which applicant could not provide direct, single-line service even if the authority sought were granted.

Shippers' complaints with respect to transit delays, as well as their concerns over damage and tracing difficulties, lack specificity. Evidence must be of a specific quality in this respect if we are to conclude that protestants' services are not responsive to shippers' genuine needs.

As noted above, an applicant has an affirmative duty of proving that existing carriers cannot or will not perform a needed service in a manner satisfactory to the shipping public. The record before us contains no such evidence. In fact, protestants have not only clearly indicated their willingness and ability to participate in the involved traffic, but they also have shown their dependence upon it to support the peddle-run services they provide in the involved area. It frequently has been found by this Commission that where existing joint-line service is satisfactory, a shipper is not entitled to singleline service as a matter of right. Pine Tree Transport, Inc., Ext.-Frozen and Canned Fruits, 54 M.C.C. 669 (1952). Mere preference for a particular carrier is not sufficient to support a grant of authority; and applicant has not shown that the proposed service would be superior to that presently available.

2

Turning to applicant's contention that it is entitled to "follow the traffic" because of the closing of McGraw-Edison's warehouse at Arlington, we are not satisfied that the facts support such a conclusion. A case directly in point is Smith & Solomon Trucking · Co., Extension-Camden, N. J., 61 M.C.C. 748 (1953), where it was found that a grant of operating authority could not properly be based on showing of a loss of traffic alone. It traditionally has been incumbent upon an applicant also to show by competent evidence that service at the new location is either nonexistent or inadequate. Both protestants maintain terminals at Nacogdoches, and applicant proposes to provide service from a small terminal some 20 miles away. Thus, we are satisfied that applicant not only has not met its burden in this respect, but also that there is some merit to protestants' position that the proposed service is not a bona fide offroute point operation.

Weighing the benefits which might inure to the two supporting shippers from a grant herein against the overall detriment to existing carriers and the shipping public particularly with respect to 'Affirmed sub nom., Smith & Solomon Trucking Co. v. United States, 120 F. Supp. 277 (D. N.J. 1954).

3

peddle-run service in the sparsely populated area involved, we believe, on balance, that the application should be denied.

FINDINGS

On reconsideration, we find that applicant has failed to establish that the present or future public convenience and necessity require the proposed operation; that the application should be denied; and 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.

An order denying the application will be entered.

COMMISSIONER CHRISTIAN, dissenting:

I cannot join the majority decision because it has lifted one improper burden of proof and then saddled applicant with another. Applicant is proposing to follow the traffic of one of its shippers to a new plant at an off-route point. In serving the off-route point it will be able to serve one additional shipper which supports the application. The application is opposed by carriers authorized to serve the area where the new plant has been built.

Despite its citation of Nashua Motor Exp., Inc. v. United States, 230 F. Supp. 646, 653 (D. N.H. 1964) indicating that a showing of inadequate existing service is not required before authorizing a new service, the majority exalts this criterion above all others. Absent from the discussion is an assessment of present and future need for applicant's service. Even in assessing applicant's "follow the traffic" proposal, the majority insists that applicant "show by competent evidence that service at the new location is either nonexistent or inadequate."

In my view, serious damage is done to the concept of public convenience and necessity when a carrier is not permitted to continue to serve a valued customer which opens up a new plant a short distance away from the carrier's authorized service area.

"The population of Nacogdoches, which is the largest community in Nacogdoches County, is 22,544.

125 M.C.C.

No. MC-128279 (SUB-No. 19)

ARROW FREIGHTWAYS, INC., PETITION FOR DECLARATORY ORDER-INTERPRETATION OF CERTIFICATE

Decided October 6, 1976

Upon petition, found that a restriction relates only to certain highway designations as existing when certificate was originally issued to petitioner's predecessor. Proceeding discontinued.

Jack A. Smith for petitioner.

Eldon E. Bresee, Morris G. Cobb, Donald E. Fernaays, and James E. Snead for parties in opposition.

REPORT OF THE COMMISSION

DIVISION 1, COMMISSIONERS MURPHY. GRESHAM. AND

CHRISTIAN

BY DIVISION 1:

Arrow Freightways, Inc., of Albuquerque, N. Mex., holds a motor common carrier certificate in No. MC-128279 (Sub-No. 19), issued April 11, 1972. The authority therein was originally issued on November 3, 1942, to Springer Transfer Company in No. MC-43466. Its purchase by Arrow was approved in 1971, in No. MC-F-10397. The certificate authorizes the transportation, over irregular routes, of general commodities (except commodities in bulk, articles of unusual value, and household goods as defined by the Commission), between points in that part of New Mexico, Colorado, and Arizona within 200 miles of Albuquerque, N. Mex., restricted against service to or from points on Federal or State highways other than the city of Albuquerque, except in instances where such service requires the use of special equipment. By petition filed July 7, 1975, Arrow requests that this Commission issue a declaratory order stating that Arrow is authorized to provide service at all such points which were not upon Federal or State highways in 1942 at the time the original certificate was issued.

Pursuant to section 553 of the Administrative Procedure Act, notice of the filing of the petition was published in the Federal Register on July 23, 1975. The notice stated that any interested person or persons desiring to participate in the proceeding were invited to file representations supporting or opposing the relief sought. By order dated August 25, 1975, the petition was designated for handling under the modified procedure. Petitioner filed a verified statement in support of its petition, and Thunderbird Freight Lines, Inc., Illinois-California Express, Inc., Rio Grande Motor Way, Inc., Navajo Freight Lines, Inc., and Whitfield Transportation, Inc., filed opposing verified statements.

THE REPRESENTATIONS

Petitioner submits that it should be permitted to serve all points not on Federal or State highways at the time of the issuance of the original certificate in 1942. Arrow argues that this Commission has ruled that the scope of a certificate of operating authority should not be decreased because of changes in highway or territorial boundaries when the original certificate was granted covering service to a larger territory. It cites for this proposition the proceeding involving Mercer Motor Freight, Inc., at Commercial Zones and Terminal Areas, 115 M.C.C. 882 (1972), where this Commission ruled that once a commercial zone is established, it never contracts, except by specific redefinition based on a petition or other established procedures.

Petitioner asserts that the cited restriction has been most bothersome to it and to shippers attempting to utilize its services. For example, in 1942, the points of Window Rock and Fort Defiance, Ariz., were not on a Federal or State Highway. Subsequent to 1942, highways to those points have been designated as Federal or State roads. Additionally, petitioner states that there is a facility near Snowflake, Ariz., which is presently on a Federal or State highway but was not in 1942. It states that another problem exists with the possible construction of a coal gasification plant at Burnham, N. Mex. It fears that when construction begins, a dirt road now leading to the proposed plant will be paved and designated a Federal or State highway. Finally, Arrow says that a paved highway is being constructed to a point previously served near St. Johns, Ariz. It believes that when that highway is completed, State highway designation is likely.

Thunderbird, a holder of operating authority within the area in question, argues that the instant petition is merely a continuation of Arrow's application in No. MC-128279 (Sub-No. 22), Arrow Freightways, Inc.,-Removal of Restriction (not printed), decided April 4, 1974, wherein Arrow sought to remove in its entirety the Federal or State highway restriction involved by means of a new application supported by public witnesses. That application was denied. It avers that Arrow has failed to show any controversy or uncertainty in interpreting the authority, and that the only real issue pertinent to this proceeding is which, if any, new Federal or State highways were so designated since Arrow acquired the authority from Springer in 1972. In line with that position, it argues that Arrow never had authority to serve points such as Window Rock and Fort Defiance, since highway designations to those points were made in the late 1940's or early 1950's Thunderbird also alleges that Arrow is not servicing the said construction site of a coal gasification plant in San Juan County, N. Mex., since at the time of these verified statements ground had not been broken for this plant, and argues that the contention of Arrow that the highway near St. Johns (a private road less than 5 miles long, according to Thunderbird) will be someday designated a State or Federal highway is hypothetical. Thunderbird also contends that Commercial Zones, supra, has no direct bearing on the issues herein.

Navajo, Rio Grande, and Illinois-California Express (ICX), originally filed a joint protest containing legal argument, and then each filed separate verified statements. Navajo, principally a regular-route motor common carrier with operations in the area involved herein, states that neither Arrow nor its predecessor has ever been a competitor with Navajo because of the restriction under discussion, but fears that the relief requested by Arrow, if given, would completely change this situation. Rio Grande makes similar statements about the proposed request for relief. ICX states that the "grandfather" operations of Arrow's predecessor leading up to the issuance of the involved authority were absolutely confined to serving isolated and "off the beaten path" points, deliberately avoiding the performance of service normally performed by regularroute motor common carriers. ICX argues that when the original authority was transferred to Arrow, the restriction was brought forward and Arrow knew full well that its authorized service was restricted against service to or from points on Federal or State highways.