North Central Airlines, Inc. v. Civil Aeronautics Board

281 F.2d 18
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 12, 1960
DocketNo. 14947
StatusPublished
Cited by1 cases

This text of 281 F.2d 18 (North Central Airlines, Inc. v. Civil Aeronautics Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Central Airlines, Inc. v. Civil Aeronautics Board, 281 F.2d 18 (D.C. Cir. 1960).

Opinion

Mr. Justice REED,

sitting by designation.

The Civil Aeronautics Board issued Board Order E-13254, December 8, 1958, in its Seven States Area Investigation. On April 24, 1959, the Board’s Order E~ 13787 denied petitioner’s request for reconsideration and this appeal followed. No question as to the right of review arises.1

The Seven States Area Investigation, covering North and South Dakota, Minnesota, Iowa, Nebraska, Wisconsin and Illinois, followed various applications of different companies for routes or segments of routes in the seven states area described above. Interested states and localities were also parties. The applications of the North Central Airlines involved in this appeal, together with those of numerous other companies, were consolidated so that the CAB would have an “opportunity to review the local air service pattern in the area covered by the states involved and develop a sound pat[20]*20tern of service to meet the needs of the entire area.” 2

One of the routes included was No. 86, previously certified for local or feeder service by the CAB to North Central. As a result of the investigation an amended certificate for Route 86 was issued to North Central February 13, 1959. The amendment directed service by Route 86 to four new cities — Ashland, Wisconsin; Rockford, Illinois; and Marshfield and Appleton, Wisconsin. “Two of these cities are between the termini of existing segments3 and call for minor diversions from the geographical lines theretofore being flown by petitioner. A new segment between the Twin Cities and Milwaukee was authorized to serve Marshfield and Appleton. That segment serves Eau Claire, Wisconsin, which also was served by planes on segment five between Chicago and the Twin Cities. This new segment is in the heart of other segments of North Central’s Route 86 serving the area between Chicago and Milwaukee on the East and the Twin Cities on the West.4 The additional miles of flight required by the amendment to the certificate are minor.

These services to the four cities were required by the CAB under the authority of 49 U.S.C.A. § 481(h) of the Civil Aeronautics Act of 1938, reading as follows:

“(h) The Board, upon petition or complaint or upon its own initiative, after notice and hearing, may alter, amend, modify, or suspend any such certificate, in whole or in part, if the public convenience and necessity so require, or may revoke any such certificate, in whole or in part, for intentional failure to comply with any provision of this subchapter or any order, rule, or regulation issued hereunder or any term, condition, or limitation of such certificate: *- * *»

The Federal Aviation Act of 1958 enacted during this litigation became a law August 23, 1958, 72 Stat. 731. There was no change that affects this appeal. See § 401(g). 49 U.S.C.A. § 1371(g) (1958).

Petitioner’s first objection is that it could not be properly said that it was “willing” to serve these cities within the meaning of the Civil Aeronautics Act of 1938, which reads as follows:

“The Board shall issue a certificate authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly, and to conform to the provisions of this chapter and the rules, regulations, and requirements of the Board hereunder, and that such transportation is required by the public convenience and necessity; otherwise such application shall be denied.” 5

Petitioner’s contention is that under these two quoted provisions of the acts an extension of services cannot be made unless the holder of the certificate is “willing” to serve the new points. This position petitioner asserts follows from the fact that neither the word “extend” nor any language carrying that connotation appears in the above section (h) of the Civil Aeronautics Act of 1938 or the Federal Aviation Act of 1958. It is argued that this power was omitted deliberately in both CAB acts, because [21]*21prior acts requiring certificates of convenience and necessity for public operation had contained authority omitted here to extend services. Transportation Act of 1920, 41 Stat. 478, § 402(21); 6 Communications Act of 1934, 47 U.S.C.A. § 214(d); Federal Power Act of 1920, 16 U.S.C.A. § 824f; Motor Carrier Act of 1935, 49 U.S.C.A. § 308(a).

There are, of course, difficulties in determining just how far an administrative agency can require changes in services of commercial aviation lines, without the line’s consent, beyond the routes or cities originally applied for by and certificated to the operator. If the extension requirements called for service outside the prior areas, “willingness” might well be necessary as in an application under § 481(d) (1), supra. We have concluded, however, that we need not face that problem in this case. It has been before the CAB over the years and the Board has consistently followed its rule laid down in Panagra Terminal Investigation (1944), 4 C.A.B. 670. Referring to § 401(h), supra, of the Civil Aeronautics Act, the Board said;

“We are of the opinion that this section of the Act does authorize the Board to add new points or services to the certificate of a carrier on the Board’s own initiative and without an application by, and the consent of, the carrier; but this authority does not include the addition of new service which would be so extensive as to amount to a new air transportation route, or of such a kind as to substantially change the character of a carrier’s system.” P. 673.7

We do not need to consider whether the change in route here required an expression of willingness because we conclude that there was an expression and finding of willingness by petitioner to accept the CAB changes in its routes.

On July 16, 1954, North Central sought from the CAB a permanent certificate of public convenience and necessity for its route 86 whose various segments passed near the four cities in question. After listing the various terminal points of its flights, the application added “4. The applicant requests authority to serve any other city or cities in any manner whatsoever in any route pattern which the Board considers in the public interest”. This was used by the Board to support the right of Central to consideration for an Omaha-Denver route.8 The Board had previously held over a competitor’s objection in the Southeastern States case, 8 C.A.B. 716, 719, that similar language justified an award of a certificate of convenience and necessity where the award differed markedly from the application.9

[22]*22On January 24, 1956, North Central requested a consolidation of its applications into the present Seven States Area Case and repeated its willingness to serve “any city on any route or any combination of routes which the Board considers serves the public convenience and necessity.” Again, when during the hearing a question arose as to the willingness of North Central to serve cities in Wisconsin which it had not applied for, it answered through its counsel, “Yes, we would be willing to serve those cities, and I have advised Mr. Bowers that we would serve them if the Board certificated it.” Again, when objecting to the examiner’s report, North Central argued thus:

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