No. MC-111196 (SUB-NO. 29) R. KUNTZMAN, INC., EXTENSION-ALLIANCE, OHIO Decided June 16, 1964 Public convenience and necessity found not shown to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of general commodities, with certain exceptions, in a specified area in Ohio. Application denied. Robert M. Hamilton for applicant. R. L. Ratchford and A. R. Meszoros for protestants. REPORT OF THE COMMISSION OPERATING RIGHTS REVIEW BOARD NUMBER 2, Members Boss, BY THE BOARD: Exceptions to the order recommended by the joint board were filed by protestants, and applicant replied thereto. Our conclusions differ from those recommended. By application filed July 22, 1963, R. Kuntzman, Inc., of Alliance, Ohio, seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of general commodities (except those of unusual value, class A and class B explosives, livestock, household goods, as defined by the Commission, commodities in bulk, and those requiring special equipment), (1) between Alliance and points within 20 miles thereof, and (2) between Alliance and points within 20 miles thereof, on the one hand, and, on the other, Akron and Canton. Commercial Motor Freight, Inc., and Cleveland, Columbus and Cincinnati Highway, Inc., oppose the application. The joint board recommended that the application be granted. In separately filed exceptions protestants collectively contend that in the absence of any shipper support a public need for the proposed service has not been established; that the supporting motor carriers failed to indicate what efforts, if any, were made by them to All points named in this report are in Ohio. establish connecting line arrangements with the numerous existing carriers that serve the involved area; and that the application should be denied. Applicant replies generally that the findings of the board are correct and should be affirmed. Applicant is a motor common carrier holding the following authority to transport general commodities, with the standard exceptions: 1. Certificate No. MC-111196 (Sub-No. 9) dated January 13, 1958 (irregular routes): a. Between Alliance and points within 10 miles thereof. b. Between Alliance and points within 10 miles thereof, on the one hand, and, on the other, Akron and Canton. Restriction: This authority may not be combined with any other authority held by applicant for the purpose of performing through service. 2. Certificate No. MC-111196 (Sub-No. 25) dated November 8, 1962 (regular route): Between Canton and Cleveland, from Canton over Ohio Highway 8 via Akron to junction Ohio Highway 176, thence over Ohio Highway 176 to junction U. S. Highway 21, thence over U. S. Highway 21 via Brecksville to Cleveland, and return over the same route, serving all intermediate points. Restriction: Service at Akron and Canton shall be for the purposes of joinder only with applicant's Sub-No. 9 authority, and service at Cleveland and all intermediate points except Canton2 shall be for the purpose of interchange of traffic only with connecting carriers. 3. Certificate No. MC-111196 (Sub-No. 28) dated June 5, 1964 (regular route): Between Alliance and Cleveland, from Alliance over Ohio Highway 225 to junction Ohio Highway 14, thence over Ohio Highway 14 to Cleveland, and return over the same route, serving no intermediate points, and with service at Cleveland restricted to the interchange of traffic with connecting-line carriers. The Sub-No. 28 certificate was granted to applicant in No. MC-111196 (Sub-No. 28), R. Kuntzman, Inc., Extension-Alternate Route (not printed), decided March 23, 1964. As was indicated there, applicant's operations are not broad in scope. It is authorized to operate only in Ohio, so its participation in interstate traffic is limited to that interchanged with other carriers for movement to or from points beyond Ohio. It participates in the joint-line transportation of general freight originating at or destined to Alliance and points within 10 miles thereof. It should be emphasized particularly that applicant cannot now as a practical matter transport interstate shipments originating at or destined 2 The certificate reads "Canton" here, but apparently "Akron was intended, for it is the latter point rather than Canton (which is a terminus of the route described) that is named earlier in the certificate as the intermediate point at which tacking is allowed. to Akron or Canton, as it may serve these points for purposes of tacking or interchange only, and not in the performance of pickup and delivery service, except under part (b) of its Sub-No. 9 authority. Interchange with connecting carriers is effected at terminals of the latter at Akron, Canton, Cleveland, and West Richfield, a point on applicant's Sub-No. 25 route. The asserted. purpose of the instant application is merely to enlarge applicant's authorized pickup and delivery area from the present 10-mile area surrounding Alliance to a 20-mile radius thereof. Two motor carriers support the proposed operation on the ground that imminent cancellation of their present concurrences with the opposing carriers will leave customers at points within the additional 10-mile area around Alliance without adequate service. The supporting freight forwarder concedes that the services of other carriers are available to provide pickups or deliveries within the involved area, but considers that none can provide the type of regular service involving daily pickups and deliveries as here proposed. A close examination of applicant's present interstate, general commodity authority, as set forth above, when viewed in context with the operating rights here sought, indicates that a broader scope of operations would result from a grant of the instant proposal than a mere enlargement of applicant's presently authorized service area surrounding Alliance. The requested authority actually represents a complete modification of applicant's Sub No. 9 authority in the following respects: (1) extension of the authorized radial area surrounding Alliance to embrace all of Canton and a part of Akron, and (2) removal of the no-tacking restriction with which the Sub-No. 9 authority is burdened, and which at present, as noted in R. Kuntzman, Inc., ExtensionAlternate Route, supra, prohibits applicant from providing a pickup and delivery service at Canton or Akron in connection with traffic moving over its Sub-No. 28, Cleveland-Alliance regular route.3 That applicant's current proposal contemplates the performance of such service at these points, however, is apparent when it is considered that a grant of the authority sought would enable applicant to tack this authority at Alliance with its recently acquired Sub-No. 28 operating rights and, thereby, to operate between Cleveland, on the one hand, and, on the other, Canton and 3A letter from applicant, dated July 19, 1963, and attached to the application, specifically states that the instant application in effect seeks "complete modification" of its Sub-No. 9 authority, as described above. a portion of Akron. Serious doubts as to the true nature and purpose of the instant application are raised, moreover, by applicant's president's testimony at the hearing that the additional area sought to be served includes no city larger than Alliance (population, 40,000). However, all of Canton (population 113,000) and the southeast portion of Akron (population, 293,000) are located within this area. Additionally, if part (1) of the application is intended to include authority to serve Canton, inclusion of that point in part (2) becomes superfluous. Consequently, it is far from clear what service applicant actually proposes by the instant application. Another problem presented by this application lies in the fact that a grant of the authority sought would serve to aggravate the existing situation which allows applicant to combine its regular and irregular route authorities to provide a through service. Also, applicant would be in a position to serve Canton, a portion of Akron, and points between which are on its Sub-No. 25 regular route, over both irregular and regular routes. It appears that those supporting the application now rely on applicant to provide a regular service in the Alliance area, and it is likely that the distinction in character between its regular and irregular route authorities is not being preserved. See Transportation Activities, Brady Transfer & Storage Co., 47 M.C.C. 23; and Motor Common Carriers of Property-Routes and Service, 88 M.C.C. 415. In fact, applicant's existing authority would in all probability be more aptly phrased exclusively as a regular route operation, with points in the territory surrounding Alliance described as intermediate or off-route points. Our approval of a situation in which a carrier could serve the same points under both regular and irregular route authority, and a grant of irregular route authority to an applicant whose proposed service appears to be regular in character, would not be in the public interest and in accordance with the Commission's goal of practicable and effective regulation. Webber Cartage Line, Inc., Extension-Wisconsin, 51 M.C.C. 580. In the circumstances, we must conclude that the application should be denied. We find that applicant has failed to establish that the present and future public convenience and necessity require the proposed operation; and that the application should be denied. An order denying the application will be entered. 95 M.C.C. No. MC-58212 (SUB-NO. 26) MAAS TRANSPORT, INC., EXTENSION-NORTH DAKOTA MISSILE SITES Decided June 16, 1964 On reconsideration, findings in prior report, 92 M.C.C. 581, modified. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of contractors' equipment, materials, and supplies from Soo Line Railroad Company stations in eight North Dakota counties to intercontinental ballistic missile launching sites located in the same counties, restricted to traffic having a prior movement by rail. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. Appearances as shown in the prior report, and, in addition: Elmer B. Trousdale for a protestant. REPORT OF THE COMMISSION ON RECONSIDERATION DIVISION 1, ACTING AS AN APPELLATE DIVISION, COMMISSIONERS HUTCHINSON, BUSH, AND BROWN HUTCHINSON, Commissioner: By application filed August 6, 1962, Maas Transport, Inc., of Williston, N. Dak., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of contractors' equipment, materials, and supplies (1) between Soo Line Railroad Company stations located in Burke, Renville, Bottineau, McLean, Ward, McHenry, Mountrail, and Sheridan Counties, N. Dak., on the one hand, and, on the other, intercontinental ballistic missile launching sites located in these counties, and (2) between intercontinental ballistic missile launching sites located in the above-named counties, limited to service which is auxiliary to or supplemental of the rail service of the Soo Line Railroad Company, and limited to the handling of traffic having a prior or subsequent movement by rail to or from points outside North Dakota. United-Buckingham Freight Lines, E. O. Kavli, doing business as Minot-Bottineau Trucking |