CO Code § 40-10.1-203 (2021)
2021 Colorado Code|Title 40 - Utilities|Article 10.1 - Motor Carriers|Part 2 - Motor Carriers of Passengers - Common Carriers and Contract Carriers|§ 40-10.1-203. Rules for Issuance of Certificate - Standing to Protest - Judicial Review - Legislative Declaration

  The commission has the power to issue a certificate to a common carrier or to issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the rights granted by the certificate such terms and conditions as, in the commission's judgment, the public convenience and necessity may require.      The granting of a certificate to operate a taxicab service within and between counties with a population of less than seventy thousand, based on the most recent available federal census figures, is governed by the doctrine of regulated monopoly.      The granting of a certificate to operate a taxicab service within and between those counties with a population of seventy thousand or greater that are not served by a large-market taxicab service pursuant to part 7 of this article 10.1, based on the most recent available federal census figures, is not an exclusive grant or monopoly, and the doctrine of regulated competition applies. (b) (I) The granting of a certificate to operate a taxicab service within and between those counties with a population of seventy thousand or greater that are not served by a large-market taxicab service pursuant to part 7 of this article 10.1, based on the most recent available federal census figures, is not an exclusive grant or monopoly, and the doctrine of regulated competition applies.    The general assembly finds, determines, and declares that nothing in this subsection (2) requires or prohibits a taxicab company applying for a certificate to form a labor union nor requires any taxicab driver to join a labor union.           Repealed. (c) (I) (A) Repealed.    Notwithstanding any provision of this section to the contrary, the holder of a certificate of public convenience and necessity that contains authority to operate as a taxicab between points within the state of Colorado shall also be deemed to hold taxicab authority to pick up passengers from any point in the state of Colorado and transport the passengers back to the certificate holder's authorized area when the certificate holder has dropped off passengers in close proximity to that point. The provisions of this sub-subparagraph (B) do not apply when a taxicab drops off a passenger at any airport in this state.       The holder of a certificate that contains authority to operate a taxicab service to points in the city and county of Denver also holds taxicab service authority from points in the city and county of Denver to all points within the common carrier's base area, defined as that geographic area in which such common carrier may provide point-to-point taxicab service.    The commission shall amend, by order and without notice or hearing, any existing taxicab service certificate by removing all language authorizing large-market taxicab service offered in accordance with part 7 of this article 10.1.          When a request for reconsideration of a written recommended decision under this section has been made by filing exceptions pursuant to section 40-6-109 and the commission has rendered a final decision on the exceptions as provided in article 6 of this title 40, any party to the proceeding may, within thirty days after the final decision, apply directly to a district court in this state for judicial review pursuant to section 40-6-115. For purposes of judicial review, a decision of the commission on exceptions is final on the date the decision is served on the parties to the proceeding.     History. Source: L. 2011: (2)(c)(I) amended,(SB 11-180), ch. 249, p. 1085, § 1, effective June 2; entire article added,(HB 11-1198), ch. 127, p. 406, § 1, effective August 10. L. 2015: (2)(b)(II) amended,(HB 15-1316), ch. 339, p. 1376, § 1, effective August 5. L. 2018: (2)(b), (2)(c)(III), and (3) amended and (2)(c)(I)(A) repealed,(HB 18-1320), ch. 363, p. 2166, § 9, effective August 8.    Editor's note:   Subsection (2)(c)(I) was numbered as § 40-10-105 (2)(d)(I) in Senate Bill 11-180 (see L. 2011, p. 1085 ). That provision was harmonized with subsection (2)(c)(I) as it appears in House Bill 11-1198.   ANNOTATION   Law reviews. For note, “Division of Property in Separate Maintenance”, see 30 Dicta 310 (1953). For article, “May Regulated Utilities Monopolize the Sun?”, see 56 Den. L.J. 31 (1979).   Annotator's note. Since § 40-10.1-203 is similar to § 40-10-105 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.   Article XXV, Colo. Const., has granted to the public utilities commission (PUC) authority to issue certificates of public convenience and necessity. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   The PUC's primary function and activity is certification, registration, and permitting of public utilities. The PUC does not offer, directly or indirectly, telephone services, electric services, motor vehicle services, or any other public utility services or programs to the public. Its function is limited to regulation of private entities and public utilities that offer such services. Reeves v. Queen City Transp., 10 F. Supp. 2d 1181 (D. Colo. 1998 ).   A public utility's activity does not become a “program or activity” of the PUC for purposes of the Americans with Disabilities Act merely because of the PUC's issuance of a certificate of public convenience and necessity. Reeves v. Queen City Transp., 10 F. Supp. 2d 1181 (D. Colo. 1998 ).   Regulated competition to protect public from destructive or excessive competition. The obligation to safeguard the general public against the impaired services or higher rates accompanying destructive or excessive competition is at the heart of the policy of regulated competition. Morey v. Pub. Utils. Comm'n, 629 P.2d 1061 (Colo. 1981); Trans-Western Express, Ltd. v. Pub. Utils. Comm'n, 877 P.2d 350 (Colo. 1994).   The policy of regulated competition endorsed by subsection (2) reflects a legislative determination that some restraints on inter-carrier competition are necessary to protect the public interest. Morey v. Pub. Utils. Comm'n, 629 P.2d 1061 (Colo. 1981).   Jurisdiction is expressly conferred on the commission by this section. Eveready Freight Serv., Inc. v. Pub. Utils. Comm'n, 131 Colo. 172 , 280 P.2d 442 (1955).   The commission under this section is acting in a legislative capacity. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   Effect of finding of unlawfulness under old doctrine. Under the regulated monopoly doctrine in effect prior to this section, it has intimated fairly strongly that when a contract carrier was violating the law and operating as a common carrier he could not use this as the basis for obtaining a common carrier certificate. Again, with some shadings, if there was a finding of unlawfulness of the contract carrier permit, the certificate of public convenience and necessity would be denied, irrespective of the character of the unlawfulness. Thacker Bros. Transp. v. Pub. Utils. Comm'n, 189 Colo. 301 , 543 P.2d 719 (1975).   Present effect. For a certificate to be denied under the present section there must be a finding by the commission, not only of unlawfulness, but of violations of the law including the rules and regulations of the commission reaching the height of intentional violation, reckless disregard for the law, or persistent, protracted, intentional, and knowing violation. Thacker Bros. Transp. v. Pub. Utils. Comm'n, 189 Colo. 301 , 543 P.2d 719 (1975).   The function of the PUC is to resolve questions of fact. Pub. Utils. Comm'n v. Verl Harvey, Inc., 150 Colo. 158 , 371 P.2d 452 (1962).   The PUC has wide discretionary powers in determining the demands of public convenience and necessity. Pub. Utils. Comm'n v. Donahue, 138 Colo. 492 , 335 P.2d 285 (1959).   This statute changed the doctrine of “regulated monopoly” into the doctrine of “regulated competition”. Wells Fargo Armored Serv. Corp. v. Pub. Utils. Comm'n, 190 Colo. 204 , 545 P.2d 707 (1976).   In this section the general assembly announced a policy of regulated competition in the granting or denying of certificates of public convenience and necessity to operate a motor vehicle for hire. Rocky Mt. Airways, Inc. v. Pub. Utils. Comm'n, 181 Colo. 170 , 509 P.2d 804 (1973).   This section established the legislative doctrine of regulated competition. Thacker Bros. Transp. v. Pub. Utils. Comm'n, 189 Colo. 301 , 543 P.2d 719 (1975).   Senate Bill 208, adopted by Colo. Sess. Laws 1967, ch. 433, at 974, and now in this section, changed the policy of this state from one of regulated monopoly to “regulated competition”. Denver Cleanup Serv., Inc. v. Pub. Utils. Comm'n, 192 Colo. 537 , 561 P.2d 1252 (1977).   The general assembly, in effect, stated in subsection (2) that henceforth the state's policy should be one of regulated competition and no longer that of regulated monopoly. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   Regulated competition is not synonymous with deregulation. Morey v. Pub. Utils. Comm'n, 629 P.2d 1061 (Colo. 1981).   The legislative allocation of the burdens of proof in this section require proof by a preponderance of the evidence. If an applicant meets the initial burden of proving that it is operationally and financially fit to provide the proposed taxicab service, the commission is statutorily obligated to issue a certificate unless those opposing the application are able to prove both that the public convenience and necessity do not require its issuance and that the issuance of the certificate would be detrimental to the public interest. Mile High Cab, Inc. v. CO PUC, 2013 CO 26, 302 P.3d 241.   Authorization of new service granted only pursuant to this section. Authorization to engage in an entirely new service, a service which the applicant is forbidden to enter, can be granted only pursuant to this section. Pub. Utils. Comm'n v. Donahue, 138 Colo. 492 , 335 P.2d 285 (1959).   The controlling factor under subsection (2) is the public interest. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   Subsection (2) is not void because the general assembly did not define the term “regulated competition”. The term is perfectly plain and understandable. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   The commission has the power to prescribe reasonable rules and regulations in connection with a certificate of public convenience and necessity. Airport Limousine Serv., Inc. v. Cabs, Inc., 167 Colo. 378 , 447 P.2d 978 (1968).   The commission has been given authority to issue more than one certificate for the same route, or portion thereof, if it finds that the present or future public convenience and necessity requires or will require such operation. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   Certificate holder has no vested right to keep out competition. The fact that a common carrier is presently operating on a route does not give it a vested right to keep out all new competition merely because its service is adequate. Morey v. Pub. Utils. Comm'n, 196 Colo. 153 , 582 P.2d 685 (1978).   A common carrier serving a particular area is entitled to protection against competition so long as the offered service is adequate to satisfy the needs of the area. Pub. Utils. Comm'n v. Donahue, 138 Colo. 492 , 335 P.2d 285 (1959); Denver & R. G. W. R. R. v. Pub. Utils. Comm'n, 142 Colo. 400 , 351 P.2d 278 (1960); Ephraim Freightways, Inc. v. Pub. Utils. Comm'n, 151 Colo. 596 , 380 P.2d 228 (1963).   Finding of public convenience and necessity prerequisite to issuance of certificate. As a condition precedent to the issuance of a certificate, the commission shall find that the service to be authorized is or will be required by present or future public convenience and necessity. Denver & R. G. W. R. R. v. Pub. Utils. Comm'n, 142 Colo. 400 , 351 P.2d 278 (1960).   “Public convenience and necessity” involves more than simply showing that another's business can be taken away from him by one means or another. And it is more than rendering “better” service. Pub. Utils. Comm'n v. Verl Harvey, Inc., 150 Colo. 158 , 371 P.2d 452 (1962).   Question involves whether convenience and necessity demand additional service. The question involved in the granting or denial of a certificate of public convenience and necessity for a common carrier in a particular area is not whether the extent of business in such area is sufficient to warrant an additional certified carrier, but whether the public convenience and necessity demand an additional service. Denver & R. G. W. R. R. v. Pub. Utils. Comm'n, 142 Colo. 400 , 351 P.2d 278 (1960); Ephraim Freightways, Inc. v. Pub. Utils. Comm'n, 151 Colo. 596 , 380 P.2d 228 (1963).   The existence of an adequate and satisfactory service by motor carriers already in the area is a negation of a public need and demand for added service by another carrier. Denver & R. G. W. R. R. v. Pub. Utils. Comm'n, 142 Colo. 400 , 351 P.2d 278 (1960); Ephraim Freightways, Inc. v. Pub. Utils. Comm'n, 151 Colo. 596 , 380 P.2d 228 (1963).   The adequacy, availability, and competitive character of existing service are proper factors to consider in concluding that the applicant's service is not required to serve public convenience and necessity. Trans-Western Express, Ltd. v. Pub. Utils. Comm'n, 877 P.2d 350 (Colo. 1994).   The test of inadequacy is not perfection. Ephraim Freightways, Inc. v. Pub. Utils. Comm'n, 151 Colo. 596 , 380 P.2d 228 (1963).   Inadequacy of present service must be substantial. For a new service to be authorized in an area already served by a common carrier, inadequacy of the present service must be shown to be substantial. Ephraim Freightways, Inc. v. Pub. Utils. Comm'n, 151 Colo. 596 , 380 P.2d 228 (1963).   There must be some showing by “proper evidence” of inadequacy of existing common carrier service before a new authority can be granted. Denver & R. G. W. R. R. v. Pub. Utils. Comm'n, 142 Colo. 400 , 351 P.2d 278 (1960).   Adequacy of service is no longer controlling determinant. By the enactment of subsection (2), the general assembly intended to change and, in effect, did change the standard concerning inadequate service. Adequacy or inadequacy of service need no longer be the controlling determinant, although it is one of the elements that it has considered. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974); Morey v. Pub. Utils. Comm'n, 196 Colo. 153 , 582 P.2d 685 (1978).   Under subsection (2), a finding of inadequate service is no longer a prerequisite to the granting of a certificate. D & G San., Inc. v. Pub. Utils. Comm'n, 185 Colo. 386 , 525 P.2d 455 (1974); Contact-Colorado Springs, Inc. v. Mobile Radio Tel. Serv., Inc., 191 Colo. 180 , 551 P.2d 203 (1976).   Controlling consideration is public need, not adequacy of existing service. Under the policy of regulated competition, the controlling consideration is the public need. While adequacy of existing service is a factor to be considered, it is no longer the controlling determinant. Morey v. Pub. Utils. Comm'n, 629 P.2d 1061 (Colo. 1981); Trans-Western Express, Ltd. v. Pub. Utils. Comm'n, 877 P.2d 350 (Colo. 1994).   Public need means the needs of the public as a whole, not simply the needs of witnesses who testify in favor of an applicant's proposed services, and it may be so disserved by destructive competition as to justify denial of an application for common carrier authority. Morey v. Pub. Utils. Comm'n, 629 P.2d 1061 (Colo. 1981); Trans-Western Express, Ltd. v. Pub. Utils. Comm'n, 877 P.2d 350 (Colo. 1994).   Needs of applicant's customers not conclusive of public need. While the needs and preferences of an applicant's customers are probative of a public need for competitive services, they are not conclusive. Morey v. Pub. Utils. Comm'n, 629 P.2d 1061 (Colo. 1981); Trans-Western Express, Ltd. v. Pub. Utils. Comm'n, 877 P.2d 350 (Colo. 1994).   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 carrier not automatically entitled to be certified as common carrier. A contract carrier, whose operations more closely resemble that of a common carrier than that of a contract carrier, is not going to be automatically entitled to become certificated as a common carrier. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   Duplicative operation cannot be authorized where existing service is adequate. Where a carrier is already serving an area, a duplicative operation cannot be authorized where the existing service is adequate, because the granting of an additional certificate of public convenience and necessity requires a showing that the existing facilities and services are substantially inadequate. Rocky Mt. Airways, Inc. v. Pub. Utils. Comm'n, 181 Colo. 170 , 509 P.2d 804 (1973).   Two or more carriers authorized to provide what appear to be substantially similar services in the same area must be viewed as providing different services to the extent their respective certificates of convenience contain different terms or conditions. Any change in the terms and conditions initially imposed on one carrier's authority that results in improvement of that carrier's competitive position in the same market necessarily effects a change in the competitive structure previously determined by the PUC to be required by the public convenience and necessity. Any such change, therefore, may be authorized only if the applicable statutory criteria are satisfied. Yellow Cab Coop. Ass'n v. Pub. Utils. Comm'n, 869 P.2d 545 (Colo. 1994).   Carrier cannot establish a public need for additional service by its unauthorized operations. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974); G & G Trucking v. P.U.C. of Colo., 745 P.2d 211 (Colo. 1987).   PUC did not announce new evidentiary standard that forecloses the testimony of a single shipper to establish public need. The commission merely found a lack of support for the applicant's assertion that there was a public need to grant its application. Trans-Western Express, Ltd. v. Pub. Utils. Comm'n, 877 P.2d 350 (Colo. 1994).   As to lack of legislatively prescribed standards or criteria under which an additional competitive certificate may be granted or reviewed, see Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   When an established route is described by fixed points, the established route is more than a described passageway between the fixed points. The established route is a grant by the commission of statutory authority to serve the public on that route. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   The granting of “intermediate service” to a fixed point on the established route is in no way a limitation or exclusion of authority to serve the public over the entire route. In fact, if anything, it is a grant of additional authority for that fixed point. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   The administrative law judge properly considered the impact the additional competition might have on competing carriers and on the existing carrier's ability to provide safe and efficient transportation services to its customers and the public. The impact or harm to common carriers is relevant, however, only if it affects the general public, of which the carrier is a part. Trans-Western Express, Ltd. v. Pub. Utils. Comm'n, 877 P.2d 350 (Colo. 1994).   Commission's abuse of discretion. A finding by the PUC that public convenience and necessity justified granting authority to an applicant to expand illegal operations, being wholly unsupported by the record, amounted to an abuse of discretion. Pub. Utils. Comm'n v. Verl Harvey, Inc., 150 Colo. 158 , 371 P.2d 452 (1962).   On review the district court is limited to the determination of whether or not the PUC regularly pursued its authority and whether the record supported the findings of fact and conclusions of law. Rocky Mt. Airways, Inc. v. Pub. Utils. Comm'n, 181 Colo. 170 , 509 P.2d 804 (1973).   Court's authority on appeal. Under this section the commission needs to apply guidelines, and it is within the court's jurisdiction on appeal to see that it does. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974).   It is within the court's authority to declare standards and criteria as unconstitutional and arbitrary, capricious, unreasonable, or vague. Miller Bros. v. Pub. Utils. Comm'n, 185 Colo. 414 , 525 P.2d 443 (1974); Morey v. Pub. Utils. Comm'n, 629 P.2d 1061 (Colo. 1981).   A court may not set aside orders based upon findings of fact upon which the evidence is conflicting and competent. Ephraim Freightways, Inc. v. Pub. Utils. Comm'n, 151 Colo. 596 , 380 P.2d 228 (1963).   Likewise, great weight must be given to the interpretation which the commission gives to its own language, and unless such interpretation is clearly erroneous, arbitrary, or in excess of its jurisdiction, the courts may not interfere. McKenna v. Nigro, 150 Colo. 335 , 372 P.2d 744 (1962).   County which provides mass transit within county boundaries is exempt from regulation by PUC. City of Durango v. Durango Transp., 807 P.2d 1152 (Colo. 1991).