Gray Line Tours v. Public Service Commission

626 P.2d 263, 97 Nev. 200, 1981 Nev. LEXIS 480
CourtNevada Supreme Court
DecidedApril 8, 1981
DocketNo. 11214
StatusPublished
Cited by4 cases

This text of 626 P.2d 263 (Gray Line Tours v. Public Service Commission) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray Line Tours v. Public Service Commission, 626 P.2d 263, 97 Nev. 200, 1981 Nev. LEXIS 480 (Neb. 1981).

Opinion

[201]*201OPINION

Per Curiam:

In 1969, 1971 and 1972, Respondent Las Vegas-TonopahReno Stageline, Inc. (LTR) filed applications with the Nevada Public Service Commission (PSC) to expand its services. One of the requested expansions was a proposal to carry passengers to and from McCarran Airport in competition with appellant Gray Line Tours of Southern Nevada (Grayline).

Public hearings on the applications were held by the PSC in September and November of 1972 during which Grayline was given full opportunity to be heard and present evidence as to why LTR’s application should be denied. Four years later, on September 30, 1976, an opinion and compliance order were issued by the PSC granting LTR a certificate of public convenience and necessity to operate to and from McCarran Airport.

In its accompanying opinion the PSC stated that although LTR had circumvented the law by providing unauthorized service, “the public has had the benefit of such operations and should not be deprived of this needed service.” The PSC also found, under NRS 706.391, that LTR was “fit, willing, and able” to perform the requested services, that extended service would be in the public interest and that “protestants (including Grayline) will not be unreasonably affected by the authority granted herein.”

Grayline sought judicial review of the PSC ruling in a complaint filed October 22, 1976 urging that the PSC order and certificate be set aside. The complaint raises many issues, three of which have been presented in this appeal.

These issues are:
1. Whether the PSC must find existing services to be inadequate before it can authorize competing service.
2. Whether the PSC order, which was issued in 1976 and based on evidence of conditions presented in 1972, was founded on any relevant evidence.
3. Whether Grayline’s due process rights were violated solely on the basis of the PSC’s having taken four years to issue its decision.

1. Inadequacy of Existing Service as a Prerequisite to Granting a Certificate. There are no Nevada decisions on this point. NRS 706.391(2) states:

Before granting a certificate of public convenience and necessity to an applicant, the commission shall take into consideration:
(a) Other authorized transportation facilities in the territory for which a certificate is sought;
[202]*202(b) The public necessity and convenience to be accorded by the service offered by such applicant; and
(c) Whether the applicant is fit, willing and able to perform the services . . . and whether the proposed operation will be consistent with the legislative policy set forth in NRS 706.151.

The portion of NRS 706.151 which is relevant to this issue states that it is the purpose of the Legislature to promote adequate and efficient service without unfair or destructive competitive practices. NRS 706.151(l)(c).

Grayline argues that a showing of the inadequacy of existing service is a prerequisite to the granting of a certificate. The applicable statutes, quoted above, do not support this position. The PSC correctly considered the impact that authorizing LTR to serve the airport would have and found that Grayline would not be unreasonably affected. This is all that it was required by law to do.

The language of NRS 706.151(l)(c) is almost identical to that contained in the National Transportation Policy which prefaces the Interstate Commerce Act, 49 USC. In Trans-American Van Service, Inc. v. U.S., 421 F.Supp. 308 at 320-321 (1976), the Court stated:

A showing of inadequacy of existing service is neither indispensible [sic] for, nor a condition precedent to, a grant of authority (citations omitted). It is to be given no more weight than any other element (citation). To hold otherwise would be to vest the carriers with a property right to protection from competition, a notion which has been specifically rejected.

In arguing that, as a previously authorized carrier, it should have been entitled to a “preferential opportunity” to satisfy existing service requirements, Grayline relies on three PSC decisions. Two of these, CPC A-2059 and CPC A-2052, were decided in 1967, and one, Ray & Ross Transport, was decided in 1979, three years after this case. CPC A-2059 contains a gratuitous statement that “reasonable service is all that can be required,” but the case was decided on other grounds. CPC A-2052 reiterates this statement and continues, “the existence of such reasonable service can preclude a satisfactory showing of public convenience and necessity.”

In the most recent PSC case, Ray & Ross Transport, the Commission found that “Applicant has failed to carry its burden of proving that public convenience and necessity would be [203]*203served by authorizing applicant to provide tours to areas already covered.” The Commission continued, however, that it had also considered the other factors contained in NRS 706.391. In Ray & Ross Transport, LTR and Grayline successfully intervened, and the applicant was denied a certificate, not because it was found that certification of the applicant would result in destructive competition, but because the Commission was not convinced of his “fitness and ability” to perform the requested services.

None of the above three cases indicates that the PSC has unequivocally interpreted NRS 7Q6.391(2) as requiring that public convenience and necessity cannot be shown if an existing carrier is providing reasonable service. In any case, administrative agencies are not bound by the doctrine of stare decisis, Northern Pacific Railway Co. v. U.S., 41 F.Supp. 439 (D.Minn. 1941).

Grayline admits that the PSC is not bound by the doctrine of stare decisis, but argues that under NRS 233B.1251 the PSC was required to give an explanation for its “change in policy.” In the first place, as stated above, it is not clear that the decision in this case was, in fact, a change in policy. Further, although the findings and conclusions of the PSC are not separately stated, they are quite thorough and are preceded by a nineteen page review of testimony and discussion which adequately displays the Commission’s reasoning “in sufficient detail to permit judicial review.” See State Department of Commerce v. Hyt, 96 Nev.

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Cite This Page — Counsel Stack

Bluebook (online)
626 P.2d 263, 97 Nev. 200, 1981 Nev. LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-line-tours-v-public-service-commission-nev-1981.