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every aspect of our national life. This is the primary reason for the existence of the Interstate Commerce Act and the ICC a special statute to be enforced by a special arm of Congress, to make especially sure that competition would exist on a fair basis and that never again should a dominant agency of transport subject its competitors and the public to the abuses of monopoly.
Simply put, in the field of transportation, the Interstate Commerce Act and the ICC were very largely substituted for the antitrust laws, the Department of Justice and the Federal Trade Commission and this division of responsibility has worked well over the years. In this connection, the ICC is contemplating more extensive antitrust considerations in its proceedings than it has in the past. For instance, in Ex Parte No. MC-121,1/ the ICC is proposing to give greater weight to the benefits of competition in reviewing motor carrier entry and acquisition cases. Insofar as acquisition proceedings are concerned, the ICC said, in its notice of proposal to issue a statement of general policy, that it "will concentrate on the potential competitive or anticompetitive aspects of the transaction," and that it "will make a positive effort to increase the expertise of our staff in antitrust and related
1/ Served November 30, 1978 and published in the Federal Register of December 5, 1978 (43 Fed. Reg. 56978).
As this Committee well knows, there are presently over 16,600 motor carriers operating under ICC authority, of which 85 percent are common carriers. In fiscal year 1978 alone, there were 9,068 applications for authority processed by the ICC and 95.8 percent of them were granted by that agency in whole or in part. Approximately ten percent of the grants each year are being made to new entrants into the field.
The trucking industry under ICC regulation is far less concentrated than other major industries operating under the antitrust laws as enforced by the Justice Department and the Federal Trade Commission.
For example, in the case of regulated motor carriers, the eight largest account for 14 percent of the total carrier revenue volume. In the case of other large industries operating under the antitrust laws, a very different pricture emerges. In motor vehicle manufacturing, the eight largest account for 97 percent, or virtually all of the total volume. In steel, the eight largest companies account for 65 percent of the total. In the cigarette industry, the eight largest account for virtually 100 percent.
of the thirty-five major industries, in terms of value added by manufacture, the only ones with concentrations as low, or lower, than the trucking industry are the manufacturers of miscellaneous machinery and feminine wearing apparel.
The problem with S. 382 is that the Commission functions under a different statute than the antitrust laws and grants and denies applications for authority based on criteria which are necessarily different since they are tailored to the transportation industry. The criteria under the statute is wisely couched in broad language.
These criteria have included in the past: whether the circumstances demonstrate that the new operation will serve a useful public purpose; whether this purpose can and will be served by existing carriers; and whether the new operation proposed by applicant can be performed without endangering or impairing the operation of existing carriers contrary to the public interest. Many other criteria fit within the statute and are utilized where appropriate. Energy conservation is becoming extremely important and this consideration runs contrary to open-entry policies. All in all, the standards the ICC has utilized in the past have worked well in creating in this country the finest transportation system in the world barring none.
Supposedly, under the proposed Competition Improvements Act, the ICC would be able to continue its well-proven application of its "overriding statutory purpose" which has met with such success, but this is not at all certain. As the minority 2/ views in the Report on the Judiciary to accompany S. 2028 (dated July 21, 1976, No. 94-1045) point out, the agencies which
2/ S. 2028 which was considered by the 94th Congress is substantially the same as S. 382.
would be covered by the Competition Improvements Act would end up with "two sets of conflicting instructions" from
The first set of instructions to the ICC came in 1887 for railroads and 1935 for motor carriers with passage of the Interstate Commerce Act and the Motor Carrier Act, respectively. In these statutes, Congress stated its belief that unfettered competition within the transportation market is not in the public interest. For motor carriage, the reason was succinctly enumerated by the Supreme Court of the United States when it described the conditions in the trucking industry prior to 1935 which led to passage of the Motor Carrier Act as "overcrowded with small economic units which proved unable to satisfy the most minimal standards of safety or financial stability." (American Trucking Associations v. United States, 344 U.S. 298,
The second set of instructions under S. 282, if enacted, would be to tell the affected agencies to consider competition as the highest priority.
We sincerely believe this bill, if enacted into law, would produce a prodigious amount of litigation in the courts, which are already overworked in many instances, while these conflicting sets of instructions are being resolved.
If the courts rule in favor of the primary purpose of the agency, then nothing is accomplished by the Act except the horrible reality of even more prolonged agency proceedings and increased regulatory lag. Incidently, ATA is clearly on record in support of reducing existing regulatory lag. We have continually sought extension of the expedited ICC procedures for railroad proceedings, established pursuant to the Railroad Revitalization and Regulatory Reform Act of 1976, to motor car
On the other hand, if the courts eventually rule in favor of competiton at all costs, the motor carrier industry would revert back to pre-1935 days and all of their evils and hardships to the detriment of the transportation needs of the public..
In either event, the public is the loser under this misnamed bill. Rather than improve competition in motor transportation to the public's benefit, the bill, if enacted, would increase regulatory lag, and if successful in its intended goal, would open up the floodgates of unrestrained and destructive competition. And all this, based not on a serious and wellconsidered look into the motor carrier industry, but on the basis of a broad brush stroke covering eight independent regulatory agencies without an informed evaluation of any of them.
For these reasons, we are strongly opposed to the enactment of S. 382.