on a route on which no other carrier is operating. Subsection (c)(4) governs "fitness only" applications, id. Sec. 10922(c)(4); to receive authority under this subsection the applicant must show it is "fit, willing and able" to serve the requested route. Id. Sec. 10922(a)(1). No further public interest inquiry is made under this subsection. "Public interest" applications pertain to routes already served by another carrier. Subsection (c)(1) governs these applications; the applicant must show fitness to serve the route, but a protestant can attempt to show that grant of the application will not be in the public interest. See id. Sec. 10922(c)(1). Subsection (c)(3) guides the Commission in making "public interest" determinations, and indicates that a route application should generally be denied for "public interest" reasons only when the benefits of increased competition are outweighed by threatened reductions in overall service to the community as a result of competition. 2 If the protestant carries the burden of persuasion on the public interest issue, the Commission will reject the application.
Subsection (c)(7) sets forth the criteria that a potential protestant must meet to be permitted to intervene to challenge a route application on public interest grounds. It reads:
(7) No motor common carrier of passengers may protest an application to provide transportation filed under this subsection or a request to remove an operating restriction under section 10922(i)(4) of this title unless--
(A)(i) it possesses authority to handle, in whole or in part, the traffic for which authority is applied;
(ii) it is willing and able to provide service that meets the reasonable needs of the traveling public; and
(iii) it has performed service within the scope of the application during the previous 12-month period or has, actively in good faith, solicited service within the scope of the application during such period;
(B) it has pending before the Commission an application filed prior in time to the application being considered for substantially the same traffic; or
(C) the Commission grants leave to intervene upon a showing of other interests that are not contrary to the transportation policy set forth in section 10101(a) of this title.
49 U.S.C.A. Sec. 10922(c)(7). Thus BRRA limits intervention as of right to carriers that already serve routes for which a new carrier seeks authority and to carriers with an application pending for authority to serve routes for which a new carrier seeks authority.
Originally Mt. Kisco made a "fitness only" application for authority to serve the routes in question. See Application of Mt. Kisco, Joint...
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