(3) to incur enormous expense in serving copies of their application upon parties filing protests which, it is claimed, will proliferate since, under the proposal, protestants would have nothing to lose and everything to gain (e.g., shipper information of which they were previously unaware), and

(4) to duplicate the efforts and costs expended in the initial filing should the application subsequently be designated for oral hearing. With respect to supporting witnesses, opponents contend that they may be required:

(1) to make time-consuming and costly inquiries concerning existing service thereby encouraging "selective shopping" for transportation service,

(2) to institute, at tremendous costs, comprehensive recordkeeping procedures relative to existing service, service deficiencies, and solicitations,

(3) to prepare extensive verified statements in support of an application setting forth information about every conceivable protestant without any assurance that all possible conflicting interests have been accounted for,

(4) to incur unbearable expense in supporting more than a limited number of applications for a single operation thereby constraining the public to seek out large carriers to the detriment of smaller but equally competent firms, and

(5) to delay unduly committing their support to applications for authority with the result that possible harm may accrue to themselves or others who would stand to benefit from the service.

Opponents point out that the harshness of the aforementioned potentialities would increase proportionately with the scope and complexity of applications. They also contend that small carriers and shippers would suffer disproportionately regardless of the nature of the application submitted.

Two significant adverse consequences are said to flow from the potential burdens enumerated above. Many persons, it is feared, will withhold support from legitimate, deserving applications or withdraw previously committed support where it appears that excessive delays or costs will be incurred. Opponents also foresee a marked decline in the number of applications filed, not for lack of merit or because of diminished public need, but simply because filing will become extremely difficult and costly under the proposed procedural revision. In this regard, the comments received from the Department of Transportation (DOT) are also noteworthy. It feels

that the proposed revision of rule 247 would serve to strengthen existing anticompetitive barriers to entry and preclude the filing of applications designed to "test the market," a practice which it supports. At best, DOT charges, the proposed revision ignores the needs of the public for new price and service options and the value of new competition as a reminder to certificated carriers of the need to continue and update needed services; at worst, it is an invitation to bribery and extortion among carriers.

Opponents claim that the disadvantages inherent in the proposed revision extend to the Commission as well, and will, if adopted, serve to impede, rather than expedite, the processing of applications. They believe that the proposal will encourage the filing of massive, albeit less specific verified statements in support of applications to neutralize the impact of surprise protestants. By the same token, opponents see nothing in the proposal which would tend to discourage the filing of frivolous protests to any application. Accordingly, they argue that Commission staff will require considerably more time to sift through a myriad of frivolous protests and to extract pertinent data from extensive, poorly developed, incomplete records thereby frustrating the avowed purpose of the rulemaking.

Opponents assert assert that there is yet another unanticipated dimension of the proposed revision which will further delay the processing of applications. They point out that under the proposed revision there is a strong possibility that many applications will be protested by parties whose conflicting interests are virtually unforseeable. Should this occur, opponents believe that applicants will nevertheless wish to present evidence concerning such protestants. Two possible avenues are open to applicants faced with this situation: (1) they may petition to reopen the proceeding to submit additional or supplemental evidence, or (2) they may include such evidence in their rebuttal statement." In either event, opponents contend, protestants may also be expected to file either (1) replies opposing petitions to reopen, (2) petitions to reopen in their own behalf, or (3) motions to strike impermissible rebuttal material. It is argued that all of these procedural questions and subsidiary pleadings can serve only to increase Commission workload and further to delay disposition of pending applications.

Many parties question the extent to which the proposed revision will affect the amendment process in modified procedure cases. "It is anticipated that much of the evidence so submitted would constitute impermissible rebuttal material. See footnote 8. supra.

Some are under the mistaken impression that the proposal is intended to preclude restrictive amendments altogether. Others, realizing that restrictive amendments will still be allowed, claim that the proposal serves to discourage the submission of such amendments, the utility of which should not be overlooked. They observe that under current Commission practice, applications are often accelerated through the decisional process by means of restrictive amendments which eliminate much of the opposition and narrow the issues to be resolved. The proposed revision, it is urged, would hamper this commonly employed, efficacious practice because (1) there would be insufficient time in which interested parties could negotiate an acceptable amendment, or (2) there would be less incentive for applicants to amend their applications in view of the enormous amounts of time and money that would be required to prepare the initial submission. As a result, it is contended, there will be fewer unopposed cases and a sharp increase in Commission workload which will add to the time required to process applications. 22

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While there is nothing in the rulemaking proposal which would directly affect applications for emergency temporary and temporary authority, several parties feel that the proposed revision of rule 247 would present serious problems in cases where grants of such authority necessarily precede applications for permanent authority. They point out that under the applicable regulations" an application for a certificate of public convenience and necessity or a permit must follow not later than 60 days after issuance of temporary authority for a period of 180 days or not later than 60 days after issuance of the first of a series of consecutive temporary authorities aggregating 180 days. Sixty days, it is contended, is an insufficient period of time in which to gather and synthesize all material (particularly that relative to existing service and service deficiencies) required under the proposed revision, especially where

"A somewhat related theory holds that if the incentive to amend is removed, as it ostensibly would be under the proposed revision, an applicant may be inclined, in a given case, to seek initially only that authority which it feels reasonably certain of obtaining despite the fact that the requirements of its supporting witnesses may be more extensive. If successful, the applicant might then seek the required complementary authority, the need for which existed from the outset. Such piecemeal application procedures, it is contended, will harm the shipping and consuming public and add tremendously to Commission workload.

"For provisions governing the granting of temporary authorites see sections 210a(a) and 311(a) of the Interstate Commerce Act, as amended, 49 U.S.C. 310a(a) and 911(a) (1970); 49 CFR 1131 and 1131a, and Ex Parte No. MC-67. Motor Carrier Temporary Authorities, 98 M.C.C. 483 (1965).

"See 49 CFR 11012.

(1) extensive authority is sought, (2) numerous supporting witnesses are involved, or (3) permanent operations are not envisioned until sometime after temporary authority is secured.

Several alternatives to the revisions contemplated by the proposed rulemaking are offered. Foremost among them is the proposal to retain existing application procedures which, most contend, are far superior to the proposed revision of rule 247 since they allow both an applicant and the Commission to proceed, simultaneously and in complementary fashion, toward disposition of a particular case. The existing procedures, it is argued, do not inflict the serious hardships or give rise to the undesirable consequences inherent in the proposed revision and, by most accounts, are not the primary source of processing delays.

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A second alternative proposal involves the greater utilization of rule 247(b)(3). Though not widely used in the past, it is noteworthy that several practitioners and attorneys who have employed the rule indicate that they have experienced noticeable time savings in the decisional process. Proponents of this alternative, however, do not recommend that the rule be made mandatory in every case since, they contend, only certain applications (those seeking alternate route authority, for example) are susceptible to handling under such a procedure.

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Finally, several parties argue that the results sought to be obtained through the instant rulemaking proceeding could be gained through the simple expedient of enforcing existing ethical canons, particularly canons 35 and 36. Again, under this proposal there would be no need to revise existing procedures. Proponents believe, however, that strict enforcement of the canons of ethics would go far to discourage the filing of unmeritorious applications, spurious protests, and frivolous motions, thereby promoting the expeditious determination of all proceedings.

Several parties feel that additional procedural modifications will be required should the proposed revision be adopted substantially as See 49 CFR 1100.247(b)(3), which provides:

Requests for handling applications without oral hearing. An applicant who believes its application is susceptible of handling without oral hearing may request such handling when the application is filed. If such a request is made at that time, the applicant shall submit with its application original verified statements of the facts to which its witnesses would testify at an oral hearing if one were held, together with one copy thereof which need not be verified. Applicant shall furnish copies of its verified statements to interested persons upon request from such interested persons.

See 49 CFR 1100, appendix A.

published in the Federal Register. Suggested modifications, which stem from anticipated difficulties delineated above, include: (1) extending the rebuttal period to 30 days to afford an applicant sufficient time in which to respond to surprise protestants, and (2) liberalizing the provisions under which emergency temporary and temporary authorities are granted to afford an applicant which must begin operations under grants of such authority sufficient time in which to prepare an acceptable application for permanent authority.

V. Oral Hearing

The Notice of Proposed Rulemaking entered in this proceeding stated that the proposed amendments to Special Rule 247 are designed to retain the present framework for oral hearing and that the filing of verified statements pursuant to the requirements of proposed rule 247(b)(1) will be without a prejudice to subsequent designation of the proceeding for oral hearing where such hearing is appropriate and necessary. If the proceeding is designated for oral hearing, the applicant may add supporting witnesses not to exceed twice the number for whom certifications of support were originally filed with the application. Various persons filing representations question the need for retaining certifications of support, whereby supporting witnesses indicate that they have agreed to support the application, inasmuch as under the proposed rules the witnesses' verified statements of support must accompany the application when filed. Several parties contend that inasmuch as the procedure for oral hearing is not affected by the proposed rules, the rules favor the applicant whose application is designated for handling at oral hearing because such applicant may add supporting witnesses after its application is filed. They fear that implementation of the proposed rules will result in the designation of more cases for handling under the modified procedure, discouraging the assignment of cases for oral hearing with its assertedly attendant procedural and substantive benefit of cross-examination. They further contend that if all supporting evidence must be filed with the application, the evidence will become "stale" and will have to be reorganized, restructured, or updated if the proceeding is later designated for oral hearing, requiring repetitious and wasteful effort by applicant.

VI. Case Processing

The proposed rule changes, it is felt, will have a somewhat substantial effect on the ability of the Commission to cut the time during which applications are processed.