applicant's service in the past under the assumption that it was authorized to transport their traffic, and in attempting to use the services of other motor carriers, they have found that they have not been able to furnish sufficient equipment upon demand. As many receivers are not located on rail sidings, the service of rail carriers is not considered adequate. Evidence in opposition to the application was adduced by Modern, Mason & Dixon, Malone, and the Illinois Central Railroad. The three motor protestants are common carriers authorized, as here pertinent, to transport general commodities, with the usual exceptions. Modern is authorized to serve Memphis but does not serve directly any of the destination territory involved here. Its interest in the proceeding is limited to participation in interline service with motor carriers not parties hereto, and it has never served the supporting shippers. Mason & Dixon, which does not serve Memphis, offers to act as delivering carrier in a joint-line service, but again its connecting carriers are not parties to this proceeding. Malone, by tacking certain of its authorities, can serve portions of the pertinent area, but only in a circuitous manner. As stated, Modern is the only motor carrier to file exceptions to the recommended order. The Illinois Central Railroad serves Memphis and provides direct service to many points in Iowa. It offers service in conjunction with connecting carriers to all rail points. We are of the opinion that a need has been shown for the proposed service as the record as a whole establishes that existing services are not able to meet the supporting shippers' transportation requirements. Rail service is clearly not adequate because shippers have many customers not served by rail carriers, and none of the motor carrier protestants is authorized to provide the needed service. However, the record discloses a need for the transportation only of shortening and vegetable oils, and the authority to be granted will be limited accordingly. Applicant has performed unauthorized transportation for the supporting shippers for many years, and its fitness to receive a grant of authority is thus called into question. In other proceedings decided since the determination of Modern Truck Line, Inc., v. Colonial Refrigerated, supra, division 1 has found applicant fit to receive grants of authority,2 and a similar conclusion is 2No. MC-115841 (Sub-No. 138), Colonial Refrigerated Transportation, Inc., Extension-Springfield, N. J. (decision and order of December 19, 1963); and MC-115841 (Sub-No. 139), Colonial Refrigerated Transportation, Inc., Extension-Florida (decision and order of December 24, 1963). No. 95 M.C.C. warranted here. While we cannot condone applicant's past unlawful operations, it cannot be said unequivocally that they were performed with no color of right whatsoever. We conclude, therefore, that the necessary finding of fitness may properly be made. We find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of shortening and vegetable oils (except such commodities when moving in bulk, in tank vehicles) from Memphis, Tenn., to points in Connecticut, Delaware, Iowa, Maryland, Massachusetts, New Jersey, New York, Ohio, Pennsylvania, Virginia, West Virginia, and the District of Columbia; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations thereunder; that a certificate authorizing such operation should be granted; and that the application in all other respects should be denied. Upon compliance by applicant with the requirements of sections 215, 217, and 221(c) of the act and with the Commission's rules and regulations thereunder, within the time specified in the order entered concurrently herein, an appropriate certificate will be issued. An appropriate order will be entered. 95 M.C.C. No. MC-67783 (SUB-NO. 5) MARION A. FRANK EXTENSION-MAIL ORDER Decided June 17, 1964 Public convenience and necessity found to require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of specified commodities between points in a described portion of Pennsylvania, subject to a condition and restrictions. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. John M. Musselman for applicant. REPORT OF THE COMMISSION OPERATING RIGHTS REVIEW BOARD NUMBER 3, MEMBERS FREIDSON, MORRIS, AND MULHERN BY THE BOARD: No exceptions were filed to the order recommended by the examiner, but it was stayed by us. Our conclusions differ slightly from those recommended. By application filed September 5, 1963, as amended, Marion A. Frank, doing business as Frank Delivery Service, of Williamsport, Pa., 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 such general merchandise as is dealt in by retail mail-order houses, in individual shipments not exceeding 150 pounds in weight, between Williamsport, on the one hand, and, on the other, points in that portion of Pennsylvania bounded by a line beginning at the New York-Pennsylvania State Line, thence over U. S. Highway 219 to its junction with U. S. Highway 22, thence over U. S. Highway 22 to its junction with U. S. Highway 522, thence over U. S. Highway 522 to the Pennsylvania Turnpike, thence over the Pennsylvania Turnpike to its junction with Interstate Highway 81, thence over Interstate Highway 81 to the Pennsylvania-New York State Line, and via the same to the place of beginning, including points in the commercial zones or terminal areas located on the highways specified (except between Williamsport, and points within 50 miles of Williamsport), restricted against interchange at points other than Williamsport of traffic originated at or destined to points in Florida, Georgia, and South Carolina. No one opposes the application. The examiner recommended that the application be granted substantially as sought. As indicated, no exceptions were filed to the recommended order, but it was stayed by us in order to consider the propriety of the commodity description and weight restriction employed in the recommended findings. The evidence and the examiner's recommendation have been considered. We find the examiner's statement of facts to be correct in all material respects, and his findings, except as they pertain to the above-mentioned commodity description and weight restriction, to be amply supported by the record. They are adopted as our own and incorporated herein by reference. We shall confine our discussion herein to the form of the commodity description to be granted and of the weight restriction to be imposed, and to certain corrections required in connection with the boundary lines of the above-specified Pennsylvania territory. The sole supporting shipper, Avon Products, Inc., is primarily engaged in the manufacture of cosmetics and related products. It sells such merchandise as cosmetics, toilet preparations, toothbrushes, insecticides, and bathroom and household sprays. The shipper has divided the considered Pennsylvania territory into numerous sales areas in each of which it has approximately 150 salesmen soliciting orders for its products from customers within their respective sales areas. Such orders are forwarded to the shipper's warehouse at Newark, Del. Each salesman's orders are there combined into individual packages or shipments, weighing in aggregate not more than 150 pounds, and shipped to Williamsport. Applicant then distributes each individual shipment to the designated salesman who in turn delivers personally the individual orders comprising such shipment to his or her respective customers. Such individual shipments normally include so-called premiums, consisting of general merchandise such as irons, blankets, and similar items, which are the shipper's gifts to its salesmen for their sales efforts. Although the commodities sold and distributed by the shipper do not approach the wide range of commodities dealt in by retail mail-order houses, nevertheless they are sufficiently diversified to justify the commodity description employed in our findings herein. We consider a weight restriction "against the transportation of any parcels, packages, or articles weighing in the aggregate more than 150 pounds from one consignor at any one location to one consignee at any one location on any one day" to be more administratively desirable and easier of enforcement than the weight restriction sought and recommended. Compare United Parcel Service of New York, Inc., Com. Car. Applic., 79 M.C.C. 629. Certain other matters require consideration. A portion of the boundary line sought extending from the Pennsylvania Turnpike in an easterly and northerly direction to the Pennsylvania-New York State Line is over Interstate Highway 81. Late reliable maps indicate that segments of Interstate Highway 81 here involved have not been completed. Accordingly, such portion of the authority sought between the Pennsylvania Turnpike and the PennsylvaniaNew York State Line should be described as over the completed or proposed segments of Interstate Highway 81. The authority sought to serve "points in the commercial zones or terminal areas located on the highways specified (except between Williamsport, and points within 50 miles of Williamsport)," and the variant employed in the recommended findings, are both ambiguous and could give rise to interpretative problems. Accordingly, applicant will be authorized to serve points located on the specified highways and the respective commercial zones of such points. With respect to the proposed territorial exception thereto, the only points on the boundary highways within 50 miles of Williamsport appear to be on an uncompleted segment of Interstate Highway 81 between its proposed junctions with U. S. Highways 209 and 122, a distance of less than 20 miles and traversing no major municipalities. In view thereof and of the fact that applicant is presently authorized to serve other portions of the considered Pennsylvania territory under its existing authority, the usual nonduplicating authority clause will be imposed upon the grant of authority herein in lieu of the indicated exception. We find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of such commodities as are dealt in by retail mail-order |