(dissenting):
I respectfully dissent.
Section 1063 of the California Public Utilities Code provides that no highway common carrier may operate without a certificate from the Public Utilities Commission “declaring that the public convenience and necessity require such operation.” In order to exercise its judgment implementing the broad statutory standard of “public convenience and necessity” in an individual case, the Public Utilities Commission is largely dependent upon information provided by the applicant and competing carriers. See Peninsula Motor Express, 49 Cal. P.U.C. 807 (1950). The activities of defendants in supplying this information to the Commission is thus lawful.
In my view, the activities of the Public Utilities Commission in the implementation of the broad statutory standard is one akin to policy making. The participation of the defendants in this policy making process, through their opposition to the grant of certificates or transfers of certificates is in my opinion protected from Sherman Act liability by the decisions of the United States Supreme Court in Noerr and Pennington, despite the assumption, arising from the posture of this case, that defendánts have an anti-competitive motive. The Public Utilities Commission has the power and ability to correct any abuses flowing from the activities of defendants through their opposition to the grant or transfer of certificates, see California Public Utilities Code §§ 1062, 1064, and I think that the plaintiffs must look to the Commission, rather than to the Sherman Act, for their remedy. See George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 30 (1st Cir. 1970). See generally, Note, Application of the Sherman Act to Attempts to Influence Government Action, 81 Harv.L.Rev. 847 (1968).
For these reasons, and for the reasons stated by Judge Sweigert- in his United States District Court decision, reported in 1967 Trade' Cases f[ 72,298 (N.D. Cal.1967), I would affirm.