Trans-Western Express, Ltd. v. Public Utilities Commission

877 P.2d 350, 18 Brief Times Rptr. 1222, 1994 Colo. LEXIS 531, 1994 WL 328563
CourtSupreme Court of Colorado
DecidedJuly 11, 1994
DocketNo. 93SA271
StatusPublished

This text of 877 P.2d 350 (Trans-Western Express, Ltd. v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trans-Western Express, Ltd. v. Public Utilities Commission, 877 P.2d 350, 18 Brief Times Rptr. 1222, 1994 Colo. LEXIS 531, 1994 WL 328563 (Colo. 1994).

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

Trans-Western Express, Ltd. (TWX) appeals the decision of the district court which upheld the ruling of the Public Utilities Commission of Colorado (PUC).1 The PUC denied TWX’s application for extension of its common-carrier authority. TWX asserts that the PUC applied the wrong standard of “public need” by finding that the testimony of a single shipper does not establish the requisite public need to amend a common-carrier’s certificate of public convenience and necessity. TWX also claims that the decision of the PUC was arbitrary and capricious, internally and externally inconsistent, and [352]*352without a rational basis in the record. We disagree and affirm the judgment of the district court.

I

TWX is a common carrier of goods that provides trucking service within the State of Colorado. One of TWX’s primary customers is Target Stores, Inc. (Target). TWX holds common-carrier authority pursuant to Certificate of Public Convenience and Necessity No. 205 & I (PUC No. 205) which allows TWX to operate between Target’s Pueblo distribution center and Target’s retail stores located within Colorado.2 PUC No. 205 states:

I. Transportation — on schedule — of
A. General Commodities
6. Between the facilities owned or controlled by Target Stores, Incorporated, located within a ten-mile radius of the intersection of 5th and Main Streets, Pueblo, Colorado, and between said points on the one hand, and on the other hand, the facilities owned or controlled by Target Stores, Incorporated, located within the State of Colorado;
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II. Transportation — on call and demand — of

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J. General Commodities
Between the facilities owned or controlled by Target Stores, Inc., located within a ten-mile radius of the intersection of 5th and Main Streets, Pueblo, Colorado, and between said points on the one hand, and on the other hand, all points within the State of Colorado.

PUC No. 205 also contains restrictions that prohibit TWX from shipping to the counties served by other carriers. TWX sought to strike Restriction A which provides:

RESTRICTIONS: This certificate is restricted as follows:
(A) Items (I) (A) (6) and (II) (J) are restricted against providing service into or out of points in the Counties of Boulder, El Paso, Phillips, Logan, Morgan, or Sedg-wick, State of Colorado.

Pursuant to common-carrier authority, Star Motor Freight Lines, Inc. (Star Motor) serves Target’s Boulder County retail outlet; HVH Transportation, Inc. (HVH) serves Target’s El Paso County retail distributor; and Platte Valley Freightways, Inc. (Platte Valley) has common-carrier authority in all other counties.3 Thus, PUC No. 205 limits TWX’s ability to serve all of Target’s retail outlets in Colorado.

Pi’ior to September 1991, Target decided to eliminate its use of multiple carriers. In order to improve its service and cut its costs, Target issued a request for proposals of all its common carriers for “just in time” transportation service. “Just in time” transportation service is service where carriers transport goods from a central warehouse to retail outlets as they are needed. Target sought the proposals to find a carrier that would provide an exclusive, specialized, and dedicated transportation service, moving all of Target’s commodities from its Pueblo distribution center to all eighteen Target retail outlets in the State of Colorado early each morning, just as'the commodities are needed, thereby eliminating the need for the retail outlets to maintain costly inventory.4 Target asserts that the reduced costs would be passed along to the customer in the foim of lower prices. In order to achieve the desired results of “just in time” service, a ninety-nine percent on-time delivery rate was required and, at the time Target sought a carrier to provide this specialized service, all the carri[353]*353ers had achieved better than ninety-nine percent on-time delivery.

On September 30, 1991, TWX filed an application seeking authorization to extend its operations under PUC No. 205 by removing Restriction A, which prohibits TWX from providing service into or out of Boulder, El Paso and other counties currently served by other earners. After the PUC published notice of the application, HVH, Platte Valley, and Star Motor filed a joint notice of intervention as a matter of right.5

On March 10 and 11, 1992, a hearing was held before an administrative law judge (ALJ) to consider whether the PUC should grant TWX’s application to remove Restriction A. The ALJ found that TWX did not establish the requisite public need for the proposed service and therefore recommended that the PUC enter an order denying TWX’s application. Specifically, the ALJ found that the existing carriers serving Boulder and El Paso counties were providing adequate service and that while Target “presented evidence of its preference for a tailored, dedicated, and specialized ‘just in time’ transportation service ... no evidence of the broader public need” was offered.

TWX filed exceptions to the ALJ’s recommended decision on October 13, 1992, and HVH, Platte Valley, and Star Motor responded to the exceptions. The PUC denied TWX’s exceptions and affirmed the recommended decision of the ALJ. Subsequently, TWX filed a petition in the district court to review the decision of the PUC. After the parties filed briefs and the court heard oral arguments, the district court entered an order affirming the PUC’s decision that TWX had not demonstrated a public need to remove Restriction A.

II

TWX contends that the ALJ, the PUC, and the district court applied the wrong standard for determining public need in this case, that an improper new rule of evidence was arbitrarily established, and that the PUC’s decision was not supported by the record. We disagree.

A

Common-carrier certificates of public convenience and necessity are governed by the doctrine of “regulated competition” pursuant to section 40-10-105(2), 17 C.R.S. (1993).6 See D & G Sanitation, Inc. v. Public Util. Comm’n, 185 Colo. 386, 388, 525 P.2d 455, 456 (1974) (applying the doctrine of “regulated competition”); Miller Bros., Inc. v. Public Util. Comm’n, 185 Colo. 414, 430, 525 P.2d 443, 451 (1974) (same); Red Ball Motor Freight, Inc. v. Public Util. Comm’n, 185 Colo. 438, 441, 525 P.2d 439, 440 (1974) (same). The doctrine of regulated competition requires the PUC to deny an application for common-carrier authority if granting the application would create “excessive” or “destructive” competition.7 See Morey v. Public Util. Comm’n, 629 P.2d 1061, 1066, 1068 n.

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Bluebook (online)
877 P.2d 350, 18 Brief Times Rptr. 1222, 1994 Colo. LEXIS 531, 1994 WL 328563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trans-western-express-ltd-v-public-utilities-commission-colo-1994.