Question 3. We come now to the question whether, respecting passengers having an immediately prior or subsequent movement by air, motor transportation between an airport and another point in the same State is in interstate commerce. Examination of the decisions of the Commission and the courts discloses that such transportation is not regarded as interstate commerce by the overwhelming weight of authority. In cases where the issue has been specifically raised and dealt with (as distinguished from others in which authority may have been granted upon the assumption that interstate transportation was involved), the Commission has consistently held that regardless of the intentions of any passengers to continue or complete an interstate journey, a carrier of passengers operating wholly within a State, selling no through tickets, and having no common arrangements with connecting out-of-State carriers, is not engaged in interstate or foreign commerce. Moore Service, Inc., Extension-Migrant Workers, 89 M.C.C. 180, 181; Virginia Stage Lines, Inc.-Purchase-Southern Passenger, 15 M.C.C. 519; Spokane, Portland & Scattle Transp. Co. Com. Car. Applic., 26 M.C.C. 260; Red Star Lines, Inc., Extension of Operations, 3 M.C.C. 313, 314. This view is also supported by pertinent court decisions. The Supreme Court has held one-State operations to be intrastate in cases involving the transportation of passengers by taxicab between their homes or hotels and the railroad station (United States v. v. Yellow Cab Co., 332 U.S. 218 (1947)); transportation of passengers by rail between two rail points in the same State (New York Central R. R. Co. v. Mohney, 252 U.S. 152 (1920)); and transportation of passengers by taxicab between a ferry landing and hotel in the same State (Pennsylvania R. Co. v. Knight, 192 U.S. 21 (1904)). In all of these cases, the passengers' intentions to continue or complete an interstate journey were not deemed to be controlling. Needless to say, the character of the transportation considered by the Supreme Court in the Yellow Cab case, supra, would not be affected by the fact that taxicabs rather than limousines were involved. Airport bus service which did not cross State lines was found to be intrastate in Cederblade v. Parmalee Transp. Co., 94 F. Supp. 965 (N. D. Ill. 1947); and airport limousine service was similarly classified in Mateo v. Auto Rental Company, 240 F.2d 831 (9th Cir. 1957). Although a different result was reached in an earlier case, Airlines Transp. v. Tobin, 198 F. 2d 249 (4th Cir. 1952), that court was no doubt influenced by the extraordinary degree of control which the airline company exercised over the motor operations. In that case, the limousine operator was an independent contractor by the terms of its agreement with the airline company, but under the same agreement the airline company controlled the limousine operation to the point of reserving the right to schedule the vehicles, discipline the drivers, and specify the uniform to be worn by the drivers. More than half the airline passengers used the limousine service, with arrangements frequently made for them by airline personnel. The $1.50 rate charged by the limousine operator could not be altered without the consent of the airline company. We see no reason to depart from the precedents established in prior decisions. Furthermore, we find no overriding necessity, rooted in the public interest, to claim the involved transportation as interstate commerce. We are already heavily burdened enough with regulatory responsibilities without casting about to extend our jurisdiction beyond that specially required by law. Therefore, we conclude that question 3 must be answered generally in the negative. Adoption of a specific or all inclusive rule, however, does not appear practical and will not be undertaken. Question 4. Remaining for consideration is substituted motorfor-air transportation performed in emergency stituations. We think that the approach taken to this problem in the Graff decision, supra, and followed consistently since, is sound and should continue to be followed in the future. If the traveling public is to be served, air carriers should be in a position to provide them with transportation even if the plane must, because of bad weather, for example, land at an airport far removed from the scheduled destination, or if a plane, because of equipment failure, is not available. Consequently, we do not believe that it is advisable to attempt to set any specific mileage limit within which such emergency motor transportation must be performed if it is to fall within the scope of the section 203(b)(7a) exemption. We wish to stress that motor transportation to fall within this category and thus to be exempt from our economic regulation must be truly emergency in character, and the rule to be adopted here will provide that it must be caused by conditions beyond the control of the air carrier. For example, the fact that a city is served by an airport which is not equipped to receive jet planes cannot be construed as clothing an operation from or to the nearest jet airport with the character of an emergency. The decision as to what constitutes adverse weather or an emergency or impractical flying condition, is, in our opinion, one that must be made by the air carriers and their officials in the interest of public safety. In any case, whenever airline passengers move in substituted motor-for-air line-haul operations by an uncertificated motor carrier, there must exist some adverse weather or impractical condition or situation as decided by the officials of the direct air carrier. We conclude that the issuance of regulations embodying the conclusions reached herein is in the public interest and will make more definite and certain the scope of the partial exemption of section 203(b)(7a) of the act and the responsibilities of those engaged in the transportation of passengers who have had an immediately prior or subsequent movement by aircraft. FINDINGS We find that title 49, Chapter 1 of the Code of Federal Regulations requires modification by adding thereto section 210.45 to read as follows: 210.45. Motor Transportation of passengers incidental to transportation by aircraft. (a) Passengers having an immediately prior or subsequent movement by air. The transportation of passengers by motor vehicle is transportation incidental to transportation by aircraft provided (1) that it is confined to the transportation of passengers who have had or will have an immediately prior or immediately subsequent movement by air and (2) that the zone within which motor transportation is incidental to transportation by aircraft, except as it may be individually determined as provided in section (c) herein, shall not exceed in size the area encompassed by a 25-mile radius of the boundary of the airport at which the passengers arrive or depart and by the boundaries of the commercial zones (as defined by the Commission) of any municipalities any part of whose commercial zones falls within the 25-mile radius of the pertinent airport. (b) Substituted motor-for-air transportation due to emergency conditions.- Transportation of passengers by motor vehicle is transportation incidental to transportation by aircraft if it constitutes substituted motor-for-air service, performed at the expense of the air carrier in emergency situations arising from the inability of the air carrier to perform air transportation due adverse weather conditions, equipment failure, or other causes beyond the control of the air carrier. (c) Individual determination of exempt zones. Upon its own motion or upon petition filed by any interested person, the Interstate Commerce Commission may, in an appropriate proceeding, determine whether the area within which the transportation by motor vehicle of passengers having an immediately prior or subsequent movement by air must be performed, in order to within the provisions of paragraph (a) of this section, should be individually determined with respect to any particular airport or city served by an airport, and whether there should be established therefor appropriate boundaries differing in extent from those defined in subparagraph (a)(2) of this section. We further find that the foregoing rules are reasonable and necessary; and that they should be prescribed. An appropriate order will be entered. VICE CHAIRMAN WEBB concurs in the result. COMMISSIONER FREAS. Concurring in the result: In light of the views of the Supreme Court in Yellow Cab, supra, I feel constrained to concur in the result herein as to the question 3 holding. Otherwise, I am in accord with the report. COMMISSIONER WALRATH. Concurring in part: I agree with the majority in its answers to questions 1, 2, and 4, but I do not agree that we should avoid a clear answer to question 3. Realizing that the Commission may make or amend its rules to comport with practicality, I would, in order to give the public the benefit of a more definitive rule, conclude that, except where there is a common arrangement for through transportation, question 3 would be answered in the negative. Determination of the interstate vs. intrastate question is, to my mind, crucial to the entire proceeding. For if the movement is intrastate in character, our 25-mile limitation on the exempt zone simply has no applicability. As the matter now stands, a carrier must guess whether its operation is interstate in character before it can decide whether the 25-mile zone of exemption is applicable to it. 95 M.C.C. APPENDIX A Matters upon which comment was invited 1. Whether there should be prescribed terminal limits surrounding airports and the cities served by regulated air carriers within which the motor transportation of passengers will be deemed to fall within the scope of the partial exemption of section 203(b)(7a), and beyond which such transportation will be deemed not to fall within the scope of such exemption; and what should be the extent of such terminal limits if any are prescribed? 2. Whether the motor transportation of passengers in order to fall within the scope of the partial exemption of section 203(b)(7a) of the act should be limited to the transportation of passengers traveling on through tickets covering, in addition to the motor-carrier movement, an immediately prior or subsequent movement by air? 3. Whether terminal limits contemplated by (1) above, if any should be prescribed, should be made applicable to the motor transportation of passengers having an immediately prior or subsequent movement in interstate or foreign commerce by air in circumstances wherein the movement performed by the motor carrier takes place exclusively within a single State? 4. Whether terminal limits contemplated by (1) above, if any should be prescribed, should be made applicable to the emergency transportation of passengers between airports and cities, towns, and areas served by other airports where, due to adverse flying conditions or other emergency circumstances, the operation of aircraft or the use of the customary airports is made impossible or impracticable? APPENDIX B Parties which have submitted statements National Association of Motor Bus Owners National Bus Traffic Association Sher-Will Corp. (successor to the Hatom Corporation) Peter Theodore, Inc. Salem Transportation Co., Inc. The Baltimore and Annapolis Railroad Company Lincoln Transit Co., Inc. Manhattan Transit Company Westwood Transportation Lines, Inc. Mohawk Coach Lines, Inc. Campus Travel Inc. Walters Transit Corp. Brown's Connecticut Airport Service, Inc. Airport Transport, Inc. Airline Transport, Inc. Airline Limousine, Inc. D. C. Transit System, Inc. Public Service Coordinated Transport |