D. C. TRANSIT SYSTEM, INC., Petitioner, v. WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Respondent, and District of Columbia Council et al., Intervenors.
No. 72-1555.
United States Court of Appeals, District of Columbia Circuit.
Argued June 22, 1972. Decided July 28, 1972. Certiorari Denied Dec. 18, 1972. See 93 S.Ct. 688.
The petition in No. 24867 is denied; and, in No. 71-1103, enforcement is granted except as otherwise provided hereinabove and this case is remanded for the purpose stated.
It is so ordered.
Mr. Frank F. Flegal, Sp. Counsel, Washington Metropolitan Area Transit Comm., with whom Messrs. Bernard Dobranski, Gen. Counsel, and Stephen L. Sharfman, Counsel, Washington Metropolitan Area Transit Comm., Washington, D.C., were on the brief, for respondent.
Mr. Edward B. Webb, Jr., Sp. Counsel, District of Columbia Council, Washington, D.C., for intervenor District of Columbia Council.
Mr. Michael J. Valder, Washington, D.C., with whom Mrs. Elizabeth B. Kleeman, Xenia, Ohio, was on the brief, for intervenor Black United Front.
Miss Diana K. Powell, pro se, intervenor.
Before FAHY, Senior Circuit Judge, and ROBINSON and MacKINNON, Circuit Judges.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
The question for decision is whether the Washington Metropolitan Area Transit Commission erred in conditioning further consideration of a fare increase for a financially ailing carrier upon satisfaction of requirements designed to improve its service. We hold that, in the circumstances presented, the Commission‘s action is legally unobjectionable. We accordingly affirm the orders under review.
I. BACKGROUND OF THE LITIGATION
The Administrative Proceeding
On December 28, 1971, D.C. Transit System, Inc. (Transit), filed two tariffs1 with the Commission which alternatively designated changes in its fares for regular-route transportation of passengers in the District of Columbia and its Maryland and Virginia suburbs. The filings were accompanied by data indicating a net operating loss during an historical twelve-month period ending September 30, 1971, and forecasting another loss during a corresponding period ending April 30, 1973. To enable a suitable return in the future annual period, Transit proposed a variety of fare increases, notably for its intra-District cash and token patrons.2 Transit designated January 27, 1972, as the date on which the new fares would take effect.
Transit submitted with the tariffs a motion for fare raise pending determination by the Commission of the general increment it sought. The Commission denied the motion, holding that an interim advance would not serve the public interest, and set hearings to begin at an early date. On January 26, 1972, the Commission suspended Transit‘s newly-filed tariffs through April 26, and on April 25 further suspended them until May 26. The hearings commenced in mid-February and, with numerous parties participating extended well into May.3 On May 19, the Commission,
Since we later examine the Commission‘s orders closely, we confine our recitation at this stage to their highlights. The Commission, on preliminary examination of the financial data submitted by Transit, discerned a probable need for additional revenues.8 The Commission found, however, that management decisions over the years had left Transit with an unstable financial structure which in turn had contributed substantially to an operation presently uneconomical and inefficient and a service seriously deteriorated.9 In the Commission‘s view, the Washington Metropolitan Area Transit Regulation Compact10 required it to insure not only the reasonableness of rates permitted regulated carriers but also the economy, efficiency and adequacy of their service to the public.11 The Commission concluded that it could not discharge its responsibilities by granting Transit a fare raise without prior demonstration of Transit‘s willingness to ameliorate its financial situation by capital funding from sources other than its fareboxes.12 Attributing Transit‘s financial plight more largely to management than to insufficient revenues,13 and recounting a nine-year history of recalcitrance despite exhortation to remedy its ills,14 the Commission found a lack of assurance that corrective measures would be adopted even if it established funding requirements concurrently with an award of higher fares.15 The sole alternative, the Commission decided, was the company‘s acquisition of new capital as a precondition to any such addition.16
On these grounds, the Commission, in Order No. 1216, found that the fare increases set forth in Transit‘s tariff filings were unjust and unreasonable.17 It ruled that, as a condition precedent to any elevation of fares, Transit must generate $6.4 million in new capital and allocate it to debt retirement and bus purchases in designated amounts.18 It directed that, pending compliance, Transit continue to charge the regular-route fares then in effect.19 As already men-
The Loconto Reports
In reaching its conclusions, the Commission drew heavily upon the results of an in-depth study of Transit‘s financial condition. The Commission had ordered the study made with a view to assessing the full implications and isolating the underlying causes of Transit‘s condition.25 The study was made by Pasquale A. Loconto, a partner in a consulting firm employed by the Commission for the purpose. Loconto probed into Transit‘s financial history, analyzed its capital and debt structures, reached conclusions as to the need for improvements and formulated recommendations as to the steps by which financial stability might be achieved.26 Loconto prepared a report, which was placed in the administrative record, and he also appeared as an expert witness in the proceeding and stood cross-examination on the conclusions and recommendations of his report.27 What we now summarize are the Commission‘s discussions of the report, and the findings it based thereon.
Loconto called attention to substantial increases in Transit‘s current and long-term liabilities and accompanying declines in reserves and retained earnings.28 He also identified, as concomitants of steadily growing operating revenues, heightening operating revenue deductions, fluctuating operating income, and constantly rising interest ex-
tions to interest coverage and long-term debt, and the percentage of stockholders’ equity to total assets, as well as other relationships examined by Loconto, “similarly indicated a worsening financial picture for D. C. Transit.”33 In Loconto‘s opinion, “[t]he combination of trends presented . . . indicates that the financial condition of the company has been steadily declining during recent years.”34
Loconto‘s analysis of capital structure included a comparison with ten other privately-owned transit companies on a number of financial aspects.35 These
On the basis of his analysis, Loconto identified four problems fundamental to achieving financial stability in Transit‘s case. These the Commission described thusly:
First, he said some correction must be made in the fact of excessive short-
The fourth problem is the inadequacy of funds provided by operations. This problem obviously can only be cured by increased farebox revenues of subsidization of farebox revenues from the taxpayer. However, the consultant points out that even a considerable increase in net income from this source would not be adequate to make principal payments due within
Loconto also submitted specific recommendations designed to strengthen Transit‘s ailing financial situation: reduction of current liabilities by $5 million during the first future annual period and eventually by $11 million; reduction of long-term debt by $4 million during the future annual period and ultimately by $8 million; and the acquisition of $3 million for the purchase of new buses.42 He suggested, as potential sources for the needed funds, the calling of $3 million lent by Transit‘s subsidiaries,43 possible sale of properties classified as operating properties but actually nonoperating,44 and an increase of paid-in capital.45 The latter step, it was said, “might well be justified because the initial capitalization was ‘exceedingly small’ and dividends of $4.4 million were paid out despite the fact that Transit had a low level of stockholders’ equity.”46
The Commission‘s Orders
By the Commission‘s assessment, “the record show[ed] clearly and in great detail Transit‘s seriously unstable and risky financial condition,”47 and this, the Commission found, bred an uneconomical and inefficient transportation operation and a resulting deterioration
The record here shows that the present capital structure and debt structure of Transit do not reflect economic and efficient management. Non-operating assets have not been employed as advantageously to the parent operating company as prudent management practice would dictate. Under its current capital and debt structures, Transit is unable to provide and replenish the basic tools of its trade, its rolling stock. Its chronic cash-short condition results in too few drivers, too few mechanics, too few bus cleaners, and too high an incidence of failure to provide basic service. We consider that less than efficient management. The unnecessarily high debt service requirement is uneconomic. Operating on the brink of insolvency is surely not efficient and economic.49
The Commission further elucidated the connection between Transit‘s financial instability and its mediocre operation and service by adverting to specific examples. Two years previously, the Commission had granted Transit a 25 percent increase50 in the basic District of Columbia fare, and had concurrently ordered Transit to escrow $620,000 over a six-month period as a 20 percent down-payment on the purchase of 85 new
The Commission further found that Transit‘s “uneconomical and inefficient method of operation, and the resulting deterioration in service, could not be remedied merely with a fare increase,”59 and its orders delineated justifications. As it said on reconsideration,
Transit‘s financial instability is due largely to management decisions which are the critical factors in creating the present unsatisfactory financial structure. The Loconto report and testimony identified corporate decisions, not inadequate fare revenues, as the major factor in Transit‘s present financial instability. We concluded that additional funds, not increased fares alone, were required to remedy this situation. Here again, the expert testimony showed that the company‘s major need was additional funding from sources other than the Reports which Transit has filed with us, and which we officially note, show a marked deterioration in the company‘s service. During May 1971, the company‘s driver force was only 16.8 below quota on a weekly average of 6.2 drivers-in-training. During May of this year, by contrast, the company was 42.7 drivers under quota on a weekly average, and had only a weekly average of 2.5 drivers-in-training. That this has impacted seriously on the adequacy of the company‘s service is clearly shown by the number of trip-blocks not operated:
A “trip block” represents the trips scheduled to be operated by a single bus on a single day. D.C. Transit Sys., Inc. (Order No. 1219), supra note 6, at 10 n. 10.
1971 1972 Week Of Trip Blocks Not Operated Week Of Trip Blocks Not Operated May 2 57 May 7 106 May 9 27 May 14 73 May 16 28 May 21 132 May 23 45 May 28 191 May 30 54
The Commission also discovered that its efforts to set fares which would meet the Compact‘s guidelines61 “has produced only frustration. For any fare that would cover reasonable expenses and provide a reasonable return would clearly not provide either the form or the substance of financial stability.”62 The Commission further concluded that it could not
assure, simply by adjusting the fare, the continued adequacy of the company‘s service. Experience, particularly since the last fare increase of July 1970, and the facts of record submitted in this case, demonstrate that even if the fare were to be increased in the full amount requested by D.C. Transit, little if any improvement could be expected in what has been shown to be the very unstable financial condition of this company.63
This state of affairs, Transit‘s application for higher fares, posed something of a dilemma for the Commission. In its words,
What we see in the future if we increase the fare and do nothing more, is continued instability and a deterioration in the level and quality of service offered. In these circumstances, raising the fare would be asking the ratepayer to meet his obligation to the company without requiring the company to meet its obligation to the ratepayer. We do not perceive the Compact or the Constitution as imposing a unilateral obligation on the ratepayer. Rather, we believe that the ratepayer and the company have a reciprocal obligation. We believe that obligation requires that the company give evidence that it can perform the services expected of it so that the ratepayer, in return for his contribution, will receive full value in the form of full services.64
The Commission then arrived at what it believed to be “the overriding and threshold question that we face in this case[:] can financial stability be restored to this company so that we may establish a rate which is ‘just and reasonable’ to all concerned?”65 In the Commission‘s judgment, “the answer lies in the willingness of the company to alter the capital and debt structures of the company in the manner suggested by the Loconto report, i. e. through the application of funds needed to correct the financial imbalance Loconto identified.”66
Thus the Commission came to frame directives to achieve the solution it deemed appropriate. Referring to the Loconto recommendation that $12 million be infused into Transit‘s capital structure during the future annual period,67 the Commission was “fully agree[d] that debt must be reduced, not increased, and therefore new buses should be purchased for cash.” It accordingly set $3 million for that purpose.68 Because Transit already held $620,000 in escrow for bus purchases, this meant a net of $2.4 million.69 Additionally, the Commission specified $4 million for reduction of outstanding debt.70 The aggregate of $6.4 million,
In the past, when we have directed the company to take certain actions, performance has not always been forthcoming. This is most notably true in the bus purchase program.72 We have no confidence that if we were to require the company to produce new revenue as a concurrent condition with granting a fare increase the new capital would be produced. Transit‘s attempt to assure us that they are taking some steps to correct the capital and debt situation are not sufficient. We will require assurances in the form of actual performance.73
The Issues
In succeeding parts of this opinion, we deal with the issues Transit tenders for decision. We have arranged them in a logical progression of inquiries, grouped in three categories. Those in the first group relate to the procedural regularity of the Commission‘s action. Was the Commission compelled to establish a lawful fare for the future, or was it free to promulgate an order of another type, within the period for which it suspended Transit‘s tariffs? Could the Commission, in exercising its ratemaking powers, permissibly investigate the economy and efficiency of Transit‘s operation and the adequacy of its service? Could the Commission, upon finding that economical, efficient and adequate transportation was not being afforded, direct corrective measures as a condition precedent to further consideration of a fare increase? We examine these problems in Part II. The next several issues involve the substantive validity of the orders. Do the reasons assigned for the Commission‘s directives survive claims that they lack evidentiary support? Do the Commission‘s findings pass muster? Were the Commission‘s preconditions legally warranted by the circumstances proven and found? We treat these matters in Part III. The last issue concerns the constitutional validity of the orders. Does due process of law require a regulatory agency to grant at least a break-even fare to a carrier found to be in default of its obligation to provide economical, efficient and adequate transportation? We resolve that question in Part IV.
II. PROCEDURAL VALIDITY OF THE ORDERS
Responsibility for Action Within Suspension Period
The Compact specifies mechanics for Commission consideration of fare changes proposed by regulated carriers. The process commences with the carrier‘s filing of a new tariff showing the changes it contemplates.74 The tariff
As we have mentioned, the Commission suspended Transit‘s alternate new-fare proposals for the full 120-day period permitted by the Compact. The parties are agreed, as are we, that the Compact then required the Commission to promulgate, within that period, an order which either (1) approved the new fares or which (2) appropriately (a) found these fares to be unlawful because “unjust, unreasonable, or unduly preferential or unduly discriminatory” and, in the latter event, which (b) proceeded to prescribe the “lawful rate.”80 Transit contends that the orders under review are invalid because they do not establish a “lawful fare” to be put into effect by the end of the authorized suspension period. The consequence, Transit argues,
We cannot accept Transit‘s theory. Within the suspension period indulged by the Compact, the Commission conducted and completed large-scale hearings on the new tariffs submitted by Transit and, by Order No. 1216, announced its decision as to those tariffs. In that order, the Commission found that Transit was derogating from its Compact obligation to furnish economical, efficient and adequate transportation service,82 and that, for that reason, Transit was not entitled to an adjustment of its fares upward unless and until it remedied the deficiencies.83 As Order No. 1216 expressly states, the Commission thus found that, under those circumstances, “the fares proposed by D.C. Transit System, Inc., [are] unjust and unreasonable.”84 Beyond that, the Commission not only turned down the increases sought by Transit but also specified the conditions which Transit must satisfy as a prerequisite to further consideration of any increase;85 and Order No. 1216 directs “[t]hat D.C. Transit System, Inc., shall continue to charge the regular route fares presently in effect.”86 That, we think, was necessarily a conclusion that the existing fare—that previously established by the Commission—was the “lawful fare” that must continue in force until those conditions are met and a further fare order is promulgated.87
That disposition accords with what we believe the Compact signatories had in mind when they formulated the scheme for Commission handling of new-fare applications. It seems clear that the time limitations on suspensions were designed to assure that the Commission would act on the carrier‘s proposals in some appropriate fashion within the 120-day period. It appears equally obvious that those limitations do not afford a guaranty that the rate-making process will necessarily run its full course during that period.88 The Com-
Where, however, the hearings firmly establish the need for action by the carrier as a precondition to a fare change, it becomes the Commission‘s responsibility to make, within the mandated period, an order to that effect. The Compact empowers the Commission not only to unconditionally grant or deny requests for new fares, but also “to issue . . . such orders . . . as it may find necessary or appropriate to carry out [the Compact‘s] provisions. . . .”89 That authorization imparts to the Commission‘s rate-making process more than enough flexibility to accommodate needs to implement the specific demands of the Compact by orders tailored to the exigencies of particular cases.90 Here, by the Commission‘s analysis, improved service and higher fares were interrelated problems demanding contemporaneous treatment,91 and as is evident could not possibly be accommodated within the suspension period. Furthermore, the Commission found that “until a new capital structure and debt structure are established, we cannot determine certain elements in the ratemaking formula. . . .”92 We hold that where, as here, the Commission had found a carrier remiss in its obligations to the traveling public, the Compact does not interpose an inexorable barrier to promulgation, within the time limits fixed, of an appropriate remedial order, nor does it automatically put proposed new fares into operation upon expiration of the period for which they were suspended.
Interrelationship of Service and Ratemaking Obligations
Interpreting pertinent provisions of the Compact,93 the Commission held that it is “required, in passing upon a rate application, to consider and weigh not only the interests of the company, including its right to a reasonable return on its investment, but also the interests of the public, including the public‘s right to economical, efficient and adequate transportation services.”94 This construction by the Commission of its own authorizing legislation would in any event command substantial deference in the courts.95 In our view, de-
The Compact directs and empowers the Commission to proscribe “just and reasonable fares,”96 an entitlement immensely valuable to the carriers it regulates.97 But the Compact also specifies that “[i]n the exercise of its power to prescribe [such] fares, . . . the Commission shall give due consideration” to four enumerated factors, among others,98 two of which have special relevance to the issue at hand. One is “the need, in the public interest, of adequate and efficient transportation service by [regulated] carriers at the lowest cost consistent with the furnishing of such service.”99 The other is “the need of revenues sufficient to enable such carriers, under honest, economical, and efficient management, to provide such service.”100 The parties to the Compact could hardly have more plainly mandated the well settled principle that ratemaking appropriately encompasses an examination and evaluation of the economy and efficiency of a public utility‘s operations101 and the adequacy of its service.102
sion of that service, but only to the extent needed under “honest, economical, and efficient management.”105 It is not entitled under the Compact to a fare raise irrespective of the quality of its operation and service. As the Commission, consistently with the weight of
Upon a showing that it is now providing, and may in the future reasonably be expected to continue to provide, the economical, efficient and adequate transportation service to which the public is entitled, the carrier, in turn, is normally entitled to a fare which will produce a reasonable return. But where, as in this case, the record demonstrates that the carrier is in default with respect to its obligations under Section 6(a)(3) of the Compact, it is not entitled to a fare increase as a matter of law.108
The Commission has both the authority and the duty to assure that this reciprocity is maintained in practice. We have had occasion in the past to point out that the mandate that “just and reasonable fares” be set is itself “a standard which has invariably imposed an obligation to balance the interests of both the utility and the consumers.”109 As the Compact makes evident, the Commission‘s charge extends to the caliber of the carrier‘s operation and service as well as to the financial reasonableness of the fares it collects.110 In the Commission‘s view, its “responsibility to protect the public interest is at least equal to
[its] obligation to consider [the carrier‘s] interest.111 In our own view, it is certainly no less.112
Authority to Precondition Fare Increase
The Commission is amply authorized to take action reasonably necessary to insure the performance of obligations which the Compact imposes on carriers. The Compact provides that it “shall be liberally construed to eliminate the evils described therein and to effectuate the purposes thereof.”113 As we have noted, the Compact also confers upon the Commission “power to . . . issue . . . such orders . . . as it may find necessary or appropriate to carry out” its provisions.114 Like the Commission, we find within the Compact a positive mandate, applicable to ratemaking proceedings as well as others, that carriers provide, economically and efficiently, adequate transportation for the traveling public.115
The orders under attack precondition further Commission consideration of any new fare increase for Transit upon the latter‘s acquisition of new capital in substantial amount.116 Satisfaction of that precondition, in the Commission‘s judgment, is essential to the economical and efficient provision of adequate trans-
Nobody seems to doubt the Commission‘s power to promulgate an order which simply directs a carrier to take measures necessary and appropriate to fulfillment of the Commission‘s responsibilities.118 Nor is there room for doubting the validity of an order which gives such a direction concurrently with a grant of a fare increase;119 indeed, the Commission has frequently issued orders of that type.120 The sole question at this point is whether the Commission can insist upon compliance with such a condition prior to further treat-
Preconditions to fare increases designed to assure quality of service have long been recognized. More than a half-century ago, the Commission‘s predecessor, the Public Utilities Commission of the District of Columbia, turned down an otherwise justified fare increase on a showing of inadequacy of the Carrier‘s service notwithstanding that operating losses were inevitable without the increase.121 Since then, commentators have advocated such preconditions,122 and regulatory agencies have imposed123 and courts have sus-
implement improved procedures to repair air-conditioners and utilize radio system); Alexandria, Barcroft & Wash. Transit Co. (Order No. 1101) (Nov. 13, 1970) (not yet reported), at 24-25 (allocate funds for a marketing and promotion program; institute direct service on specified routes); D.C. Transit Sys., Inc. (Order No. 1052), supra note 51, 85 P.U.R.3d at 12, 28 (Transit ordered to purchase buses); W. V. & M. Coach Co. (Order No. 1037) (April 23, 1970) (not yet reported), at 21 (employ additional supervisors and traffic checkers; expand telephone information services); D.C. Transit Sys., Inc. (Order No. 773), 72 P.U.R.3d 113, 133 (1968) (depreciation adjustment made contingent on Transit‘s compliance with order to purchase buses contained in same order); D.C. Transit Sys., Inc. (Order No. 245), 48 P.U.R.3d 385, 406, 416 (1963) (Commission directed Transit to order 82 new air-conditioned buses to be in service on or before October 1, 1963). Cf. Southeast Neighbors, Inc. v. Washington Metropolitan Area Transit Comm‘n, 464 F.2d 804 (D.C. Cir., 1972), at 808 n. 5.
We perceive no legal barrier to an order by the Commission, securely founded upon an evidentiary record, preconditioning a fare raise upon terms, calculated to safeguard the public interest in economical, efficient and adequate transportation.127 The legislative imposition of a grave responsibility ordi-
narily carries with it, as a matter of necessary implication, power to employ the means by which it may be discharged.128 In this instance, the signatories to the Compact incorporated that thesis in an express grant of administrative authority.129 By our measure, that authority to take action “necessary or appropriate to carry out” the Compact‘s provisions130—is broad enough to enable the Commission to meet its regulatory responsibilities in this case. As the Commission said:
We construe the Compact as vesting us with the necessary tools to enable us to discharge our responsibility to the public and insure that it obtains from carriers subject to our jurisdiction economic, efficient and adequate
service. Surely, Congress and the Compact signatories did not impose upon us a duty to consider and protect the public interest, on the one hand, and then fetter us with a statutory scheme so rigid and unyielding as to make impossible the responsible discharge of that duty, on the other hand.131
III. SUBSTANTIVE VALIDITY OF THE ORDERS
Sufficiency of the Evidence
The Commission found inefficiency in Transit‘s management, inadequacies in its service, and a relation of cause and effect between the two.132 These findings, as we have indicated, were based principally on data and analyses presented in the Loconto report and elucidated by Loconto as a witness at the hearings.133 Transit asserts that the findings lack substantial support in the evidence considered as a whole134 and, in that connection, that the Commission erred in crediting the evidence Loconto supplied. We deem these arguments unavailing.
Transit did not object to admission of Loconto‘s report in evidence, nor to his competence as a witness. It did not move to strike either the report or the testimony. For these reasons, the Commission, on Transit‘s application for reconsideration, felt that Transit‘s credibility objection came too late.135 It nonetheless examined the reasons in support of Transit‘s arguments and concluded that they were “wholly inade-
quate.”136 Transit did not include among the numerous assignments of error in its application for reconsideration any other specification that the findings on management inefficiency and service inadequacy were not sufficiently supported by the evidence.
The Compact confers upon those affected by final Commission orders the privilege of requesting reconsideration.137 The process is inaugurated by “an application in writing requesting a reconsideration of the matters involved, and stating specifically the errors claimed as grounds for such reconsideration.”138 The Compact provides, however, that “[n]o person shall in any court urge or rely on any ground not so set forth in such application.”139 We search Transit‘s application for reconsideration in vain for anything “stating specifically” an insufficiency of supporting evidence as a ground for disturbing the Commission‘s findings on the caliber of Transit‘s management and service.
The Compact requirement that errors charged on reconsideration be pinpointed is not an empty formality. It subserves the same considerations fostered by the companion rule that contentions to be urged on appellate review of judicial proceedings be properly raised and preserved in the trial court.140 Not the least of those considerations is the opportunity, through precise identification of the errors alleged, for administrative reexamination and correction prior to judicial intervention in the regulatory process.141 We have long
admonished that points not subjected to agency scrutiny during administrative proceedings will not normally be entertained on judicial review.142 That admonition, we have held, extends to claims that administrative findings are unsupported by substantial evidence.143 Transit‘s insufficiency-of-evidence argument is properly before us only on the challenge to Loconto,144 to which we now turn.No less in administrative than in judicial tribunals is it the factfinder‘s function to make the primary assessment as to the weight to be accorded particular items of evidence. Credibility determinations within the agency‘s sphere of expertise are peculiarly within its province, and courts will upset them only if made irrationally.145 Our canvass of Transit‘s objections to Loconto‘s report and testimony gives us no cause to overrule the Commission on that score. We are mindful that there was evidence from which the Commission arguably might have concluded that Transit‘s operations are economically and efficiently conducted and its transportation service adequate, but “it is not a valid objection that conflicts in the evidence might conceivably have been resolved differently, or other inferences drawn from the same record.”146 We sustain the Commission‘s findings on this branch of the litigation.
Basis for Imposition of Precondition
Transit argues strenuously that the Commission erred in constructing its funding requirement as a condition precedent to further consideration of fare increases rather than as a condition to be met concurrently with the enjoyment of higher fares. We do not agree. We have already satisfied ourselves that the Commission has power to impose preconditions as well as concurrent conditions in fare proceedings.147 We are also satisfied that the Commission was well within its regulatory province, after diagnosing Transit‘s financial sickness,148 in prescribing an effective rather than a doubtful cure.149 Our function as a reviewing tribunal is limited to determining whether the remedy selected by the Commission is arbitrary or unreasonable.150 The Commission‘s prescription easily survives that test.151
These reasons, in our view, amply sustain the Commission‘s decision to address the problem by conditions precedent to a fare adjustment rather than conditions concurrent therewith. The Commission was called upon “to look into the future and determine whether, if rates were adjusted, the public could be reasonably assured that the company would correct the inefficient and uneconomic method of operation which we had identified and provide the adequate service which is the riders’ due.”163 By the Commission‘s appraisal, “[t]he record showed that a fare adjustment alone would not remedy the situation and that if our only order was an adjustment in fares, the result would be continued financial instability and a deterioration in the level and quality of transportation service afforded the public.”164 “Mere exhortation had not been productive,” the Commission felt, and “drastic remedial action was required to bring the company‘s capital structure into balance to provide the stability necessary to achieve an efficient and economical transit operation.”165 We find no fault with the Commission‘s disposition of this aspect of the case.
To be sure, as Transit says, the Commission might have resorted to some other method of seeking compliance with the Compact‘s specifications respecting the quality of Transit‘s service. The Commission might, as Transit suggests, have ordered the capital changes it felt necessary and in the event of disobedience have gone to court to enjoin compliance.166 It might have set the debt-equity ratio it deemed appropriate and then established fares hypothetically on that basis;167 or it might have granted a fare increase with an accompanying requirement that Transit hold the disputed increment in a special reserve pending fulfillment of its Compact duties.168 Undoubtedly other techniques in the Commission‘s regulatory arsenal were available to ameliorate, in some degree at least, Transit‘s current fare plight consistently with an improved response to its service obligations.
These considerations, however are largely beside the point. The relevant inquiries relate not to the availability of alternatives or the wisdom of shunning
Referring to the precondition specified in Order No. 1216, the Commission added:Mindful of the fact that our responsibility to protect the public interest is at least equal to our obligation to consider Transit‘s interests, we hold that while we may grant a fare increase, and condition that increase on a carrier‘s satisfaction of the steps we have found necessary to insure future performance of its statutory obligation to provide economical, efficient and adequate transportation, we are not compelled to do so if we conclude, as we have in this case, that such an order will not provide sufficient assurance that the public will be protected.172
We discern no basis for reversing the Commission in this regard.We were forced to conclude that if fares were adjusted before the company produced the required funds, we would have no basis for insuring that they, in fact, would be forthcoming. This, we held, would be calling upon the bus rider to pay a fare to an inefficiently and uneconomically operated transit company without any assurance that the company would remedy those defects and fulfill its obligation to the rider by providing, in the future, efficient, economical, and adequate transportation. We declined to impose such a one-sided and unjust burden on the bus-riding public.173
We are not confronted on this review with any question as to the validity of the Commission‘s precondition arising from the carrier‘s inability to meet it. Transit did not contest Loconto‘s recommendation of preconditions during the hearings, and although Transit‘s application for reconsideration alleged a multitude of errors, it nowhere claimed impossibility of compliance. The Commission took note of that circumstance,174 as we take care to do now. Transit does state in its briefs, not that it cannot raise the $6.4 million which the precondition set, but that it cannot do so within a 90-day period175 without liquidation or sale of assets at prices below fair market value,176 but the statement assumes an erroneous premise. Order No. 1216 does not require performance within 90 days. It simply admonishes that performance more than 90 days removed might necessitate the making of a fresh administrative record to enable disposition of Transit‘s application for a fare increase.177 Indeed, Order No. 1219 explicates that “[i]n the event Transit elects not to comply with our precondition during the 90-day period following issuance of our main order, it is nevertheless free to apply for a rate adjustment whenever it does so comply, and to then ask us to use whatever portion of the present record may remain sufficiently fresh as to permit
IV. CONSTITUTIONALITY OF THE COMMISSION‘S ACTION
Asserting that at existing fares it will be operating at a substantial loss in the future, Transit lays claim, as a matter of constitutional right,180 to fares increased to a point which would enable the company to earn a fair return. The Commission recognized a probable need for additional revenues to achieve that level,181 but concluded that a demonstration of Transit‘s willingness and ability to provide, economically and efficiently, adequate transportation to the traveling public was a prerequisite to invocation of that doctrine.182 We are thus brought to the question whether the orders under consideration can stand consistently with the requirements of due process of law.183
It is, of course, well settled that a governmentally-fixed rate confining a public utility‘s return from operations to an amount below the point of confiscation violates due process.184 In
Our thoroughgoing research discloses that instances of denials or curtailments of rate increases because of poor service have been considered but infrequently problems reaching constitutional proportions. Where, however, the objection has been framed in terms of confiscation, quite uniformly it has been rejected.188 A similar position is evident from the more numerous decisions leaving increases ineffective pending service improvements notwithstanding that the utility was left at or below the break-even point in the meantime.189 In a real sense, then, these decisions incorporate the view, expressed or implicit, that the utility‘s fulfillment of its service commitments is a sine qua non to constitutional protection under confiscation principles. Like the Commission, we would be hard put “to assume that regulatory agencies, both in this jurisdiction and elsewhere, have engaged in unconstitutional proceedings for over a half century.”190 For reasons now to be explained, we believe that they have not.
It has long been recognized that the caliber of a utility‘s service need not remain a neutral factor in determinations as to its allowable return. The cases have consistently said that superior service commands a higher rate of return as a reward for management efficiency;191 more importantly for present purposes, they have also maintained that inefficiency and inferior service deserve less return than normally would be forthcoming.192 Much
So, in Reagan v. Farmers’ Loan & Trust Company, 154 U.S. 362 (1894),196 the Court took pains to make clear that it was notIt is agreed that the defendant‘s operating expenses for 1888 were $2,404,516.54. Of what do these operating expenses consist? Are they made up partially of extravagant salaries, —fifty to one hundred thousand dollars to the president, and in like proportion to subordinate officers? Surely, before the courts are called upon to adjudge an act of the legislature fixing the maximum passenger rates for railroad companies to be unconstitutional, on the ground that its enforcement would prevent the stockholders from receiving any dividends on their investments, or the bondholders any interest on their loans, they should be fully advised as to what is done with the receipts and earnings of the company; for if so advised, it might clearly appear that a prudent and honest management would, within the rates prescribed, secure to the bondholders interest, and to the stockholders reasonable dividends. While the protection of vested rights of property is a supreme duty of the courts, it has not come to this: that the legislative power rests subservient to the discretion of any railroad corporation which may, by exorbitant and unreasonable salaries, or in some other improper way, transfer its earnings into what it is pleased to call “operating expenses.”195
And in Smyth v. Ames, 169 U.S. 466 (1898),198 the Court put the point succinctly:laying down as an absolute rule, that in every case a failure to produce some profit to those who have invested their money in the building of a road is conclusive that the tariff is unjust and unreasonable. And yet justice demands that every one should receive some compensation for the use of his money or property, if it be possible without prejudice to the rights of others. There may be circumstances which would justify such a tariff. There may have been extravagance and a needless expenditure of money. There may be waste in the management of the road, enormous salaries, . . . . The road may have been unwisely built, in localities where there is no sufficient business to sustain a road. Doubtless, too, there are many other matters affecting the rights of the community in which the road is built as well as the rights of those who have built the road.197
Not surprisingly, then, the Court, in Bluefield Water Works and Improvement Company v. Public Service Comm‘n, supra note 184,[W]hat the public is entitled to demand is that no more be exacted from it for the use of a public highway than the services rendered by it are reasonably worth.199
We believe the constitutionality of governmental recognition of the interrelationship between fair return and quality service can hardly be doubted today. “Certainly,” as the Supreme Court said, “the due process clause of the Constitution is not violated when a Commission takes into consideration practical results to the public of advances which it has allowed in rates.”203 The context of that declaration was a rate proceeding which had culminated in a reduction of street railway fares from seven cents to six cents.204 The seven-cent fare had been achieved by an experimental increase from a previously existing five-cent charge for the same transportation.205 The regulatory agency had found that the six-cent rate afforded a reasonable return on the carrier‘s rate base and that it was “all or more than the reasonable value of the services being rendered to patrons.”206 The Court pointed out that “[t]he consideration of service as a justification for rates” had arisen “upon a comparison of the service of the Company under the five-cent rate and under the seven-cent rate,”207 and that the agency had “found that the 40 per cent increase of rate had been accompanied by a deterioration of service.”208 The Court also pointed out that “[s]ome factors in the bad service were beyond the Company‘s control” but that “others were found not to be without remedy by good management.”209 “That higher rates failed to improve, failed even to maintain, service” said the Court, “certainly removed one of the justifications for the increase which the Company was enjoying.”210 “So far as the public was concerned,” the Court added, “the experiment with the seven-cent rate yielded them no better immediate service and, because of the Company‘s policies, gave them no prospect of more permanent service.”211 The Court held that “[t]o the extent that the [agency] was influenced by considerations of the value of service in this case, we find nothing that denies the Company any rights possessed under the Federal Constitution.”212
The precise constitutional issue before us is whether the Commission exceeded the limits of due process when it made a fare raise contingent upon steps calculated to rectify serious deficiencies in the service Transit furnishes the busriding public. Transit‘s argument has one central theme: its revenues cannot be permitted to fall below the level of fair return, and surely not below the breakeven point, no matter what the circumstances, and even if its management is uneconomical and inefficient and its service inadequate. If Transit is correct, the Commission is powerless to sanction corrective measures by deferring further consideration of a fare increase. If Transit is correct, it may disregard its public responsibilities at will—as the Commission found that it has frequently done—216 and yet insist that the public respond to its demands for higher fares. We cannot accept that position. We do not believe the Constitution left the Commission impotent to deal with the situation confronting it in a sensible manner.
The Due Process Clause strikes a balance between competing governmental and private interests at the point of reasonableness. Action rationally subserving a substantial governmental concern draws condemnation on due process grounds only if it is arbitrary or unreasonable.217 The importance of the interests of three cooperating sovereigns in the quality of Transit‘s operations and service is manifest.218 On the record before us, it must be concluded that Transit has not met its public responsibilities in those areas.219 It must be accepted, too, that Transit can measure up if only it will,220 and that preconditioning further consideration of a fare increase upon remedial steps by Transit is the only method of assuring that the public interest will be protected.221 We cannot say that, in the circumstances here, the Commission‘s action in pursuing that course is either arbitrary or unreasonable.222 By the same token, we
In our view, the Constitution does not require more. In the aspects discussed herein, the orders under review are Affirmed.If, indeed, the company temporarily sustains a loss while it complies with our precondition order, it will not be because we have ordered it to do so, but because the effects of the company‘s past decisions have now impacted so seriously upon its statutory obligation to provide the public with efficient, economical and adequate transportation service as to require us to direct remedial measures as a precondition to any fare adjustment. The Constitution does not guarantee a public utility immunity from loss occasioned by uneconomic and inefficient management decisions, and we do not believe that it bars a regulatory agency on a record such as this from taking adequate steps to protect the public interest even if the short term effect of such an order is a temporary loss to the company. We made clear in our main order, and we take this occasion to reiterate, that as soon as Transit indicates its willingness to fulfill its statutory obligations to the public, we stand ready to insure that the public fulfills its reciprocal obligations to Transit.223
MacKinnon, Circuit Judge, concurring specially:
While I concur in the result here, I believe that the Commission, and to a certain extent our opinion, overstates the deficiencies of D.C. Transit. The overall situation has degenerated to the point where many blame Transit completely for the financial ills that have befallen it. Transit, in response, blames the Commission, encouraged by a vocal and irresponsible segment of the public, for refusing to provide the revenue needed for survival. To my view the responsibility for Transit‘s condition must be widely shared—there is merit to the contentions of all parties.
It is indeed true that Transit is presently in poor financial condition; and certainly the Commission, acting on behalf of the public interest it is bound to serve, is justified in seeking a capital structure for Transit that will reduce debt service expense and improve the overall financial stability of the company. But ordering Transit, in its ailing condition, to attract such large sums of new money may be analogous to a doctor ordering a patient who has just suffered a severe heart attack to get up and run a marathon. It may be possible to acquire new capital—I hope it is. But if Transit actually is as deficient in its operations as the Commission now contends, it may not be possible—investors are not generally attracted to poorly operated or failing ventures. I can join in the opinion of the majority affirming the Commission‘s decision here only because there is no basis on this record for concluding that it would be impossible for Transit to comply with the conditions imposed by the Commission.
It seems to me that the Commission could have been more helpful to Transit in attracting additional capital if it had determined the new fare (the Commission admits a fare increase is justifiable) and simultaneously suspended that fare pending satisfactory compliance with the conditions imposed here. Midwest Tel. Co., 23 P.U.R.3d 26, 31 (Ind. Pub. Serv. Comm‘n 1958); Riverside Grove Water Co., 20 P.U.R.3d 117, 120 (Calif. Pub. Util. Comm‘n 1957). That course of action would have provided potential investors assurance of a fare increase of pre-determined magnitude rather than having the question left to the vagaries of future Commission action. As Vice-Chairman Sullivan noted in his dissent to the Commission‘s order, that order leaves the Company—and potential investors—“dangling” in
Finally, I believe that the Commission‘s disposition of this matter is only temporarily valid because of the uncertainties left open by the present, inadequate, record. I do not consider that the Commission has fully faced the entire problem. It must eventually face up to the present need for more operating revenue, and it must eventually confront the issue of whether the conditions imposed by its order are possible of accomplishment or unreasonable by virtue of being impossible to meet. But these issues must be fully litigated before the Commission before they may be considered by us. While I thus believe that certain of the Commission‘s requirements appear to be somewhat unreasonable, there must be a fully developed record from the Commission before we could properly so find. Subject to these reservations I concur in the result reached by the majority opinion here.
v.
UNITED MINE WORKERS OF AMERICA et al.
Nos. 24560-24563.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 16, 1971.
Decided Aug. 3, 1972.
Notes
The average age of a Transit bus has risen from 6.96 years as of December 31, 1966 to 9.79 years as of September 30, 1971. We know that older buses are less comfortable for the passenger. More importantly, old buses have a higher incidence of mechanical and equipment failure than newer equipment, thereby providing the public with a less reliable, and consequently less adequate, transportation service. Coupled with the company‘s failure to employ sufficient drivers, mechanics and cleaners, and the marked increase in trips not operated, this is another factor which directly and materially impacts upon the adequacy of its service.D.C. Transit Sys., Inc. (Order No. 1219), supra note 6, at 11 n. 11.
D.C. Transit Sys., Inc. (Order No. 1219), supra note 6, at 9-10 n. 9 (citations inserted).In the first case which this Commission processed with regard to Transit‘s fares, we noted our concern “about the need for [Transit] to increase its equity in the business in order to insure the financial stability” of the carrier. [D.C. Transit Sys., Inc. (Order No. 245), 48 P.U.R.3d 412, 412 (1963)] In 1966, we reiterated this concern and again called upon Transit‘s management to remedy the situation. [D.C. Transit Sys., Inc. (Order No. 563), 63 P.U.R.3d 32, 42 (1966); D.C. Transit Sys., Inc. (Order No. 564), 63 P.U.R.3d 45, 65-67 (1966)]. At that time, however, we were able to conclude from the record then before us that Transit‘s financial structure had not interfered with its responsibilities “for rendering good service to the public.” [Id. at 65.] Even with that finding, however, we stated that “Transit‘s debt-equity ratio should not be allowed to deteriorate further.” [Id. at 66.] Two years later, we had occasion to disapprove two management decisions which resulted in a siphoning of cash into two subsidiary corporations, and we noted that “in the management of its cash working capital, the company‘s guiding principle must be the maximum protection of its ability to meet its obligations under its franchise, the Compact, and Commission orders.” [D.C. Transit Sys., Inc. (Order No. 773), 72 P.U.R.3d 113, 133 (1968)] In that same order, we concluded that management‘s decisions had not seriously affected the adequacy of the company‘s service, and we found reason to believe that the company had recognized its obligations to the public and would take action to meet those responsibilities in the future. [Id.] Even so, we urged Transit “to raise the cash needed for transit operations through their nonoperating properties, if no other sources are available.” [Id.] The next year, a similar exhortation was contained in our Order 984. [D.C. Transit Sys., Inc. (Order No. 984), 81 P.U.R.3d 417, 435 (1969)] Transit has thus been on notice of our concern for more than nine years during which, instead of taking steps to remedy the situation, it has deliberately allowed it to deteriorate.