In their joint legal argument, Navajo, Rio Grande, and ICX contend that throughout the entire history of the questioned authority, both the scope of the authority granted and the restriction applicable there to have remained clear and constant. It is argued that the restriction is general in nature, wholly without regard to specific named points or the location of specific highways. Further, it is urged that the restriction is not made applicable to any point in time. According to those opposing carriers, the historical character of Springer's "grandfather" period operations (service confined to points "off the beaten path") was preserved by the restriction at issue through its providing a limitation involving the character of the service authorized in addition to restrictive features involving geographical areas of service. They assert that their position on the matter fully harmonizes with past policies of the Commission, analogizing to the situation where the Commission grants authority to a carrier to serve all intermediate points, stating that such authority embraces present and future intermediate points on the route as originally located, or as relocated from time to time by future highway construction. They contend that the only effect of the interpretation requested by Arrow would be the receipt of additional operating authority not now held by it. If this action were to be done for Arrow, they claim, the door would be open for untold numbers of other carriers to request historic relocations and redefinitions of authorized points.

Whitfield has substantial operating authority within a 200-mile radius of Albuquerque. It argues that both Arrow and its predecessor have over the years operated the involved authority in clear violation of the pertinent restriction, and have been involved in several cited proceedings over the issue. It avers that if the Commission now rules that the restriction only applies to Federal or State highways that were in existence in 1942, it will be impossible for the Commission to police Arrow's operations, and it will be impossible for existing competitive carriers such as Whitfield to guard their operations against illegal competition from Arrow. Granting the present petition would not clarify the issue, but will only make it more confusing to enforce, Whitfield contends. It asserts that under the intent of the original grant of authority if a point being served by Springer were later to be connected by a Federal or State highway "applicant would no longer be interested in serving that point."

DISCUSSION AND CONCLUSIONS

The involved certificate has been the subject of previous Commission litigation. In Whitfield Tank Lines, Inc., v. Springer Transfer Co., 96 M.C.C. 285 (1964), involving petitioner's predecessor, that portion of the certificate authorizing service requiring the use of special equipment was interpreted. There is some similarity in that proceeding to the issues now before us since the interpretation of the "special equipment" provision was made by contrasting the authority granted to Springer with the types of operations conducted by regular-route general-commodity carriers. Recognition was given to the fact that in the "grandfather" proceeding past operations of any type that were competitive with such carriers were not proven. The report in that proceeding, however, did not involve an interpretation of the "Federal or State highways" restriction, or a so-called "character of service" interpretation having the characteristics now being propounded by the carriers opposing this petition.

The proceeding involving the purchase of the Springer authority by Arrow also discussed the unusual nature of the restriction herein, Arrow Freightways, Inc.-Purchase-Springer Corp., 116 M.C.C. 174, 182 (1971). Division 3 was of the opinion that the troublesome restriction should be modified or clarified. It noted in passing, Arrow, supra, at 178-179, several instances where interpretation of the certificate was troublesome, and had let to an injunction against the Springer Corporation.

The most recent litigation concerned Arrow's efforts in Arrow Freightways, Inc.,-Removal of Restriction, supra, to remove the Federal and State highway restriction. The application was denied since shipper witnesses failed to indicate any need for transportation of any specified commodities between specified points, or the volume they would tender to applicant, nor did they claim that existing service was inadequate. Review Board Number 2 in that proceeding also addressed the involved restriction. In examining the Springer "grandfather" proceeding, it noted that Springer did not intend to serve points on the regular routes of common carriers and consistently declined shipments which could be handled by regularroute carriers, and that its rates were considerably higher with a high minimum, and were based on mileage, all of which precluded competition with the regular-route common carriers.

Petitioner's central contention is that the scope of operations authorized in 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. One matter we must focus on, then, is whether the circumstances of this case result in a partial revocation of authority by means of the present interpretation attached to the involved certificate. Often in a proceeding of this type the question arises whether the certificate in question is found to be the subject of two or more reasonable interpretations, and is, therefore, ambiguous. In such a situation, resort may be had to the underlying record from which the restriction arose in order to resolve the ambiguity, see Illinois-California Express, Inc. Investigation, 113 M.C.C. 532, 538 (1971), and cases cited therein. However, it is not contended that the certificate in question here is ambiguous, but rather that changing circumstances have resulted in a decrease in scope of the certificate from that when it was originally issued. Consulting the record is proper to determine the intent governing at the time of the original grant in order to preclude partial revocation of the authority by means of the interpretation, see Deaton Truck Line, Inc., Interpretation of Certificate, 84 M.C.C. 339, 341-342 (1961). Therefore, it becomes relevant here to determine what facts surrounded the original grant of authority.

As noted above, in Arrow Freightways, Inc.,-Removal of Restriction, supra, Review Board No. 2 concluded that in conducting its "grandfather" operations Arrow's predecessor did not intend to serve points on the regular routes of common carriers and had consistently declined shipments which could be handled by regular-route carriers. This is consistent with our examination of the origins of the certificate in question. In the underlying "grandfather" proceeding, No. MC-43466, Springer Transfer Company Common Carrier Application (not printed), decided October 6, 1941, Joint Board No. 306 found that the evidence was that Springer hauled commodities, "a considerable portion of which was destined to points remote from regular highways. *** As applicant intends only to serve points off a common carrier regular route' except such traffic as requires special equipment not furnished by such common carriers, there would appear to be no conflict of interests involved. Applicant testified that it consistently declined shipments in instances where same could be handled by a regular-route carrier, and that its charges were sufficiently higher to accomplish the same result." The transcript of that proceeding bears out that conclusion, as for example at page 35:

Mr. Bennett: My view of this is that for many years we have furnished a service to take goods from Albuquerque to points off the beaten path, as you might say, or to go off the beaten path and get goods and bring to the rail head.

It is readily apparent that the restriction in Arrow's certificate, as it concerns prohibiting service on Federal or State highways, arises out of Arrow's predecessor only having served shippers "off the beaten path" except at Albuquerque and service requiring the use of special equipment was concerned.

This Commission's power to revoke or modify outstanding certificates is limited. Section 212(a) of the Interstate Commerce Act provides that this Commission may take such action upon complaint or upon its own initiative only "for willful failure [of the holder thereof] to comply with any provision of this part [part II], or with any lawful order, rule, or regulation promulgated thereunder, or with any term, condition, or limitation of such certificate, permit or license ***." See the discussion in Curtis, Inc., Extension-Meats Over Irregular Routes, 113 M.C.C. 170, 177 (1971). On the other hand, an interpretation by us that a certificate or permit authorizes less than the carrier contends is not a partial revocation subject to section 212(a), where the interpretation does not take from a party any right which has existed from the very beginning under the pertinent certificate, regardless of any erroneous impressions of the holder of the authority, see Alabama Highway Exp., Inc., v. Terminal Transport Co., 91 M.C.C. 635, 642 (1962) and cases cited therein. However, where interpretation of a certificate results in a contraction of the original authorization, a partial revocation can occur.

In Southern Motor Exp., Inc.-Modification of Certificate, 84 M.C.C. 627 (1961), the Commission, to avoid this possibility, found that when a change in circumstances resulted in the certificate holder being authorized to serve a different territory than originally intended, the proper interpretation of the certificate was that the service authorization should remain equivalent to that when the certificate was issued. The facts in that proceeding are very similar to the ones in the instant case. Applicant contended in the Southern proceeding that authority to serve points outside of the city limits of Atlanta, Ga., within 15 miles of the city limits authorized service to such points as they existed at the time of the issuance of the certificate. By various acts of the State of Georgia, the city limits of Atlanta had been extended subsequent to the issuance of Southern's certificate. This appeared to change the territorial coverage of

Southern's certificate so that while previously it could serve an industrial area, the newly defined area was largely rural. This Commission, Division 1, held in Southern, supra, at 631, that “the doughnut-shaped authority issued to applicant on January 17, 1950, is territorial in character, and we conclude that the inner boundary of such territory was and continues to be the city limits of Atlanta as they existed at the time it was issued. To hold otherwise would amount to a partial revocation of applicant's certificate without benefit to it of the procedures provided in section 212(a) of the act." [Emphasis added.] It was further concluded that this was not a case of granting a new operating right without proof of public need, but merely an ascertainment of the scope of the authority held by Southern, Southern, supra, at 632. The interpretation was also found preferable to one where applicant's authority would shift with every change in the territorial character of Atlanta, Southern, supra, at 632.

Similar rulings have been made subsequent to the Southern decision. In Jackson Truck Line, Inc., Extension-Maryville, Mo., 86 M.C.C. 641 (1961), applicant was authorized to serve a defined area of Missouri, except for Maryville. When Maryville's city limits were extended, Jackson was not able to interline at a point it had previously used. The Commission, Division 1, found the Southern principles controlling. And in Asbury Park-N. Y. Transit v. New York, K., L. B. Bus Line, 95 M.C.C. 452 (1964), modified in 98 M.C.C. 187 (1965), the Commission, Division 1, found that where the course of a stream was changed, extinguishing defendant's access to a certain area, a revocation had occurred. The point was made that:

Inasmuch as we have never permitted the action of any city or municipality to remove any territory from a carrier which was originally encompassed in a grant of authority by us to a motor carrier, it follows that we cannot permit action by individuals or corporate entities to withdraw from motor carriers that area which we have included within a grant of authority and to which we have found a public need for a transportation service of the type authorized. *** To permit such a result would be tantamount to a partial revocation of the certificate which we have issued

defendant. [95 M.C.C. at 455.]

Petitioner's contention that the mere redesignation of highways should not reduce the original content of the certificate in question is correct. To allow such an alteration to diminish the scope of a certificate holder's authorization would amount to a partial