United Trucking Service is a regular-route carrier of general commodities operating in various Midwestern States including Michigan, Indiana, and Ohio. Its equipment fleet, and that of carriers which it controls pursuant to authority from this Commission, includes a combined total of 420 tractors and 1,098 trailers of various types. Its verified statement includes data describing 3,568 shipments transported between points within the scope of this application during the period embraced in applicant's traffic studies with respect to which points applicant has assertedly shown no prior service whatsoever. It contends that authorization of operations over the sought gateways would permit the initiation of a new competitive service by applicant which would jeopardize the revenues realized from such traffic. Inasmuch as there is lacking any evidence of service failures experienced by shippers in utilizing its service, protestant contends a denial of this application is warranted.

APPLICANT'S REBUTTAL

Applicant filed two rebuttal pleadings, the first is responsive to the verified opposing statements submitted by the various protestants and interveners herein, and the second is framed as a response to the heretofore mentioned argument of these parties in opposition to the application. The second of these pleadings also embraces a reply to the previously considered motion that traffic studies submitted in conjunction with its supporting affidavit be stricken from the record. In its evaluation of the opposing evidence applicant asserts that traffic volume information supplied by protestants, in support of their contentions that a grant herein would result in a material diversion of traffic, is for the most part defective because of the absence of any identification of shippers for which service has allegedly been performed, or of points between which such traffic has moved. It contends generally that protestants are incorrect in asserting that it does not provide competitive service in the transportation of traffic moving within the scope of this application, and counters their arguments that its traffic studies are not entitled to substantial weight because of the absence of supporting documentation by asserting that the mass of data involved is such as to render impractical its submission in a case assigned for processing under the Commission's modified procedure. In any event, it submits that opposing carriers have been afforded the opportunity to inspect such underlying documents at its facilities, which renders

groundless their considered arguments. It finally argues that there is no basis for opposing carrier contentions that it has failed to establish prior good faith operations through the Toledo gateway and it attaches as an appendix to its considered pleading copies of drivers' logs which, it believes, demonstrate that its tacking point has been traversed in its handling of a number of shipments with regard to which questions have been raised.

The analysis in applicant's separate pleading in response to the arguments of protestants and interveners opposing its service proposal is in large part repetitive of the matter set forth in the preceding paragraph. Applicant does elaborate, however, on its argument that manner in which mileage has been computed in its traffic study is correct, and that its exhibits indicate operations by way of Toledo. Particularly, it avers that the described operations have been conducted over noncertificated deviation routes and superhighways, which circumstance apparently was not taken into consideration by opposing carriers in their challenges to its evidentiary presentation (but see footnote 1, above). In concluding its arguments on on rebuttal applicant finally asserts that notwithstanding its belief that a grant is warranted in this proceeding authorizing the entire proposed operations, it should realize substantial benefits if a certificate were issued herein only authorizing service between points in Ohio on and north of U.S. Highway 40, on the one hand, and, on the other, the sought Indiana points.

DISCUSSION AND CONCLUSIONS

Applicant has framed its evidentiary presentation in such a way as to emphasize the efficiencies and economies expected to result from a grant herein authorizing service between points in Ohio, and those elsewhere on its system, in operations by way of Fort Wayne, Richmond, and Union City. While this Commission is interested in promoting an efficient and stable transportation system, it must be borne in mind, that when a carrier provides service by joining two separate grants of authority at a gateway, as applicant does at Toledo, operations result for which no public need has been shown. The usual inefficiencies resulting from this type of operation are, therefore, considered to be of a carrier's own choosing and the mere fact of such operation is no assurance of the existence of a need

therefor. Accordingly, we will consider granting more direct authority to carriers operating in this manner, only when the elimination of whatever inefficiencies which may be involved is found not to present a substantial hazard to existing carriers, cf. Bowman Transp., Inc., Ext.-Substitution of Gateways, 100 M.C.C. 314, 326 (1965).

While applicant has characterized this proceeding as one seeking additional gateways by which to transport traffic between existing service points, the effect of a grant here in would be to enable it to avoid the Toledo gateway where operations through that point would be circuitous or otherwise undesirable. In Childress-Elimination Sanford Gateway, 61 M.C.C. 421 (1952), the Commission at page 428, found factual determinations pertinent to the disposition of gateway elimination proposals to include the following:

(1) whether applicant is actually transporting a substantial volume of traffic from and to the points involved by operating in good faith through the gateway, and, in so operating, is effectively and efficiently competing with the existing carriers, and (2) whether the elimination of the gateway requirement would enable applicant to institute a new service or a service so different from that presently provided as to materially improve applicant's competitive position to the detriment of existing carriers.

Where a favorable showing has been made in light of these criteria a grant may issue solely upon proof that the proposed operation would result in operating economies, which although primarily a benefit to applicant, indirectly benefit the public. Where a new service would result, however, it is incumbent upon applicant to prove public convenience and necessity the same as regarding any other application for new authority. This would entail the submission of shipper testimony bearing on the considerations prescribed in PanAmerican Bus Lines Operation, 1 M.C.C. 190 (1936). We believe

'This concept has undergone apparent modification in cases where carrier operations involve the tacking of separate grants of irregular-route authority by virtue of the decision in Gateway Elimination, 119 M.C.C. 530 (1974). It was specifically held therein at pages 547-48, however, that rules allowing the avoidance of gateways in certain instances would not extend to operations involving the tacking of regular and irregular-route authority such as those performed by applicant. From this we infer that traditional considerations governing the disposition of proposals to provide service between points in a more direct manner by carriers tacking regularand irregular-route authority remain applicable.

"The Pan-American decision essentially provides that in deciding whether a grant of new or additional motor carrier authority should be made, we must determine whether the new operation or service will serve a useful purpose responsive to a public demand or need; whether this purpose can and will be served as well by existing carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest.

applicant's showing to be insufficient to support a grant of authority herein regardless of which of the foregoing set of guidelines are found pertinent to the disposition of its proposal.

As regards the criteria established in Childress, supra, the record includes voluminous argument relative to the question of whether applicant is presently operating in good faith by way of Toledo. While applicant does not submit documentation pertaining to all of the shipments set forth in its traffic study, and there may be some valid question concerning the interpretation of the drivers' logs tendered in conjunction with its rebuttal pleading, the record does not appear to support a finding that it has failed to traverse the Toledo gateway in its prior operations. This position derives strong circumstantial support from the fact that the overwhelming portion of the traffic set forth in applicant's supporting exhibits, as well as most of the shipments alleged by shippers to have been transported by it for their respective accounts, apparently moved from and to points so situated as to render minimal any circuity involved in operations by way of Toledo. Furthermore, there is some evidence tending to indicate that applicant avoids soliciting traffic where observance of the Toledo gateway would be uneconomical (see footnote 2). A favorable determination in this regard, however, serves merely to recognize the legitimacy of applicant's prior service, and is not persuasive of a need for authorization of the proposed operations. Thus, there remain for consideration the question of applicant's present competitiveness, and the question of the impact of a grant herein on existing carriers.

It is a well-established principle that in order for a carrier seeking the elimination of gateways to be found a substantial competitor for traffic moving within the scope of its proposal, it is not enough to show that between selected points it has transported substantial traffic, or that throughout the involved territory it has transported commodities which are insufficient adequately to represent its pertinent commodity description. Rather, it must be shown that the proposing carrier is an effective competitor as to substantially all of the commodities and between substantially all of the points within the scope of its pertinent outstanding authority. Maryland Transp. Co. Ext.-Specified Commodities, 83 M.C.C. 451, 455 (1960); and Service Trucking Co., Inc., Ext.-Frozen Pies & Pastries, 88 M.C.C. 697, 700-701 (1962). Applicant's showing clearly fails to satisfy these tests.

As was stated above, the largest volume of traffic shown by applicant to have been transported within the scope of this

application is that subject to handling with little circuity by way of Toledo. Thus, of the 4,353 shipments listed in its exhibits, the greatest portion consists of traffic moving between points in northeastern Ohio such as Cleveland and Youngstown, on the one hand, and, on the other, points in northern Indiana and eastern Illinois. Conversely, the number of shipments and variety of commodities identified as having been transported by it within the scope of this application between July and November 1973, declines drastically with respect to more southerly points in Ohio and Indiana. Taking as an example operations between Columbus and Cincinnati, on the one hand, and, on the other, points in Indiana and Illinois, applicant's testimony indicates that it handled a total of 291 shipments (only 70 of which are specifically identified in terms of pro number and shipping volume) which originated at, or were destined to these points during the considered period. Of these shipments none moved from or to the Indianapolis area in cental Indiana. Similarly, there is no showing that applicant has provided any service whatsoever from or to Dayton, Ohio, which is a large commercial and manufacturing center in the same vicinity as Columbus and Cincinnati. The only conclusion which may possibly be drawn from this situation is that applicant is not an effective competitor with protestants with respect to traffic moving in an easterly or westerly direction between populace areas in central Indiana and central and southwestern Ohio."

Otherwise, there is a complete absence of testimony concerning traffic which may have moved between points in Ohio, on the one hand, and, on the other, points on applicant's routes in western Michigan with respect to which relatively direct access would be obtained if authority were granted herein to operate by way of the proposed gateways. In this light the conclusion is clearly warranted that applicant has failed to demonstrate substantial operations, between not only specific points, but large areas embraced in this proceeding. Protestants and interveners have submitted sufficient evidence demonstrating that they do, in fact, perform service in the

"A review of testimony submitted by shippers with facilities located at points in central Indiana and southwestern Ohio also fails to demonstrate any prior service between such points. Shippers so situated are Drackett Products which is headquartered at Cincinnati, but which has tendered applicant traffic moving from Urbana, Ohio, to Chicago; Capitol Supplies of Indianapolis which describes prior inbound operations by applicant only from Bellevue and Defiance in north central and northwestern Ohio, Monsanto which is located at Cincinnati, and which does not describe any specific traffic volume heretofore tendered applicant, nor identify specific destination points therefor other than Ligonier in northeastern Indiana; and Indiana Supply which identifies no inbound shipments to Indianapolis from Cincinnati, Columbus, or Dayton.