Appendix — National Trailer Convoy, Inc. v. United States

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APPENDIX A

UNITED. STATES DISTRICT COURT

N. D. OKLAHOMA .

‘No. 67-C-150

Nationa, Trarer Convoy, Inc., et au, Plaintiff's,

; Vv.

Unirep States or America, and INTERSTATE CoMMERCE

Commission, Defendants...

Nov. 21, 1968

Action to enjoin. and set aside Interstate Commerce

Commission’s granting of application for permit authoriz-

ing interstate operation as a contract carrier. The case

-was remanded to the Interstate Commerce Commission for

further findings, 227 F.Supp. 730. On review after, re-

mand, the District Court, Murrah, Circuit Judge, held that .

interstate contract motor carrier applicant’s proposed serv-

ices of making’ repairs to damaged mobile homes before.

towing them, connecting electrical. and plumbing facilities

when delivering homes to an owner’s‘or dealer’s lot and

setting up ‘‘expando trailers’’ constituted ‘‘transportation

services’? within’ meaning of the contract carrier pro-

visions of the Interstate Commerce Act.

Affirmed.

Te ye Oe ome,

2a |

Gable, Gotwals, Hays, Rubin & Fox, Tulsa, OkL, Rice,

. Carpenter & Carraway, Washington, D.C., Belnap, Spencer,

Hardy & Sweeney, Chicago, Ill., William J. .Lippman,

Galland, Kharasch, Calkins & Titouin, Wrape & Te

Washington, D. C., for plaintiffs.

Donald F. Turner, Asst. Atty. Gen, John H. D. Cee

Atty., Dept. of Justice, Washington, D. C., Lawrence. A.

McSoud, U. 8. Atty., Tulsa, Okl., Robert W. Ginnane and

Raymond M. Zimmet, Interstate Commerce Commission,

Washington, D. C.; for defendants. 7

_W. T. Brunson and Charles D. Dudley, Oklahoma City,

Okl., Todd, Dillon & Sullivan, Washington, D. C., for in-

os idaiaaseien

FINDIN GS OF FACT AND MEMORAN DUM. DECISION -

Before Murra, Circuit Judge, and Bouanon and ‘Bar-

row, District Judges.

- Murra, Circuit Judge.

When this case was previously. before this Céurt we re-

“Imanded it to the Interstate Commerce Commission for

findings whether the services offered in the contract motor

carrier application ‘were ‘‘transportation services’’ within

the meaning of the Interstate Commerce Act, 49 U.S.C. °

§ 303(a)(15). National Trailer Convoy, Inc. v. United

States, 227 F.Supp. 730 (N.D. OkL., 1964). Upon remand

the Commission, on consideration of the original record

and withept:further evidence, determined that these serv-

ices were ‘transportation services’? within the meaning

of the Act and again ordered issuance of the permit. From

this ruling plaintiffs National Trailer Convoy, Inc., Morgan

. Drive-Away, Inc.,.and The Regular Common Carrier Con-

ference of Aiperionn Trucking Associations, Inc., filed peti-

tions for reconsideration. These petitions were denied by

the Commission. Plaintiffs seek review of this order and

report.

- Ba

The applicant, Griffin Mobile Home Transporting. Co., is —

a new corporation formed to carry on interstate contract

- earriage of new, used, or damaged mobile homes. Its ma-

jority stockholder is holder of a current intrastate permit

for the same contract carriage to and from points within -

Oklahoma. To qualify as a contract carrier by motor

vehicle in interstate commerée the applicant must have

- *€eontinuing contracts with one person or a limited number

of persons * * * (b) for the furnishing of transportation

services designed to meet the distinct need of each in-

dividual customer.’’ [Emphasis — 49 U.S.C. § 303

(a) (15). es

At the outset it is important to remember that judicial —

review of orders of the Interstate Commerce Commission

is governed by the Administratiye Procedure Act, 5 U.S.C...

§706, Ace Lines, Inc. v. United States, 197 F.Supp. 591

(S3.D.Iowa, 1960), and is thus limited to inquiries into

‘ issues of Constitutional limitations, statutory -authority,

and sufficiency of the evidence to support the findings of

fact of the agency. .Winter Garden Company v. United

States, 211 F.Supp. 280 (E.D.Tenn.N.D.,'1962). This case

will be reviewed in this context, |

The plaintiffs’ first contention is that the Commission

abused its discretion in denying their petition for recon-

sideration. The basis for this petition, as argued to this

-Court, was that some of the shippers and dealers who ap-

peared in support-of the application were no longer in‘

business. Théy seem to think this should be sufficient to

reopen the case for further hearings. Case law clearly

enunciates the’ principle that the granting or denying

of a petition for reconsideration rests within the sound

discretion of the ‘agency and that their denial of such a

petition will only be reversed for clear abuse of discretion.

United States v. Pierce Auto Freight Lines, 327 U.S. 515,

66 S.Ct. 687, 90 L.Ed. 821 (1945); and Interstate Com-

RPA SEMI TIN PRE Ey Terme pace Net BE

' .

eee ee eee bea ee ry

- 4a

merce. Commission v. Jersey City, 322 U.S. 503, 64 S.Ct.

' 1129, 88 L.Ed. 1420 (1943). In the latter case Mr. Justice

Jackson, speaking for the Court, observed ‘‘[I}t has been

almost a rule of necessity that rehearings were not matters

of. right, but were pleas to discretion: And likewise it

‘has been considered that the discretion to be invoked was

that of the ony making the order, and not that of a.

reviewing body.”’ © | a

Summary denial of such a petition is appropriate and

‘‘further findings and conclusions are unnecessary if it is

clear that the Commission gave due consideration to the

petition.’? Colorado-Arizona-California Express, Inc. v.

United States, 224 F.Supp. 894 (D.Colo., 1963). In this

case the Commission, in its order denying the petitions

7 ‘for reconsideration, stated that ‘‘no sufficient or proper

cause appears for reopening the proceedings for recon-

sideration or to receive additional evidence.’’ And the

plaintiffs have failed to show wherein or in what way the

grounds for their motion for reconsideration would require

the Commission to reconsider its order. Absent such show-

_ ing we cannot say that the Commission has abused its

discretion.

In its application for a contract motor carrier permit,

Griffin offered, among other things, the following services

-in-addition to the pure ‘transportation’? of the mobile

homes : ae

(a) faking such repairs to damaged trailers before

towing them as would be necessary for safe towing:

on the highways,

(b) connecting the electrical and plumbing facilities

when delivering to an owner’s or dealer’s lot, and

1 Expando trailers can be expanded to larger dimensions at desti-

nation points or folded up for. towing on the highway. |

The Commission found, and the evidence showed, that these .

three services were not available from the protesting com-

mon carriers. .The Commission was of the opinion that

“IT The specialized services [supra] programmed by ap- |

plicant are incidental to the movement of the house trailers

from one place to another and are necessary to the complete

effectuation of the matter in chief.’?’ 103 M.C.C. 501: It

thus found these services to be transportation services with-

in the meaning of the Act in accord with our remand. : Na-

tional Trailer Convoy, Ine. v. United States, supra.

Plaintiffs argue that the Commission did not have sub-

stantial evidence “upon which to base this finding and the

finding should, therefore, be set aside. But this argument

. overlooks the fact that these findings necessarily involve

the interpretation of eritical language in a statutory

scheme by an agency charged with its administration. As

such we are bound to accord it great weight. If the admin-

istrative construction is not wholly incompatible with the

purpose of the Act we must accept it even though we would

have reached a-different result if the question had arisen

‘in the first instance in judicial: proceedings. Udall -v.

Tallman, 380 U.S. 1, at 16, 85 S.Ct. 792, 13 L.Ed.2d 616

(1965), cf: Garvey v. Freeman, 397 .F.2d 600 (C.A.10,

1968). The Interstate Commerce Commission, not. this

Court, is charged with responsibility for the administra-

tion of the Act. As Judge Breitenstein has reminded us

‘‘{T]he delineation of what are transportation services

is particularly within the competence and expertise of the

.-Commission.’’ National Trailer Convoy, Inc., supra.

As we have seen, one of the prime purposes of the con-

tract carrier provisions of the Interstate Commerce Act, as

gleaned from Section 203(a) (15), is to provide ‘‘transpor-

tation services designed to meet the distinct need of each ©

individual customer.’’ The statute does not require that

these services be necessary but rather that they be designed

See aT a ae

mre eo arr mes 2

WEBB eit poeste Be oe

to meet individualized transportation needs.. The terms

“<services’’ and ‘‘transportation’’ are defined to ‘‘include

all vehicles * * * together with all facilities and property

* * * used in the transportation of passengers or property

* * * or in the performance of any service im connection

therewith.’? [Emphasis added.] 203(a) (19). The services

offered by Griffin meet all of these tests in that as a whole,

they were designed with. the specific transportation needs

of the supporting. shippers and: dealers in mind and thus

qualify under the Act as ‘‘transportation services”’.

The plaintiffs raised only two other issues of possible

merit. These were (a) that the Commission did not have

sufficient évidence upon which to. base its finding that the —

-applicant was fit and able to perform the specialized serv-

ices and (b) that these services were merely devices to

reduce transportation rates. These.two issues were first

raised in this Court and come too late. Conley Electronics

Corp. v. F. C. C., 394 F.2d 620 (C.A.10, 1968). ©

The decision of the Commission is affirmed.

‘APPENDIX B

/ UNITED STATES DISTRICT COURT

N. D. OKLAHOMA

Civ. A. No. 5760

Nationa TRamer Convoy, Inc, Plaintiff's,

and

Morean Drive-Away, Inc., and Transit Homzs, INc.,

intervening, Plaintiffs,

Unrrep STATES OF. Amentca, and INTERSTATE COMMERCE

‘ Commission, Defendants. -

and | ,

GRIFFIN MosILE Home TRaNsportTING Company, Intervening,

Defendant. -

March 20,1964. -

Action to enjoin and set aside Interstate Commerce Com-

mission’s granting of application for permit authorizing

interstate operation as a contract*carrier. The District

Court, Breitenstein, Circuit Judge, held that distinctign

must be made between shippers’ transportation and non-° °

transportation needs in determining whether contract car-

- rier application should be granted, and, before Commis-

sion may give weight to shippers’ distinct needs, it must

determine that those needs ‘ertain to a transportation ©

service.

Order set aside, and case remanded for proceedings in.

accordance with opinion:

Bohanon, Je, dissented.

~n.

RAPA TPE Noreen ny Ter

‘

Harold G. Hernly, Washington, D. C., Louis I. Dailey,

Wrape & Hernly, Washington, D. C.,.and Memphis, Tenn.

-and J. C.. Pinkerton Pinkerton & Pinkerton, Tulsa, Okl.,

for plaintiff. ;

James KE. Lesh, Lesow & Lesh, Indianapolis, Ind., and .

J.C. Pinkerton, Tulsa, Okl., for intervening plaintiffs. ,

William H, Orrick, Jr, Asst. Atty. Gen., Washington,

D. C., John M. Imel, U. S. Atty., Tulsa, Ok, Lionel

Kestenbaum and Michael I. Miller, Dept. of Justice, Wash- ~

ington, D. C., for defendant United States of America.

Robert W. Ginnane, Gen. Counsel, and Thomas H. Ploss,

Washington, D. C., for defendant I. C. C. | :

_ W. T. Brunson and Charles D. Dudley, Oklahoma City,

Okl., for intervening defendant.

Before Brerrenstetn, Circuit Judge, and Bonanon and

Barrow, District Judges. |

er BrEITENSTEIN, Circuit J udge.

This action is to enjoin and set aside a report and order

of the Interstate Commerce Commission (Commission) en-

tered in its Docket No. MC-124190, Griffin Mobile Home

Transporting Co., Contract Carrier Application.’ Over

the objection of the plaintiff and the intervening plaintiffs,

herein referred to collectively as protestants, the Com-

mission granted to intervening defendant, herein referred

to as applicant, a permit authorizing interstate. operation

as a contract ‘carrier, by motor vehicle over irregular

routes, of house trailers between points in Oklahoma and

‘points in 33 other states. . The issue is whether the Com-

- mission erred in giving consideration to certain services

offered by the applicant, desired by the shippers, and not —

supplied by the protesting common carriers. } |

1 The Commission report is published at 91 M.C.C. 801.

: 9a-

The facts are not in dispute. Applicant proposes to

assign a vehicle with driver to the exclusive use of each :

of five supporting shippers. Each driver will normally

serve a single shipper: The-drivers will set up the teailers

at ‘the point of destination, ‘‘a Service which might entail .

blocking, unblocking, ais dinette sets or other fur-

niture, connecting electrical and plumbing services, making

minor repairs, and expanding ‘expando’ trailers.’ 2

The protestants, all common carriers, are authorized to

serve the area, have suitable equipment, and will perform .

all the offered services except making repairs, connecting

electrical and plumbing facilities, and preparing expandos.

The excepted services are said to be of a nontransportation

nature and not proper for consideration by the Commis-

sion in determining the right to the permit.

The sérvices in question are variously referred to in the

Commission report as ‘‘accessorial,’’ ‘ancillary, me Seg.

_“ ditional,’’ and ‘‘personalized.’’ The name to be given them

is not important. For purposes of identification we shall

_ refer to them as special services.

The examiner said that there was erit in the argument

that ‘‘certain of the accessorial services te be performed

by applicant exceeds those normally tonnegted with trans-

' portation.’”? He expressed the opinion that a service ‘to.

meet a shipper’s distinct need ‘‘must involve services

normal to the industry and incidental to transportation,’’

and his recommedation was that the application be denied.

The Commission accepted the examiner’s findings of fact

‘but rejected his recommendation. —

In its report the Commission did not delienitinn “whether

the special services were transportation or nontransporta-

291 M.C.C. 802. An ‘‘expando’’ trailer ‘eait be expanded to

larger dimensions at destination points or folded up for towing

on the highway. A certain amount of training and specialization

is needed to properly assemble and disassemble the ‘‘expando’’

trailers.. —

My ae ™

PPR TIOE RI

tion in character. Instead it said* that the primary issue

‘Ceoncérns the weight to be accorded to these various serv-—

ices.’® The protestants contend that the special services

maybe given no weight because they relate to nontrans-

portation activities. The applicant and the ‘defendants

argue that the special services must be given weight be-.

cause they. relte to the distinct needs of shippers but they

‘carefully refrain from arguing that such services pertain

to transportation. In this posture of the case we must

determine whether in acting upon an application for a

contract-carrier permit, the Commission may give con-

sideration to nontransportation services needed by shippers

and offered by applicants.

After the decision in United States v. Chsbeni Steel

Carriers, Inc., 350 U.S. 409, 76 S.Ct. 461, 100 L.Ed. 482,

holding. that_a contract carrier did not, become a common

carrier because it reached for new business within the

limits of its license, the Commission, concerned over the

relationship between these two types of carriers, proposed

amendments to the Aet.*| The purpose was to revise the

definition of contract carrier and to cover related matters.

a *y of the-1957 amendments are pertinent here.

" Beetion sence Nomad which defines contract carrier, was

amended to read: : .

.‘¢The term ‘contract carrier by motor vehicle* means

any person which engages in transportation by motor.

vehicle. of passengers or property in interstate or

foreign commerce, for compensation (other than trans-

portation referred to in paragraph (14) of this sub-

$91 M.C.C. 803. : |

*See Interstate Commerce Commission v.. J-T Teemapert Co.,

Inc., 368 U.S. 81,-85-86, 82 S.Ct. .204, 7 L.Ed.2d 147; and Senate

Report No. 703, 85th Cone, . 1st Session, U.S.Cong. News "57, pp.

1599, 1601, 1604.

549 U.S.C. § 303(a) (15).

— ’ * n.Peigiedie 2 dyaits Le Aes

lla

‘

section and the exc&ption ‘therein), under continuing

contracts with one person or a limited number of per- .-

sons either (a) for the furnishing of transportation

services through the assignment of motor vehicles

for a continuing period of time to the exclusive use of

each person served or (b) for the furnishing of trans-

portation services designed to meet the distinet ‘need

of each individual customer.”’

Section 209(b)* covers the it issuance of permits to contract

carriers and was amended in 1957 by the addition of the

following: _

—_— .

‘‘In determining whether ieounnee of a permit will be

consistent with the public interest and the national

transportation’ policy declared in this Act, the Com-

mission shall consider the number of shippers to -be

served by the applicant, the nature of the service pro-

posed, the effect which granting the permit would have

upon the services of the protesting carriers and the

effect which denying the permit would have upon the

applicant and/or its shipper and the changing char-

—~ acter of that shipper’s requirements.’’ |

| These 1957 amendubente were reviebes by the Supreme.

Court in, Interstate Commerce Commission v.:J-T Trans-

port Co., Inc., 368 U.S. 81, 82 S.Ct. 204, 7 L.Ed.2d 147.

‘In that case TT sought contract-carrier authorization for ~

certain aircraft parts, and common carriers protested as-

serting their — to meet the shipper’ s needs.” The

€49 U.S.C. § 309(b).

™The J-T decision involved two separate contract-carrier appli-

eations. One Reddish sought a contract-carrier- permit on the

ground that he could better serve customers who ordered less-than-

truckload amounts. The Commission refused to follow the recom-

mendation of the examiner and denied the permit for reasons simi-

lar to those in the. J-T case. “The Supreme Court similarly held

‘that the Commission wés in error.

‘Yaa

examiner recommended the grant of the permit but the’

Commission denied it saying that the applicant had not

shown the existing service of-the other carrier to be in-

adequate. The Supreme Court held against the Commis-

sion saying that the standard is not whether existing

' services are ‘‘reasonably adequate’’ but whether a shipper

has a ‘‘distinct need’’ for a different or more select or

‘more specialized service, and that: ‘‘The protesting car-

riers must show they can fill that ‘distinct need,’ not, that

; they can proven a ‘reasonably adequate service.’ ’’®

“The J-T case-is not decisive of the issue bere presented

because in J-T no question was raised as to the trans-

portation nature of the services and the Court was not -

required to decide whether the Commission could consider

nontransportation services.

To support its order now under consideration the Com-

mission relies heavily-on two provisions of the 1957 arnend-

ments. It points out that under the § 203(a) (15) definition

. a contract carrier is a person who engages in interstate

transportation of persons or property for compensation

under continuing contracts ‘‘for the furnishing of trans-

portation services one to meet the distinct need of .

each individual customer.’ Emphasis is placed on the

term ‘distinct need’? without differentiating between a

distinct transportation need and a distinct need which is

unrelated to transportation. ©

The language is plain and unambiguous. The contracts -

-are to furnish transportation services. Such services, arid .

only such services, are to meet the distinct needs of the

‘customers. .The reference to transportation Services re-

- stricts and limits the language which follows.

The Commission also relies on the second criterion ap-

pearing in § 209(b), which says that in determining the

8 368 U.S. 91, 82 S.Ct. 210, 7 L.Ed.2d 147.

a 13a

right of a contract earrier to a permit, the Commission.

shall consider ‘‘the nature of the service proposed.’’ This

is said to require consideration of the nature of the.service

as related to the distinct‘needs of the customer. If we

are correct in our interpretation of § 203(a)(15) that the

needs referred to are transportation needs, the error of

the Commission i is apparent.

The context of § 209(b) supports our view. Before set-

ting forth the criteria which shall be considered, the statute

says that a contract-carrier permit may be issued W, among

- other things, ‘‘the proposed operation * * * will be con-

sistent with the public interest and the national transporta-

tion policy declared in this Act.’’* -As we read the declara-

tion of national transportation policy it is confined to

transportation services. Further, the jurisdiction of the

Commission under Part II of the Interstate Commerce Act

®* The national transportation policy, as declared in the Act, 49

U.S.C. preceding § 301 reads: ‘‘It is hereby declared to be the na-

tional transportation policy of the Congress to provide for fair

and impartial regulation of all modes of transportation subject to

the provisions of this Act [chapters 1, 8, 12, 13 and 19 of this title],

so administered as to recognize and preserve the inherent ad-

vantages of each; to promote safe, adequate, economical, and effi-

cient service and foster sound economic conditions in transporta-

tion and among the several carriers; to encourage the establish-

ment and maintenance of reasonable charges for. transportation

services, without unjust discriminations, undue preferences or ad-

vantages, or unfair or destructive competitive practices; to coop-

erate with the several States and the duly authorized officials

thereof ; and to encourage fair wages and equitable working condi-

tions ;—all to the end of developing, coordinating and preserving

a national. transportation system by water, highway, and rail, as

well as other means, adequate to meet the needs of the commerce

of the United States, of the Postal Service, and of the national de-

fense. All of the provisions of this Act shall be administered and _

“enforced with a view to carrying out the above declaration of

policy. ” ”

Sadie. bes

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(Motor Carriér Act) is stated thus in -§ 202(a) of the

aan: |

‘‘The provisions of this aasithe apply to the trans-

portation of passengers or property by motor carriers

engaged in interstate or foreign commerce .and to the

procurement of and the provisions of facilities for such

transportation, and the regulation of such transporta-

tion, and of the procurement thereof, and the provision

of facilities therefor, is vested-in the Interstate Com-

merce Commission.’ —— — . >»

The parties all find comfort in Commission decisions

antedating the 1957. amendments. The. scales are about

- equally weighted: None of the selected Commission orders

were: subjected to court review. We deem it unnecessary

_ -to ‘choose between the variety. of decisions, all of which

seem to have been made on an ad hoc basis. In the J-T.

decision, and in reference to the 1957 amendments here

under consideration, the Supreme Court said:"

‘We cannot assume that Congress, in iia the _

statute, intended to adopt the administrative construc-

“tion which prevailed prior to the amendment.’’

The, references made to the legislative history. are not

helpful. We find nothing specifically pertaining to the

issue before us. The Senate Report’* emphasized the in-

adequacy. of the existing law ‘‘to maintain peer dis-

_tinctions between common and SouEERES carriage,’’ and

, concluded. thus: -. a.

“Your committee is. of the’ opinion that the public

interest in a sound transportation system, and par-

10 49 U.S.C. §302(a).

* 368. U.S. 89, 82 S.Ct. 209, 7 L.Ed.2d 147.

‘8U.S.Cong. News: 57. pp. 1604, 1605.

l5a

ticularly in a stable and adequate system of common

carriage,.in the light of the objectives of the national

transportation pony, require that the bill, as amended,

be passed.”’

The continued emphasis of the Senate Report is on trans-

portation with an intent to protect common carriers and

retain the advantages of the contract carriers.. Wé¢ find

nothing to indicate that Congress meant to give contract

carriers the advantages which would ensue from furnish-

_ ing nontransportation services.

The needs of shippers are varied and diversified. Some

of these needs relate to transportation and some do not.

The property transported has to be readied for use or sale.

Activities pertaining to sale are beyond the scope of trans-

. portation. Activities pertaining to use may or may not

_. be within the realm of transportation. The picking up

and packing of household goods at the. point of. origin

and their placement in position for use at destination have

overtones of transportation. On the other hand the serv-

icing of automobiles after delivery from the factory to a

local dealer would seem to be divorced from transportation.

Difficulty in drawing the line does not justify rejection of

the statutory standard.

The Commission report here under attack does not dis-

tinguish between transportation and nontransportation

needs of the shippers.. We are of the opinion that the

statute requires that, the distinction be made and that

before the Commision may give weight to the shippers’

distinct needs it must first determine that those needs

‘pertain to a transportation service. In the case under

consideration it made no such determination. We decline

. to make the determination in advance of Commission ac-

tion. The delineation of what are transportation services

is particularly within the competence and ‘expertise. of the

ED ROI sin

16a

Commission. The Commission should make the determi-

nation in the first instance and its decision then may be

reviewed by the courts.

The order of the Commission is set aside and the case

is remanded for further action by the Commission in ac-

cordance with the views herein expressed.

This opinion sufficiently states the findings of fact and

- con¢lusions of law of the court. Further findings of. fact

and conelusions of law are not necessary.. The clerk will

enter an appropriate judgment.

Bonanon, District Judge (dissenting}.

| feel compelled to dissent from the views eapieoe Ie |

the majority opinion.

~The facts as stated, and. the applicable ‘iesiution, are as

set forth in the majority opinion.

I feel that the specialized services offered to be rendered

by the Petitioner to the supporting shippers are services so

closely connected with, and particularly suited to meet the

transportation needs of the supporting shippers that these

services should be considered as an incident to ‘‘furnishing

of transportation services * * * designed to meet the dis-

_ tinct need of each individual customer.’’ It is my view

that the transportation services and the attendant serv-

ices offered by the applicant come within the purview and

meaning of Section 203(a)(15) of the Interstate Commerce

Att and the majority Biel in my opinion, is unduly

restrictive.

| adopt as a part of this Opinion the er of the

Commission, in No. MC-124190, Interstate Commerce Com-

mission-Griffin Mobile Home Transporting Company, con-

‘tract carrier application, reported and published at 91

‘M.C.C. 801. I think the language used by Commissioner

17a Ne | a

Tucker at page 804 of the Report is particularly apt, where

he said:

‘‘We would be closing our eyes to the realities of the

situation if we were to refuse to consider the total

' requirement of a shipper supporting a contract car-

rier’s application. To ‘do so would be to deprive

the shipper of the complete, personalized services

which it needs, thus, in all likelihood forcing it to mi-

tiate or continue a proprietary trucking operation;

a form of motor transportation which contract car-

riage ought to be free, completely and satisfactorily,

to replace.’’

I woul thaidfiors, affirm the Report and Decision of the

Interstate Commerce Commission.

SOE Se

POI EERIE 6, PLN Ne me PoE Pele

re eee

18a

_ APPENDIX C

INTERSTATE COMMERCE COMMISSION |

No. MC-124190

GrirFin Mosite Home Transportine Co.

Contract CaRRIER APPLICATION

Decided January 9, 1963 ¥

Operation by applicant, under contract with named ship-

pers, as a contract carrier by motor vehicle, over ir-

regular routes, of house trailers between points in

_ Oklahoma, on the one hand, and, on the other, points

in 33 States found to be consistent with the public

interest and the national transportation policy. Is-

suance of a permit approved upon compliance by

applicant with certain conditions.

ee —_— and Charles D. Dudley for applicant.

James E. Lesh, John E. Lesow, and Bill R. Privitt for

protestants.

REPORT OF THE COMMISSION

: Drviston: 1, Commissioners McPuHerson, Buss,

AND TUCKER

TUCKER, Commissioner:

Exceptions to the order recommended ” the examiner

were filed -by applicant, and certain protestants replied.

Our conclusions differ from those recommended.

By application filed February 5, 1962, Griffin Mobile

Home Trahsporting Co., of Midwest City, Okla., seeks a

permit authorizing operation, in interstate or foreign com-

19a ,

, e : .

merce, as a contract carrier by motor vehicle, over irregular

routes, of house trailers between points in Oklahoma, on

the one hand, and, on-the other, points in Alabama, Arizona,

Arkansas, California, Colorado, Florida, Georgia, Idaho,.

Illinois, Indiana, Towa, Kansas, Kentucky, Louisiana, Mich-.

igan, Minnesota, Mississippi, Missouri, Montana, Nebraska,

Nevada, New Mexico, North Dakota, Ohio, Oregon, South

Carolina, South Dakota, Tennessee, Texas, Utah, Washin-

ton, Wisconsin, and Wyoming. Morgan Drive-Away Inc.,

Transit Homes, Inc., and National. Trailer Convoy, Inc.,

_ opposite the application.

‘The examiner recommended that the application be de-

nied. On exceptions, applicant contends that there is no

requirement that a service offered by a contract carrier

must be solely a ‘‘transportation’’ as distinguished from

an ‘‘accessorial’’ service to’ warrant consideration in de-

termining whether such service is better suited than that -

-of opposing carriers to meet the distinct needs of the

supporting shipper ; that the examiner incorrectly relied —

upon the decision in Petroleum Carrier Corp. Extension

—Panama City, Fla., 82 M.C.C. 573, as that case involved ~

an application for common carrier authority ; that pro-

testants cannot meet the reasonable transportation require-

ments of the shippers; and that the application should be

granted. Morgan Drive-Away and Transit Homes jointly

reply that the examiner properly concluded that the ac-

cessorial services which applicant offers to supply are

not connected with transportation services; that protestants

can provide any ‘transportation service required; and that

the application was correctly denied by the examiner.

We find the statement of facts in the. examiner’s report

to be complete and accurate in all material respects, and

we adopt it as our own. Portions of his report are set

out as an appendix hereto. :

Applicant -which now owns five tractors, proposes to

assign a vehicle with driver to the exclusive use of each

= Es Win RRS AM

« .

OEE ON. ee

POL TOIT MOE

WEB rer oe oe oie

20a

of the five supporting shippers, and it would obtain ad-

ditional power equipment if needed. Its drivers would nor-

mally devote their services to 2 single shipper, thus be-

. coming familiar with his particular needs and demands.

They would set up the trailer on the dealer’s lots or at

the purchaser’s homesite, a service which might entail

blocking, unblocking, assembling dinette sets or other fur-

niture, connecting electrical and plumbing servicés, making

minor repairs, and expanding ‘‘expando’’ trailers. An

‘‘expando”’ trailer is one with a room that either slides

out, folds out, or attaches to the side of a trailer coach,

and it is towed with the same power .equipment .utHized

for the transpurtation of other trailers. It is constructed |

so that it can be expanded to larger dimensions at desti-

nation points or folded up for towing on the highway. A

certain amount of training and specialization is required

in order to. properly an and disassemble the ‘‘ex-

pando”? trailers.

Protestants have the requisite authority to serve the

proposed area; they possess equipment suitable for this

transportation; and they would provide all the aforemen-

’ tioned services except repairing trailers, connecting: elec-

trical and plumbing facilities, and expanding the ‘‘ex-

-pando”’ homes, all of which they consider te be accessorial

services entirely foreign to transportation activities.

We agree with the examiner that the proposed operation

would be that of’a contract carrier within the purview of

section 203(a)(15) of the Interstate Commerce Act, as

applicant proposes to serve a limited number of shippers

and assign motor vehicles and drivers -to the exclusive

use of. each for a cofhttinuing period of time. In determin-

ing whether a grant of contract carrier authority would

be. consistent with the public interest. and the national

transportation policy, we are required by section 209(b)

of the act to consider the number of shippers to be served.

‘by applicant, the nature of the proposed service, the effect

2la a Na eee

which grating the application would have upon the serv-:

_ ice of opposing carriers, the effect which denying the

-permit would have upon applicant and its supporting

shipper; and the changing character of the shipper’s re-

quirements. These criteria have been considered at length

in Interstate Commerce Commission v. J-T Transport Co.,

368 U.S. 81, and Moyer Contract Carrier Application, 88 :

M.C.C. 767.

The proposed operation, if the attendant accessorial

services are considered, is a highly specialized one in that

applicant proposes to provide not only over-the-road trans-

portation services but certain additional services not of-

fered by the opposing carriers or common carriers in

general. The primary issue raised on exceptions and to

be regolved in this proceeding concerns the weight to be -

accorded to these various services in determining whether

a grant of authority herein would be consistent with the

public interest and thé national ‘transportation Policy.

Protestants, while asserting their abilty and willingness -

to meet the shippers’ ‘‘normal’’ transportation needs, do

_ not assert that they can provide the ancillary service here

proposed. “They contend that applicant’s case depends

almost entirely upon the offer of nontransportation, ac-

cessorial services which existing carriers have no obliga-

tion to furnish, and which are not matters to be considered

in determining shipper’ s transportation requirements or

whether protestants are able and willing to provide these

transportation services. They cite and rely on Petroleum

Carrier Corp. Extenston—Panama City, Fla., 82 M.C.C.

573. That case involved an application by:'a motor common

carrier which proposed to allow the consignee to use its

vehicles in spreading asphalt, a service protestant was

not willing to supply. In denying the = division

1 stated, 82 M.C.C. at pages 575-6:

The use of a carrier’s vehicles in the spreading opera-

tion constitutes a separate and distinct service from

lj 0

SE ere i ee,

22a

that of transportation. Compare Sweeton Common

Carrier Application, 47 M.C.C. 418. The auxiliary

Service proposed by applicant would, if allowed as

the basis for the grant of authority, encourage those

seeking, to enter the transportation field to propose

novel nontransportation services as a means of thwart-

ing the effort of existing carriers to provide economical

and efficient service within the scope of .their* au-

thorities. Na

Applicant siteonte to distinguish ¢ the Petroleum Car-

rier case on the ground that it. involves the application

of a common carrier, arguing that the distinction, between

transportation services and accessorial services made there

should not be carried over to contract carrier applications.

But this distinction has been drawn in at least one con-,

tract carrier application, H. Messick, Inc., Extension—

Carthage, Mo., 83 M.C.C. 1, in which divisions 1 refused

to accept as relevant applicant’s willingness to allow the |

supporting shipper to use its trailer for storage purposes,

‘and denied the application. This decision relies upon the

Sweeton and Petroleum Carrier cases, and does not contain

any specific discussion of the question whether a contrary

result might be justified in a situation where a contract

carrier service is proposed. .The Messick case is now

pending before the entire Commission. on petitions for

reconsideration. 3

We have frequently had ‘occasion to consider the nature

of a contract carrier service as ‘distinguished from a com- y

mon carrier service. The service provided by a contract

carrier has always been looked upon as being akin to

private carriage, and as being "one particularly closely

_ adapted to the needs of the contracting shipper. Section

203 (a) (15) refers to transportation services ‘‘designed to

meet the needs of each individual customer,’’ and the Su- |

preme Court in-the J-T Fransport case stressed this

aspect of contract carriage. On the other hand, we have

e a

repeatedly pointed out that a common carrier is in no

way precluded from providing highly specialized services,

so long as it holds out the same services, through an ap-

propriate tariff publication, to the public at large. The

common carrier, however, is not obligated to provide such -

services, and we think the Petroleum Carrier case and

others of similar import (e.g., Feaster/ Trucking Service.

_ Inc., Extension—Crude Oil, 81 M.€.C. 114, and E. Brooke

Matlack Inc., Extension—Flour in Bulk, 89 M.C.C. 76) cor-

rectly refuse to consider this point when evaluating the

willingness and ability of a common carrier to render a

. reasonably satisfactory transportation service. In a con-

tract carrier application; however, this is not the end of .

the matter. The Supreme Court has pointed out in the

J-T Transport. case, 368 U.S. at page 92, that even though

opposing common ¢éarriers are able to provide reasonably —

adequate service, a grant of a permit may be consistent

with the public interest and the national transportation

. policy because the ‘‘distinct need’’ of the supporting ship-

per might not be as well served. by. protestants as by

applicant. We would be closing our eyes to the realities

of the situation if we were to refuse to consider the total

requirement of a shipper supporting a contract carrier’s

application. To do so would be to deprive the shipper of

the complete, personalized service which it needs, thus,

in all likelihood,.forcfhg it to initiate or to continue a

proprietary trucking @peration: a form of motor trans-

portation which contract carriage ought to be free, com-

pletely and satisfactorily, to replace. :

__ .We believe, too, that the Commission’s traditional ap-

proach to contract carriage supports our conclusion hére.

In Craig Contract Carrier Application, 31 M.C.C. 705, the

entire Commission, in a particularly well reasoned report,

dealt with the question whether an applicant for “‘grand- |

father’’ authority under the Transportation Act of 1935

was a common or a contract carrier. <It'was pointed’ out

‘

24a

there that the fundamental difference between these two

forms of motor transportation is the presence or absence

of a holding out to serve the general public. The Commis-

‘ sion then went on to say, 31 M.C.C. at pages 711-12:

The formulation of a practicable and satisfactory test

requires that the difference in holding out between a

common-earrier and a contract-carrier service be rein-

forced by emphasis on individuality and specialization

of. the service in the case of a contract carrier as

contrasted with the service to the general public ren-

dered by a common carrier. |

’ The specialization which we have in mind may con-—

sist in the: rendition of other than the usual physical

services for the purpose of supplying the peculiar

needs of a particular shippér,.such, for example, as

the furnishing of equipment especially designed to ;

carry a particular type of commodity, the training of .

employees in the proper. handling of particular com-

modities, or the supplying of related nontransportation

services-such as the assembling, placing, or servicing

of machinery. [Emphasis added. ]

Having concluded, as we have here, that weight should

be given to applicant’s proposal to provide certain ancillary |

services, only brief consideration of the evidence presented

in light of the section 209(b) criteria is necessary. We

believe that applicant has demonstrated that it is better

equipped to meet the distinct needs of the supporting

‘ shippers than are the protestants. As the latter properly .

do not undertake the connecting of electrical and plumbing

facilities, the repairing of trailers, and the expansion of

the expande trailers, which shippers need in order to*have

a complete service,-and which applicant proposes, it fol-

lows that they cannot meet the demonstrated distinct needs

of the shippers. Therefore, a denial of the application

would deprive shippers of a motor carrier service particu-

20a

larly suited to meet their transportation needs and would

impel them to continue the utilization of private carriage,

a service they desire to decrease or discontinue. The ex-

tent of. protestants’ participation in this traffic has been

negligible inasmuch as most of it has been transported

by private carriage in the past. ..In any event, any adverse

effect which a grant of authority: might have upon pro-

testants’ service, wé believe, would be outweighed by the

advantages to the supporting shippers of having service

of the type ‘proposed available. On the other hand, it must

be admitted that denial of-the application would have no

apparent adverse effect .on. applicant, which does not hold

authority to serve the shippers in interstate movements

beyond Oklahoma. The changing character of the ship- |

pers’ requirements does not appear to be a significant

factor here, and has not been advanced ag such. Having

weighed the criteria of section 209(b), we conclude that

the application should be granted.

We find that operation by applicant, in interstate or

_ foreign commerce, as a contract carrier by. motor vehicle,

over irregular routes of house trailers between points in

Oklahoma, on the one hand,’ and, on the other, points in

Alabamg, Arizona, Arkansas, California, Colorado, Flor:

ida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Ken-

tucky, Louisiana, Michigan, Minnesota, Mississippi, Mis-

souri, Montana, Nebraska, Nevada, New Mexico, North

Dakota, Ohio, Oregon, South Carolina, South Dakota, Ten-

nessee, Texas, Utah, Washington, Wisconsin, and Wyom-

ing, limited to a transportation service to be performed

‘under continuing contracts with B & B Mobile Homes,

Bak Mobile Home Sales, Inc., George Lane Mobile Homes,

Wheeler Trailer Exchange & Park, all of Oklahoma City,

Okla., and the Founders. Investment Corporation, of Kan-

sas City, Mo., will be consistent with the public interest

and the national transportation policy; that applicant is

fit, willing, and able properly to perform such service, and

PUMA LL ty Ci ESIC ola

26a

‘to conform to the requirements of the Interstate Com-

merce Act and our rules and regulations thereunder; and

that a permit authorizing: such operations should be .

granted. °°“ .-. -. ore Can :

> Upon compliance by applicant with the requirements of

sections 215, 218, and 221(c) of the act, with our rules

and regulations thereunder, and with the requirements es-

tablished in Contracts of Contract Qarriers, 1 M.C.C. 628,

within the time specified in the order entered concurrently,

herein an appropriate permit. will be issued. «

"An appropriate order will be entered.

Commisstoner McPHERSON concurs in the result.

APPENDIX

Statement of facts contained in the hearing examiner’s

j report

Applicant presently holds no -authority to conduct op-

erations in intrastate or interstate commerce. The con-

trolling stockholder of applicant (Jack L.. Griffin, herein-

after called Griffin) holds intrastate authority (permit

No. 11493) which authorizes him to tow house trailers to

-and from all points ‘in Oklahoma. This common carrier

intrastate atithority has. been registered: with the Inter: -

" state Commerce Commission (No. MC-120929), and opera-

tions are being conducted under the second proviso of

~ section 206(a) of the act. Griffin owns and operates five

pieces of power equipment (ranging in overall lengths of

. from 11 feet to 15 feet), all.of which are designed and

used for the pulling or towing of house trailers. In-ad-

dition, this individual owns some house trailers which are

rented to individuals. He also owns and operates. an auto-

- mobile repair shop. Sometime-in 1958, a corporation con-

trolled by Griffin sought common carrier authority to trans-

port house and utilities trailers between points in Okla-

27a | Sete

| homa, on. the one and, and,:‘on the other, points in the

United States. This application (No. MC-117756) was de- ©

med by the @ommission division 1, in its — decided

| March 29, 1960. |

Griffin’s intrastate rights ea einiticecs with the —

- mission approximately 1 year ago, and he is actively en-

gaged 1 in the movement of new and used mobile homes. It

is estimated that from 20 to 35 trailers are handled monthly .

in intrastate commerce, and since registration of the rights

he has participated in the movement. of from 12 to 18

trailers destined to points outside Oklahoma. - He provides

in addition to movement of the trailer homes, certain acces- ~

sorial services, such as preparing the trailers for movement

and setting up trailers at the point of delivery either for the

individual’ purchaser or for display purposes on dealers’

lots. The accessorial Services entail blocking, unblocking,

setting up the furniture and possibly other fixtures in the

trailers, hooking up plumbing and electrical utilities, and

,expanding or extentling the expando type trailers. He

handled a total of three of the expandos during April 1962.

‘ This individual-alleges full compliance with the Commis-

sion’s safety-rules and regulations. He was, however, -

fined $1,000 by the. U.S. District Court for the Western

District of Oklahoma upon a plea of guilty to an informa-

tion charging interstate operations beyond the scope of

the registered rights in violation of part II of the act.

The applicant corporation is inactive at the present time,

but if the instant application is granted the motor vehicle

equipment and ‘the intrastate rights of Griffin will be

transferred to.it. Applicant proposes to’serve a limited

‘number of shippers, and will provide under contract to

such shippers equipment and drivers sufficient to ‘meet

_ their needs and for their exclusive use. It proposes to

offer, in addition to transportation, any additional services

whigh may be needed or required by —

As of May 22, 1962, Griffin’s total assets were $133,596.62,

whereas total liabilities were only $26,833.82, thus a net

worth of $106,762.80. -'The applicant corporation at the —

- time of hearing had no net worth. The pro forma balance

sheet submitted, however, shows that in.the event opera-

tions are instituted this corporation would have ‘total as-

sets of $12,100, including cash of $2,000, operating equip-

‘ment valued at $8,600, and Oklahoma intrastate. rights

valued at $1,500.

oa ‘The ‘application is supported by four dealers of new, |

used, or damaged house trailers, and a maunfacturer of

mobile homes: The latter, the Founders Investment Cor-

poration of -Kansas City, Mo., has a subsidiary company

(Chickasha Mobile Homes, Inc.), which manufactures mo- —

_~ bile homes at Chickasha ‘and Ponca City, Okla., and Vidalia,

Ga. The facilities at Chickasha manufacture about 39

mobile homes a. week, ranging in length from 35 feet to

-60 feet, with widths of from 8-feetto 10 feet. About 50

percent of all trailers manufactured are 60 feet in length.

Distribution of the mobile homes is made through dealers

located in an area extending as far west as Nevada, thence

north to the Canadian line. Mobile homes ar primarily

delivered to déalers in equipment owned and operated by -

the manufacturer, or in vehicles owned and-operated by —

the various dealers. Thé shipper owns 30 units of equip-

ment and transports about 60 percent of its Chickasha and

Ponca City volume. About 10 percent or. two or three

trailers a week are handled out of Ponca City by National.

This carrier is also used occasionally for shipments moving

from thé Chickasha plant. |

When deliveries are made in company-owned equipment,

shtpper’s drivers are responsible for spotting and blocking

the mobile homes on dealer lots, setting up dinette sets

and otherwise placing. the home in condition for display,

making minor repairs, and at times collecting ¢.o.d. charges.

In addition their duties are to. set up and expand the

- 29a

‘ expando type trailers. The latter represents about 16 per- .

cent of theotal production. The shipper will-sign a con-

tract with the-applicant, and expects-the carrier to furnish

equipment for its exclusive use. It-is further expected

that applicant’s drivers will be called upon to perform

the same accegsorial services as are now provided by the

_shipper’s own employees.- The shipper has. some repos-

sessed trailers returned to the plant for reconditioning.

The shipper. has found that existing ‘motor carriers do

"not perform ‘a personalized sérvice in the way of setting

up and expanding homes, however, National at tintes will.

set up those coaches which. are not expandable. ‘In ad-

dition, other objections to this carrier’s service. are that ©

the same driver or drivers are not always made available,

and that it is not equipped to handle 60-foot trailers in

_ certain:States. It knows that Morgan can serve Chickasha,

but the service of that carrier has not been used. If the -

instant application is granted, the shipper will continue to

_utilize its own equipment, but allegedly private carriage

_ operations will be curtailed. It has no intention of dis-

continuing the services‘of common carriers. Although the

shipper and applicant have not agreed upon the rates

to be charged, the shipper believes the cost will be com-

parable to that of common carriers.

_B.& B Mobile Homes of Oklahoma City is a retail dealer —

in new and used mobile homes. In‘addition to Oklahoma

City, it has places of business at Lawton, Okla.;-and Co-

lumbus and Biloxi, Miss. It sells or deals in new house

trailers manufacturéd by various concerns, one of which

(Vaught Industries) has plants lecated at Marlette, Mich.,

Bourbon, Ind., and Clarion, Pa. In addition, it has ob-

tained new trailers from a depot located at Atlanta, Ga.,

and new or used trailers from Union City, Mich., Traveres,

Fla., Texarkana, Tex., Loveland, Colo., and Wutehivnen,

Kans. The shipper opened the Lawton facility in May ©

1962, and tue one in Oklahoma City about February 1962.

30a

Since the latter lot was opened, about 15 trailers have been -

moved there. The shipper expects to handle about 100

_ trailers a year at each of the 2 Oklahoma. lots, and of this

‘amount about 25 percent will move in interstate commerce.

The services of all three protestants have ‘been used to

*some degree on*both inbound and outbound shipments, prin-

cipally in connection with. traffic moving to and from the

Mississippi lots. “Such carriers: have handled no traffic

to ot from the Oklahoma City lot, but two, coaches were

transported by Morgan fo Lawton. The shipper also has

two units of equipment stationed at Columbus which along —

with factory transport are used to transport traffic to and

_from all of the lots. In connection with movements from

- the factory.in equipment other than that owhed and op-

_erated by the dealer, the manufacturer generally decides

whether factory transport or regulated motor carriers

will be used: Shipments of both new and used. trailers.

may be-made to-any point in the proposed area. ‘For ex-

ample recently one trailer was transported to Las Vegas,

Nev., and one to Mather, Calif.

The shipper at times has found the services of pro-

testants satisfactory, however such carriers do not expand

‘+ the expando type trailers, nor do they as a general rule

provide the shipper with the particular driver requested.

The shipper wants the serviees-of-a-carrier that will pro- |

Vide any arid all services necessary to completely set up .

_ the trailer at the point of delivery, and expects such car-

rier to provide equipment and drivers for its exclusive

‘use. The services of Griffin have been used for shipments

moving in intrastate commerce, and such service has been

satisfactory. The shipper is interested in service prin-

cipally on shipments moving to and from Oklahoma City

and Lawton, and it is willing to sign a contract with ap-

plicant provided there can be a meeting of the minds

on the minimum amount of traffic to be handled and the

- yates to be charged. The shipper expressed a desire to

. discontinue its private carriage. _

_ Kansas,-and Florida. The yearly volume of trailers mov-

| See oe ee

Wheeler Trailer Exchange & Park, of Oklahoma City,

deals in new, used,,and salvaged house trailers. In ad-

| dition, it handles coaches belonging to others on a consign-

~ ment basis, and operates a 50-place trailer park. It is a

franchised dealer for Melody Home of Forth Worth; and

handles other new trailers which may be acquired’ at- any

point throughout the country. For example, trailers have

been purchased at Amarillo, Tex., Albuquerque and Grants,

N. Mex., Aztec, Ariz., and at undisclosed points in Texas, ~

ing to Oklahoma City is estimated to be 100, and outbound

-traffic would be about the same. This total would include .

salvaged or damaged trailers which have been repaired

at Oklahoma City. Its transportation services ate per-

formed by two units of company equipment, and at times

by Morgan, National, and Transit. In addition, Griffin’s

services have been used for movements within the. State

of Oklahoma. The shipper wants to discontinue private

carriage, and it desires the services of a motor carrier able

and willing to set up the mobile homes, procure delivery

receipts, and: to do any other chore necessary to make -

the coach liveable. In other words it wants a ‘service

‘comparable to that provided by its own employees, and

- it is willing to’enter into a contract with applicant provided

an.agreement can be reached-on the minimum volume of

traffic to be handled. : Protestants have not.beén requested

to perform the accessorial services which applicant would

be expected to perform, but the shipper is 6f the opinion :

that common carriers are unable to provide the type of

service needed. va

. . t ° ;

. ° .@

li hil tli il acm A lial taal al SoM var pe me “we ~

° .

Pe Rs

EP SES

George Lane Mobile Homes deals primarily i in used and

damaged mobile homes at’ Oklahoma City. Damaged

coaches are generally bought through insurance bids, and

have in the past been purchased at Columbus, Toledo, and.

Cincinnati, Ohio, and at undisclosed: points in Missouri,

Arkansas, Louisiana, Texas, Kansas, Colorado, and New

Mexico. The used homes are, purchased from dealers and

4 ees 32a

- others at various points inthis same general area, This

shipper deals in from 120 to 140 trailers a:year, and such .,

traffic is handled partly with the one piece’ of company-

‘owned equipment. In addition, Griffin has handled some

intrastate traffic and also some movements from Oklahoma

City to.the State line where the traffic was interlined with

_-an- undisclosed carrier. Griffin has moved damaged ex-

- papdo trailers, and in addition he'has* handled the finan-

cial arrangements for some ‘trailérs,on behalf of the ship-

/per. Some of the damaged trailers require repa before

they can be moved to the Oklahoma City Yot for recon-

ditioning, and upon occasion the shipper has had to send.

its own employees to make these repairs. The services of

a-motor carrier able and willing to make repairs where

needed and to provide other accessorial services is desired

by%the shipper. The latter would enter into a contract

with ‘applicant, and it proposes to curtail and jf possible

" discontinue the use of private carriage.

"Baker Mobile Homes Sales, Ine., is engaged in the ‘busi- »

~ ness of buying, selling, and servicing new and used mobile

homes, some of which are. of the expando type. In ad-

dition, it sells mobile homes for others on a consignment

basis. It has sales lots at Oklahoma City and Wichita

‘Falls and Fort Worth,- Tex. This shipper deals. in a

_number of brands of new trailers, and estimates that -it

handles a total of from 9200 to. 250 new trailers a year.

Of this amount from one-half to two-thirds involve the

Oklahoma City lot, and about 40 percent of the sales are

- made to customers located outside of Oklahoma. Used

‘trailers handled in the course of a year total about 300,

of which one-third or’ more are shipped to or. from the

Oklahoma City facility. Collectively, house trailers have -

been purchased at various points in Arkansas, Texas, New

“Mexico, Colorado, Kansas, Missouri, Mississippi, Nebraska, —

- Oklahoma, and Califorga. The shipper owns four.trans-

. portation units which are used for the movement of mobile

homes to and from — lots. Such equipment is

aa ; ‘

OS 8 ay tetas natal

used principally. for outbound shipments. ‘The shipper’s |

drivers, upon delivery, block the trailers, assemble dinette

and possibly other furniture; expand .the expando type

‘homes, and at times hook up plumbing ‘and electrical fa-

cilities. Also, where needed, ‘Tepairs are made to used

trailers before movement to the various lots. In addition

to private carriage opérations, the shipper’ has used the

services of Morgan and National -on the movement of both

new ‘and used trailers to Oklahoma City. Their services

- have not been used on ofttbound shipments. The aettal

transportation services rendered by National and Morgan

are considered satisfactory,- but such carriers do not al-

ways furnish the same driver nor do they perform each

and every service provided by the shipper’s own drivers

* - or employees in connection with the private carrier op-

erations. For example on a movement of an expando

trailer by ome of the protestants to a-point in Kansas,

the shipper had to send a company employee to set the

trailer up. The ‘shipper exptcts. applicant to perform all

the accessorial services now provided by its employees,

an@ will enter into-a contract with the carrier provided

there can bean agreement. with respect * ‘the rates to be 3

| charged.

’ Three transporters of: house trailers presented. evidence

in opposition to the application. Transit holds common

carrier authority to transport trailers, except freight-carry-

ing vehicles, i in secondary movements, in towaway service,

over irregular routes, between.points in the United States,

except those in Indiana. It maintains terminals or book-

ing agents, insofar as here important, at Tulsa, Altus, =

Lawton, and Oklahoma City, Okla. and operates 325° pieces

of leased equipment.. It has three pieces of equipment

stationed at Tulsa but maintains no equipment. at the

three other Oklahoma terminals. This ¢arrier also handles

. wrecked, disabled, and damaged trailers, and provides ship-

“pers with the sme drivers where requested, , and | also

34a

_ provides the extra services shown to be needed by the-

supporting shippers, except hooking up plumbing or elec-

trieal’ facilities, and expanding the expandé type homes.

It considers the latter services to be beyond the normal

duties of a carrier engaged in the transportation business.

Protestant is willing to station equipment at Oklahoma

City if the volume of traffic warrants, and it desires to

participate in the movement of house trailers in. sec-

_ ondary movements... ee

Morgan is a common carrier with irregular-route au-

thority, insofar as here material, to transport (1) trailers

designed to be drawn by passenger automobiles, in initial

movements, in truckaway service, (@) from ‘Lawton and

. Chickasha, Okla., to points in the United States; except

“Mount Clemens, Detroit, and Flint, Mich. and (b) from

_. the site of the plant of El Reno Trailers, Inc., located

. approximately 8 miles south of El Reno, Okla., to points

in the United States, except: Mount Clemens, Detroit, and

Flint, Mich., and (2) house, cabin, and bungalow trailers,

- restricted to secondary movements, in truckaway and tow-

away service between points in the United States. It op-

erates between 800 and 900 pieces of equipment; and,

snsefar as here important, has terminals in Oklahoma at

Altus, Lawton, and Oklahoma City. Six pieces of equip-

ment are stationed at Oklahoma City, two units at Lawton,

‘and one at. Altus. Protestant transports expando type

trailers, but does not expand them. It frequently provides

shippers with preferred drivers, and: provides the usual

accessorial services such as blocking, unblocking, and as-

sembling furniture. This protestant has sérved the Chick-

asha manufacturer, and desires to. serve all of the sup- .

- porting shippers.

National holds common carrier authority, insofar as here.

material, to transport (1) house trailers, restricted to sec-

ondary movements, in truckaway service, between points in

the United States, and (2) trailers’ designed to be drawn

35a " es

by passenger automobiles, in initial seeeesunatin in truck-

away service, (a) from Lawton and Chickasha to points in

the United States, except Mount Clemens, Detroit, ‘and -" >

_ Flint, Mich., and (bf from Tulsa (except from ‘the plant -

site of the Sparton Aircraft ‘Company at Tulsa), Broken

Arrow, and Ponca City, Okla., to points in the United States

(except points in Alaska and. Hawaii).. It operates around

652 leased trucks, and. has’ terminals i in Oklahoma’ atTulsa,

Oklahoma City, Lawton, and Altus, : ~Protestant has sta-

- tioned .18, 6, °3, .and. 2 trucks, respectively, at the above

‘terminal points. — It- -transports expando and other. types ~

_of mobile /homes, and has served the Chickasha shipper,

allegedly without complaint. It provides certain accessorial

' services, stich as setting up house trailers orf dealers’ lots,

-and is réady and able to serve all of the supporting :

shippers.| Protestant believes that a grant of. additional 5

authority in.this area will affect its overall business.

86a

APPENDIX D

Served January 23, 1967 —

INTERSTATE COMMERCE COMMISSION

No. MC- 124190

“Gaireiw Mosnz Home Tran’ PORTING Co. ‘CONTRACT

CaRRIER APPLICATION

tee Decided Siesta th 1966

Upon reconsideration, following judicial remand in Na- |

tional Trailer Convoy, Inc. v. United States, 227 F.

Supp. 730, (N. D. Okla. 1964), findings in prior re- |

port, 91 M.C.C: 801, affirmed. Operation by applicant

as a contract carrier by motor vehicle, over irregular

routes, of house trailers between points in Oklahoma,

on the one hand, and, on the other, points in 33 other

Statés, found to be consistent with the public interest

-- and the national transportation policy. Issuance of a

_ permit approved upon compliance by applicant with:

certain conditions, and —— in all other respects

denied.

W. T. Brunson and Charles D. Dudley for illink

James E. Lesh, John E. Lesow, and Bill R. Privitt for

protestants. wee

R. Edwin Brady, Albert B. Rosenbowm, John C. Bradley,

and Roland Rice for intervenor in eeieciteend to the applica-

tion. :

Clarence D. Todd, Sanans M. Malkin, and Charles F.

Riddle for intervenor in support of the application. .

Report oF THE COMMISSION ON RECONSIDERATION

WatratH; Commissioner: te "

In the prior report herein, 91 M.C. C. 801, decided Jan:

uary 9, 1963, division ' ‘1 granted applicant, Griffin Mobile

% .

37a

Home Transporting Co. (Griffin), contract carrier author-

"ity to transport house trailers between points in Oklahoma,

on the one hand, and, on the other, points in 33 other States,

‘limited to a transportation service to be performed under

continuing contracts with named shippers.

Upon consideration of petitions 5, Ma praagioer ine filed

by protestants, and replies thereto filed by applicant and

by: the Contract Carrier Conference of American Trucking }

Associations, Inc., whose intervention had been previously

authorized, we, by order of July 25, 1963, denied the peti-

tions and allowed the findings of the division to stand. ‘ This

order was set aside on March 20, 1964, by the United States

‘District Court for the Northérn District of Oklahoma in

National Trailer Convoy, Inc. v. United States, 227 F. Supp.

730, and the case was remanded to us for further action in

- accordance with the views expressed in the court’s opinion.

. Pursuant to that direction, we have reopened the proceed-

ing for reconsideration on the present record. Since the

matter presented involves a basic distinction between trans-

portation and nontransportation services affecting applica-

tions:for motor carrier operating authority generally, the

Regular Common Carrier Conference of the erican

Trucking Association, Inc., has been allowed to intervene

and to file a brief on reconsideration setting forth its views -

in opposition to the application. The Contract Carrier Con- .

ference has also been permitted to reply.

THE District Covurr’s MANDATE |

The grarit of authority to’ applicant in the prior report

was based, in substantial part, upon evidence of. the ship-

- pers’ needs for certain services in addition to the bare line-

haul movement. Division 1 had concluded that, absent the

rendition by applicant of such extra services, the support-

ing shippers would be deprived of the complete servicé they

required. In remanding the proceeding for further —

sideration, the court noted that in reversing the examiner’s

recommended denial, the division had adopted the state-

POLE YG GELS NO A RNIN LAI 9

. :

ATR Mag oe erty

reerw

38a

ment of fact of the examiner that certain accessorial serv-

ices to be performed by applicant exceed those normally

- connected with transportation, and that a service to meet a.

shipper’s distinct need ‘‘must involve services normal to the

industry and incidental to transportation.’? The court held

that the Commission in weighing the supporting shippers’

distinct needs must first ascertain whether such needs per-

tain to the basic transportation service. It observed that

the division did not specifically determine whether the

special services were transportation in character, but rather

concerned itself with the weight to be accorded such serv-

ices. The court concluded : '

The Commission report here under attack does not

distinguish between transportation and nontransporta-

tion needs of the shippers. We are of the opinion that

the statute requires that the distinction be made and

that before the Commission may give weight to the ©

shippers’ distinct needs it must first determine that-

those needs pertain to a transportation service. In the

case under consideration it made no such determination.

We decline to make the determination in advance of

Commission action. The delineation‘of what are trans-

portation services is particularly within the competence —

and expertise of the Commission. ‘The Commission

‘should make the determination in the first instance and

its decision may then be reviewed by the courts.

Herein, we will make that initial decision called for by the

court in its opinion. Whether the extra services proposed _

by applicant and required by the shippers supporting the

application do, in fact, constitute transportation services

is plainly a prime issue in disposing of this application.

Involved is a basic distinction between transportation.

and nontransportation services affecting applications for

motor carrier operating authority generally. .As a con-

‘sequence, we deem it useful to examine the legislative and-

39a

-interpretative background of applicable sectidns of the

act. The evidence, the prior report, and the ‘pleadings of

the parties and interveners haye been considered and will

be discussed later. | yy

‘ LEGISLATIVE AND INTERPRETATIVE BACKGROUND

The word ‘‘transportation’’ in a general sense imports

‘the removal of property or persons from one place to

another. As employed in part II of the act, it is defined

in section 203(a) (19) as including—

all vehicles operated by, for, or in the interest of any

motor carrier irrespective of ownership or of contract,

' express or implied, together with all facilities and prop-

erty operated or controlled by any such carrier or ear-

riers and used in the transportation of passengers or

property in interstate or foreign commerce or in the

performance of any service in connection therewith.

-This definition applies equally to common and contract

carriers by motor vehicle and it may not be applied dif-

ferently to either class of carriage. What is ‘‘transporta-

tion,’’ therefore, must mean the same for both common and

contract carriers alike. See H. Messick, Inc.; Extension—

Explosives, 102 M.C.C. 492,503. The contrary arguments -

+The act as originally drafted included in the definition of

“‘transportation’’ the words ‘‘carriage, receipt, delivery, storage,

refrigeration or icing, transfer, and handling.’? These words were

eliminated by the Senate Interstate Commerce Committee which-

considered the bill prior to its passage. In explaining to the Senate

the reason for this and other changes made in the definition, the

chairman of the committee said:

-The definition of ‘‘services’’ and ‘‘transportation’’ is in-

tended to cover all facilities owned and used by motor carriers.

The changes made by the committee remove any possibility of

_ a construction which would include the facilities of the ship-

pers or others which the motor carriers may use for pickup or

delivery of shipments.

: i 3 LORE CASA DO EERE SRR DraME OY E*

40a

of the Contract Carrier Conference ‘are lacking in statutory

foundation and are here rejected.

But the skeletal outline of the section 203(a) (19) defint-

tion must be accorded practical application. And, as so

clearly stated here by the court, whether any particular

service is or is not a ‘‘tpansportation service’? under the

act is a matter for initial determination by this Commis-

sion. The Supreme Court, in United States v. U. S. Smelt-

ing Co., 339 U.S. 186 (1950), enunciated this proposition in ~ .

the following vein (at page 193) ¢

That the Commission is authorized to establish the

point where line-haul service begins and ends is not

to be doubted. The question, in reviewing the Commis-

sion’s determination of the convenient points at which

line-haul or carrier transportation service begins and |

-ends, is whether such determination is supported by °

substantial evidence, [footnote omitted] as this court

‘said in United States v. Wabash R. Co., 321 US. 403,

408: :

‘Tn sustaining the Commission’s findings in’ these

proceedings, as in related cases, this court has held

that the point in time and space at ‘which the car-

rier’s transportation service ends in a question of

fact to be determined by the Commission and not

the courts, and that its findings. on that question

will not be disturbed if supported by evidence.’’

In the great majority of tases, of course, no problem ~

arises respecting the nature of a proposed service. Thus,

applicant here unquestionably is offering to provide ‘‘trans-

portation’’ at least insofar as the proposed operation con-

templates the movement of house trailers from -one place

to another. However, where an applicant plans to use,

in addition to motor vehicles for the over-the-road trans- —

_ portation, certain other facilities, equipment, or personnel —

controlled by it to provide some extra or added service

: 4la

which if views as being related to the highway movement, a

question arises under the present court’s determination as

‘to the limits. of the actual transportation that would be

performed. These extra services have been variously re-

ferred to-as auxiliary, accessorial, ancillary, and special;

but it is the determination as to whether they properly

may be regarded as a part of the transportation service

' under consideration that is important, not the name by

which they are called. . :

_ By far the most prevalent verbalization of a test as to

what is or is not a ‘‘transportation service’? under part

I of the act centers around the ‘‘necegsarily incidental’’

standard formulated in Guaranty Claim of Central Elevator...

& Warehouse Co., 72 I.€.C. 169 (1922). There, it was said

at pages 175-6: esd: OY etn ae

~The receipt and delivery of property are, of course, a -

part of a carrier’s transportation service. Elevation

and transfer in transit have frequently been found by

us and by the courts to constitute necessary steps in

the transportation of various kinds of property. Inter-

state Commerce Commission v. Diffenbaugh, 222 U.S.

42; Union Pacific Railroad Company v. Updike Grain

Company, 222 U.S. 215. :

Storage of property transported is a transportation

service only to the extent that storage is necessarily

incidental to transporting such property, and the term’

has been used in section 1 in that limited sense. As

was said by the court in State v. Southern Pacific Com-

pany, supra: :

-We think that the storage of goods by a railroad

in its warehouses, as a. matter incidental to its °

business as such, contemplates and looks to a rota-

tion of storage as immediate and prompt as the

railroad corporation can make it. * * * To be in-

cidental business, the storage must be preliminary

either to immediate transportation or immediate.

removal. r

42a |

i eitaere eee 3, i

“These ‘and other precedents werd later assembled in

Propriety of Operating Practices—New York Warehousing,

198 I.C0.C. 134, 216 I.C.C. 291, and:270 I.C.C. 102, affirmed

by the Supreme Court in B. é O. R. Co. v. United States,

305 U.S. 507 (1939). In this ease, which most regard as.

the controlling decision: as to the meaning of the_word- al

- transportation”? under part I of the—act,” those extra -

services embodied-within the term “‘transportation’’ were

. gaid to be ‘involuntary’. (at 216 L-C.C. 348) :

Involuntary storage is a part of the, trarisportation

. service defined in section 1 of the Interstate Commerce >

Act.. Other storage, voluntary or commercial in nature,

is not included within the term. “‘transportation’” as

‘there used. * * * There are’ many services and acts, in-

‘cluding storage and handling of goods, which are neces-

_ sary in or incidental to the conveyance of goods by

rail from one locality to another, which are not a part

of transportation as defined in section 1. A clear dis-

tinction should be made between voluntary or commer-

-. cial storage ordinarily performed by a warehouse, and

the involuntary storage which carriers subject to the

act are obligated toypefform. Our duty, under. the cir-

cumstances here cdlbed, requires us to determine

- when transportation as defined in the act begins and

ends, and to determine whether acts or services in-

cident.to the conveyance goods from one point to

another are or are not a part of transportation which

common carriers subject to the Interstate Commerce

Act are obligated to. perform. Such matters are ques-

tions of fact.

The rationale of these cases, of course, was developed in

the context of regulating rail carriers subjeét to part I of

‘the act. Nevertheless, the same principles have been. ac-

corded important weight in considering the proposed opera-

tions of carriers seeking to become subject to part II of

the act. See Practices of Motor Common Carriers of

43a eo

H ousehold Goods, 17 M.C.C. 467, 492-495 (1939). While we,

of course, realize that this commen carrier precedent enun-

ciated under part I of. the act cannot be adopted wholesale

and unqualifiedly applied to contract carrier applications

under. part II, the fundamental principles there approved

have received judicial sanction, are well known in trans- -

portation circles, and may readily be applied as an aid in .

resolving difficult questions in this area: whether they arise

under part I or part II of the act.

- In commenting upon the problem of distinguishing be-

tween transportation and nontransportatigp services, the

district court in the instant ‘proceeding observed : .

- The needs of the shippers are varied and diversified.

Some of these needs relate to transportation and some

do not. The property transported has.to be readied.

for use or sale. Activities pertaining to sale are be-_

yond the scape of transportation. Activities pertain-

ing to use may or may not be within the realm of trans-

portation. The picking up and packing ‘ef household

goods at the point of origin and their placement in

position for use at destination have overtones of trans- -

portation. On the other hand the servicing of auto-

mobiles after delivery from the factory to a local dealer

would seem to be divorced from transportation. Dif-

~ ficulty in drawing the line does not justify rejection of

the statutory standard. [Emphasis added.]

Whether a particular service is or is not a ‘‘transporta-

tion service’’ is, as has been said, dependent upon the facts.

In this connection, the specialized nature of the delivery

service proposed to be rendered by an applicant. has been

accorded varying degrees, of significance in deciding whether

to grant or deny motor carrier operating authority. . Ex-

amples of such specialized deliveries include ‘*key-stop”’

delivery sérvices-deliveries by drivers supplied with keys

to open the consignee’s place of business and to effect de-

EERILY SRM LP Us HE ORIN 38 TY

ORE IEP tA

CONC OO LAE BEN ILY omg

‘

NE dein tet

Car A ene eT

44a

liveries in the absence of the consignee, Green Bros., Inc.,

Contract Carrier Application, 18 M.C.C. 94 (1939) ; Schar-

mer Transp. Co., Inc., Extension—Superior, Wis.;76 M.C.C.

- 993 (1958); and Briggs Contract Carrier Application, 92 ..

M.C.C. 707 (1963). Other instances of specialized delivery

services considered in connection with past operating au-

‘thority applications include pipeline ‘stringing, Joe D. -

Hughes, Inc., Contract Carrier Application, 23 M.C.C. 563. -

(1940), and Cox Common Carrier Application, 26 M.C.C,

- 502; the inside delivery of newsprint rolls directly to the

presses, Blinn, Morrill Co. Contract Carrier Application,

98 M.C.C. 299 (1941), findings. modified on reconsideration, -

- 41 M.C.C. 817 (1943); the installation of household furni-

ture and equipment, of electrical appliances, and of other

machinery, Purdy Contract Carrier Application, 11 M.C.C,

240 (1939) ;-Welch Contract Carrier Application, 13 M.C.C.

569 (1939); Robinson Common Carrier Application,. 16

M.C.C. 781 (1939); Practices of Motor Common Carriers

of Household Goods, 17 M.C.C. 467 (1939); the Green’

Bros. case, supra; Stepanek Contract Carrier Application,

921 M.C.C. 612 (1940); and Wieger Contract Carrier Appli-

cation, 79 M.C.C. 777 (1959) ; the inside delivery of depart-

mént store merchandise directly to the floor and depart-

ment required, A. B: C. Exp. Co. Extension—Moorestown,

_ M. J., 94 M.C.C. 386 (1964) ; and, the rendition by the car-

rier of spreader or similar services, Sweeton Common Car-.

rier Application, 47 M.C.C. 418 (1947); Clark Tank Lanes

Co. Extension—Billings, Mont., 82 M.C.C. 301 (1960); Pe-

troleum Carrier Corp. Extension—Panama City, Fla., 82

M.C.C. 573 (1960); and Star Carriers, Inc., Extension—

Agricultural Limestone, 88.M.C.C. 282 (1961). ‘The pro-

vision by the carrier of storage and warehousing services

also has been accorded varying importance in passing upon

motor carrier operating authority applications. Buss Ex-

tension—Hewitt, N. J., 67 M.C.C. 635 (1956) ; Feaster

Trucking Service, Inc., Extension—Crude Oil, 81 M.C.C. 114

- (1959); Kenosha -Auto Transport Corp. Extension—

Foreign Cars, 83 M.C.C. 527 (1960); E. Brooke Matlack,

45a

Inc., Extension—Flour i in Bulk, 89 M.C.C. 6 (1962) ; Dela-

ware Exp. Co. Extension—Liquid ‘Fertilizers, 92 M.C.C. |

718 (1963), findings modified $8 M.C.C! 154+(1965); and

the Messick case, nguera. And finally, terminal preparation,

maintenance, an conditioning services were explicitly not |

considered in denying an application for common carrier

authority to transpi¥t automobiles in the Kenosha ‘Auto’

Transport \ case, supra. | ‘3

In determining, i in these and other cases, whether a pro-

posed special service ‘may be considered in deciding the

merits of applications for motor carrier operating author-

ity, i.e, whether such services are, in fact, incidental to the

movement of propety from one place to another so as prop-'

; erly to be classified as ‘‘transportation services,’’ we have

found the consideration of certain facts helpful. Some of

the more important of these are whether the special service

is performed while the goods are in the custody and control |.

of the carrier or whether delivery has already been affected

to the consignee; whether the service is comparatively sim-

( e degree of training required for its

ance; whether delivery is made to.a dealer

or. seller of the goods, rather than to a user thereof; —

- whether the service is one which the carrier is or should be

legally obligated to perform; whether the service is pro-

vided by the utilization of either vehicles, facilities, or per-.

sonnel which are necessary to-the performance of the line-

haul movement itself; whether it is economically feasible .

for the carrier to render the line-haul transportation with-

out also providing the special service under consideration ;

whether the time period required to perform the special

service is a reasonably minor one of lesser significance

when compared to the totial operation in question; whether

the special service is of a type normally provided to, or re-

quired by members .of the same: industry sought to be

served by the applicant; and whether the rendition by the

carrier of the special service is a precondition to the move- —

ment of the goods in for-hire transportation service. The

proper use of these standards, together with other factors

46a

that may arise in parthieler cases, should assist us in dis-

tinguishing between those necessary-and incidental services

forming a legitimate part of a transportati on proposal, and

schemes by which some would offer novel and unneeded non-

transportation services as ‘a means of, thwarting the sincere

efforts of existing carriers to provide economical and ef- .

ficient serviee within the scope of their authorities.

It should be further noted that although there is but.

‘one definition of transportation under part II of the act,

it does not follow that a carrier, whether common or con-

tract, must engage in the entire spectrum of transportation

- services. Generally, a common ¢éarrier may provide .any

servicé except ‘one inconsistent with a public holding out..

See Craig Contract Carrier Application, 31 M.C.C. 705, .

712 and 715. Contract carriers have traditionally per-

formed services beyond those normally provided by. a.com-

mon carrier because of the latter’s obligation to serve the

‘general public without discrimination as to service or’

charges. Contract carriers are free to pick and choose

among shippers and may lawfully discriminate both as to

services and charges for the same shipper as well as dif-

ferent shippers. Keystone Transp. Co. Contract Carrier

- Application, 19 M.C.C. 475, 491; and Baggett. Transp. Co.—

Petition for Exemption, 61 M. C. C. 771, 778. In numerous

past instances common carriers have, undertaken to provide —

Services not strictly related to line-haul.in order to com-

pete effectively with contract carriers, as well as to dis- |

place proprietary. trucking. In Wiegler Contract Carrier

Application, 79 ERC. #77 (1959), division 1 granted com-

mon carrier authority\to transport uncrated refrigerated

display cases, and described related products, where the

proposal included :dismantling, repair, and installation af

new and used refrigerator units. The following statement

summarized such grant of common carrier authority, (at

page 780):

We come then to. the pe whether the proposed

service is required by public convenience and necessity.

47a

The uncontradicted evidence of record establishes that

the transportation and installation of new unjts and

the dismantling and return of used or damaged units

is essential to the shippers in the successful conduct —

of their business. Most’ of the shippers are, not

‘equipped to render this.service themselves, and no

other carrier has evinced an interest in it. -The ships

‘pers have used applicant’s service exclusively for sev-

eral years and know of no other motor carrier capable

_of performing such service. . In the circumstances, we

are of the opinion that a need for the proposed Service .

. has been shown, and that a. grant of authority therefor-

is warranted.

’ THE KF ACTs AND THE PLEADINGs.

Facts.—The facts are not disputed. Applicant proposes,

and each of the five supporting shippers expresses need for,

the assignment of at least one motor vehicle with driver to

each shipper’s exclusive use. ‘Fhe trailer movements for

which the supporting shippers claim to require applicant’s

proposed service are of three general types: (1) the move-

+ ment from points outside of Oklahoma to their Oklahoma

lots of used trailers purchased by the supporting Oklahoma

dealers for subsequent repair and resale (inbound ‘‘second-

ary’’ movements), (2) the transportation of new trailers

from factories outside of Oklahoma to dealers’ lots in Okla-

homa, or from a supporting shipper’s plants at Chickasha

and Ponca-City, Okla., to dealers’ lots outside of Oklahoma,

(‘‘initial’? movements), and (3) the movement of new and

used trailers from dealers’ lots in Oklahoma to retail pur-

‘chasers outside of Oklahonia (an outbound — ones

service in ‘‘secondary”’ movements). .

In connection. with the moveunats in. (1) above, appli-

. cant’s drivers will prepare the trailers for transportation.

at their point of origin. This preparation or ‘‘repair’’

service entails bracing the inside of the trailers, covering

the windows, and checking and-repairing the undercarriages

. 2

| ot ee

48a

‘i

—all directed to making the trailers safe for carriage over

the public highways and} assuring their delivery to the con-

signees without further deterioration. In connection with

the movements in (2) and (3) above, the drivers will set.

up the trailers at destination—a service which might entail

- blocking, unblocking, assembling of dinette sets or other

furniture, connecting electrical and plumbing services, mak-

ing minor repairs, and expanding ‘‘expando’’ trailers.?

The motor common carriers which oppose ‘the appligation

hold themselves out to provide all of the proposed services

‘except the making of repairs, connecting utility facilities,

‘ and setting up ‘‘expando”’ trailer units.. The court’s: in-

structions to this Commission are principally directed to

these particular services.

Pleadings.—The position of the Common Carrier Con-

ference is that this Commissioni’s jurisdiction in proceed-

ings involving applications fot operating authority is

limited by the terms of the act to a consideration of

‘‘transportation services’’ only; that such ‘‘transportation

services’’ consist solely of pickup, line-haul, and delivery;

that the accessorial-services proposed by applicant are not

of such character; that the opposing common carriers can

- provide all of the actual transportation shown to be re-

quired; and that, in the light of such circumstances, the ©

proposed rendition by applicant of allegedly nontranspor-

- tation accessorial services cannot form the basis for a grant |

of the sought contract carrier authority. ©

The Contract Carrier Conference replies that the ‘re-

quirements of the. complete service for which a need had

been. shown encompass both line-haul transportation and -

the proposed extra services; that exclusion from our con-

sideration of these accessorial services in the circumstances ~

here disclosed would destroy the utility of the proffered

service to the supporting shippers; -that the question of

2 An ‘‘expando trailer’’ can be expanded to larger dimensions at

destination points or folded up for towing on the highway.

49a

whether or not a particular ancillary service is a transpor-

tation service is a question of fact for the Commission’s

determination under the relevant provisions of the act;

that the Commission has applied-in the past, and should

apply in the future, a more liberal interpretation to a

determination of what constitutes a transportation service

in connection with proposed contract carrier application

proceedings; and that the involved accessorial services

should be construed as transportation services since, absent

their rendition for the supporting : shippers, the traffic would

continue to be handled in private carriage to the detriment

of. applicant and without concomitant benefit to the op-

posing common carriers.

Supportine EvipENCcE

As previously pointed out, the mobile-home movements in-

volved in this proceeding are of three general types, and

the facts pertaining to each of these will next be examined

so as to provide a basis for making the transportation-

nontransportation distinction demanded by the court, and

to serve as a framework within which to apply the statu-

tory standards embodied in sections 203(a) (15) and 209(b) ~

_ of the act. Applicant here proposes to serve, at most, five

shippers by .assigning motor vehiclés with drivers to ex-

¢lusive use of each of them.”

1. Inbound ‘‘Secondary’’ movements——The four mobile

home dealers supporting the application? require appli-

cant’s proposed serviee for the movement from points out-

side of Oklahoma to their Oklahoma lots of used trailers

purchased by them for subsequent repair and resale. B&B.

buys used trailers throughout the United States: Mast

of these trailers are acquired as trade-ins but this dealer

also buys them from individuals or from finance companies.

* At the present time, the mobile homes so purchased are

3B & B Mobile Homes, Wheeler Trailer Exchange & Park, Baker,

Mobile Home Sales, and _— Lane Mobile a.

” EROS MOSA RTOS LENT OT Yan

50a,

transported in proprietary carriage to B & B? S lots in

Oklahoma City or Lawton, Okla. This dealer has not used

the services of existing common carriers for any of these

inbound movensents, and it asserts that none of the three

_protesting carriers* was able to furnish the requisite equip-

: ment to move a trailer purchased by it in Pensacola, Fla.,

just prior to the hearing (May 24, 1962). Its adohaatinn a

schedule normally depends upon: its retail sales, and ‘ex-

peditious service is required on occasion. A ‘winch truck,

sich as would be available from applicant on an on-call

basis,. was required not long prior to the hearing in con-

nection with the movement of a repossessed mobile home.

Wheeler has purchased used and salvaged house trailers

in Amarillo, Tex., Albuquerque and Grants, N. Mex., and

at’ other endletboust points in Texas, New Mexico, .and

Florida. Although there is no. division as to the volume

of used and salvaged trailers handled by it, this dealer

buys an average of 100 new and: used mobile homes a year

for movement to its Oklahoma City lot. The salvaged

trailers, which range all the way from slightly to totally

damaged, are bought through insurance bids and rebuilt

by this dealer in Oklahoma. City.

Baker, during the year prior to the salt purchased

used trailers from points in Arkansas, Texas, New Mexico,

; Colorado, Kansas, Missouri, and Mississippi. About 100

such used trailers are purchased by this dealer each” year.

They are bought i in single lots ‘and in large numbers, some-

times as trade-ins and sometimes as repossessions. Some

have no undercarriages and are not roadable without a .

certain amount of repair service. The services of Morgan

‘ and National have been used occasionally on certain. in-

bound movements of the used trailers. George Lane an-

ually purchases from 120 to 140 used, damaged or re-

possessed mobile homes at poirits throughout the central

* National Trailer Convoy, Inc., Morgan Drive-Away, Inc., and

Transit Homes, Inc.

5la

and southern portions of the United. States. Approxi-

mately one-third of its total business involves the purchase

of damaged house trailers which are brought to Oklahoma

City, repaired, and then sold to retail customers as used

trailers. Some of the used trailers obtained by this dealer

must be braced so that they can be hauled over the public

highways. Additionally, a number of the damaged trailers

are ‘‘expandos”’ that are required to be folded up for move-

ment. Certain of these trailers are purchased on a de- _

livered price basis, but George Lane must then wait for the

. seller to provide the necessary tr ansportation. This dealer —

owns and operates one truck and has not used protestants’

services because they do not offer to ‘provide the necessary

preliminary repair service. Applicant’s service has been

used with satisfactory results within Oklahoma.

2. ‘‘Initial’’ movements of new trailers.—A fnobile home

manufacturer supports the application to the extent that

it seeks authority to transport new mobile homes from

points in Oklahoma to points-outside of Oklahoma, while _

the four supporting dealers’ discussed previously support

the application to the extent that authority i is sought for

‘the transportation of new trailers from factories outside

. of Oklahoma to their Oklahoma lots. Chickasha’ Mobile

Homes, Inc., a wholly owned subsidiary of Founders In-

vestment Corporation, manufactures mobile homes in

Chickasha and Ponca City, and Vidalia, Ga., and dis-

tributes them to dealers located in an area extending from

North Carolina on the east and north to Nevada on the

west. About 35 units a week are manufactured at its

Oklahoma plants and these range in length from 35 to 60 °

feet with widths of from 8 to 10 feet. “One-sixth of the

mobile homes produced by this shipper are ‘‘expandos.”’

Only .about 10 percent of the shipper’s total Oklahoma -

production is transported in for-hire carriage (by Na-

tional) ; the shipper transports approximatély 60 percent

of such production with the 30 vehicles owned by it,*and

the remainder move in vehicles owned and operated by

Ar the ry reegeninipetenmeaen:» 4

oT ak en ohn ee

” SMR gE MEE Fm

52a.

various consignee dealers. This manufacturer expects ap-

plicant to assign both equipment and drivers for its exclu-

sive use, and it will call upo applicant’s drivers to per-

form the same accessorial spices as are now provided

by its own employees. These’ services include (A) spot-

ting and blocking the trailer on the dealers’ lot; (B) re-

moving tape from the drawers, unblocking the doors, set-

ting up dinette sets, and otherwise putting the mobile home

in condition for immediate display ; (C) making minor re-

pairs of damages: incurred in transit; (D) collecting any

c.o.d. charges that may be owing; and (E) setting up and

expanding the ‘‘ xpando”’ trailers, National does not

always make the kervices of the same driver availabfe,

and this lack of driver consistency results in a less per-

sonalized service that is rendered by the shippers’ own

drivers. National offers to-perform all of the services

“pens above except (E) setting up and expanding the

¢6expandos;’’ however, it has been the shipper’s experience

that National’s drivers are less courteous to dealers than

its own, that such drivers do not set up the trailers for

display at destination approximately 50 percent of the

time, that it has been unable to obtain the necessary equip--

ment from National to handle 60-foot trailers in certain

States (New Mexico,. Kansas, and Missouri) because of

overall State length requirements, that at least two dealers

(located at Gillette, Wyo., and Grand Junction, Colo.) re-

fuse to accept any trailer delivered by a National driver,

and that National will not assure the shipper that the same

driver will handle the trailer through to destination. The -

evidence does indicate, however, that Morgan handled a

number of trailers from Chickasha for this shipper in the :

spring of 1962 without complaint.

Three of the four supporting mobile home dealers sub-

mitted evidénce as to their need for applicant’s proposed

service with respect to movements of new house trailers

‘from factories and manufacturers’ depots outside of Okla-

homa to their lots within Oklahoma. B B, which has £

53a

sales locations i in Coluniion and Biloxi, Miss., commenced

retailing trailers in Lawton and Okishoma City about 1 |

- week and 3 months, respectively, prior to the hearing. —

During that time it had received two new mobile homes

at its Lawton lot and a total of about ‘15 trailers (whether

new or used isnot indicated) at its facilities in Oklahoma

City. Morgan transported the two trailers to Lawton at

the direction of the factory (Detroit Mobile Homes, ap-

parently of Hutchinson, Kans, ‘i but delivered them on a

, date other’than that expected by the consignee and placed

_ , them on the Lawton lot in the absence of the consignee. *

‘ Those delivered to the Oklahoma ‘City lot were transported

by equipment operated either by this dealer in private

carriage or by the factories from which they were pur-

chased. This dealers’ two vehicles, primarily used in its

Mississippi operations, are only utilized in its Oklahoma

operations in emergency-type situations, and B.& B desires

to have available for the latter operations the service here _

- proposed by Griffin. The dealer believes ‘that applicant’s

drivers would inspect the trailers a little more closely

before accepting them at the factory. |

Wheeler is a franchised dealer for Melody Homes, of

Fort Worth, Tex. Its representative surmised that the new’

trailers received by it have been transported by either

Morgan or National, but failed to state the volume so

handled, whether it.or the manufacturer controlled the

designation of the carrier, or just what services would be

required in connection with the movement of new trailers

inbound to its Oklahoma City facilities.

Baker purchases for delivery to its Oklahoma City lot

- fror 100 to 170 new mobile homes each year. Currently,

these trailers are obtained from factories located, at ‘among

other points, Grand Island, Nebr., Great Bend, Kans.,

Vicksburg, Miss., Texarkana, Arlington, and Bonham, Tex.,

El Monte, Calif., and Tulsa, Okla.; but the changing re-

quirements of this dealer’s business require that it buy

a . .

54a

— ea

from’ cther factories throughout the United States de-

_ pending upon the brand and model it desires. ‘The trailers

move ‘from the factory to the dealer’s Oklahoma City

Jocation either in its own trucks, of which it now owns four,

or in the service of Morgan or National. Baker has found

the services of Morgan and National to be ‘‘fine,’’ except

that on four occasions in the 2 months preceding the hear-\,

ing Morgan’s drivers refused to spot the ineoming trailers

on the dealer’s lot and instead parked it'on an adjacent

street. It also appears that Morgan and National have

occasionally been unable to provide equipment for certain

rush movements from a factory, but no details about such

instances are of record. Although this dealer is mainly in- -

terested in using applicant’s proposed service in retaal

delivery operations from Oklahoma City, it desires the

dedication of equipment and driver ‘trained to set up new

trailers on its lot as proposed by Griffin.

3 Oukkound retail delivery service—All four mobile

home dealers support the application to the extent author-

ity is thereby sought to transport house trailers from their.

Oklahoma lots ‘to retail: customers located throughout the

described 33-State area. B é B ships about 100 trailers a

year from each of its two sales locations (Lawton and

Oklahoma City), approximately 25 percent of which move .

to interstate destinations. -These trailers ordinarily are

sold on a delivered-price basis and the shipper then un-

dertakes to ready them for use upon their arrival at

destination. This setting-up service may ‘include the mak-

ing of both plumbing and electrical connections. The ship-

per does not request commercial carriers to handle these

shipments because it does not believe that it can depend

upon them to set up the trailers properly. This is. par-

ticularly true in connection with the movement by such

for-hire carriers of an ‘‘expando’’ trailer where the ship-

per either would have a man trail the shipment to perform

the setting-up service, or sell the trailer at a lower, not-

delivered price. Inasmuch as an expedited service very

(

5da

often is required by this shipper, it would be beneficial to

have equipment immediately available for its use. If the

‘ instant application is granted, the shipper expects appli-

cant to assign to it at least one motor:vehicle with driver

who would be trained to expand ‘‘expandos.’’

- Wheeler uses its own equipment to deliver approximately.

100 mobile homes each year out of its Oklahoma City lot.

The service it desires, and that which applicant here pro-

poses to provide, includes the line-haul movement of its

trailers, their delivery and setting up, and the procuring

from the consignee of a signed receipt for the delivered

trailer. If such service is made available, this shipper

would not only be permitted to decrease the number of its

employees and thereby reduce its insurance costs which

are based upon that, number, but also it assertedly would

result in better overall service to its retail customers. ‘This

‘dealer is said to have been informed by a National driver

_ that the three protesting motor carriers do not provide |

these services and it, therefore, has not formally asked

these carriers to render such services. It desires Griffin’s

. proposed service to replace its present proprietary opera-

tion. j |

_ Baker uses its own four power units to deliver house

trailers Yo retail customers throughout the territory here

under consideration. Title to a trailer thus sold does not

pass until it is set up in the customer’s location, an

under the usual sales contract the purchaser need n6t

accept delivery until the trailer is ready for use. The.

destination preparation services thus required. are per-

’ formed by the shipper’s own drivers and may include

trailer expansion services and the connecting of sewer,

gas, electrical, or water lines. The shipper desires to re-

_ place its private trucking activities with the for-hire serv-

ices here proposed by Griffin. It would expect Griffin’s

drivers to perform all of the above setting-up services,

particularly including the. expanding of ‘‘éxpando” :

56a

_ trailers. On one ‘‘expando”’ unit transported by Morgan

_ or National to Kansas for this shipper, it was required to

send its own employees to perform the delivery prepara-

tion and trailer expansion services. Morgan and National

do sometimes furnish the shipper with its -favorite drivers,

but these are not always gv ailable. The shipper has

neither used the services of nor been. solicited by Transit

. Homes.

George Lane in 1961 and during the first 4 sittin in

1962 sold approximately 27 trailers that moved to inter- ©

state destinations. A number of these were transported

by the ghipper’s own truck, others were transported by

applicant to the State line and there delivered to the

purchasers for ultimate movement beyond; and approxi-

mately 50 percent were moved by the purchasers from

Oklahoma City after ‘the shippers discounted its price to |

compensate for its inability to deliver the trailers and set

them up at destination. This shipper represents that its —

sales often depend on immediate delivery, and that it re-

quires a carrier whose services would be immediately

. available to it. It desires to discontinue its private car-

riage, and-through the use of applicant’s proposed service

it hopes to sell more of its trailers on a delivered-price

basis, thereby eliminating the competitive handicap under

which it now operates. ~

‘

Discussion AND CoNCLUSIONS

Following the decision of ‘Interstate Commerce Com- —

mission v. J-T Transport Co., 368 U.S. 81 (1961), the —

total service proposal has been the spool on which deter-

mination of contract carrier applications has been wound.

. In that case the iieepiai Court, at pages 92 and 93, ob-

served :

“The ‘distinct need’ of’ the skipper may neverthe-

- less not be served by existing services, if the new

service is better tailored to fit the special require-

57a -

ments of a chipper’ s business, the length of i its purse,

- or the select nature of the delivery service that is

"i desired.

This was premised upon the onant’ Ss view ‘that one of the .

_ purposes of the 1957 amendments to sections 203(a) (15)

and 209(b) of the act was to focus Commission attention |

upon the supporting shipper’ s business needs which are

now to be balanced against the impact which issuance of .

_ the authority sought would have upon the services of exist-

ing carriers. .

To effectuate the explicit mandate of the district court,

however, we must, first distinguish ‘between the trans- -

portation and nontransportation needs of the supporting

shippers; and before giving weight to thé shippers’ dis-

tinct needs we must determine: that those needs pertain to

_ a transportation service.

The kaleidoscopic collage of tests previously set forth in

this report to determine the transportation-nontransporta-

tion equation, is commonly threaded -by the incidental-to-

transportation standard. In discussing the incidental-to-

air exemption in seétion 203(b) (7a) of the act, the United

States District Court for the Northern District of Illinois in

National Bus Traffic Association v. United States, 249 F.

Supp. 869 (1965), affirmed 382 U. S. 369 (1966), stated at

page 873: :;

. As the ont views the word ‘<ineidental”? it means

a Aas om to the prime matter, of lesser sig-

nificance, but related and necessary to the complete

effectyation of the matter in chief.

We bales the ahews definition -of: ‘<incidental’’ to be

useful in determining whether the applicant’s proposed

services are ‘‘incidental’’ to the movement of, house trail-

" ers from one place to another. °

All four dealers say that the movement of damaged trail-

ers requires that the carrier provide a special “repair”?

58a

_ service’ at their point of origin.» Such‘ service includes

bracing the inside of the trailer, covering the windows, |

and checking the undercarriage to insure its. safety for

highway travel and to make certain. that. the trailer will

arrive at its destination in a reasonable condition. These

. are services which are'not proffered by existing common

carriers and which applicant here offers to provide. In

our opinion, these. preparatory services are a necessary

and incidental part of the safe line-haul movement, and

properly-may be considered by us in determining the out-

come of the application. Indeed, without such services,

the: trailers. would: be incapable of movement over the

‘public highways. They are performed after the mobile

homes have been received by the carrier and while the

trailers are in the custody and control of the carrier:

. heir rendition does not appear. to require an inordinate

period of time and, it is not economically practicable for

. someone other than the carrier to render these. special

services apart from the line-haul transportation. .These

services are of a type normally associated with the move-

ment of. used and -damaged trailers by members of the

-mobile home industry. All circumstances considered, we

deem these conditioning services to be an incidental and in-

tegral part of applicant’s proposed transportation service,

indivisible from the line-haul movement and essential to its

effective performance.

* Although the services proposed by applicant in con-

nection with initial movements of riew trailers are highly

personalized, the only extra services involved which may

conceivably be classified as nontransportation activities in-

volve the setting up of trailers upon delivery at’ dealers’

lots, including the expanding of expando-type trailers. In

‘our opinion, the relatively simple services of removing

tape from the drawers, unblocking the doors, assembling

dinette sets and other furniture, and similar activities. are

unquestionably transportation-corinected services. The

more complex task of expanding ‘‘expando”’’ trailers is a

f&*

59a

closer question, but we think that it. is a transportation

service which may properly be’ considered in determining

the merits of this aspect of the application. Both services »

~ are performed while the trailers are in the control and

custody of the carrier, and delivery is made to a dealer in

both instances. The first services are relatively minor

ones consuming only a small amount of time and requiring

virtually no training whatever. | They are® services nor-

mally provided to and required by members of the mobile

home industry and are ones usually expected of a carri

serving that industry. On the other hand, the prota iy

of ‘‘expando”’ trailers for public display requires special

training and takes, perhaps,.1 ar 2 days to complete. It

. is a more complex operation not necessarily expected: of,

or provided by, for-hire carriers experienced in mobile |

home transportation. Such expansion services are neces

sary to the effectuation of the matter in chief, howéver,

because otherwise the supporting shippers are required to

send one of their own employees to the delivery site to

provide such service before acceptance is given by the con-

. signee. In such event, the house trailers would simply not

be tendered to a for-hire carrier because of the prohibitive

cost.

In regard to the outheunl retail. delivery service, we

are of the opinion that the trailer expansion services as

well as the connection of plumbing and electrical lines, as

here proposed by applicant and shown to be required by

the supporting trailer dealers, are also transportation

services to-be considered in: deciding whether this appli- -

cation should be granted or denied; and that the remainder ~

of the retail setting-up services are a necessary and inci-

dental part of the total transportation activity and prop-

erly may be so considered. The relatively simple services °

_ of trailer blocking, setting up dinette sets and other furni-

ture, and similar activities are minor adjuncts to the

prime matter (the delivery of .a trailer) and essential to | .

‘its effective performance. As to.the trailer expansion

Beewicte cas +

60a

services, moreover, the identity of the consignee repre-

sents the sole distinction that may be made between its

performance in retail delivery service and its accomplish-

ment in .connéction with the delivery of new trailers

to dealers’ lots as previously described. This factor,

viewed in the light of* the other secondary criteria dis-

cussed at an earlier point in this report, seems to us to out-

weigh the complexity of the expanding operation, the

higher degree of special training and skills. which it neces-

sitafes, and the length of time (perhaps 1 or 2 days) con-

_ sumed.by its effective performance. So too, we believe

that the electrical and plumbing services are transporta-

tion services which for-hire motor carriers qauld be ex-

pected to provide. It is not economically feasible for the

supporting shippers to tender house trailers for line-haul

transportation by for-hire carriers that do not proyide -

such special services. Also, the utility connections are

performed while the trailers are still in the custody of the

_earrier and before acceptance of delivery by the consignee.

In summary, we conclude that applicant’s proposal to ~

- eondition used trailers for over-the-road movement, con-

nect electrical and plumbing facilities and expand and set

up ‘‘expando”’ home trailers at destination, are trans-

portation services which may be considered in determin-

ing whether issuance of a permit -is consistent with the

_ public interest and the national transportation policy. —

Such services are either now provided by the common

-earrier protestants, or could be so provided. The spur

of competition may be-effectively applied. in this instance

to encourage the protestant carriers to meet the stated

needs of the supporting shippers, and supplant the exten-—

sive proprietary trucking now ‘being conducted by them.

The specialized services programmed by applicant are

incidental to the movement of the house trailers from one

place to another and are necessary to the complete effectu-

ation of the matter in, chief. Suclt services are part of the

61la

total transportation ‘service proposal and must be con-

sidered in disposing of the instant application.

Weighing | the merits of the ‘application in accordance

with the Criteria embraced in section 209(b) of the act as

interpreted in the J-T Transport case, supra, we believe

that applicant should be awarded authority to transport

house trailers between points in Oklahoma, on the one

hand, and, on the other, points in the 33-State territory

sought. Applicant | here proposes to serve five shippers

by assigning motor vehicles with drivers to the exclusive

use of each of them. Consequently, the proposed services,

are, we conclude, those of a contract carrier by motor —

vehicle as defined in section 203(a)(15) of the act.

We are convinced that the supporting shippers have a

distinct need for a transportation service more specialized

than that now being provided by existing common carriers,

and that the protesting motor carriers have not shown

that they will satisfy the specialized need. The sale of

mobile homes, particularly to retail customers, often is

dependent upon the ability of the dealer to provide im-

mediate delivery, and the competitive nature of the mobile

‘home industry dictates that its thembers be able to pro-

vide such deliveries on short notice. The evidence here is

persuasive that the supporting mobile home dealers and

manufacturers have been forced in the past to rely pri-

marily upon private carriage to transport their trailers or

“to discount the price of the trailers to offset their inability

to provide deliveries.

Applicant has conclusively demonstrated that the serv:

_..lee which it here proposes is specialized and tailored to

tle proven distinct transportation needs of the supporting

Oklahoma shippers. It will assign vehicles to the ex-

clusive use of each of these shippers and will provide each ,

shipper with: regularly assigned drivers. whom they will

be able to train and upon whom they can thereafter rely

to perform the requisite services. None of the protestants

° iia |

* .

7 EN Ot Re er tes

Met PEEL OREN ES TT ATT, Pee Rae TR ae

FSS ilies Saimin Oe

62a

has: indicated any significant participation in this traf,

very little of which has heretofore moved in publie car-

riage. They do not offer to provide the -necessary trans- .

portation services and have not succeeded in establishing

that they can meet the distinct transpor tation requirements

‘of the supporting shippers as wel] as or better than can

applicant. The supporting shippers are not using the

services of protesting common carriers in any substantial

way and it appears that they would not utilize the services

of sutéh carriers: even if’ this application’ were denied.

Protestants have not shown that they will have any traffic

diverted from their services or that this is an ‘‘unusual’’

case in which the grant of authority to a gegen’ would

have an adverse effect on them. Cf. the J-T Transport

case, 368 U. S. at 93. In all events, any ill effects which

a grant of authority might have upon the protestants’

' services would be outweighed-by the advantages that would

accrue to the supporting shippers from thg availability to

them of applicant’s proposed dedicated “gig which

may be likened to those of a ‘‘house carrier.’ While

denial of the application would have no apparent adverse

effect upon applicant, which. does not now operate in

States other than Oklahoma, a failure fo grant such au-

thority would deprive these supporting shippers of a serv-

ice particularly well suited to meet their transportation

requirements without any concomitant benefit to the pro-

testing motor carriers. The fifth criterion of section

209(), pertaining to the changing character of the ship- .

factor in this case, although to the extent it is pertinent,

_it strengthens the basis for granting authority herein.

We conclude that, weighing in balance the section 209(b) _

criteria, applicant has made the requisite showing of a

need on the part of the supporting shippers for a special-

ized transportation service as hereinafter indicated which

cannot satistgctority be met by existing motor common

carriers.

63a

F'INDINGs

Upon reconsideration, we find that operation by anuli-

cant, in interstate or foreign commerce, as a contract car-

rier by motor vehicle, o over irregular roytes, of house

trailers between points i in Oklahoma,.on-the one hand, and,

_on the other, points in Alabama, Arizona, Arkansas, Cali-

fornia, Colorado, Florida, Georgia, Idaho, Illinois, Th- |

diana, Iowa, Kansas, Kentucky, Louisiana, °Miehigan,

Minnesota, Mississippi, Missouri, Montana, Nebraska,

_ Nevada, New Mexico, North Dakota, Ohio, Oregon, South

Cardin, South Dakota, Tennessee, Texee, Utah, Wash-

ington, Wisconsin, and Wyoming, limited to a transporta-

‘tion service to be performed under a continuing contract

or contracts with B & B Mobile Homes, Baker Mobile

Home Sales, Inc., George Lane Mobile Homes, and Wheeler

Trailer Exchange & Park, all of Oklahoma City, Okla:,

-and the Founders -Investment Corporation, of , Kansas

City, Mo., will be consistent with the public interest and

the national transportation policy; that applicant is fit,-

willing, and able properly to perform ‘such service, and to

conform to the requirements of the Interstate Commerce

Act and our rules and: regulations thereunder; and that a

permit authorizing such operations should be granted.

Upon compliance by applicant with the requirements of

sections 215, 218, and 221(c) of the act, and our rules ‘and

regulations thereunder, and with the requirements estab-

lished’ in Contracts of Contract Carriers, 1 M.C.C. 628,

within the time specified in the order entered concurrently

‘herewith, an appropriate permit will be issued. —

An appropriate order will be entered.

CoMMISSIONER Mourpxy, concurring:

I believe the application should be granted, but en not

subscribe to certain of the rationale and findings in the

report of the majority. As indicated. by the numerous

decisions cited in the report, the,Commission has given

ee ee obi waitace

64a:

weight to or at least has noticed a wide variety of ‘‘extra”’

services in disposing of motor carrier operating authority

applications. In a few of these decisions an effort was

made to determine whether every aspect of the proposal

of the applicant qualified as a transportation service, hut

in most of the cited cases the character of the ‘‘extra’’

service was not even considered. Nonetheless, out of those

‘ various decisions the majority seeks to distill a number of

‘‘facts’’ or criteria which will assist in deciding what is

and what is not a transportation service. All the ‘‘facts’’

‘are enlightening and most, such as ‘‘whether thé service

‘is previded by the utilization of either vehicles, facilities,.

or personnel which are necessary to the performance of

the line-haul movement itself,’’ have an obvious validity,

but the weakness of the ‘‘facts’’ or criteria is that they’.

can be applied in any -manner-that suits the: whim of the

decision maker. For example, in support of the conclu-’

sion in the report that the expansion of ‘‘expando’’ trailers

is a transportation service, substantial weight is given to

the question ‘‘whether the rendition by the carrier of the

‘ special services is a precondition to the movement of the

goods in for-hire transportation service,’? whereas it

would be just as reasonable to stress the, admitted com-

plexity of the expanding operation,.the substantially

higher degree of special training and skill which it neces-

sitates, and the disproportionate length of time ee

by its effective performance. »

Apparently in recognition of this weakness, the majority

would add a definition of the term ‘‘incidental’’ as that

term appears in the‘air related exemption of section 203 _

(b)(7a) of the act as still another factor to be considered

in deciding what is a transportation service.

The foregoing consideration, of course, has been super-

imposed in the report upon the statutory definition of

‘‘services’’ and ‘‘transportation’’ of section 203(a) (19)

of the act, and also upon the ‘‘necessarily incidental’?

standard formulated in the Warehousing. cases, the net

¢ | | p

oe 6

60a

effect of all of which, I think, is to create an ey amount

of confusion.

transporting used, damaged, or repossessed ‘mobile homes

has an obligation to be prepared to do or arrange for.a

modest amount of werk necessary to make the trailer

transportable. By the.very nature of the business the

cafrier: holds itself out to transport less than perfect

trailers, and it is difficult to conceive of a carrier engag-

ing therein without making or at least providing for the

services necessary to make the trailers roadworthy. (Ref-

* erence to applicant’s schedule of charges shows that the

services provided are modest, that the consignee and con- .

signor have obligations to provide certain necessary facili-

ties, that all services require specific reimbursement, and

that there is no inherent requirement that the work be

physically performed by applicant’s drivers.)

As to the blocking, setting up, and expansion of trailers,

it appears to me that the services proposed by applicant

are akin to the necessarily incidental rigging which is per-

formed by heavy haulers and other specialized carriers,

differing significantly from the traditional services of such

carriers only in that the commodity transported is new

. and has unusual characteristics. Some might reasonably

insist on a better record basis for equating trailer expan-

sion to rigging, but I think that there is a satisfactory

basis for making the rigging analogy, and also that it is

self-evident that transportation services cannot be limited

to a particular group of traditional commodities.

Finally, as to the plumbing and electrical services, it.

appears that the majority is dealing with somewhat of a

‘‘red herring.’? Applicant’s schedule of charges, while

specifically naming all the other considered services, makes

no reference to utility connections. Moreover, I think it

completely unnecessary for the success of applicant herein

Moos

m .

66a.

that the transportation or nontransportation nature of

electrical and plumbing services. be . identified, it being

enough to note that protestants apparently do not offer

several of the extra services specified in applicant’s sched-

ule of charges. However, since the majority has com-

mitted itself to the conclusion that ‘‘the electrical and

plumbing services are transportation services which for-

hire motor carriers could be expected to provide,’’ I wish

to record my disagreement therewith. Utility connections:

are closely regulated by local governmental units, and |

think that it is unreasonable to even partially base a grant

of authority involving almost 3 dozen States and hundreds

of local governments upon the refusal of existing carriers

to provide such services. .

The fact that the majority has decided to sapemiine this

decision by giving weight to all the various extra services

lends credence to the concern that almost any proposed

service will be similarly considered and that entry controls

imposed by Congress in order to forestall ruinous competi-

tion among motor carriers will be diluted by the necessity

to grant applications based upon novel features of infinite

variety. Nevertheless, as previously indicated, I believe

-.the grant of authority herein is warranted and thus concur

in the result.

ComMMISSIONER GoFF, concurring:

I believe that the record adequately supports a grant: of

authority without finding that the erecting of ‘‘expandos’”’

is a transportation service in initial moyements to the

dealers’ lots. ‘Those dealers should be expected to have the .

and it should not be required of the carrier as an incidental

transportation service. This is not so in outbound move-.

ments where the scattered, individual users would not have

the ability and tools to.set up. the trailer. That service in

those cases would be an incident. of the total transporta-

tion.

rey

67a

ComMIssIONER BusH, whom ComMIssIONER TUGGLE joins,

| dissenting 1 in part:

I dissent in this proceeding er I cannot agree with the

decision finding applicant’s proposed trailer: expansion

service and the connection of plumbing and electrical facili-

ties to be transportation services.

In my view, the expansion service may be likened to the

servicing of automobiles after delivery from the factory to

a local dealer (Kenosha Auto case, supra) which the. court

in remanding this proceeding ovserved.‘‘would seem to be

divorced from transportation.’’ The special training and

skills required for the proper performance of safe electrical :

and plumbing services leads me to the conclusion that these

services similarly and certainly are not transportation

services. Rather, these are services that would seem more

properly to be left to specialists having knowledge of the

applicable housing regulations, building codes, and other

factors pertinent fa each locality to which the mobile homes

are delivered. “s

Going as far as ee has in .this case eould com-

° pletely destroy any line between transportation and non-

transportation services. Any number of reasonably com-

parable ‘‘extra services’’ might be offered by future appli-

‘ eants, and I anticipate’they will be so proposed. Under

the precedent established by this decision, how could ‘ve

say ‘‘no’’?

It seems clear that the point has been reached where a

full rulemaking proceeding should be conducted for the

purpose of determining what services are transportation

services and what are nontransportation services. Pending

a decision in such proceeding, those services which can rea-

- sonably be considered to fall in the ‘‘doubtful’’ category

' should. not be characterized as transportation services.

Comnemenene F'REAS, dissents.

: Seeicneaet |

Det A LOT MeL NT me Meme tony sun eee ty

LES OE se APN ELE: LEG RRNS SAOI a ply SP ea cate ee a ae a ea

. !

68a

ORDER»

At a General Session of the INTERSTATE OCOM-

MERCE COMMISSION, held at its office in Washington,

OD. C., on the 30th day of December 1966.

No. MC-124190

Gairrix Mositz Home ‘TRANSPORTING Co. ConTRACT

CaRRiER APPLICATION

It appearing, That on J anuary 9, 1963, the Commission,

division 1, made and filed its report, 91 M.C.C. 801, and

order in the above-entitled proceeding, granting the appli- ,

cation in its entirety ;

It further appearing, That on “Mareh 20, 1964, the United

‘States District Court for the Northern District of Okla-

homa, ‘entered its judgment in No. 5760, National Trader

Convoy, Inc., ét al. v. United. States of America, et al.,:227

F. Supp. 730, remanding this proceeding to the Commis-~

sion for further action in accordance with the views ex-

pressed in its opinion; 5S ne |

It further appearing, That by order of May 19, 1964, this

proceeding was reopened by the Commission for reconsid-

eration on the present record ;

And it. further appearing, That secstiaalianede of the

matters and things involved in the above-entitled proceed-

ing has been given, and that the Commission, on the date

hereof, has ‘made and filed a ‘report on reconsideration

herein containing its findings of fact and conclusions there- -

on, which report, and the said report of January 9, 1963,

are: hereby referred to and made a part hereof;

It is ordered, That the said order of January 9, _— be,

and it is hereby, vacated and set aside.

It is further ordered, That unless compliance i is made by

applicant with the requirements of sections 215, 218, and

221(c) of the act within 90 days after the date of service

69a :

hereof, or within such additional time as may be authorized

by the Commission, the grant of authority made in said

report shall be considered as null and. void and the applica-

tion shall stand denied in its entirety effective upon the.

expiration of ‘the said compliance time. :

By the Commission.

| H. Nem Garson,

(SEAL) — Secretary.

_ APPENDIX E

INTERSTATE COMMERCE COMMISSION .

- Served August 29, 1962

NOTICE TO THE PARTIES .

Exceptions, if any, must be filed with the Secretary, INTER-

- sTATE COMMERCE Comprrssion, Washington, D. C., and served

on all other parties ‘in interest, within 30 days from the

date of service shown above,-or within such further period |

as may be authorized for the filing of exceptions. At the

attached order will become the order of the Commission

and will become effective unless exceptions are filed season-

ably or the order is stayed or postponed by the Commis- |

sion. To be seasonally filed, exceptions must reach the Com-

mission on or before the date they are due. If exceptions

are filed, replies thereto may be filed within 20 days after

the final date for filing exceptions. If the: recommended

order becomes effective as the order of the Commission,

_ a notice .to that effect, signed by the Secretary, will bé

sef¢ved. :

70a

. No. MO-124190

Grirrin Mosite Home Transportine Co.,

Contract CaRRIER APPLICATION

Operation by applicant as a contract carrier by motor

vehicle, over irregular routes, of house trailers, be-

‘tween points in Oklahoma, on the one hand, and, on

the other, points in 33 States found not shown to be

- consistent with the public interest and the national

transportation policy. Application denied.

_W. T. Brunson and Charles D. Dudley for applicant.

John E. Lesow and Bill R. Privitt for protestants.”

REPORT AND ORDER

RecomMEnven By Datias B. Russent, Heartnc Examiner —

By. application filed February 5, 1962, Griffin Mobile

-Home Transporting Co., of Midwest City, Okla., seeks a

permit authorizing. operation, in interstate or foreign com- —

merce as a “contract carrier by motor vehicle, over irregular

routes, of house trailers, between points in Oklahoma, on

the one hand, and, on the other, points in Alabama, Arizona, __

Arkansas, California, Colorado, ‘Florida, Georgia, Idaho,

Tilinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michi-

gan, Minnesota, Mississippi, Missouri, Montana, Nebraska,

Nevada, New Mexico, North Dakota, Ohio, Oregon, South ~

Carolina, South Dakota, Tennessee, Texas, Utah, Wash-

ington, Wisconsin, and Wyoming.

The application was referred to the examiner for hear-

ing and the recommendation of an appropriate order .there-

on. Hearing was held on May 24, 1962, at Oklahoma City,

Okla. Morgan Drive-Away, Inc., Transit Homes, Inc., and.

National Trailer Conyoy, Inc., hereinafter referred to as

. “iy. 7la

Morgan, | Transit, and . National, respectively, oppose the

granting of the application.

_ Applicant presently holds no authority to conduct opere-

tions in intrastate or interstate commerce. The controlling

stockholder of applicant (Jack L. Griffin, hereinafter called

’ Griffin) holds intrastate authority (permit No. 11493) which

authorizes him to tow house trailers to and from all points

in Oklahoma. This common carrier intrastate authority

has been registered with the Interstate Commerce Com-

mission (No. MC-120929), and operations are being con- .

ducted under the second proviso of section 206 (a): of the

Act. Griffin owns and operates five pieces of power equip-

ment (ranging in ovérall lengths of from 11 feet to 15 feet),

all of which are designed and used for the. pulling or towing

of house trailers. In addition, this individual owns some

house trailers which are rented to individuals. He also

owns and operates an automobile repair shop. Sometime

in 1958, a corporation controlled by Griffin sought common _

carrier authority to transport. house and utilities trailers

between points in Oklahoma, on the one hand, and, on, the .

- other, points in the United States. This application (No.

MC-117756) was denied by the Commission, division 1, in its

report decided March 29, 1960.

| Griffin’s intrastate rights were registered with the Com-

mission approximately one year ago, and he is actively-en-

gaged i in the movement of new and used mobile homes. It

in intrastate commerce, and since registration of the rights

he has participated in the movement of from 12 to 18

trailers destined to points outside Oklahoma. He ‘provi

in addition to the movement of. the trailer homes, certain

accessorial services, such as preparing the trailers for

‘movement and setting up trailers at the point of delivery

eithet for the individual purchaser or for display purposes

on dealers’ lots. . The accessorial services entail blocking,

unblocking, setting up the furniture and possibly other fix-

‘needs and for their ex

72a

tures in the trailers, hooking up plumbing and electrical

utilities, and expanding or extending the expando type

trailers, He handled a total of three of the expandos dur-

ing April 1962, This individual alleges full compliance with

however, fined $1,000 by the U. S. District Court for the

- ‘Western’ District of Oklahoma upon a plea of guilty to an

information charging interstate operations beyond the

scope of the registered rights in violation of Part II of -

the Act.

The applicant corporation is inactive at the present time,

but if the instant application is granted the motor vehicle *

equipment and the intrastate rights of Griffin will be trans- —

ferred to it. .Applicant proposes to serve a limited num--

: ber of shippers, and will provide, under ‘contract: to suc

shippers equipment and drivers sufficient to meet their

may be needed or required by shippers.

As of May 22,1962, Griffin’s total assets were $133,596.62,

whereas total liabilities were* only $26,833.82, thus a net

worth of $106,762.80. The ‘applicant corporation at the

time of hearing had no net worth. The pro forma balance

sheet submitted, however, shows that in the event -opera-

fions are instituted this corporation would have total

assets of $12,100, including cash of $2,000, operating equip-

ment valued at $8,600, and Oklahorna intrastate rights '

valued at $1,500.

The application is supported by four dealers of new, used,

_er-damaged house trailexs, and a manufacturer of mobile

homes. The latter, the Founders Investment Corporation

of Kansas City, Mo., has a subsidiary company (Chickasha

Mobile Homes, Inc.), which manufactures mobile homes at

Chickasha and Ponca City, Okla., and Vidalia, Ga. The

facilities at. Clickasha manufactures about 35 mobile homes

* a week, ranging in length from 35 feet to 60 feet, with widths

| ( lusive use. It proposes to offer, in

addition to transportation, any additional services which

73a

of:from 8 feet to 10 feet. About 50 percent of all trailers

manufactured are 60 feet in length. Distribution of the

mobile homes is made through dealers located in an area

extending as far west as Nevada, thence north to the

Canadian line. Mobile- homes are primarily delivered to

dealers in equipment owned and operated by the manu-

facturer, or in vehicles owned and operated by the various

dealers. Shipper’ owns 30 units of equipment and trans-

ports about 60 percent of its Chickasha and Ponca City

volume. About 10 percent or 2 or 3 trailers a week are

handled out Ponca City by National. This carrier is algo

~ used occasionally for shipments moving ‘from the Chickasha

- When deliveries are made in company-owned equipment,

shipper’s drivers are responsible for spotting and block-

ing the mobile homes on dealer lots, setting up dinette sets

and otherwise placing the- home in condition for display,

charges. In addition their duties are to set up and expand

the expando type trailers. The latter represents about \16

percent of the total production. Shipper will sign a con-

tract with the applicant, and expects the carrier to furnish

equipment for its exclusive use. It is further expected that -

applicant’s drivers will be called upon to perform the same

accessorial services as are now proyided by shipper’s own

‘employees. Shipper has some repossessed trailers returned

to the plant for reconditioning.

Shipper has found that existing motor carriers do

not perform a personalized service in the way of

setting up and expanding homes, however, National

at times will set up: those coaches which are not ex-

pandable. In addition, other objections to this car-

rier’s service are that the same driver or drivers are

not always made available, and that it is ‘not equipped

to handle 60 foot trailers in certain States. It knows that

' Morgan can serve Chickasha, but the services of that car-

aN. DONT eee ~s

PS I eee >

SCONE TTS PI)

be eee

74a |

rier has not been used. If the instant application is granted,

shipper: will continue to utilize its own equipment, but.

allegedly private carriage operations will be curtailed. It

has no intention of discontinuing the services of common

carriers. Although, shipper and applicant have not agreed

upon the rates to be charged, shipper believes the cost will .

‘be comparable to that of common carriers.

' B&B Mobile Homés of Oklahoma City is a retail dealer.

in new and used mobile homes, In addition to Oklahoma

City, it has places of business at Lawton, Okla., and Colum-

bus and Biloxi, Miss. It sells or.deals in new house trailers

manufactured by various concerns, one of which (Vaught

Industries) has plants located at Marlette, Mich., Bourbon,

Ind., and Clarion, Pa. In addition, it has obtained new

trailers from a depot located at Atlanta, Ga., and new or

used trailers from: Union City, Mich., Traveres, Fla., Tex-

’ arkana, Tex., Loveland, Colo., and Hutchinson, Kans. Ship-

per opened the Lawton facility in May 1962, and the one

in Oklahoma City about February 1962. Since the latter.

lot was opened, about 15 trailers have been moved there.

Shipper expects to handle about 100 trailers a year at.

each of the two Oklahoma, lots, and of this amount: about

25 percent will move in interstate commerce. The serv-

ices of all three protestants have been used to some de-—

gree on both inbound and outbound shipments, principally in

connection with traffic moving to and from the Mississippi

lots. Such carriers have handled no traffic to or from the

Oklahoma City lot, but two coaches were transported by

Morgan to Lawton. Shipper also has two units of equip-

ment stationed at Columbus which along with factory trans-

port are used to transport traffic to and from all of the lots.

In connection with movements from the factory in equip--

ment other than that owned and operated by the dealer, the

manufacturer generally decides whether factor transport or

regulated motor carriers will be used. ‘Shipments of both

new and used trailers may be made to any point in the

—

Wa -

proposed area. For example recently one trailer was trans-

ported to Las Vegas, Nev., and one to Mather, Calif.

Shipper at times has found the services of. protestants —

satisfactory, however such carriers do not expand the

expando type, trailers, nor do they as a general rule pro-

vide shipper with the particular. driver requested. Shipper

wants the services of a carrier that will provide any and all

services ‘necessary to completely set up the trailer at the

_ point of delivery, and expects such carrier to provide equip- -

‘ment and drivers for its exclusive use. The services of

Griffin have been used for shipments moving in intrastate

commerce, and such service has been satisfactory. Shipper

_ is interested in service principally on shipments moving. to

-and from Oklahoma City and Lawton, and it is willmg to

sign a contract with applicant provided there can be a meet-

ing of the minds on the minimum amount of traffic to be

handled and the rates to be charged. Shipper expressed a

desire to discontinue its private carriage.

Wheeler Trailer Exchange & Park, of OMishoma City,

deals in new, used, and salvaged house trailers. In addi-

.tion, it handles coaches belonging to others on a consign-

ment basis, and operates a 50 place trailer park. It is

a franchised dealer for Melody Home of Fort Worth, and

handles other new trailers which may be acquired at any

point throughout the country. For example trailers have

been purchased at Amarillo, Tex., Albuquerque and Grants,

N. Mex., Aztec, Ariz., and at wadbeelouedl points in Texas,

Kaneda, and Florida. The yearly volume of trailers mov--

ing to Oklahoma City is estimated to be 100, and outbound

traffic would be about the same. This total would include

salvaged or damaged trailers which have -been repaired

at Oklahoma City. Its transportation services are per-

formed by two units of company equipment, and at times

_by Morgan, National, and Transit. In addition, Griffin’s

services have been used for movements within the State of

Oklahoma. Shipper wants to discontinue private carriage,

wy Aree set:

16a Roe nc

-and it desires the services of a motor carrier able and |

willing to set up the mobile homes, procure delivery re-

ceipts, and to do any other chore necessary to make the

coach liveable. In other words it wants a service compar-

to enter into a contract with applicant provided an agree-

ment can be reached on the minimum volume of traffic to

‘be handled.. Protestants have not been requested to per-

form the accessorial services which applicant would be ex-

pao perform, but shipper is of the opinion that com-

‘mon carriers are unable to provide the vee o service

needed:

George Lane Mobile Homes deals primarily 3 in used and

damaged mobile homes at Oklahoma City. Damaged coaches

are generally bought through insurance bids, and have in the.

past been purchased at Columbus, Toledo .and Cincinnati,

Ohio, and at’ undisclosed points in Missouri, Arkansas,

Louisiana, Texas, Kansas, Colorado, and New Mexico. The

used homes are purchased from dealers and others at

various points in this same general area. Shipper deals in

from 120 to 140 trailers a year, and such traffic is handled

partly with the one piece of company owned equipment.

In addition, Griffin has handled some intrastate traffic and -

also some, movements from Oklahoma City to the State

' line where the traffic was interlined with an undisclosed

carrier. Griffin has moved damaged expando trailers, and

in addition he has handled the financial arrangements for

’ some trailers on behalf of shipper. Some of the damaged

trailers require repairs before they can, be moved to the |

Oklahoma City lot for reconditioning, and upon occasion |

shipper has had to send its own employees to make these ~

repairs. The services of a motor carrier able and willing

‘to make repairs where needed and to provide other ac-

-eessorial services is desired by shipper. The latter would

enter into a contract with applicant, and it proposes to cur- _

tail and if possible discontinue the use of private carriage.

| 77a ;

Baker Mobile Homes Sales, Inc., is engaged in the busi- '

ness of buying, selling, and servicing new and used mobile

homes, some of which are of the expando-type. In addition;

it sells mobile homes for others on a consignment basis.

It has sales lots at Oklahoma City and Wichita Falls and

Fort Worth, Tex. Shipper deals in a number of brands of

-.new trailers, and estimates that it handles a total of from

200 to 250 new trailers a year. Of this amount from one-half

to two-thirds involve the Oklahoma City lot, and’ about 40

percent of the sales are made to customers located outside .

of Oklahoma. Used trailers handled in the course of a

year total about 300, of which one-third or more are shipped

_to or from the Oklahoma City facility. Collectively, house

-trailers have been purchased at various points in Arkansas,

Texas, New Mexico, Colorado, Kansas, Missouri, Missis-

sippi, Nebraska, Oklahoma and California. Shipper owns

four transportation units which are used for the move-

ment of mobile homes to and from its respective lots. Such

equipment is used principally for outbound shipments.

Shipper’s drivers, upon delivery, block the trailers, as-

- semble dinette and possibly other furniture, expand the

expando type homes, and at times hook up plumbing and

electrical facilities. Also where needed repairs are made to

- .used trailers before movement to the various: lots. In addi-

tion to private carriage operations, shipper has used the

services of Morgan and National on the movement of both

new and used trailers to Oklahoma City. .Their ‘services .

have not been used on outbound shipments. The actual

transportation services rendered by National and Morgan

is considered satisfactory, but such carriers do not always

furnish the same driver nor do they perform each and every

service provided by shipper’s own drivers or employees in

connection with the private carrier operations. For ex-

ample on a movement of an expando trailer by one of the

protestants to a point in Kansas, shipper had to send a com-.- *

pany employee to set the trailer up. Shipper expects appli-

cant to perform all of the accessorial services now pro-,

;

78a

vided by its employees, and will enter into a contract with

the carrier provided there can be an agreement with re-

spect to the rates to be charged.

Three transporters of house trailers presented evidence

in opposition to the application. Transit holds: common

carrier authority to transport trailers, except freight-

carrying vehicles, in secondary movements, .in towaway

service, over irregular. routes, between points in the United

States, except those in Indiana. It maintains terminals or |

booking agents, insofar as here important, at Tulsa, Altus,

Lawton, and Oklahoma City, Okla., and operates 325 pieces

of leased equipment. It has three pieces of equipment —

stationed at Tulsa, but -maintains no equipment at the three

other Oklahoma -terminals. This carrier. also handles

wrecked, disabled and damaged trailers, and -provides

shippers with ‘the same drivers where requested, and

also provides the extra services shown to be needed by

the supporting shippers, except hooking up plumbing or

electrical facilities, and expanding the expando type homes.

It considers the latter services to be beyond the normal .

duties of a carrier engaged in the transportation business.

Protestant is willing to station equipment at Oklahoma

City if the volume of traffic warrants, and it desires to

participate in the movement of house trailers in secondary

- movements.

Morgan is a common carrier with irregular route author-

ity, insofar as here material, to transport (1) trailers de-

signed to be drawn by passenger automobiles, in initial

movements, in truckaway service, (a). from Lawton and

Chickasha, Okla., to points:in the United States, except Mt.

Clemens, Detroit, and Flint, Mich., (b) from the site of the

plant of El Reno Trailers, Inc., located approximately 8

miles south of El Reno, Okla., to points in the United States,

except. Mt. Alemens, Detroit, and Flint, Mich. and (2)

house, cabin, and bungalow trailers, restricted to secondary

movements, in truckaway and towaway service, between

79a

points in the United States. It operates. between 800 and

900. pieces of equipment, and, insofar as here important,

_ has terminals i in Oklahoma at Altus, Lawton, and Oklahoma |

' /City. ‘Six pieces of equipment are stationed at Oklahoma -

.. City, two units at Lawton, and one at Altus. Protestant

“transports expando type trailers, but does not expand

them. It frequently provides shippers with preferred

drivers, and provides the usual accessorial services such as —

blocking, unblocking, and assembling furniture. This pro-

testant has served the Chickasha manufacturer, and desires

to serve all of the supporting shippers.

National holds common carrier authority, insofar as here

material, to transport (1) house trailers, restricted to sec-

ondary movements, in truckaway service, between points in

the United States, and (2) trailers designed to be drawn ee

‘by passenger automobiles, in-initial movements in truck-

away service, (a) from Lawton and Chickasha to points in

the United States, except Mt. Clemens, Detroit, and Flint,

Mich., and (b) from Tulsa, (except from the plant site

of the Sparton Aircraft Company at Tulsa), Broken Arrow,

_ and Ponca City, Okla., to points in the United States (ex-

cept points in Alaska and Hawaii). It operates around _

652 leased trucks, and has terminals in Oklahoma at Tulsa,~’

Oklahoma City,. Lawton, and Altus. Protestant has sta--

tioned 18, 6, 3, and 2 trucks, respectively at the above ter-

minal points. It transports expando and other typés mo-

biles homes, and has served ‘the Chickasha shipper, alleg-

edly without. complaint. It provides certain accessorial

services, such as setting up house trailers on dealers’ lots,

and. is ready arid able to serve all of the supporting ship-

pers. Protestant believes that a grant of additional author-

ity.1 in this area will affect its overall business.

DISCUSSION AND CONCLUSIONS

_ As shown, the application is supported by a manufacturer

and four dealers of mobile homes. All of these shippers

own some. transportation equipment which is utilized in

_ equipment, as well as drivers, for their exclusive use, and -

-to perform the above as well as any. other accessorial serv- _

80a : ;

the transportation of mobile homes to and from-their places

of business. Collectively, they deal in new, used, and dam-

aged trailers, and their own drivers in making deliveries

completely ‘set up the trailers on dealers’ lots or at pur-

chasers’ ‘home sites.. This setting-up service: may entail

blocking, unblocking, assembling dinette sets or other

furniture, connecting electrical and plumbing facilities,

making minor repairs, and expanding the expando type

homes. Generally, shippers want applicant to: provide

ice which they themselves usually perform. They have

not used for-hire carriers to any great extent, and their

chief complaints or beliefs are that existing common car-

riers do not always furnish the driver or drivers requested,

and that such carriers do not or cannot provide all of the

accessorial services necessary for successful disposal of

their mobile homes. With minor exceptions, the dealers

supporting the application failed to designate the specific

points in which the initial movements would originate, nor

was the past as expected volume from such points given.

In determining whether the proposed service is contract

carriage, and if so whether the issuance of a permit will

be consistent with the public interest and the national

transportation policy consideration must. be given to the

provisions of section 203(a)(15) and 209(b). In No. MC-

117957 (Sub-No. 1) Carlton M. Moyer Contract Caryier Ap-

plication, M.C.C. , (decided: March 22, 4962), the

Commission outlined the proper methods to be utilized in

applying the statutory requirements of these two sections

of the Act, in light of the Supreme Court’s decision in

Interstate Commerce Commission v. J-T’ Transport Co.,

- 368 U.S. 81 (1961). The Commission pointed out that the

first step is to determine whether the proposed operation °

would be that of a contract carrier by reason of the ‘‘ex-

clusive assignment of vehicles’’ and the ‘‘distinct need’? —

8la

tests as prescribed in section 303(a) (15). , ” eatin

_ proposes a service for a limited number of shippers, under

continuing contracts, for the furnishing of transportation

through the assignment of its motor vehicles and drivers

for the exclusive use of shippers, ‘and the transportation

(plus the accessorial services) would be rendered to meet

the express needs of each. shipper. The proposed service

would, in the examiner’s opinion, be that of a contract

carrier as prescribed in section 203 (a) (15).

Upon reaching the conclusion that the proposed service

is contract carriage, then consideration must be given to

the five criteria contained in section 209(b). This section,

insofar as here pertinent, provides:

In determining whether issuance of a permit will ‘be

consistent with the public interest and the national

transportation policy declared in this Act, the Com-

mission shall consider (1) the number of shippers to

be served by the applicant, (2) the nature of the serv-

ice proposed, (3) the effect which granting the permit

would have upon the services of the protesting car-

riers, (4) the effect which denying the permit would

have upon the applicant and/or its shipper, and (5).

te — character of that shipper’s require-

gent .

1This portion of the Act reads as follows: .. ea -

The term ‘‘conf¥act earriage by motor’ vehicle’ means any

person which engages in transportation by motor vehicle of

passengers or property in interstate or foreign commerce, for

- compensation (other than transportation referred to in para-

graph (14) and the exception therein), under continuing

contracts with one person or a limited number of persons

either (a) for the furnishing of transportatidu services through -

the assignment of motor vehicles for a continuing period of

time to the exclusive use of each person served or (b) for the

furnishing of transportation services designed to meet the

distinct need of each individual customer.

82a

With respect to the five criteria outlined above, it

is clear that applicant proposes to serve a_ limited

- number of shippers and that it proposes’ to provide

services tailored to meet the:express desires. of the ship-

pers. The effect that denying of the permit would have

upon applicant presents no serious problem since it holds

no authority in its own right from the Commission. There |:

has been no particular change in the character of shippers —

requirements: since they rely principally on private car-

riage, and have used the services of protesting common

carriers for only a small -amount of their traffic, either

inbound or outbound. ‘The main questions for consideration

are.what effect a denial of the application would have upon

the shippers, and what effect a grant of any authority would

have upon the protestants. Shippers évidence concerning

the territory in which the-traffic would move is somewhat

indefinite, and considering this fact along with statements

that certain of the shippers would continue to utilize their

their own vehicles, it does not appear that a denial would

have ‘any material adverse effect upon shippers. On the

other hand, protestants, do not offer all of the accessorial

services desired by the shippers. They are not handling

much traffic for shippers, and at first glance it would ap-

pear that a grant would not materially affect their over- |

all operations. It must be born in mind, however, that

protestants are motor common carriers experienced in the

transportation of mobile homes, and they hold extensive

authority from the Commission. They perform or are

willing to perform all of the accessorial seryices desired,

except repairing trailers, expanding the expando type

homes, and the hooking-up of electrical and plumbing

facilities.. It is the position of some protestants that the”

‘latter services are matters wholly unrelated to transporta-

tion and therefore can not be —- by regulated

motor carriers.

The services contemplated under sections 203(a)(15) and’

209(b) of the Act relate to transportation, and the question

* 83a

\ .

which,must be considered is whether shippers, in conjunc-

tion with applicant, can in order to acquire ‘the services

of a contract carrier add so called accessorial, services

which go beyond what is required of carriers to meet the

requirements of the public interest and the national trans-

pottation policy. It is noted that applicant’s proposal

is not geared to aid production and the distribution of trail-

ers from the standpoint of an on-call expedited service,

rather, it is geared to the promotion and sale of trailers.

There .appears to be considerable merit in protestants -

- arguments that certain of the accessorial servi

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