argued as amended june 15 1977.: February 22, 1977.
PETITION FOR REVIEW OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.
Gibbons and Rosenn, Circuit Judges, and John B. Hannum, District Judge.*fn* Rosenn, Circuit Judge, dissenting.
Presently before the Court is an appeal from an order of the Interstate Commerce Commission (Commission) which authorized Mack Transportation Company of Philadelphia (Mack) to convert from contract carrier to common carrier status pursuant to section 207 of the Interstate Commerce Act (Act), 49 U.S.C. § 307.
Mack, a family-controlled partnership, has operated as a motor carrier since 1919. It first came under regulation after the passage of the Motor Carrier Act of 1935, 49 U.S.C. §§ 301 et seq., and was granted authority to serve as an "open-ended" contract carrier. In 1957 an amendment to § 203(a)(15) of the Motor Carrier Act, 49 U.S.C. § 303(a)(15), limited the definition of contract carrier to persons contracting "with one person or a limited number of persons" for furnishing of transportation services. Following the passage of the 1957 amendments, the Commission, on its own motion, reviewed Mack's status as a contract carrier pursuant to section 212(c), 49 U.S.C. § 312(c).*fn1 In proceeding MC-105809 Sub-No. 9 the Commission concluded that even though Mack was serving 18 shippers it was still serving a "limited number" in compliance with the amended definition of contract carrier.
In 1969, Mack filed an application for an extension of its contract authority to permit it to serve a present shipper from Philadelphia to additional points in fourteen states. In proceeding MC-105809 Sub-No. 13 the Commission, in effect, reversed its earlier determination and held that Mack was serving shippers in excess of the "limited number" permitted contract carriers. The application was thus denied although Mack was offered recourse to: (1) reduce the number of shippers served to conform to the restrictions placed upon contract carriers, or (2) convert to a common carrier by filing for a certificate of public convenience and necessity, or (3) take any other action deemed proper.
Initially Mack filed a proposal under which the number of shippers it contracted to serve would be reduced to nine. However, this proposal was rejected by the Commission. Thereafter, Mack sought to convert its entire operation from contract carrier to common carrier. It is the Commission's grant of this authority which is presently before us.
Essentially, two issues are presented:
I. Whether the Commission properly applied the test set forth in Fischbach Trucking Company Common Carrier Application (Fischbach), 61 M.C.C. 539 (1953) for determining "public convenience and necessity" to Mack's instant application; and
II. Whether the Commission's conclusion granting Mack's application for a certificate is based upon adequate findings supported by substantial evidence on the record as a whole.
Section 207(a) of the Act provides in pertinent part:
[A] certificate shall be issued to any qualified applicant therefor, . . . if it is found that . . . the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience ...