determination was correct "in view of applicant's singular failure to sustain its required burden of demonstrating service inadequacies on the part of regular-route protestants and of establishing by probative evidence a present or future need in 8 of 13 destination States for the service proposed in its application

The evidence, the Administrative Law Judge's initial decision, the review board's decision and order, and the pleadings have been considered. We find the Administrative Law Judge's statement of facts to be correct in all material respects, and, as modified or supplemented herein, we adopt that statement as our own. Such facts will be restated only to the extent necessary for clarity of discussion.

THE PERTINENT FACTS

Applicant is an irregular-route, motor common carrier of specified commodities. It is presently serving Meldisco, the supporting shipper herein, under temporary authority from the Morrow, Ga., warehouse involved herein. In addition it has participated extensively in the transportation of footwear from Meldisco's Brockton, Mass., warehouse and thus has extensive experience in handling the involved commodities. Kroblin proposes to station initially from four to six trailers at the involved facility should the instant application be granted. It also proposes to make multiple deliveries as required, involving from six to nine stopoffs in transit for partial unloading.

Meldisco Shoe, division of Melville Shoe Corporation, is engaged in the retail selling of shoes at K-Mart stores, leasing space in the stores and selling shoes under its own management. Meldisco operates out of 650 stores throughout the continental United States, and maintains warehouses at Brockton, Mass., Los Angeles, Calif., and, as directly pertinent here, Morrow, Ga. At the time of the hearing herein the Morrow facility had recently opened. Shipper indicated the number of stores operated in the sought destination States. It further indicated that its program of expansion is great, opening 100 stores a year, with corresponding increases in sales. Although the traffic study submitted by shipper involved shipments from the Morrow facility to the States of Arkansas, Louisiana, Oklahoma, Texas, and Missouri only, Meldisco intends to ship to stores in all the proposed destination States. Shipper indicates that the service of applicant has been excellent out of Brockton and also No specific figure was given for stores in Nebraska.

under temporary authority out of the Morrow facility. It believes that the services of regular-route motor common carriers are not adequate since they must interline at break-bulk points, which creates delays and difficulty in tracing lost shipments. Meldisco asserts that it never makes less-than-truckload (LTL) movements, since its marketing is set up to ship in trailerload volumes to multiple destinations. It further asserts that the placing and replacing of seals on the trailers utilized in transportation of the involved commodities is absolutely essential in order to maintain correct deliveries to the various consignees.

Ryder, the only protestant which filed a reply to applicant's petition for reconsideration, holds pertinent authority to transport general commodities (with exceptions), over a system of regular routes, to certain points in Louisiana, Missouri, Tennessee, Texas, and Wisconsin. Ryder's tariff provides for three stops in transit plus final stop for delivery. It has participated not only in Meldisco's traffic out of Morrow, but has also performed transportation services for the shipper from its Brockton facility to Miami, Fla., and Atlanta, Ga. Ryder introduced in evidence a traffic study covering the period January 25, 1974, through March 1974, during which it transported shipments for Meldisco from Morrow to points in Louisiana and Texas during the time that applicant held temporary authority to perform transportation from shipper's Morrow facility. The subject traffic study shows 47 shipments for a total of 69,250 pounds with gross revenues of $4,467.

DISCUSSION AND CONCLUSIONS

In applications for motor common carrier authority, we have consistently followed the criteria set forth in Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936). A decision as to whether or not applicant has met its burden of proving that the proposed operation is or will be required by the present or future public convenience and necessity depends on whether the new service will serve a useful purpose, responsive to a public demand or need; whether this purpose can or will be served as well by existing carriers; and whether it can be served by applicant without endangering or impairing the operations of existing carriers contrary to the public interest. In essence, the question is whether the advantage to those members of the public that would use the proposed service outweigh the disadvantages, real or potential, to existing services that may result from the certification of that

additional competition. Applying these criteria to the evidence of record in the instant proceeding, we are of the opinion that applicant has satisfied its burden of proof, and that the application should be granted to the extent indicated below.

The evidence of record clearly establishes that the supporting shipper has, or will have, a large volume of traffic moving to its stores located in the 13 destination States. Nearly half of shipper's stores which have previously been served from its Brockton warehouse will, in the future, be served from its new Morrow facility. While not all of the stores located in the involved destination States had been served from Morrow at the time of the hearing, shipper has opened or will open stores in all of the involved destination States which will be supplied from Morrow. Shipper is opening 100 new stores annually and, by reason thereof, its shipping needs will increase. The record reveals a need for timed deliveries with multiple stops in transit for partial unloading.

We conclude that the evidence submitted by applicant concerning its proposed operation demonstrates that it is better suited than the protesting regular-route carriers to meet the demonstrated needs of the supporting shipper and that the service proposed by applicant will be more efficient than anything available from existing carriers. It is to be noted that of the carriers originally protesting the instant proceeding only Ryder displayed a continuing interest in the proceeding by filing a reply to applicant's petition for reconsideration. The failure of the remaining protestants to reply to the petition is an indication of a lack of continuing interest in this proceeding and the involved traffic and detracts from the weight to be accorded protestants' opposition to a grant of authority herein. Cf. Fleet Transport Co., Inc., Ext. Rutherford County, 112 M.C.C. 813, 817 (1971), and Pittsburgh & New England Trucking Co., Extension, 113 M.C.C. 385, 389 (1971).

Further our grant herein of comprehensive authority will render the proposed operation more feasible. It is to be noted that the 13. destination States are contiguous and the proposed transportation service may be more effectively performed by a grant of authority which is comprehensive in scope. Shipper consolidates a number of LTL shipments into a full truckload movement and requires that applicant make many multiple deliveries at retail outlets located throughout the involved destination States. Our grant of authority is designed to enhance applicant's ability to perform efficiently the distribution service required by shipper. Nor is there any question

that this pattern of multiple deliveries is a real need, for practically all of the loads transported by applicant under temporary authority involved from six to nine stopoffs in transit for partial unloading. It should also be noted that Ryder fails to demonstrate its ability to provide the needed six to nine stopoffs. Its tariff provides for three stops in transit plus final stop for delivery. Further, there has been no indication on behalf of Ryder or other existing carriers of willingness to negotiate tariffs covering the needed six to nine stops in transit.

Ryder contends that undue weight has been accorded past operations under temporary authority. While permanent authority will not be granted solely on evidence of past operations under temporary authority, evidence of past operations under temporary authority may be used to support an application for permanent authority in determining a carrier's fitness and ability to provide the service, as an indication of the volume of traffic involved, and to indicate the effect of a grant of authority on the existing carriers. Roadway Exp., Inc., Ext.-Birmingham, Dallas, Houston, 82 M.C.C. 689, 703 (1960). We conclude that the circumstances here demonstrate that applicant's satisfactory service under temporary authority is sufficient to corroborate shipper's needs but is not utilized by us, nor was it employed by the Administrative Law Judge, as the primary basis to establish public convenience and necessity. It is further concluded that the grant of authority here will not result in a diversion of traffic which would seriously impair the operations of protestants, especially since the grant involves traffic generated as a result of a new facility and is so framed as to restrict the traffic to that moving from shipper's facility. Although the record indicates that Ryder has participated in the involved traffic to a certain extent, the services of a protestant are not entitled to protection when this would result in the public being deprived of a desirable and improved service. See, Renner Motor Lines, Inc., Extension-Richmond, Ind., 117 M.C.C. 217, 222 (1972), and Nashua Motor Express, Inc. v. United States, 230 F. Supp. 646, 652653 (D. N.H. 1964). In view of the foregoing, we are of the opinion that the application should be granted to the same extent as recommended by the Administrative Law Judge.

FINDINGS

On reconsideration, we find that the present and future public convenience and necessity require operation by applicant, in

interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of footwear from Morrow, Ga., to points in Arkansas, Iowa, Kansas, Louisiana, Minnesota, Missouri, Nebraska, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Wisconsin, restricted to the transportation of traffic originating at the warehouse facilities of Meldisco Shoe, division of Melville Shoe Corporation, at or near Morrow, Ga., and destined to points in the 13 destination States; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations thereunder; that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969; that a certificate authorizing such operation should be granted; and that the application in all other respects should be denied.

Upon compliance by applicant with the requirements of sections 215, 217, and 221(c) of the act and with the Commission's rules and regulations thereunder, within the time specified in the order entered concurrently herein, an appropriate certificate will be issued.

An appropriate order will be entered.

COMMISSIONER MURPHY did not participate.

125 M.C.C.