carrier status through an appropriate application filed under section 207 of the act" (91 M.C.C. at 697). He found that this application "is therefore filed consistently with the Commission's admonitory practices." He then likened the situation of applicant here to that of contract carriers converted under the provisions of section 212(c) of the act, and concluded that a grant of all the authority sought is warranted. In joint exceptions, protestants contend that the examiner erroneously considered the application in the light of section 212(c); that it must instead be decided on the basis of the standard of proof required in any proceeding instituted under section 207 of the act; that the criteria established in Fischbach Trucking Co. Common Carrier Application, 61 M.C.C. 539, are controlling; and that in the absence of a showing, through shipper support, that the public convenience and necessity require the proposed operation, the application should be denied. Applicant replies that its situation is distinguishable from that presented in the Fischbach case because its record of cooperation and of compliance with our rules and regulations is superior to that of applicant there; because it does not seek to expand the scope of its operations and is willing to surrender all of its contract carrier authority, which was not true in the Fischbach case; and because the Fischbach decision antedated the passage of the 1957 contract carrier legislation which resulted in the amendment of sections 203(a)(15) and 209(b) of the act and added section 212(c) thereto. It also maintains that public convenience and necessity can be established without shipper support; that the evidence of its past operations justifies a grant of a certificate; that conversion of its operations to those of a common carrier would not affect protestants; and that the Commission, in Connell Transport Co. Extension-New York, N. Y., supra, indicated that its operations were those of a common carrier and suggested that appropriate action be taken. Discussion and conclusions.- Applicant now holds a permit under which it can transport a variety of commodities, primarily perishable foodstuffs, subject to two basic conditions: they must move either under contract with a single named shipper, or in mixed shipments together with a single commodity, eggs, moving from a single small community, Random Lake. Solely on the basis of its past operations, applicant would have us find that it is entitled to a grant of common carrier authority, under which it could perform service for the shipping public generally, in the transportation of numerous commodities from two major mid western shipping points, Milwaukee and Chicago, to the New York City area. We can only conclude, and our conclusion would be the same even were we to ignore the fact that much of the past service upon which applicant relies has been unauthorized, that the evidence falls far short of supporting the requested finding. This application for a certificate is filed under section 207 of the act and may be granted only upon a showing that the present or future public convenience and necessity require the operations proposed. When the definition of a motor contract carrier was changed by the Congress in 1957, section 212(c), providing a statutory plan for the conversion to common carriers of contract carriers not meeting the new definition, was added to the act.2 This section is a form of "grandfather" provision under which a contract carrier whose operations on the section's effective date, August 22, 1957, were found to be those of a common carrier was entitled to a certificate in lieu of its outstanding permits. Proceedings under section 212(c) had to be instituted, either by the carrier, the Commission, or another interested person, within 180 days of the effective date of the legislation. No such proceeding was instituted with respect to the instant applicant or its predecessor in interest. Although recognizing this fact, the hearing examiner took the position that substantially the same standards should be applied in determining applications for conversion filed under section 207 as were followed in determining those filed under 212(c). Under this view, applicant herein and others similarly situated would be able to prove that the public convenience and necessity require their services as common carriers on the basis of past operations alone. We cannot agree. The first detailed discussion of the conversion from contract to common carrier status under section 207 of the act is found in the Fischbach case, supra. That decision was rendered before the passage of the 1957 contract carrier legislation at a time when the position of the contract carrier differed substantially from what it is today. For example, it is only by virtue of changes made in section 209 (b) in 1957 that the authority granted to a contract carrier may be restricted to allow service only for named shippers, which is now our customary practice. At the time the Fischbach case was decided permits were not so 2Section 212(c) is discussed in detail in T. T. Brooks Trucking Co., Inc., Conversion Application, 81 M.C.C. 561. 223-831 - 67-22 limited, and not long afterwards the Supreme Court, in United States v. Contract Steel Carriers, Inc., 350 U.S. 409 (1956), held that a contract carrier is free to seek new business and to serve an unlimited number of contracting shippers within the scope of its operating authority. Hence, at the time of the Fischbach decision it was far easier than it is now for a contract carrier to seek and obtain new customers. Under a single permit a carrier could hold out to serve anyone willing to contract with it, and thus in effect convert its operations to those of a de facto common carrier. It was also pointed out in Fischbach that at the beginning of Federal motor carrier regulation, and even at that time (1953), the line between common and contract carriage was not clearly drawn; that many carriers, inadvisedly but in good faith, had sought and obtained contract carrier authority whereas their operations more properly were those of a common carrier; and that carriers such as the applicant therein, in seeking conversion, were attempting to correct mistakes to which the Commission, as well as the carriers themselves, may have contributed. 61 M.C.C. at 546.3 These mitigating factors, which contributed to the establishment in Fischbach of liberal criteria for section 207 conversions, have largely been obviated by the 1957 amendments. Carriers which at that time found that their operations had become those of common carriers because they were serving more than a limited number of shippers, or were neither assigning vehicles to the exclusive use of each customer nor performing service designed to meet each shipper's distinct need, were converted under section 212(c). Carriers, such as applicant herein, which were not converted and those which instituted interstate contract carrier service after August 22, 1957, must be presumed to have sought and obtained contract carrier authority since that date with full knowledge of the provisions of the amended statute and the restrictions which the 1957 amendments placed around contract carrier operations. Authority such as that held by applicant herein, and particularly that set forth as paragraphs 1 and 5 of the appendix, is obtained not upon a showing of public convenience and necessity but a showing that the proposed operation is consistent with the public interest and the national transportation policy, and when granted 3 A situation in which the Commission contributed to the carrier's dilemma and conversion was authorized is found in T. T. Brooks Trucking Co., Inc., Extension-Akron, Ohio, 86 M.C.C. 667. it is ordinarily restricted to service for specified shippers. Obviously, a contract carrier seeking such restricted authority will find its burden of proof lighter than that of a common carrier proposing to serve the public at large. See the Supreme Court's interpretation of the criteria of section 209(b) of the act, which must be considered by us in all contract carrier applications, in Interstate Commerce Commission v. J-T Transport Co., 368 U.S. 81 (1961). Existing carriers will not be so ready to oppose the contract carrier's application, and if they do they will be required to show not only that they are able to render a reasonably adequate service, but that they are as well situated as the applicant to meet whatever distinct transportation needs the supporting shipper may have. To convert contract carrier authority obtained under these conditions without a clear showing that the public convenience and necessity require applicant's service as a common carrier would result in an obvious windfall to the applicant's undeserved benefit and to the detriment of existing carriers. It also would mean that a carrier which had obtained shipper support for an application for a permit by promises that it would provide a specialized transportation service or assign vehicles to the shipper's exclusive use would be rewarded for having abandoned the elements of specialization which originally made its service attractive-and which in all likelihood contributed significantly to the finding that its service should be authorized. In support of an application such as the instant one, applicant should submit a detailed statement of its past lawful operations for some substantial period so that its claim of use of the authority it seeks to convert can be verified, and it should offer to surrender for cancellation authority which has not been the basis of past operations. However, evidence of past operations alone normally will not be sufficient for reasons which are even stronger now than they were when a similar conclusion was reached in the Fischbach case. Unlike the situation obtaining at the time of that decision, the past operations of a contract carrier seeking today to convert its permits to certificates necessarily will have been restricted to service for a limited number of persons. Shipper testimony which will demonstrate a need for applicant's services as a common carrier rather than as a contract carrier should, therefore, be produced. It is obvious that applicant here has failed to present evidence of this kind, and the application, accordingly, must be denied. We find that applicant has failed to establish that the present or future public convenience and necessity require the proposed operation; and that the application should be denied. An order denying the application will be entered. COMMISSIONER BUSH did not participate. APPENDIX Applicant's contract carrier authority contained in permits No. 1. Meat, meat products, and meat by-products, dairy products, and articles distributed by meat packinghouses, as described in parts A, B, and C of Appendix I to the report in Descriptions in Motor Carrier Certificates, 61 M.C.C. 209 and 766, and bakery products, confectionery, prepared foods, and frozen foods from Milwaukee, Wis., and Chicago, Ill., to Rochelle Park, N. J. Restriction: The operations authorized above are limited to a transportation service performed under a continuing contract or contracts with Lambrecht Foods Co. of Milwaukee, Wis. 2. Raw and pasteurized milk, raw and pasteurized cream, and condensed skim milk, in containers other than those hermetically sealed, from Neenah, Wis., to El Paso and Amarillo, Tex., and Albuquerque, N. Mex., and empty containers used in the transportation of such commodities on return. 3. Eggs, in cases, from Random Lake, Wis., to Rochelle Park, N. J., empty egg cases on return, and 4. Meat, meat products, and meat by-products, dairy products, and articles distributed by meat packinghouses, as described in parts A, B, and C of Appendix I to the report in Descriptions in Motor Carrier Certificates, 61 M.C.C. 209 and 766, bakery products, confectionery, prepared foods, and frozen foods from Milwaukee, Wis., and Chicago, Ill., to Rochelle Park, N. J. Restriction: The service authorized immediately above is restricted to traffic moving as mixed shipments with eggs, in cases, from Random Lake, Wis., and being transported by carrier at the same time to the same destination. 5. Meat, meat products, and meat by-products, dairy products, and articles distributed by meat packinghouses, as described in sections A, B, and C of Appendix I to the report in Descriptions in Motor Carrier Certificates, 61 M.C.C. 209 and 766, bakery products, confectionery, prepared foods, and frozen foods from Milwaukee, Wis., and Chicago, Ill., to Newark, N. J., and New York, N. Y. Restriction: The operations authorized herein are limited to transportation service to be performed under a continuing contract or contracts with Lambrecht Foods Company of Milwaukee, Wis. 95 M.C.C. |