221 F.2d 501 | D.C. Cir. | 1954
Lead Opinion
Central Airlines applied to the Civil Aeronautics Board for authorization to operate a new route segment between the terminal points of Fort Worth, Texas, and Oklahoma City, Oklahoma, via five intermediate points, one of which was Dallas, Texas. After full public hearing, the Board entered an order granting the requested authority, except that Dallas and Fort Worth, which are thirty-one miles apart, were treated as a single terminal point with this designation: “Dallas-Fort Worth, Tex. (to be served through the Amon Carter Air Field).” Amon Carter Field
The Dallas Chamber of Commerce, an intervenor in the proceedings before the Board, and the City of Dallas, which, jointly with the Chamber of Commerce, filed an unsuccessful petition for reeon-
Petitioners first attack the Board’s order on the theory that the Board is without statutory authority to require Dallas-Fort Worth to be served through Amon Carter. This contention derives from their view that airports must be considered “facilities” within the meaning of the fourth sentence of § 401(f) of the Civil Aeronautics Act,
“No term, condition, or limitation of a certificate shall restrict the right of an air carrier to add to or change schedules, equipment, accommodations, and facilities for performing the authorized transportation and service as the development of the business and the demands of the public shall require.”
While, for reasons set forth in the margin,
“Each certificate issued under this section shall specify the terminal points and intermediate points, if any, between which the air carrier is authorized to engage in air transportation and the service to be rendered * *
The temporary certificate issued by the Board, after describing the transportation authorized, states: “The service herein authorized is subject to the following terms, conditions, and limitations.” The restriction of service to Dallas-Fort Worth through Amon Carter does not appear among such “terms, conditions, and limitations,” but is found in the first part of the order, where the authorized transportation is described.
While, of course, the mere form of the Board’s order would not be
Finally, even if the Act left some ambiguity concerning the Board’s power to enter the order in question, we would favor the broader view of the Board’s power as essential to secure a system of air transportation in the public interest.
Petitioners next assert that they were not given sufficient notice that the issue of service through Amon Carter Field was before the Board;
The Supreme Court held that there was sufficient notice to State, even though Piedmont’s application covered routes “differ markedly from those awarded’’.
in the present case, petitioners likewise had notice of the certificate proceed-jngs and Participated therein. They knew’ °* course’ that Amon Carter Field fas ander construction.
These circumstances, we think, preclude the view adopted by our dissenting brother that petitioners had a
Furthermore, as in State Airlines, the Board here considered petitioners’ proffer of additional evidence when it denied their petition to reopen the proceedings and for reconsideration. Their petition stated that they were prepared to produc e evidence (1) that service to Dallas through Amon Carter would not ne adequate, and (2) that, if one airfield was to serve both cities, Love Field at Dallas, rather than Amon Carter, would minimize the cost to the public and would offer the more convenient service. The petition did not, however, indicate specifically the nature of the evidence to be submitted, although it was perhaps implied that data reflecting the greater volume of Dallas traffic would be offered. Since such data was already before the Board, and since no other evidence was specified, we find that, as in State Airlines, supra, the Board was justified in declining to reopen the proceedings.
In effect, petitioners’ final objection — that the Board’s order is not supported by substantial evidence — comes to this: that there is missing from the record the evidence they would have presented but for the alleged lack of notice that service to Dallas through Amon Carter was in issue.
Particularly, they say, there was insufficient evidence (1) to support the finding that Amon Carter Field would adequately serve Dallas; or (2) to enable the Board, in computing the amount of subsidy savings to the public, to appraise the adverse effects on Central’s revenues which would result from the loss of Dallas traffic. But we think the evidence in the record clearly demonstrates that Amon Carter was sufficiently accessible to Dallas to serve its needs adequately, and, accordingly, that the loss of Dallas traffic would be inconsequential.
Affirmed.
. Also known as Fort Worth International Airport.
. 52 Stat. 977, 989 (1938), 49 U.S.C.A. § 481(f).
. In support of their position, petitioners point to the definitions section of the Act, where, at § 1(7) and (8), the term “Air navigation facility” is defined as including “landing areas” and “airports.” 52 Stat. 977 (1938), 49 U.S.C.A. § 401(7) and (8). However, elsewhere in the definitions section, at § 1(22), where “landing area” is defined, “facilities” is used to refer to things appurtenant to the airport rather than to the airport itself. 52 Stat. 979 (1938), 49 U.S.C.A. § 401(22). Since § 401(f), supra, speaks of “facilities” and not “air navigation facilities,” we think that the statutory definitions, if anything, militate against rather than for petitioners’ contention. Moreover, turning to Title IV of the Act, in which § 401(f) is included, we find that in at least one instance “facilities,” as used therein, could not have been intended to incude “airports.” Thus, § 404(a) makes it the duty of a certificated carrier “to provide safe and adequate service, equipment, and facilities in connection with [the authorized] transportation”. 52 Stat. 993 (1938), 49 U.S.C.A. § 484(a): Clearly. Congress did not intend for carriers to provide their own “safe and adequate” airports. On the other hand, the term “air navigation facilities” does not appear in Title IV, but is used in Titles III and VI where the Administrator of Civil Aeronautics, the Secretary of Commerce, and the Board are vested with broad power to establish, develop, and maintain “air navigation facilities,” specifically including airports, and to regulate such “air navigation facilities” in the interest of safety. See 52 Stat. 985, 988, 1011 (1938), 49 U.S.C.A. §§ 451, 452, 455, 457. Had Congress regarded the word “facilities,” without more, as embracing airports, it would not have devised and painstakingly defined a new term (i. e., “air navigation facility”) when it sought to create and delimit a broad regulatory power encompassing, inter alia, airports.
. 14 CUT.It. § 202.8 (1952).
. See, e. g., Alaska Air Transportation Investigation, 8 C.A.B. 804 (1942); Middle Atlantic Area Case, 9 C.A.B. 131, 179-80 (1948).
. 52 Stet. 978-79 (1938), 49 U.S.C.A. § 401(10). (20).
. Cf. Civil Aeronautics Board v. State Airlines, 1950, 338 U.S. 572, 578, 580, 70 S.Ct. 379, 94 L.Ed. 353.
. The Board has assumed that it possessed such power in a number of cases. See, e. g., Tcxas-Oklahoma Case, 7 C.A.B. 481, 539-40 (1946); Trans-Texas Certificate Renews 1 Case, 12 C.A.B. 606 (1951); Alaska Route Modification Case, Order E-7460, March 23, 1953; Indiana-Ohio Local Service Case, Order E-7184, February 20, 1953. Were the Board without such power in the present case, it would be possible for Central to choose to' use Meacham Field at Fort Worth, thereby in effect vitiating the Board’s order that service should be afforded to Dallas as well as Fort Worth.
. 52 Stat. 988 (1938), 49 U.S.C.A. § 481(f).
. Specifically, petitioners contend that no specific notice was given that the following issues would be determined: whether Central should be limited to serving Dallas through Amon Carter Field and denied the right to use Love Field; and whether operation to and from Amon Carter would constitute adequate service to Dallas.
. 60 Stat. 239 (1946), 5 U.S.C.A. § 1004.
. 1950, 338 U.S. 572, 578-81, 70 S.Ct. 379, 94 L.Ed. 353.
. 338 U.S. 572 at page 577, 70 S.Ct. 879 at page 382, 94 L.Ed. 353.
. Southeastern States Case, 8 C.A.B. 716, 722 (1947), quoted, 838 U.S. 572 at page 580, 70 S.Ct. 379 at page 384. This principle may not, however, be read as in any way implying that even where the conse-quenees to interested individuals of a Board’s order are manifestly unjust, the Board’s determination must be conclusive merely because couched in terms of public interest.” “Fair play,” as well as “sound transportation,” is a component of the public interest.
. The City of Dallas sought unsuccessfully to block the construction of Amon Carter Field in proceedings before the Administrator of Civil Aeronautics. In the Matter of the Hearing of the Petition of the City of Dallas, Texas, Protesting the Location of the North Texas Airport (1948). See City of Dallas v. Rentzel, 5 Cir. 1949, 172 F.2d 122.
. Dallas-Fort Worth had been designated a single point in other proceedings before the Board : American Airlines, Inc.— Temporary Certificate of Public Convenience and Necessity, 3 C.A.B. 415, 419 (1942); Latin American Air Service Case, 6 C.A.B. 857, 921, 925 (1946); and Braniff Airways, Inc., Route No. 15 Restriction, 6 C.A.B. 515, 520 (1945).
. Petilionerg had previously participated in proeeedings in which the Board had specified that points should be served through designated airports. See, e. g„ Trans-Texas Certificate Renewal Case, 12 C.A.B. 606 (1951). See also note 8, supra.
. 14 C.I'.R. § 202.3 (1952).
. The Board’s supplemental opinion denying the petition for reconsideration makes clear that the Board had duly considered the objections raised by petitioners. The Board seated: “In reaching this decision we cons.dered, among other matters, the fact tha; the subsidy cost to the Government would increase substantially if the new service * * * were provided through separate airports. * * * By the time of our decision, Central was providing service to Dallas and Fort Worth through three separate airports. The record £lso indicated that the facilities available at Amon Carter and its location and convenience were such as to provide adequately * * * for local service to both Dallas and Fort Worth.”
. Certain documents and materials were incorporated into tbe record by stipulation. Among such materials considered by the Board were: (1) data regarding runways, navigational aids, etc., available at Amon Carter Field and Love Field; (2) distances and ground transportation from Fort Worth and Dallas to Amon Carter Field and Love Field; and (3) lists of airports located fifteen or more miles from points served, together with ground transportation times and fares involved ; and (4) estimated operating costs of Central from which could be deduced the added subsidy costs involved if Dallas and Fort Worth were to be served separately.
Dissenting Opinion
(dissenting) .
I would remand this case for further hearing on the airport question. In one sentence the Board’s order from which this appeal was taken specified the terminal point and designated the air
Central Airlines’ application for a certificate was for a route “Between the terminal point Fort Worth, Texas, the intermediate points Dallas, Texas, Den-ton, Texas, * * It said nothing about the airport to be used. The report of the prehearing conference was to the same effect. This was the extent of the notice given as to the nature and scope of the hearing to be held.
No specific notice was given that the Board might designate Dallas-Fort Worth as the terminal point. Nevertheless, under the doctrine of the State Airlines case,
But the question of what airport should be used to serve the designated terminal point was a different question. In its brief the Board tells us:
“Under the terms of each carrier’s certificate in effect since the beginning of the administration of the Civil Aeronautics Act, a carrier after being authorized to serve a new point is required to file with the Board an ‘airport notice’ notifying the Board of the airport selected by it to serve the new point. Under the Board’s practice the carrier is permitted to use that airport if (a) the airport is suitable for the purpose when compared with other available airports in the vicinity, and (b) the airport does in fact serve the designated point.”
The designation of “Dallas-Fort Worth” as a terminal was, as the Board phrased it in the Supplemental Opinion dated September 24, 195B, “a designation of service to Dallas and Fort Worth as a single rather than separate points.” If this was authorization of service to “a new point”, the above quotation from the Board’s brief applies directly and specifically. If it was not designation of a new point, but was merely service by a new airport to two points already served, the Airport Regulations
It seems to me that Dallas had a right to rely upon the established procedure in respect to the designation of the airport to be used. It had a right to expect, in the absence of any notice to the contrary, that, after the terminal points and other issues in the certification proceeding had been concluded, the selection of airports would be another step to be taken pursuant to an “airport notice”. Dallas had no semblance of a notice that, contrary to the established procedure, the selection of the airport would be dealt with in the same order which specified
In its petition for reconsideration Dallas offered to present evidence “showing first, tha'; service of Dallas through Fort Worth International Airport (Amon Carter Field) is not and in the circumstances will not be adequate service required by Section 404 of the Act, and second, that if under the peculiar circumstances of any case both Dallas and Fort Worth are to be served through a single airfield, the public interest requires that Love Field should be the field used for that purpose in view of the much greater volume cf available traffic to and from Dallas than to and from Fort Worth.” In its memorándum denying reconsideration the Board did not treat of this proffer cf evidence but merely referred to facts which it said were indicated in the record.
I would remand the case for further hearing upon the airport question and for a re determination of that question pursuant to the established procedure and regulations relating thereto.
. Civil Aeronautics Board v. State Airlines, 1950, 338 U.S. 572, 70 S.Ct. 379, 94 L.Ed. 353.
. 14 Code Fed.Regs. § 202.3.