# Appendix — National Trailer Convoy, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1287%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1969 - **Citation:** 394 U.S. 849 ## Text Pr _ la APPENDIX A UNITED. STATES DISTRICT COURT N. D. OKLAHOMA . CO ae ‘No. 67-C-150 Nationa, Trarer Convoy, Inc., et au, Plaintiff's, SN ; Vv. Unirep States or America, and INTERSTATE CoMMERCE Commission, Defendants... . Nov. 21, 1968 a 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, EX f- 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, | I 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. I 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 (c) setting up ‘‘expando trailers’’’. 1 Expando trailers can be expanded to larger dimensions at desti- nation points or folded up for. towing on the highway. | 5a 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 6a t to meet individualized transportation needs.. The terms “ " 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 [OOF em aren . FF A OL ELK E IEEE OT Sy IED WS wre Re IN Seem MERE » 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 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 — 4 ee 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 r . - 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. 7 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 ~ ° . F 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 v 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 T 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 — e 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- e 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 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 r 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. 7 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 m= 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 a 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 ‘ 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- able to that provided by its own employees, and it is willing © 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-, ; ee 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 services to be _ performed by applicant exceeds those normally connected with transportation. The examiner is of the opinion that a service tailored -to meet a shipper’ s distinct need must involve services nor- mal to the industry and incidental to transportation. In * Petroleum Carrier Corporation Extension—Panama City, _ Fla., 82 M.C.C. 573, the Commission, Division 1, in dealing with an accessorial service wm ‘was aat a part of trans- portation, said: ‘‘The auxiliary service proposed by applicant would, if allowed as the basis for the grant of authority, en- courage those seeking to enter the transportation field to propose novel non-transportation services as a means of thwarting the effort of existing carriers _ to provide economical and efficient service within the scope of their authorities. as Although, the above case involved a common carrier, the principle established therein is equally applicable to con- tract carriers. Protestants can provide the reasonable transportation requirements of shippers, and the examiner concludes that the application should be denied. . DDO LIME LID em ae WN Ce teeth a , A bl --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1287%3A2. Public record. Not legal advice.