GA Code § 40-1-106 (2021)
2021 Georgia Code|Title 40 - Motor Vehicles and Traffic|Chapter 1 - Identification and Regulation|Article 3 - Motor Carriers|Part 2 - Certification of Motor Carriers|§ 40-1-106. Fitness of Applicant; Protest of Application by Certificate Holder

  The commissioner shall issue a motor carrier certificate to a person authorizing transportation as a motor carrier of passengers or household goods subject to the jurisdiction of the department if the commissioner finds that the person is fit, willing, and able to provide the transportation to be authorized by the certificate and to comply with regulations of the department. Fitness encompasses three factors:   The applicant's financial ability to perform the service it seeks to provide;   The applicant's capability and willingness to perform properly and safely the proposed service; and   The applicant's willingness to comply with the laws of Georgia and the rules and regulations of the department.     The initial burden of making out a prima-facie case that an applicant is fit to provide such service rests with the applicant.   Upon an applicant making out a prima-facie case as to the motor carrier's ability to provide the service, the burden shifts to protestant to show that the authority sought should not be granted.   A protest of a motor carrier of passengers or of household goods to an application shall not be considered unless the protesting motor carrier:   Possesses authority from the department to handle, in whole or in part, the authority which is being applied for and is willing and able to provide service and has performed service during the previous 12 month period or has actively in good faith solicited service during such period;   Has pending before the department an application previously filed with the department for substantially the same authority; or   Is granted by the commissioner leave to intervene upon a showing of other interests which in the discretion of the commissioner would warrant such a grant.     The commissioner may issue a certificate without a hearing if the application is unprotested or unopposed.     (Code 1981, §40-1-106, enacted by Ga. L. 2012, p. 580, § 1/HB 865; Ga. L. 2013, p. 838, § 9/HB 323.)   Editor's notes.   - Ga. L. 2013, p. 838, § 20/HB 323, not codified by the General Assembly, provides, in part: "This Act shall become effective on July 1, 2013, and shall apply to violations committed on or after such date".   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 68-609 and former O.C.G.A. § 46-7-7 are included in the annotations for this Code section.   Principles generally accepted as elements of proof of public convenience and necessity.    - In determining whether the public interest requires the service and whether the certificate should be granted, the commission was directed by statute to consider the five subjects set out in former Code 1933, § 68-609. While these provisions were only directory or advisory, and it was not mandatory that each be proved before the commission was authorized to grant a certificate, this court recognized that this was a pronouncement by the General Assembly of principles of law generally accepted as elements of proof of public convenience and necessity. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957) (decided under former Code 1933, § 68-609).   Provisions of this Code section are advisory.    - Each of the five specific subjects set forth in former Code 1933, § 68-609, which the law said the commission must consider, was intended for the guidance of the commission and to define the fields in which the commission should give consideration, but was merely advisory, irrespective of what the evidence might disclose in respect to each of the five subjects. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954) (decided under former Code 1933, § 68-609).   Provisions not applicable to grant or denial of Class "B" certificates.    - Provisions of former Code 1933, § 68-609 declaring that the commission must consider whether existing transportation service of all kinds was adequate to meet the reasonable public needs, the volume of existing traffic over such route, and whether such traffic and that reasonably to be anticipated in the future can support already existing transportation agencies and also the applicant, the effect on existing transportation revenues and service of all kinds, and particularly whether the granting of such certificate would or may seriously impair essential existing public service, was advisory only and, irrespective of what the evidence might be upon the subjects there mentioned, the commission may grant or deny a Class "B" certificate without offending the law. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954) (decided under former Code 1933, § 68-609); Woodside Transf. & Storage Co. v. Georgia Pub. Serv. Comm'n, 212 Ga. 625, 94 S.E.2d 706 (1956);(decided under former Code 1933, § 68-609).    The 1950 amendment to former Code 1933, § 68-609 was expressly limited to certificates over fixed routes, and had no application to Class "B" certificates. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954) (decided under former Code 1933, § 68-609); Woodside Transf. & Storage Co. v. Georgia Pub. Serv. Comm'n, 212 Ga. 625, 94 S.E.2d 706 (1956);(decided under former Code 1933, § 68-609).   Use of term "public."    - The use of the term "public" in former O.C.G.A. § 46-7-7 was intended to distinguish private carriage operations which require no certificate of public convenience and necessity. Georgia Messenger Serv., Inc. v. Georgia Pub. Serv. Comm'n, 194 Ga. App. 340, 390 S.E.2d 283, cert. vacated, 260 Ga. 470, 397 S.E.2d 709 (1990) (decided under former O.C.G.A. § 46-7-7).   Primary concern is public interest and welfare and grant of certificate is discretionary.    - In the hearing on an application for a certificate, the commission merely conducts an investigation of fact, authorized by statute, in the determination of which the primary concern is the public interest and welfare. Whether or not the commission grants an application for a certificate is purely a matter of discretion and not one of absolute right. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957) (decided under former Code 1933, § 68-609).   Five factors enumerated to be considered by commission.    - Former O.C.G.A. § 46-7-7 enumerated five factors, among others, that the Public Service Commission must consider in determining whether a certificate of public convenience and necessity should be granted. RTC Transp., Inc. v. Georgia Pub. Serv. Comm'n, 165 Ga. App. 539, 301 S.E.2d 896 (1983) (decided under former O.C.G.A. § 46-7-7).   Public interest comprehends much more than five elements contained in this section.    - Both former Code 1933, § 68-504, which related to "motor contract carriers" and former Code 1933, § 68-609, which related to "motor common carriers" require the procurement of a certificate of public convenience and necessity from the commission after a hearing pursuant to findings by the commission to the effect that "the public interest requires such operation." The public interest, while embracing the five elements, comprehends much more. J. & M. Transp. Co. v. Georgia Pub. Serv. Comm'n, 217 Ga. 296, 122 S.E.2d 227 (1961) (decided under former Code 1933, § 68-609).   No error to refuse injunction when evidence supports discretion of commission.    - When it appears that the commission had evidence authorizing the commission in the exercise of the commission's discretion to issue the certificate applied for, the trial judge did not err in refusing to enjoin the commission or the applicant. J. & M. Transp. Co. v. Georgia Pub. Serv. Comm'n, 217 Ga. 296, 122 S.E.2d 227 (1961) (decided under former Code 1933, § 68-609).   Commission free to exercise its judgment to grant or deny applications.    - Commission, as respects Class "B" certificates, is free to exercise the commission's own judgment and to grant or deny the applications for such certificates. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954) (decided under former Code 1933, § 68-609).   Error for trial judge to enjoin certificate holder from operating.    - It was error for the trial judge to enjoin the holder of a Class "B" certificate from operating thereunder upon the theory that the evidence failed to show inadequacy of existing transportation service. Petroleum Carrier Corp. v. Davis, 210 Ga. 568, 81 S.E.2d 805 (1954) (decided under former Code 1933, § 68-609).   No interference with order of commission unless showing of unreasonableness.    - Neither the trial court, nor a court on review, will substitute the court's own discretion and judgment for that of the commission when the commission exercised the commission's discretion in a matter over which the commission had jurisdiction, and will not interfere with a valid order of the commission unless it be clearly shown that the order is unreasonable, arbitrary, or capricious. Brown Transp. Corp. v. Pilcher, 222 Ga. 276, 149 S.E.2d 670 (1966) (decided under former Code 1933, § 68-609).   Commission's order supported by some evidence will not be overturned on appeal.    - When the record reflects that the Public Service Commission's order denying the requested certificates was supported by some evidence and was not unreasonable, arbitrary, or capricious, the Court of Appeals will not substitute the court's own decision for that of the commission. RTC Transp., Inc. v. Georgia Pub. Serv. Comm'n, 165 Ga. App. 539, 301 S.E.2d 896 (1983) (decided under former O.C.G.A. § 46-7-7).   Applicability of decisions of Supreme Court construing comparable provisions.    - Provisions of former Code 1933, § 68-504 were in all respects the same as the provisions of former Code 1933, § 68-609 with respect to the enumerated five elements that the commission must consider. Therefore, the decisions of the Supreme Court dealing with former Code 1933, § 68-609, were directly applicable and controlling on the construction of former Code 1933, § 68-504. Both sections add to the five enumerated considerations the following: "among other things." This quoted provision cannot be ignored, and its proper recognition required a construction that the commission's judgment need not rest upon any or all of the five fields enumerated. J. & M. Transp. Co. v. Georgia Pub. Serv. Comm'n, 217 Ga. 296, 122 S.E.2d 227 (1961) (decided under former Code 1933, § 68-609).   So long as certificate remained unrevoked, commission could authorize certificate's transfer.    - Question of public convenience and necessity having been determined by the commission at the time the certificate was issued, the commission would not be required on an application for transfer to consider that question again before granting a transfer of the certificate. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957) (decided under former Code 1933, § 68-609).   When existing certificate holder not entitled to notice and opportunity required by this section.    - When the proposed route was not the same as that used by a certificate holder, that company was not entitled to notice and an opportunity to remedy inadequate service as required by former Code 1933, § 68-609. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957) (decided under former Code 1933, § 68-609).   Existing certificate holder must have opportunity to improve service.    - Competing motor carrier certificate cannot be granted until after the existing certificate holder has had an opportunity to improve service. Statesboro Tel. Co. v. Georgia Pub. Serv. Comm'n, 235 Ga. 179, 219 S.E.2d 127 (1975) (decided under former Code 1933, § 68-609).   "Route" defined.    - Word "route," as used in former Code 1933, § 68-609, meant the particular highway or road, or series of highways or roads, over which a carrier is authorized by the commission to operate the carrier's vehicles between terminal points. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957) (decided under former Code 1933, § 68-609).   "Route" and "highway" distinguished.    - A "route" is a direction of travel from one place to another. It may be over one or more named or numbered highways or paths. A "highway" is a road for travel, and may be a portion of one or more different routes. When numbered or named as a highway running from one point to another, it becomes a route. Brown Transp. Corp. v. Pilcher, 222 Ga. 276, 149 S.E.2d 670 (1966) (decided under former Code 1933, § 68-609).   When two routes can be same route.    - Two routes cannot be the same unless the highways, the certificates of convenience and necessity, and the terminal points are the same. Brown Transp. Corp. v. Pilcher, 222 Ga. 276, 149 S.E.2d 670 (1966) (decided under former Code 1933, § 68-609).   Certificate amendment based on need expressed by single shipper.    - Certificate amendment, which was sought on the basis of a need expressed by a single shipper, was properly granted since the evidence established that the proposed service would serve a useful public purpose and be responsive to a public demand or need. Georgia Messenger Serv., Inc. v. Georgia Pub. Serv. Comm'n, 194 Ga. App. 340, 390 S.E.2d 283, cert. vacated, 260 Ga. 470, 397 S.E.2d 709 (1990) (decided under former O.C.G.A. § 46-7-7).    Cited in Georgia Pub. Serv. Comm'n v. Smith Transf. Co., 207 Ga. 658, 63 S.E.2d 653 (1951).   RESEARCH REFERENCES   Am. Jur. 2d.   - 13 Am. Jur. 2d, Carriers, § 130 et seq.   C.J.S.   - 60 C.J.S., Motor Vehicles, §§ 201, 214 et seq., 223 et seq.   ALR.    - State regulation of carriers by motor vehicle as affected by interstate commerce clause, 47 A.L.R. 230; 49 A.L.R. 1203; 62 A.L.R. 52; 85 A.L.R. 1136; 109 A.L.R. 1245; 135 A.L.R. 1358.    When granting or refusing certificate of necessity or convenience for operation of motorbuses justified, 67 A.L.R. 957.