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NATIONAL BUS TRAFFIC ASSOCIATION v. UNITED STATES

December 10, 1965

NATIONAL BUS TRAFFIC ASSOCIATION, INC., AND NATIONAL ASSOCIATION OF MOTOR BUS OWNERS, PLAINTIFFS,
v.
THE UNITED STATES OF AMERICA AND THE INTERSTATE COMMERCE COMMISSION, DEFENDANTS. AIRPORT TRANSPORT, INC., AIRLINE TRANSPORT, INC., AIRLINE LIMOUSINE, INC., AND AIR TRANSPORT ASSOCIATION OF AMERICA, INTERVENING DEFENDANTS.



Before Hastings, Circuit Judge, and Hoffman and Robson, District Judges:

The opinion of the court was delivered by: Robson, District Judge:

The two plaintiffs are associations; the one, National Bus Traffic Association, Inc., is composed of some 400 carriers of passengers, and the other, National Association of Motor Bus Owners, represents approximately 1,000 bus carriers. Suit is predicated on the statutes providing for review of the Commission's decisions, and three-judge court jurisdiction (28 U.S.C. § 1336, 1398, 2284 and 2321-2325, inclusive). The decisions reviewed are reported at 95 M.C.C. 71 and 95 M.C.C. 526.*fn1 The Commission's regulations here challenged in part were the result of notices of proposed rule-making proceedings (49 C.F.R. § 210.40(b) and 49 C.F.R. § 210.45(b)).

Defendants are the United States of America and the Interstate Commerce Commission.

Four parties, Airport Transport, Inc., Airline Transport, Inc., Airline Limousine, Inc., and Air Transport Association of America, who participated in the proceedings before the Commission, were granted leave to intervene in this suit. Their motions stated that they provide specialized transportation for airline passengers and baggage from the airports serving Washington, D.C., and Baltimore, Maryland, areas, including transportation in emergency situations.

Plaintiffs maintain that "incidental transportation" as stated in the statutory proviso means local pickup, delivery or transfer service prior to or subsequent to movement by aircraft and not intercity line-haul service (Sky Freight Delivery Service, Inc., Com.Cr.Application, 47 M.C.C. 229; Kenny Extension-Air Freight, 61 M.C.C. 587; Peoples Exp. Co., Extension of Operation-Air Freight, 48 M.C.C. 393). They contend that where the transportation extends from one airport to the territory normally served by another, it is a substituted motor-for-air line-haul transportation rather than incidental to air transportation and its treatment as incidental transportation is without rational basis and is prohibitory and capricious (Eastern Central Motor Carriers Association v. United States of America, 239 F. Supp. 591 (D.C. 1965), and Dell Publishing Co. v. Summerfield, D.C., 198 F. Supp. 843, aff'd 113 U.S.App.D.C. 1, 303 F.2d 766). Lacking such rational basis the decisions should be set aside (Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207; Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

Plaintiffs further assert that the fact the substitution is on an irregular or sporadic basis and is paid for by the air carrier does not change the basic nature of the service from that of line-haul; nor does need of such service justify that conclusion.

Plaintiffs claim that either the air carrier must have authority to engage in line-haul transportation by motor vehicle in its own right or the motor carriers utilized to perform such services must be appropriately authorized to act as such carriers in their individual capacities.

Interveners present the issue as one of reasonableness of the Commission's interpretation of the proviso in respect to what transportation is "incidental" to transportation by air, and state that an administrative agency's determination is entitled to great weight and not to be upset unless clearly erroneous (United States v. American Trucking Associations, Inc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345).

It is pointed out by interveners that the section under consideration has been amended eight times since the 1948 Graff decision (Theodore Edward Graff Common Carrier Application, 48 M.C.C. 310) and the subsection containing the exemption has been amended three times, from which fact may be deduced congressional approval of the Commission's construction (State of Missouri v. Ross, Trustee, et al., 299 U.S. 72, 75, 57 S.Ct. 60, 81 L.Ed. 46).

Interveners contend that the judgment and expertise of an administrative determination is entitled to respect and should not be set aside except for weighty reasons (Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917).

The court is of the opinion that the Commission's differentiation of emergency situations is not arbitrary or capricious, but on the contrary is amply warranted. The inter-city trip, which is not generally "incidental" to the air transportation, is inescapable when an emergency occurs and the usual local landing is not possible. The airline absorbs the cost of the longer journey and does not further discommode the passenger or shipper.

The arguments advanced by defendants and interveners, outlined above, are soundly premised. Thus, the fact of re-enactment of the statute without change after the interpretation here challenged is legally significant. The Supreme Court in Commissioner of Internal Revenue v. Estate of Noel, et al., 380 U.S. 678, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965), again approved the principle. It said, at 682, 85 S.Ct. at 1240:

    "* * * We have held in many cases that such a long
  standing administrative interpretation, applying to a
  substantially re-enacted statute, is deemed to have
  received ...

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