the comparison between the service provided for the commodities, the board states in its "Discussion and Conclusions": This difference [in the level of rates] is not justified by transportation conditions, as the cost of service is identical, there is no competitive justification, and other transportation circumstances (such as value of service, loading and stowage characteristics, and susceptibility to loss or theft), afford no basis for the disparity in rates. [350 I.C.C. at 863.] This statement was made in the review board's discussion of the violation of section 3(1). However, it is equally relevant to a consideration of section 1(5). Although the board stated that the cost of service is identical, it did not discuss the cost studies submitted by complainant and the defendant railroads. In the appendix are the results of those studies, and, indeed, it can be seen in the columns marked "Variable Cost (or per) Cwt., that the costs are exactly the same for plate glass as for float glass.* ་་ It being established that the service provided plate glass and float glass are identical, identical, the question then becomes whether the defendants have justified the higher rates on plate glass. The review board, as stated in the above passage, found that they did not. Throughout this proceeding, the defendants have offered a variety of arguments for the different rate treatment of float and plate glass. They are (a) float glass takes, and properly so, the lower window glass rates which apply to unpolished glass, (b) plate glass always had a higher rate because it is a more valuable commodity than window glass, (c) the window glass rates are depressed to meet import competition, (d) other shippers, who like complainant are located east of the Rocky Mountain, were shipping significant amounts of plate glass to the west coast, (e) comparison of transcontinental plate glass rates with plate glass rates in territories east of the Rocky Mountains is improper because in those territories the rates are depressed to meet motor carrier competition, (f) the transcontinental territory has a unique rate structure as it involves the longest rail movements in the United States and is composed of commodity rates between large origin and destination groups, and lastly, (g) no prior complaint had been brought against the rates on plate glass. We find no merit in any of these arguments. First with respect to (a) and (b), that float glass takes the window glass rate because it is an unpolished glass, and that plate glass rates are higher than 4Complainant submitted two sets of results, one was its original submission and the other was in reply to criticism by defendants. window glass rates because plate glass is a more valuable commodity, has no relevance to the determination of reasonableness herein. As the review board stated, float glass takes the window glass rates because the TCFB tariffs have no specific description for float glass. 350 I.C.C. 858-9. It is a choice between "glass, plate, polished prism or polished wire," or "glass, window, other than plate." Id. [Emphasis added.] Since float glass is not polished, it is not considered a plate glass, and, therefore, more aptly fits the *** other than plate," description. The happenstance of a tariff description should not favor one commodity over another and render the relationship between them reasonable. What is in issue in this proceeding is the comparison, specifically, between plate glass and float glass, and not the comparison between plate glass and the more inclusive category of window glass. The comparison between plate glass is especially inappropriate because the premise for the higher plate glass rates is the higher value of that commodity, yet the record herein is clear that float glass has the same value and sells for the same delivered price as plate glass. Justification (c) fails for the same reasons, since the depressed level of the window glass rates due to import competition is a result of conditions with respect to that category generally and not float glass specifically. With respect to (d), the fact that other shippers were shipping significant amounts of plate glass to the west coast, does not negate the fact that the complainant had to endure a higher rate on plate glass, a circumstance that did not exist in any other territory. As for (e), just as the equalization of the plate and float glass rates in territories east of the Rocky Mountains may have been prompted by the circumstance of motor carrier competition affecting the movement of both commodities, so too are the circumstances in transcontinental territory identical and, therefore, any difference in rates is not justified. With respect to justification (f), the defendant railroads simply state that transcontinental territory is unique, but they do not tell us why this uniqueness should allow them to treat plate glass and float glass in different manner than any other territory. And lastly, (g) is unmeritorious because while the fact that a rate has gone unchallenged is relevant, it is not conclusive proof of its reasonableness. Deficit Rules, Watermelons, 269 I.C.C. 219, 228 (1947); Mayo Shell Corp. v. Boston & M. R., 296 I.C.C. 237, 239 (1955); Mode-O-Day Corp. v. Atchison, T. & S. F. Ry. Co., 325 I.C.C. 390, 396 (1965). We find, on further consideration that the assailed rates on plate glass, in addition to being unduly preferential and prejudicial as found in the prior report, were unjust and unreasonable; that complainant is entitled to reparations for charges assessed and collected thereunder for movements during the 2-year period preceding the filing of the complaint (September 20, 1971), with interest at 4.74 percent per annum." The complainant should comply with Rule 100 of the Commission's Rules of Practice (49 CFR $1100.100). COMMISSIONER MURPHY dissented. COMMISSIONER MACFARLAND did not participate. APPENDIX TABLE 1 Comparison of rates to mountain Pacific territory on plate glass with variable costs The rate of interest was computed pursuant to new section 15(8) (e) of the Interstate Commerce Act, on the basis of the average yield, on the date the first unlawful charge was paid, of marketable securities of the United States having a duration of 91 days. 355 I.C.C. TABLE 2 Comparison of rates to mountain Pacific territory on plate glass with Comparison of rates to mountain Pacific territory on float glass with variable costs Comparison of rates to mountain Pacific territory on float glass with Comparison of float glass rates to mountain Pacific territory with current costs |