PUBLIC SERVICE COMMISSION CHARLESTON

Transcription

1 O.B. -A& Page -- ~ OF WEST VIRGINIA CHARLESTON Entered: Decenker 10, 1993 M.C. CASE NO C GENTLEMAN GENE TRUCKING, INC., a corporation, 5108 Maple Lane, Charleston, Kanawha County. Application for a certificate to operate as a common carrier. RECOMMENDED DECISION PROCEDURE On February 25, 1993, Gentleman Gene Trucking, Inc. (Gentlemen Gene or Applicant), a corporation, Charleston, Kanawha County, filed an application for a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the transportation of-- baggage and packages between airport facilities in Kanawha County, on the one hand, and points and places in West Virginia, on the other hand. Rate: $0.85 per loaded mile; minimum charge per trip. By Order entered on March 29, 1993, the Applicant was ordered to give notice of the filing of said application by publishing a copy of the March 29, 1993 Order, once in a newspaper, duly qualified by the Secretary of State, published and of general circulation in Kanawha County, making due return to the Commission of proper Certification of Publication within ten (10) days of such publication. The Order indicated that anyone desiring to make objection to the application must do so, in writing, within ten (10) days after the publication of said notice to P.O. Box 812, Charleston, West Virginia, Protestants were instructed to request a hearing, if a hearing is desired, and appear at said hearing to protect any stated interest. The Order indicated that, if no protests were received, the Commission could grant the request without a hearing. On April 5, 1993, the Commission received a protest to the application on behalf of C & H Company, requesting that the matter be set for hearing..i P On April 13, 1993, the Commission received an Affidavit of Publication indicating that the notice was published in The Charleston Gazette, a newspaper published in the City of Charleston, Kanawha County, on the 5th day of April, 1993.

2 By Order entered April 20, 1993, this matter was referred to the Division of Administrative Law Judges for a decision to be rendered on or before December 13, By Procedural Order entered July 8, 1993, this matter was set for hearing to be held on August 3, 1993, in the Commission's Hearing Room, 201 Brooks Street, Charleston, West Virginia, to commence at 9:30 a.m. On July 15, 1993, the Protestant requested a continuance of the August 3, 1993 hearing until August 17, Counsel for the Protestant indicated that Counsel for the Applicant did not oppose the motion. By Order entered July 20, 1993, the hearing scheduled to be held on August 3, 1993, was cancelled and rescheduled to be held on August 17, 1993, in the Commission's Hearing Room, 201 Brooks Street, Charleston, West Virginia, to commence at 9:30 a.m. The hearing convened as scheduled. Appearing on behalf of the Applicant was James T. Cooper, Esquire. Appearing on behalf of the Protestant, C & H Company, was James D. Kauffelt. At the conclusion of the hearing, a briefing schedule was established for the submission of post-hearing briefs. On September 18, 1993, Counsel for the Applicant requested an extension of the briefing schedule for the submission of post-hearing exhibits and advised the Commission that all parties had agreed to extend the date until Monday, September 27, By Procedural Order issued September 24, 1993, the motion for the extension of the briefing schedule was granted. On September 27, 1993, the Applicant and C & H Company submitted Briefs for the Administrative Law Judge's consideration. On October 7, 1993, C & H Company submitted its Reply Brief. On October 8, 1993, the Applicant filed its Reply Memorandum in this proceeding. EVIDENCE The first person to testify on behalf of the Applicant was Harold Hamby, Customer Service Manager for Comair, Inc. (Comair), Yeager Airport (Airport), Charleston, West Virginia. Mr. Hamby has been Service Manager for Comair since March 1, Mr. Hamby has approximately twenty-three years of airline experience. (Tr., p. 6). Customer service agents deal directly with the delivery of baggage or parcels to customers. Mr. Hamby is one of the Supervisors of the customer service agents. (Tr., p. 7). Comair presently services five flights per day at the Yeager Airport and performs ground services for Atlantic Southeast for a total of seven air arrivals Monday through Friday. (Tr., P- 8). I1

3 Two delivery companies serve the Airport, Ray's Delivery Service (Ray's) and C & H Company (C & H). (Tr., p. 8). The need for delivery service varies during the year. Comair either contacts the carriers by telephone or pages for their service at the Airport. (Tr., p. 9). Cornair's goal is to get the baggage or luggage to the passenger as expeditiously as possible. (Tr., pp. 9-10). Mr. Hamby believes competition results in better service. He feels the delivery service offered by the carriers is highly visible to the passengers and that the passengers relate the delivery service with the particular airline. (Tr., p. 12). While there have been certain incidents with the authorized carriers, Mr. Hamby believes that such incidents can and would occur with any delivery service. (Tr., p. 12). Comair utilizes the common carrier service approximately five times per day. The deliveries are usually geographically segregated so that items going to a specific area can be expeditiously delivered. (Tr., p. 15). The customer service agents are in charge of making sure deliveries are properly routed once the airline receives the baggage. (Tr., p. 15). The agents may choose either Ray's or C & H, The agents have not been instructed to prefer one company over the other. (Tr., p. 16). The carriers provide Comair with monthly invoices for their services. (Tr., pp ). Mr. Hamby explained that a C & H driver obtained baggage at 11:lO p.m. on a Sunday evening to be delivered at the Holiday Inn in Oak Hill, West Virginia. The bag was not received until 8:OO a.m. Monday morning. The driver that delivered the baggage was not the driver who originally accepted the baggage. (Tr., p. 187). Mr. Hamby was dissatisfied with the handling of the delivery of the baggage. (Tr. I pp ). The next person called on behalf of the Applicant was James Allen Park, Customer Service Manager for Mesaba Airline (Mesaba) at Yeager Airport. Mesaba is a commuter affiliate for Northwest Airlines. (Tr., pp ). Mr. Park has been Customer Service Manager since July of He has been in the airline industry for seven years. (Tr., p. 19). Mr. Park is responsible for lost baggage and parcels arriving in Charleston once the baggage is located. He has customer contacts and processes some of the claims by the customers when baggage is missing. Mr. Park feels that competition is needed to provide adequate service of the delivery of baggage and that, during the peak times, additional service is needed. (Tr., p. 20). Delays in luggage delivery result in negativity toward the airlines. (Tr., pp. 21). Mr. Park confirmed that two carriers, Ray's and C & H, deliver baggage from the airport. Mesaba Airlines utilizes Ray's approximately 85% of the time, and C ti H approximately 15% of the - time. (Tr., p. 29). Mesaba is not affected by lost luggage as much as some of the other carriers. However, Mr. Park feels additional service is needed, especially during peak times and Holiday seasons. (Tr., p. 26). He explained that the problem is not with being able to obtain a carrier, but with being able to get all the deliveries made. (Tr., p. 26). Mr. Park voiced no specific complaints about Ray's, but feels that, at times, it tries to provide more service than it can handle. (Tr., p. 22). :mr4 GlNlA OF -3-

4 The customer service agents have the final say on how many packages or items a specific carrier can deliver. (Tr., p. 22). The carrier determines the number of drivers and vehicles that are required. (Tr., pp ). However, while the Mesaba agents are responsible for the delivery of the baggage to the common carrier who makes the final delivery of the luggage, the agents may not be aware of the number of other deliveries or responsibilities the carrier may have to the different airlines. A carrier may be delivering items from more than one airline per trip. (Tr., p. 28). Both carriers bill the airline on a monthly basis. On average, the airlines utilize the delivery service four or five times per week. (Tr., p. 31). C & H has four or five vehicles available at the airport. Ray's Delivery usually utilizes three vehicles. (Tr., pp ). The next person to testify on behalf of the Applicant was Philip Bostic, Customer Service Manager of USAir. (Tr., p. 36). Mr. Bostic has been in the customer service area of the airline industry for approximately thirty-one and one-half years. He explained USAir's procedure for locating lost luggage. USAir utilizes C & H 85% to 90% of the time to deliver its detained luggage or baggage. (Tr., p. 39). Mr. Bostic feels additional service is needed at Yeager Airport. (Tr., p. 37). He feels that, at times, the present service is inefficient. His opinion is based on incidents in which luggage has been detained overnight and delivered the next day. However, Mr. Bostic admitted that the overnight occurrences are not frequent. (Tr., pp ). Testimony revealed that baggage being delivered the next day has only occurred three or four times in a two-year period. (Tr., pp ). Mr. Bostic feels that, when the carrier is delivering baggage for USAir, it represents USAir. He feels that the dress code and telephone techniques utilized by the drivers are very unprofessional (Tr., p. 40). The employees of USAir present a professional image. Mr. Bostic does not expect the cab drivers to be dressed in a suit and tie, but feels some type of standard should be utilized by the authorized carriers. (Tr., pp ). USAir averages approximately ten deliveries per day on a monthly basis; however, deliveries are not daily. (Tr., p. 43). Peak seasons and weather conditions cause additional delivery needs. During the peak seasons, the monthly average for luggage delivery can be 25 to 30 per day. (Tr., p. 43). Approximately one year before the hearing, Mr. Bostic discussed his dissatisfaction over Ray's Delivery Service with Danny Hoffman, the Assistant Airport Director. (Tr., pp. 40, 41, 44-45). Mr. Tincher had complained to Mr. Hoffman because USAir was not utilizing Ray's service. After the discussion, USAir utilized Ray's Delivery Service. USAir received better service from Ray's for a period of time. When Ray's service deteriorated, it chose to utilize C & H for its delivery services. (Tr., p. 45). Mr. Bostic discontinued use of Ray's Delivery Service the second time because of continued complaints from the baggage service agents regarding the timely fashion the baggage was delivered. He explained that his decision to discontinue utilizing Ray's service was based on more than one incident of inefficient delivery. (Tr., pp ). GlNlA OF :mri

5 Mr. Bostic testified that C & H basically provides good delivery service and has been efficient in making its deliveries. Mr. Bostic's major concern is with the delivery of detained baggage. He is not concerned with the geographic coordination of luggage or with the number of bags a driver delivers as long as it is done as soon as possible. (Tr., pp. 51, 52). USAir does not give the carriers any guidelines as to how to make their deliveries, but expects the deliveries to be efficient and handled in the airline's best interest. (Tr., p. 54). The airline's agents do assist the carriers in trying to geographically correlate the baggage. (Tr,. pp. 54, 58). When the airline is dissatisfied with a driver, it does not complain to the carrier, it merely does not utilize the driver any longer. (Tr., p. 55). Mr. Bostic testified that certain drivers solicit the airline's business and, at times, the solicitation has interfered with business. (Tr., p. 56). However, Mr. Bostic has neither complained directly to C & H's management nor forwarded anything in writing regarding his dissatisfaction. On cross-examination, Mr. Bostic emphasized that the major complaint with C & H is the taxi drivers accepting baggage to be delivered and then accepting a passenger. (Tr., pp , 62, 64). He feels the delivery of the baggage becomes secondary to the passenger fare and that, on occasion, the luggage is forgotten. (Tr., pp ). On occasion, the baggage has not been delivered until the next day. (Tr., p. 47). USAir receives a monthly invoice for delivery services. Its corporate headquarters pays the invoice because the amount exceeds $1,000 per month. (Tr., p. 50). Mr. Bostic feels that C & H should have contacted the airline as to its satisfaction with the service that it receives. (Tr., pp ). Mr. Bostic is under the impression that the drivers are individual entities, but feels that C & H should insure quality control. He feels additional inspections and sanctions should be levied against the company if it does not comply with the Public Service Commission's directives. (Tr., pp ). Danny Hoffman, Assistant Airport Director, testified on behalf of the Applicant. Mr. Hoffman has been the Assistant Airport Director for twelve years. His general duties include insuring that the Airport operates efficiently and safely on a day-to-day basis. (Tr., p. 67). Yeager Airport currently leases property and maintains runways and loading bridges for seven airlines. (Tr., p. 67). Mr. Hoffman's only direct contact with the carriers is the leasing of reserved parking positions at the Airport. (Tr., p. 67). Mr. Hoffman has received complaints from the individual airlines regarding Ray's Delivery Service. Mr. Hoffman explained that, since he has the same responsibility to each lessee, he arranged a meeting between John Tincher of Ray's Delivery Service and Philip Bostic of USAir. (Tr., p. 68). Once Mr. Hoffman was approached regarding Gentlemen Gene's application, he contacted the airlines in order to determine if additional baggage delivery service was needed. Mr. Hoffman contacted three of the four contacts that represent the seven airlines. All of the airlines indicated that they would prefer an additional baggage service for OF i P - : GlNlA

6 competition and improved service. (Tr., pp , 71). He feels, as the Assistant Airport Manager, that additional service is needed. (Tr., p. 70). Mr. Hoffman supports the application based on the inquires he made regarding the needed service. (Tr., p. 76). Mr. Hoffman has been disappointed with the appearance of Ray's Delivery Service's drivers. (Tr., pp ). The Airport presently leases two spaces to Ray's near the front of the Airport at the end of the baggage claim to park its vehicles. The Airport leases six rental spaces to C & H. (Tr., p. 77). Mr. Hoffman contacted C & H regarding the dress and appearance of its drivers. However, no actions were taken to his knowledge. (Tr., p. 75). Mr. Hoffman feels he has the right to contact C & H regarding the drivers' attire because the Airport Authority I'employs" the taxi service for its passengers. (Tr., pp ). Also, numerous complaints have been voiced by the passengers regarding the taxi drivers' dress and appearance. Mr. Hoffman was advised by C & H that the taxi drivers were independent drivers and the taxi company had no control over the drivers and lacked the ability to dictate a dress code. (Tr., p. 78). Steven Edwards was the last person to testify on behalf of his application. (Tr., p. 79). Mr. Edwards explained that he is the owner and sole stockholder and President of Gentlemen Gene Trucking Company. Gentlemen Gene Trucking Company is a U.S. contractor with the United States Postal Service and hauls mail from various points that originate in Charleston and go all over the State of West Virginia. It has seven routes which cover Gassaway, Summersville, and along the Gauley River up to Swiss. Gentlemen Gene services three city routes, two of which are within the City of Charleston, Cross Lanes, South Charleston, Spring Hill and various points. It also serves an express route which goes all over the State of West Virginia. An express route is one that delivers mail that is due by the next day. (Tr., pp ). Gentlemen Gene presently has seven "large trucks", a 1987 Ford pickup, a 1975 Ford pickup, a 1992 Chevrolet Lumina, a 1980 Toyota, and a 1987 Mazda pickup. (Tr., p. 82). The most trucks utilized at one particular time by Gentlemen Gene in its mail service has been six. (Tr., p. 82). Mr. Edwards feels he has the resources available to obtain other vehicles, if needed. (Tr., p. 82). Gentlemen Gene presently employs seven full-time drivers and two bookkeepers. Its vehicles are located at Yeager Airport. Five to ten resumes are on hand from individuals looking for driving employment. (Tr., p. 83). Mr. Edwards has been involved with the contract hauling of U.S. Mail, directly and indirectly, for thirty years. (Tr., p. 85). Mr. Edwards believes there is a need for additional service at Yeager Airport based upon his discussions with Mr. Hoffman and evidence presented at the hearing. He feels he can adequately satisfy the needs of the airlines located at the Airport. He intends to make daily contact with the airlines and become familiar with the flight schedules if the application is granted. (Tr., p. 84). He also plans to contact the airlines at the beginning and close of every day. (Tr., p. 85). While Mr. Edwards is willing to deliver baggage he sees his function more as an

7 administrator to insure that the operation runs efficiently. (Tr., p. 86). He feels that he can provide service to the entire State of West Virginia, because he currently performs that task for the Postal Service. Gentlemen Gene can respond immediately to delivery requests because its employees are stationed at Yeager Airport. (Tr., p. 85). Mr. Edwards has four persons available to transport on a moment's notice. (Tr., p. 87). Mr. Edwards' requested rates are based on his experience with the hauling industry and his contracts with the U.S. Postal Service. (Tr., p. 90). He intends to operate the delivery service separately and distinctly from the service provided to the U.S. Postal Service. (Tr., pp ). The first person to testify on behalf of the Intervenor, C & H Company, was James Samuel Snodgrass, a taxi driver for C & H since March, (Tr., p. 101). Mr. Snodgrass explained that he works Yeager Airport and leases his vehicle from C & H. He arrives at the Airport at approximately 1O:OO a.m. in the morning and remains, if necessary, until 11:OO p.m. at night. (Tr., p. 94). He transports passengers and baggage to various places for most of the airlines. (Tr., pp ). The need for the delivery of baggage varies daily, but Mr. Snograss averages four to five bags per day, with the majority going to Charleston hotels. (Tr., p. 95). There are times his taxi is idle and service is not required at the Airport. (Tr., pp ). Mr. Snograss has also observed Ray's delivery drivers idle. (Tr., p. 99). Mr. Snograss makes inquiries with the airlines to determine if his services are needed. (Tr., p. 97). While Mr. Snograss has not received any complaints regarding his dress, he has agreed to transport a passenger after receiving a baggage delivery request. He has been advised by a couple of the airline agents that, if a flight is on the ground and a heavy passenger load expected, it is acceptable to wait five to ten minutes for a passenger wishing to go downtown, if the baggage delivery is also going to the downtown area. (Tr., p. 98). There are no conditions in Mr. Snograss' lease agreement that restricts the areas in which he may drive. (Tr., p. 102). Mr. Snograss makes deliveries out of Charleston once every other day. The agents help the drivers geographically correlate the baggage. (Tr., p. 103). In excess of 50% of Mr. Snograss' daily income is from baggage delivery. Approximately 75% of his daily income is derived from the Airport. (Tr., p. 99). Mr. Snograss does not feel there has ever been a time when the need for baggage deliveries has been so heavy that the deliveries could not be handled. (Tr., p. 100). Four or five C & H drivers routinely service the Airport. (Tr., p. 100). Once every two or three months, additional drivers and taxis are sent to the Airport for baggage delivery. (Tr., p. 100). Mr. Snograss feels the present service is efficient and adequate and additional service is not needed. Additional service will directly reduce Mr. Snograss' income. Mr. Snograss feels that the number one priority of the taxi industry is to haul passengers. (Tr., p. 014). The majority of the baggage deliveries are from USAir, Comair and Delta, because they haul the most

8 passengers. (Tr., p. 104). When planes are diverted to the Charleston area, the passengers and baggage must be transported by land to the other airports. Mr. Snograss explained that weather conditions cause a heavy load of baggage which results in the need of additional taxis. However, he is able to call as many as thirty drivers to the airport within two or three minutes. (Tr., p. 105). C & H has anywhere from three to six taxis at the Airport at one time. However, not all of the drivers will deliver packages. (Tr., p. 108). Mr. Snograss concurred that most passengers who have lost their luggage are somewhat agitated by the inconvenience. He realizes the importance of expeditiously delivering the baggage, as well as a neat appearance. (Tr., p. 106). The next person to testify on behalf of the Intervenor was Frank Walker, Jr. Mr. Walker is also a taxi driver for C & H. He frequently works the Airport area and hauls baggage for the airlines approximately two or three times per week. (Tr., p. 110). He explained that, while he does not solicit business from the airlines, he does assess the situation at the Airport and will answer a page for a driver. Some of the agents will offer him delivery jobs. (Tr., pp ). Mr. Walker works the night shift but occasionally will work earlier to earn more money. (Tr., p. 112). Mr. Walker works 5 :OO p.m. to 4:OO a.m. (Tr., p. 116). Mr. Walker tries to dress in a presentable manner when working the Airport area and testified further that C & H's dispatcher gave the drivers a dress code and some other paper work from the Airport advising the drivers to present themselves to the public in a presentable way. (Tr., 112). Mr. Walker acknowledged the importance of an acceptable appearance when delivering baggage and serving customers. (Tr., p. 130). Mr. Walker normally delivers the luggage before the passenger when having both fares in his vehicle. However, he makes an inquiry with the passenger and the airlines before a final decision is made as to which fare will take priority. (Tr., p. 113). Mr. Walker explained a complaint against him regarding luggage, in which a husband and wife gave different instructions on leaving the luggage. (Tr., p. 113). Due to the financial arrangements with C & H, it is in a driver's best interest to deliver any baggage as quickly as possible. (Tr., p. 114). However, like the airlines, bad weather affects the time it takes to deliver items. During certain weather conditions, the speed limit on the West Virginia Turnpike is reduced. Road construction also affects the time it takes to make a delivery. (Tr., p. 115). Mr. Walker feels the service provided by Ray's and C & H is efficient and adequate and does not believe there is a need for additional service. An additional carrier would reduce his income. (Tr., p. 116). The airport work ceases between 10:30 p.m. and 11:OO p.m. (Tr., p. 113). The next person to testify was Harold Shamblin, General Manager of C & H Company. Mr. Shamblin has been the General Manager for C & H Company since (Tr., p. 121). C & H has approximately 60 Chevrolet Caprices ranging from 1986 to 1990 models, one Ford passenger van, and a Chevralet passenger van. Approximately 35 taxis are presently utilized,

9 while 25 are in storage. (Tr., p. 121). If additional service would be needed, C & H could supply ten additional taxis within a week, and twenty within a two-week period. (Tr., p. 122). Mr. Shamblin explained C & H's dispatching procedure and leasing obligations. (Tr., p. 123). Each taxi driver pays a lease amount and his or her cost of gas before the drivers make a profit. A driver must increase the number of fares in order to make more money. (Tr., p. 124). In order for C & H to increase its income, it must either put more taxis on the street, or increase the amount charged the lessees. (Tr., p. 124). Mr. Shamblin testified that the airport calls the dispatcher very seldom desiring additional taxis. The airlines repeatedly deal with the drivers located at the airport facility. (Tr., p. 124). Mr. Shamblin acknowledged that he receives anywhere from three to five complaints per week regarding the taxi drivers. However, these complaints are usually not from the airlines. (Tr., pp ). The Airport Authority forwarded letters to C & H regarding the driver's dress and expressing a desire for a dress code. The dress code proposed by the Airport Authority was posted by the company. The drivers were told to follow the Authority's guidelines if they intend to work the Airport area. (Tr., p. 127). A photo identification is required to work the Airport area and the drivers are to wear them pursuant to Airport guidelines. (Tr., p. 128). Mr. Shamblin feels the Airport Authority has the right to advise any of the taxi drivers who are inappropriately dressed that they are not allowed to work the Airport area. He explained that the Marriott also has a dress code, which is posted in the drivers' room. (Tr., pp ). C & H has the ability to terminate business with drivers without stating a reason. (Tr., pp ). C & H has terminated leasing privileges with individuals over inappropriate behavior, etc. (Tr., p. 149). However, Mr. Shamblin feels a strict dress code could result in fewer drivers, since the drivers handle luggage, groceries and other heavy items. (Tr., p. 149). The baggage delivery service generates C & H approximately 30 extra leases per month. However, the income from the actual billing to the airlines regarding the baggage is diverted to the drivers, once a driver's lease fee is paid to C & H. (Tr.? pp ). The addition of a certified carrier, or loss of the baggage industry, would not cause C & H to close, but continual loss of business eventually does result in extreme financial hardship to a company. (Tr., pp. 146). Additional competition would result in a decrease in the number of taxis leased by C & H. (Tr.? p. 148). The next person to testify was John Tincher. Mr. Tincher is the owner of Ray's Delivery Service and has been since August of (Tr., pp ). Mr. Tincher currently owns a 1991 Dodge Caravan and a 1985 GMC Safari Van. The 1991 Dodge van is still encumbered by debt. He also has three leased vehicles with drivers. (Tr., p. 157). The leased vehicles are a 1991 Dodge van, a 1987 Dodge van and a 1991 Oldsmobile Calais. (Tr., p. 158). Ray's Delivery Service delivers lost baggage and luggage to airline passengers arriving without their luggage. (Tr.,

10 p. 155). Five persons are employed by Ray's, other than Mr. Tincher. Mr. Tincher's wife acts as the dispatcher and bookkeeper. (Tr., p. 159). After meetings between Mr. Hoffman, Mr. Bostic and Mr. Tincher, Ray's added more drivers to its work force in order to meet the needs of the airlines. (Tr., pp ). The additional vehicles were obtained in order to increase the efficiency of the business. Ray's is not handling more baggage then it previously handled, but is trying to deliver the baggage as efficiently as possible. (Tr., p. 159). However, USAir presently uses C & H Company as its primary carrier. (Tr., pp ). Due to road construction and a funeral, one of Ray's drivers was forced to reroute his trip, resulting in a longer period of time for the delivery of baggage to Glade Springs Resort in Beckley. (Tr., p. 160). After the incident, one of Ray's employees noticed a sign at USAir instructing its agents not to utilize Ray's Delivery Service. Mr. Tincher contacted Mr. Hamby regarding the incident. (Tr.l p. 161). Mr. Tincher had not received any complaints from Mr. Hamby, other than the fare to Glade Springs Resort, for over a year. (Tr.l p. 162). Mr. Tincher admitted that he had experienced a problem with a specific driver who was eventually dismissed from employment. (Tr.l pp ). A problem also had existed with baggage going to the Beckley area when a trip for Comair and USAir was consolidated. (Tr., p. 165). Ray's revenues have been reduced by approximately 30% to 40%, because USAir is utilizing C & H as its primary baggage carrier. (Tr., p. 166). Mr. Tincher testified that no one from the airlines or the Airport has complained to him regarding the manner in which his drivers are dressed or the manner in which they conduct themselves. Mr. Tincher is willing to listen to any suggestions regarding a dress code. (Tr., p. 167). Mr. Tincher contacts each airline in the morning to determine if his services are needed. The morning scheduling usually indicates whether baggage will be arriving between 8:OO a.m. and 12:OO noon. (Tr., p. 168). If additional drivers are needed, Mr. Tincher makes the arrangements. (Tr., p. 168). Ted Wilson, an employee of USAir, also delivers some of USAir's baggage. (Tr., p. 169). Tri-State Air Cargo and C & H also deliver baggage for the airlines. (Tr., p. 170). Mr. Tincher would like additional baggage delivery service from the airlines and feels that he can serve any additional requests. (Tr., p. 171). Thirty-five percent to forty percent of the time, cars are idle. Mr. Tincher described the business as a "hurry-up and wait" kind of business. (Tr., p. 171). He feels baggage delivery service at Yeager Airport is currently efficient and adequate. He does not feel there is a need for additional service. (Tr., p. 172). If an additional certificate is granted, some of his employees will have to be terminated. (Tr., p. 173). While Ray's Delivery Service does do some air carrier work, his primary business is baggage delivery. (Tr., p. 173). The carrier work includes medical shipments to the area hospitals in Charleston (Tr., p. 176), and consists of 5% to 10% of Mr. Tincher's business. Mr. Tincher presently leases only one parking space at the Airport. The leased area is located at the lower end of the taxi zone. (Tr., p. 174). The lease

11 agreements between Ray's Delivery Service and the individual drivers are written agreements that can be terminated with notice by either party. Mr. Tincher instructs the drivers as to what is expected of them in terms of appearance and dress, as well as delivery service. (Tr., pp. 181). A vehicle is provided at the Airport from the time it opens at 8:OO a.m. until it closes. (Tr., p. 183). Once a vehicle is utilized, an additional vehicle is contacted to be located at the Airport for services. Mr. Tincher acknowledged that there had been complaints regarding the amount of time, 15 to 20 minutes, it takes a replacement vehicle to be located at the Airport. (Tr., p. 184). Additional drivers are dispatched to the Airport when deliveries in different geographical locations are needed. (Tr., p. 186). DISCUSSION OF APPLICABLE LAW The pertinent statutory language regarding the granting of applications for certificates of convenience and necessity is set forth in West Virqinia Code 24A-2-5(a), which provides, in part, as follows: [I]f the Commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment, the public convenience and necessity may require.... Before granting a certificate to a common carrier by motor vehicle, the commission shall take into consideration existing transportation facilities in the territory fur which a certificate is sought and, in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably efficient and adequate, the commission shall not grant such certificate. It is well-established in this State that one applying for a common carrier certificate over a defined territory must establish, to the satisfaction of the Commission, that public convenience and necessity require the proposed service. Weirton Ice and Coal Supply Company V. Public Service Commission, 161 W.Va., 240 S.E.2d 686 (1977), and - West Virginia Code S24A-2-5. The Commission has interpreted this requirement to mean that the applicant must demonstrate that he or she has the financial ability, experience and fitness to provide a needed, useful, and responsive public service, as well as that the public convenience and necessity require the proposed service. Ford Brothers, Inc., M.C. Case No , April 9, The applicant must produce public witnesses who are able to testify that the proposed service is needed in the area of application. Harless Excavating Company, Inc., M.C. Case No , April 23, On December 20, 1989, the Supreme Court of Appeals of West Virginia issued a decision in which the Court stated that the quality of existing -11-

12 services was a controlling factor in reaching a decision on whether or not a competing certificate of convenience and necessity should be granted under-westvirqinia Code S24A-2-5(a). (Stowers and Sons Truckinq Company, Inc. V. Public Service Commission of West Virginia, 387 S.E.2d 841 (1989)). The Court determined that the Public Service Commission has a mandatory duty, established by the West Virginia Code S24A-2-5, to consider evidence as to the sufficiency of existing service and, if the services are adequate, the certificate- shall not be-granted. DISCUSSION In the case at hand, the Administrative Law Judge has determined that the Applicant has failed to meet its burden of proof the public convenience and necessity require the proposed service. It is apparent from the evidence that the airlines are not completely satisfied with the service they receive from Ray's or C & H. The Administrative Law Judge clearly understands the airlines' position regarding a dress code and appearance, as well as their desire to have their detained or lost luggage delivered as soon as possible. She also believes that the Applicant would be a responsible entity to provide the services. However, she does not feel the Applicant -- has met the burden as established by Stowers & Sons Truckinq Company, Inc., V. Public Service Commission of West Virainia. 387 S.E.2d 841, The airlines have several remedies for their dissatisfaction with the current carriers. They could file formal complaints against the carriers. Secondly, the airlines, if they so desire, could have their own employees deliver these items, without charge. If a driver is transporting items from several airlines, the airline agents could make an inquiry as to whether the driver has accepted other baggage to deliver. The Airport Authority also apparently can enact and enforce a dress code for drivers who use the taxi stands or could negotiate with Ray's and C & H on this issue. If the airlines desire more drivers, C & H has thirty-five vehicles at any given time available for service. While all of the drivers may not wish to transport for the airport, the Administrative Law Judge is convinced that more than 4 to 6 drivers could be obtained if needed. If the airport's demand is so great, she feels that C & H would be able to provide a portion of its additional twenty-five taxis for service. No evidence was presented of even one instance where service was needed but was not provided by the currently certificated carriers. Therefore, the Administrative Law Judge feels that this application must be denied at this time. FINDINGS OF FACT 1. On February 25, 1993, Gentleman Gene Trucking, Inc. (Applicant), a corporation, Charleston, Kanawha County, filed an application for a certificate of convenience and necessity to operate as a common carrier by -12-

13 motor vehicle in the transportation of baggage and packages between airport facilities in Kanawha County, on the one hand, and points and places in West Virginia, on the other hand. Rate: $0.85 per loaded mile; minimum charge per trip. (See, Application). 2. Two delivery companies serve the Airport, Ray's Delivery Service and C & H Company. (Tr., pp. 8, 25). 3. The need for delivery service varies during the year. (Tr., P* 9). 4. Harold Hamby, Customer Service Manager for Comair, Inc., and James Allen Parks, Customer Service Manager for Mesaba Airlines, would like additional delivery service available at the airport because they feel competition produces better service. (Tr., pp. 6, 12, 20). 5. Mr. Park explained that the delivery problem is not with being able to notify a carrier but being able to get all the deliveries made due to the volumes of bags. (Tr., p. 26). 6. Mr. Philip Bostic, Customer Service Manager of USAir, testified that C & H basically provides good delivery service and has been efficient in making its deliveries. (Tr., pp ). 7. Mr. Bostic has neither complained directly to the C & H management nor provided anything in writing regarding his dissatisfaction. His major complaint with C & H is the taxi driver accepting baggage to be delivered and then accepting a passenger. (Tr., pp , 62-63). 8. Danny Hoffman, Assistant Airport Director, talked to three of the four contact people representing the seven airlines using Yeager Airport. All of the airlines indicated that they would prefer an additional baggage service for competition and improved service. (Tr., pp , 71). 9. Mr. Hoffman has been disappointed with the appearance of Ray's Delivery Service's drivers and contacted C & H regarding the dress and appearance of its drivers. (Tr., pp , 75). 10. Numerous complaints have been voiced by the passengers regarding the C & H's taxi drivers' dress and appearance. (Tr., p. 78). 11. James Samuel Snodgrass, a taxi driver for C & H since March of 1993, testified that, at times, his taxi sits idle and service is not required at the Airport. (Tr., pp ). 12. In excess of 50% of Mr. Snograss' daily income is from baggage delivery. Approximately 75% of his daily income is derived from the Airport. (Tr., p. 99). 13. Mr. Snograss did not feel there has ever been a time when the baggage deliveries were so heavy that the deliveries could not be handled. (Tr., p. 100).

14 14. Once every two or three months, additional drivers and taxis are sent to the Airport for baggage delivery. (Tr., p. 100). 15. C & H is able to call as many as thirty drivers to the Airport within two or three minutes. (Tr., p. 105). 16. Frank Walker, Jr., a taxi driver for C & H Company, explained that, due to the financial arrangements with C & H, it is in a driver's best interest to deliver any baggage as quickly as possible. (Tr., p. 114). 17. Harold Shamblin, General Manager of C & H Company, testified that C & H Company has approximately 60 Chevrolet Caprices ranging from 1986 to 1990 models, one Ford passenger van, and a Chevrolet passenger van available for service. (Tr., p. 121). 18. C & H presently utilizes 35 taxis with 25 taxis in storage. C & H could supply ten additional taxis within a week, and twenty within a two-week period. (Tr., pp. 121, 122). 19. John Tincher of Ray's Delivery Service currently owns a 1991 Dodge Caravan and a 1985 GMC Safari Van and leases three vehicles, a 1991 Dodge van, a 1987 Dodge van and a 1991 Oldsmobile Calais. (Tr., pp ). 20. Ray's revenues have been reduced by approximately 30% to 40%, since USAir is utilizing C & H as its primary baggage carrier. Mr. Tincher would like additional baggage delivery service from the airlines and feels that he can serve any additional requests because thirty-five percent to forty percent of the time, his cars are idle. (Tr., pp. 166, 171). 21. No witness presented testimony of any time when service was needed at Yeager Airport, but was not provided by the currently certificated carriers within 15 to 30 minutes. (See, Tr., generally). CONCLUSIONS OF LAW 1. The Applicant has failed to meet its burden of proof that the public convenience and necessity require the proposed service. 2. The preponderance of the evidence is that the existing common carrier service within the area is reasonably efficient and adequate and, therefore, the certificate application should be dismissed. ORDER IT IS, THEREFORE, ORDERED that the application of Gentleman Gene Trucking, Inc., Charleston, Kanawha County, filed with the Commission on February 25, 1993, for a certificate of convenience and necessity to operate as a common carrier by motor vehicle as above described, be, and hereby is, denied.

15 IT IS FURTHER ORDERED that this case be, and it hereby is, dismissed ind stricken from the Commission s docket of open cases. The Executive Secretary is hereby ordered to serve a copy of this xder upon the Commission by hand delivery, and upon all parties of record iy United States Certified Mail, return receipt requested. Leave is hereby granted to the parties to file written exceptions jupported by a brief with the Executive Secretary of the Commission within ifteen (15) days of the date this order is mailed. If exceptions are Eiled, the parties filing exceptions shall certify to the Executive secretary that all parties of record have been served said exceptions. If no exceptions are so filed this order shall become the order of,he Commission, without further action or order, five (5) days following the expiration of the aforesaid fifteen (15) day time period, unless it is xdered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to an 4dministrative Law Judge s Order by filing an appropriate petition in firiting with the Secretary. No such waiver will be effective until ap-?roved by order of the Commission, nor shall any such waiver operate to nake any Administrative Law Judge s Order or Decision the order of the hnmission sooner than five (5) days after approval of such waiver by the zommission. SAM:dfs Administrative Susan A. Murensky Law Judge U