Colorado § 40-10.1-206 - Rates - limitations.

§ 40-10.1-206. Rates - limitations.

(1) It is unlawful for any common carrier to carry or advertise that it will carry any individuals at rates different from those it has on file with the commission for such carriage.

(2) A contract carrier shall not destroy or impair, through discrimination or unfair competition, the service or business of any common carrier or the integrity of the state's regulation of any such service or business; and to that end, the commission is authorized and directed to prescribe minimum rates, fares, and charges to be collected by contract carriers when competing with duly authorized common carriers, which rates, fares, and charges must not be less than the rates prescribed for common carriers for substantially the same or similar service.

(3) In accordance with this article and such rules as the commission may prescribe, every contract carrier subject to this article shall file with the commission, within such time and in such form as the commission may designate, and shall keep on file with the commission, at all times, schedules showing rates, charges, and collections, collected or enforced or to be collected or enforced, that in any manner affect or relate to the operations of any such contract carrier; and the commission has full power to change, amend, or alter any such tariff or, after hearing, fix the rates of any contract carrier subject to this article that competes with a common carrier.

Source: L. 2011: Entire article added, (HB 11-1198), ch. 127, p. 409, § 1, effective August 10.

ANNOTATION

I. General Consideration.

II. Prescription of Rules and Regulations.

III. Prescription of Rates.

I. GENERAL CONSIDERATION.

Annotator's note. Since § 40-10.1-206 is similar to § 40-11-105 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.

Legislative intent is clear, that the authorization of contract carriers shall not be detrimental, within the limits of the law, to common-carrier operation, and that motor transportation be coordinated in such a way as to preserve common-carrier operation and not to impair the integrity of state regulation of common-carrier service. McKay v. Pub. Utils. Comm'n, 104 Colo. 402, 91 P.2d 965 (1939).

Applied in Pollard Contracting Co. v. Pub. Utils. Comm'n, 644 P.2d 7 (Colo. 1982).

II. PRESCRIPTION OF RULES AND REGULATIONS.

The public utilities commission (PUC) has broad constitutional and statutory authority. However, the breadth of that authority is to be tested by the statutes themselves and not by the unbridled whim of the commission. The commission is a creature of statute. Both the power and scope of its authority and its procedures are necessarily controlled by the act upon which it relies. Pub. Utils. Comm'n v. Colo. Motorway, Inc., 165 Colo. 1, 437 P.2d 44 (1968).

Commission must comply with "procedural due process". The PUC, in a general investigation held for the purpose of promulgating rules and regulations, cannot, regardless of the type of evidence that may be presented to it, revoke, amend, or alter permits or certificates of participating parties. It must comply with the statutory procedural requirements which would legally justify the end sought to be accomplished, issue a notice, hold a hearing at which the respondent is given an opportunity to defend itself, and finally, enter its decision in accordance with the evidence. Anything less will not satisfy the statute nor that quality of fairness required by "procedural due process". Pub. Utils. Comm'n v. Colo. Motorway, Inc., 165 Colo. 1, 437 P.2d 44 (1968).

Commission authorized to deny application for transfer of permit. When § 40-11-103 and this section 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).

Once having granted one or even several waivers of its rules, the PUC was not bound to continue to grant waivers, the approval of which is more a matter of grace than of right. B & M Serv., Inc. v. Pub. Utils. Comm'n, 163 Colo. 228, 429 P.2d 293 (1967).

The emergency letters permitted by PUC rules governing contract motor vehicle carriers are improperly used when they enable another company to set up a transportation service for which it had no authority. Rumney v. Pub. Utils. Comm'n, 172 Colo. 314, 472 P.2d 149 (1970).

When determining whether a contract carrier is offering distinctly different or superior service to that offered by an authorized common carrier, the commission may consider a contract carrier's ancillary, nontransportation services. Ace W. Trucking v. Pub. Utils. Comm'n, 788 P.2d 755 (Colo. 1990).

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. PRESCRIPTION OF RATES.

Commission's duty to adopt rates. It is of particular significance that the general assembly in this section not only granted power and authority but also made it the commission's duty to adopt rates. Consol. Freightways Corps. v. Pub. Utils. Comm'n, 158 Colo. 239, 406 P.2d 83 (1965).

Section not applicable unless contract carrier competing with common carrier in rendering substantially same service. If a contract carrier is not competing with a common carrier and if the former is not rendering a service substantially the same or similar to that of the common carrier, then the terms and provisions of subsection (2) do not come into play and the tariff filed with the PUC is lawful, even though calling for rates less than those of the common carrier. Denver-Climax Truck Line v. Jim Chelf, Inc., 167 Colo. 69, 445 P.2d 399 (1968).

Rules by commission which establish the manner in which the minimum rate for a contract carrier competing with a common carrier is to be determined, which require a contract carrier competing with any scheduled common carrier to file a tariff of rates and charges not less than the lowest rate prescribed for any competing common carrier providing substantially the same or similar service, and which authorize the commission to change any tariff or rate of any contract carrier competing with a motor vehicle common carrier providing substantially the same or similar service, are consistent with the doctrine of regulated competition and are in accord with the commission's statutory authority to prescribe minimum rates for contract carriers not less than the rates prescribed for common carriers providing substantially the same or similar service. Regular Rt. Com. Carrier Conf. v. Pub. Utils. Comm'n, 761 P.2d 737 (1988).

Rates to protect public and prevent destructive rate-making. The commission has been charged with the duty to carry out its mission in two areas, to wit: To protect the public and to prevent destructive rate-making which could result in nonavailability of the service to the public. Consol. Freightways Corps. v. Pub. Utils. Comm'n, 158 Colo. 239, 406 P.2d 83 (1965).

Duty to prescribe rates for contract carriers tied to same duty for common carriers. Reading this section it would be impossible for the commission to carry out a duty to prescribe minimum rates for contract carriers if it established no rates for common carriers. The one duty is tied in with the other, and the prescribed rates for one class are the basis for the minimum rates for the other. Consol. Freightways Corps. v. Pub. Utils. Comm'n, 158 Colo. 239, 406 P.2d 83 (1965).

Fairness of rate left to commission. The general assembly itself has declared the necessity and the duty and left to the commission the determination of a rate that is fair to the public and sufficiently compensatory to the utility to ensure a fair return on its investment. Regulation—not nonregulation—has been declared to be in the public interest. Consol. Freightways Corps. v. Pub. Utils. Comm'n, 158 Colo. 239, 406 P.2d 83 (1965).

Mandamus is proper only where there is a legal duty to perform the act requested. Where the PUC has no clear legal duty to reject or annul the rates published, then until the PUC has determined that contract and common carriers are competing and that the services are substantially similar to those rendered by a competing common carrier, it has no duty to reject those rates, and no right to relief in the nature of mandamus in the trial court will lie. Denver-Laramie-Walden Truck Line v. Denver-Ft. Collins Freight Serv., Inc., 156 Colo. 366, 399 P.2d 242 (1965).