Full opinion text
JOHN E. MILLER, Senior District Judge. The plaintiffs, 19 in number, bring this action to set aside, vacate, suspend, enjoin and annul that portion of the order of the Interstate Commerce Commission (ICC) that authorizes the issuance of a Certificate of Public Convenience and Necessity to Red Ball Motor Freight, Inc., in Docket No. MC-2229 (Sub-No. 132), to Bowman Transportation, Inc., in Docket No. MC-94201 (Sub-No. 56), and to Johnson Motor Lines, Inc., in Docket No. MC-106401 (Sub-No. 18) (hereinafter referred to as Red Ball, Bowman and Johnson, respectively, or applicants collectively). The applications were consolidated with others under Docket No. MC-1124 (Sub-No. 206) which was initially entitled “Herrin Transportation Company, Extension-Atlanta, Ga.,” and was re-entitled “McLean Trucking Company, Extension-Atlanta, Ga.” This action was commenced pursuant to 28 U.S.C.A. § 1336, conferring jurisdiction upon this court, and §§ 2284 and 2321 through 2325, inclusive, of said Title, together with 49 U.S.C.A. §§ 305(g), 305(h), and 5 U.S.C.A. §§ 701 through 706, the Administrative Procedure Act, all providing for the procedure herein.- Venue exists under 28 U.S.C.A. § 1398, since plaintiffs Arkansas-Best Freight System, Inc., and Mercury Motors, Inc., are residents of and maintain their principal offices and places of business in Fort Smith, Arkansas. On October 12, 1972, Red Ball, upon motion was allowed to intervene as a party defendant, and on October 12 it filed its original answer, and on December 4, 1972, filed its first amended answer. In the first amended answer, it alleged that the Commission entered an order on October 6, 1972, denying the petitions of plaintiffs seeking a finding that an issue of general transportation importance is involved in the proceeding. On October 12, 1972, the court, upon motion, allowed Johnson to intervene as a defendant, and on the same day it filed its answer in which it denied that certain of the plaintiffs had appeared as protestants in opposition to the granting of the operating authority applied for by it. On October 25, 1972, Bowman, upon motion, was allowed to intervene as a defendant, and on the same date it filed its answer, in which it alleged that certain of the plaintiffs did not file a petition for reconsideration in the proceedings. On October 31, 1972, the court, upon motion, granted Roadway Express, Inc., and Roadway Express, Inc., of Mississippi permission for leave to intervene as plaintiffs. On November 1, 1972, the court allowed a group of shippers, 41 in number, who had appeared as witnesses before the Commission on behalf of the Johnson application, to intervene in support of the application. On December 4, 1972, defendants USA and ICC filed their joint answer. On January 2, 1973, the court, upon motion, granted Jack Cole-Dixie Highway Company leave to intervene in support of the plaintiffs’ complaint. The authority granted Red Ball, Bowman and Johnson authorizes such carriers to extend their existing operations in the transportation of general commodities by motor vehicle over regular routes between specific points, generally in the Southeastern and Southwestern portions of the United States. Each plaintiff and intervening plaintiff is a motor carrier that participated in the proceedings before the Commission as a protestant in opposition to one or more of the applications granted by the Commission. Promptly after the filing of the complaint, a hearing was held before Senior District Judge John E. Miller on plaintiffs’ application for a temporary restraining order suspending the operation of the Commission’s orders pending a final hearing and determination of this action. The temporary restraining order was issued pursuant to 28 U.S.C.A. § 2284(3). Arkansas-Best Freight System, Inc. v. United States, 350 F.Supp. 539 (1972). After extensive briefs had been filed by all parties, plaintiffs sought to supplement their complaint so as to seek review of orders of the Commission issued subsequent to the filing of the initial complaint. The subsequent orders granted operating authority to a fourth motor carrier, Jones Truck Lines, Inc., on its application heard as a part of the consolidated proceeding that resulted in the issuance of authority to Red Ball, Bowman and Johnson. Jones Truck Lines, Inc., Extension-Atlanta, Ga., 117 M.C.C. 586. The motion to file the supplemental complaint was denied, after a full hearing before the court. (Appendix A.) In 1965, the Commission published notices describing the filing of a number of extensive motor carrier applications. Following a pre-hearing conference, ten out of twenty-one applications considered at the conference were selected for hearing on a consolidated record. These applications involved an extensive network of routes extending generally across the Southeastern and Southwestern portions of the country. Carriers operating predominantly in the Southeast sought to extend their operations into the Southwest. Carriers operating in the Southwest sought extensions into the Southeast. Most of the applications were filed within a short period of time and it is obvious that some were primarily defensive in nature. For example, applications by Southeastern carriers to serve major points in the Southwest were met by applications by Southwestern carriers to operate over the same routes to serve points in the Southeast presently served by the Southeastern applicants. Initially, each applicant, including Red Ball, Bowman and Johnson, opposed the other applications that sought to duplicate their own routes, but in prosecuting their applications, the various applicants adopted different strategies. Some concentrated on their role as protestants in opposition to the others. Some, including Bowman (a Southeastern carrier), abandoned their role as protestants and concentrated on their role as applicants. Johnson (a Southeastern carrier) emphasized its role as applicant, but remained as a protestant in other proceedings. Red Ball (a Southwestern carrier) maintained its dual role of applicant and protestant throughout the proceeding, dividing its presentation of evidence accordingly. The consolidated proceeding was assigned for hearing before two Hearing Examiners (now termed Administrative Law Judges) who conducted hearings over a period of eighteen months in Washington, D. C., Atlanta, Ga., Dallas and Houston, Texas, New Orleans, La., Kansas City, Mo., Tulsa, Okla., and Memphis, Tenn., such cities (other than Washington) being located on the various routes involved in the applications. The hearing resulted in “what is perhaps the most extensive record ever developed in connection with a single group of motor carrier application proceedings before this Commission.” 114 M.C.C. at 573. The transcript of testimony covers 23,423 pages and there are 1,989 exhibits. A total of 950 witnesses testified on behalf of the ten applicants, including 933 public witnesses engaged in shipping or receiving freight by motor carrier. A total of 66 rail and motor carriers entered appearances in opposition to the applications. Forty-eight of the protestants offered evidence through the testimony of 62 witnesses and numerous exhibits. Extensive briefs were filed before the Examiners. These briefs included two sets of detailed abstracts of the evidence, one submitted jointly on behalf of Bowman, Johnson and Jones; the other submitted jointly on behalf of various applicants and protestants, including Red Ball and plaintiffs. The two sets of abstracts are strikingly similar and provide an accurate summary of the evidence of record. The parties required seven months for the preparation of their post-hearing briefs, following which the Examiners issued their report and recommended order on November 19, 1969, twenty-seven months after the close of the hearing. The Examiners concluded that none of the applicants had established that its application was justified by the public convenience and necessity, concluding, instead, that approval of any of the applications would result in a deterioration rather than an improvement of existing carrier service, contrary to the public interest. They recommended, therefore, the denial of all applications. On the day preceding the extended due date for the filing of exceptions to the Examiners’ report, a petition was filed with the Commission in the name of forty-one shippers that had testified at the hearing in support of the Johnson application. This petition sought to intervene in support of Johnson and to file exceptions challenging the Examiners’ denial of that application. Seven days later, before replies thereto could be filed, the Commission entered an order granting such petition and accepting such exceptions, nunc pro tunc. Vigorous objection to such action, advanced by numerous protestants, was subsequently denied by the Commission. Eight applicants filed exceptions to the Examiners’ report. Some protestants filed conditional exceptions, taking issue only with the failure of the Examiners to make certain findings of fact. Replies to the exceptions were filed by numerous parties. Twenty-five months after the Examiners’ report, Division 1, composed of three of the eleven Commissioners, issued a report granting the applications of Red Ball, Bowman and Johnson, and sustaining the Examiners’ denial of the remaining applications. 114 M.C.C. 571. The grant to Bowman exceeded, in certain respects, the authority described in its application. The Commission, accordingly, required that an additional notice be published in the Federal Register describing such grant. Pursuant to the Commission’s Rules of Practice, extensive petitions seeking reconsideration of the Division 1 report were filed on behalf of numerous protestants and most of the unsuccessful applicants. Twelve working days after replies thereto were filed, all petitions challenging the grants to Red Ball, Bowman and Johnson were denied by a two-to-one vote of the Commission’s Division 1, then acting in an appellate capacity. This order also overruled petitions of Arkansas-Best Freight and others, filed pursuant to the publication of notice of the Bowman grant, seeking leave to intervene, reopening for further hearing, and reconsideration in light of evidence to be adduced at the further hearing. The same order also denied the petitions of the unsuccessful applicants other than Jones, but reopened the Jones application for further consideration on the existing record. Subsequent to the filing of this suit, the same Division, again by two-to-one vote, reversed its prior decision and granted the Jones application with certain modifications. Jones Truck Lines, Inc., Extension-Atlanta, Ga., supra. The Commission’s disposition of the Red Ball, Bowman and Johnson applications became administratively final with the entry of the order overruling protestants’ petitions for reconsideration, whereupon this suit was promptly instituted by the leading protestant carriers. Subsequently, the Commission denied various petitions requesting the Commission to find on its own motion that the proceeding was one involving an issue of general transportation importance. Extensive and thorough briefs have been submitted to the court in support of the respective contentions of the parties in interest and proposed findings of fact and conclusions of law have been received, which the court has studied, along with a great many of the exhibits and the Report of the Examiners and the Division 1 Report. After full consideration of the contentions of all the parties, the pertinent portions of the entire record, and ■ the proposed findings of fact and conclusions of law submitted by the parties, the court is convinced that the proposed findings and conclusions submitted and requested by plaintiffs are correct, and they are adopted by the court as hereinafter set forth. THE EXAMINERS’ REPORT All parties, in their briefs and pleadings, acknowledged that the Examiners were among the most experienced on the Commission’s staff. Their 300-page report consisted of a summary of their findings and conclusions, together with a series of appendices embodying extensive, detailed findings of fact. As summarized in the Examiners’ Report, the ten applicants proposed to extend their operations into new areas so as to handle traffic, in direct service, moving between points that they presently serve and points that they propose to serve. Bowman and Johnson, for example, that operated primarily in the Eastern Seaboard states and sought to extend their operations over described routes so as to serve new points located west of their existing territory. The principal routes sought by Johnson extended from Atlanta to the Dallas-Ft. Worth area, and from New Orleans to Houston. Johnson sought to serve the principal cities along these routes in Mississippi, Louisiana and Texas. Bowman sought to extend its routes from Alabama to Dallas-Ft. Worth and to Houston, duplicating basically the Johnson proposal, and, in addition, proposed other routes extending across Mississippi, Arkansas and Missouri, with the northern route terminating at Topeka, Kansas. Red Ball’s existing .authority extended over large areas in the Southwest. It sought to extend its routes from Jackson and Greenville, Mississippi, eastward to Birmingham and Atlanta. The application of the other Southeastern carriers basically duplicated that of Johnson, and the applications of the remaining Southwestern carriers basically duplicated that of Red Ball. None of the applicants proposed to provide service to any point not presently served by multiple motor carriers. Each sought only to provide additional service to that presently available. Each proposed a limited “overhead” type of service to the major cities only along their proposed routes on long-haul traffic moving to or from points presently served by each applicant. No “local” traffic [i. e., traffic from one point to another on the proposed routes] would be handled, and no service would be rendered to the smaller towns and communities along the proposed routes. Each applicant presented “operating testimony” designed to demonstrate its willingness and ability to perform its proposal. A large number of shippers and receivers of freight were then presented to support applicants’ contentions that there is a public need for the proposed service. Each applicant proposed to perform service within prescribed periods of time, referred to as “transit time.” Each sought to establish that its proposed transit times are less than the transit times actually experienced by its witnesses in the shipping and receiving of freight. Most shippers generally expressed dissatisfaction with inconsistent and excessive transit times. They also expressed other criticisms of existing service, including the pickup and delivery _ of shipments. It was also shown that certain carriers maintain various types of formal or informal restrictions as to certain types of traffic, while others fail to render consistent service to authorized points, primarily the smaller towns and off-route points in the area. Much of the traffic involved in the proposals moved over extremely long distances and throughout wide geographical areas. Bowman and Johnson, for example, operated from New England to the Southeast and proposed extensions into the Southwest and Midwest. Red Ball operated from as far west as Denver and proposed an extension to Atlanta. The proposals of other applicants were equally extensive. Although, between many points, direct or “single-line” service is available, most points, particularly the most distant points, are joined only by “joint-line” service involving an interchange or interline between two or more connecting carriers. Most of the criticism involving existing service centered around delays and uncertainties inherent in joint-line service. The applicants emphasized their proposal to reduce the amount of joint-line service required for the handling of movements between the involved points. Approximately one-half of the Examiners’ 300-page report consisted of detailed findings of fact based upon the evidence presented by the public witnesses. These findings were grouped or separated by the Examiners in accordance with the various types of freight shipped by the witnesses. The commodities involved in such testimony covered a wide spectrum, as evidenced by the Examiners’ classification of such freight into forty-five categories. Although, on exceptions, no party challenged the accuracy of any finding of fact embodied in the Examiners’ report, certain applicants contended that the Examiners’ method of grouping their findings in this manner prevented such evidence from receiving “adequate consideration and treatment in relation to the the territories and points involved.” 114 M.C. C. at 591. The method used by the Examiners, however, was consistent with the method used by counsel for applicants and protestants in their respective abstracts of the evidence presented to the Examiners. It was also consistent with the order of the, Commission establishing a special procedure for the presentation of such evidence, which order required the use of modified written statements including for each witness a “description of traffic and special transportation requirements if any.” Consideration of shippers’ testimony by commodities has been followed in other proceedings. Compare, United Parcel Service, Inc., Common Carrier Application, 68 M.C.C. 199, 203. Typical of the Examiners’ findings is their summary of the evidence presented by thirty-three witnesses who ship or receive clothing, the first commodity category considered in their report. After setting forth detailed findings concerning the testimony of each of these witnesses, the Examiners found: “These 33 Clothing witnesses are not without available transportation services. Their support is based upon the inadequacies of those services. For the most part their shipments are in small lots and the product is seasonal in its salability. Inventories necessarily are limited because of economic considerations. Orders often are of an emergency nature such as to meet a certain advertised sale, or are reorders of depleted stock. The availability, dependability and speed of transportation service are very real factors in determining the competitive position of these shippers in a particular market area. Yet, many of these witnesses are not familiar with the existing transportation services available, have not tried the joint-line services of the carriers they support for single-line service nor the services available from other carriers, are using joint-line services at times when single-line is available, and few have made any real efforts to solve their transportation problems. To a large degree the schedules proposed by the particular applicant supported form the bases of their support.” (Examiners’ report, App. C, p. 6) Similar findings were next made concerning witnesses who shipped or received piece goods, textiles, toweling, thread and yarn. The varying transportation requirements of the different shippers is illustrated by the Examiners’ findings relative to the next group, those interested in the movement of signs, displays, and showcase equipment. The Examiners pointed out that the support of these shippers “is based primarily upon the assumption that single-line service is better than connecting line service and that the elimination of interchanges between carriers will solve most of their problems merely by reduction in the amount of in transit handling of their shipments.” The Examiners pointed out, however, that this assumption “is not justified,” because movements “even between points on the lines of a single carrier, may well involve a considerable amount of consolidation and break-bulk distribution between origin and ultimate destination.” In addition, it was pointed out that under the applicants’ proposals, interline service will still be required “to accomplish a substantial portion of their delivery requirements.” The Examiners considered significant the fact that the shippers sought primarily to substitute one service for another “in lieu of the abundant existing services which are available to them but which they have made no attempt to utilize even though in many instances the unused or little used routings would appear on their face to be more advantageous.” The Examiners concluded their discussion of this testimony by stating that “The territory here considered is provided with an abundance of transportation facilities.” (Examiners’ report, App. C, p. 23). Similar findings were made as to each of the other categories of commodities shipped or received by the witnesses. As noted, the applicants’ proposals were predicated upon their contention that an improved quality of carrier service is needed by the public, and their presentation centered predominantly upon a comparison of their proposed transit time with the transit time experienced by their supporting shippers. They sought to establish the general pattern of existing transit time primarily through the presentation of shipping documents evidencing service rendered by existing carriers, summarized in “transit-time studies” presented as exhibits. The Examiners recognize that “shippers are entitled to transportation services which will enable them to move their merchandise or replenish their stock with the least delay and inconvenience consistent with economically and efficient operation of all transportation agencies serving their localities.” (Examiners’ report, p. 9). Since the ten applications were heard on a consolidated record, however, and since most [initially all] applicants also participated as protestants, the supporting evidence presented by each applicant normally placed in issue the quality of service rendered by other applicants. The Examiners termed this an “anomaly” (p. 10) attributable to the uniqueness of a single hearing involving overlapping proposals by multiple applicants. The Examiners found that most of the witnesses “voice some degree of dissatisfaction” with their existing transit times and summarized this aspect of their testimony as follows: ***** Many of the public witnesses so complaining of slow and inconsistent service submitted abstracts of freight bills showing service they have received from some of the carriers used, including applicants, protestants and other carrier services. In some instances these bills were selected specifically to show poor service, or the abstracts were prepared from records of shipments upon which there had been some difficulty. In other instances they comprised only a few shipments made over a very extensive period of time; and in some instances the bills represented substantially all shipments in a given period between certain points or areas. It was not unusual for the witnesses to have permitted the applicant they supported to select the bills and prepare the abstracts. The transit time studies of these public witnesses reflect many instances of poor transportation service by protestants, applicants, as well as other carriers. They also reflect instances of good service. “The number of witnesses complaining of unsatisfactory transit time and inconsistency of service by the transportation agencies being used is impressive at first blush, but palls with analysis. While the many transit time studies of the supporting shipper witnesses reflect numerous instances of service deficiencies, the evidence also discloses that many of the same witnesses have made no investigation of the carrier services available nor experimented with the various combinations of available service to improve their transportation.” (Examiners’ report, pp. 10-11). The Examiners noted that if shippers are genuinely concerned about the adequacy of carrier service, they would not continue to follow practices (beyond the control of the carriers) that cause or contribute to service deficiencies. Such practices, admittedly followed by the shippers, include (a) failure to investigate available service, (b) failure to experiment with different available services, (c) use of circuitous routes in lieu of available direct routes, (d) failure to specify routings available to them, (e) the holding of shipments for periodic release, (f) use of slower water or rail service in lieu of faster available motor service, and (g) failure to use available services offered by the very applicants supported. The examiners found that “little weight” could be accorded such shippers’ professed need for improved service. (Examiners’ report, pp. 11-12). Considered collectively or ratably, the number of witnesses in the ten applications appears to be unusually large for proceedings of this type. Consistent with prior findings of the Commission, however, the Examiners noted that: “Almost every shipper is interested in getting his products to destination as economically and quickly as possible, and is inclined to support the application of any carrier who promises better service than he already has available. As the Commission has noted in other proceedings [Transamerican Freight Lines, Inc. — Purchase (Portion) — Allen Motor Lines, 59 M.C.C. 695, 722, reversed on other grounds, 65 M.C.C. 163], the number of shipper witnesses which an applicant can present at a hearing to testify that their service is inadequate appears to be governed largely by the energy put forth and the expense it is willing to incur.” (Examiners’ report, p. 12). The Examiners made extensive findings relative to the availability of existing service, such findings being predicated upon evidence presented by applicants and protestants. They noted that the “need to avoid monopolistic tendencies * * * must be balanced against the wasteful duplication of services and the creation of excessive capacity that would adversely affect the continuance of efficient operation by the existing carrier services.” They found that “the benefits which may be realized by some few of the public witnesses supporting any of these applications are far outweighed by the serious adverse effect the granting of these applications, or any of them, may have upon existing carrier services.” (Examiners’ report, pp. 20, 22). These ultimate findings were supported by subordinate findings relative to resulting deterioration in specific service performed by individual carriers. They found that “the evidence leaves lit-tie doubt that some of the smaller carriers likely could not survive.” One [Holloway], admittedly rendering adequate and satisfactory service, would likely lose 71 percent of its revenue as a result of a grant to Bowman. Another [Red Line], could be “put out of business.” (Examiners’ report, p. 20). The Examiners found that the services of the larger carriers would also be jeopardized. For example, one [Gordons] would be affected throughout its system with 58.5 percent of its total revenue being subject to diversion. Over 98 percent of its traffic at certain major terminals would be involved. (Examiners’ report, App. D, p. 21). Similar findings were made as to other protestants. The findings included other specific illustrations of adverse effects. As noted, the applicants proposed a highly selective “overhead” service to the major points only, rendering no service to the smaller points en route. The Examiners noted that diversion of traffic from such major points “will result in a deterioration of service at many of the smaller points * * * which are not proposed to be served directly by these applicants.” (Examiners’ report, App. D, p. 36). The Examiners also noted that the traffic flow is imbalanced and that approval of the applications would aggravate this situation, to the detriment of efficient and economical operations. For example, they found that a further imbalance of Roadway’s operations, now heavy westbound, would result from approval, and illustrated the importance of this by noting that: “During the first half of 1967 Roadway operated 157 vehicles empty from Texas eastward to Atlanta or beyond. Loss of any of its eastbound traffic from the Texas origins or connecting points will result in greater imbalance.” (Examiners’ report, App. D, p. 45). It is noted that 157 empty trips during a 6-month period amounts to one each working day. Throughout their report, the Examiners found that all criticisms of carrier service made by the witnesses was directed as much toward applicants as toward protestants and others. Throughout their report, the Examiners also noted that many of the problems cited by the witnesses are directly attributable to practices followed by the shipping and receiving public, beyond the control of the carriers. The Examiners concluded that approval would result in a deterioration rather than an improvement of service, and set forth specific findings concerning steps that could be taken to improve available service: “The solution to the instances in which the public has been subjected to poor transportation services in the circumstances here involved does not lie in the authorization of additional carrier services but rather in the exercise of more diligence and care by the carriers and shippers.” (Examiners’ report, p. 13). “ * * * remedial procedures are available other than authorizing additional carriers in an area already served by an adequate number of carriers.” (p. 31). “ * * * the national transportation policy does not tolerate the conclusion that all shippers at all points are entitled to single-line service. The traffic involved is of major import to the economy and efficiency of a number of the existing carriers, and to their ability to continue an adequate service to the public under their certificates. Competition with its advantages must be balanced against wasteful duplication and the creation of excessive capacity that would adversely affect the continuation of efficient operations by existing carriers. Moreover, the applicants themselves provide important segments of the existing joint-line services available, and the evidence shows that the shippers could obtain better interline service by more careful attention to desirable routings and gateways and by more cooperation between the carriers. We conclude that the existing carrier -services are adequate to meet the reasonable needs of the shippers, and that applicants’ proposed services could not improve substantially thereon without materially diverting traffic from existing carriers to the detriment of their service and contrary to the public interest.” (P. 32) THE EXCEPTIONS Exceptions were filed by eight applicants. In addition, the Commission accepted the exceptions tendered on behalf of the Johnson shippers. All of these exceptions took issue with the Examiners’ conclusions. Certain applicants also argued that the Examiners’ method of grouping the shippers’ evidence by commodities prevented the Examiners from obtaining a proper grasp of such evidence, and suggested that such findings should have been subdivided according to the geographical location of the witnesses. No exception was taken, however, to any specific finding of fact. Extensive replies to exceptions were filed by protestants. Since applicants had not challenged any specific findings of the Examiners, the replies sought to demonstrate that the Examiners’ conclusions were proper in the light of such findings. THE DIVISION REPORT The Division differed with the Examiners in their conclusion that all applications should be denied, and ordered that the three here involved be granted and the others denied. At no point in its report did the Division reject any of the Examiners’ findings of fact. However, the only findings of the Examiners expressly adopted by the Division were those relating to the protestants’ evidence. As noted, more than half of the Examiners’ report was devoted to specific findings based on evidence presented by the shippers. Noting the objections to the format of the Examiners’ report, the Division stated that “a clearer picture of the supporting witnesses’ needs in these proceedings * * * can be presented by a grouping of the supporting evidence on a geographic basis.” The Division “accordingly restated the supporting evidence” in an appendix to its report. 114 M.C.C. at 591. It cannot be determined from the report whether the Division’s “restatement” of such evidence indicates agreement with or rejection of the Examiners’ findings. Protestants’ efforts to obtain a clarification of the Division’s report were unsuccessful. They now assert that the report .is defective because of its vagueness and ambiguities, asserting that it fails to meet the requisites of the Administrative Procedure Act, 5 U. S.C. § 557(c). Plaintiffs’ contentions find support in the conflicting assertions set forth in defendants’ briefs. Under Johnson’s interpretation, the Division’s report “does not adopt the findings * * * of the Hearing Officers * * * but, instead, enters entirely new and different findings.” Government counsel reads the Division’s report differently, asserting that “the Commission’s ‘restatement’ of the facts does not reflect any disagreement with the examiners over what the witnesses said or what the exhibits stated.” (Johnson brief, p. 21; Government brief, p. 38). In its subsequent report on reconsideration in Jones, supra, the same Division “restated” its findings in the report now under consideration but made it clear that it did not intend thereby to alter such findings since they were expressly adopted. 117 M.C.C. at 590. The pivotal point of the Division’s grant to Red Ball, Bowman and Johnson involved the treatment of evidence relating to the quality of existing service. As noted, applicants contended that the quality of existing service, primarily from a transit-time standpoint, failed to meet the needs of shippers. In resolving this issue adverse to applicants, the Examiners gave consideration both to the evidence as to transit time presented by the shippers and to the voluminous evidence on the same subject presented by protestants. Although the Division expressly adopted the Examiners’ findings relative to protestants’ proof, they reached the conclusion that the transit-time studies presented by the protestants “do not present as valid a picture as those introduced by those witnesses supporting the applications.” This conclusion was predicated upon two factual findings as to protestants’ studies: “(1) that most either relate to short periods of time or cover traffic handled for specific shippers and (2) that they were made when protestants were confronted with the possibility of grants of authority to additional carriers.” 114 M.C.C. at 599. Plaintiffs contend that this treatment of vital evidence presented in support of their protests was arbitrary, capricious, and an abuse of discretion and, therefore, violative of the provisions of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). This contention is based upon a comparison of the Division’s treatment of protestants’ evidence with other findings in its report: 1. The Division gave credence to and predicated ultimate conclusions upon the same type of studies presented by applicants that (a) covered periods of time as short as or shorter than those presented by protestants and (b) covered periods of time in which the applications were pending, such periods being, in some instances, more recent than those utilized by protestants. See e. g., 114 M.C.C. 586. 2. The periods of time covered by protestants’ studies conformed generally to the periods covered by the shippers’ studies. 3. The shippers’ studies generally “comprised only a few shipments made over a very extensive period of time,” whereas all protestants’ studies included all shipments handled during the periods covered. 4. Whereas shippers, or applicants acting for shippers, picked shipping documents “selected specifically to show poor service” or included only “records of shipments upon which there had been some difficulty,” the protestants’ studies included all shipments, good and bad. (See Examiners’ Report, p. 10). Plaintiffs further contend that the Division arbitrarily considered only those portions of the shippers’ transit-time studies that were favorable to applicants while refusing to consider those portions unfavorable to applicants. This contention is supported by the Division’s failure to consider the summaries of the shippers’ exhibits prepared by protestants. These summaries of the shippers’ evidence demonstrated that service rendered by the applicants was not superi- or, but in fact was inferior, to that rendered by protestants, and that protestants’ service was, on the whole, reasonably expeditious. Bowman and Johnson both presented transit-time studies for the declared purpose of demonstrating their ability to perform in accordance with their proposals. Red Ball, as a protestant, presented limited studies of this type. At one point in its report, the Division accepted applicants’ evidence as substantiating applicants’ ability to perform as proposed. However, in disposing of protestants’ contentions that, when viewed in their entirety, applicants’ evidence demonstrated performance inferi- or to that proposed, the Division ruled that such evidence could not be considered for the purpose of testing applicants’ ability to perform as proposed. Accordingly, the identical evidence offered by applicants was accepted and credited, to the extent favorable to applicants, but rejected as having no probative value when stressed by protestants. Compare 114 M.C.C. at 586 and 611. Bowman, on brief, continues to urge the appropriateness of such evidence as providing the “best comparison” of its present with its proposed service (Bowman brief, p. 65), thereby acknowledging the Division’s error in ruling that, to the extent such evidence was unfavorable to applicants, it had no probative value. The protestants’ transit-time studies, discredited by the Division, were given considerable weight by the Examiners. The Division acted on its own motion in finding that they were entitled to little weight because “they relate to short periods of time,” or because they “cover traffic handled for specific shippers,” and because “they were made when protestants were confronted with the possibility of grants of authority to additional carriers.” The record disclosed that all such exhibits were presented as representative of normal service rendered by the involved carriers. No one challenged this fact at the hearing or on exceptions. In finding that they were entitled to little weight for the reasons assigned, the Division acted ex mero motu, thereby depriving protestants of any opportunity to defend their propriety or correct the alleged deficiencies. The condemnation of such studies on the ground that some “cover traffic handled for specific shippers” is particularly unwarranted. Again, this “deficiency” was not suggested by any party; therefore, the sponsors of the exhibit were given no opportunity to explain the inappropriateness of the criticism. Explanations contained in petitions for reconsideration were apparently ignored by a majority of the Division. Regardless of such explanations, however, even a casual examination of the record would have disclosed that all protestant exhibits covering “traffic handled for specific shippers” related to shippers that had testified in support of the applications. They consisted of obviously relevant evidence offered to rebut the shippers’ evidence. In like manner, no suggestion had been made by any party that protestants’ exhibits did not reflect normal or representative service because they covered “periods subsequent to the notice of the commencement of the hearings in these proceedings.” Clearly, applicants could not have challenged them on this ground, since all of applicants’ exhibits, accepted and credited by the Division, were subject to the identical “deficiency.” Overlooked by the Division were the exhibits presented by one protestant covering periods prior to such notice, as well as subsequent thereto. (Exhibits 1747-1763). General service exhibits were presented by fourteen different protestants (including Red Ball) and collectively reflected service of more than 120,000 shipments. The significance of the Division’s refusal- to consider portions of applicants’ evidence reflecting unfavorably on applicants and their stated refusal to afford weight to protestants’ service exhibits, is demonstrated by brief comparisons of applicants’ service with protestants’ service, as reflected by the exhibits. Before the Commission and before this Court, Bowman recommends its service exhibits as offering “the best comparison for the service actually being performed over present and proposed routes.” Protestants pointed out to the Division, however, that such exhibits actually establish performance greatly inferior to that proposed. In many instances, Bowman demonstrated that it delivered its traffic on time only 55% of the time. Johnson’s on-time performance ranged from 22.5% to 58.5%. These facts were ignored by the Division. They did find, however, the protestants’ evidence reflected greatly superior service. For example, as to plaintiff Gordons, the Division found that its record of 5,694 shipments “disclosed ‘on-time’ performance on 81 percent of the shipments, and that 96 percent were delivered by the first day beyond the established standard.” 114 M.C.C. at 768. On 7,885 shipments transported by plaintiff Mercury, its on-time performance “ranges from a low of 76.4 percent to a high of 93.8 percent.” 114 M.C.C. at 771. Plaintiff Campbells’ on-time performance ranged “from 71.6 percent to 82.4 percent.” 114 M.C.C. at 777. Plaintiff Roadway’s performance on more than 16,000 shipments “indicates a very substantial on time performance.” 114 M.C.C. at 783. Another protestant, on more than 7,000 shipments, established “on time service performance ranging from a low of 80.5 percent to a high of 90.9 percent and an overall average of 86.4 percent.” 114 M.C.C. at 790. Various other findings also appear in Appendix G; however, in the body of the Division report, none of these findings are mentioned. After enumerating various complaints voiced by the shippers, the Examiners found that: “The entire scope of the complaints fall upon both applicants and protestants, as well as upon other carrier services which the witnesses use.” (Examiners’ report, p. 8). The complaints embraced interline or service restrictions promulgated by Red Ball, Bowman, and Johnson as well as by certain protestants. The Division discussed the complaints as they related to protestants’ service, but ignored the admitted fact that they applied equally to applicants’ service. For example, the Division specifically condemned certain protestants for promulgating tariff or service restrictions while refusing to mention identical restrictions promulgated'by Red Ball, Bowman and Johnson. 114 M.C.C. at 596-8. Evidence of applicants’ restrictions appear in the record. In addition, protestants unsuccessfully urged the Division to take note of additional restrictions of this type filed with the Commission by such applicants subsequent to the hearing. In their briefs, applicants, following the Division’s pattern, emphasize evidence of deficiencies relating to protestants but ignore identical evidence relating to applicants. Again acting on its own motion, the Division took official notice of an industry publication which revealed that one protestant discontinued its terminal at one of the involved points subsequent to the hearing. 114 M.C.C. at 605. At the same time, the Division relied strongly upon its finding that Red Ball maintained 92 terminals, “about three times the collective number of terminals operated by” the three other Southwestern carriers. 114 M.C.C. at 602. In view of such findings, protestants urged the Division to notice that the same industry publication cited by the Division revealed the fact that Red Ball had discontinued 35 of the terminals mentioned by the Division. The Division declined to acknowledge this admitted fact. Also ignored was the evidence of record disclosing Bowman’s failure to maintain terminals at numerous major cities along its routes, many of which are far larger than the one at which the protestant’s terminal was discontinued. The shipper witnesses testified in support of ten separate applications heard on the consolidated record. In evaluating this evidence, the Division considered all evidence presented in support of the eight applications that were the subject of exceptions. 114 M.C.C. at 591, 592. In considering protestants’ evidence, however, the Division compartmentalized such evidence based upon the application or applications specifically-opposed by each carrier presenting such evidence. 114 M.C.C. at 605, 607, 609. The Division omitted entirely the Examiners’ summary of all evidence presented by six carriers that had protested only the application of one of the carriers that had failed to file exceptions. At several places in its summary of protestants’ evidence, the Division refers to extensions or expansions of certain protestants’ operating authority, resulting largely from mergers or acquisitions consummated subsequent to the close of the hearing. At no point in its report, however, does the Division evaluate the effect of this expanded service. More significant is the Division’s failure to make any comprehensive evaluation of the scope or extent of all carrier service available at the time of its decision. This is particularly significant because its decision was rendered more than four years after the close of the hearing. Instead of considering the quantum of service available at the time of its decision, the Division referred, instead, to a study presented by Johnson at the opening of the hearing, and concluded that such study disclosed “that comparatively there is a paucity of single-line motor carrier service available.” 114 M.C.C. at 592. The study referred to was then more than five and one-half years old. It showed, for example, that only three single-line carriers operated between Atlanta and Dallas, the focal points of the applications. Actually, however, there were thirteen such carriers operating between these points at the time of the Division’s decision. The exhibit relied upon by the Division for its finding concerning the “paucity of single-line motor carrier service available” reflected three carriers authorized to operate between Atlanta and Houston, one between Atlanta and Baton Rouge, and three between Atlanta and Jackson. At the time of its decision, however, eleven were in operation to Houston, seven to Baton Rouge, and eight to Jackson. Similar changes took place between more distant cities. Between Baltimore and Houston, there was an increase from one to seven; between Boston and Dallas the increase was from three to nine; between Charlotte and Dallas, from one to five; between New York and Jackson, from zero to three; between Philadelphia and Houston, from two to six; and between Richmond and Baton Rouge, from zero to three. (See Summary reproduced in plaintiffs’ initial brief, pp. 142-5). The Division ignored protestants’ pleas that consideration be given to this increased service. The Division concluded that there is insufficient traffic “to sustain all of the additional motor carrier operations here proposed,” and that “the authorization of all such services could lead to unhealthy, if not cut-throat, competition inimical to the public interest.” 114 M.C.C. at 601. In concluding that three — and no more — applicants should be granted authority, the Division set forth no basis to support its conclusion that such action would not result in “the creation of excessive capacity and needless duplication of services which would tend to adversely affect the continuance of efficient operation by existing carriers.” Although acknowledging this danger, as well as its own admonition “to avoid the proliferation of operating authorities not needed by the shipping public,” the Division’s conclusions were based upon its finding that, in early 1966, there was a “paucity of single-line motor carrier service available.” As noted, the Examiners found that the selective type of service proposed by applicants would result in a deterioration of service, primarily to the small communities proposed to be traversed but not served by applicants. This finding was carried forward in an appendix to the Division’s report, but apparently received no consideration by the Division since it was not otherwise mentioned. 114 M.C.C. at 777. In like manner, the Division adopted the Examiners’ findings that approval would result in a further imbalance in traffic which would result in inefficient and wasteful transportation by increasing the extent of empty vehicle operations. 114 M.C.C. at 783. Again, however, this finding appears only in an appendix and apparently received no consideration by the Division. The specific findings of the Examiners concerning the adverse effect upon protestant carriers were expressly adopted by the Division. However, such findings appear only in an appendix to the Division’s report. In the body of the report, the Division reached conclusions incompatible with such findings. The Division did acknowledge that “undoubtedly” approval of all applications “might have serious adverse consequences on the existing motor carrier services.” Next, after acknowledging the possibility of diversion, the Division disposed of this subject as follows: “With the exception of one carrier (Holloway), however, protestants have not shown that they would be seriously adversely affected44 [44 In this connection, it is noted that protestant United, one of the carriers the examiners indicated would be adversely affected, has been merged into a much larger carrier, Campbell, thereby rendering the issue as to the vulnerability of the former’s operations moot.] by such grants, nor does it appear that the operations of any existing carrier would be impaired to such an extent that they would be unable to render service to the public in the future. Liberty Trucking Co. Ext.— Lake Mills, Wis., Ill M.C.C. 423 (1970). Whereas the operations of Holloway (which transports specified commodities in a limited territory) may be seriously adversely affected, the gains to be derived by the shipping public in general far outweigh any adverse effect this carrier or any other protestant may experience. 114 M.C.C. at 611.” The Division also failed to consider the admitted fact that many witnesses failed to voice any complaint or criticism, and many acknowledged the availability of satisfactory service. (See Summary, pp. 166-8, 171-2, plaintiffs’ initial brief.) The Division found that the principal indications of dissatisfaction related to existing joint-line service. 114 M.C.C. at 601-2. No acknowledgment was made, however, of the fact that much of such criticism was directed specifically to joint-line service presently provided by Red Ball, Bowman and Johnson. (See Summary, pp. 169-71, plaintiffs’ initial brief.) The Examiners made extensive findings concerning practices followed by shippers that cause or contribute to slow service, such practices being beyond the control of the carriers. (See Summary, pp. 172-3, plaintiffs’ initial brief.) These facts were ignored by the Division. OTHER MATTERS Plaintiffs contend that they were denied due process as a result of the intervention of the Johnson shippers. As noted, this intervention was granted before protestants had an opportunity to object. After intervening, the Johnson shippers injected new issues, not presented to the Examiners. The shippers’ contentions were more political than judicial. They urged liberalization of the traditional regulatory requisites for certifications, stating that a change in Commission policy was favored by the Administration. The grant to Bowman, exceeding the scope of its application, was described in a Federal Register notice affording interested parties an opportunity to petition for reopening or reconsideration of that application. Several carriers, including ABF, filed timely petitions in response to the notice, based upon their interests in the Bowman grant, seeking reopening or reconsideration of the Division decision. These petitions pointed out that, while the application was pending, Bowman acquired extensive new authority, and the approved grant failed to contain any restriction preventing Bowman from performing service between points in this newly-acquired territory and points within its new grant. Since the original notice of the Bowman application specifically described its proposal to join its then existing authority with that sought, petitioners sought an opportunity to demonstrate the need for a modification or denial of the Bowman grant. These petitions were considered along with numerous petitions seeking reconsideration of the Division order. A total of 32 separate groups of petitions and replies thereto, some exceedingly comprehensive, were denied by a two-to-one vote of the same Division twelve working days after the last pleading was filed. (See Exhibit 5 to Complaint.) Unless restricted voluntarily or by order of the ICC, a carrier normally can tack newly granted authority with that which it already holds, or with that subsequently acquired. Bowman limited its intention to tack the authority sought in the present proceeding to its then existing authority by the use of the following language as published in the Federal Register of Thursday, August 19, 1965, by stating “ * * * with that authority previously granted * * * wherein applicant is authorized to serve points in * * * ” and named sixteen (16) states and the District of Columbia. The States of Illinois, Indiana and Ohio were not named in the Federal Register publication. The published language constitutes a specific limitation regarding tacking which did not give notice to the public of any intention to tack the authority sought in the present proceedings to authority subsequently acquired. Subsequent to the publishing of the “Notice,” Bowman acquired Alabama Highway Express which allowed Bowman to serve points in Indiana, Illinois and Ohio. The grant of the authority in the present proceeding by the Commission, Division I, did not contain the limitation against tacking of the authority acquired in the present proceeding. Certain carriers had protested the Bowman application, but withdrew their protest based upon restrictive amendments proposed by Bowman and accepted by the Commission and based upon the limitations of the ability to tack as published in the Federal Register. These carriers, including ABF, sought a reopening, a reconsideration or a denial of the Bowman application^ upon the republication required by the Commission because of the change in circumstances in which the Commission was granting more authority to Bowman than had originally been sought and for which notice had been given by the Federal Register publication. The ICC refused to reopen, reconsider or deny the Bowman application without hearing additional evidence based upon the allegations of the petitions filed subsequent to the proposed grant of authority to Bowman. CONCLUSIONS OF LAW 1. This court has jurisdiction and venue to review this action of the Interstate Commerce Commission. 49 U.S.C. §§ 17(9), 305(g)~(h), 28 U.S.C. §§ 1336(a), 1398, 2284, 2321-2325. 2. The limited scope of judicial review of the decisions of independent agencies is a well settled principle of administrative law. Generally, an order of such an agency will be sustained if it is within the agency’s statutory powers and is based on appropriate findings which in turn are supported by substantial evidence. If these criteria are met, the reviewing court will sustain the agency even though it might disagree with the agency’s conclusions or consider them contrary to the weight of the evidence. Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131; Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456; United States v. Pierce Auto Freight Lines, 327 U.S. 515, 536, 66 S.Ct. 687, 90 L.Ed. 821. In Consolo v. Federal Maritime Commission, at 383 U.S., at 620, 86 S.Ct., at 1026, the Supreme Court emphasized that “[substantial evidence] is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” This court has clearly stated this principle on a number of occasions. Willis Shaw Frozen Express, Inc. v. United States (1966) 256 F.Supp. 257, 264; Reddish v. United States (1960) 188 F.Supp. 160, affirmed sub nom. Interstate Commerce Commission v. J-T Transport Co., Inc., 368 U.S. 81, 82 S.Ct. 204, 7 L.Ed.2d 147. As this court stated in Patterson v. United States (1959) 178 F.Supp. 771, 774: “The Commission is the fact-finder, and the judicial function is exhausted when there is found to be a rational basis for the conclusions reached by the administrative body. Southern Kansas Greyhound Lines v. United States, D.C.W.D.Mo.1955, 134 F.Supp. 502.” 3. In determining whether there is a rational basis for the conclusions reached by the administrative body, or whether its decision is based on appropriate findings supported by substantial evidence, the reviewing court must follow the provisions of the Administrative Procedure Act, 5 U.S.C. § 706(2) (A). As stated in Columbia Shippers and Receivers Ass’n, Inc. v. United States (Del.1969) 301 F.Supp. 310, 319, “in addition to the ‘substantial evidence’ test generally applicable to this action,” the statute requires that the reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” (Emphasis added.) As recently stated in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 28 L.Ed.2d 136, section 706 of the Administrative Procedure Act sets forth “six separate standards.” Accord Eastern Central Motor Carriers Ass’n v. United States (D.C.1965) 239 F.Supp. 591, 594; Mitchell Bros. Truck Lines v. United States (Or.1963) 225 F.Supp. 755, 758, aff’d 378 U.S. 125, 84 S.Ct. 1657, 12 L.Ed.2d 744. See also, Campbell Sixty-Six Express, Inc. v. United States, (Mo. 1966) 258 F.Supp. 529; Nashua Motor Express, Inc. v. United States, (N.H.1964) 230 F.Supp. 646; Omaha Grain Exchange v. United States, (Neb.1961) 194 F.Supp. 929, 934; Stott v. United States, (N.Y.1958) 166 F.Supp. 851, 855; Youngblood Truck Lines, Inc. v. United States, (N.C.1963) 221 F.Supp. 809, 812, and Heavy-Specialized Carriers Conference v. United States, (Mo.1964) 231 F.Supp. 968, 970. 4. In Overton Park, supra, the court-pointed out that in determining whether an agency decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” the reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” 401 U.S., at 416, 91 S.Ct., at 823. The court cited L. Jaffe, Judicial Control of Administrative Action (1965). Professor Jaffe, with reference to “abuse of discretion,” states, on page 586 of his text:- “ * * * Broadly stated an abuse of discretion is an exercise of discretion in which a relevant consideration has been given an exaggerated, an ‘unreasonable’ weight at the expense of others. The ‘letter’ has been observed; the ‘spirit’ has been violated. Discretion implies a ‘balancing’; where t