Colorado § 40-10.1-202 - Permit required - legislative declaration.

§ 40-10.1-202. Permit required - legislative declaration.

(1) (a) A person shall not operate or offer to operate as a contract carrier in intrastate commerce without first obtaining a permit for such operation from the commission. As used in this part 2, "permit" does not include a permit under part 3, 4, or 5 of this article.

(b) The general assembly hereby declares that the business of contract carriers is affected with a public interest and that the safety and welfare of the public traveling upon the highways, the preservation and maintenance of the highways, and the proper regulation of common carriers using the highways require the regulation of contract carriers to the extent provided in this article, for which purposes the commission is vested with the authority to issue a permit to a contract carrier and may attach to such permit and to the exercise of the rights and privileges granted by the permit such terms and conditions as are reasonable.

(2) No permit, nor any extension or enlargement of an existing permit, shall be granted by the commission if, in the commission's judgment, the proposed operation of any such contract carrier will impair the efficient public service of any authorized common carrier then adequately serving the same territory over the same general highway route. The commission shall give written notice of any application for a permit to all persons interested in or affected by the issuance of the permit or any extension or enlargement thereof, pursuant to section 40-6-108 (2).

(3) Nothing contained in this article compels a contract carrier to be or become a common carrier or subjects a contract carrier to the laws or liability applicable to a common carrier.

Source: L. 2011: Entire article added, (HB 11-1198), ch. 127, p. 406, § 1, effective August 10.

ANNOTATION

I. General Consideration.

II. Public Interest and Powers of Commission.

III. Impairment of Common Carrier Service and Notice.

I. GENERAL CONSIDERATION.

Annotator's note. Since § 40-10.1-202 is similar to § 40-11-103 as it existed prior to the 2011 reorganization of the motor carrier statutes, relevant cases construing that section have been included in the annotations to this section.

The legislative intent to coordinate motor vehicle transportation is clearly manifest from the language used in this section. McKay v. Pub. Utils. Comm'n, 104 Colo. 402, 91 P.2d 965 (1939); Pub. Utils. Comm'n v. Stanton Transp. Co., 153 Colo. 372, 386 P.2d 590 (1963).

This article was passed so that there would be no serious conflict between contract carriers and common carriers. Pub. Utils. Comm'n v. Stanton Transp. Co., 153 Colo. 372, 386 P.2d 590 (1963).

This article does not deny a contract carrier the right to operate as such and does not force him to operate, if at all, as a common carrier, thus denying him due process of law. Bushnell v. People, 92 Colo. 174, 19 P.2d 197 (1933).

Article 10 of this title does not apply to contract carriers. Pollard Contracting Co. v. Pub. Utils. Comm'n, 644 P.2d 7 (Colo. 1982).

The same carrier may hold both a common and contract carrier permit so long as there is no overlapping of territory between the two. Red Ball Motor Freight, Inc. v. Pub. Utils. Comm'n, 185 Colo. 438, 525 P.2d 439 (1974).

Contract carriers are public utilities by legislative mandate. Pub. Utils. Comm'n v. Stanton Transp. Co., 153 Colo. 372, 386 P.2d 590 (1963).

II. PUBLIC INTEREST AND POWERS OF COMMISSION.

The general assembly has expressly declared that the business of contract carriers by motor vehicle is affected with a public interest. Pub. Utils. Comm'n v. Stanton Transp. Co., 153 Colo. 372, 386 P.2d 590 (1963).

The public utilities commission (PUC) is clothed with general powers to regulate and control carriers for hire within the state, and courts will not interfere with its administrative rulings when they are just and reasonable; also that procedure before it should not be tested by the technical rules of pleading. Pub. Utils. Comm'n v. Weicker Transp. Co., 102 Colo. 211, 78 P.2d 633 (1938).

A private or contract carrier must have an authorizing certificate before engaging in such business, and that one failing to comply with the law is subject to damages caused to others. Colo. Milk Transp., Inc. v. Safeway Stores, Inc., 269 F.2d 755 (10th Cir. 1959).

Commission authorized to deny application for transfer of permit. When this section and § 40-11-105 are read together, and in light of the general public policy of the law to protect common carriers, it is apparent that denial of an application for transfer of a permit is within the PUC's regulatory authority. Mobile Pre-Mix Transit, Inc. v. Pub. Utils. Comm'n, 618 P.2d 663 (Colo. 1980).

The PUC may properly deny a transfer of a contract carrier's permit wherever there is a substantial opportunity for a transferee, because of its advantageous position in the industry, to discriminate or compete unfairly. Mobile Pre-Mix Transit, Inc. v. Pub. Utils. Comm'n, 618 P.2d 663 (Colo. 1980).

Finding of actual intent unnecessary for denial. It is not necessary that the PUC find actual intent before it may deny a transfer of a contract carrier's permit. Mobile Pre-Mix Transit, Inc. v. Pub. Utils. Comm'n, 618 P.2d 663 (Colo. 1980).

Carrier should not be denied certificate merely for prior unlawful conduct unless that unlawful conduct reached the level of intentional or reckless violations of the PUC's rules and regulations. Mobile Pre-Mix Transit, Inc. v. Pub. Utils. Comm'n, 618 P.2d 663 (Colo. 1980).

Rules by commission on liability under a permit were promulgated within the commission's authority where the rule merely provided that any person, firm, or corporation which operated vehicles under a contract carrier's contract permit were responsible for any violations of the public utilities law or any other rules and regulations of the commission. Regular Rt. Com. Carrier Conf. v. P.U.C., 761 P.2d 737 (Colo. 1988).

Commission may impose restrictions on transferred permit. The PUC, upon an application to transfer a contract carrier permit, may impose in the public interest reasonable restrictions not inconsistent with past operations upon how the permit shall be operated by the transferee. Pub. Utils. Comm'n v. Stanton Transp. Co., 153 Colo. 372, 386 P.2d 590 (1963).

It is the public interest, not the relative interests of the transferor and transferee, that is of paramount importance in matters concerning the transfer of a private carrier's permit and the public interest is not served if the effect of a transfer is to work economic devastation on common carriers. Pub. Utils. Comm'n v. Stanton Transp. Co., 153 Colo. 372, 386 P.2d 590 (1963).

Permit does not free contract carrier from competition. The granting of a private motor carrier permit gives the permit holder the right to serve in an authorized area, but not free from other competition. Pub. Utils. Comm'n v. DeLue, 175 Colo. 317, 486 P.2d 1050 (1971).

Since a contract carrier has no obligation to serve the public, it is not entitled to protection from competition. Thus if the public convenience and necessity shows a need for the common carrier service, it is the public policy of the state that the common carrier is entitled to authority to serve that need. DeLue v. Pub. Utils. Comm'n, 169 Colo. 159, 454 P.2d 939 (1969).

Standard on review. Determination by the PUC of whether a substantial opportunity for discrimination or unfair competition exists should not be disturbed unless it is unsupported by competent evidence or is arbitrary and capricious. Mobile Pre-Mix Transit, Inc. v. Pub. Utils. Comm'n, 618 P.2d 663 (Colo. 1980).

III. IMPAIRMENT OF COMMON CARRIER SERVICE AND NOTICE.

Impairment of service of authorized common carrier. No permit as a private carrier can be granted by the commission if in its opinion, based upon proper evidence, such private-carrier operation impairs the efficient public service of an authorized common carrier serving the same territory or over the same highways or routes. McKay v. Pub. Utils. Comm'n, 104 Colo. 402, 91 P.2d 965 (1939); Archibald v. Pub. Utils. Comm'n, 115 Colo. 190, 171 P.2d 421 (1946); Donahue v. Pub. Utils. Comm'n, 145 Colo. 499, 359 P.2d 1024 (1961); Ward Transp., Inc. v. Pub. Utils. Comm'n, 151 Colo. 76, 376 P.2d 166 (1962); Pub. Utils. Comm'n v. Stanton Transp. Co., 153 Colo. 372, 386 P.2d 590 (1963); DeLue v. Pub. Utils. Comm'n, 169 Colo. 159, 454 P.2d 939 (1969).

The determination to be made in considering an application for a contract carrier permit is whether the existing common carrier service will be impaired if the application is granted. Pollard Contracting Co. v. Pub. Utils. Comm'n, 644 P.2d 7 (Colo. 1982).

"Person interested" does not include contract carriers. The clear intent of the section is that "persons interested in or affected by the issuance of such permit . . ." does not include other contract carriers. Pub. Utils. Comm'n v. DeLue, 175 Colo. 317, 486 P.2d 1050 (1971).

However, contract carriers might intervene in proceedings, at the discretion of the P.U.C. Pub. Utils. Comm'n v. DeLue, 175 Colo. 317, 486 P.2d 1050 (1971).

Intervenors are not thereby required to receive notice of the proceedings. Pub. Utils. Comm'n v. DeLue, 175 Colo. 317, 486 P.2d 1050 (1971).

Intervention is a matter of standing which is an entirely separate question from the matter of required notice. Pub. Utils. Comm'n v. DeLue, 175 Colo. 317, 486 P.2d 1050 (1971).