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All that is required of a contract carrier filing a minimum rate is that such rate be actually maintained and charged for the traffic of at least one shipper. This leaves the contract carrier free to charge higher rates to other shippers and to pick and choose as it pleases among such shippers. If the competitive opportunity of common and contract carriers is to be put on a more realistic basis, the contract carrier's actual charges to shippers should be made public.
The ICC in its report to the committee opposed section 12 (a) principally for the reason that it would conflict with or be inconsistent with the provisions of section 220 (a) which permits the ICC to require filing of contracts but forbids their publication except as part of the record in a formal proceeding where such action would be consistent with the public interest and 222 (e) which forbids disclosure of business transactions to competitors of a shipper. The Department does not believe there would be any conflict with section 220 (a) because the ICC need publish only the actual rates and there would be no need for publication of the contracts. However, if the committee feels there is a conflict, this can be avoided by amending section 220 (a) (p. 197).
Neither does the Department believe that there would be any conflict with section 222 (e) but this too, if necessary, could be avoided by amending section 222 (e). The Department does not agree with the ICC view that the policy of affording the shippers' secrecy is nec. essary. It feels that this secrecy must be removed if common and contract carriers are to be placed on a truly competitive basis. The fact is that a competing carrier is harmed by rates above this minimum for these are the rates that are actually being charged to shippers. The competing carrier may not be able to meet the minimum rate actually charged to one shipper, but he may very well be able to meet rates charged to other shippers, if he knew what those rates were (p. 198).
The purpose of the amendment made by section 16 is to enable common carriers by water or other forms to compete more effectively with contract carriers by water. Contract carriers by water, just as contract carriers by motor vehicle, have greater flexibility in rates than their common-carrier competitors since they are only required to file their minimum rates. Common carriers by water are, therefore, in no better position to ascertain the actual rates charged by contract carriers. In view of this, there would not seem to be any logical reason why identical treatment should not be accorded contract carriers by motor and water insofar as the filing of rates "actually maintained and charged” is concerned.
Requiring contract carriers by water to file rates actually maintained and charged, or in the alternative the actual contracts covering the transportation, as proposed by section 16, would help stabilize the domestic water-carrier industry and equalize the opportunity to bid for competitive traffic.
The Department's discussion of the same question as to motorcontract carriers, is applicable here (p. 200).
The ICC itself has said in various decisions the minimum rates of contract carriers are, in fact, not rates at all in the common-carrier sense of the term” but are “simply a floor for the charges actually to be made." Under these circumstances, the Department does not understand why the ICC objects to being given authority to obtain in
formation which is necessary for a proper administration of the act (p. 1751).
The Department has great difficulty in understanding why it would be considered inappropriate for contract carriers to file and publish the rates which they actually charge.
There is no doubt about the contract carrier being a competitor of the common carrier. Nor should there be any doubts about the competition being conducted on an unequal and unfair basis so long as the common carrier is unable to determine what his competitor is charging.
No extended discussion is necessary in order to see that the public interest will be served by giving the common carrier the opportunity to meet, if he can, the price competition of contract carriers (p. 1752).
(Sinclair Weeks, Secretary) The National Industrial Traffic League objected to the provisions which would require the Commission in prescribing a contract-carrier rate to determine that such rate would not give advantage or preference to the contract carrier in competition with any common carrier subject to the act.
The Contract Carrier Conference of the American Trucking Association also objected to the provision as being in conflict with the objective of the revised national transportation policy to encourage full competition and reduced economic regulation (p. 1752).
The Department agrees that the objections of the National Industrial Traffic League and the Contract Carrier Conference are meritorious.
Although it is the objective of the proposed legislation to provide additional freedom of ratemaking to common carriers in order to furnish equality of opportunity to those who are dependent upon common carriers, it is not intended that determinations of the lawfulness of the minimum rates of contract carriers be based upon the rates, rules, regulations, or practices of common carriers.
It appears, therefore, that the provision should be modified so as to relieve the Commission of this obligation. The Department suggests language designed to accomplish this objective (p. 1753). [The Department of Commerce submitted an amendment relating to minimum rates for contract carriers by motor vehicle which struck out all on page 26 of the bills between the word "Such” in line 3 and the word "carriers" in line 11. A similar amendment relating to contract carriers by water was also submitted which struck out all on page 36 of the bills between the word "Such” in line 12 and the word *carriers" in line 20 (R. 1758-1759).] Other proponents
ASSOCIATION OF AMERICAN RAILROADS
(J. Carter Fort) The railroads coneur with the views expressed by Mr. Philip A. Ray, General Counsel of the Department of Commerce, concerning the publication of rates or contracts by contract carriers (R. 572).
TRANSPORTATION ASSOCIATION OF AMERICA
(George P. Baker) In the association's opinion, the making public of minimum rates does not give common carriers the information they are entitled to have as to the exact charges of their for-hire competitors, and hence we favor this proposal. Such a change in the law would not increase the jurisdiction of the regulatory agencies to regulate the level of contract carrier rates. Their power in this respect would remain limited to the prescription of minimum rates. Contract motor and water carriers should be required to file, adhere to, and make public the rates they actually charge (R. 356). Additional proponents
Intercoastal Steamship Freight Association, Harry S. Brown (R. 1051-1052).
North Dakota Public Service Commission, John M. Agrey (R. 797). Opponents
A. FILING OF ACTUAL RATES
AMERICAN FARM BUREAU FEDERATION
(Matt Trigss) The federation is opposed to the regulation of contract-carrier rates. It is impractical and fallacious to compare contract with corresponding common-carrier rates. Contract carriage is tailored to meet the specific needs of a shipper, and if those needs can be met more economically by contract carriers, there is no reason why the Commission should concern itself with such rates (R. 1226).
CONTRACT CARRIER CONFERENCE
(Clarence D. Todd) The only reason which has been advanced for the proposal to require contract carriers to file their “rates or charges" instead of "minimum rates or charges actually maintained and charged," is that the contract carriers now have an opportunity to conceal their rates to the detriment of common-carrier competitors. However, under existing law, contract carriers are required to file minimum rates "actually maintained and charged." There are no hidden charges.
To permit motor contract carriers to file a copy of their actual contract for public inspection in lieu of a schedule, if the names of shippers are shown in connection therewith, would be a violation of section 222 (e) providing that it shall be unlawful for "any motor carrier" knowingly to disclose or permit to be acquired by any person other than the shipper or the consignee, any information concerning the nature, kind, quantity, destination, and so forth, of any property tendered or delivered to such carrier for transportation, which may improperly disclose his business transactions to a competitor (R. 1277--1278).
INTERSTATE COMMERCE COMMISSION
(Anthony F. Arpaia) The proposed amendment to require motor contract carriers to publish and post rates actually maintained and charged, or in the alternative the actual contract or contracts is inconsistent with other provisions that the Commission shall not make public any such contracts or the terms thereof, except as a part of the record in a formal proceeding, and that make it unlawful for any motor carrier knowingly to disclose or permit to be acquired by any person other than the shipper or the consignee any information concerning the nature, kind, quantity, destination, and so forth, of any property tendered or delivered to such carrier for transportation, which may improperly disclose his business transactions to a competitor. Contract carriers do not have one set of rates. To identify different sets of rates as being for specified shippers would be inconsistent with the other provisions.
It is our opinion that no departure is warranted from the present policy of affording to shippers secrecy regarding their business transactions to the greatest extent possible. Contract carriers presently are required to publish and file, in schedules open to public inspection, the minimum rates which they are actually charging. The schedules also list the names of shippers with whom the carrier has contracts, but this listing is not connected with any rates. If any competing carrier or shipper is of the opinion that the published minimum rates are below the level of reasonableness, they may challenge those rates in a complaint proceeding and the Commission may require them to be raised. If the proposal to permit the filing of actual contracts in lieu of schedules is adopted, there would have to be a modification of section 218 (c) which, both as now worded and as proposed to be worded, authorizes the Commission to suspend schedules but not contracts. The Commission does not favor the amendment proposed (R. 277-278).
Presently water contract carriers are required to publish schedules of minimum rates or charges only, and this is sufficient since they have the statutory duty only to observe reasonable minimum rates. The proposal would have them publish either the rates or the contracts in force, with the objective of full publicity. It would conflict with provisions in section 313 (b) and 307 (g), and the Commission is not in favor of its enactment (R. 280).
NATIONAL INDUSTRIAL TRAFFIC LEAGUE
(William H. Ott) The league has previously approved the filing of schedules of minimum rates or charges actually maintained by contract carriers. The proposal would eliminate "minimum" and make the filing requirements now provided for common carriers apply also to contract operations. Such common-carrier requirements are entirely inappropriate for contract carriers. The requirements should be stated separately in language based upon the necessities of each type of operation (R. 937).
CONTRACT CARRIER CONFERENCE
(Clarence D. Todd)
The conference is opposed to amending section 218 so as to make contract carriers subject to section 217 of the act. Such an amendment would give the Commission power to prescribe "nondiscriminatory rates and charges" for contract carriers. This would be inconsistent with the definition of a contract carrier and with the regulations which the Commission has imposed on such carriers. Every difference in rates does not constitute an unjust discrimination; such discrimination exists only when the transportation performed and the circumstances surrounding the transaction are substantially the same.
If the service performed by contract carriers is to be a special and individual one as required by the new definition, then substantially the same service would be required by any other shipper. Therefore, by the very nature of the contract carrier's individual service, it would not be able to unjustly discriminate between shippers even though it might be charging different shippers different rates.
The concept of unjust discrimination, and that of contract carriage. are entirely inconsistent, because the prohibition against undue discrimination is designed to require carriers who serve the public to treat all shippers alike under the same or similar circumstances, whereas the law and regulations governing contract carriers are designed to limit the service offered to particular classes of shippers and receivers (R. 1278-1279).
Under the existing law only the provisions of part II of the act apply to contract carriers. The first amendment to section 218 (b) would make it necessary for the Commission, in prescribing a contract carrier rate, to give consideration to the rates of all forms of transportation subject to the jurisdiction of the Interstate Commerce Commission. Such requirement is not only unnecessary but it is in direct conflict with other provisions of the bill. There is little or no relationship between the rates charged by contract motor carriers and those charged by railroads, water carriers, and freight forwarders. It is in direct conflict with the national transportation policy, which declares that free enterprise, full competition, reduction of economic regulation, and the encouragement of fair and impartial regulation are all to be encouraged.
The change in the definition of a contract carrier would place such carriers in direct competition with private carriage and would practically eliminate the competition between common and contract carriers. If the contract carrier is to successfully compete with the private carrier it must be in a position to institute rates which are competitive with the cost of private transportation, and the Commission in considering the reasonableness and lawfulness of such rates should be in a position to give consideration to the effect of prescribing a rate on the movement of the traffic by the contract carrier (R. 1279-1280).