176 F. Supp. 201 | D.D.C. | 1959
This is a suit to set aside an order of the Interstate Commerce Commission, dated March 2, 1959, and served March 13, 1959, granting an application by the Baltimore and Annapolis Railroad Company for a certificate of public convenience and necessity, pursuant to Section 207(a) of the Interstate Commerce Act, added by 49 Stat. 551 (1935), 49 U.S. C.A. § 307(a), to transport passengers
Safeway, the complainant, provides all existing bus service from Washington, D. C., to the National Security Agency, located on the grounds of Fort Meade, and to Fort Meade itself. Its first claim is that the Commission, in awarding the certificate to the Railroad, failed to make a basic finding that the existing service to these points is inadequate. Its further claim is that there was insufficient evidence on the whole record to support the Commission’s finding of inadequate service to the District Training School, which Safeway also serves. Finally, although Safeway does not provide service to Friendship International Airport, it claims that the existing service by limousine to Friendship is adequate, and that the Commission made no finding to the contrary.
The needs for service to the mentioned points were all the subject of testimony and were carefully considered by the Commission. Certainly, Safeway has no grievance concerning the National Security Agency, since it is clear that the Commission specifically declined to permit the Railroad to service the Agency. As to the other points served, we think that the Commission’s basic finding that the existing service “between Washington and Glen Burnie, including that to the District Training School, is patently^ inadequate,”
Safeway further urges that this court set aside the order because the Commission acted contrary to the mandate of Section 8(b) of the Administrative Procedure Act, 60 Stat. 242 (1946), 5 U.S.C.A. § 1007(b), in failing to make specific findings as to the competitive effect the grant of the certificate would have on Safeway. There is no indication from the record before us, however, that the petitioner’s present demand for specific findings on this subject was ever urged before the Joint Board, the Division, or the Commission.
As a third point, Safeway contends that the Commission erred in not ordering the Railroad to accede to Safeway’s request, made in the course of the proceeding, that a joint through route be established from Glen Burnie to Washington. Safeway contends that Section 216(a) of the Act, added by 49 Stat. 558 (1935), 49 U.S.C.A. § 316(a), imposes a duty on “every common carrier of passengers by motor vehicle to establish reasonable through routes with other such common carriers * * But such a duty is not absolute, see Crown Coach Co. v. United States, D.C.W.D.Mo.1942, 44 F.Supp. 547, 550, and is subject at least to a determination of what is reasonable under the circumstances, see Wolzinger v. Burlington Transportation Co., 1943, 43 M.C.C. 51, 53. The appropriate and usual procedure to bring about the establishment of such a through route is by a complaint filed under Section 216(e) of the Act, added by 49 Stat. 558 (1935), 49 U.S.C.A. § 316(e).
Safeway’s final objection relates to the Commission’s failure to consider the harmful competition to the charter and other special bus operations already existing in the Washington area which would follow from the present grant. The Commission takes the position that chartering privileges are incidental to a grant of regular route authority under Section 207(a) and arise automatically under Section 208(c) of the Interstate Commerce Act, added by 49 Stat. 552 (1935), 49 U.S.C.A. § 308(c).
Having reviewed the administrative record, including the recommended report of the Joint Board, the report of Division 1 of the Commission, and the report of the Commission, as well as the testimony taken in the proceedings, we are satisfied that the Commission did not exceed its authority, and had a rational basis for its action, when it granted the Railroad’s application. For these reasons, the injunctive relief sought will be denied, and the complaint will be dismissed.
. ICO Docket No. MC-102299.
. The Commission went on to state that— “[P]assengers on public vehicles are subjected to inconvenient, time-consuming, and sometimes expensive interchanges, and prospective passengers are discouraged from using the existing public transportation services. On the other hand, a rather widespread desire for the proposed service exists.”
. The Commission in its opinion enumerates only the following points of contention raised by Safeway and Greyhound in their petitions for reconsideration:
“In their respective petitions Safeway and Greyhound contend that the Division erred (1) in finding a public need for the proposed service, (2) in finding present interchange arrangements unsatisfactory, (3) in finding that applicant is not in the position of a new entrant into a competitive field, (4) in finding that a need has been shown for the proposed operation, incidental charter rights notwithstanding, (5) in failing to find that deficiencies in the existing service can be eliminated by joint through-service with Safeway and applicant or by a connecting line service with Greyhound and applicant, (6) in failing to find that the proposed service would be uneconomical, and (7) in disregarding the resulting competitive effect on the charter and special operations of carriers in the Washington area.”
. Section 216(e) provides in part as follows:
“[T]lie Commission shall, whenever deemed by it to be necessary or desirable in the public interest, after hearing, upon complaint or upon its own initiative without a complaint, establish through routes and joint rates, fares, charges, regulations, or practices, applicable the transportation of passengers by common carriers by motor vehicle, or the max-ima or minima, or the maxima and mini-ma, to be charged, and the terms and conditions under which such through routes shall be operated * *
. Safeway itself recognizes the difficulties involved in raising a through route proposal in a Section 207 (a) proceeding. In its brief it states:
“Under the complaint procedure of Section 216(e) of the Act, 49 U.S.C.A. § 316 (e), the complaining carrier which seeks to compel through routing with a connecting carrier must sustain the burden of establishing public convenience and necessity. Obviously the complaint procedure would be out of place in the instant situation where it is the Railroad which argues for the existence of publie convenience and necessity while Safeway, on the other hand, argues against their existence.”
. Section 208(c) provides:
“Any common carrier by motor vehicle transporting passengers under a certificate issued under this chapter may transport in interstate or foreign commerce to any place special or chartered parties under such rules and regulations as the Commission shall have prescribed.”