Before Schnackenberg, Circuit Judge, and Robson and Will,
The opinion of the court was delivered by: Robson, District Judge:
Plaintiff, B.D.C. Corporation, seeks the vacation and annulment
of an order of the Interstate Commerce Commission, and an
injunction against its enforcement. It invokes this three-judge
court pursuant to 28 U.S.C. § 2325. For the reasons set out
below, the court concludes that the order of the Interstate
Commerce Commission should be affirmed.
The major issue in this case is whether the Interstate Commerce
Commission's order was based on substantial evidence. Plaintiff
argues that the ruling was arbitrary and without sufficient
evidentiary foundation. Defendants contend that the order is
within the broad discretion and expertise of the Commission and
is based on substantial evidence on the record as a whole.
By application filed March 8, 1963, American Courier
Corporation (formerly the Armored Carrier Corporation) of
Bayside, New York, sought a permit authorizing operations in
interstate or foreign commerce as a commercial carrier by motor
vehicle, over irregular routes, of (1) described commercial
papers and documents ("cash letters"), and (2) audit and
accounting media, and business papers and records between
Chicago, Illinois, and points in Indiana
and Michigan. Plaintiff, an Illinois corporation, was the only
carrier opposing the application.
Hearings were held before Joint Board No. 73 in 1963 in
Chicago. This board in its report and recommended order found
that no need existed for the proposed services. (Exhibit B,
Complaint.) On December 16, 1966, the I.C.C. (Operating Rights
Review Board No. 2) affirmed the joint board's recommended denial
of part 1 ("cash letters") of the application, but found that the
public convenience and necessity required the services proposed
under part 2 (audit media) of the application. The latter order
was affirmed by the Commission, Division 1, Acting as an
Appellate Division, on July 14, 1967. The intervening defendant
(applicant below), the American Courier Corporation, did not
appeal from the denial of its application for authority to carry
"cash letters," but the plaintiff herein did appeal and is here
attacking the Commission's order with respect to its grant of
authority to American Courier to carry audit media.
In the course of its opinion, the I.C.C. admitted that
plaintiff's services were not shown to be inadequate and that
plaintiff would stand to lose traffic if the requested authority
were granted to the American Courier Corporation. American
Courier Corporation Extension — Northern Indiana Points, 103
M.C.C. 298 (1966) (Exhibit A, Complaint). The Commission further
assumed there was a need for the services in the geographical
area requested. Normally, said the Commission, the plaintiff
would "be entitled to protection against additional competition."
"However," it continued, "this policy is not absolute."
The I.C.C. said that in this case, an "unusual" situation was
presented "of a protestant [the plaintiff] commonly controlled
through management with a competitor [Banker's Dispatch
Corporation] of one of the supporting shippers [Statistical
Tabulating Corporation — S.T.C.]." The president of plaintiff,
one Jerry Stergios, was at the time of the hearing also the
president of Banker's Data Center, a data-processing company in
competition with Statistical Tabulating Corporation, one of
American Courier's supporting shippers. Mr. Stergios also owned
about 70% of a holding company which owned or controlled about
18,000 shares of Banker's Data Center (the competitor of S.T.C.)
and 100% of B.D.C. (the carrier-plaintiff herein). The Commission
"[S.T.C.] is unwilling to tender traffic [to
B.D.C.] for fear that information concerning the
identity and location of customers necessarily
revealed to this carrier would be used to its
disadvantage [as a competitor of Banker's Data
Center]. As protestant [B.D.C.] is the only motor
carrier offering a feasible audit media service, the
shipper's only alternatives are private carriage or
less desirable forms of transportation." (Id., at
The Commission then stated that it has long been watchful lest
situations arise which have a potential for discrimination, and
that it had denied applications by carriers "controlled or
closely related to the supporting shippers." The I.C.C.
emphasized that the opportunities for discrimination had to be
more than "insubstantial."
The opinion went on to apply these principles to this case:
Even though the Commission was overruling the opinion of a lower
board, it was not disputing the facts found by that lower board.
It is clear that the Commission was giving added weight to this
admitted factor, and in so doing was using its "expertise" in the
Generally, an order of the I.C.C., or any other administrative
body, will be upheld if it is based upon appropriate findings
supported by substantial evidence on the record as a whole, even
though the reviewing court might disagree with the Commission's
conclusions or consider them contrary to the weight of the
evidence. E.g., Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951);
Interstate Commerce Commission v. Union Pacific R.R. Co.,
222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308 (1912); United States v.
Pierce Auto Freight Lines, Inc., 327 U.S. 515, 66 S.Ct. 687, ...