COCODE

40-10.1-106. Commission to make rules and prescribe rates.

Statute text

(1) The commission has the authority and duty to prescribe such reasonable rules covering the operations of motor carriers as may be necessary for the effective administration of this article, including rules on the following subjects:

(a) Ensuring public safety, financial responsibility, consumer protection, service quality, and the provision of services to the public;

(b) The circumstances under which a towing carrier may perform a nonconsensual tow of a motor vehicle, the responsibilities and facilities of the towing carrier for the care or storage of the motor vehicle and its contents, and the minimum and maximum rates and charges to be collected by the towing carrier for the nonconsensual towing and storage of the motor vehicle. In setting the rates and charges pursuant to this section, the commission may require towing carriers performing nonconsensual tows to submit financial statements or other financial information to determine the costs associated with the performance of nonconsensual towing and any motor vehicle storage incident thereto.

History

Source: L. 2011: Entire article added, (HB 11-1198), ch. 127, p. 399, 1, effective August 10.

Annotations

ANNOTATION

Annotations

Analysis

I. General Consideration.
II. Prescription of Rules and Regulations.
III. Prescription of Rates.

I. GENERAL CONSIDERATION.

Annotator's note. Since 40-10.1-106 is similar to 40-11-105 and 40-13-107 as they existed prior to the 2011 reorganization of the motor carrier statutes, relevant cases construing those sections 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).

Request for records authorized by rule under this section was not an unconstitutional warrantless search. The PUC therefore could assess a civil penalty for the carrier's refusal to produce the records. Eddie's Leaf Spring v. Pub. Utils. Comm'n, 218 P.3d 326 (Colo. 2009).

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 West Trucking v. Pub. Utils. Comm'n, 788 P.2d 755 (Colo. 1990).

No lien on personal property in a towed vehicle. The rules of the PUC governing towing carriers cannot be interpreted to grant or impose a lien upon personal property in a towed motor vehicle when the vehicle is removed from public property. Jam Action, Inc. v. Colo. State Patrol, 890 P.2d 210 (Colo. App. 1994).

Condition that towing carriers must agree to release personal property items inside a towed vehicle to the owner before payment of any accrued charges in order to be on a rotation towing list of the Colorado state patrol does not conflict with the PUC's authority to license and regulate towing carriers and does not supersede the exercise of the constitutional and statutory authority granted to the PUC nor abrogate its action. Jam Action, Inc. v. Colo. State Patrol, 890 P.2d 210 (Colo. App. 1994).

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. Consolidated 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. Consolidated 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. Consolidated 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. Consolidated 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-Fort Collins Freight Serv., Inc., 156 Colo. 366, 399 P.2d 242 (1965).