Iron Horse Stage Lines, Inc. v. Public Utility Commission

LEESON, J. Plaintiff appeals a circuit court judgment affirming three final orders of defendant Public Utility Commission (PUC). We affirm. Plaintiff is a common carrier. It holds regular route authority, ORS 767.415(1), to provide bus service from Eugene to the Willamette Pass ski area. In March, 1989, PUC filed formal complaints against Willamette Pass Ski Corporation (Ski Corp) and Berg’s Ski Shop of Eugene (Berg’s), for acting as a broker without a license, because they provided bus service, known as the Willamette Pass Express (the Express), that duplicated plaintiffs service. As part of the settlement of those proceedings, PUC staff members outlined means by which they believed Ski Corp and Berg’s could duplicate plaintiffs regular route bus service without violating applicable laws. Pursuant to one of those recommendations, Berg’s entered into an agreement with Le Traveler’s Club, a broker licensed under ORS chapter 767, to act as Le Traveler’s agent. Berg’s maintains a sign-up sheet at its store and collects money from passengers for bus rides on the Express. Le Traveler’s contracts for bus service from motor carriers on an “as needed” basis. Berg’s forwards the money it collects to Ski Corp. The motor carriers submit invoices to Le Traveler’s, then Le Traveler’s submits invoices to Ski Corp for the cost of the buses and a broker’s fee. Based on that arrangement, Ski Corp produced and circulated a tabloid advertisement stating, in part: “The Willamette Pass Express will once again be available to solve your transportation needs. The Express will make round trip excursions weekends and holidays through the [1989/90] season.” The advertisement gave the times for departure from and return to Berg’s and stated rates for a bus ride only, as well as rates for combined bus and lift tickets. It stated that passengers could sign up at Berg’s to reserve a seat on the Express. [674] Le Traveler’s used the services of at least three motor carriers to provide the advertised transportation during the 1989/90 season. Each had authority to provide irregular, but not regular, route service between Eugene and Willamette Pass. Plaintiff filed complaints with PUC against Ski Corp and Berg’s, seeking orders requiring them to cease and desist their activities involving the Express. Plaintiff argued that Ski Corp and Berg’s had conspired to provide regular route bus service in violation of ORS chapter 767. With respect to Ski Corp, PUC said, i£[W]e cannot conclude that [Ski Corp] violated the motor carrier laws. Although [it] was in a position to profit from the arrangement and advertised the availability of the service * * *, there is no evidence indicating that [Ski Corp] assumed a role in the control, direction, or responsibility for the transportation. ’ ’ PUC ruled that Berg’s is a broker of the services provided by the Express, and that, ££ [although carriers are prohibited from providing regular route operations without authority * * *, Oregon law does not prohibit brokers of passenger service from arranging transportation in a manner which is equivalent to regular route operations.” PUC concluded that plaintiff had not shown that it was entitled to a cease and desist order against either Ski Corp or Berg’s. The circuit court affirmed. Adthough this is an appeal from the circuit court, we review the PUC orders. Plaintiff has the burden of showing that PUC’s findings are not supported by substantial evidence, that its conclusions are not rationally related to its findings or that its orders are unreasonable or unlawful. Market Transport v. Maudlin, 301 Or 727, 734, 725 P2d 914 (1986). Plaintiff does not challenge PUC’s conclusion that Berg’s is a broker rather than a carrier and that Ski Corp is neither a broker nor a carrier with respect to the services provided by the Express. Plaintiff argues that the Express provides regular route service, rather than irregular route [675] charter service.1 It appears to maintain that the involvement of Ski Corp and Berg’s in that service is subject to a cease and desist order on the ground that it violates ORS 767.415. PUC contends that ORS 767.415 proscribes the conduct of carriers only, and that neither Ski Corp nor Berg’s is a carrier with respect to the Express. Therefore, that statute does not proscribe the conduct of, and cannot form the basis for cease and desist orders against, Ski Corp or Berg’s, with respect to their activities involving the Express. ORS 767.415 provides, in part: “(2) Regular route carriers of persons shall file a schedule setting forth the termini between which service is rendered, the hours of departure and arrival, and tariffs and classifications governing rates. * * * “(3) Irregular route carriers shall file tariffs and classifications governing rates. Irregular route common carriers shall serve indiscriminately the territory which they are authorized to serve, and their service shall be on call, coincidental, nonscheduled, unperiodical, itinerant and ambulatory in nature. Such carriers shall not: “(a) By solicitation, advertisement, or by a course of dealing or practice, or otherwise, hold themselves out to render regular service between any particular points or over any particular routes, or lead shippers to believe or understand that they may rely upon a continuous regularity of service by such carriers between particular or specified points or over any particular or specified route. “(c) Operate under a predetermined plan of operation or time schedule between any particular points or over any particular route, but this paragraph shall not prohibit repeated movements by such carriers over the same route or between the same points in instances where the character or volume of the traffic requires repeated movements over the same route for such reasonable periods of time as may be [676] necessary to meet the needs of a particular shipper in particular instances or requiring specialized service.” (Emphasis supplied.) We agree with PUC that ORS 767.415 regulates carriers, and that its prohibitions do not apply to non-carriers. As noted above, plaintiff does not dispute PUC’s conclusion that neither Ski Corp nor Berg’s is a carrier with respect to the Express and plaintiff does not seek relief against any carrier. Plaintiff offers no other legal basis upon which cease and desist orders against Ski Corp or Berg’s could rest. Plaintiff therefore has failed to meet its burden of showing that PUC erred by refusing to grant such an order. Affirmed. Footnotes [1] An irregular route carrier is authorized to provide charter service. ORS 767.422. ORS 767.005(5) defines “charter service” to mean ‘ ‘irregular route passenger service under contract with a carrier for exclusive use of the vehicle by a complete, cohesive group that has a common trip purpose.” The dissent asserts obliquely that, because the Express is not a charter service, Berg’s has violated the provisions of ORS chapter 767. However, the dissent never identifies which provision of that chapter Berg’s has violated.