Legal Issues
The Applicant and City urge an immediate grant of the interim authority to serve Avalon. They stress that the summer season is the busiest tourist time, and consequently the time that low-cost, scheduled service to Avalon is most important. As mentioned earlier, Protestant does not object to low-cost scheduled service. Therefore, we shall grant an interim CPCN to Applicant for scheduled service. This in no way decides the matters of safety and competence raised by Protestant. Neither does it preclude evidence on these subjects at the evidentiary hearing on the application in chief.
Protestant argues that the Commission should recognize and protect the rights of employees of the former owner who have been adversely affected by the demise of the former owner, citing Richmond and San Rafael Ferry, 52 CPUC 420 (1953). That case, and subsequent decisions referring to it, all involve transfers, consolidations, mergers, or abandonment. None of those situations is present here. The former certificate holder and owner of the ships in question ceased operations in September, 2000. (Tr. 144.) Applicant is not asking for transfer of the operating authority held by the former owner. It did not purchase the ships from the former owner. Other than in a merger, the Commission has never required employment of existing employees by the acquiring corporation. (PSA, 75 CPUC 1 (1973)). Here we have no merger and no existing employees. Whether our authority to condition a certificate extends to the present case is not something we wish to decide on the basis of a shortened briefing schedule and an interim opinion. We shall reserve this issue for the final decision in this proceeding.
Applicant and City contend that the lack of low-cost service is causing great economic harm to City and its merchants. This, they argue, brings about an unforeseen emergency condition, thereby justifying the shortening of the otherwise required 30-day comment period in Pub. Util. Code § 311(d). When the application was filed in February, 2001, there was no low-fare scheduled service to Avalon. Applicant did not request that it be granted interim scheduled service to fill this void, only interim nonscheduled service to the camps. When the protest was filed on April 3, 2001, alerting both Applicant and City that an evidentiary hearing might reasonably be expected, there was no move to hasten our proceedings. Neither Applicant nor City demonstrated any sense of urgency to the Commission until June 4, 2001. Both Applicant and City knew that Applicant had the only boats capable of offering high-volume, low-cost service. (Tr. 180.) Indeed, it was not until May 15, 2001, more than a month after the protest was filed, that Avalon's city council asked Applicant to seek interim authority (Tr. 184, 298.), and another three weeks before Applicant responded to this "emergency" by submitting the June 4, 2001 filing.
Under these circumstances, lack of large, low-cost vessel service was anything but unforeseeable, and the slow pace adopted by Applicant and City make it difficult to find an emergency. The Commission must follow the 30-day procedure set forth in Pub. Util. Code § 311(d).
Applicant refers us to Rule 77.7(f)(9) as an alternate means of shortening the 30-day provision of Pub. Util. Code § 311(d). This does not provide the help Applicant desires. The first sentence of Rule 77.7 provides:
"This rule implements provisions of Public Utilities Code Section 311(g), as effective January 1, 1999, for public review and comment by parties on Commission decisions and alternates." (Emphasis added.)
The statute to which the ALJ directed the parties' attention was Pub. Util. Code § 311(d), which covers matters that have gone to hearing and are ready for a proposed decision of the Assigned Commissioner or ALJ, as is the instant proposed decision. Section 311(g), and Rule 77.7(f)(9) that implements it, apply to Commission decisions and alternates issued in matters that have not proceeded to hearing, and are thus inapplicable here.
Comments on Proposed Decision
The proposed decision of the ALJ in this matter was mailed to the parties in accordance with Section 311(d) of the Public Utilities Code and Rule 77.1 of the Rules of Practice and Procedure. Comments were filed on ___________ and reply comments were filed on ________________.
1. There is no boat currently providing low-cost, high-volume scheduled service to Avalon.
2. The summer period is the time of greatest tourist demand for service to Avalon.
3. The economy and tax revenue of Avalon are lower than expected, partially as a result of no scheduled service to Santa Catalina Island.
4. Applicant presently owns and operates the Catalina King, a vessel formerly used in the Santa Catalina Island service.
5. The Catalina King is presently under charter to transport people to camps on Santa Catalina Island.
6. Applicant proposes to offer scheduled service to Avalon from San Pedro and Long Beach with the Catalina King at such time as it is not using the vessel for charter service.
7. Applicant proposes to place a second vessel of similar size, the Catalina Countess, in service within 21 days of securing authority to provide interim scheduled service to Avalon.
8. Avalon has reserved berthing facilities for the large boats that Applicant proposes to use for the service to Avalon.
9. Applicant has resisted applications for employment from former crewmembers of the Catalina King and Countess.
10. Protestant described several safety defects and incorrect procedures observed on the Catalina King while operating with the new crew.
11. Applicant has corrected the problem of allowing unauthorized passengers in the wheelhouse while under way and having insufficient personnel at the boarding ramp.
12. Applicant has agreed to accept job applications and interview members of Protestant for employment.
13. There is no record of any accident caused by inefficient or improper crew actions since charter service began without members of Protestant serving on the Catalina King.
1. Applicant has demonstrated competence to handle scheduled service to Avalon on an interim basis. This does not prejudge or preclude issues of safety and competence being raised in the evidentiary hearings pertaining to a permanent certificate for scheduled and nonscheduled service.
2. Public convenience and necessity warrant the granting of interim scheduled service to Avalon by Applicant.
3. Whether the Commission has the authority to order Applicant to hire former members of the crews who worked the ships to Avalon will be deferred until a final decision in this proceeding.
4. There is no unforeseen emergency situation that would justify waiving or shortening the 30-day waiting period mandated in Pub. Util. Code. § 311(d).
IT IS ORDERED that:
1. Applicant's request for an interim certificate of public convenience and necessity to provide scheduled vessel service to Avalon from San Pedro and Long Beach is granted.
2. Applicant's expressed willingness to receive applications and interview members of Protestant for employment may be tested at future evidentiary hearings.
3. Applicant shall not allow unauthorized passengers in the wheelhouse of its vessels.
4. Applicant shall have at least two crewmembers at the doorway of its vessels and the boarding ramp to ensure safety of passengers.
5. Because of the economic injury demonstrated by the City of Avalon, this order will be made effective today.
6. Evidentiary hearings concerning permanent authority for scheduled and nonscheduled service will be held commencing July 11, 2001, in San Francisco unless otherwise ordered by the assigned commissioner or the ALJ.
This order is effective today.
Dated , at San Francisco, California.
