# Petition for Writ of Certiorari — Trans World Airlines, Inc. v. Delta Air Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0284%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 - **Citation:** 362 U.S. 969 ## Text : it _ , . ' ae . ia | ce q _ Umoe Supisme Court U.S. FILE -COrr a Fit ED. MAR 8 1960 AAOMES R. BROWNING, Clerk IN THE ~~ | Supreme Coutt. of the United States | Octroper Term, 1959. aad No. 24-4 | 3 Pe PASTE RN’ AIR LINE S, INC, . i , “ ’ Petitioner, a ees a _* CIVEL AERONAUTICS BOARD, ; Re ‘sponde nt. | - PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA GIRCUIT. E. SmytHe GAMBRELL, . W. GLEN HARLAN, ° ) , ; Harotp L. Russe, a ae P Attorneys for Petitioner, 3° , "825 Citizens & Southern * . . \ . Nationa] Bank Building, » _ Atlanta 3, Georgia. i James H. Bratton, JR., a ALLISON WADE, : , 2 Of Counsel. 3 *% Atlanta, Georgia * 4 / March 9, 1960 a —————————— re i eee FS ° ea : % - ‘a . - : : - _ Orrytons BeLow ee... - JURISDICTION ....... iniltiesapiindsl I cies Sysiheiinennahanmnsansinnnanancons rE , Statutes INvo.ven ............... =a Ease al a eewdk on : STATEMENT OF THE CASE..+..........0000200000-+- TS SS Eisen Reasons FoR GRANTING THE WRIT..2.........------o0-eoeecosscoeeees * 10 ~ I. It is in the Public Interest for this Court to %. Clarify the Requirements of the Standard , of ‘*Public Convenience and Necessity (D. C. Cir. 1959), 9 Ad. L. Dec.- 2d 863 (1959) 1 is a in Appenfix B hereto, che Jurisdiction. The jnrisictions this court is boniotvad under 28 v: S: C. ¢ §1254(1) and 49°U. 8. ©. $646(f). | | a ; | Questions Presented. * . --1..May'the Civil Acronautics Board, required by stat- — ute (Civil Aeronautics Act of 1938 §1005(f), 49 U.S. C..+ §645(f); Administrative Procedure Act 4§8(b), 10(e), 5 ~~ U: S. C. §§1007(b), 1009(e)) to anake adequate findings on the elements-of public convenience afid necessity: before certificating a new air.service (Civil Acronauties Act of - 1938 §§2, 401(d), 49 U.S. C. §§402, 481(d)), certificate a new serviee ina market and lawfully refuse to make findings ‘measuring the expectal le revenues or volume of traffic °° Z against’ expectable costs of ‘operation | and capacity in that market? 2. Can the Boa rd i in an airline new route case commonly knowh as an ‘‘area proceeding”’ consider the needs for ser- vice between points inside the ‘‘area’’ and points-on a ‘little additional segment outside the area’’ (App. B,p. 21 hereto) ‘without considering all applications for authority to pro-, vide that service as required by the Ashbacker doctrine " LThe Civil Aéronauties Act of 1938, 52 Stat. 977, 49 U.'S. C. - §§401-705 was replaced in all pertinent parts without material — change by the Federal Aviation Act of 1958, 72 Stat. 737, ° U. S. C. §§1301-1542. ‘ 3 ; lls SAshbacker Radio Corp: v. Federal Communications Com- mission, 326 U: S. 327.(1945)) : / { . 1" ° y , : - ° Pg * 3. Is it lawful for the Béard, in airline’ “new route’? * proceedings, to announce. its determinations, prior. to con- . sideration of all relevant and material portions of the-rec- *. ord, by ** press release”, without supporting reasons or _ consider@tion:of all pertinent and material facts? - Statutes Involved. ah This case ae the Fifth Amendment to the Consti- tution of the) United States, sections 2, 401, 1005(f) and 1006(a): of the Civil Aeronautics Act pf 1938 (52 Stat. 980, 987, 988, 1028, 49 U.S. C. $§402, 481, 645(f), 646(a), and '. sections 3(a), 8(b), 10(a), and. 10(e) of the Administrative '.. Procedure Act (60 Stat. 237, 241, 242, 243,,5 U.-S. C. - . §$§1002(a), 1007(a), 1009(a),' 1009(e)). ‘These sections are : inet in Appendix A hereto. Set ha ae Statement of the Case. This. matter arose as a ‘‘new route”’ Ge: before | the Board. . Dass , Eastern isa cordteati air carrier, authorized by the Board to engage (inter alia) St. Louis and Florida and between. Memphis, Birmingham, Atlanta and Florida, both routes including _ intermediate points, Prior to the Board’s decision in | the proceeding before it (479-519) no other carrier Was _ certificated to serve those routes. However, that order authorized Trans World Airlines,: Ine. (**TWA’’) to oper- ate between St. Louis and Nashville on thé one hand and . Atlanta and Florida on the other and Delta Air Lines, Inc. 2 cheduled air transportation between a + » ‘ ; ’ ‘ : « g atl e . + a a. : eh & (“Delta”): to operate between Memphis on "S one hand ‘ and Birmingham, Atlanta and Florida on the other b6th i in Yompetition with Eastern. Prior to the institution ‘of the proceeding before the . ' Board; Eastern had applied to the Board on two separate occasions for a route between St. Louis, Kansas Gjty, Los- Angeles and San Francisco where TWA operates (11, 15, Supplemental Joint Appendix 4-5) and for a route between Memphis and Kansas City, where Delta operates (11-15). | “Those Eastern applications have never been sect dow?’ for hearing. ee On March 2, 1956,.,the Boatd eres activation of t St. Louis-Southeast Bilsles Case (29-31) Various ca riers (including TWA and Delta) then filed. applications’ for ‘St. Louis-Florida, authority (Delta. also applied for Mem his-Florida authority) and requested that their appli- cations ‘be included in the proceeding. In response to the. Board’s order, Eastern requested consolidated hearing on its applications, previously referred to, pursuant te which ° Eastern would be authorized to offer services identical to * those proposed by TWA and Delta, Eastern alleged that its applications were ‘‘mutually éxclusive’’ within the mean- ing of the Ashbacker doctrine with the ae and TWA applications (42-45)? a Normally, the Board hear’ applications in order of filing and delays jn processing gy usually result in sevéral years - between filing and hearing. The City of St. Louis had filed an appli- -eation with the Board February ee 7 neh 958 for an additional carrier into the Southeast (19-22). application ‘became the lead docket in the procgeding, although it was only three yeeks old . when assigned for ptehearing conference. Eastern’s ap ications, previously referred to, were then some three years old, and now, - _ still unacted upon, are over seven years old. *Delta’s existing Kansas City-Memphis authority, ote i application for Memphis-Birmingham authority, combined wi its existing Birmingham-Southeast authority, permitted Delta to offer Kansas City- Bouthenst | service (which theretofore was wet #) a > ie) ae / ‘ 6 q ee Fe tema =. .) | The Board refuséd to’ consolidate Eastern’s applica- tions for hearing, but it did include the TWA and Delta applications to duplicate Eastern between St. Louis and Memphis on the one hand and Atlanta and-Florida on the other (91-92, 149). Certain applications of Eastern for - new service authorizations hetweth points entirely. within the ‘‘area’’ of the case were also consolidated for hearing and decision! (149-51). x rs Hearing was held before an Examiner of the Board, and Eastern and ‘other parties filed briefs with the Exam- iner. Among other things, Eastern requested the Examiner to make findings on the issues gf ‘‘mutual exclusivity”’ entheriaed to any carrier). Eastern sought to combine its existing Memphis-Soytheast authority with its Memphis-Kaasas City appli- cation to offer Kansas City-Southeast service: Similarly, TWA by combining its existing West Coast-St. Louis authority with its St. Louis-Southeast application’ sought to offer, West Coast-Southeast service. Eastern desired to combine its existing St.. Louis-South- east authority with its St. Louis-West Coast proposal to offer the same West Coast-Southeast service offered by TWA. It should be pointed out that Fastern sought hearings on its applications limited | strictly to the services that were offered by TWA and Delta. Each _ of those carriers proposed to combine existing routes with the applied-for routes for operations between points within the so-called “‘area’’ of the case and points outside thereof. Eastern differed only in that Eastern’s ezisting authorizations were within the ‘‘area’’ and the applied-for authority was ‘‘outside’’ the ‘‘area’’ while TWA’s and Delta’s existing authorizations were outside the area and their applications were for new authorizations within the area. Eastern desired to extend west from the Soutiast, and TWA and Delta desired to proceed eastward into the Southeast. (The ‘‘area’’ of the case was never precisely defined by the Board but it conforged generally to an area’ ‘circumscribed, by a line drawn between St. Louis, Memphis, Birmingham, Atlanta, Tampa, Miami, Jacksonville, Atlanta, Nashville and St. Louis; see, ¢.g., the Exam- iner’s description of the applications consolidatedsinto the proceed- ing, at 297-98 of the joint appendix below.) 1 The Board has generally recognized, as have: the Courts, the duty, under Ashbacker, to hear all conflicting applications proposing service between points lying within an,‘‘area.”’ See, ¢,9., Northwest Airlines v. Civil Aeronautics Board, 194 F.2d 339 (D. C. Cir. 1952) ; tg —A Lines v. Civil Aeronautics Board, 228 F. 24.17 (D. C. ir. . ; ' (274-75) created by the inclusion of the TWA and Delta applications in the case and the exclusion of Eastern’s applications. The Examiner in his Initial Decision made -no findings upon those ‘‘mutual exclusivity”’ questions. _ Exceptions to the Initial Decision and briefs were filed — with the Board. Eastern asked that the Board make find- _ ings upon ‘‘mutual exclusivity” (405). tb The Board then deferred decision for simultaneous con- sideration with the Great -Lakes-Southeast Case, CAB Docket 2396 et al. (409-11). >: ~ On March 19, 1958, the Board commenced deliberations in the case below, the Great Lakes case, supra, and others deferred for simultaneous consideration. Deliberations continued on March 25, 26 and 27, 1958 (729-43). . On March 26 and 31, 1958, the Board announced, with- out supporting reasons and by press release, its determina- tions to grant TWA a route between St.-Louis, Nashville, Atlanta, Tampa, and Miami, and Delta a route between Memphis and.Birmingham, there joining Delta’s existing routes to Atlanta and Florida, both routes competitive with ‘Eastern (662-63, 666). On October 2, 1958, the Board released its formalized _ decision (479-519) giving reasons for the awards to. TWA - ‘and Delta, previously announced in its’‘‘press release’’ decisions. In general, the Board’s formal opinion adopted the Examiner’s Initial Decisiop in ¢oncluding: that an addi- tional.carrier between St. Louis and Florida was required | by the public convenience and necessity (485-90, 299-312, 376-81). The conclusions rested upon general observations to the effect that.inadequacies had been shown in Eastern’s service, that the market hfd not developed as fast as some other markets, that in some instances, Eastern, the incum-. bent carrier, had offered older-equipment, and that there ; was a public need for competition in the area.. Nowhere, és a however, did the Board, or the Examiner, measure the \market’s potential traffic and revenues-against the capacity to be offered or the cost of the operation, to determine .whether -two carriers could be economically "sustained. After deciding that. a second St. Louis-Florida carrier should be authorized,,TWA was chosen over the other applicants because it could provide the greatest ‘“beyond area’’ benefits (492-93). Neither did the Board make any findings on the ‘‘mutual exclusivity”? i issue raised by Eastern as between its excluded application and the application of TWA..: ‘(As will be pointed out below, the Court of Appeals held this failure - of the Board to be legal error.) In stating its conclusions as to the Delta award, -the Board noted that sqme civic representatives had complained - abou Eastern’ s Memphis-Birmingham services (505, 317, 319). However, the Board made no attempt to balance the _ traffic potential or rev enues against capacity and costs of operation. Neither did the Board make findings as to the - mutual. exclusivity between Delta’s award and Eastern’s . excluded :application, which, if heard and granted, would: permit Eastern'to: prov ide the same service between Kansas City onthe one hand and Birmingham and Atlanta on the” other, a question timely and properly raised by Eastern. (As will. be’ ‘pointed out below, the. Court of Appeals hed that the Board was, entitled in this instance: to disregard 7 the Ashbacker doctrine.) Eastern and others petitioned. the Board for recen- sideration, Eastern pointing out (618-19) that operation by two carriers on the St. Louis-Florida routing would be uneconomic, that two carriers could not be economically | certificated between the Southeast and the,West Coast via - : St. Louis and therefore that the TWA application was mutually exclusive’ of Eastern’s excluded appliation.. 8 On: November 21, 1958, Eastern filed, pursuant to Sec- ~ tion 1006 of the Civil Aeronautics Act (49 U.S. C. §646), in the Court of Appeals for the District of ‘Columbia: a petition for review (711-43), later amended (744-7 50), and, as weil, a petitjon for stay of the Board’s order. The stay was subsequently denied on December 15, 1958 and the Court of Appeals issued its decision on the review ques- tions December 10, 1959. ; Various other parties to the proceeding. before the Board also sought review by’ the Court of Appeals (Delta, 705-710 ; National Air Lines, Ine: (‘*National’’), OL -758 ; and American Airlines, Inc. (‘‘American’’), whose petition for review was not printed in the joint appendix below). * The Court below overturned the TWA award and held in substance that in an ‘‘area’’ proceeding, it was unlawful for the Board, in light of the Ashbacker~doctrine, to award a transcontinental route without: hearing applica- tions ‘of other carriers for .the same transcontinental authority (App. B, pp. B3-B12, B14, B18-B20). With respect to Eastern’s complaint that the Delta award violated the ‘Ashbacker doctfine in the same manner ‘as, the TWA. — award, the Court stated (App. B, p. B21) that: ‘‘EKastern’s -position is, in effect, that the same _ considerations which apply to the treatment of the ' transcontinental route problem, as it arose in the St. Louis Case, apply likewise to the Kansag City | service problem as it arose in that same case. We think they do not. The expansion of an area case by adding a little additional segment outside the aréa is quite: a different thing from awarding a transconti- nental certificate in a limited area case. The former is an expansion of a limited case. The latter is a transformation of the real nature of the proceedings. “We are’of opinion that the Board had a discretion to refuse to include in the St. Louis-Southeastern area case Eastern’s application for the Memphis-Kansas . City — sai ; & 9 Eastern had also urged the Court helow to find that the Delta and TWA awards were not based upon proper find- ings of public convenience and necessity. Eastern argued that sound Board precedent required a balancing of antici- pated revenue (or traffic) in the markets at issue against the total costs (or capacity) to be incurted. The Board had mace no such findings. The Court did_not rule;except perhaps by negative inference, upon Eastern’s contention. Rather, the Court stated that there were Board findings that Eastern’s service had been inadequate, had not developed the market, that more: traffic would result from improved service and there was a need for competition. But it is important to point out that the Court did not hold that those were suffigient findings to sustain the awards. Rather, ° ' the Court. henna tied Edstern’s contention as to the requirement of balancing revenues (or traffic) against costs (or capacity) | to another point made by. Eastern— that the Board should have reoperied the record to receive current data on Eastern’ 8 operations and held that on the facts the Board need not réopen the, record. (App. B, pp. B22-B23). Eastern _did not so_limit -its—eoententions.——-~ Eastern’s contention. is that the Board, in the lawful exer-. cise of its duty and discretion under the Act must, at.some time, balance exnectable revenues (or traffie) against expect: able expenses (or capacity) to determine: whether additional ‘carriers will actually serve a useful public purpose ‘respon- sive toa public need. The Court below erroneonsly — ‘to rule upon this contention. - « : The Court did not pass upon Eastern’s contention that the Board unlawfully prejudged the case by announcing by press release its determination to award the TWA and Delta routes, that announcement appearing some six months before the Board issued its formal opinion and order along with supporting reasons for the awards. It was shown ~ in Eastern’s brief to the Court that the traffic data upon — which the Board relied héavily in making its formalized findings in the case were unavailable to the Board at the time of its press release prejudgments, and therefore could not have served as a basis for the Board’s predetermina-. tions. The Board simply took ‘‘official notice’? of sub- sequently revealed information to justify ex post facto its preconceived results. The: Court below did not consider these contentions. | Reasons for Granting-the Writ. “ 2 ; . ah : Sound, orderly regulation of this Natjon’s air transport — _ industry is eminently in the public interest, as Congress | recognized in enacting the Civil Aeronautics Act of 1938. _ and its: successor, the Federal Aviation Act of 1958. In 1958 the air lines became the Nation’s number one inter- city common carriers and the Board expects that an even greater incr . _ of new jet equipment. (Annual Report of the Civil Aero- nautics Board for 1958, p. 2). Some 50,000,000 persons — - flew on commercial air lines in 1958 which were then a | $2,900,000,000 business (Ibid.). The outcome of ‘‘new toute’ proceedings before ie , Board is -of grave consequence not only to the airline parties, but also to the .public, the Post Offiee and the f national defense.! Air route cases are processed under sections of a law, over 20 years old, that have_never been squarely bhetore this Court for interpretation. A There were 849 economic applications (about all of which were for new route authority) filed with the Board during 1958, a year in which the Board disposed of ‘683 such applications. Annual — Report of the Civil Aeronautics Board for 1958, 41. Asof June 30, 1958, there were 1,616 pending ——— in the: Board’s files | (Ibid. ). in air travel will come with the advent > | J aN — w ; C& - ye The problems created, but not-solved, in the decision ' below are typical of the problems faced with increasing frequency, and in proceedings of. expanding complexity, by all parties to controversies before the Board {and to some exfent by parties to proceedings before other Federal admin- istrative agencies). Some of the confusion is the inevitable result of the fact that:this Court has never spoken. defini- tively on the meaning of Section 401 of the Act,' although air transport routes have been — under its terms for more than 20 years. Section 401 éstablishes the machinery by iich air routes are granted and amended, provides for hearing and-decision on ‘on applications for new route authority, and states that-a new route must be found required by the. public eonvenience and necessity before it be certificated. F ‘This petition presents this Court with an opportunity (1) to define for the lower Courts; the Board, and the parties to proceedings before the Board what Congress meant by the term ‘*public convenierice and necessity’’, and- what > findings are necessary 4 sustain a conclusion that a new ' route is required by the public convenience and necessity, (2) to clarify forall the meaning of this Court’s Ashbacker doctrine, and (3) to set outaclearly the right of a party Cin administrative proceedings to have his ease decided on the _~ merits after full consideration of all pertinent facts and without prejudgment” eeites announced and ardently. defended. _ . Each of these tatters i is teecenainatiy involved before the Board. and the Courts of. Appeal, and with i incregsing incon- 1 The Federal. Aviation Act of 1958 made no changes in the sub- stance of §401 of the Civil Aeronautics Act.of 1938. See p. 2 n. 1 ‘above. References to ‘‘the Act’’ herein are to the 1938 Act unless | otherwise indicated. In any event, the applicable provisions of law are identical under both statutes. ' es | ’ | ; Gr m a ¥ . ae cm sistency of sreatenent. Board decisions will be increasingly “litigated in the Courts of Appeal unless this:Court estab- lishes essential guidelines for future conduct. I. | - It Is In The Public Interest For This a To ' Clarify The Requirements Of The Standard of “Public , Convenience and Necessity” In Air Route Cases. Section 401 of the Act states that a new airline route ‘must be required by the ‘‘public convenience and necessity”’ before it can be certificated. ‘Neither this Court nor any otlier court has determined what ‘basic findings of public qgnvenience ‘and necessity are essential for afwiul | disposition of an application for _ @- new or amended certificate. to engage in scheduled air transportation. i Eastern squarely presented .that question to the Court below, but Eastern’s request for a definitive explanation | was ignored. ke om In efforts to provide. the Board: with ‘rational factual bases upen which to fashion the Board's permission for | future operations,' almost every applicant in every route proceeding spends great sums of money-and considerable employee and consultant energy in amassing volumes of data forecasting the ecenoniic results of its proposed opera- 7 tions. Applicants for new routes make every effort to _ show in terms of forecast dollars and cents that their opera-- tions will be economie and eventually profitable, while. opposing carriers exert just as much effort ‘to show that those proposed services cannot, be operated profitably. ree = - a, LCompare : Aveericin Airlines v. Cinit deronautics Board, 192 4 F. 2d 417, 421 1 (D. C. Cir. 1951): infre. p. 15. mer: . ; %, ; a In the case below, the Board ’s Bureau of:Air Operations requested and the Examiner required the applicants to, ' furnish. estimated revenues and expenses (77-80, Requests 2 b,, 3, 5-11,-13). The parties supplied extensive data as | requested. (See, e.g., those portions of TWA’s exhibits — reproduced at 235-38 of the joint appendix below.) Although the Examiner’ s Initial Decision referred to those | _ estimates in his recital of the evidence (326-30, 334-39, 344- 46, 353-56), the Examiner made no findings or conclusions onthe basis of those forecasts (376-86) except to find that Eastern would lose $1,500,000 annually by revenue: diver- “sion (381). The Board’s decisions made no findings or con- clusions upon: ‘the basis of those forecasts (484-90, 504-506, 653-57) although there was appropriate request for findings (see, ¢.g., excerpts from Eastern’s brief to the Board, 404- 405, and petition. for rehearing, 620). Eastern maintains only that the Board should find that there- must: be some reasonable relationship between pro- jected revenues.(or traffic) and. projected. costs (or capacity) before a néw route may be granted. If Eastern is wrong and this Court will so state, parties to “new route cases before the Board can,save hundreds of*thousands of dollars * annually now wasted in the preparation of new route reve- nue (traffic) and expense (capacity) forecasts. If astern is correct in its contentions, then the awards to TWA and ; Delta should be set aside and the case remanded to the Board for required findings. Eastern respectfully submits that its interpretation of the Act is.reasonable and correct. In one of the first. proceedirigs before it under its thefi- 7 : new enabling statute, the Board stated that an evaluation of the public convenience and necessity required, sanenes , other: ae, consideration of these questions: ~ (1) whether the new service will serve a useful public purpose, résponsive to-a public need; © « 14 (2) whether this purpose can ae will be served: as well by existing lines or vaarene. and (3) whether it can be served by the applicant with” the new service without impairing the operations of existing carriers’ contrary to the public interest. _. United Air Lines, Inc., Red Bluff Operations, 1 C. A. A. : 778, 779-90 (1940). At the other end of the ch onological scale, the Board declared less than a year ago ina proceeding known as the — South Central Area Local Service agane, CAB Docket 1989 - et al., that: : , : & ‘‘in arriving at its decision on new route proposals, the Board must evaluate all the traditional elements of public convenience and necessity, such as public need for the service, potential traffic, - benefits involved, cost of ‘operation, commercial revenues, - subsidy requirements, diversion, ete.’? (Emphasis ‘ supplied.) (Mimeographed opinion, | CAB Order . E-13648, p. 62, Mar. 21, 1959.) : In the twenty year interval between’ Red‘ Bluff and South Central, the Board has generally acknowledged the - requirements that it laid down in Red Bluff, and contem- - poraneously decided cases. See, ¢.g., Eastern Air Lines, St. Louis-Nashville-Muscle Shoals Operations, IC. A. A. 792, 795 (1940), Eastern believes that the Court of Appeals for the Dis- ‘trict of Columbia ‘recognized, several years, ago, that the Board is required to make specific findings “apon such fundamental items as revenues measured against costs of operations when it. said that the function of the Board is to: , é ‘examine the relevant past and sig and then to exercise a rational judgment upon the data to oo eo. : 2b e ascertain the public convenience and necessity in the reasonably foreseeable future.’> American Air- lines v. Civil Aeronautics Board, 192 F. 2d 417 ie Cir. 1951). nes. ae, - While findings as to potential revenues and potential expenses cannot -be-made with absolute precision, the same Court correctly, Eastern submits, declared: ‘*governmental permissions for the future cannot be fashioned from pure fantasy, speculation devoid - of factual. premise. Public convenience and neces-: sity in the sense of those statutes has a hard core of factual possibility, which can be ascertainéd and evaluated only upon the basis of present and past events and conditions.’’ American Airlines v. Civil Aeronautics Board, supra, at 421." It is, or should be,. the Board’s function to resolve con- ’ flicting claims as to the economics of.a proposed €oute. At ’ least as recently as the South Central Area cast; Supra, the Board recognized an obligation to balance revenues against — costs in determining public convenietice’ and necessity. However, it did not attempt. that balancing in the case below when it granted the TWA and Delta. routes, and the deci- sion of the Court. of’ Appeals below would cad absolve the Board from any such obligation. ‘Eastern presented to the’Court below the i issue; Must te Board, in évaluating public conyenience ard necessity s balance. capacity offered by all carriers (the new i oli the old) and expectable expenses against the expectable traffic and revenue om 725-26 ; the specific vate was 3 It shouid be pointed out that American did not concern itself with a review of the standards of public convenience and ‘necessity as that term is used in §§2 and 401 of the Act. That case involved the issue whether the Board had power under the Act to create a special clas of carriers limited to the transportation of freight _ | : 16 . pinpointed in Eastern’s briefs to the Court, being fairly ‘comprised in these cited portions of-Edstern’s petifion for review). The Court did not pass ‘upon. the question, but only recited that ‘the Examiner and the Board had found - ‘‘Eastern’s service in the Southeast area had been inade- quate, that Eastérn had not developed the potential market, that more traffic would result from improved service, and that there was a public need for competition in-the area”’. (App. B, p. B23). Those findings may, of course, be relevant to the ultimate question of ‘public convenience and | necessity, but the question is whether they obviate any need to consider whether the proposed operations will be eco- . nomic. The Court did not resolve the issue raised by Eastern, namely, thatoof adequacy of. findings and of required findings. Instead of concluding that the Board’s findings did or did not satisfy the statutory mandate, the Conrt concluded that the Board was justified, on the facts of the case, in not reopening the ‘record, as réquested by Eastern, to receive current operating data, (Ibid.) Eastérn contends that no ‘informed: ‘judgment as to the eerequirements of the public convenience and necessity can be made without ‘resolving the always hotly-contested issue: will the new operation be economically féasible? And such a determination can be made only by some reasonable bal- While EaStern urged bilow ‘that tthe. Board erred ia failing to take account of more recent experienc e by Eastern over the routes “in question, that assignment. of error was quite distinct from the contention urged both in this Court, and in the Court below, that - the Board did not make proper or adequate findings on the basic elements @f public convenience and necessity. Bastern’s petition for review, and amendment thereto, and Eastern’s briefs to the Court, treated these issues independently ; compare 719-22, 725-26, 745-46, * 447-48 ‘(required .findings on ‘‘publie convenience and necessity’’) with 748-49 (more recent operating data), It is regrettable that the. ’ Court’ below confused ‘Eastern’s, contentions and avoided passing upon the. issue of adequate findings since, to the best of Eastern’s knowledge, no court’ has ever interpreted and explained he* term **publie convenience and necessity ’’ as contained’in the Act. a m ow | | | ) | 4 -ancing of anticipated revenues against egpenses. If. this Court should: fail to speak authoritatively on the Board’s fact-finding and adjudicatory’ responsibilities vis- -i-vis the ‘* public nvenience and necessity,’’ the Board would have free rein to award new routes without regard to their economic feasibility. Applicants for new routes would not “know the showing required to establish public convenience. and necessity and existing carriers would be deprived of their most effective means of protecting. their position and of demonstrating the lack of need for a new service—a careful presentation of hard-economic facts. To ‘proteet litigants in, future Board proceedings, to establish guidelines for the Board, and to chart a clear path ¢ for future interpretations of section 401, this Court should * review the judgment below and clearly define what are awfully required findings of ‘* public cgnvenience and necessity’’. 4 | Its Inthe Public Interest For This Court To Clarify Its Ashbacker Doctrine As Applied To Air Route Cases. tame = _ Section 40? of the Act guarantees applicants for new route authority a right to ‘hearing. It is manifest that this right requires a faig hearing: according to the Ashbacker case, supra: Ashbacker arose when Fetzer was awarded a radio frequency for which Ashbacker had also a pplied, but _Ashbacker’s application hgd not béen heard. Yhefrequency | could be granted only to o8e. .When the case reached this ; Court,itwassaid: = =o yur , aul, | “where two bona fide applications are mitenity - exclusive the grant to one without a hearing to both deprives the loser of the opportunity which Congress chose to _ him.’? ¢ $26" U. S. at 333.) hs a A. The Problem Is Significant. _ For over,15 years, the Ashbacker doctrine of mutual “ exclusivity has been law, and for more than ten years, the Board and the lower courts have been struggling with its - application tovair route cases. No one disputes it vitality there.’ However, much confusion has resulted in its applica- tion in this field." In every route proceeding of any cor- “sequence before the Board, thé problem is raised, and at Yeast 12 times the Courts of Appeal have been asked to rule on an Ashbacker issue.? The issue has also arisen out of pipeline proceedings before the Federal Power Commission. See, e.g., Midwestern Gas Transmission v. Federal Power , Commission, 258 F. 2d 660 (D. C. Cir. 1958), vacated, 358 | U. S. 280 (1959), and the Sahiels recurs frequently before the Federal Communication Commission, where Ashbacker began. | ces 'The Court of Appeals for the District of Columbia declaring - -Ashbagher applicable to air route cases stated that: ‘*. :. Ashhacker " fis] a of substance and not... a mere prescription of form.’’ | Delta Air Lines v. Civil. Aeronautics Board, 228 F. 2d 17, 21 (1955). is ' 2 Eastern Air Lines, Inc. v. Civil Aeronautics Board, 178 F. 24 726 (D. C. Cir. 1949) ; Seaboard & Western Airlines, Inc. v. Civil Aeronautics Board, 181 F. 2d 777 (D. C. Cir. 1949); Western Air Lines, Inc. v. Civil Aeronautics Board,.184 F. 2d 545 (9th Cir. 1950); Northwest Airlines, Inc. v. Civil Aeronautics Board, 194 F. 24 339 (D. C. Cir. 1952); United Air Lines, Inc. v. Civil Aeronau- . tics Board, 228 F.-2d 13 (D. C. Cir. 1955): Delta Air Lines, Inc. v. Civil Acronautics Board, 228 F. 2d 17 (D. C. Cir. 1955); Morth American Airlines, Inc. v. Civil Aeronautics Board, 241 F. 2d 445 (D. C. Cir. 1957) ;-Eastern Air Lines, Inc. v. Civil Aeronautics Board, 243 F. 2d 607 (D. C. Cig. 1956); Eastern Air Lines, Inc. v. Civil Aeronautics Board, 247 F. 2d 562 (D. C; Cir, 1957); National Airlines, Inc. v. Civil Aeronautics Board, 249 F. 2d 13 (D. C. Cir. 1957); Eastern At* Lines, Inte. v. Civil Aeronautics _ Board, 271 F. 2d 752 (2d Cir. 1959), and this case below. ~All of . ‘these cases ‘involved a considerations and=the Ashbacker. case was cited in each one except the first Eastern case. _ 19 B. The Decisions Below Are Confusing and In Conflict.. Ashbacker recognizes that when two persons desire a - license.to perform a service and the license can be granted . to only one, the due process right to a fair hearing requires ~ that both applications be heard simultaneously. and con- ‘sidered concurrently. * - The Court below remarked that it has seevbiae pointed - ont ‘that the “application of the Ashbacker doctrine to awards of airplane routes presents many difficulties not in the radio cases”? (App. B, p. B7). Until the case below, it was. generally believed, on the basis of. the Delta case, supra, that Ashbacker required consolidation: ‘of all applica- tions for new routes within the ‘“‘arda’? of ati area proceed- ing, The Court below went on to say (App. B, p. B20 n. 24) that *“the reasoning of: that opinion [Delta] requires ‘the same kind. of hearing in a case suclr as this, where a. , prima facie showing’ is made of mutual exclusivity of appli- . cations for a particular -route’”’ extending beyond the con- ‘fines of the ‘‘area.”? ° The Court below thus expanded the reasoning of Delta to encompass those situations where. an application to join an applied-for-new route within the ‘‘area’’ combined with an existing route outside,the ‘‘area’’ is mutually exclusive of an application for the entire route that is not consoli- © dated. Such a result is inevitable, and desirable, since neither the Board-nor the Courts could ignoré the realities of the situation: if a route between A, B-and C is awarded - by adding a new segment B-C te an existing segment A-B, it ig just as much a new. route between A and C as if a new segment B-A were ‘added to an existing segment C-B, or if an entirely new route A-B-C were awarded. They. are three different ways of accomplishing the identical result, a route between A and C via B, and Ashbacker—‘‘a rule of substance, not .a mere prescription of | form”? (Delta, r 4 20 a ° supra)—is. equally applicable to all three. Thus, the Board could not lawfully grant TWA a new St. Louis-Southeast Florida extension of its existing. West Coast-St. Louis ~ route, thereby. creating a transcontinental West Coast- St. Louis-Southeast-Florida route without. giving Eastern a hearing on its application for a new St. Louis-West Coast extension of its existing Florida-Southeast-St. Louis route to create a transcontinental West Coast-St. Louis-South- east-Florida route offering: the same. services as TWA or: without valid findings that the TWA grant would not be. mutually exclusive of the Eastern — (App. B, pp. B16-B20). _ The Board had ied that the case was a limited: ‘‘area’”’ proceeding, and, in effect, that ‘Ashbacker did not apply. Adoption of that contention would have reduced Ashbacker te meaningless form. without substance, and tue Court emphasized: below ‘‘that the Board cannot, either inten- tionally or by the demonstrable ‘effect of an order, avoid what is now known as the Ashbacker doctrine.’’ (App. B, p. B7). . Eastern submits that the Court properly analyzed the law in that regard, asserting the vitality of Ashbacker and its resistance to subterfuge. However, the Court did a complete volte face when it considered Bustern’s contentions . respecting. the Delta award. The Board authorized Delta to combine its existing Kansas City-Memphis authority (outside the ‘‘area’’) . with the authority applied for between Memphis and Bir- mingham to provide a Kansas City-Birmingham/Atlanta service. As pointed out above in the Statement of the Case; Eastern was a long-standing applicant for Kansas City- Southeast authority; but the Board refused to hear East- ern’s application below. Surely, in the light of the Court’s interpretafjon of Ashbacker as to the TWA-award, that was" error. Yet the same Court in the same decision held that 21 ~ because the Kansas City-Memphis segment was a ‘“‘little additional segment outside the area’’ (App. B, p..B21; ef. . ’ App. B, p. B20: Kansas, City ‘“‘being well outside the area of the case’’) Ashbacker did not apply, and the Board was at liberty to disregard Kastern’s ‘‘mutual exclusivity”? con-- ‘ tentions. Eastern is at a loss to reconcile the Court’s com- | pletely inconsistent approach in light of its statement that - the Board could not intentionally or otherwise avoid “Ashbacker. Neither, can Eastern square the Court’s treat-. ment of the Delta aw ard with its refusal in M idwestern Gas Transmission, supra, 258 F. 2d at 667, to require | ‘« Ash- - backer’ ’ to bow to expediency as urged by the Federal . Power Commission. _ . It would appear from the opinion, of the Court below ‘that, Ashbacker applies only to ‘‘area’’ cases that become, ’ willy-nilly, transcontinental cases, and that Ashbacker would not apply when a 379-mile’segment (the nonstop‘ dis- tance between Memphis and Kansas City)-is the extent of the ‘‘area’s”’ wanderi ings. The Courts holding that ‘‘the doctrine of Ashbacker also arises where a request for an extension of an existing routing would preclude the grant : ‘of otlier pending applications for the entire route’’ { App. B, p. B9), would be rendered meaningless by its own ruling - on the Delta award. ‘It is respectfully submitted that the right to a fair‘hear- . ' ing is an absolute right, not dependent upon | mileages or mileage variations, absolute or relative. It is also respect- ‘ fully submitted that there is rio substantive distinction -between the Ashbacker considerations inherent in the TWA award and those inherent in the Delta award. ‘The TWA award involved a 1,073-mile proposed route between Miami and St. Louis (nonstop) and a 1,591 mile existing route | between St. Louis and California (nonstop St. Louis- -Los i ~ 22 Angeles). The Delta ‘award involved new route mileage ‘between Birmingham and Memphis, .212 miles inside the. area, and a route of 379 miles between Memphis and Kansas . City, outside-the area. The relationship between ‘‘inside: the area’’ and ‘‘outside the area”’ mileage i is similar in the ! TWA award and in the Delta award. Further, it.certainlys , could not be said that Ashbacker protects 1,591-mile.route proposals but not 379-mile route proposals, The latter may be relatively more important than the former in such vital particulars as passengers, reyenues, operational flexi- bility, etc. and certainly the latter could be more easily ’ protecte ocedurally, by the Board. The right'to a fair hearing must be the same for the small as for. the large; yet the Court below would protect only the large. The Court’s disposition of the issue raised by the Delta award is at variance with the same Court’s (and basically rs the same panel ’s)' decision in Eastern Air Lines v. Civil . Aeronautics Board, 243 F. 2d 607 (D. C. Cir. 1956). In that case, Eastern appéaled the Board’s consolidation order in the Great. Lakes-Southeast "Service Case, supra, alleging that the Board violated the Ashbacker doctrine by consoli- dating, inter alia, applications of Northwest Airlines, Ine. (“No} ‘thwest’’) for a new route between Chic ago and F lotid a (where Eastern operated) without hearing East- ern’s applications for new authority between Chicago and points in sthe Pacific Northwest served- by Northwest. Northwest’s application, if granted (and it subsequently | _was), would have permitted transcontinental operations between, for example, Seattle and Florida, and‘so would Eastern’s application if it had been heard, and if it had — been granted. The Great Lakes Case was an ‘‘area’? pro- ' 1Two of the three Judges who sat in the case below also served in the Eastern case. The same Judge wrote both opinions. which no responsible businéss man would undertake unless © he knew that a decision had in effect already been made®”’. Member Hector’s vigorous opposition to the practice illustrates the far-ranging nature of its consequences: all , major “decisions are so announced, the formal decision invariably conforms in major particulars to the ‘‘press release’, pa rties commence actions in reliance on the ‘‘press releases”, and the Board loses its freedom of action to consider the case on its merits when the actual work of opinion writing begins.’° . > . ; The Board itself admits that the situation is at best an unhappy one, conceived in.necessity.*. If it is not stopped by this Court, the Board will continue its use, and the prac: tice may spread to all other agencies which adjudicate gon- 1Jd. at 4-5. 27d, at 5. : 37d. at 4. p ‘The Board alleges a necessity for preventing ‘‘leaks’’ of its votes by untrustworthy persons who participate ‘in the decisional process, attending the Board’s deliberations. Eastern Air Lines v. Civil Aeronautics Board, 271 F. 2d 752, 757, n. 10 (2d Cir. 1959). The very éxcuse offered should condemn. the decisions themselves as being infected with impropriety. & 28 troversial matters attracting wide. spread public. interest. 7 The result will be administrative adjudication by ‘press -release’’—an’ anathema upon any concepts of due process. B. The Press Release Decision Procedure Is Unlawful. © _ The above discussion of the consequences of the ‘‘press release’’ decision practice has touched ‘on its illegality. Clearly Member Hector regarded the practice as unlawful, ° and indeed it is impossible to reconcile its usage with the requirements (of the Administrative Procedure Act and Rule 36 of the Board’s own Rules of Practice. - Tt should be remembered that the Board in its delibera- : tions sitsas a fact-finding jury and it is axiomatic that jury- - men, should not annoifnce their ‘‘tentative’’ -conclusiens ‘prior to consideration of all the evidence. It was stated “in Pool v. C. B. € Q. R. Co,. 6 Fea. 844, 850 (D. Towa 1888) (ordering new trial because of juror ’s misconduct) :. * Now the human mind is constituted so that what one himself publicly declares touching any contro- — versy is much more potent in biasing his judgment ~ and confirming hig predilections than similar. dee- larations which ‘he may hear uttered by other per- sons. When most men commit themselves publicly to any fact, theory, or judgment they are too apt to ‘stand by their own public declarations, in defiance of evidence. This pride of opinion and of consistency belongs to human nature. Where, therefore,.a jnror talks outside the jury room about a case pending and undecided before him, he gives the clearest evidence The Federal Communications Commission adopted the ‘‘ press release’’ procedure shortly after the Board’s first-experimentations . with.it. See FCC Public Notice 41611, February 7, 1957, ‘FCC To Announce Instructions In Docket Cases.’’ The broadcast indus- try trade magazine explained that the Commission, like the Board, had been plagued with ‘‘leaks” in important television license and deintermixture proceedings and was adopting the Board’s practice to combat the problem. 52 Broapceastine 65 (Feb. 11, 1957). ——— a 2 Peta, that he is not an impartial and unbiased juror. The very disoussion of any matter by a juror elsewhere ‘than in the jury room tends to the forming of false ~ impressions and prejudgments. Nor will it do fora . moment to accept the statement of the juror that \ 6 what he has said or heard has not affecfed or influ- _enced his judgment.”” os ie. This Court can take judicial notice of human nature, as - described in the passage quoted.’ A It has been pointed out that the provision of the Admin- istrative Procedure Act for supporting reasons and find- ings of fact to accompany decisions of administrative agen-« cies is not an idle requirement: ' ‘(Any judge can testify to the experience of working on opinions that won’t write with the result that his -eonelusions are changed because of his inability to | state to his satjgfaction the reasons upon which they depend.”’ Landis, The Administrative Process 106 (1938). ; : _ Eastern raised the ‘‘press release” consideration in a ‘the Second Circuit in the appeal of the Great Lakes-South-_ _ east Service Case, supra, and that Court expressed consid- 1it should be made clear that there is nothing but the most jal resemblance between the ** press release’ practice and . . the rarely-used practice of this Court, and other courts, appearing sometimes in extraordinary cireumstances, of announcing a final . judgment before there has been sufficient time to reduce the jifdg- _ment to writing. For example, in the Little Rock School Case, Cooper v. Aaron, 358 U. S: 1 (1958), this Court made it abundantly clear that it was announcing its final judgment after.‘‘having fully _ deliberated’’ on the issues and that the imminence of the netv school _ year at Little Rock coupled with the physical impossibility of _ pedueing the Court’s already carefully reasoned judgment to writ- . ing made it ‘‘important to make prompt announcement of our |- judgment.’’ The ‘‘press release’’ decision practice of the Board is not even remotely comparable. This Court'did not, and it is submitted would not, announce that it had ‘‘tentatively’’ decided to issue its order, but that it would make up its mind definitely and publish its opinion later after it had’ had time to look at the record _ in the case. . . a 30° , erable difficulty with ‘the practiee.. Although the Court did not find that its use.constituted reversible error, Sthe Court - was-carefully critical: .‘‘We do not mean to express approval of the Board’s practice of making public its ten- tative decisions.’’ 271 F. 2d at 758. The Court below, in this case did not: discuss the bie of the “press release’? decision. That Court’s disregard : for the issue, coupled with the Second Cireuit’s grave con- cern about the practice, presents a conflict of views that should be reconciled by this Court. Since all of the Board’s major route awards are announced by ‘press release” - decisions, considerable future litigation will certainly result _ unléss, and until, this-Court rules upon the practice.’ Aside from the general public interest in the practice, it is also a matter of acute public interest that. this Court ‘ reaffirm the right of litigants in-administrative proceedings - to a fair determination of the issues on the record, fairly - considered, and not consign their fates to trial by press release. ; ‘The’ question is: May an administrative agency make up its mind, vote, and publicly announce its determinations ‘without giving supporting reasons and without ever consid- ering material it later finds essential to its formal opinion and order, that is, material not even in existence at the time —_. of the vote, decision, and announcement? Eastern submits that the answer required by the due process clause of the Fifth Amendment, by the statutes governing administrative procedure, and by ‘fundamental 4 As recently as February 15, 1960, a petition for review of. an order of the Civil Aeronautics Board was filed in‘the District of — Columbia Circuit Court of Appeals where the petitioner alleged, inter alia, thatthe Board’s ‘‘ press release’’ procedure had preju- ‘diced it. Southeastern Aviation, Inc. v. Civil Aeronautics Board, No. 15566 D. C. Cir., Feb. 15, 1960, Petition for Review 6, sub- i para. (m). 31 common law iaueaiie of Ange-Asherneg) eamenmies - is an emphatic **No.”” / 3 Conclusion: * For the nnigeten reasons, ‘this petition for a writ of " certiorari should be granted. : ‘ Respectfilly submitted, E. Suyrne GamMBReLL, 5 a W, Guewn Harta, : gg Harotp L. Russet, , ioc Attorneys for Petitioner, 825 Citizags and Southern National Bank Bldg., Atlanta, Georgia James H. Bratton, Jz, a gee ~ ALLISON Wave, . . ree ee e +8 . | Of Counsel. March 9, 1960. Q _ Al. APPENDIX A. a, Statutes and Regulation Involved. Fifth Amendment to Constitution of the United States: No person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indict- ment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or pnblic danger; nor shall any erson - be subject for the same offense to be twice put in je ardy of life or limb; nor shal] be compelled in any crimina. case ‘to be,a witness against imself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just com- pensation. Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. §1001 | ’ Section 3(a) : Except to the extent that there is involved (1) any function of the United States requiring secrecy in the public interest or (2) any matter relating solely to the internal management of an agency— . . (a) Ruves. —Every agency shall separately state and currently publish in the Federal Register (1) description of. its central and field organization including delegations by the agency of final authority and the established places at which, and methods whereby, the ~nblic may secure information or make submi‘tals or sot of the general course and method . anctions - ie ‘ are channeled and determined, iné ature and | requirements of all formal orinform: ., s available as well as forms and instructions as \ +... ..vp2 and con: tents of all papers, reports, or examinations; and (3) sub- stantive rules adopted as authorized by law and statements Pe of general policy or interpretations formulated and adopted by the agency for the guidance of the public, but not rules ° . s | c . , : ? : . “ Se : i a AQ. _ Appendix A. addressed to and served upon named persons in accord- . ance with law. No person shall in any manner be required to resort to organization or procedure not so published. (60 Stat. 238, 5 U. S. C. §1002(a))} Section 8(b):. _ Supmrrrats anv Decisions.—Prior to each recommended, - initial, or tentative decision, or decision upon-agency review of the decision of subordinate officers the parties shall be afforded a reasonable opportunity to submit for the con- . sideration of the officers participating in such decisions (1) proposed findings and conclusions, or (2) exceptions . to the decisions or recommended decisions of subordinate . Officers or to tentative agency decisions, and (3) supporting: reasons for such exceptions or proposed findings or con- clusions. The record shall show the ruling upon each such . finding, conclusion, or exception presented. All decisions (including initial, recommended, or tentative decisions) shall become a part of- the record and include a statement of (1) findings and conclusions, as well as the reasons or _basis therefor, upon all the material issues of fact, law, or discretion presented on the record; and (2) the appro- priate rule, order, sanction, relief, or denial thereof. | (60 Stat. 242, 5 U. S. C. §1007(b)) Section 10(a): Ricut or Review.—Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof. (60 Stat. 243, 5 U.S. C. §1009(a)) Section 10(e): Score or Review.—So far as necessary to decision and- where presented the reviewing court shall decide all rele- a A3 Appendix A. . © vant questions of law, interpret constitutional and’ statu- tory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withlreld or unreasonably delayed ; and (B) hold unlawful and set aside agency action, find- : ings, and conclusions found to be (1) arbitrary, capricious, an abuse of. discrefion, or otherwise not in accordance with law ; (2) contrary to constitutional right, power, privi- lege, or immunity; (3). in excess of statutory jurisdiction,. authority, or limitations, or short of statutory right; (4) without observance of procedure required by law;° (5) unsupported by substantial evidence in any case subject to the reyuirements of sections 7 and 8 or otherwise reviewed — on the record of an agency hearing provided. by statute; or (6) unwarranted by the facts to the extent that the facts ‘are subject to trial de novo by the reviewing court. In° making the foregoing determinations the court shall review ‘the whole record or such portions thereof as may be cited by any party, and due account shall. be taken of the rule of prejudicial error. (60 Stat. 243, 5 U. S. G. §1009(e)) Civil Aeronautics Act of 1938, as amended, 52 Stat. 977, 49 U.S. C. §401 Section 2: _ In the exercise and performance.of its powers and duties under this Act, the authority shall consider the following, among other things, as being in the public interest,‘ and ' in accordance with the public. convenience and necessity— (a) The encouragement and development of: an air- transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense; — . 8 Ad Appendix A. (b) The regulation of air transportation in such manner as to recognize and preserve -the inherent advantages of, assure the highest degree of safety in, and foster sound. economic conditions in, such transportation, and to i improve the relations between, and coordinate transportation by, air carriers; . ( ¢) The promotion of. adequate, economical, and efficient '.. service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; : .(d) Compétition to the extent necessary to assure the sound development of an air-transportation system prop- - erly adapted to the needs of the foreign and domestic com- . merce of the United States, of the Postal Service, and of the national defense; (e) The regulation of air commerce in such manner as to best promote its ieee neeats and safety; and (f) The encouragement and development of civil aero- nautics. , . : (52 Stat. 980, 49 U.S.C. §402) . Section 401: CERTIFICATE OF PusLic CONVENIENCE AND NBECESSITY (a) No air carrier shall engage in any air transporta- tion unless there, is in force a certificate issued by the Board authorizing such air carrier to engage in such trans- portation: Provided, That if an air carrier is engaged in such transportation on June 23, 1938, such air carrier may continue so to engage between the same terminal and inter- - mediate points for one hundred and twenty days after said date, and thereafter until such time as the Board shall pass upon an application. for a certificate for such trans- portation if within said one hundred and twenty days sueh air carrier. files such application as provided herein. — e 3 an | A5 Appendia A. , -. (b) Application for a certificate shall be made in writ- ing to the Board and shall be so verified, shall be in such form and contain such information, and shall be accom- panied by such proof of service upon such interested per- sons, as the Board shall by regulation require. . (c) Upon the filing of any such application, the Board shall give due notice fhereof to the public by posting a ‘notice of such application in the office of the secretary of the Board and to such other persons as the.Board may by ‘regulation determine. Any interestéd person may file with the Board a protest or memorandum of opposition to or in . support of the issuance of a certificate. Such application - shall be set for public hearing, and the Board shall dispose . - of such application as speedily as possible. (d) (1) The Board shall issue a certificate authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and — able to perform such transportation properly, and to con- form to the provisions of this chapter and the rules, regu- _ lations, and requirements of the Board hereunder, and that such transportation is required by the public convenience and necessity, otherwise such application shall be denied. (2) In the case of an application for a certificate to en- gage in temporary air transportation, the Board may issue a certificate authorizing the whole or any part thereof for such limited periods as may be required by the public convenience and necessity, if it finds that the applicant is - fit, willing, and able properly to perform such transporta- tion and to conform to the provisions ofthis chapter and the rules, regulations, and requirements of the Board | hereunder. . re Py @ ® @ * . P ‘ (f) Each certificate issued under this section shall specify the terminal points and intermediate points, if any, .* A6 7 a ss Appendia 4. bitween which the air carrier is authorized to engage in air transportation and the service to be rendered; and there shall be attached to the exercise of the privileges ‘granted by the certificate, or amendment thereto, such rea- sonable terms, conditions, and limitations as the public interest may. require. A certificate issued under this sec- tion to engage in foreign air transportation shall, insofar as the operation is to take place without the United States, designate the terminal and intermediate points only insofar as the Board shall deem practicable, and otherwise shall . designate only the general route or routes to be followed. _-Any air carrier holding a certificate for foreign air trans- portation shall be authorized to handle and transport mail of countries other.than the United States. No term, con- dition, or limitation of a certificate shall restrict the right of an air carrier to add to or change schedules, equipment, accommodations, and facilities for performing the author- ized transportation and service as the development of the business and the demands of the public shall require. No - air carrier shall be deemed to have violated any term, condition, or limitation of its certificate by landing or tak- ing off during an emergency at a point not named in its certificate or by operating in an emergency, under regu- lations which may .be prescribed by. the Board, between terminal and intermediate points other than those specified - in its certificate. Any air carrier may make charter trips or perform any other special service, without regard to — _ the points named in its certificate, under regulations pre- scribed by the Board. (gz) Each certificate shall be effective from the date specified therein, and shall continue in effect until sus- pended or revoked as hereinafter provided, or until the Board shall certifiy that operation thereunder has ceased, ' or, if issued-for a limited period of time under subsection (d) (2) of this section, shall continue in effect until the expiration thereof, unless, prior to the -date of expiration, © AT ' Appendia A. such’ cortifiente shall be suspended or revoked as provided: herein, or the Board shall certify that operations there- under have ceased: Provided, That if ariy service author- | ized by a certificate is not inaugurated within such. period, not less than ninety days, after the date of the authoriza- — tion as shall be fixed by the Board, or if, for a period of ninety days or such other perigd as may be designated by the Board, any such service is not operated, the Board may by order, entered after notice and hearing, direct that such certificate shall thereupon cease to be effective to the extent of such service. (h) The Board, upon petition or einalbilas or upon its own initiative, after notice and hearing, may alter, amend, modify, or suspend any such certificate, i in whole or in part, - if the public convenience and necessity ‘so require, or. may revoke any such certificate, in whole or in part, for inten- tional failure to comply with any provision of this sub- chapter or any order, rule, or regulation issued hereunder or any term, condition, or limitation of such ceftfficate: . Provided, That no such certificate shall be revoked unless the holder thereof fails to’ comply, within a reasonable | time to be fixed by the Board, with an order of the Board commanding obedience to the provision, or to the order (other than an order issued in accordance with this pro- viso), rule, regulation, term, condition, or limitation found by the Board to have been violated. Any interested person may file with the Boa: d a protest or memorandum in sup- port of or in- opposition to the alteration, amendment, modification, suspension, or revocation of a certificate. - (52 Stat. 987, 49 U. S. C. §481) - Sectiow 1008(2): Form and Service of Orders | Every order of the ‘Authority [Board] shall set forth the findings of fact upon which it is based, and shall be A8 A ppendix A. served upon the parties to the proceeding and the Persons affected by such order. (52 Stat. 1023, 49 U.S.C. s645(f)) Section 1006(a) : Any order, affirmative or negative, issued by the Author. . ity under this Act, except any order in respect.of any foreign air carrier subject to the approval of the President - \" as provided in section 801*of this Act, shall be subject -to . Teview by the courts.of appeals of the United States or the United States Court of Appeals for the District of Colum- - bia upon petition, filed within sixty days after the entry of such order, by any person disclosing a substantial interest in such order. After the expiration of said sixty days a ° petition may be filed only by leave of court upon a showing — of reasonable grounds for failure to file the petition therete- fore. +t (52 Stat. 1024, 63 63 Stat, 107, 49 U.8.C.,§646(a)) _ Section 1006(f): (f) The judgment and decree of the court dimies modifying, or setting aside any such order of the Board shall be subject only to'review by the Supreme Court of — the United States upon certification or certiorari as pro- ~ vided in sections 346 and: 347 of Title 28. (52 Stat. 1024, 49 U. S. C. 4646(f)) A9 ‘ 7 Appendiz A. Crvm. Amines Boarp, Rues or Phacrice IN Ecoxomto : Proceepines, Ruue 36.. : ” Section 302.36 Final decision of the Board. ‘Upon sub- . mittal of a case to the Board for final decision on the merits . the Board will consider the whole record, including the - ‘initial or recommended decision of the Examiner of its tentative decision, and the exceptions thereto, will resolve all questions of fact by what it deems to be the greater weight of the evidence thereon, will make its decision, stating the reasons or basis therefor, and enter an appro- priate order. F (17 F. R. 3020, Apr. 8, 1952) - Bl , | APPENDIX B \J . > Opinioris' and Judgments Below. UNITED STATES COURT OF APPEALS @ : For tHe District or CoLumBia Cracurt. aE: No. 14798 \ Detta Am Lives, INc., PETITIONER | v. Crvm Agronautics Boarp,* RESPONDENT @iry or Nasuvuie and Tae Nasavitie CHAMBER. or ComMMERCE, Oni: or Tampa, Fioriva, and THe Gen ene ' \. CHAMBER oF Commence, _ Orry or Kansas Cirt, Missouri, . Crry or Sr. Louis, Missovai, and Tue CHamBer oF — Commence or Metsopouitan St. Louis, Trans Wortp Atruines, INc., | Eastern Ais Lines, Inc., INTERVENORS No. 14804 American Arurnes, Inc., PETITIONER v. Crvm. Azronautics Boakp, RESPONDENT | Crry or Tampa, Fronmpa, and Tue Greater Tampa CuamBer or CoMMERCE, Crry or Kansas City, Missovni, Crry or Sr. Louis, Missouri, and Tue CHamser or - Commerce or Mersopouitan Sr. Lovts, Traxs Wortp Arutnes, Inc, Easterns Arm Lings, Inc., INPERVENORS B2 Appendiz B No. 14812 Eastern Arauines, INc., PETITIONER. | v. Civ Arronautics Boarb, RESPONDENT ‘ Crry or Tampa, Forma, and Tae Greater Pampa CHamMBER oF ComMERCE. + . Crry oF Kansas Crry, MissourI, Crry or Sr. Louis, Missovrr, and Tue CHaMBER OF ComMERCE or Merropouitan Sr. ‘Louis, Trans Wortp Arrives, Inc., Devta Arr Lives, Inc., INTERVENORS ‘ No. 14822 NationaL Arruines, INc., PETITIONER ©” , sith v. ~Crviz Azronautics Boarp, RESPONDENT Crry or Tampa, FPioripa, and Tue Greate# Tampa CHAMBER OF Commence, “Crry or Kansas City, Missouri, | _Crry or Sr: Louis, Missouri, and Tue CHAMBER OF Commerce or Metropouitan Sr. Louis, Trans Worvp Azaruines, Inc., _ INTERVENORS On Petitions to Review Orders of the Civil Aeronautics Board Decided December 10, 1959 its v4 B3. , Appenita, B | eo - Before Prettyman, Chief Judge, and, BazeLon . and/ Fany, Cireuit J udges. PRETTYMAN, ‘Chief Judge: These are four petitions for ‘review of orders of the Civil Aeronautics Board made: in its. St. Louis-Southeast Service Case. Principally: the Board: awarded to Trans .World Airlines, Ine. (TWA) a new route from St. Louis. to Miami and other Florida coast points, and to Delta Air Lines, Inc’, a new Memphis: Birmingham route. The cases in this court fall into two main wait one relating to each of the above-mentioned awards. The dis- cussion, however, more aptly falls info four divisions: (I) The mutual-exclusivity contentions advanced by Ameri- can, Delta and National. * These carriers claim that TWA was awarded an effective-southern transcontinental route without consideration of economiéally mutually exclusive applications. (II) Impact of. the award to*TWA on an. - existing southern transcontinental interchange, arrange- ment. (ITI) Eastern’s contentions concerning mutual exclusivity. Eastern. claims that the Board. erroneously made awards to TW.A and ‘Delta without comparative consideration of its mutually exclusive applications. (IV) ‘The merits of the TWA and Delta awards, apart from. ' mutual-exclusivity arguments, and some miscellaneous con: tentions. a I * Two proceedings before the Board play parts in this problem. One is the Sf. Louis-Southeast ‘Service ‘Case, which was instituted to inquire into the need for service ‘‘between St. Louis on the one jharfd and Florida and other southéastern points on the other’’. Several appli- cations were ¢ :solidated in that case." As we have _ noted, the ordershere under review: were entered in that — . Pe ‘No. E-10304 (May 18, 1956) ; ones No. E-10651 (Oct. ) - , eee -* Appendia. B proceeding. The other case which plays a part in the © contentions made tous is known as the Southern Trans- continental Service Case. It was a combination of sev- eral proceedings, which ‘initially had various names. In ‘its order of consolidation in the ‘Southern Transconti- mental Case? the Board delineated the scope of the pro- eeeding to include (1) the need for single-carrier service “between Houston and West Coast points, (2) the need for ‘‘single-carrier transéontinental service’? between Florida _ points and the WestCoast, and (3) the need for single- earrier transeontinental seryice between Atlanta-Birming- ham and the West Coast. In that order the Board repeat- _edly used the expression: ‘‘southern transcontinental route’’. ~The Board explained that in prescribirg-the scope of this hearing it intended to: consider new or ddditionah. throngh service’in the southerr tier of states, that is, from * Florida across the southern boundary of the country to and ““* * * it is necesgary to establish a framework i in which all major southern franscontinental service issues as a whole _ melding. sno The Board said in that connection: ‘ean be Uetermined for the foreseeable future.’”’ As thus arranged, the case included a large number of applications. In the St. Louis Case various preliminary motions were made by different carriers, which motions fall .generally ‘into two classes; The first class was for expansion of | the proceeding to include applications for, extensions. west- ward. of existing routes into St, Louis from the East, so as to’add te them routes from St. Louis to the West Coast, and in the opposite direction for extensions. east-- ward of existing routes into St. Louis from the West, so as to add to them routes from St. Louis to the Southeast. These motions were denied. The other class of motions wis to impose restrictions upon any ‘grant of a new route from St. Louis.to Florida points, so’ as to prevent any 2 Order No. ‘E- 12861° (Aug. § , 1958). ; Order No. E-13132 (Nov. 4, 1958). ; > . Appendiz B. grant of such a route from being in effect a through service Florida-California via St. Louis. In response to these motions the Board arinounced as.a minimum restric- ° tion a requirement that service on any route granted between California points and Florida points via St. Louis must, include a stop at St. Louis. And the Board ‘further announced that the parties would not be foreclosed : from advancing in the course of fhe hearing appropriate evidence which might reflect a necessity for more stringent limitations. Thus the Board limited*the hearing in the St. Louis Case to service betiveen’St. Laws and Florida and vther Southeast points. . The Board awarded to TWA the route from St. Louis . ta Florida-points*® and imposed as the, sole limitation the previously described mandatory-stop ‘requirement at St. Louis. TWA was alreddy certificated for through service from St. Louis to California coast points, and the new oe award was cast in the form of an amendment to TWA’s existing Route 2, which was the St. Louis-West Coast route. The effect of the order was, to authorize one-plane, one-carrier, through service from Florida coast points to California coast’ points via | Bt. Louis, with a mtandatory stop at St. Louis. The Board made elear that it pelea TWA as the _ awardee of the new route because this ‘selection would ; provide for the first time. single-earrier, single-plane serv- ice between the Florida coast and the California coast. For example, the Board pointed out that TWA’s service, ‘operating nonstop from: I.os Angeles or “San Francisco to St. Louis for éxpedited carriage to the Southeast onward from St. Louis, will provide a usable and ,convenient alternative service to the multiple-stop flights operated by the National-Delta American Interchange, and bring . important service benefits to a respectable portion of -the ——— 81958). No. E-13026 (Sept. 30, 195 08) Order No. E- 13248 (Dee. 8, 1958) ip B6 Appendix B. passengers moving in these markets.’’ And in its ruling _ on & motion for reconsideration the Board said: “‘The TWA award, of course, will permit that car- rier to operate a usable one-stop, single- plane service -between the West Coast and the points in the South- east that are being added to its route. It was the earrier’s ability to provide these ‘beyond area’ bene- fits that was responsible for our selection of TWA as the carrier to perform the St. Louis-Southeast services that were found to be required by the public convenienee and necessity.’’ The principal point made by petitioners as to this award is that the Board could not restrict the nature and seope of the St. Louis Case to considerations limited to St. Louis- Florida points service, and then in that same case make ~ an award which was for all practical purposes a one-carrier, one-plane, through transcontinental Florida to California route, When there were pending unheard in another pro- ceeding (the Sout ern Transcontinental Case) many appli- cations for transcontinental serviee Florida to California. This argument is premised upon the fact that the route awarded TWA makes its Florida-California service very slightly longer than would be any route which might be awarded in the Southern ‘Trancontinental Case. This method of reaching an award, say the petitioners, is a direet evasion of the Ashhacker doctrine.‘ The law which was established by the Supreme Court in the Ashhaeler ease has been sloganized, civen a name, and is often disenssed as though it were a technicality. The law which the Court there laid down was far from a technicality. The statute involved (the Commnnicaticns Act) provided in effect that applicants for licenses should have a right te 9 hearing before their applications are denied./ Two applications which were mutually exclusive were pending. The Court held that the Commission could * Ashha ker Radio Co. v¥. Federal Communications Comm’n, 326 U. S. 327 (1945). ; B7 Appendix B. not grant one without a hearing. of" the other. The Court said, inter alia: ‘tFor if the grant of one effectively precludes the other, the statutory right to a hearing which Con- gress has accorded applicants before a denial of their - applications becomes an empty thing.’” _ The ruling was a practical conclusion of sound common sense. Tt is simply a realistic truth that, if only one of several applications can be granted, an award to one ap- plicant is as effective. a denial of all ‘the others as would be a flat order of denial. The foregoing conclusions were premised upon a phys- ical mutual exclusivity of two licenses. It is ‘true, as the Board argues, that the application of the Ashbacker -doc- trine to awards of airplane routes presents many difficul- ‘ties not in the radio cases. We pointed this out'in Eastern - Air Lines v. Civil Aeroiaulics Board.’ We now iterate the doctrine there stated; the Board must have a.consider- measure of discretion in limiting the areas to be con- sidered in its air-route cases. Bit at the samé time we _ emphasize that the Board cannot, either intentionally or by the demonstrable effect of ‘an order, avoid what is now known as the Ashbacker doctrine. .Another general doctrine, based upon economic -con- siderations, is pertinent to, the present case. In many fields, including both communications and air transporta- tion, an operating license requires a aera 4 finding. of publie interest, convenience and necessity.’ _ publie 5 Td. at 330. 6100 U.S. App. D. C. 184, 243 F. 20 607 (1956), cited and quoted in Eastern Air Lines v. Civil Ae ronautics Board, 101 'U. App. a ¢. 106, 247 F. 2d 562 (1957). 7 As to air transportation, See. 401(d) (1), Civil Aeronautics Act, 52 Stat. 987 (1938). The Federal Aviation Act of 1958, which supersedes the Civil Aeronautics Act, contains the same provision, Sec. ERED & 2 Star. 754, 49 U.S. C. A. §1871/d) (1). ot . B8 Appendix B. interest requires service for the public. It therefore re- quires that, if there be only enough business to support operation by ore licensee, there must. be only one licensee. This is a commonplace of public utility regulation. We discussed the principle at length in Carroll Broadcasting Co. v. Federal Communications Comm’n#* The Civil Aeronautics Act® requires notice and hear- ing on applications for certificates for new routes, and also requires notice and hearing upon petitions for modi- fications of existing licenses; which latter include exten- sions of existing routes.'? Under the Act (Sections 401 & (d)(1) and 401(h))" a finding of public convenience and necessity is a requirement for either the grant of a new certificate or the extension of an existing route. So the principles we have been ‘discussing apply to’ air certifica- tions.. If the grant of one of several applications for a new route does, as a matter of economnic necessity, pre- -cludg the grant of any other application, the doctrine of Ashhacker clearly applies. Likewise, if the foreseeable traffic would support two carriers and here are, -let us *103 U.S. App. D. C. 346, 258.F, 2d 440 (1958): The principle is also discussed at length in the dissent in RCA Communieations — - v. Federal Communications. Comm’n, 91 .U. 8. App. D. C. 289, - 294-296, 201 F. 2d 694, 699-701 (D. C. Cir. 1952), with citations, and is a‘thread which runs through the opinion of the Supreme © Court in that ease, Federal Communications Comm’n v. RCA Com- munications, Ine., 346 U. S. 86 (1953). This was a telegraph case, in which the competition involved was economic, not a radio case in which the exclusivity is physical. Gerico Investment Co. v. Federal Communications Comm'n, 103 U. S. App.’D. C. 141, 255 F. 2d . .893 (1958), prior to Carroll, contains a clear intimation to the same effect. ® See. 401(c), 52 Star. 987 (1938), as reenacted, 49 U.S. C. A. §1371(¢c). - 10 See. 401(h), 52 Star. 989 (1438), as reenacted, 49 U.S.C. A. | §1371(g). See, e.g., Eastern Air Lines, Inc., et al., Great Lakes to Florida Service, 6 C. A. B. 429 (1945); Delta Air Corp., et al.. Service to Atlanta and Birmingham, 2 C. A. B.-447 (1941).. i, 2 11 Supra notes 7 and 10. B9 Appendiz B. say, five applicants, the grant of any one is an effective denial of three of the remaining four applications, ,and Ashbacker applies. ©. as * The Board denies the applicability of Ashbacker in this latter situation and refers us to Pauley v. Federal Com- munications Comm’n.? However that case involved neither a grant nor a denial of an application and thus is not remotely pertinent to the situation now before us. The doctrine of Ashbacker also applies where a request for an extension of an existing route would preclude the erant of other pending applications for the entire route. If one certificate for a route exists, and if the grant of a second competitive route would as a matter of economic fact destroy or substantially reduce the rendition of the service required by the public interest, the public interest: precludes the competitive grant. The Board has frequently recognized and applied this latter rule; as a matter of fact it almost always does so.”* | This bring us to a consideration of the practicalities of the situation in the case before us. The characteristics of a - restricted-area service are entirely different from those of a transcontinental service. This is well recognized in the industry. We think the Board cannot “be compelled to ‘ expand an area case: but at the same time it cannot be per- mitted to transform the nature of an area case without applying to it the factors which govern the case as trans- 12 86 U.S: App. D. C.294, 181 F. 2d 292 (D. C. Cir. 1950). 18 See, ¢.g., Southern Transcontinental Service Case and Dallas to the West Service Case, C. A. B. Order No. E-12861 (Aug. .5, 1958) ; Investigation ‘of. Service to Winsfon-Salem and/or Greens- boro-High Point, C. A. B. Order No. E-12873 (Aug. 8, 1958), “1A Av. L. Rep. par 22,192; Southern Service to the West Case, Reopened, 18 C. A. B. 234 (1953) ; Transcontinental & Western Air, Inc., et al., Detfoit-Memphis Service, 6 C. A. B. 117 (1944). Cf. Seven States Area, Investigation, €. A. B. Order No. E-13254 (Dee. 8, 1958), 1A Av. L. Rep. par. 22,226, 22,226.11 (new com- petitive service would be too costly to the Government in subsidies). B10. Appendix B. formed. It cannot hear an area case and, without more. make a transcontinental award. It cannot. thus ignore pending applications for a transcontinental route certifi- cate, if those applications-are mutually” exclusive with the award being made. Petitioners, or some of them, had pend- ing applications for through routes Florida to California. coast.. These were consolidated in the Southern Trans- continental Case. They endeavored, by motions in the Sf. Louis Case to persuade the Board to do one‘of two things, - either restrict any award in‘that case so stringently as to preclude its being effective through southern transcontin. ental or give comparative hearing to all pending applica’ tions for such a route. They now argue to us that the maximum power of the Board under the statute, constrned according to Ashbacker, was limited to these two alterna- tives. The Board apparently agrees with the general prin- ciples underlying these arguments; references’ to them appear in the orders of consolidation. So the first debated juestion in whether a primu farie showing was made that the TWA award via St. Lotis would create in an inadequate market an effective competitor in “ the southern transcontinental market. The problem, let us remember, is not whether the award shonld be made but whether these other. applicants: were entitled to a hearing on the matter. We think we need go no further than the Board's own findings to secure the answer. In its initial opinion which supported the. order in the preceeding now before us, the Board emphasized that the . route to be awarded TWA, involving only 12 per cent cir. cnity over a more direct routing between the Southeast and the West Coast, ‘would provide a convenient alternative such hearings. These several. contentions of Eastern must be splits -viewed against the background of findings by the examiner urges. and the Board, upon extended. — that Eastern’s'. © ilarly service in the Southeast area had n inadequate, that ik the ' Eastern had not developed the potential market, that more rwise, traffic would result from improved service, and that there ations *was'a public need for competition in the area. Upon the 7 ed by facts of this case, we think the Board did not abuse its erved discretion in declining to reopen the record. uch a It is true that the Board did not findpany sie for the - statu- Atlanta-Florida service award to TWA, considered as ‘ing a local service. But it specifically found a need for trunk- , line service from St. Louis-Nashville to’both Atlanta and Florida. We find no error in the Board’s award-of the ‘route without an absolute restriction against local service between Atlanta. and Florida.” The Board did place a were long-haul restriction. on the Atlanta-Florida_ gn e-and—____}—___awara-to- FWA Delta, while agreeing with the eel ’s findings on the’ need for a new competitive St. Lonis-Southeast route, contends that the Board erred in -that it awarded the new route to TWA on the basis of a ‘‘need”’ not in issue and sumu- se of failed to make certain comparative findings as to Delta’s 3oard and -TWA’s qualifications for the route. Delta attempts ntial; ‘to demonstrate that the. Board, without so saying, actu- — alien ally picked TWA “as _the-awardee upon a-consideration have of needs of out-of-area traffic. It savs the Board specifi- to be . eally exeluded from the issues in the case the service » evi- needs of out-of-aréa traffic, i.e.. the needs of cities west these and north of St. Louis for service into the ‘Southeast chal-’ area, Nevertheless, says Delta, the Board based the award nents to TW A upon stich needs. But it clearly appears that the rvice only use the Board made of out- of-area traffic data was as arket oné of the factors in selecting the carrier best able to: meet erro- the needs of the area. The Board said: —. 23 It should he aed that Eastern made no request for any such restriction. e wt BS --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0284%3A2. Public record. Not legal advice.