Continental Air Lines, Inc. v. Civil Aeronautics Board
Opinion of the Court
Opinion for the Court filed by Circuit Judge Leventhal.
Continental Air Lines, Inc. petitions for review of two orders of the Civil Aeronautics Board (CAB) entered in the Board’s Additional Service to San Diego Case. The challenged orders — Order 72-12 — 29, December 8, 1972, and Order 74— 5 — 17, May 3, 1974 — rejected the recommendations of the Administrative Law Judge (ALJ) that competitive nonstop authority be certificated between San Diego and Denver.
Petitioner contends that the Board’s order should be set aside on the ground that the CAB “failed to give adequate weight to the statutory mandate favoring competition” and “failed to engage in reasoned decision-making.”
We find that, as a general matter, § 102 of the Federal Aviation Act requires the Board to foster competition as a means of enhancing the development and improvement of air transportation service on routes generating sufficient traffic to support competing carriers.
I. Background
We begin with a summary of the seven years of administrative proceedings culminating in the orders under review.
The challenged orders are the last of a series of CAB rulings entered in the Additional Service to San Diego Case. That proceeding arose out of an application filed by United Air Lines on January 12, 1967, requesting permission to provide nonstop service in several San Diego markets.
Following the submission of briefs by numerous carriers and local groups and three days of hearings, the ALJ issued his initial decision on September 4, 1969. The ALJ recommended that competitive nonstop authority be authorized in all four markets under consideration. With regard to the San Diego-Denver market, he adopted the Bureau of Operating Rights’ forecast that there would be “not less than 100,335 passengers in 1970.” Based on this “conservative” estimate he found “ample traffic to support two carriers on an economic basis without regard to the support of through traffic flowing over the route.”
The CAB exercised its right of discretionary review of the ALJ’s initial decision, issuing its opinion on April 9, 1970.
The CAB, by order of June 5, 1970, deferred action on the petitions to reconsider certification of a second nonstop carrier between San Diego and Denver. In its Supplemental Opinion and Order on Reconsideration of March 23, 1971, the Board, by an identical 3 — 2 vote, reaffirmed its previous denial of competitive service. The majority conceded that the San Diego-Denver market “maintained a healthy growth rate in calendar year 1968,” but argued that 1969 traffic data demonstrated that “the market is by no means an exception to the nationwide slowdown.”
The remand proceeding culminated in a 92-page Supplemental Initial Decision issued on March 20, 1972. The decision found a second nonstop carrier warranted by the size of the market in the 1972 and 1973 forecast years, the serious deficiencies and omissions in Western’s service, and Western’s ability “to achieve a substantial operating profit” in each of the forecast years in competition with another nonstop carrier.
The Board, 3 — 2, again reversed the ALJ and declined to authorize competitive nonstop service. The majority members expressed concern that, “during a period of lagging traffic growth and retrenchment within the industry, and during the subsequent period of recovery before an adequate upward trend has been assured,” the agency “must be more than usually careful to avoid impeding the industry’s opportunities for full recovery.”
Continental’s detailed petition for reconsideration took issue inter alia with the Board’s adjustments to the ALJ’s traffic forecast. In particular, it questioned the majority members’ reliance on experience during recession years to support its forecast of a 3 percent growth rate for 1972 and 1973, in view of the
On May 3, 1974, fifteen months after the opinion following the remand, the Board issued an Opinion and Order on Reconsideration reaffirming, by a 2 — 1 vote, its denial of a competitive nonstop certification. This final opinion in these extended proceedings reiterates the Board’s “policy of caution” and expresses its “resolve to avoid making unnecessary awards of competitive authority on routes which are adequately served.
The dissenting member emphasized that traffic data indicated that the ALJ’s 1973 forecasts “were on sound ground, indeed if anything conservative” and that there would likely be “well over 150,000 annual passengers” for fiscal 1975, the earliest possible first year of competitive operations.
On June 25, 1974, Continental filed a petition for review of the Board’s 1972 order and its 1974 order on reconsideration.
II. Competition and the Public Interest Standard of the Federal Aviation Act
Continental urges that the challenged orders must be set aside in part because the Board failed to give adequate weight to the governing statute’s mandate favoring competition.
“Competition to the extent necessary” is one of the six public interest factors set forth in § 102 of the Federal Avia-, tion Act to guide the CAB “[i]n the exercise and performance of its powers and duties.”
Congress first established a comprehensive system for regulation of air transportation through the Civil Aeronautics Act of 1938.
[This] is not to say that any line may be “frozen” nor that any line may be perpetuated, nor that any monopoly over any terrain may be established to the exclusion of the necessity which the public may present.52
Other speakers likewise evinced a clear intent to protect against the evils of monopoly. Senator Borah, for example, stated: “I have no doubt of the intent of the framers of this proposed legislation to inhibit or prohibit monopoly. . . . ”
The central point is that this was one of an emerging group of statutes that did not regulate the so-called “natural monopolies” that identified conventional public utility regulation, but instead called for “regulated competition,” achieving the benefits of competition without the evils of unrestrained entry or under-cost rate wars.
It is significant that Congress, addressing itself to the air transport industry, deliberately fashioned this 1938 law so as to identify competition in express language as a key element of the public interest. During the Senate debate it was emphasized that both of the 1938 bills — the McCarran bill and the Administration substitute — altered the general declaration of policy contained in earlier bills to take “explicit recognition of the importance of competition to the extent necessary to assure the sound development of air transport.”
Numerous early CAB opinions provide insight into the intended role of competition in the new regulatory scheme. In one of its first decisions the Board stated: “Reference to both the legislative history and to the text of the act demonstrates the congressional intent to safeguard an industry of vital importance to the commercial and defense interests of the Nation against the evils of unrestrained competition on the one hand, and the consequences of monopolistic control on the other.”
While no convenient formula of general applicability may be available as a substitute for the Board’s discretionary judgment it would seem to be a sound principle that, since competition in itself presents an incentive to improved service and technological development, there would be a strong, although not conclusive, presumption in favor of competition on any route which offered sufficient traffic to support competing services without unreasonable increase of total operating cost.59
And it further explained in the Hawaiian Case :
The greatest gain from competition . is the stimulus to devise and experiment with new operating techniques and new equipment, to develop new means of acquiring and promoting business, including the rendering of better service to the customer and to the Nation . . . . Competition invites comparison as to equipment, costs, personnel, methods of operation, solicitation of traffic, all of which tend to assure the development of an air transportation system as contemplated by the Act.60
The legislative history and the early CAB decisions indicate that there is no presumption in favor of competition per se because competition may prove uneconomical and destructive of the healthy development of the industry if the relevant market is too small to support competing carriers. But when sufficient traffic exists to support competition, certification of competing carriers is mandated by the Act as providing the best means of effectuating the other public interest goals contained in § 102.
We place substantial reliance on this view of the role of competition both because of the particular respect due a “contemporaneous construction of
III. Lack of Substantial Evidence to Support Rejection of Competition
The post-remand orders under review in this case set forth two justifications for rejecting the ALJ’s recommendation that competitive nonstop service be certificated for the San Diego-Denver market — maintenance of the economic health of the industry and the fuel shortage. Although a comprehensive analysis would pinpoint a number of shortcomings in the CAB’s opinions, we find that a focused examination of the evidence supporting these two core rationales is entirely sufficient to demonstrate the lack of substantial evidence to underpin the Board’s rejection of competition.
A. Promotion of Sound Economic Conditions
In its initial orders culminating in a remand for further proceedings on the issue of competitive nonstop service, the Board concentrated on the economic threat to Western posed by authorization of a competing carrier. Although the ALJ had found that the market would be large enough to support competition in 1970, the initial forecast year, the Board concluded that the projection was too optimistic “[i]n view of the recent lag in nationwide traffic growth” and credited Western’s “gloomy forecast” of “a sizeable operating loss if competitive nonstop service is instituted.”
Significantly, by the time of the last CAB order in May, 1974, the Board had abandoned its reliance on the threat of competition to the profitability of Western’s San Diego-Denver service. The ALJ and the CAB’s Bureau of Operating Rights again found that there would be substantial growth in the market in both the 1972 and 1973 forecast years and projected that both Western and Continental would achieve sizeable profits in each of those years.
The CAB argues that its analysis of traffic projections and balancing of public interest factors involve a “specialized task” that is “within the Board’s special province” and that the court should defer to the agency’s expertise in these technical matters.
We are not required to rule on this contention, to evaluate the strength of these danger signals or to consider whether they undercut the deference normally accorded to agency analyses of technical traffic matters. These matters have been obviated by the Board’s May, 1974 Opinion and Order on Reconsideration, which concedes the need for adjustment of its forecast and states that competition would be profitable.
But then the Board brushed these developments aside, stating that its “original decision did not turn on profitability alone. . . . ”
The only remaining factor mentioned in the CAB’s prior decision in this matter was the financial condition of the industry as a whole. But that consideration had been relied upon solely in terms of justifying a “more than usually careful” approach to evaluating the competition question in the San Diego-Denver market. That approach may have validity, if not carried to extremes, for it still leads up to an ultimate decision focused on the subject market. But we are unable to discern on what basis the Board can glean any support from this factor of general conditions once it has recognized, as it now apparently has, that the particular market will sustain competition and still be profitable. If an air transport market is substantial and thriving, we do not see how the fact that other markets are over-served, can justify leaving this market under-served, or depriving it of the public-interest benefits of competition.
Is the Board obliquely saying that monopoly profits are needed in this market to sustain overall industry earnings when shaky?
We have not ignored the passage, in the Board’s opinion denying reconsideration, which says that the industry’s faltering in its effort to achieve recovery “fortifies our resolve to avoid making unnecessary awards of competitive authority on routes that are adequately served.”
B. The Fuel Shortage
We come, finally, to the fuel shortage issue to which the Board referred in ultimately denying reconsideration. The onset of the oil embargo in late 1973 diminished the fuel supplies available for air transportation. The Board’s May, 1974 opinion grasped the fuel problem as an independent reason for rejecting competitive service.
The CAB contends that its reference to the Remanded Atlanta/Detroit/Cleveland/Cincinnati Investigation was sufficient since “there was no reason for the .Board to repeat in this case what it had already said in a companion case issued on the same day.”
Section 102 sets forth six public interest factors to guide the CAB in the exercise of its statutory duties. We are cognizant that in reviewing agency orders “[t]he court’s responsibility is not to supplant the [Board’s] balance of these interests with one more nearly to its liking,”
IV. Remand Proceedings
The agency proceedings eventuating in Continental’s petition for review were commenced over 8V2 years ago. Two complete evidentiary hearings have been conducted and the ALJ has issued two thorough initial decisions detailing the characteristics of the market, analyzing traffic forecasts, and comparing the strengths of carriers seeking certification. The record before us contains ample evidence of the need for competing nonstop service. We agree with Intervenor Western Air Lines that “[p]ublic policy dictates that the case be brought to an end.”
Turning finally to the question of carrier selection, we note that this issue has also been fully fleshed out in the previous hearings. The ALJ has twice selected Continental over the other carriers seeking nonstop authorization to compete with Western. The Board has repeatedly noted the substantial beyond market benefits offered by Continental and has spoken in terms of the advantages provided by Continental in addressing the related competition question. Nonetheless,' as Intervenor United Air Lines, points out, the Board has not squarely examined the ALJ’s findings on the carrier selection issue. On remand the CAB should review the record and render a supplemental order either adopting the ALJ’s determination or setting forth its separate reasons for accepting or rejecting the ALJ’s selection. In view of the comprehensive record before the agency and the public interest in a prompt determination, we trust that the Board will proceed with expedition in completing carrier selection.
The case is remanded for further proceedings in accordance with this opinion.
So ordered.
. The challenged orders are set forth at JA 83-98 and JA 100-24, respectively.
. Brief for Petitioner at 18, 31.
. Order 74-5-17, May 3, 1974, at 2, 13, JA 101, 112.
. See text accompanying notes 44r-61 infra.
Section 102 of the Federal Aviation Act, 49 U.S.C. § 1302 (1970), states:
§ 1302. Consideration of matters in public interest by Board.
In the exercise and performance of its powers and duties under this chapter, the Board shall consider the following, among other things, as being in the public interest, and in accordance with the public convenience and necessity:
(a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense;
(b) The regulation of air transportation in such manner as to recognize and preserve the inherent advantages of, assure the highest degree of safety in, and foster sound economic conditions in, such transportation,*298 and to improve the relations between, and coordinate transportation by, air carriers;
(c) The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices;
(d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense;
(e) The promotion of safety in air commerce; and
(f) The promotion, encouragement, and development of civil aeronautics. (Pub.L. 85-726, Title I, § 102. Aug. 23, 1958, 72 Stat. 740.)
.See United States v. CAB, 167 U.S.App.D.C. 313, 320, 511 F.2d 1315, 1322 (1975) (“the statute would appear to contemplate that the factor of competition could be outweighed by one or more of the other factors”).
. See Initial Decision of Hyman Goldberg, Hearing Examiner, September 4, 1969, at 2, JA 373.
. Order to Show Cause, Order No. E-25202, May 26, 1967, at 4, JA 24.
. Order to Show Cause, Order No. E-25727, September 22, 1967, at 1 & n. 1, JA 27 & n. 1.
. Order No. E-26608, April 3, 1968, at 4, JA 33.
. See Initial Decision, supra note 6, at 64 & n. 115, JA 435 & n. 115. The ALJ deemed the Bureau’s forecast conservative because its base year traffic figures did not include “online connecting passengers” and its stimulation factor — growth attributed to new, improved service — did not take account of Continental’s attractive fare proposals.
. See id. at 65, JA 436.
. See id. at 66-76, JA 437-47.
Continental proposed three “conveniently timed” round trips a day and offered “not only first-class and coach service, at substantial reductions in fares, but also . . . the economy service for which the carrier is well-known, at considerably reduced fare levels.” In contrast to TWA, it offered 3-2 seating in coach and economy sections instead of less comfortable 3-3 seating. Continental’s selection would also provide a substantial number of passengers in four beyond markets either first single-plane or first single-carrier service — a factor of prime importance. The ALJ considered Continental’s efficiency and aggressiveness important in view of Western’s “long-entrenched” position in the market. Finally, in addition to service, scheduling, and beyond market advantages over TWA, Continental was given a plus as a far smaller carrier to which the award would “be more important” than to TWA. Air West was passed over because its shaky financial position made it doubtful that it could offer Western “effective, dynamic competition.”
. See 14 CFR §§ 385.50-.54 (1975) (delineating the discretionary review procedure).
. Opinion 70-4-46, April 9, 1970, at 2, 4, JA 39, 41.
. Id. at 4 & n. 6, JA 41 & n. 6. The Board also noted that the examiner had relied in part on Western receiving new revenue from San Diego-New York/Newark and San Diego-Washington/Baltimore awards which the Board decided to grant to United. Id. at n. 7.
. Concurring and Dissenting Opinion of Members Murphy and Minetti in Opinion 70-4-46, at 1, JA 49.
. Id. at 1-2 & n. 1, JA 49-50 & n. 1. A partial list of such awards showing O & D plus
Houston-Seattle/Portland 150
Denver-San Antonio 194
Denver-Portland 220
Salt Lake City-Seattle 222
Salt Lake Clty-Portland 138
Houston-St. Louis 272
San Antonio-Washington 176-224
New Orleans-Tampa (3 carriers 206
Houston-Mlaml 280
Dallas-Tampa 158
Albuquerque-Las Vegas 206
Albuquerque-San Francisco 190-330
Memphis-New Orleans . _ 246
.Petition of Continental Air Lines, Inc., for Reconsideration of Order 70 4 46, May 4, 1970, at 2, 5-6, JA 211, 214-15.
Party Annual Daily
Air West 98,870 271
Continental 101,222 277
TWA 117,240 320
Western 94,216 258
Bureau 100,335 275
Since Western’s forecast assumed monopoly service, it would have to be increased to obtain an estimate for the size of a competitive market.
.Order 71-3-135, March 23, 1971, at 2, JA 68.
. Id. at 4-5, JA 70-71.
. Dissenting Opinion of Members Murphy and Minetti in Order 71-3-135, at 1, JA 72. The majority forecasted 103,124 passengers in 1971 as compared with the ALJ’s 1970 forecast of 100,335. See Order 71-3-135, March 23, 1971, Appendix A, at 2, JA 78.
. Dissenting Opinion, supra note 21, at 4, JA 75. The dissenters also challenged the majority’s loss projection on the basis of its underestimation of passengers by ignoring surface and intrastate Los Angeles-San Diego traffic and using atypical 1969 growth rate figures and its overestimation of costs.
. Order on Remand, Order 71 — 4—112, April 16, 1971, at 1, JA 79.
. Supplemental Initial Decision of Hyman Goldbelg, Hearing Examiner, March 20, 1972, at 55, JA 585.
. Id. at 56, 75, JA 586, 605.
. See id. at 59-65, JA 589-95. Among the “many serious inadequacies” were findings that the carrier did not provide prime time departures in both directions, that there were significant service gaps, that Western served the market only as part of long-haul flights, and that load factors indicated “unresponsive scheduling on Western’s part.” Although Western had proposed to provide three nonstop round trips, it had never flown more than two daily nonstop round trips.
. See id. at 77, JA 607-17; note 12 supra.
. Opinion 72-12-29, December 8, 1972, at 2, JA 85.
. See id. at 3, JA 86.
. See id. at 8-10, JA 91-93.
. Id. at 8, JA 91.
. Petition of Continental Air Lines, Inc. for Reconsideration of Order 72-12-29, January 29, 1973, at 20, JA 313, quoting Domestic Passenger Fare Investigation, Order 71-4 — 54, at 28.
. Petition, supra note 32, at 20, JA 313.
. Opinion and Order on Reconsideration, Order 74-5-17, May 3, 1974, at 2, JA 101.
. Id. at 3, 13, JA 102, 112.
. Id. at 3, JA 102.
. Id. at 8, JA 107.
. Dissent of Member Minetti in Order 74-5-17, at 2, JA 121.
. Id. at 3 n. 4, JA 122 n. 4.
. Id. at 4-5, JA 123-24.
. The following carriers and local representatives intervened in the action: Western Air Lines, Inc., Hughes Air Corp. d/b/a Hughes Air West, United Air Lines, Inc., Trans World Airlines, Inc., City of Kansas City, Missouri and Chamber of Commerce of Greater Kansas City, City and County of Denver, Colorado, Public Utilities Commission of the State of Colorado, San Diego Unified Port District, The City of San Diego, and the San Diego Chamber of Commerce. Western filed a brief in support of the CAB and the local interests filed briefs urging competitive service. The court granted leave to the Department of Justice to file an amicus brief. Amicus supported petitioner’s challenge to the CAB’s order.
. Brief for Petitioner, at 18-31. Petitioner also argued that the Board’s orders must be
. See Public Service Comm’n, State of N. Y. v. FPC (Texas Gulf Coast Area Rate Cases), 159 U.S.App.D.C. 172, 208-09, 487 F.2d 1043, 1079-80 (1973), vacated and remanded sub nom. Shell Oil Co. v. Public Service Comm’n, 417 U.S. 964, 94 S.Ct. 3166, 41 L.Ed.2d 1136 (1974).
. Section 102 is set forth at note 4 supra.
. Reply Brief for Petitioner at 2.
. Brief for Respondent at 20, 22.
. Brief for Intervenor Western Air Lines at 30.
. Power Reactor Development Co. v. International Union of Electrical Workers, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961), quoting Norweigian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933).
. 52 Stat. 973 (1938).
. S.Rep.No. 1661, 75th Cong., 3d Sess. 2 (1938); see H.R.Rep.No. 911, 75th Cong., 1st Sess. 19 (1937).
. 83 Cong.Rec. 6507 (1938).
. 83 Cong.Rec. 6852 (1938). Senator McCarran was the author of the original Senate bill.
. 83 Cong.Rec. 6730 (1938).
. Id. Senator Copeland was chairman of the Senate Commerce Committee which conducted the hearings on the bill.
. 83 Cong.Rec. 6726 (1938) (comparison of bills submitted by Senator Truman).
. Acquisition of Western Air Express Corp., 1 CAA 739, 749-50 (1940) (a § 408 case), cited with approval in Additional North-South California Services Case, 4 CAB 373, 374 (1943) (interpreting § 2 in a route award proceeding).
.See American Export Airlines, Inc., 2 CAB 16, 29-31 (1940).
Subsequent CAB decisions have firmly established that, in considering the extent to which competition is necessary to the sound development of the air transportation system, the Board “has not been guided by the nega
.See, e. g., Domestic Passenger-Fare Investigation, Order 71 — 4—54, April 9, 1971, at 27; Seaboard & Western Airlines, Inc., Mail Authorization, 29 CAB 49, 85 (1959); Southern Service to the West Case, Reopened, 18 CAB 790, 799-800 (1954); Trans-Pacific Airlines, Ltd., 12 CAB 900, 901 (1951); IATA Agency Resolutions Proceeding, 12 CAB 493, 509 (1951); Colonial Airlines, Inc., et al., Atlantic Seaboard Operation, 4 CAB 552, 555 (1944).
. 4 CAB 373, 375 (1943).
. 7 CAB 83, 103-04 (1946).
. The CAB has repeatedly noted the unique advantages to improved service offered by competition. See, e. g., North Atlantic Route Case, 6 CAB 319, 326 (1945) (“No effective substitute for healthy competition as a stimulus to progress and efficiency can be found in monopoly.”); Colonial Airlines, Inc., et al., Atlantic Seaboard Operations, 4 CAB 552, 555 (1944) (“The improvements which flow from competitive service cannot be obtained by administrative fiat. There is no regulation conceivable which could assure courtesy by a carrier’s employees, for example, and it would be extremely difficult to attempt to dictate many other matters affecting the quality of service rendered.”). In the present proceeding, the Board noted that “competition ultimately holds the greatest potential for vigorous development of air transportation.” Order 72-12-29 at 3, JA 86.
. Power Reactor Development Co. v. International Union of Electrical Workers, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961), quoting Norweigian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933); see NRDC v. Train, 166 U.S.App.D.C. 312, 326, 510 F.2d 692, 706 (1974).
. Trans-Pacific Airlines, Ltd., 12 CAB 900, 901 (1951); see Southern Tier Competitive Nonstop Investigation, Order 69-7-135, July 24, 1969, quoted in Continental Air Lines, Inc. v. CAB, 143 U.S.App.D.C. 330, 338, 443 F.2d 745, 753 (1971) (“The Board has always taken the view that competition in markets which can sustain it is the best guarantee of good service to the traveling public.”); Domestic Passenger-Fare Investigation, Order 71-4-54, April 9, 1971, at 27 (“One of our principal policies has been that the traveling public is entitled to the benefit of competition whenever it is justified by existing and projected market traffic.).
. See Reply Brief for Petitioners at 13-16; Brief for United States as Amicus Curiae at 31-34.
. Continental Air Lines, Inc., supra note 63, at 341, 443 F.2d at 756.
. The CAB’s counsel at oral argument on appeal stated that the Board recognized “the prime value of competition” and asserted that “the Board’s interpretation of the statute would be that competition would be mandated” where two carriers could achieve a profit and a reasonable return and absorb the new route without adverse impact on their system-wide operations. Accordingly, Board counsel stated that “the question would turn on the evidence in the record as to the projections going to traffic growth and the projections going to revenues that would be received if competition were instituted.”
. Opinion 70^1-46, April 9, 1970, at 4, JA 41.
. Order 71-3-135, March 23, 1971, at 2, JA 68.
. Id. at 4-5, JA 70-71. The Board relied solely on 1969 growth figures in projecting 1971 traffic. The CAB did not distinguish earlier decisions refusing to base determinations on short-term, recession traffic data. See New York-San Francisco Nonstop Service Case, 29 CAB 811, 815 (1959).
. Order 71-4-112, April 16, 1971, at 1, JA 79.
. See text accompanying notes 24 — 25 supra.
. Opinion 72-12-29, December 8, 1972, at 3, 8-12, JA 86, 91-95. The Bureau’s forecast had used a 7.5% annual growth rate, a 15% stimulation figure, and estimated that 30% of the San Diego-Twin cities traffic would travel on Western via Denver. Using 1968-71 figures, and discounting for presumed stimulation from Western’s commencement of nonstop flights, the Board selected a 3% growth rate for 1972 and 1973. Yet, at the time the Board adopted its 3% figure based on recession experience, it had Western’s projection of a 10% growth rate and Western’s traffic data through April, 1972, showing a 12% increase for the first four months of 1972 over the first four months of 1971. See Brief for Petitioner at 39-40. The Board also failed to note or to explain adequately the result that its 1973 forecast of 98,409 (the ALJ’s forecast of 127,409 minus the reduction of 29,000 passengers resulting from the Board’s adjustments; JA 93) was substantially lower than its corrected projection of 106,851 passengers for 1971.
. Opinion 72-12-29, at 2, JA 85.
. Brief for Respondent at 22, 38-39. u
. See Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).
. See Brief for Petitioner at 16-18, 47-49.
. See Order 74-5-17, May 3, 1974, at 3, 10, 13, JA 102, 109, 112.
. Continental’s petition for reconsideration pointed to Western’s traffic data snowing a 23.9% growth in the market during the first eleven months of 1972 over the same period in 0 1971. See Petition of Continental Air Lines, Inc. for Reconsideration of Order 72-12-29, January 29, 1973, Appendix 10, at 1, JA 329.
. Order 74-5-17, May 3, 1974, at 3, 13, JA 102, 112.
. Id. at 3, JA 102.
. See Greater Boston Television Corp. v. FCC, supra note 75, at 394, 44 F.2d at 852.
. Order 71-4-112, April 16, 1971, at 1, JA 79.
. See Domestic Passenger-Fare Investigation, Order 71-4-58, April 9, 1971, at 2. Western’s 1973 rate of return was 12.3% and its profit for the fiscal year ending March 31, 1974 was 14.1%. See Brief for Petitioner at 15.
. Under previous Board opinions, the important issue is not maintenance of existing profit levels but the more fundamental concern that carriers derive some profit from the market. See Southern Tier Competitive Nonstop Investigation, Order 73-2-89, February 23, 1973, at 7-8 (The Board noted that, once applicants “can be expected with reasonable assurance to operate their proposals at a profit,” “[t]he relative profitability of their various operations is therefore not nearly as important a decisional factor as the public benefits they can provide.”). In the present case, the ALJ noted that the Board “traditionally does not look beyond the estimated operating profit or loss on a proposed operation” to consider rate of return. Supplemental Initial Decision, supra note 24, at 80 n. 140, JA 610 n. 140.
. The Board in 1971 had viewed the prospect of new profitable operation by Continental in the instant and connecting beyond segments as a “significant” positive factor. See Order 71-3-135, March 23, 1971, at 4, JA 70.
. Order 74-5-17, May 3, 1974, at 2, JA 101.
. See Greater Boston Television Corp. v. FCC, supra note 75, at 394, 44 F.2d at 852; Northeast Airlines, Inc. v. CAB, 331 F.2d 579, 589 (1st Cir. 1964) (Aldrich, J., concurring).
. We approve the initial construction of the Act adopted by the Board concerning the relevance of the monopolist’s service to the need for competition. See text accompanying note 57 and note 57 supra.
. See Order 74-5-17, May 3, 1974, at 1-2, 13, JA 100-01, 112; Brief for Respondent in No. 74-1664, Eastern Air Lines, Inc. v. CAB, at 24.
. Brief for United States as Amicus Curiae at 31 n. 16.
. Id. at 30; Dissent of Member Minetti on Order 74-5-17, May 3, 1974, at 4-5, JA 123-24.
. See United States v. CAB, 167 U.S.App.D.C. 313, 323-25, 511 F.2d 1315, 1325-27.
. See Public Service Comm’n v. FPC, 167 U.S.App.D.C. 100, 108, 511 F.2d 338, 346 (1975).
. Brief for Respondent at 36.
. Opinion 74r-5-18, May 3, 1974, at 4 & n. 6, JA 129 & n. 6.
. See Supplemental Initial Decision, supra note 24, at 28, 43 n. 9, JA 558, 573 n. 91.
. See Order 74-5-17, May 3, 1974, at Appendix A, JA 115 (6 months with load factors in excess of 60% and 3 additional months with load factors in excess of 70%).
We express no opinion on the merits of the petition to review the companion case relied on by the CAB in the instant proceeding. That case is pending in this court, Eastern Air Lines, Inc. v. CAB, No. 74-1664 (D.C.Cir., filed June 28, 1974).
. See Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968).
. Brief for Intervenor Western Air Lines at 25.
Reference
- Full Case Name
- CONTINENTAL AIR LINES, INC. v. CIVIL AERONAUTICS BOARD, Western Air Lines, Inc., Hughes Air Corporation, d/b/a Hughes Airwest, United Air Lines, Inc., Trans World Airlines, Inc., City of Kansas City, Missouri and Chamber of Commerce of Greater Kansas City, City and County of Denver, Colorado, Public Utilities Commission of the State of Colorado, San Diego Unified Port District, the City of San Diego, San Diego Chamber of Commerce, Intervenors
- Cited By
- 4 cases
- Status
- Published