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01/30/87 Lakeland Bus Lines, Inc., v. Te Commerce Commission and

January 30, 1987

LAKELAND BUS LINES, INC., PETITIONER

v.

INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS; AMERICAN BUS ASSOCIATION, INTERVENOR 1987.CDC.42



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petition for Review of an Order of the Interstate Commerce Commission.

APPELLATE PANEL:

Wald, Chief Judge, Mikva, Circuit Judge, and Gesell,* District Judge. Opinion for the Court filed by Chief Judge Wald.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD

Petitioner challenges the Interstate Commerce Commission's (ICC or Commission) denial of its requests for discovery and an oral hearing in connection with its protest of a motor carrier certificate application. Petitioner contends that the Commission's blanket denial of its discovery requests renders impossible its already difficult task of showing that the application is inconsistent with the public interest. Additionally, petitioner maintains that without the information sought in discovery, the ICC's decision to grant the license cannot be considered a reasoned one. Finally, petitioner argues that an oral hearing on the application was required. Because the Commission relied upon an incorrect factual premise in rejecting that portion of petitioner's discovery request that sought information regarding schedules, routes, and service points, we reverse the Commission with regard to this portion. We affirm the ICC's denial of the remainder of the discovery request and of an oral hearing. I. BACKGROUND

A. The Bus Regulatory Reform Act

Congress enacted the Bus Regulatory Reform Act , Pub. L. No. 97-261, 96 Stat. 1102 (1983) (codified at 49 U.S.C. § 10101 et seq.), "to reduce unnecessary and burdensome Government regulation" of motor carriers. S. Rep. No. 411, 97th Cong., 2d Sess. 13, reprinted in 1982 U.S. Code Cong. & Ad. News 2308, 2320. The Act significantly reduces an applicant's burden of proof when seeking authorization to provide regular-route bus service. Under prior legislation, the applicant was required to demonstrate that it was in the public convenience and necessity for the application to be granted. 49 U.S.C. § 307 (repealed Pub. L. No. 95-473 § 4(b), 92 Stat. 1466 (Oct. 17, 1978), Pub. L. No. 97-449 § 7(b), 96 Stat. 2443 (Jan. 12, 1983)). Under the BRRA, however, the ICC must grant a regular-route application if it finds that the applicant is "fit, willing, and able" to provide the service sought to be authorized and to comply with statutory and regulatory requirements, unless the ICC finds, on the basis of evidence presented by any protesting party, that the transportation to be authorized "is not consistent with the public interest." 49 U.S.C. § 10922(c)(1).

The "fit, willing, and able" standard simply means that the applicant must demonstrate safety fitness and compliance with certain insurance requirements. 49 U.S.C. § 10922(c)(6). *fn1 If a protestant seeks to demonstrate that the application is not within the public interest, the ICC must consider, to the extent applicable, the following four public

The implementing regulations provide a procedure for obtaining discovery. 49 C.F.R. § 1114.21-.31 (1986). No discovery is permitted as of right. Instead, the ICC may authorize discovery pursuant to its own motion or on the verified petition of a party. 49 C.F.R. § 1114.21 (b)(2).

B. The Proceedings in this Case

Delaware Valley Transportation Company, operating under the name Pocono Mountain Trails (Pocono Mountain), applied to the ICC for permission to provide regular-route bus transportation over routes in New York, New Jersey, and Pennsylvania. Joint Appendix at 5a-12a. Pursuant to the BRRA's lenient application policy, the application contained only a general description of the applicant, its ability to meet safety and insurance requirements, and an itinerary of the major arteries that would constitute its regular routes.

Lakeland Bus Lines, Inc. (Lakeland), which provides commuter bus service between New York and New Jersey, protested Pocono Mountain's application, J.A. at 27a-124a, and sought discovery with regard to the following Pocono Mountain items: traffic surveys and studies, equipment, labor union contracts, existing operations schedules, existing operating authorities, and records regarding safety programs and safety violations. J.A. at 141a. Lakeland also requested an oral hearing. J.A. at 39a-42a.

The ICC denied Lakeland's discovery request in toto, denied its request for an oral hearing, and granted Pocono Mountain's application. Delaware Valley Transportation Co. Extension -- New York, New Jersey, and Pennsylvania Regular Routes, ICC Decision, No. MC-28457 (Sub-No. 9) (Sept. 25, 1984), J.A. at 175a-184a. With regard to the discovery request, the Commission first noted that Pocono Mountain had provided all it was required to, albeit the bare minimum. J.A. at 175a-176a. Lakeland was seeking information that might help it meet its steep burden of proof, said the Commission, and in so doing had adopted a "shotgun approach." J.A. at 176a. The surveys and studies might not exist, the labor union contracts were of questionable relevance, and the safety information went beyond what the applicant is required to produce, added the ICC. J.A. at 176a. "An opposing carrier is not entitled to any special assistance," and where the discovery request "largely takes the form of a so-called fishing expedition," the Commission concluded that it would not grant such discovery. J.A. at 176a. Accordingly, it rejected Lakeland's discovery request in its entirety. J.A. at 176a. Finally, since there were no material facts in dispute, the ICC also rejected Lakeland's bid for an oral hearing. J.A. at 176a.

After the ICC rejected Lakeland's appeal and petition for a stay of Pocono Mountain's operating authority, J.A. at 185a-220a, Lakeland came to this court with the same requests. J.A. at 232a-237a. We denied the motion for a stay, J.A. at 238a, and denied reconsideration of this motion, J.A. at 241a, but before we could rule on the ...


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