# Appendix — Washington Metropolitan Area Transit Commission v. D. C. Transit System, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0719%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1967 - **Citation:** 389 U.S. 847 ## Text A-1 Ynited States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 20,188 D.C. Transrr System, Inc., PETITIONER v. Wasutxcrow METROPOLITAN pm Transit Commission, RESPONDENT ~ W.M.A. Transtr CoMPaNy, INTERVENOR. , Petition to Review Orders of the Washington Metropolitan Area Transit Commission Decided March 7, baad Mr. is M. Spear, with cba Mr. Manuel J. Davis was on the brief, for petitioner. _ Mr. Russell W. Cunningham for respondent. Mr. Stanley H. Kamerow, with whom Mr. Allan L. Kamerow was on the brief, for intervenor. Before Fany, McGowan and Tamm, Circuit Judges. McGowan, Circuit Judge: This is an invocation of the power vested in us by Congress to review orders of the - Ww ashington Metropolitan Area Transit Commission. This A-2 “ review authority is byt one facet of the Waghington Metro- politan Area Transit Regulation Compact, Public Law 86-794, 74 Stat. 1031 (1960), which brought ‘the Commis- sion into being as .part of a comprehensive scheme, transcending state lines, for. the regulation of mass transit." The orders under review. directed two bus companies— Alexandria, Barcroft and Washington Transit \Company, Inc.'(ABW), and W.M.A. Transit Company (WMA)—to extend their routes from their present terminals at 11th and 12th Streets and Pennsylvania Avenue, N. W., to the vicinity of 18th and. L Streets, N.W. The complainant here is D.C. Transit System, Inc. (Transit), which provides bus service within the District of Columbia generally and, in particular, along the route extensions of ABW and - WMA ordered by the Commission. WMA has intervened here in support of the Commission’s action. We have con- cluded, for the rea%ons hereinafter appearing, that that - action must be set aside. ) : Geen | Transit has pressed upon us a number of respects in which it asserts the Commission has erred. We do not 1The regulatory provisions are contained in a Compact entered into by Virginia, Maryland, and the District of Columbia. The Compact is set forth in a statute wherein | Congress has, as required by the Constitution, given its. consent to it. Other provisions of the statute,. as distinct from the Compact, provide among other things that .(1) . the powers of the Public Utilities Commission of the District of.Columbia with respect to transportation shall be suspended during the life of the Compact, and (2) the rights, duties, and obligations created by the Act of July 24, 1956, Public Law 757, 70 Stat. 598, granting a franchise to D.C. Transit System, Inc., shall not be impaired or affected by anything _ in the Compact or in the statute consenting to it. The statute _ consenting to and embodying the Compact is set forth in 1 D.C. Code $§ 1410-16 (1961 ed.).* ewan A-3 need. to address ourselves to more than ‘the essential premise upon which the Commission proceeded. This was _ that the grandfather certificates held by ABW and WMA encompassed the routes as extended, and that all that the - Commission had to consider, before ordering ABW and WMA to provide the additional service, was whether there - was any significant demand for it. As the Commission put — the matter in its order under review, if what it termed: the “crucial issue” of the scope of the grandfather cer- tifieates-be decided in favor of an expansive reading of - them, then the. “secondary “issue” of the public interest “can largely be determined by an inquiry into the demand for the proposed service.” Thus it was that upon evidence designed to show that ABW and WMA riders would be convenienced, by the route extensions and would make use of them, and without reference to the adequacy of the existing service being provided by Transit or the impact upon Transit and its riders of the resulting loss of rev- enue, the Commission commanded the enlarged service to be supplied. In so deciding, the Commission, in our view, unacceptably departed from the authority conferred upon it by the Compact. (When Congress consented to the Compact in 1960, it elected to treat the metropolitan area of Washington as a geographical unit,.with the Commissién as the central licensing and rate-making authority. No one could engagé in the transportation covered by the Compact except upon its terms; and these included the issuance by the Com- _ mmission of a certificate of public convenience and necessity. / Recognizing the equities underlying the familiar “grand- father” approach, the Compact expressly contemplated - the issuance of certificates, without new or further proof of public convenience and necessity, to those “bona fide “~ engaged in transportation” on the \effective date of the statute. ABW and WMA sought and were given such grandfather certificates. we were sa to any proof A Z A4 | of public convenience and necessity. ‘The transportation they were providing on the effective date of the Compact extended from various points in Virginia“and — Maryland; respectively, to their terminals. at 11th and 12th Streets and Pennsylvania Avénue, N. W., in the District: Their ‘grandfather certificates, by statutory definition, could cover no more, and, as issued, they do not purport to.? II 9 The Commission may, like most regulatory bodies, require existing certificate holders to extend their services beyond those previously authorized. This power is reposed in Section 4(e) of the Compact, the full text. of which is set forth’ in the margin.’ It will he observed that, in 2 It is familiar law that the grandfather principle in public utility licensing is founded upon actual—and not potential— operations. United States v. Carolina Freight Carriers Corp., 815 U.S. 475. (1942). And see Holiday Tours, Inc. v. WMATC, 122 U.S.App.D.C. 196, 352 F.2d 672 (1965), and Gadd v. WMATC, 121 U.S.App.D.C. 7, 347 F.2d 791 (1965). There ts no reason to suppose that Congress read the Compact language of “bona fide engaged in transportation .. . on the effective date of this Act” in any manner contrary to this principle. See also Nashua Motor Express, Inc. v. United States, 230 F. Supp. 646 (D.N.H. 1964). ’“The Commission may, if it finds that the public con- venience and necessity so require, require any person subject to this Act to extend any existing service or provide any additional service over additional routes within the Metro- oe District; provided, however, that no certificate shall issued to operate over the routes of any holder of a certificate until it shall be proved to the satisfaction of the Commission, after hearing, upon reasonable notice, that the service rendered by-sttch certificate holder, over such ‘route, is inadequate to the requirements of the public necessity _ and convenience; and provided, further, if the Commission shall be. of opinion that the service rendered by such certifi- cate holder over such route is in any respect inadequate to . * ‘ =o ————————oeeeeeererereereerrerrrrrrrroorrrrere A-5 addition to a general finding of public convenience and . necessity as a condition of such extension, there are preeise . limiting provisos applicable to those cases where the service extension is over the routes of another certificate holder. These are (1) that, the latter’s service is found to be inadequate, and (2) that,.if so found, he be given a chance to’ remedy it. The Commission made no such : finding i in ‘respect of Transit in this case.‘ Before the advent of the Compact, a carrier coming 2, into: the District of Columbia from Maryland or Virginia’ needed: certificate. authority for this -interstate service . | from the Interstate Commerce Commission. It was: the — . practice of that agency to specify only the District of Columbia as the terminus of the service, leaving it to . local regulatory authority to control the street routings -, and’termini. within the District. This latter authority for _ years was. exercised by a Joint Board made up of the Public Utilities Commission of the District and the ‘District the requirements of the satis: necessity and convenience, such certificate holder shall be given reasonable time and ‘opportunity to remedy such inadequacy before any certificate shall be granted to operate over such route; and further. provided that no person subject to this Act may be required to extend any existing service-or. provide any additional _- service over additional routes within the Metropolitan Dis- » ‘trict unless the carrier is currently earning a reasonable return on its operation as a whole in performing transporta- tion subject to this Act.” ‘Transit intervened in the proceedings instituted ‘by. the Commission looking toward an extension of the services of | ABW and WMA; and it participated in the hearing. As the Commission’s decisional order notes, Transit urged in - . opposition that it would lose “a great amount of traffic which ' it now handles via a transfer arrangement,” and that new . certificate authority could not, under Section 4(e), be given ABW and WMA without a finding as ‘to inadequacy of Transit’s service and the affording of dn opportunity: to Transit to repair any -inadequacy found. —_—— OOO OOOO Ee A-6 Commissioners. It was from this source that ABW and WMA originally received the authority te traverse certain streets from the District line. to the terminal points at 11th and 12th Streets and Pennsylvania Avenue. Prior to fhe Compact, they had no authority to extend their opera- tions beyond these points. | 8 The Commission now appears‘ to assume that, sinee it has in effect succeeded to the authority of both the Inter- state Commerce Commission and the Joint .Board of the District of Columbia, it may treat ABW and WMA as _— heing already clothed-with certificate authority to go any- where in the District that the Commission thinks desirable. On this theory, the protections of Section 4(e) of the Compact for existing certificate holders are not applicable, “sand the Commission need not regard route extensions of the ‘kind here ordered as ‘néw and competitive grants of certificate authority. We think this assumption is clearly at’ odds with the Congressional purposes to be discerned | from the Compact and the statute approving it. What. 5 As remarked above, Note 1, Congress was. careful to make clear that no rights of Transit under its franchise were to be impaired by the Compact. Section 3 of the franchise statute is as follows: _ ees ; oe No competitive street railway or bus. line, that is, bus or railway line for the transportation of passengers of the character which runs over a given route on a4 fixed schedule, shall be established to operate in the ‘District, of Columbia without the prior issuance of a certificate by the Public Utilities Commission of the District of Columbia (referred to in this part as the “Commission”) to the effect that the competitive line ig necessary for the convenience of the’ public. We need not decide whether this adds anything to the more specific protections contained in’ Section 4(e) of the Compact, but it emphasizes a Congressional concern that Transit was to be. protected against competition except as _ such competition was found to be necessary to the public ca A-7 the Joint Board or the Public Utilities Commission of the ‘ District of Columbia might have done before the 1956 franchise statute and the 1960 Compact are not the ‘measure of the. Commission’ 8 authority now. Transit has been given no exclusive and permanent monopoly. The Commission can, with due observance of the réquirements of the statute and upon proper findings, grant certificate authority competitive with that held by Transit. What the Commission cannot do is to extend the routes in the District of ABW and WMA in a manner competitively adverse to Transit without taking into account the limiting conditions ‘contained in Section 4(e), and that involves a concept of the public convenience and ~ necessity which goes far beyond that of the riders of ABW and WMA alone. | , There is no serious dispute owe that the route exten- sions ordered will have a substantial financial impact upon Transit. The Virginia resident who formerly had to continue his journey from 12th and Pennsylv ania to 18th and L on Transit now can complete that journey on ABW without the need of using Transit. This may be a fine thing for him, but his convenience is not, under the convenience. The latter concept would seem to embrace a broader view of the public interest than the Commission thought was involved in this case. ¢ There was testimony by Transit that it would lose 171A¢ from the joint-fare arrangement previously in effect for each passenger from Virginia. or Maryland who desired to con- tinue by bus to the 18th and L Streets area. This was esti- mated as entailing a revenue loss of from $130,000 to $600,000 per year. The Commission’s ‘Staff witness, although not accepting the accuracy of. these: estimates, did not regard the differences as important because he would recommend . the route extension in any event. A-8 | \ to provide good. transportation service to the residents of . the District of Columbia at reasonable rates is intimately related to the degree of utilization of its service. In transportation, as elsewhere, volume critically affects . ‘¢apacity to provide the best service at the lowest rates. ~ Te, take away a part of Transit’s volume by putting new competition on its routes may conceivably have a signifi- cantly adverse impact upon those bus riders in the District who must look to Transit for intra-District service. We do not say that the Commission could under no circumstances do what it has done.’ What we do say is that such action must be taken in conformity with the statutory requirements and by reference to the statutory standards. ‘That was clearly not done here; and accord- ingly, the route extensions for ABW and WMA ordered ‘by the Commission must be set aside. It is so ordered. y A-9 BEFORE THE WASHINGTON METROPOLITAN AREA | * ‘TRANSIT COMMISSION - WASHINGTON, D. C. ORDER NO. 581 IN THE MATTER OF: re 4 A aks Served Order Instituting Investigation to March 25, 1966 . Determine Whether WMA Transit . Company and Alexandria, Barcroft; Docket No. 91 and Washington Transit Company, : Should Extend Bus’ Routes in — ; ington, D. C. ees ao _ APPEARANCES: STANLEY H. KAMEROW. 1025 Vermont, Avenue, N. W., Washington, D. C., appearing on } ne of WMA Transit Company, Respondent. S. HARRISON KAHN, ‘and ROBERT T. MITCHELL, JR., 733 Investment Building, Washington, D. C., appearing on behalf of Alexandria, Barcroft and Washington Transit ? Company, Respondent. MANUEL J. DAVIS, 1629 K Street, N. W., Washington, .D. C., appearing on behalf of Washington, Virginia and Maryland Coach Company, Inc., Intervenor. JOHN R. SIMS, JR. and HARVEY M. SPEAR, 3600 M Street, N. W., Washington, D. C., appearing on behalf of D. C. Transit System, Inc., Intervenor. RUSSELL W. CUNNINGHAM, 1815 North Fort Myer Drive, Arlington, Virginia, appearing on behalf of the - Washington Metropolitan Area Transit Commission. This matter came before the Commission upon the recom- _mendations of the Engineering staff to require A. B. & W. Transit Company (“A. B. & W.”), and WMA Transit Company A-10 (“WMA”), to extend their routes to an area in the vicinity of 18th and L Streets, N.W., Washington, D. C. At the present time the service of these carriers generally terminates in the vicinity of 11th and 12th Streets and Pennsylvania Avenue, N.W., Washington, D. C. Under the staff proposal, _ A. B. & W. and WMA would establish additional terminal | points in the vicinity of 18th and L Streets, N:W. _ By Order No. 482, served May 25, 1965, the Commission - ordered that an investigation be made and hearing held :con- cerning the propriety and reasonableness of the staff's rec- _ ‘ommendations discussed above. A. B. & W. and WMA were made respondents and D. C. Transit System, Inc., (“D.C. Transit” or “Transit”), and Wash- ington, Virginia and Maryland Coach Company, Inc. (“W. V. & M.”), were permitted to intervene in the proceeding. Pub- lic hearings were held on June 22, August 10, 11, 13 and © 17, 1965. In addition to the voluminous oral testimony, | . ‘some one hundred eighty-six (186) exhibits were’ offered into evidence, of which four (4) were not received. The Commission also had the benefit: of briefs. - ‘ Prior’ to and during the course of this proceeding, several motions were filed, including a motion to terminate the pro- ceeding, a motion for proposed report and‘a motion for oral arguments, the latter of which was filed subsequent to the filing of briefs. The examiner: properly denied some of. these motions, and those motions which were not denied are hereby denied. The Commission is of the opinion that the ' evidence adduced at the hearings and briefs of counsel are more than adequate to enable the Commission to reach a fair and equitable decision in this matter, and that oral argu- ments would not contribute materially to the cociten ate ing process. The staff presented the testimony of Mr. Charles W. Over- house, the Commission’s Chief Engineer; Mr. Paul W. Fore- man, Defense Coordinator for the General ‘Services Admin- istration; Mr. William D. Heath, Executive Director, Motor Vehicle Parking Agency of the District of Columbia; Mr. A-11 Daniel J. Hansen, Deputy Director of Traffic Engineering and Operations for the D. C. Department of Highways and Traffic; and Mr. Edwin L. Kesler, a resident of North Springfield, Virginia. . Respondent, A. B. & W., presented the testimony of Mr. Richard F. Lawson, its Operations Manager, and Mr. George R. Snyder, a Certified Public Accountant employed by A.B.&W: A.B. & W., while admitting it held appropriate | authority to serve the area proposed by the staff, opposed _the proposed route extensions on the ground that the pro- posed service would be uneconomical, contending that the proposed service would ‘result in additional expenses without _ an attendant increase in revenues. ; os Intervenor, D. C. Transit, presented the testimony of Mr. | William E. Bell, its Assistant Vice President, Research and: - Development; Mr. Gordon Phillips, its Associate General Counsel; Mr. John R. Sims, Jr., its Associate General Coun- sel; and Mr. Parker C. Peterman, its Vice President and Comptroller.. D. C. Transit opposed the proposed route extensions on two grounds, namely: (1) that the proposed service would lure away from it a great amount of traffic it now handles via a transfer arrangement. and (2) that the respondent-carriers’ certificates do not authorize the pro- ‘posed transportation, and, because of this fact, are not: en- titled to such authority until the Commission finds that the existing service is inadequate and D. C. Transit is given the opportunity to correct any deficiencies found to exist in the present service. Intervenor, W. V. & M., presented the testimony of Mr. S. A. DeStefano, its President, in er to the proposed route extension. Respondent, WMA, presented rebuttal. Satanic of its Controller, Mr. Samuel A. Sardinia. WMA agreed with the staff’s position that it holds appropriate authority from the Commission to operate the proposed service, and is willing to institute the proposed service if ordered by the Commis- — sion. A-12 The staff recommended that the Commission require A.B.& W. and WMA to extend their present service to the . vicinity of 18th and L Streets, N.W., by route authorizations . since in the staff’s view, the certificates of public conven- ience and necessity of both carriers already authorize such | operations. | 7 There are two basic issues involved in this, proceeding. The crucial issue is whether or not A. B. & W. and WMA - presently have the authority by virtue of their existing cer- tificates of public convenience and necessity to perform the _ proposed transportation. If the present certificates of these carriers authorize such transportation, D. C. Transit and — W. V.& M. cannot be heard to complain; the Commission will be. merely requiring A. B. & W..and WMA to do what they are by law required to do under their existing certificates of public convenience and necessity. If A. B. & W. and WMA already hold appropriate authority to perform the proposed transportation, the secondary issue becomes ‘one of deter- mining whether or not it would be in the public interest to require such transportation. The public interest question can be.largely determined by an inquiry into the demand - for the proposed ‘service. The answer to the crucial question as to whether or not the certificates of A. B. & W. and WMA authorize the subject transportation appears to lie in the certificates themselves. Before looking to the actual language of the certificates, how- ever, it is necessary to consider the circumstances surrounding their issuarice. Both certificates were granted pursuant to , the “grandfather” provisions of the Washington Metropoli- tan Area Transit Regulation Compact (“Compact”). In the case of WMA, it had, before the creation of the Commission, - operated within Prince Georges County, Maryland, under authority granted to it by the Maryland Public Service Com- mission; within the District of Columbia, by virtue of the | authority granted by the District of Columbia Public Utili- ties Commission ?(“PUC”); and in jnterstate commerce be- : es Now the District of Columbia Public Service Commission. / A-13 tween points in Maryland and points in the District of Co- . lumbia, under certificates of public convenience and necessity granted by the Interstate Commerce Commission (“ICC”). In this latter franchise, as was its custom, the ICC“ specified the terminal service (i.e., between: Maryland points, Washing- ton, D. C.), and specified the routes in Maryland over which the service was to be operated, to the District of Columbia — line. Treating the District of Columbia as a city, the ICC ‘did not specify the street routings or terminal locations. All- of these pre-compact authorities, plus exempt operations,’ _ formed the basis for the WMA “grandfather” claim, and the resulting certificate. issued by this Commission combined all of them into one document. In the case of A. B. & W., the above described background .'’ is applicable, except that its operations are. between Wash- ington, D: C., and the Northern Virginia area, comprising Alexandria and parts of Arlington and Fairfax Counties. Its ICC authority, similarly, provided for regular-route, common carrier service between Washington, D. C., and points in Vir- ginia.° The-“grandfather”’ certificate issued by the Commis- sion encompassed all of A. B. & W.’s prior authority. D. C. Transit .was a similar recipient of a “grandfather” certificate, which was based on pre-compact authority, namely a franchise from the Congress to operate a mass transporta-. tion system within the District of Columbia and between points within the Metropolitan area, subject “to the rights to render service within, the Washington Metropolitan Area possessed, at the time 4this section takes effect, by other . common carriers of ‘passengers . . ,”° and certificates and permits ‘issued by the ICC and the Maryland Public Service 2 Exhibit 84, 1.C.C. Certificate of Public Convenience and Necessity, = M.C. 3677, dated February 24, 1954. 3 Exhibit 83, 1.C.C. Certificate of Public Convenience and Necessity, | - M.C. 1800, dated August 7, 1951. r * july 24,1956. « 5 b C. Transit Franchise, Title I, Part 1, Section 1, P.L: 757. A-14 Commission. It is readily iin that the iiiiieiadailed authority antecedes Transit’s franchise by several years,Sand — the authority granted by said franchise was anne to the rights contained. in the certificates. The ICC certificates do not include any restrictions on . the rights of the respondent carriers to serve any area of - Washington, D. C. in interstate transportation. They were, therefore, authorized to transport passengers in interstate transportation to any point in the District .of Columbia, subject to local traffic and routing regulations imposed by the District of Columbia. The District of Columbia, through a Joint Board, composed of the PUC and the Commission- __ ers of the District of Columbia, ’ had entered many directive orders of this nature, some of which are exhibits in this pro- ceeding. These.routing orders served the same function as this Commission’s route authorization. | See, for example, Exhibit 86, which is a compilation of orders® ‘of the PUC deal- ing with re-routing, institution of new terminals, and estab- lishment of fringe parking lots. It should be noted that appar- ently the PUC recognized that the carrier had the necessary certificate operating rights, as there is'‘no mention of certifi- cates of public convenience and necessity - the only criterion being the “public interest.” In 1955, ‘the PUC hada ee before’ it in which _ similar issues were involved. ‘WMA had requested an exten- sion of a route within the District of Columbia. Transit’s _ predecessor Capital Transit, appeared in opposition, alleging that the change of route would make it competitive with Capital Transit’s service, and that under the terms of Section by The certificates referred to herein are-revised. The respondents have been so engaged in interstate operations for many, years preceding ) - dates on the revised certificates. , : ,D. C. Code 40-603(e), 1961 Ed. | 8 including: D. C. Public Utilities Commission Order No. 2377, dated September 9, 1942;-Order No. 4224, dated October 7, 1955. A-15 4 of the Merger Act (Section 44-201, D.C. Code, 1951), the PUC could not:permit the extension in route without: a find- ing that public convenience required the extension. The PUC held that a certificate of public convenience and neces sity was not required under Section 4 of the Merger Act.? The language of that section is almost identical with that in the Franchise. | Gee ee eat As previously discussed, the pre-compact operating rights of these carriers were consolidated under a “grandfather” claim, and appropriate certjficates were issued by this Com- _ mission. The A. B. & W. Certificate (No. 11), provides, in part, as follows:!° = - | , REGULAR ROUTE eae ee Passengers and their baggage . . .. over regular routes. Between Washington, D. C., and Virginia, between’ Washington, D. C., Maryland and Virginia, sérving. all intermediate points; restricted’ however unless otherwise specifically provided, against the trans- portation of intrastate passengers in Virginia, Mary- land, and the District of Columbia, as follows: No. 1 From Fort Belvoir, Virginia, over U.S. Highway No. 1, to junction Virginia Highway’No. 617, thence - over Virginia Highway No. 617 to junction Virginia Highway No. 350 (Shirley Memorial Highway), thence . over Virginia Highway 350 to Washington, D. C.,and « ~ return over the same route. The WMA Certificate (No. 8) provides, in part, as follows: _ REGULAR ROUTE | | Passengers and their baggage, and express, in the same vehicle with passengers. ? f ¥ : y a __ ° Exhibit 87, Public Utilities Commission Order No. 4158, dated "January 28, 1955. Sn ae . 0 Exhibit No. 2. 11 Exhibit No, 3. AAA STA i iS TONE a i OR eS a cn Mak et A a a al nk A a AE A-16 : ot ’ Between Washington, D. C., and points in Maryland; and between points in Maryland, serving all interme- diate points; restricted, however, against the transpor- tion of intrastate passengers in the District of Colum- bia. ° thar No. 1 From Washington, D. C. over city streets to South- ern Avenue, thence over Business Maryland Route 4,- _ 56th Avenue, Maryland Routes 214, 389, 704, Green- leaf Road, 82nd Avenue, Barlowe Road, Maryland ° Route 202, Prince Georges Avenue, Hawthorne Street, \ + «© °73rd° Avenue, Forest Road, 74th Avenue. to Kent ste Village, and return over the same route. % In not designating, specific streets within the District of. Columbia, this Commission clearly followed the procedure of the ICC. .Years ago, the ICC adequately answered the charge similar to that raised by Transit herein. In refuting a claim that city streets must be designated, the ICC said: . To the contrary, in authorizing operation over a route : traversed within municipalities or with. the routes between adjoining municipalities, it has not been our — general policy to specify or designate the streets over _ which operations may be conducted except in some - few instances. Ini such instances, however, the streets have been specified or named in the authority granted and a carrier holding such authority of course may not ‘operate within the municipalities authorized over streets | ~ other than those specified. For an example of where we ‘have specified certain streets in the issuance of a certificate, see Lincoln mae 5 geomet 12-M.C.C. 184. But where the streets within a municipality have not been designated by us, and we have authorized op- erations over city streets, it seems.clear that the carrier is authorized to operate over any city street within the municipality or between adjoining municipalities, and a review of the cases involving this question confirms Moreover, it is to be noted that in authorizing the transportation of passengers between Manhattan and points in the so-called’ short haul, mass transportation area, city streets are not designated within Manhattan. A-17 If a carrier’s certificate does not specify the city streets over which it may conduct operations, it seems obvious ‘that it may conduct such operations over any city street, _ '» otherwise it is doubtful whether changes in operations within Manhattan could be made subject only to the approval of the police department ofthe City of New . York as is now true, in view of the certificate provi- . sions of the Act. Hudson Bus Transportation Co., Inc., Passenger Service, 5 Fed. Car. Case 31, 197 (1946). In another proceeding before the ICC, A. B. & W. had requested authority to serve the Washington National Air- . port. At.that time it held a certificate authorizing regular route operations between Washington, D.C. and Mt. Vernon, Virginia, serving all intermediate points. The ICC pointed out that A. B. & W.’s existing authority accorded it the right: to serve said airport. The ICC then said: Such operations would be no different, insofar as regu- lation. under the act is concerned, from operations by - applicant over the highways and’ streets of Alexandria, ~ another intermediate point on the same route. Appli- . cant’s right. to operate over any public highway or’ | street within the municipal limits of Alexandria, sub- . ject to all lawful requirements of that city, could not +» well be questioned by anyone.: A. B. & W. Transit Company, Extension of Operation — Washington Na- _ tional Airport, 30 M.C.C. 618, at Page 620. The Commission can only conclude that the certificates held by A. B. & W. and WMA already authorize the proposed service extensions, and these carriers-may be required to pro- vide the proposed service, ‘through route authorizations, under the terms of théir certificates. The Commission will now discuss the issue of whether or not it would ‘be in the public inferest to require’ A. B. & W. and WMA to extend their routes as proposed pursuant to their certificates of public convenience. and necessity. The primary basis for the Engineering staff’s recommen-; dation that the present service of A. B. & W. and WMA be , extended to the ay of 18th and L Seapets, N. W., ‘was \ A-18 an extensive origin-destination survey of the present patrons of these two companies. .The Commission’s Chief Engineer testified at length concerning this survey. The record shows that in February of 1965, A. B. & W. and WMA were con- tacted by the Commission in an effort to seek their coop- eration in conducting the aforementioned survey. The Com- . panies agreed. to bear all expenses incurred in connection with the survey. On March 22, 1965, during the morning peak period, between approximately 6:00 A.M. and 9:30 A.M., postal card questionnaires were distributed to all A. B. & W. and WMA patrons traveling inbound to points in Washington, D. C. The postal cards could be returned to the driver or dropped in the mail, postage free. A total of 22,000 cards were printed; 16,000 for A. B. & W. and 6,000 for WMA. Approximately 11,000 cards were distributed by A. B. & W. and 1,500 by WMA. According -’ to the testimony of Mr. Overhouse, excellent results were - obtained from the survey. Mr. Overhouse stated as follows: Of the cards distributed, approximately 6;000 were returned. Some of these could not be used because they were illegible, ambiguous, blank, etc. A:total of 5,166 cards were usable; 4,366 from the pa- trons of A. B. & W. and 830 from the patrons of WMA. The destinations expressed on the cards were analyzed, and it was the Engineering Department’s view that a _ patron. who could ride a bus to within three blocks of his ultimate destination without transferring was being served conveniently and adequately. Conversely, it - was considered that if a.through route would not take him within three blocks (approximately ‘ mile) of his. ' “downtown destination,” his service was inconvenient: and inadequate. — : . ? Using the above as a guide, it was noted that approxi- mately 41% of present patrons were not being served satisfactorily because their destinations were farther into the northwest section of the city than the present ter- _minals of their companies would permit them to ride. Analysis of the total sample disclosed the following: ate A. B. & W. TRANSIT COMPANY PSGRS % Total Usable Sample 7 4336 100.0 Presently Served Adequately -. ' 2645 61.0 Additional That Would Be Served by Route to 18th & L, N.W. - 1110 . 25.6 Remainder Served Inadequately 581 13.4 | WMA TRANSIT COMPANY Total Usable Sample . | 830 100.0 Presently Served Adequately 394 47.5 Additional That Would Be Served : By Route to 18th & L, N.W.. 303 37.0 Remainder Served Inadequately 133 15.5 Based on the survey, the Engineering Department has concluded that at present, 39% or 1,691 A. B. & W. pas- sengers who ride on a normal weekday. during the A.M. commute period, and who responded to the survey, are not being adequately served at their destinations in Washington, D. C., and that this number could be re- duced .to 13.4% or 581 passengers, by extension of that Company’s routes to 18th & L Streets, N.W. Likewise, §2.5% or 436 patrons in the WMA sample are not be- ing served adequately, and that an extension of that - -Company’s routes to 18th & L Streets, N.W., would reduce the number to 15.5% or 133 passengers. Other smaller concentrated areas of inadequate service. were also pointed up by the survey, but we found that extensions into the largest of these areas would only adequately serve a minimal percentage of present riders. In each case, extension of service into these smaller _ areas only produced additional satisfactory service to less than 5% of either Company’s patrons. . ' It was felt that the major service-problem area was to the northwest of the present terminals of A. B. & W. A-20 and WMA, and that the round-trip extensions of 2.15 miles of A. B. & W. lines, and 2.80 miles of WMA lines would serve, at the absolute minimum, an additional 1,400 of these Companies’ present daily peak commute period passengers at a satisfactory level. The -thrust of Mr. Overhouse’s testimony was ‘that the patrons of A. B. & W. and WMA are not being adequately served under the present scheme of operations. According to the results of the survey, up to 25% of A. B. & W.’s patrons whose destinations are Washington, D. C., would be directly benefitted by route. extensions of A. B. & W. into the vicin- ity of 18th and L Streets, N.W.; up to 37%. of WMA’s patrons would be benefitted. . The testimony. of the other witnesses testifying on behalf of the staff, including Mr. Foreman, Mr. Heath, Mr. Hansen, and Mr. Kesler, corroborates and substantiates the results of the survey, that the 12th Street and Pennsylvania Avenue Terminal of A. B. & W. and the 11th Street and Pennsyl- _ yania Avenue Terminal of WMA no longer adequately serve the needs of a substantial number of the patrons of these carriers since their present destinations are in the vicinity of 18th and L Streets, N. W. Mr. Paul Foreman, Defense Coordinator for the General Services Administration, is uniquely qualified to recommend solutions to transportation problems as they relate to Fed- eral employees in the: Nation’s Capital. Mr. Foreman testi- fied that since 1962 there has been a tremendous increase in _ the number of federal employees located in the mid-town, 18th and L Streets area. He concluded that the proposed extension was needed, and in addition to benefitting exist- ing riders, would attract those now using other modes “ transportation. Mr. William D. Heath, Executive Director, District of Co- lumbia Motor. Vehicle Parking Agency, testified in relation ‘to further growth of the downtown area. Mr. Heath stated that in 1955 the employee population in the area of 18th and L Streets, N.W., was approximately 26,000. By. 1965, the employee population in this area had increased to ap- ‘asad hd A-21 proximately 45,000, or an increase of about 70%. When buildings under construction are completed. and occupied they will have approximately 56,000 — or a gain: of over 100% since 1955. . Mr. Daniel J. Hansen, Deputy. Director of Traffic Engineer- ing Operations, D. C. Department of Highways and Traffic, testified that his department had reviewed the staff proposal and had conducted a number of field studies relative thereto. ° These included personal.interviews, pedestrian counts and | traffic studies. Mr. Hansen concluded that the proposed extension of bus service would encourage people to use pub- lic transportation and thereby reduce the number of private passenger cars that enter the: District of Columbia daily, " solely .for the purpose of bringing commuters to work in the morning and returning them home in the evening. Mr. Edwin L. Kesler; a public witness who appeared at the hearing voluntarily, testified that his wife formerly worked in the area to be served by the proposed extension. Her travel pattern was from home to 18th and Constitution Avenue, thence by foot. to 18th and M Streets, N.W.; trans- fer to Transit was too tinie consuming, which prompted her to walk. Mr. Kesler corroborated Mr. Hansen’s testimony and stated that in foul weather he would drive his wife to work; because her quitting time varied from day to day, he frequently had to circle the block several times. It was Mr. Kesler’s opinion that the existing service is also unsatisfac- tory to persons similarly situated. __ As previously noted, both A. B. & W. and WMA: agree that their present certificates authorize the proposed route exten- sions. WMA is not only willing to render the proposed serv- ice, but tendered a definite scheme of operations which it ° _ felt would be profitable. In addition to providing better service for existing patrons, it was stated that additional patrons would be attracted. The thrust of A. B. & W.’ oppo- sition is directed toward the economic feasibility of the pro- posed transportation. A. B. & W.’s objection is easily over- come by pointing out that at any time when the demand * CY shih capitate vin oetiarsi sir spastic dialona tiie: Sediie ied aa aes ia aaads sa totealin ee Re ee eae ee oe =e —A-22 ' for the service no longer justifies the cost involved, appropri- - ate adjustments in service will be made commensurate with the demand, and such action will be taken administratively consistent with the present practice. The Commission can give little weight to W. V. & M.’s _ objection to the proposed route extensions. W. V. & M. and A. B. & W. operate primarily between adjacent areas in Northern Virginia and the District of Columbia. Since A. B. '&'W. serves an area comprised of Alexandria and the eastern portions of Arlington and Fairfax Counties, and W. V. & M. . serves an area to the north and west of the A. B. & W. area, - there is only minimal:competition ‘between the two carriers — where their.areas meet. Any siphoning of traffic by, the proposed service from W. V. & M. operations would be de minimis. W. V. & M. already serves the present terminal area in Washington, D. C., served by WMA and A. B. & W., ané addition, serves the 18th and L Streets area. ‘The Commission has carefully considered the evidence - adduced by D.C. Transit in this proceeding. The testimony of D. C. Transit to the effect that it stands to lose gross rev- enues in excess of $600,000 annually, if the staff's recom- mendations are effectuated, was predicated: on the premise that every person now taking advantage of the joint-fare " arrangement between respondents and D. C. Transit would - no longer use the service of D. C. Transit: Such a supposi- tion is not only contrary to the record, but is invalid on its face. The survey conducted by the:staff—which was the only _ real evidence of probative value on the issue—did not provide any basis for such a premise. D. C. Transit’s contention that the proposed route extensions will have ah adverse economic effect on its present operations must be related to the con- veniences which will result to the traveling. public if the service is extended. In viewing the economic impact the | proposed route extensions may have upon D. C. Transit, : the Commission cannot overlook the possibility, and in fact, the probability, that the improved service might very well generate additional bus patronage to ‘such an extent that * ‘there will be no substantial adverse effects on D. C. Transit. . NOE PERSO RA ae RNG AAG EGR EEL A EFS AP MEL AL LIEU te COOLS 5 ENE AEY TENA NS LE PEE AR MB ‘A-23 - In providing a direct service for bus patrons trom points in Virginia and Maryland, discussed herein, a substantial num- _ ber of automobiles may be eliminated from the downtown area, which will be of direct economic benefit to a Transit. It is the Commission’s considered judgment that | . there will be no substantial economic effect upon D. C. Transit if the proposed transportation is performed. One of the basic purposes for the creation of this Com- mission was to provide for the regulation and improvement of mass transit and the alleviation of traffic congestion in the Washington area without regard to political boundaries. If the maximum results are to be obtained, it is most essen- tial that the maximum benefits be. derived from the flexibil- ity inherent in our all-bus system. All of the carrier-parties - to this proceeding have been articulate exponents of the ' flexibility inherent in a bus system. The staff proposal is a vivid demonstration of this principal. Greater-use of public transportation is one of the impor- tant keys to the alleviation of traffic congestion on the down- - town city streets. This record is very clear that a substantial number of daily commuters will be greatly convenienced if the proposed route extensions are effectuated, since a large segment of the public will have the benefit of a single ride. in a single vehicle from origin to destination. If the four major transit operators are. to’ continue to meet their pub- lic service responsibility and provide the standard of serv- ice required; situations involving minimal overlapping of serv- ice and minimal competition among the carriers cannot be~ avoided. If adequate and convenient methods of operations and arrangements among the carriers which are needed in or- der to meet the demands for public transportation cannot be accomplished voluntarily, then the Commission has‘no other - course in the performance of its responsibilities under the law but to take the necessary action to compel such opera- tions and arrangements. With reference to the case at hand, the Commission does not feel that it is doing any violence to the. operations of any carrier involved; to the contrary, ° RI AD DMG BE NEE GT AICTE BEC ER EEE 2 AIEEE ELE IEP ELE IIS ORD INTEL er” A-24 the action taken will represent a major transit improvement for numerous daily bus riders. The service to be extended by A. B. & W. and WMA is largely)” interstate in scope. D. C. Transit does not operate interstate, nor does its certif- icate authorize interstate operations, between the District of . Columbia and those portions of Maryland and Virginia affected by the extension proposal. The holding by the Commission to the effect that the existing certificates of A. B. & W. and WMA -authorize the proposed route extensions removes the major objections of all parties to the proceeding. Obviously, under the ruling of the Commission, D. C. Transit is not entitled to an op- portunity to improve its service under Section 4(e) or Sec- tion 4(g), Article XII, Title II of the Compact, since no certificates of public convenience and necessity are being issued. D. C. Transit’s contention that the new service, if authorized, will be competitive with its service, is without ‘merit But; even if it were construed to be competitive, it is nevertheless authorized by certificates of public con- . venience and necessity, issued pursuant to the provisions -of the Compact and with full knowledge and consent of all parties to this proceeding. ~ _ The Commission finds and concludes that the public interest will be served if A. B. & W. and WMA are. required © ~ . to extend their routes so as to provide bus service to the . 18th and L Streets area of Washington,D.C. The Commission will issue herewith appropriate: route | Pe authorizations directing A. B. & W. and WMA to extend their present service to include the vicinity of 18th and L 3 iia See ; ee The certificate of WMA authorizes limited intra-District of Columbia service and those persons using such service will be benefitted by the route extensions. : -” The President of W. V. & M., a subsidiary of D. C. Transit, freely .. admitted that its service between Northern Virginia and the District of Columbia via: the 18th and L Streets area, while being parallel to the service of D.C. Transit, is not a competitive service. - . a . G . . . ? . ee ae et te hh ee ~ PLE LU OL LG LI OO LOE ETE AI EA ISG GEE ON A-25 Streets, N.W., in substantial compliance with the recom- mendations of the Commission’s Engineering staff. THEREFORE, IT IS ORDERED: 1. That A. B. & W. Transit Company and WMA Transit Company be, and they are hereby, authorized and directed to extend their service to the vicinity of 18th and L Streets, 7 N.W., Washington, D. C. _ 2. That A. B. & W. Transit Company and WMA Transit Company be, and they are hereby, required to extend their service referred to in paragraph 1 above, in accordance with route authorizations issued-in compliance with the established procedures of the Commission and attached hereto. 3. That the’ service authorized and directed to be oper- ated herein be instituted forthwith, but in no event later than sixty (60) days from the date of this Order. BY DIRECTION OF THE COMMISSION: , -DELMER ISON Executive Director WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION . Route Authorization No. 1 — 66 IN THE MATTER OF: =. March 25, 1966 Establishment of Bus Routes for Alexandria, Barcroft and . Washington Transit Company in Washington, D. C. . By Order No. 581, served March 25, 1966, ‘Annies Barcroft and ‘Washington Transit Company was granted authority to extend its bus routes in arn D. C., to A-26__ the vicinity of 18th and L Streets, N. Ww. To establish such routes within the District of Columbia, authority is hereby granted to Alexandria, Barcroft' and Washington Transit - Company to operate in the following manner: Over regular route to 14th Street and -Pennsylvania Avenue, N. W., continue north on 14th,Street, west on - H Street, north on 17th Street, east on main roadway. of K Street to 17th Street, continue on south service — roadway of K Street to 16th Street, south on "16th Street, east on Eye Street, south on 14th Street to Cc. | ’ Street, S. W., thence over regular route. Over regular route to 12th Street and Pennsylvania Avenue, N. W., thence northwesterly on Pennsylvania Avenue, north on 14th Street, west on H Street, north. on 17th Street, east on main roadway of K Street to 17th Street, continue on south service roadway of K Street to 16th Street, south on 16th Street, east on » Eye Street, south on 14th Street to C Street, S. W., * . thence over regular route. FOR THE COMMISSION : DELMER ISON Executive Director WASHINGTON METROPOLITAN AREA : TRANSIT COMMISSION ‘ian Authorization No. 1 — 66 IN THE MATTER OF: _ March 25, 1966 Establishment of Bus Routes for WMA Transit Company in Washington, D. C. © car, By Order No. 581, " served March 25, 1966, WMA Transit. Company was granted authority to extend its bus routes in Washington, D. C., to the vicinity of 18th and L Streets, got } TR epegseamvre. dency. PUR ag saci gr aE GT ‘ Sa. 6 a A-27 -. N.W. To establish such routes within the District of Colum- bia, authority is’ hereby granted to WMA Transit Company — “to operate in’ the following manner: . Over regular route to-11th Street and Pennsylvania - Avenue, N. W., thence northwesterly on Pennsylvania Avenue, north on 14th Street, west on H Street, north on 17th Street, east on main roadway of K Street to 17th Street, continue on south service roadway of K ’ Street to 16th Street, south on 16th Street, west on ° Eye Street, south on 14th Street, southeasterly on Pennsylvania Avenue to Third Street, N. W., thence over regular: route. Over regular route to Lith Street and —— York ae nue, N. W., thence southwesterly on New York Ave- nue, west on H Street, north on 17th Street, east on main roadway of K Street to 17th Street, continue | on south service roadway of K Street to 16th Street, south on @6th Street, east on Eye Street, south on llth Stre@, thence east on Eye Street over ened route. - FOR THE COMMISSION - DELMER ISON Executive Director --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0719%3A2. Public record. Not legal advice.