avoid such results by appropriate regulations.
The cited case, for the first time, extended to members of the listening public, standing to participate in Commission proceedings. Prior thereto, the Commission limited standing to cases involving economic injury and electrical interference. It is significant to note that in the cited case, unlike S. & S., the petition urging a denial of the WLBT application and for leave to intervene was timely filed.
No one disputes the right and standing of S. & S. in this Court to challenge the action taken by the Commission in this case. But, we are being asked to do much more. S. & S. argues that the grant of authority to Whitten was in violation of law (the reference here being to 5 U.S.C.A. § 1009(e) and 49 U.S.C.A. § 307), in that there was no shipper support for the authority granted, no proof of a public need for the service, no legally sufficient findings of fact, no substantial evidence in the record as a whole to support any fact findings, and no rational basis for the conclusions reached by the Commission.
It is obvious that what we are being asked to do here is to evaluate the merits of the S. & S. claim, and also to pass upon the sufficiency of a new ground not urged before the Commission, namely, that the authority sought by Whitten, and supported by Ensign-Bickford was, in effect, contract, and not common, carriage.
And in the process of accommodating S. & S. in this regard we are also being asked to completely ignore and brush aside the Commission's General and Special Rules of Practice of many years standing relating to the handling of application proceedings under modified procedure, the reasonable time limitations fixed by the Rules for the filing of protests to such applications, and to condone and excuse the failure of S. & S., for reasons that are patently insufficient, to comply with said Rules. This we are unwilling to do.
S. & S. is a certificated carrier of many years experience. It is no stranger to the rules and regulations of the Commission. See Smith & Solomon Trucking Co. v. United States, 120 F. Supp. 277 (D.N.J.1954). Under the circumstances of this case, S. & S. waited an unconscionably long period of time (March 25 to July 1) before attempting to intervene in the Whitten application proceedings. And when it did make the move, S. & S. sought to excuse and justify its failure to file a timely protest by alleging grounds (radial as against non-radial authority and tacking) that were subsequently abandoned at the oral argument in this Court as being without merit. The remaining reason assigned by S. & S. for not filing a timely protest was, as already noted, a desire on the part of S. & S. to "avoid burdening the Commission", and not wanting to appear "quarrelsome". While this latter reason for failure to act timely may be altruistic, it can hardly qualify as a legally sufficient reason to excuse inaction.
It should be noted that prior to the making of the order of May 20, there had been a full compliance by Whitten with the provisions of the Commission's order of May 6, 1965. This is the order that directed the handling of the Whitten application under modified procedure, and the filing of verified statements in support of the application on or before a fixed date. As of May 20, 1965, no protests to the grant of common carrier authority as requested by Whitten had been filed with the Commission by S. & S. or any other interested party. The time to do so had long since expired. We have already noted the substance of the sworn statements submitted in support of the Whitten application. On the basis of the record, as then constituted, the Commission, by Operating Rights Board No. 1, found that the evidence before it amply warranted the grant of authority requested, and proceeded to make the findings that are set forth in its order of May 20.
There is no basis in fact for the further claim made by S. & S. that the Commission arbitrarily refused to consider the reasons advanced by Tri-State in opposition to the Whitten application, and the allegations made by Ensign-Bickford that due to changed conditions there was no longer any need for Whitten's services. There was no refusal, arbitrary or otherwise, on the part of the Commission to consider the allegations of the pleadings filed by Tri-State and Ensign-Bickford. These pleadings were withdrawn shortly after they had been filed. They simply never became a part of the record considered by the Commission in this case. The Commission's order of October 19, 1965, granted the withdrawals requested by Tri-State and Ensign-Bickford in July, 1965.
As already pointed out, the record considered by the Commission, and which formed the basis for the grant of authority to Whitten, consisted in the main of the sworn statements of Whitten and Ensign-Bickford, and this is the record that remained in the case. And we might add that our own independent examination of that record satisfies us that there was substantial evidence to support the findings made by the order of May 20.
It will be recalled that by its final order of January 14, 1966, the Commission denied S. & S. relief not only because no satisfactory reason was given for its failure to file a timely protest, but also because no good cause was shown to justify a reconsideration of the May 20 order. In the final analysis, it is this disposition of the case made by the Commission that we are called upon to review, and we have no hesitancy, apart from any concessions and admissions made by S. & S., in finding that the Commission, in light of the record before it, and for the reasons set forth in its order of January 14, 1966, was more than justified in denying the S. & S. petition for intervention and in rejecting the tendered petition for reconsideration.
Upon a review of the entire record in this case we are satisfied that the action of the Commission must be affirmed and the S. & S. complaint dismissed. Since our findings of fact and conclusions of law fully appear in this opinion, there is no need for repeating them by filing separate findings of fact and conclusions of law.
Counsel for the Commission will please submit an appropriate order.