service opportunities without an undue fear of thereby becoming entrapped in ever broader service obligations. In each case where the discontinuance of an unsuccessful service is opposed by those using it, there must be a careful consideration of the actual necessity for the service, and of the burdens incurred by the carrier in providing it. The goal must be to enfo.ce true common carrier obligations where they exist or have arisen through commercial necessity, without unduly inhibiting the carriers from implementing service improvements or innovations that may contain unforeseen problems. Finally, we will make some observations for guidance in the disposition of other proceedings that have been held in abeyance pending the resolution of the instant cases. The effect of our decision herein is that respondents may file consignee-unloading tariffs for transportation of the traffic involved without also having to file tariffs with carrier-unloading provisions. Moreover, inasmuch as no general requirement for maintenance of carrier-unloading provisions on loose and carcass meats had ever been imposed prior to these proceedings, there is no existing general requirement that such provisions be maintained. This is not to say that a carrier could not be subjected to such a requirement in another proceeding upon a different set of circumstances than was shown here. However, the need for such a requirement would have to specifically appear upon the record in that proceeding, and would have to be sufficiently substantial to warrant a result different from the one reache in the present proceedings. FINDINGS AND ORDER We find that it is not a commercial necessity for the respondents to provide an unloading service in the transportation of the loose and carcass meat traffic affected by the consignee-unloading provisions of the tariffs at issue, and that, with respect to such traffic, respondents are not required to maintain tariff provisions for carrier unloading in addition to provisions applicable for consignee unloading. We further find, that in all other respects the findings of our previous report are not at issue upon further consideration and are affirmed without further discussion herein. COMMISSIONER MURPHY, dissenting, in part: I am in agreement with the majority except to the extent it finds that respondents have not justified the proposed changes. For the reasons stated in my separate expression, Unloading Restrictions on Meats & PHP, 349 I.C.C. 189, 201-202, I continue to be of the firm belief that respondents have met their burden of proof. COMMISSIONER HARDIN did not participate. It is ordered, That the motion of Geo. A. Hormel & Co., et al. to strike the verified statement filed October 18, 1976, by Refrigerated Transport Co., Inc., be, and it is hereby, granted, and the said statement be, and it is hereby, stricken. It is further ordered, That, as ordered in our previous report respondents be, and they are hereby, required to cancel the tariff schedules described in docket Nos. 35054 and 35054 (Sub-No. 1), and in Investigation and Suspension Docket Nos. M-22756 and M22756 (Sub-No. 1), to the extent found unlawful therein, upon not less than 30 days' notice to the Commission and to the general public by filing and posting in the manner prescribed under section 217 of the Interstate Commerce Act. It is further ordered, That the proceedings in docket No. 35054 (Sub-Nos. 4 and 5), be, and they are hereby, discontinued. APPENDIX Tariffs setting forth the consignee-unloading rules under investigation in these proceedings: In No. 35054: Joint tariff: Central and Southern Motor Freight Tariff Association MF-I.C.C. No. 337 and Southern Motor Carriers Rate Conference MF-I.C.C. No. 1443, item 4610E, supplement 30, page 3. Cancels flagouts of the following carriers from an existing consignee-unloading rule: Belford Trucking Co., Inc. Bilyeu Refrigerated Transportation Corporation Bonney Motor Express, Inc. Colonial Refrigerated Transportation, Inc. Commercial Carrier Corporation Greenstein Trucking Company 357 I.C.C. Clay Hyder Trucking Lines, Inc. Thompkins Motor Lines, Inc. Watkins Motor Lines, Inc. Wilson Brothers Truck Line, Inc. Hennis Freight Lines, Inc. Hennis as operator of Hancock Trucking, Incorporated Motor Carriers Traffic Association, Inc., Agent, MF-I.C.C. No. 789, item 460A, supplement 8, page 4. Cancels flagouts of the following carriers from an existing consignee-unloading rule: Alterman Transport Lines, Inc. Argo Collier Truck Lines Corporation, MF-I.C.C. No. 64, item 175, second revised page 40. Central and Southern Truck Lines, Inc., MF-I.C.C. No. 42, item 525, second revised page 27. Watkins Motor Lines, Inc., MF-I.C.C. No. 115, item 188, second revised page 23. In No. 35054 (Sub-No. 1): Distributors Service Co. (a Corporation), MF-I.C.C. No. 21, item 12-1, sixth revised page 27. Safeway Truck Lines, Inc., MF-I.C.C. No. 48, item 43, fifth revised page 47. In No. 35054 (Sub-No. 4): Curtis, Inc., MF-I.C.C. No. 31, item 190, fourth revised page 85. In No. 35054 (Sub-No. 5): Indiana Refrigerator Lines, Inc., MF-I.C.C. No. 19, item 6, original page 7-A. In I. & S. No. M-22756: Coldway Food Express, Inc., MF-I.C.C. No. 3, item 205, third revised page 22. Eastern Central Motor Carriers Association, Inc., Agent, MF-I.C.C. No. A-322, items 45 and 50-C, supplement 12. Midwest Emery Freight System, Inc., MF-I.C.C. No. 14, item 130, first revised page 10-A; MF-I.C.C. No. 33, item 130, first revised page 43A; MF-I.C.C. No. 299 (Emery Transportation Company Series), item 290, tenth revised page 29. Motor Carriers Traffic Association, Inc., Agent, MF-I.C.C. No. 789, item 462, supplement 10. Refrigerated Food Express, Inc., MF-I.C.C. No. 11, item 110, second revised page 14; MF-I.C.C. No. 34, item 120-B, supplement 5; MF-I.C.C. No. 36, item 120-B, supplement 4; MF-I.C.C. No. 40, item 115, second revised page 14; MF-I.C.C. No. 42, item 115, second revised page 15; MF-I.C.C. No. 48, item 120, second revised page 18; MF-I.C.C. No. 57, item 120, second revised page 22. Subler Transfer, Inc., MF-I.C.C. No. 78, item 900, second revised page 51. In I. & S. No. M-22756 (Sub-No. 1): Indiana Refrigerator Lines, Inc., MF-I.C.C. No. 20, item 6, eighth revised page 10. No. 36348 PINTO TRUCKING SERVICE, INC. v. CAPE Certificate of Convenience and Necessity issued to Cape Air Freight, Inc. in docket No. MC-134906 (Sub-No. 7) interpreted and found to grant radial rather than nonradial authority. Accordingly, items 550, 650, 830, 870, 1020, 1040, 2450, 2500, 2600, 2650, 2675, and 2680 of Tariff MF-I.C.C.-12, issued December 6, 1974, to be effective January 6, 1975, ordered canceled. Cease and desist order issued. Complaint dismissed in all other respects without prejudice to a refilling in conformity with the Commission's Rules of Practice. Gerald K. Gimmel for complainant. John M. Nader for defendant. DECISION AND ORDER At a Session of the INTERSTATE COMMERCE COMMISSION, Review Board Number 4 (Members FitzPatrick, Shaw, and Fisher) held at its office in Washington, D.C., on the 11th day of March 1977. Upon consideration of the complaint and record in the abovecaptioned proceeding, including: the initial decision of the Administrative Law Judge, the exceptions filed by defendant, and the reply filed by complainant; and It appearing, That the Administrative Law Judge found that the authority granted defendant in paragraph 2 of its Sub-No. 7 certificate is radial in character, and that a cease and desist order should be issued against defendant's continued treatment of the involved authority as nonradial in character, and that defendant's published tariff items identified in the initial decision should be canceled; It further appearing, That, in its exceptions, defendant alleges the Administrative Law Judge erred in going beyond the four corners of the certificate for interpretation in the absence of ambiguity; in refusing to apply the doctrine of the last antecedent as set out in T. I. McCormack Trucking Co., Inc.-Investigation, 110 M.C.C. 499, and Leonard Bros. Trucking Co., Inc.-Investigation, 120 M.C.C. 762; and in rendering a decision prior to a court order in a proceeding involving an identical issue in the United States District Court for the District of Kansas, docketed as Interstate Commerce Commission v. Cape Air Freight, Inc., et al., docket No. 75-260-C2; It further appearing, That the precedent cited by defendant is not pertinent here; that the plain meaning of paragraph (2) of defendant's Sub-No. 7 certificate authorizes the radial transportation of certain commodities between base points in a described radial area and does not support the interpretation urged by defendant which would permit crosshauls within the described radial area; and that the Administrative Law Judge's interpretation of defendant's certificate is consistent with the unambiguous language used in granting radial authority in a single paragraph in the customary fashion and with Commission precedent, and the Commission has primary jurisdiction to construe and interpret its own certificates, see Akers Motor Lines, Inc. v. Malone Freight Lines, Inc., 53 M.C.C. 353, 357, affirmed Malone Freight Lines v. United States, 107 F. Supp. 946, affirmed per curiam, 344 U.S. 925. And it further appearing, That the defendant's exceptions do not show any material errors in the Administrative Law Judge's statement and evaluation of the facts, his conclusions of law, and findings; do not raise any material matters of fact or law not adequately considered and properly disposed of by the Administrative Law Judge in his initial decision; and are not of such a nature as to require the issuance of a report by this board discussing the evidence and the arguments advanced in light of the exceptions; Wherefore, and good cause appearing therefor: We find, That the evidence considered in the light of the exceptions and the reply does not warrant a result different from that reached by the Administrative Law Judge; and that his statement of facts, conclusions, and findings, as supplemented above and as modified below, being proper and correct in all material respects, should be, and they are hereby, affirmed and adopted as our own. It is ordered, That in adopting the initial decision as our own, the following changes be, and they are hereby, made in the initial decision: (1) On sheet 1, in the syllabus, line 5, strike "HF-I.C.C.-12" and insert "MF-I.C.C. 12" in lieu thereof. (2) On sheet 6, second full paragraph, line 3, strike "Case" and insert "Cape" in lieu thereof. (3) On sheet 6, second full paragraph, last line, strike "76-260-C2" and insert "75260-C2" in lieu thereof. |