Before Hastings, Circuit Judge, and Will and Lynch, District
The opinion of the court was delivered by: Per Curiam.
The plaintiffs seek to vacate and permanently enjoin a
decision and order of the Interstate Commerce Commission which
granted a certificate of public convenience and necessity to
Louis Rosenbaum, doing business as El Paso-Los Angeles
Limousine Express of El Paso, Texas (hereinafter referred to
as Rosenbaum). The certificate authorizes the operation of a
limousine service for carrying passengers and their baggage
between El Paso and Los Angeles over regular routes in
nine-passenger vehicles, serving no intermediate points.
Rosenbaum has intervened as a defendant.
On January 5, 1965, Rosenbaum filed an application with the
Commission for a certificate of public convenience and
necessity under Section 207 of the Interstate Commerce Act,
49 U.S.C. § 307 (1964). The plaintiffs protested the application
and a hearing thereon was held on October 4-6, 1965, at El
Paso, Texas, before an examiner. In his report, the examiner
recommended that the applicant be granted the authority sought.
The plaintiffs filed exceptions to the examiner's report and
the applicant filed a reply. The matter was reviewed by the
Commission and on April 28, 1966, the Commission adopted the
examiner's report in its decision and order and granted the
certificate. Subsequent petitions by the plaintiffs for
reconsideration of the matter have been denied and the
defendants admit that the plaintiffs have exhausted their
administrative remedies and that this case is therefore ripe
for judicial review.
The applicant proposes to furnish a passenger transportation
service between El Paso and Los Angeles, using nine-passenger
station wagons operated by drivers who speak Spanish.
Twenty-seven witnesses appeared before the hearing examiner in
support of the application. Their testimony disclosed that
persons of Mexican ancestry who reside in El Paso, or at
nearby points in Mexico and who have occasion to travel
between El Paso and Los Angeles, are confronted by a language
barrier. These persons are often confused although the
existing carriers maintain Spanish-speaking personnel at their
terminals and announce their departures and arrivals in both
English and Spanish. They also testified that the passengers'
baggage sometimes did not arrive with the passengers. Several
witnesses testified that they found a limousine service more
comfortable than a bus service and that they preferred the
faster service offered by the applicant. The testimony
disclosed further that various wildcat limousine services are
currently operating between Juarez, Mexico and Los Angeles,
and that a number of persons use these illegal services rather
than the existing bus service. The examiner found that the
limousine service proposed by the applicant is "distinctive."
This finding of distinctiveness was based on four elements:
more comfort, movement of baggage on the same vehicle with
passengers, faster service, and drivers who speak Spanish. The
examiner also found that the applicant's potential market
consisted largely of those persons whom plaintiffs had already
lost to the wildcat operations and that, therefore,
plaintiffs' operations would not be adversely affected by the
The Commission adopted the report of the examiner. It found
that the existing carriers provided an adequate service to the
extent that they were able to do so, but that the distinctive
type of service that was proposed justified a grant of
authority to Rosenbaum despite the existence of the other
passenger carriers. It also considered evidence that the
applicant's operations would have an adverse effect on the
wildcat carriers and concluded that the issuance of a
certificate of public convenience and necessity to the
applicant might tend to curb such illegal operations.
The United States Supreme Court has frequently held that
orders of the Interstate Commerce Commission should not
be set aside, modified, or disturbed by a court on review if
they lie within the scope of the Commission's statutory
authority and are based upon adequate findings which are
supported by substantial evidence upon the record as a whole,
even though the court might have reached a different
conclusion on the facts presented. Gilbertville Trucking Co.,
Inc. v. United States, 371 U.S. 115, 126, 83 S.Ct. 217, 9
L.Ed.2d 177 (1962); United States v. Pierce Auto Freight
Lines, 327 U.S. 515, 535-536, 66 S.Ct. 687, 90 L.Ed. 821
(1946); Mississippi Valley Barge Line Co. v. United States,
292 U.S. 282, 286-287, 54 S.Ct. 692, 78 L.Ed. 1260 (1934).
The courts have recognized that Congress has delegated to
the Commission a broad discretion in determining what
constitutes "public convenience and necessity" under Section
207(a) of the Interstate Commerce Act. 49 U.S.C. § 307(a)
(1964). Interstate Commerce Commission v. Parker, 326 U.S. 60,
65, 65 S.Ct. 1490, 89 L.Ed. 2051 (1945); United States v.
Detroit & Cleveland Navigation Co., 326 U.S. 236, 241, 66 S.Ct.
75, 90 L.Ed. 38 (1945). It is for the Commission to determine
whether the public convenience and necessity require the
issuance of a certificate authorizing interstate motor carrier
operations. Accordingly, the instant action should be tested by
the norm which limits our consideration and review to a
determination of whether there was a "rational basis * *
supported by substantial evidence." A.L. Mechling Barge Lines,
Inc. v. United States, 218 F. Supp. 837, 839 (N.D.Ill. 1963). We
conclude that such a basis exists here for the order entered.
The Commission determined that a certificate of public
convenience and necessity should be issued to the applicant.
It concluded that the certificate was justified by the
distinctive type of passenger service which was proposed. The
record discloses that the proposed service was designed: to be
faster, to overcome the language barrier encountered by
Spanish-speaking people, to assure arrival of luggage along
with the passenger, to be more comfortable than travel on
buses, and to be more advantageous to Spanish-speaking people.
The proposed service might also be instrumental in curbing
existing illegal passenger services operating in the area.
This record provides substantial evidence to support the
Plaintiffs urge that the elements considered by the
Commission, particularly the fact that Spanish-speaking
drivers will make travel more convenient for Spanish-speaking
passengers, are improper grounds for issuance of a
certificate. They contend, in terrorem, that if these are
relevant factors, they would equally support the issuance of
a certificate to an applicant who proposed using
Italian-speaking drivers in a service between New York and
Pittsburgh or other comparable applications.
Each case must, of course, stand on its own facts. Service
between El Paso, situated on the Mexican border just opposite
the city of Juarez, and Los Angeles, is a substantially
different question than service between New York and
Pittsburgh. We hold only that the Commission's action here was
within its statutory power; that its order is based upon
adequate findings supported by substantial evidence, and is in
accordance with the applicable law. Accordingly, we conclude
that the order and decision of the Commission be affirmed and
that the Complaint should be dismissed. An appropriate order
will be entered.
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