5. Discussion

During the PHC, the ALJ instructed Applicant to prepare a side-by-side comparison of his present scheduled service and that for which he was applying. This was not provided during Applicant's direct presentation and the ALJ told Applicant to have the comparison for the second day of hearing. Applicant again failed to comply, but through questioning it was determined that Applicant wished to expand his authority so that he could take passengers to and from LAX to Anaheim/Disneyland area hotels. No mention was made of ONT.

The Scoping Memo set forth issues that would be considered. Among these issues was Applicant's financial resources. At the evidentiary hearings, the balance sheet contained in Exhibit C to the application became an issue. Nazemzadeh stated that he was not capable of testifying to that balance sheet. What is incontrovertible is that this balance sheet does not reflect the ability of Applicant to finance the acquisition of equipment and personnel in the magnitude necessary to operate the schedules proposed by Applicant. The witness was questioned about other personal assets that he said would be devoted to the company but refused to specify these assets, even when cautioned by the ALJ that this could be a fatal failure of proof.

Much evidentiary hearing time was taken with charges that Applicant was operating in violation of its Commission authority and contrary to the rules of LAX. Protestant Airport Bus sponsored seven witnesses to this effect. There was testimony relating to abusive conduct towards potential passengers and others by an employee, offers to reduce fares (Exh 5, Exh 9), overcharging, misrepresenting his services as that of a protestant, soliciting passengers who were not prebooked, holding itself out to provide scheduled service between LAX and Anaheim area hotels, and taking prepaid vouchers from Airport Bus customers and either trying to redeem them or demanding cash and telling passengers to seek refunds from Airport Bus. Applicant attempted to refute these charges, but was hampered by his unfamiliarity with hearing procedures, excitability, and evasive responses when he was on the witness stand.

Applicant asserts a present right to transport a passenger from LAX to Anaheim, even though that passenger has not made advance reservations. Applicant's door-to-door authority requires advance booking. The scheduled service tariff does not mention the right to pick up passengers at LAX and transport them to Anaheim. (Applicant's filed tariff.)

One cause of much confusion in this proceeding is the term "on-call scheduled service" contained in Applicant's certificate. Under its tariff, Applicant need not operate over its route if there is no advance notice of a passenger requiring service. We shall not make any change to Applicant's existing authority to clarify this matter, but direct our Staff to make sure that no new applicants be granted such confusing rights.

Though professing only the desire for expanded scheduled service questioning disclosed that Applicant's proposed tariff sheets provided for rate increases over Applicant's presently filed rates. The proposed tariff sheets also indicated unannounced changes in service areas for door-to-door service. Applicant withdrew that portion of the application containing new tariff rates and service areas and agreed that he would use the presently filed tariff.

Applicant also indicated that he no longer wished to have "on-call scheduled service," but rather traditional service that would offer scheduled trips to particular places at specified times, whether there are passengers available or not. This makes the financial ability of Applicant particularly relevant, in that by his own estimate he will need 22-25 buses and 56 employees to perform this service. This contrasts with the present single bus and two drivers, including the owner, who presently operate Applicant. The complete disavowal of the financial information contained in the application, plus the refusal of Nazemzadeh to present his personal financial information, leaves the record barren of evidence required by Rule 21(i) and gives us no basis to determine whether he can perform the service represented to us.

In our consideration of the evidence we are mindful of the Commission's statement of policy in American Express Shuttle, D.99-10-068, indicating that the Commission would no longer scrutinize the financial information presented in an application for a passenger stage certificate. This was reaffirmed in M & A INTERNATIONAL GROUP, LLC, D.01-05-001. These decisions are distinguishable in that there was at least some weak evidence relating to financial capability, while in our matter there is absolutely nothing to indicate that Applicant has the financial ability to fulfill his application.

Protestant Airport Bus sought and was granted a subpoena and subpoena duces tecum that he served on the Anaheim Police Department. Records were obtained, but the subpoenaed officer did not appear. Airport Bus asks that sanctions be imposed. We note that loss of whatever evidence the officer would have given did not result in failure of Airport Bus' case. Sanctions will be denied, but we direct our Executive Director to mail a copy of this decision to the Anaheim Police Department, calling attention to this paragraph. We do not expect there to be a future failure to appear by a subpoenaed officer.