[00:00:02] Speaker 00:
Case number 17-1089, Santa Fe Discount Cruise Parking Inc.

[00:00:07] Speaker 00:
DBA.

[00:00:21] Speaker 04:
Thank you.

[00:00:22] Speaker 04:
Good morning.

[00:00:23] Speaker 04:
My name is Gerald Morrissey, a partner at Winston and Strawn, counsel for the petitioners in this case, Santa Fe Disco Cruise Parking and Silvia Robledo in their DBAs, and I'll just refer to them here as parking, plaintiffs of parking petitioners.

[00:00:39] Speaker 04:
I've noted to the clerk that I'd like to reserve three minutes for rebuttal.

[00:00:43] Speaker 04:
This appeal is about the proper administrative adjudication of alleged rape discrimination prohibited under the Shipping Act of 1984, and specifically the proper application of the Federal Maritime Commission's precedent in Ceres Marine Terminal v. Maryland Forts Administration, and the application of that undisputed precedent to the claims in this case.

[00:01:06] Speaker 04:
The parties here are all ground transportation companies that operate at the port in the cruise terminal in Galveston.

[00:01:18] Speaker 04:
They all pay, they're all charged by the port for access to the terminal.

[00:01:23] Speaker 06:
The service.

[00:01:24] Speaker 06:
And who do you want to be compared to?

[00:01:28] Speaker 04:
We want to be compared to other ground transportation companies and whatever rates that we would qualify for as a ground transportation company, we want to have access to those rates.

[00:01:42] Speaker 04:
Other shuttle buses?

[00:01:43] Speaker 04:
both other shuttle buses and if the distinction between the limousine and the shuttle bus is not a distinction that has a justified transportation justification.

[00:01:59] Speaker 04:
then we would want to have access to whatever rates are lower.

[00:02:04] Speaker 04:
And in this case, we are... That would be the taxis and limos.

[00:02:08] Speaker 04:
Taxis and limos, that's correct.

[00:02:09] Speaker 06:
Because if you're compared to the other shuttle buses, it went along for nine or ten years without objection to the...

[00:02:18] Speaker 06:
to what was going on.

[00:02:19] Speaker 04:
Yeah, I mean, that's correct.

[00:02:20] Speaker 04:
And what happened in this case is that what went along for a number of years changed dramatically when the when the port wanted to they probably get a tariff to raise the negotiated rate 260% from $8 per parking space to 28 and change which went to a per trip fee.

[00:02:39] Speaker 04:
Yes, we filed a complaint they rescinded the tariff and it it didn't just You know go back to what it was before it changed to something different again, but if it had gone back to what was before What would your reaction be?

[00:02:55] Speaker 04:
Well, if it had gone back entirely to what was before, probably a reaction would have been that it would have been acceptable because they had operated under it for a long time.

[00:03:06] Speaker 06:
But what was before was distinct between your shuttle buses and taxis.

[00:03:13] Speaker 04:
My client had a different basis for paying for their fee before.

[00:03:20] Speaker 04:
That's correct.

[00:03:21] Speaker 04:
However, having brought the case and being faced with serious financial repercussions for the way that the port was charging,

[00:03:32] Speaker 04:
It was apparent that what the port had been doing in other respects was not in compliance with the Shipping Act.

[00:03:39] Speaker 06:
I guess part of the confusion, this will be for the Commission, too, and for me, is I do see that you argued to the ALJ and the ALJ said you're not similarly situated to taxis and limos, and then it gets for the Commission

[00:03:52] Speaker 06:
And we're trying to figure out now I understand why there would be a distinction, although you would challenge this between shuttle buses on the one hand and taxis and limos on the other.

[00:04:06] Speaker 06:
But maybe there wasn't sufficient explanation of that by the commission as compared to the ALJ.

[00:04:11] Speaker 04:
So, yeah, I mean, once the commission, and in this case, rightfully so, under the law, said, wait a second, the similarly situated element is not required here.

[00:04:20] Speaker 04:
Because they found that the service being provided, access to the terminal, doesn't differentiate at all on the basis of transportation-related characteristics.

[00:04:27] Speaker 04:
It's access.

[00:04:28] Speaker 04:
The passengers are the same.

[00:04:29] Speaker 04:
So the rates to the extent that they're made available to one user providing access should be uniformly offered to other users getting access.

[00:04:41] Speaker 04:
So once they did that, what happened to the commission, the commission then only applied that analysis to one other class of user and not all of the classes of transportation company users.

[00:04:53] Speaker 04:
And having found that there was no difference in service among them, they should have

[00:04:59] Speaker 04:
applied the rates available to limos and taxis to the rates that would have been available.

[00:05:05] Speaker 04:
So when they compared just the rates under note C and note D, they were only comparing the off-terminal parkers to

[00:05:17] Speaker 04:
Other optimal parkers like hotels, they did not compare limos.

[00:05:22] Speaker 06:
I mean, I guess you're going to dispute this, but it would seem like ports would routinely distinguish, say, taxis on the one hand from shuttle buses on the other around the country.

[00:05:33] Speaker 04:
They absolutely might do that, Your Honor.

[00:05:36] Speaker 04:
Here's what the Commission didn't do.

[00:05:38] Speaker 04:
What the commission did was they decided those that the injury element was not satisfied because with respect to one class that it wasn't clear that we were better off with respect to one class.

[00:05:54] Speaker 04:
The other class, they affirmatively found some of those payers paid nothing and some of those payers paid less.

[00:06:00] Speaker 04:
If they had compared that, it's axiomatic that we would perform better to some extent.

[00:06:06] Speaker 04:
They didn't they didn't find on the basis that there was a transportation justification for taxis and limos.

[00:06:12] Speaker 04:
They could do that.

[00:06:14] Speaker 04:
And under the burden shifting framework in serious terminal.

[00:06:19] Speaker 04:
That's would be the next step.

[00:06:20] Speaker 04:
So.

[00:06:21] Speaker 04:
If there is... So what's the end game for you?

[00:06:24] Speaker 06:
Because if it goes back, isn't it pretty obvious they will find that there was a justification for treating taxis differently from your buses?

[00:06:32] Speaker 04:
I think there is some evidence that there was a transportation justification given consideration for taxis.

[00:06:39] Speaker 04:
I do.

[00:06:40] Speaker 04:
There was no evidence for the change in the 2014 tariff change to make taxis above eight passengers complete with any taxi exempt.

[00:06:49] Speaker 04:
There is no evidence about that.

[00:06:51] Speaker 04:
And there's no evidence, even at the ALJ level, there's no evidence that limousines were, you know, somehow accorded a different treatment or similar to taxis.

[00:07:03] Speaker 04:
ALJ just said, well, I think limos, limousine services are like taxis.

[00:07:07] Speaker 04:
That's all.

[00:07:09] Speaker 06:
Well, it is.

[00:07:09] Speaker 06:
Isn't it the number of passengers?

[00:07:12] Speaker 04:
Well, so the definition of limousine in the tariff and the definition of shuttle in the tariff, they're both, the definitions, they're both vehicles, not more than 15 passengers.

[00:07:23] Speaker 04:
The only distinction is one is a luxury sedan and the other is a van type vehicle.

[00:07:29] Speaker 04:
You know, the commission didn't get to trying to ask the port, well, what's the transportation justification for the difference there?

[00:07:35] Speaker 04:
luxury vehicle versus van and I don't think there is one but that would be the next step and we'd like to get to that and I think the commission should get to that.

[00:07:44] Speaker 05:
Should they go back and re-examine element one?

[00:07:48] Speaker 05:
I'm sorry could they go back and re-examine element one?

[00:07:53] Speaker 04:
I think the element one was rightfully satisfied here, because the service being provided, I don't even really know what the service actually is.

[00:08:00] Speaker 04:
I think it's just a fee to get through the gate, and they raise money to do that.

[00:08:04] Speaker 04:
That's not really, you know, the substance of that isn't an issue in this appeal, but there's no difference in the service being provided.

[00:08:11] Speaker 04:
So I think they decided that correctly.

[00:08:14] Speaker 02:
I'm having a little trouble understanding your argument that you don't have to meet prong one, which the commission agreed with.

[00:08:24] Speaker 02:
Prong two, you just show different charges.

[00:08:28] Speaker 02:
And then I think under your theory, prong four disappears as well because you just say different charges show

[00:08:36] Speaker 02:
We're injured, and so all you have to do is show different charges.

[00:08:40] Speaker 02:
So under your theory, combined with the Commission's rejection of prong one in this situation, all you do is show up and say, here's a list of charges, we're different, and the burden shifts.

[00:08:52] Speaker 02:
Am I right about that?

[00:08:53] Speaker 04:
You are right, but in a way that the respondents kind of styled the argument that we were saying that, well, injury is not, you don't have to show injury.

[00:09:06] Speaker 04:
We take issue with that.

[00:09:07] Speaker 04:
I mean, for the purpose of the birding-shifting framework, it's quite apparent in CERES that

[00:09:15] Speaker 04:
That's what's happening that once the determination is made that.

[00:09:20] Speaker 04:
It's a it's a service that that should excuse me as a rate that should be provided to others.

[00:09:27] Speaker 04:
You don't have to have an additional showing of injury because.

[00:09:30] Speaker 04:
You're injured.

[00:09:32] Speaker 02:
No, but see, we're down to a one prong test on your side and one prong on theirs, which is not what the commission said.

[00:09:38] Speaker 04:
For the purposes of the burden shifting, the fourth prong, that injury, I mean, ultimately, all four of these elements need to be satisfied on the merits.

[00:09:48] Speaker 02:
No, but you just told us that if we don't have to show that we're even similarly situated,

[00:09:54] Speaker 02:
Let alone competitive.

[00:09:56] Speaker 02:
All I've got to do is show here's my list of different charges for something that qualifies as the commission found here for should be a universal charge.

[00:10:05] Speaker 02:
And then by just pointing to the fact that someone's got a lower charge, you'll inherently automatically satisfy the injury requirement, will you not?

[00:10:12] Speaker 02:
Yes, yes, that's correct.

[00:10:14] Speaker 02:
So there's just one prong on your side, different charges, and we're not in the lowest one, and then they have to justify.

[00:10:20] Speaker 02:
Is that your understanding of the system?

[00:10:22] Speaker 04:
Well, so for the purposes of part of the claims here, I mean, we are not appealed.

[00:10:27] Speaker 04:
The comparison to the other off-terminal parkers when the commission applied in the ALJ's damage analysis as to the one class, that's not being appealed here, and that's an application of, okay, you pointed to a difference, and here, that difference does not demonstrate

[00:10:47] Speaker 04:
That there you didn't there wasn't a better rate.

[00:10:50] Speaker 06:
That's what that's what the Commission concluded to judge molest question I think your answer is just yes, if there's differential treatment of different vehicles.

[00:10:58] Speaker 04:
They have to justify it Yes, I think the answer is yes.

[00:11:02] Speaker 04:
I'm trying to qualify it a little bit.

[00:11:03] Speaker 06:
It's pretty simple.

[00:11:04] Speaker 06:
I mean I'm Assuming they'll come in as I was saying in my questions and say taxis are different for the following reasons limos are different for following reasons and

[00:11:12] Speaker 06:
That's it.

[00:11:13] Speaker 04:
Right.

[00:11:14] Speaker 04:
Yes.

[00:11:15] Speaker 06:
Your concern is that really wasn't done in your view.

[00:11:19] Speaker 06:
We'll hear from them.

[00:11:21] Speaker 04:
That's correct.

[00:11:22] Speaker 06:
The ALJ did it at prong one.

[00:11:26] Speaker 06:
At prong one, yeah.

[00:11:27] Speaker 06:
At prong one.

[00:11:28] Speaker 06:
But they'll probably do something similar at prong three.

[00:11:33] Speaker 04:
Yes, and having done it at prong one and then relying on it, then it wasn't done as to the limits of taxis.

[00:11:38] Speaker 04:
But I was just wanting to point out that the fourth prong is relevant in that ultimately at the end of the day, it's a necessary element to the whole cause of action.

[00:11:46] Speaker 04:
But the burden shifting, yes, I agree that it does devolve into it.

[00:11:51] Speaker 04:
Go ahead.

[00:11:51] Speaker 02:
What is the time frame for your claim?

[00:11:57] Speaker 02:
Are you challenging just the 2014 tariff?

[00:12:01] Speaker 02:
Or there's a lot of talk about enforcement.

[00:12:03] Speaker 02:
You were in before that even took effect talking about disparate enforcement, so I don't even know what the time frame is.

[00:12:09] Speaker 04:
It is confusing in the record, but the time frame is both.

[00:12:14] Speaker 04:
There are elements of the claim that are between the 2007 and 2014 tariff, and there are elements that are post-2014 and that are still ongoing with respect to, for example, the complete exemption for taxis of any size.

[00:12:35] Speaker 02:
And then the other thing I just don't understand is how you can have this litigation here and separate litigation going on in the Southern District of Texas where you're raising these claims and some additional claims.

[00:12:49] Speaker 02:
And then you went there and you got essentially the equivalent of a preliminary injunction that locks in place the very disparate treatment that you're arguing to us as unlawful.

[00:12:59] Speaker 04:
Well, I'm not counsel for that case, but I understand.

[00:13:02] Speaker 02:
Well, it's the same fight.

[00:13:04] Speaker 04:
Yeah.

[00:13:05] Speaker 04:
That case is that they were utilizing their right to pursue an injunction, which is allowed in concert with the Shipping Act, and they obtained it.

[00:13:15] Speaker 02:
There's more than that.

[00:13:16] Speaker 02:
There's a complaint that has a whole bunch of additional

[00:13:19] Speaker 02:
Claims both under the Constitution and there's some other statutory ones and I mean I'm sort of figuring out who should even go first here They've already issued an order in that case It's a very confusing scheme in which there's I get that Congress says you can go get an injunction But they're doing a lot more than just a very injunction there.

[00:13:37] Speaker 04:
I'm sorry That case is stayed.

[00:13:40] Speaker 04:
So nothing's been going on in that case.

[00:13:42] Speaker 06:
It's just the injunction Okay, we'll give you some time on rebuttal.

[00:13:46] Speaker 06:
Thank you.

[00:13:47] Speaker 04:
Thank you.

[00:13:47] Speaker 04:
I

[00:13:57] Speaker 01:
May it please the court, William Shakeley for respondents.

[00:14:00] Speaker 01:
I'd like to note that we are splitting our time with interveners and would like to reserve four of our 10 minutes for them.

[00:14:06] Speaker 01:
This is, as Your Honor noted, this is somewhat of a novel case.

[00:14:11] Speaker 01:
As petitioners are arguing injury based on different treatment that they originally expressly sought from the port, received, and seemed content with for almost a decade, the Commission correctly determined that they failed to establish such injury.

[00:14:24] Speaker 01:
And on appeal, they've raised some new arguments that the commission did not have.

[00:14:28] Speaker 06:
They really knew in the taxi cab limo argument.

[00:14:30] Speaker 06:
I do see that raised in their exceptions from the decision to the commission.

[00:14:37] Speaker 01:
They noted.

[00:14:38] Speaker 01:
that the task capital misuse were charged a lower rate, but in their exceptions to the ALJ's injury determination, they did not argue, as they could have and probably should have, that the ALJ erred in the injury analysis in only comparing the rates that were assessed for shuttles, like hotel shuttles, under the Noci general regime with what they paid under the off-port parking regime.

[00:15:02] Speaker 06:
No, but they, your brief complained that they're now raising

[00:15:08] Speaker 06:
arguments about limos and taxis.

[00:15:11] Speaker 01:
In terms of calculating the injury.

[00:15:13] Speaker 06:
I'm sorry, Your Honor.

[00:15:15] Speaker 06:
I don't know what you mean by in terms of calculating the injury, but let's bracket that.

[00:15:19] Speaker 06:
They, I thought, raised limos and taxis in their repeatedly, at least in their exceptions brief to the Commission.

[00:15:28] Speaker 01:
Yes, Your Honor.

[00:15:28] Speaker 01:
They did discuss the different treatment, the different fees for taxi cabs and limousines.

[00:15:34] Speaker 06:
And what was the commission's explanation, if any, about limos and taxis?

[00:15:44] Speaker 01:
For the different treatment prong, the commission noted that all of the ground transportation companies, including taxi cabs and limousines, were subjected to a general fee regime, while petitioners were subjected to a fee regime that was based on the number of parking spaces in their lots.

[00:15:59] Speaker 01:
And in the injury determination, the petitioner's original argument with respect to injury... There's clearly injury as compared to the taxis and limos, isn't there?

[00:16:09] Speaker 01:
Well, the argument that they raised to the ALJ and then, in their exceptions, was that they were subsidizing the benefits received by taxi cab and limousine companies.

[00:16:17] Speaker 05:
And that was... While denying that Prong One is in the case, aren't you really relying on Prong One?

[00:16:26] Speaker 05:
It sounds to me as if you're saying they're not similarly situated, although the commission below said

[00:16:33] Speaker 05:
We don't have to look at that because everybody agrees they're similarly situated.

[00:16:36] Speaker 05:
Aren't you saying they're not similarly situated when you give the answer you gave to the chief judge, to the presiding judge?

[00:16:43] Speaker 01:
Well, I think that with the commission, the different treatment that the commission focused on wasn't necessarily the different rates charged in the general regime.

[00:16:53] Speaker 01:
It was the different treatment between, on one hand, off-court parking user parking space fee-based regime and the general regime for other ground transportation companies based on vehicle type.

[00:17:02] Speaker 05:
That sounds to me like you're saying they're not similarly situated.

[00:17:06] Speaker 05:
Doesn't the commission err by dropping prong one out of the case?

[00:17:13] Speaker 01:
I don't think that the Commission examined whether the different rates in the Note C general regime were represented in a reasonable preference or different treatment.

[00:17:22] Speaker 01:
That was a separate claim that petitioners had alleged when they were subjected to the 2014 schedule and— I assume that you don't want to answer the question.

[00:17:31] Speaker 05:
I won't put it again.

[00:17:33] Speaker 05:
Twice is enough, I think.

[00:17:35] Speaker 06:
The question I have reading all this is the limos and taxis thing somehow got lost in the shuffle, and shouldn't we send it back to the commission to explain whether it's prong one, prong three?

[00:17:46] Speaker 06:
It doesn't matter to me, but they need to explain limos and taxis versus this.

[00:17:53] Speaker 06:
And there probably is an easy explanation, but I don't know that we have it.

[00:17:57] Speaker 06:
I don't think that... Why shouldn't we do that?

[00:18:00] Speaker 01:
because the commission did address the arguments that they raised with respect to the injury caused by the different treatment between taxicabs and limousines.

[00:18:06] Speaker 01:
That was their argument that they had essentially subsidized the activities and the benefits that those companies received from getting access to the port.

[00:18:16] Speaker 01:
The commission correctly determined that they had failed to show any sort of subsidization because their rates have remained consistent through the entire period, regardless of what taxicabs or limousine companies paid.

[00:18:28] Speaker 05:
That sounds like it could be a non-sequitur.

[00:18:30] Speaker 05:
Yeah.

[00:18:32] Speaker 06:
Just because they've been the same doesn't mean they're not different.

[00:18:36] Speaker 06:
I think that the Commission... The same over time doesn't mean they weren't different as to the two classes, is what I meant.

[00:18:43] Speaker 01:
Correct.

[00:18:43] Speaker 01:
But they failed to allege that what the rates they paid were anyway based off those lower rates or that they were somehow subsidizing those other users.

[00:18:53] Speaker 02:
Wait, they argued a lot that they were subsidizing those other issues, users.

[00:18:57] Speaker 02:
That's what they argued repeatedly in their exceptions and elsewhere was that they were subsidizing, which is just another way of saying I'm getting charged more than them for doing the same thing.

[00:19:08] Speaker 01:
I think that yes your honor but I think that the Commission respectfully looked at looked at that differently.

[00:19:17] Speaker 01:
They were looking at.

[00:19:20] Speaker 01:
the limousines and the taxi cab companies, and I think the commission reviewed subsidy as we are paying more so that they can pay less, not a mere difference in the rates that were being paid.

[00:19:33] Speaker 06:
Yeah, but in the exceptions brief, there are whole sections.

[00:19:36] Speaker 06:
For example, the initial decision erroneously finds that complainants have not proved by preponderance that the port unreasonably gave preferential treatment to taxi cabs, limos, and buses.

[00:19:47] Speaker 06:
That's just a preferential charge argument, as I saw it.

[00:19:53] Speaker 01:
Well, and I think what the Commission generally looks for are particular errors in the ALJ's decision that the parties identify on their exceptions.

[00:20:02] Speaker 01:
And in this case, with respect to the injury element, they didn't argue that the ALJ erred in how the ALJ conducted the injury analysis with comparing the shuttle bus ratio to the general regime with what petitioners paid under the off-court parking user regime.

[00:20:17] Speaker 06:
Okay.

[00:20:23] Speaker ?:
Thank you.

[00:20:32] Speaker 03:
Good morning.

[00:20:32] Speaker 03:
Good morning.

[00:20:33] Speaker 03:
May it please the Court.

[00:20:35] Speaker 03:
My name is Anthony Brown.

[00:20:36] Speaker 03:
I'm with the firm of McLeod Alexander Palenapfel in Galveston, Texas.

[00:20:39] Speaker 03:
We represent the Board of Trustees of the Galveston Wharves, which we also know as the Port, and its entity, GPFC.

[00:20:48] Speaker 03:
If the fact that a party claims preferential or prejudicial rights is an injury, then we only have one element.

[00:21:01] Speaker 03:
What the plaintiffs or petitioners framed their argument all along was they mentioned the different rates.

[00:21:09] Speaker 03:
They talked about taxis, limos, and hotel shuttles.

[00:21:14] Speaker 03:
But they framed their injuries beginning at page 26 of their brief to the ALJ that the fees they were charged were in excess of their relative use of the terminal.

[00:21:31] Speaker 03:
That was their injury argument.

[00:21:35] Speaker 03:
They said that those fees, if they were making the argument that because they were being treated, they were injured by not being charged the same zero rate for access, that taxis were being charged.

[00:21:49] Speaker 06:
That sounds like a waiver argument on your part.

[00:21:54] Speaker 06:
It does to a certain extent if you're charged say eight dollars per month per spot right and taxis are charged zero zero.

[00:22:05] Speaker 06:
Isn't that injury.

[00:22:11] Speaker 03:
If they are.

[00:22:13] Speaker 03:
Well, it's an injury if you claim that injury.

[00:22:17] Speaker 03:
So I guess it is, in a sense, a waiver argument.

[00:22:20] Speaker 03:
Right.

[00:22:21] Speaker 03:
Yeah.

[00:22:21] Speaker 03:
And so that's why the Commission addressed the claims that were brought before it.

[00:22:26] Speaker 06:
And there's a lot of writing and opinions in this case.

[00:22:29] Speaker 06:
It just seems to me like it comes down to, yeah, of course we treated limos and taxis differently, is what you would say.

[00:22:35] Speaker 06:
First of all, we- But it's not fully explained in the Commission's decision as to the problem.

[00:22:39] Speaker 03:
The issue is that the port can't assess fees on taxis directly.

[00:22:47] Speaker 03:
I have to go to city council, it's regulated.

[00:22:49] Speaker 02:
That might be a very good reason for it then.

[00:22:52] Speaker 03:
And we have an election in May and our city council, two spots are unopposed and it would have saved $10,000 to take those off the May ballot.

[00:23:01] Speaker 03:
but they left it on so that everybody could exercise their right to select that one option.

[00:23:06] Speaker 05:
No writing.

[00:23:06] Speaker 05:
There's always that something, right?

[00:23:08] Speaker 03:
Right.

[00:23:09] Speaker 03:
So bottom line is that relies on another entity doing that if requested.

[00:23:16] Speaker 03:
And then the fact that on the part that is relied on to show that there's no competition,

[00:23:25] Speaker 03:
the phrase on page 1271 in series that basically states that there's a competitive relationship if rates are geared to transportation factors and differing characteristics of commodities.

[00:23:44] Speaker 03:
But if there's no transportation or if there's no competitive relationship based on transportation factors,

[00:23:51] Speaker 03:
The respondent has to come back and demonstrate that the differential is supported by transportation factors.

[00:23:58] Speaker 06:
That's kind of prong one or prong three.

[00:24:00] Speaker 03:
Right, and it's conflated.

[00:24:01] Speaker 03:
In this case, our longshoremen down in Galveston carry the bags, and their favorite line is that in our port, the cargo tips.

[00:24:14] Speaker 03:
So the cargo, the commodity, granted its people.

[00:24:18] Speaker 03:
But there's a completely different purpose for taxis versus shuttle buses.

[00:24:24] Speaker 03:
And the evidence we had, the affidavits and everything, was replete that we don't have enough taxis now.

[00:24:31] Speaker 05:
So once again, shouldn't the Commission have taken up the question of prong one of the four-element test rather than saying that it wasn't in the case?

[00:24:41] Speaker 05:
It sounds as if everybody that comes up here says they are not similarly situated.

[00:24:47] Speaker 05:
Are they not in competition?

[00:24:53] Speaker 05:
It sounds like prong one could be an issue.

[00:24:56] Speaker 05:
Is it correct that they should just have fallen out of the case and not been considered, or is that an error?

[00:25:01] Speaker 03:
I think either under prong one, we're not in a competitive relationship, or under prong three, there were obvious business justifications for the classification.

[00:25:11] Speaker 06:
So you went under one or three, but the commission did it on four.

[00:25:14] Speaker 06:
Right.

[00:25:15] Speaker 05:
They just basically... Shouldn't we send it back to get them to explain?

[00:25:19] Speaker 05:
Because we're not supposed to affirm commission decisions on bases other than what the commission used.

[00:25:24] Speaker 03:
Well, the commission said, based on what, and that goes back to the waiver argument, based on what was presented, there was no evidence to support the claim of injury.

[00:25:34] Speaker 06:
Okay.

[00:25:35] Speaker 06:
Thank you very much.

[00:25:36] Speaker 06:
Thank you.

[00:25:38] Speaker 06:
We'll give two minutes for rebuttal.

[00:25:39] Speaker 03:
Thank you.

[00:25:42] Speaker 06:
Thank you.

[00:25:43] Speaker 02:
Why weren't they right when they said, based on the evidence you presented?

[00:25:46] Speaker 02:
We're skipping over all these other prongs, even assuming you went on all the other prongs.

[00:25:53] Speaker 02:
This isn't as though you were charged 20, they were charged 10.

[00:25:55] Speaker 02:
Different formula were used.

[00:25:58] Speaker 02:
And when we map that formula out and do the math at the end of the day, under the evidence you provided, lo and behold, you're not paying more.

[00:26:06] Speaker 02:
Why isn't that a perfectly justifiable disposition?

[00:26:09] Speaker 04:
As to the one class of other user to which that analysis applied, that may be.

[00:26:16] Speaker 04:
But that analysis does not apply to the other two classes of users, based on the uncontested facts of the case.

[00:26:22] Speaker 02:
So if they apply... To be fair to the Commission, I think you would have to admit that the heart of your argument was, first of all, you didn't even try to get out of Prong 1.

[00:26:31] Speaker 02:
The Commission did that on its own, and you spent a lot of time arguing about hotels versus off-port.

[00:26:37] Speaker 02:
off, sorry, off-port parking, probably because taxis are really different.

[00:26:46] Speaker 02:
And so it's a little bit of switcheroo on the commission here complaining about the evidence.

[00:26:59] Speaker 04:
We took exception directly to the ALJ's finding on series element one.

[00:27:04] Speaker 04:
I mean, that's clear in the exceptions that we did.

[00:27:08] Speaker 02:
When the... On the ground that series shouldn't apply at all?

[00:27:12] Speaker 02:
That's not how I read your exception.

[00:27:14] Speaker 04:
The ALJ's findings that we were not similarly situated.

[00:27:17] Speaker 02:
Right, but you didn't say it shouldn't apply at all.

[00:27:21] Speaker 04:
Well, that's the impact of that.

[00:27:25] Speaker 02:
The commission said we don't even analyze it in a case like this, and that's different than saying it was sad aside or not.

[00:27:32] Speaker 04:
I don't think so, no.

[00:27:33] Speaker 04:
The analysis is Ceres element 1 would generally apply in a Ceres rate type case.

[00:27:41] Speaker 04:
Ceres element, according to the commission's case law in Ceres and other cases,

[00:27:45] Speaker 04:
when the service being provided is such that it doesn't differ on the basis of transportation characteristics, that series element one, whether you call it, it doesn't apply or it's satisfied, it's really the same treatment, it's just some semantics.

[00:28:00] Speaker 02:
So it's... Well, no, it's actually very different.

[00:28:02] Speaker 02:
If it applies and then you want to attack this, there is substantial evidence to support their conclusion, that's one type of analysis, and it doesn't apply at all.

[00:28:12] Speaker 02:
It's a different type of analysis, at least from the perspective of a viewing court.

[00:28:16] Speaker 02:
I get it at the end of the day for you.

[00:28:17] Speaker 02:
As long as you get through that prong, you're happy.

[00:28:19] Speaker 04:
I think it would be fair to say then that the series element one always applies in the sense that it must be looked at.

[00:28:25] Speaker 04:
But when the case fits in a certain group of cases that this case fits in as the Commission did find, where the service does not differ on the basis of these transportation characteristics, then the element is satisfied.

[00:28:40] Speaker 05:
I hate to ask this, this late in the case, but what exactly would you say is the service we're talking about here?

[00:28:47] Speaker 04:
You know, Your Honor, I really don't know what the service is.

[00:28:50] Speaker 04:
I don't think... No wonder I don't know.

[00:28:52] Speaker 04:
Yeah, I don't think there really is a service in the sense... Why is it a passenger delivery?

[00:28:56] Speaker 02:
You said passenger to the cargo.

[00:28:57] Speaker 02:
It's passenger delivery.

[00:28:58] Speaker 04:
Well, but they're not delivering the passengers.

[00:29:00] Speaker 04:
They're letting the passengers through the gate.

[00:29:01] Speaker 04:
It's a... Delivering passengers to the port.

[00:29:04] Speaker 04:
It's a... What do you call that?

[00:29:05] Speaker 04:
When I was maybe in college and you go to a...

[00:29:09] Speaker 04:
a show, you have to pay the fee.

[00:29:11] Speaker 04:
The cover charge.

[00:29:12] Speaker 04:
It's kind of like a cover charge to get to the cruise.

[00:29:15] Speaker 04:
It's a service in a sense.

[00:29:17] Speaker 04:
But that's what I think it is for.

[00:29:19] Speaker 06:
Okay.

[00:29:20] Speaker 06:
Thank you very much.

[00:29:20] Speaker 06:
The case is submitted.

[00:29:22] Speaker 04:
Thank you.