The opinion of the court was delivered by: FLANNERY
This matter came before the court for hearing on the merits after briefing by the parties.
Previously, plaintiffs sought but were denied a temporary restraining order. See 381 F.Supp. 184 (D.D.C.1974). Many of the relevant facts are set forth in the denial of the temporary restraining order and will not be repeated here. The court has jurisdiction under 28 U.S.C. § 1336 to hear this appeal from the Interstate Commerce Commission (ICC) proceeding. Pursuant to 28 U.S.C. §§ 2325, 2284, a three-judge court was convened.
The plaintiffs, irregular-route motor common carriers engaged in interstate transportation of household goods, seek to enjoin the ICC order issued in Motor Common Carriers of Property, Routes and Service, Ex Parte No. 55, Feb. 25, 1974, otherwise known as Petition for the Elimination of Gateways by Rulemaking. Upon petition from motor carriers the ICC, after initial investigation, commenced a rule making proceeding for the purpose of altering long-standing Commission policy regarding tacking at gateways. For many years the ICC permitted, but did not compel irregular motor carriers holding two separate certificates of public convenience and necessity to tack or combine the two routes if the routes had at least one point in common. In 1961, in Motor Common Carriers of Property -- Routes and Service, 88 M.C.C. 415, 423-44 (1961) the Commission stated:
And the Commission later clarified the basis for the carriers' right to tack:
The right of a motor common carrier to provide a through service by combining two separate unrestricted irregular-route authorities at a point common to both was firmly established in Transport Corp. of Virginia Extension -- Maryland, 43 M.C.C. 716, 719. This right does not accrue because a need for a through service is established. Rather, it exists because of the fact that if two separate operating authorities were held by different carriers both could participate in an interline movement; hence, if the separate unrestricted authorities are held by the same carrier it may render the same through service as the two carriers could perform by interline.
Warren Transport, Inc., Extension -- Dubuque to North Dakota, 98 M.C.C. 761, 763 (1965). The Commission, while permitting tacking of certificates has held to the belief that in appropriate circumstances, it may, pursuant to 49 U.S.C. § 308, impose restrictions against tacking. E.g., Warren Transport, Inc., Extension -- Dubuque to North Dakota, supra at 763. Indeed, in Transport Corp. of Virginia Extension -- Maryland, 43 M.C.C. 716, 719 (1944), the Commission, while permitting tacking in that case, stated that such decision
should not be understood . . . as precluding the imposition by us in certificates of reasonable conditions against the rendition of through service in cases in which such conditions may be warranted by the evidence presented. Such power is specifically granted in section 208(a) (49 U.S.C. § 308) of the act, which authorizes us to impose in certificates such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, including terms, conditions, and limitations as to the extension of the route or routes of the carrier.
After years of permitting tacking, the ICC in 1973, in light of present-day problems of economy, environment, and the energy emergency, began to scrutinize the problem of permitting tacking in cases which resulted in undue circuity. The ICC tentatively decided that where the route via the gateway was considerably longer than the direct route motor carriers should be required to carry by the direct route, hopefully conserving much fuel in the process. The ICC was faced, however, with the problem of how to implement a change in its tacking policy and how to gain more information to determine finally that a change was in the public convenience and necessity. Relying upon its authority under 49 U.S.C. § 308(a), the ICC determined that:
The most, and perhaps only, feasible manner in which to accomplish the requisite authorization of such necessary services is by means of a general rule of construction applicable to the carriers' outstanding certificates, based upon a finding of public convenience and necessity on a national scale and containing appropriate safeguards against the conduct of operations which result, or which are reasonably certain to result, in destructive competition.
The Commission was relying in large part upon the decision in Removal of Truckload Lot Restrictions, 106 M.C.C. 455 (1968), aff'd, Regular Common Carrier Conference v. United States, 307 F.Supp. 941 (D.D.C.1969), for its authority to proceed under 49 U.S.C. § 308(a). The Commission there had stated:
In affirming the decision the District Court stated:
Contrary to plaintiffs' argument, no congressional mandate in the Interstate Commerce Act explicitly requires adjudication where a large number of certificates are affected at one stroke. Indeed, as the Commission noted . . ., Congress recognized that the Commission should be able to impose 'such reasonable terms, conditions, and limitations' on certificates as the public convenience and necessity may from time to time require and expressly provided for such eventuality. 49 U.S.C. § 308(a) (1964) . . .. The Commission should not be precluded from a periodic review on a national scale of certificates it has ...