(1)(a) A certificate shall be issued to any qualified applicant authorizing the whole or any part of the operations covered by the application if it is found after notice and hearing that (i) the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of sections 75-301 to 75-322 and the requirements, rules, and regulations of the commission under such sections and (ii) the proposed service, to the extent to be authorized by the certificate, whether regular or irregular, is or will be required by the present or future public convenience and necessity. Otherwise the application shall be denied.

(b) The burden shall be on the applicant to show (i) that they are fit, willing, and able properly to perform the service proposed and to conform to the provisions of sections 75-301 to 75-322 and the requirements, rules, and regulations of the commission and (ii) that the proposed service will be responsive to a public demand or need.

(c) The burden shall be on any protestant to the application to show that (i) existing carriers are currently meeting, or will meet, the proposed need and (ii) that even if the applicant's service will be responsive to a public demand or need, that applicant would not be able to serve this need in a specified manner without endangering or impairing the operations of existing carriers contrary to the public interest.

(2)(a) A permit shall be issued to any qualified applicant therefor authorizing in whole or in part the operations covered by the application if it appears after notice and hearing from the application or from any hearing held on the application that (i) the applicant is fit, willing, and able properly to perform the service of a contract carrier by motor vehicle and to conform to the provisions of such sections and the lawful requirements, rules, and regulations of the commission under such sections and (ii) the proposed operation, to the extent authorized by the permit, will be consistent with the public interest by providing services designed to meet the distinct needs of each individual customer or a specifically designated class of customers as defined in subdivision (7) of section 75-302. Otherwise the application shall be denied.

(b) For a designation of authority to provide medicaid nonemergency medical transportation services pursuant to a contract with (i) the Department of Health and Human Services, (ii) a medicaid-managed care organization under contract with the department, or (iii) another agent working on the department's behalf as provided under section 75-303.01, in determining whether the authorization will be consistent with the public interest, the commission shall consult with the Director of Medicaid and Long-Term Care of the Division of Medicaid and Long-Term Care of the department or his or her designee.

(3)(a) A designation of authority shall be issued to any regulated motor carrier holding a certificate under subsection (1) of this section or a permit under subsection (2) of this section authorizing such carrier to provide medicaid nonemergency medical transportation services pursuant to a contract with (i) the Department of Health and Human Services, (ii) a medicaid-managed care organization under contract with the department, or (iii) another agent working on the department's behalf as provided under section 75-303.01, if it is found after notice and hearing from the application or from any hearing held on the application that the authorization is or will be required by the present or future convenience and necessity to serve the distinct needs of medicaid clients.

(b) The burden shall be on the applicant to show that the proposed service will be responsive to a public demand or need. The burden shall be on any protestant to the application to show that (i) existing carriers are currently meeting, or will meet, the proposed need and (ii) that even if the applicant's service will be responsive to a public demand or need, that applicant would not be able to serve this need in a specified manner without endangering or impairing the operations of existing carriers contrary to the public interest.

(c) In determining whether the authorization is or will be required by the present or future convenience and necessity to serve the distinct needs of medicaid clients, the commission shall consult with the Director of Medicaid and Long-Term Care of the Division of Medicaid and Long-Term Care of the department or his or her designee.

(4) This section shall not apply to transportation network companies holding a permit under section 75-324 or operations pursuant to a contract authorized by sections 75-303.02 and 75-303.03.

Annotations

1. Public convenience and necessity

2. Authority of commission

3. Burden of proof

1. Public convenience and necessity

A litigant may not request a certificate of public convenience and necessity and in the same action and at the same time challenge the constitutionality of sections 75-301 through 75-322. In determining public convenience and necessity, the deciding factors are (1) whether the operation will serve a useful purpose responsive to a public demand or need, (2) whether this purpose can or will be served as well by existing carriers, and (3) whether it can be served by the applicant in a specified manner without endangering or impairing the operations of existing carriers contrary to the public interest. An applicant who has been operating under color of authority need not make the same showing that an applicant who has never operated must make, and there is a presumption that the proposed service is or will be required by the present or future public convenience and necessity. When an applicant has been illegally conducting business for a sufficient period of time under a mistaken belief that its operations were legal, the color of right principles of law apply. However, if the applicant knew that its operations were illegal, then the color of right principles do not apply. In re Application of Nebraskaland Leasing & Assocs., 254 Neb. 583, 578 N.W.2d 28 (1998).

Public Service Commission's finding that applicant's continuing service after three warnings of illegal operation establishes applicant unfit to hold certificate of convenience and necessity was not arbitrary and capricious action. In re Application of A Touch of Class Limousine, 243 Neb. 33, 497 N.W.2d 71 (1993).

The existence of an adequate and satisfactory service by motor carriers already in the area is complete negation of public need and demand for added service by another carrier. In re Application of Kilthau, 236 Neb. 811, 464 N.W.2d 162 (1991).

To comply with this section, the applicant must prove, in part, that the applicant is fit financially. In re Application of Overland Armored Exp., 229 Neb. 524, 428 N.W.2d 166 (1988).

Public demand or need, which an applicant must prove to obtain a certificate from the Public Service Commission, is a present actual need or a need which will likely occur within the reasonably immediate or foreseeable future. In re Application of Renzenberger, Inc., 225 Neb. 30, 402 N.W.2d 294 (1987).

Public Service Commission's order granting certificate of public convenience and necessity was arbitrary and capricious; applicant had not met its burden of proof. In re Application of Red Carpet Limo. Serv., Inc., 221 Neb. 340, 377 N.W.2d 91 (1985).

In determining the issue of public convenience and necessity, controlling questions are whether the operation will serve a useful purpose responsive to a public demand or need; whether this purpose can or will be served as well by existing carriers; and whether it can be served by applicant in a specified manner without endangering or impairing the operations of existing carriers, contrary to public interest. In re Application of Nebraska Transport Co., Inc., 210 Neb. 269, 313 N.W.2d 686 (1981).

Under this section, a certificate shall be issued to any qualified applicant, authorizing the whole or any part of the operations covered by the application, if it is found after notice and hearing that the applicant is fit, willing, and able properly to perform the service proposed, and to conform to the rules and regulations of the Nebraska Public Service Commission and that the proposed service is or will be required by the present or future public convenience and necessity. Gentry Real Estate Co. v. King's Limousine Service, Inc., 201 Neb. 761, 272 N.W.2d 359 (1978).

Applicant for a certificate of public convenience and necessity who has been operating under color of authority enjoys a presumption that the proposed service applied for is or will be required by present or future public convenience and necessity. Dilts Trucking, Inc. v. Peake, Inc., 197 Neb. 459, 249 N.W.2d 732 (1977).

There must be finding that applicant is fit, willing, and able to perform the proposed service, and that the service offered is or will be required by public convenience and necessity in granting a certificate therefor. Robinson v. National Trailer Convoy, Inc., 188 Neb. 474, 197 N.W.2d 633 (1972).

Finding that proposed operation of a contract carrier will be consistent with public interest is necessary for issuance of permit. This means that the service must not conflict with the legislative policy of the state in dealing with transportation by motor vehicles. Wells Fargo Armored Service Corp. v. Bankers Dispatch Corp., 186 Neb. 261, 182 N.W.2d 648 (1971).

Conditions to be shown by applicant for contract carrier permit stated; consistent with the public interest distinguished from public convenience and necessity. Samardick of Grand Island-Hastings, Inc. v. B.D.C. Corp., 183 Neb. 229, 159 N.W.2d 310 (1968).

2. Authority of commission

The determination of what is consistent with public convenience and necessity is for the Public Service Commission and if there is evidence to sustain such determination the Supreme Court cannot intervene. Hopken v. Building Movers, Inc., 197 Neb. 195, 247 N.W.2d 633 (1976); Groenewold v. Building Movers, Inc., 197 Neb. 187, 247 N.W.2d 629 (1976).

Where there is evidence to sustain the factors for and against the issuance of a permit to a contract carrier, required to be considered by the Nebraska State Railway Commission, the determination of the public interest is for the commission and not the courts. Wells Fargo Armored Service Corp. v. Bankers Dispatch Corp., 188 Neb. 584, 198 N.W.2d 195 (1972).

Tacking is an extension of the authorized service under regulation of the Nebraska State Railway Commission, and the right to tack does not exist unless granted by the commission. Nebraska State Railway Commission v. Seward Motor Freight, Inc., 188 Neb. 223, 196 N.W.2d 200 (1972).

3. Burden of proof

Statement by Public Service Commission that it is inconsistent with the public interest to grant a contract carrier permit when existing common carriers can adequately serve the shipper improperly exhibited a preference for common carriers over contract carriage. Upon proof by an applicant for contract carrier authority that the proposed service is specialized and tailored to the customer's distinct needs, the burden shifts to protesting common carriers to show they can provide the same specialized service; thus the Public Service Commission erred in requiring an applicant for a contract carrier permit to establish the inability of existing common carriers to provide the same specialized service it proposed to provide. In re Application of Northland Transp., 239 Neb. 918, 479 N.W.2d 764 (1992).

The applicant has the burden to establish that its proposed service is specialized and fits the needs of the proposed contracting shipper or shippers; that it is fit, willing, and able to perform the service; and that the proposed operation will be consistent with the public interest. If the service proposed by the applicant can be performed as well by common carriers, the application should be denied because a need for a contract carrier has not been established. The Public Service Commission must weigh the special requirements of the shipper against the adequacy of the existing common carrier service. In re Application of Slack, 234 Neb. 704, 452 N.W.2d 538 (1990).

The burden is on the applicant to show that the extension of its present authority is required by the public convenience and necessity. Controlling questions in determining the issue of public convenience and necessity stated. In re Application of Petroleum Transport Service, Inc., 210 Neb. 411, 315 N.W.2d 245 (1982).

Burden is on the applicant for a certificate of public convenience and necessity to show he has met all the requirements of this section. In re Application of Greyhound Lines, Inc., 209 Neb. 430, 308 N.W.2d 336 (1981).

A certificate of public convenience and necessity may be issued only when required by the present or future public convenience and necessity and applicant has burden of proof. Ruan Transp. Corp. v. Herman Bros., Inc., 192 Neb. 343, 220 N.W.2d 245 (1974).

Burden rested upon applicant for change of route to show change was required by public convenience and necessity. Parsons v. Nebraska State Railway Commission, 181 Neb. 185, 147 N.W.2d 521 (1966).

Burden of proof is upon the applicant in order to obtain a certificate of public convenience and necessity. Simmerman v. National Trailer Convoy, Inc., 179 Neb. 400, 138 N.W.2d 481 (1965).