Transportation Network Companies (TNCS) –

The Response of Regulators

AIRPORT GROUND TRANSPORTATION ASSOCIATION

Professor Matthew W. Daus, Esq. IATR President

Phoenix, ArizonaSeptember 14 - 17, 2014

Professor Matthew W. Daus, Esq.

Former Commissioner/Chair, NYC Taxi & Limousine Commission President, International Association of Transportation Regulators

Distinguished Lecturer, US DOT Transportation Research Center

City University of New York, The City College of NY (Region 2)

Partner & Chairman, Transportation Practice Group Windels Marx

Lane & Mittendorf, LLP

Contact: mdaus@windelsmarx.com or mdaus@iatr.org 156 West 56th Street | New York, NY 10019T. 212.237.1106 | F. 212.262.1215

TTP,TNC,TNP…•TRANSPORTATION

TECHNOLOGY PROVIDERS

•TRANSPORTATION NETWORK COMPANIES

•TRANSPORTATION NETWORK PROVIDERS

• No matter the term you use - it is safe to say that the advent of “booking technology” in the transportation space has disrupted the industry, and does not seem to be slowing down.

What is a TNC?•The CPUC defines TNCs as: an organization whether a company, partnership, sole

proprietor, or other form, [operating in California] that provides transportation services for compensation using an online-enabled application (app) or platform to connect passengers with drivers using their personal vehicles.

What is a TNC?Coke Anyone? 

What is a TNC?

Regulation light or zero

regulation? 

• TNCs entered the market in 2011.

• Members of the public, industry, and the regulatory community have reacted fiercely.

PINK FLOYD or FRAUD?

Litigation & Legislation• TNC related issues and

business practices are being litigated around the country.

• Local and state regulators have also introduced rulemaking proceedings and taken legislative action in an attempt to deal with the proliferation of TNCs.

•Recently, jurisdictions like Colorado, California, Seattle, Washington and the District of Columbia have made legislative efforts to further address TNCs.

Litigation & Legislation

New Legislation & Regulations•New TNC legislation and regulations vary

from imposing light licensing requirements and self-reporting standards to none at all.

•Primary issues:▫Insurance coverage▫Driver criminal background checks▫Accessibility

Insurance California•Assembly Bill 2293 requires TNCs to provide commercial insurance once the driver activates the app. Primary policy must have at least $750K coverage; lower primary coverage in the “App On-to Match” timeframe to: $50K/$100K/$30K with excess coverage of $200K.

Colorado Senate Bill 14-125 •TNCs must maintain liability insurance providing a minimum of $1M coverage which applies all times a driver is logged onto the app.•Must disclose to passengers and drivers that personal policies may not provide coverage for these commercial transactions.

Seattle TNC Agreement •TNCs must provide $100K/$300K/$25K liability coverage while drivers are active on the app and/or looking for hailing customers•Proposed amendment to require that TNC insurance be “exclusive” during all times a driver is active on the app was voted down in a 5-4 vote.

DC Transportation Network Services Innovation Act of 2014 •Maintain a commercial policy of at least $1M per incident for accidents which applies from the time a driver accepts a trip request until the completion of the trip.•Lower minimums when app is on, but no match made: $50K/$100K per accident/$25K for property damage (not primary).

Insurance

Driver Background ChecksCalifornia•TNC must conduct national criminal background checks on all of its driver-applicants using the applicant’s social security number.•One-year driving history from TNC drivers, and quarterly thereafter; TNCs must perform driver record checks through the DMV.

Colorado•TNC drivers must pass a criminal background and driving history check.•Drivers will be required to obtain a criminal history check every five years while serving as a driver.

Driver Background ChecksSeattle•TNC drivers will undergo background checks but details have not yet been released.

District of Columbia •TNC shall conduct, or have a third party conduct, a local and national criminal background and driving record check driver-applicants going back 7 years.

Accessibility California•TNCs must endeavor to provide equal access to all consumers.•Public hearings scheduled in September and October to discuss how TNCs are serving the disabled community.

Colorado•TNC “shall provide services to the public in a nondiscriminatory manner, regardless of…disability, or other potentially discriminatory factor that could prevent customers from accessing transportation.” •TNC cannot impose additional charges for providing services to persons with physical or mental disabilities.•If a ride with physical or mental disabilities requires the use of mobility equipment, a driver shall store the mobility equipment in the vehicle during a prearranged ride.

Accessibility Seattle•TNCs must impose a ten-cent per ride surcharge to go towards the City’s accessibility fund.•TNCs must provide passengers requesting accessibility service with contact information for an accessible taxi dispatch.

District of Columbia•Proposed Bill does not address accessibility.

IATR Model RegulationsIn 2013, the IATR prepared model regulations to address transportation technology apps:•These regulations promote direct or indirect licensure.•The model regulations have either been adopted or introduced by regulators in rulemaking proceedings in Cambridge, MA; Austin, TX and others. •The model regulations are available athttp://www.windelsmarx.com/resources/documents/IATR%20Model%20Regulations%20(10890808).pdf

New IATR Model Regulations for Accessibility

This year, the International Association of Transportation Regulators drafted Model Regulations for Taxi & For-Hire Vehicle Accessibility:

•TNCs are to be held legally to the same exact standards as taxis & FHVs;

•TNC's would be required to contribute funding to an "accessibility lockbox“;

•Creates a funding mechanism by which municipalities would designate a single agency to manage the funding and dedicate it towards accessible transportation initiatives;

•Additional funding would be provided by a per trip surcharge and cost savings from integration of taxis in paratransit.

Model Rules available at: http://bit.ly/YH50xA

Litigation Over thirty lawsuits nationwide --

•Personal injury litigation and insurance coverage issues;•Labor law violations and worker misclassification claims;•False advertising, unfair business practices & consumer protection claims;•Racketeering;•Antitrust violations;•Disability discrimination;•Government actions;•Constitutional challenges;•Environmental law violations.

Litigation Regulators are suing illegal TNCs for violating FHV requirements:

•City of St. Louis, MO. Metropolitan Taxicab Commission v. Lyft, Inc.▫ Preliminary injunction awarded.

•City of Columbus, OH v. Uber Technologies, Inc. and Lyft, Inc.▫ Preliminary injunction denied but case ongoing.

•The People of the State of New York, et al. v. Lyft▫ TRO awarded and Lyft forced to comply with NYC regulations.

Litigation•More information on TNC litigation across the

country may be found in the report:

““The Disruptive Transportation Technology The Disruptive Transportation Technology Movement: A Litigation Primer & Movement: A Litigation Primer &

RoadmapRoadmap”

Available at www.windelsmarx.com

IATR 2014 CONFERENCE

Q&A