The plaintiffs attempt to construe Section 403(a) of the F.A.A. as a grant to the Board of jurisdiction over motor vehicles involved in pick-up and delivery service '* * * in connection with * * * air transportation.' This section requires the air carriers to include in their tariffs filed with the C.A.B. the charge for such pick-up and delivery service. To construe this as jurisdiction to economically regulate the motor carriers performing this service is to strain the plain meaning of the section beyond its limit.
It cannot be argued that the Commission lacks jurisdiction to regulate all common carriers (motor vehicles) involved in the movement of goods in interstate commerce to the extent that the issue involved pertains to (1) the qualifications of employees of the common carriers, (2) the maximum hours of work by employees, (3) the safety regulations to be followed by the carriers, or (4) the equipment standards to be met by the carriers. The Commission also has authority to economically regulate all motor vehicles involved in interstate commerce except when the motor vehicles are used exclusively in the collection, delivery or transfer of goods incidental to transportation by aircraft. Excluding this partial exemption of Section 203(b) (7a), the Commission has regulatory authority over all motor vehicles in interstate commerce. The determination of the scope of this exemption from economic regulation must logically fall on the Commission. Whether this determination is accomplished on an ad hoc basis as in Kenny and the cases following that decision, or by use of the rule making power does not alter the right to make such a determination.
The plaintiffs cite City of Philadelphia v. C.A.B., 110 U.S.App.D.C. 104, 289 F.2d 770 (1961), which held that the motor vehicle transportation of air cargo from Newark to Philadelphia, subsequent to an air movement of the same cargo from California to Newark, was 'air transportation' within the meaning of the Federal Aviation Act. This case decided only that the airline involved, Flying Tiger, was fulfilling its obligation to Philadelphia in providing it with adequate air transportation between Philadelphia and California as called for by the certificate of public convenience and necessity issued to Flying Tiger by the C.A.B. The Court did not decide that the Board had economic regulatory jurisdiction over the Newark-Philadelphia truck run nor that such motor vehicle transportation of air cargo was incidental to transportation by aircraft and therefore exempt under Section 203(b)(7a). The Court, by way of dictum, cited with approval the Board's Order disclaiming jurisdiction and indicating the Commission should determine if the Newark-Philadelphia truck haul is incidental and exempt. We agree. An interline movement of property partly by air and partly by motor vehicle may be air transportation for purposes of providing service to points for which a certificate of public convenience and necessity has been issued and at the same time the motor vehicle portion would not be incidental to the transportation of the property by aircraft.
We find that the I.C.C. has the jurisdiction to define the scope of the exemption granted in Section 203(b)(7a). This determination is dispositive of this litigation since inquiry into the substance of the regulations would be premature. No conflict between the Board and the Commission has arisen nor have these regulations been attacked as an unreasonable exercise of the authority vested in the Commission.
An appropriate order may be submitted by the defendant, Interstate Commerce Commission.