It does not appear to the satisfaction of this court that the Commission's interpretation is erroneous. The language used in plaintiff's certificate MC 17006 and permit No. MC 3582 defining its radial authority is not unusual or complex in the sense that it does not conform to the general phraseology used by the Commission over many years to fix and identify radial base points and places 'on the one hand' and radial destination points and places 'on the other.' The grant of authority may be complex by reason of the extent and varied pattern of operations authorized. But it does not follow from the complexity of the operation pattern that the language used is necessarily ambiguous, particularly so when it is couched in descriptive terms and pattern of phraseology which, by contemporaneous use and construction over many years, has come to have a commonly understood meaning for purposes of defining grants of authority to interstate carriers.
Plaintiff contends in the alternative that if its operating authority is clearly defined by its certificate and permit, as the Commission holds it to be, then it is entitled to reopen the 'grandfather' proceedings and have its grant of authority revised to embrace the 'grandfather rights' which it alleges it should have had. As noted, above the last petition of plaintiff filed May 4, 1962 sets forth in detail the facts and argument upon which plaintiff relied in support of its contention that its operating authority should be enlarged. The order of the Commission dated September 4, 1962 reflects consideration thereof with a finding that there was 'no sufficient cause' shown for the relief sought by plaintiff. This conclusion reached by the Commission in the light of the facts before it cannot be classified as arbitrary and capricious and an abuse of discretion.
The mere fact that plaintiff had engaged in operations in interstate transportation prior to June 1, 1935 and after that date between certain points of origin and destination, or within certain areas, would not of itself entitle plaintiff to receive, as a matter of right, a certificate issued pursuant to Section 206(a) of the Act (49 U.S.C.A. § 306) embracing all of the same points and areas. Plaintiff was only entitled to have a certificate of operating authority which assured a substantial parity between future operations and prior 'bona fide' operations. Alton R.R. Co. v. United States, 315 U.S. 15, 62 S. Ct. 432, 86 L. Ed. 586 (1942); United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 62 S. Ct. 722, 86 L. Ed. 971 (1942); Howard Hall Co., Inc. v. United States, 315 U.S. 495, 62 S. Ct. 732, 86 L. Ed. 986 (1942); McDonald v. Thompson, 305 U.S. 263, 59 S. Ct. 176, 83 L. Ed. 164 (1938). In the case of United States v. Carolina Freight Carriers Corp., supra, the Supreme Court stated:
'We think the Commission was justified in the restrictions which it placed on the geographical scope of appellee's operations. Sec. 206(a) of the Act authorizes the Commission to issue a certificate without a showing of public convenience and necessity if the carrier or its predecessor in interest was 'in bona fide operation as a common carrier by motor vehicle on June 1, 1935, over the route or routes or within the territory for which application is made and has so operated since that time'. Sec. 208(a) requires that the certificate specify 'the routes over which, the fixed termini, if any, between which, and the intermediate and off-route points, if any, at which, and in case of operations not over specified routes or between fixed termini, the territory within which, the motor carrier is authorized to operate.' It is clear from these provisions that the power of the Commission to authorize future operations within a designated 'territory', rather than over specified routes or between fixed termini, fits the peculiar requirements of irregular route operators such as appellee. Authority to operate within a specified 'territory' may include permission to service all points in that area. On the other hand it may be restricted to designated points therein. Or as in the instant case, it may extend to all points in a part of that area and to selected localities in another part. The precise delineation of the area or the specification of localities which may be serviced has been entrusted by the Congress to the Commission. Alton R. Co. v. United States (ante), 315 U.S. 15, (62 S. Ct. 432, 86 L. Ed. 586). The Act provides the test of 'bona fide operation.' That standard carries the connotation of substantiality. It also makes clear that a holding out to serve a specified area is not alone sufficient. It is 'actual rather than potential or simulated service' which is required. McDonald v. Thompson, 305 U.S. 263, 266 (59 S. Ct. 176, 178, 83 L. Ed. 164). Substantial, as distinguished from incidental, sporadic, or infrequent, service is required. Substantial service actually rendered may have been confined to narrow limits. Loving v. United States, D.C., 32 F.Supp. 464, affirmed 310 U.S. 609 (60 S. Ct. 898, 84 L. Ed. 1387). * * * 'As we indicated in Alton R. Co. v. United States, supra, the purpose of the 'grandfather clause' was to assure those to whom Congress had extended its benefits a 'substantial parity between future operations and prior bona fide operations'. * * * We cannot say that that was denied in this case, if the limitations on the territorial scope of the operations are alone considered. While service to and from all points in the States included in the application was not allowed, the reduction was determined by the standard of substantiality of service. And consideration was given to the characteristics of irregular route carriers and their role in the national transportation system. That involved a weighing of specific evidence in light of the complexities of this transportation service. The judgment required is highly expert. Only where the error is patent may we say that the Commission transgressed. That is not this case.'
The granting of a petition for rehearing on application made more than 30 days from the date of service of a decision or order of the Commission is not a matter of right. The application for rehearing is addressed to the discretion of the Commission and may be denied in the absence of 'good cause shown'
to the satisfaction of the Commission. Only where there is a clear abuse of discretion can relief be had. Atchison Topeka & Santa Fe Ry. Co. v. United States, supra; I.C.C. v. City of Jersey City, supra; Hughes Transport, Inc. v. United States, 115 F.Supp. 1, (D.C.E.D.S.C.1953); Northern Valley Transfer v. I.C.C., 192 F.Supp. 600 (D.C.N.J.1961). In the latter case the court states at page 606:
'Administrative rehearings are not matters of right but of pleas to discretion. The discretion to be invoked is that of the body making the order, not that of a reviewing body. Interstate Commerce Commission v. City of Jersey City, 1944, 322 U.S. 503, 64 S. Ct. 1129, 1134, 88 L. Ed. 1420. At page 514 of the opinion in that case, at page 1134 of 64 S. Ct., we are reminded that, if litigants were entitled to rehearings as a matter of law after the order of the administrative body upon the record before the examiner, because of new circumstances arising or facts discovered between the examiner's report and the commission's hearing on exceptions thereto, 'there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening."
It cannot be held here that the Commission's denial of plaintiff's application to reopen the 'grandfather' proceedings and waive Rules 1.101(e) and 1.102 constituted an abuse of discretion.
The Commission had broad discretion in the first instance to determine and delineate 'grandfather' rights, Howard Hall Co. v. United States, supra. There is nothing in the record before us which would indicate an abuse of that discretion whereby plaintiff was unlawfully deprived of 'grandfather rights' which it should have had. In the case of Howard Hall Co. v. United States, supra, the Supreme Court stated:
'The precise geographical pattern for future operations is the product of an expert judgment based on the substantiality of the evidence as to prior operations, the characteristics of the particular type of carrier, the capacity or ability of the applicant to render the service, and the like. * * *'
It is not difficult to conceive the chaos which would develop if the door were opened for the revision of certificates issued during the year 1943 and prior thereto for the purpose of enlarging or disminishing 'grandfather rights' and it was well within the sound discretion of the Commission to refuse to waive application of Rules 1.101(e) and 1.102. Accordingly, we find that there was warrant in law and fact for the action taken by the Commission.
Moreover, it may be noted that if the operating authority which plaintiff alleges it is justly entitled to have can be shown to be consistent with public convenience or necessity, there is nothing that would preclude plaintiff from obtaining such authority by application to the Commission pursuant to Section 207(a) of the Act, 49 U.S.C.A. § 307. Crescent Express Lines, Inc. v. United States, 320 U.S. 401, 64 S. Ct. 167, 88 L. Ed. 127 (1943). If it cannot be shown that enlarged operating authority were consistent with public interest it would be contrary to sound public policy in the field of interstate transportation to permit plaintiff to come at this late date and obtain an enlargement of its 'grandfather' rights.
The order of the Commission is affirmed.