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THIS IS AN ORDER IN DOCKET NO

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Decision No. C01-84 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO DOCKET NO. 00G-462CP PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO, COMPLAINANT, V. AIRPORT EXPRESS, INC., RESPONDENT DECISION ON EXCEPTIONS Mailed Date: January 31, 2001 Adopted Date..

Decision No. C01-84

    BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO DOCKET NO. 00G-462CP

    PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO,

     COMPLAINANT,

    V.

AIRPORT EXPRESS, INC.,

     RESPONDENT

    DECISION ON EXCEPTIONS

    Mailed Date: January 31, 2001

    Adopted Date: January 5, 2001

    I. BY THE COMMISSION:

    Statement

    1. This matter comes before the Commission for consideration of exceptions filed by Airport Express, Inc., doing business as Express Charters, Inc. (“Airport Express”), to Decision No. R00-1395. The Commission Staff (“Staff”) responded.

    2. During the summer of 2000, Civil Penalty

    Assessment Notice (“CPAN”) Nos. 26876 and 26877 were issued by mail to Airport Express. The CPANs alleged charter bus operations without a certificate of public convenience and necessity between February 24 and 29, 2000. The CPANs were sent

    on July 11, 2000, to Airport Express‟s address on file with the Commission, but were returned marked “refused.”

    3. A hearing was held by an Administrative Law Judge (“ALJ”) on October 25, 2000. Airport Express sent no

    representative to the hearing. Counsel represented Staff. The ALJ found that Airport Express provided charter transportation in 21-passenger capacity vehicles in Colorado from February 24 through 29, 2000. Airport Express has no charter authority from the Commission. Rather, it has only PUC-20005 allowing, primarily, scheduled transportation of passengers and their baggage between Fort Collins, Longmont, and Denver International Airport. On December 8, 2000, the ALJ issued Decision No. R00-1395 ordering Airport Express to pay the sum of $10,800.00 in full satisfaction of the CPANs for the subject charter operations.

    4. On December 12, 2000, the Commission received a letter from Airport Express, construed as exceptions to Decision No. R00-1395, contesting the validity of the decision. Airport Express argues that federal law and Federal Highway Administration regulations cover its charter activities. 49 U.S.C. ? 14501(a); 49 CFR 374.303(b). Airport Express contends that the Commission has no authority to regulate Airport Express‟s charter operations, and demands that the Commission cease its attempts to regulate those operations.

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    5. Because Airport Express filed no transcript, we must accept the basic factual findings of the ALJ as complete and accurate. Section 40-6-113(4), C.R.S. The ALJ found that Airport Express vehicles involved in the charter service were 21-passenger vehicles, and there is no contrary evidence.

    6. Airport Express contends that the Transportation Equity Act for the 21st Century (“TEA-21”), 49 U.S.C.

    ? 14501(a)(1)(c), preempts the Commission from regulating the intrastate charter service at issue here. It argues that the failure of TEA-21 to include a definition of the “charter bus” covered by TEA-21 is irrelevant: other provisions of the Code of Federal Regulations do define “bus,” and that is sufficient. Airport Express suggests that the Commission submit its arguments to the federal government. This issue has been before the federal courts, and the 10th Circuit Court of Appeals agreed with the Commission‟s interpretation of the law.

    7. In Decision No. C99-509 the Commission ruled that TEA-21 does not preempt the Commission‟s authority to regulate intrastate charter transportation using vehicles with capacities of 31 passengers or less. In that decision the Commission pointed out that the definition of “bus” at 49 CFR ? 374.303(b),

    now being cited by Airport Express, applies only in the context of regular-route operations. Id. That decision was appealed to

    the Federal District Court for the District of Colorado, D.C. No.

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    99-Z-1562 (D-Colo.) and then to the 10th Circuit Court of Appeals. Alex’s Transportation, Inc. v. Colorado Public Utilities Commission, et al., No. 00-1117 (NSOP). The District Court and the Court of Appeals affirmed the decision and rationale of the Commission.

    8. The Tenth Circuit position was consistent with Airport Express‟s statement that the dispute in these cases is “what qualifies as a „charter bus‟...” under TEA-21.Alex’s

    Transportation, at 3. Alex argued, as does Airport Express, that the definition of bus found in other federal contexts should control. The court disagreed. It said that generally:

    federal statutes must be interpreted under the

    principles of federal law. [citation omitted] Instead

    of attempting to combine various federal statutes on

    unrelated subjects to fill the gap in [TEA-21], we

    apply the rule that where a statute is not specific,

    courts look to state law to determine the rights and

    interests covered.

    Alex’s Transportation at 4. In looking to Colorado law, the court agreed with the Commission that intrastate charter service using vehicles of 31 passengers or less comes under the regulatory authority of the Commission.

    9. We find that the service provided by Airport Express was a regulated service provided without authority and affirm Decision No. R00-1395.

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II. ORDER

    A. The Commission Orders That:

    1. The exceptions of Airport Express, Inc., are denied.

    2. Airport Express, Inc., shall pay the sum of $10,800 in full satisfaction of Civil Penalty Assessment Notice Nos. 26876 and 26877 to the Public Utilities Commission within ten days of the effective date of this Order.

    3. The 20-day period provided for in ? 40-6-114(1), C.R.S., within which to file applications for rehearing, reargument, or reconsideration begins on the first day following the Mailed Date of this Decision.

    4. This Decision is effective on its Mailed Date.

    B. ADOPTED IN COMMISSIONERS' WEEKLY MEETING January 5,

    2000.

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     THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO

    ________________________________

    ________________________________

    Commissioners

    CHAIRMAN RAYMOND L. GIFFORD ABSENT.

    G:\AGS\AIRPORTE.DOC

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