London High Court to decide Uber dispute

The battle over taxi apps has gone international, with disputes flaring up in England and France as well as all over the U.S.  Even the regulators don't know what to do and in London, the transport authority has kicked the can to the British High Court.  According to an item in Gigom:

London’s transport authority will ask the British High Court to decide whether car services such as Uber that use smartphones to determine the customer’s fare should be regulated in the same way as traditional “black cabs” and private hire services. 

London cabbies are as highly regulated as any, with officials only licensing cabbies who prove they hat  “The Knowledge” — a comprehensive, testable understanding of the city’s intricate and ancient streets that obviates the need for GPS or paper maps.

These furious with the likes of Uber and Hailo, not just because they pose a massive threat by being more convenient, but because their drivers apparently don’t need to adhere to the same stringent standards. 

UK regulators have "admitted the law in this area was somewhat woolly, and said it wanted High Court judges to clear things up," Gigom says. 

The cabbies aren’t impressed and told the BBC they’d be launching a case of their own.  

Throwback Thursday: Statharos v. New York City Taxi & Limousine Comm’n

The 1999 case, Statharos v. New York CityTaxi & Limousine Comm’n, 198 F.3d 317 (2d Cir. 1999), is perhaps the high water mark for TLC regulations of the taxi industry and the the court's deference to that regulation.  

The Statharos case came in the wake of the Giuliani-era New York City Taxi and Limousine Commission's enactment of a new raft of litigation. Perhaps most important were the so-called "Critical Driver" and "Persistent Violator" rule, both of which allowed the TLC to suspend or revoke cabdriver licenses when the driver accumulated just six or ten DMV or TLC "points" on their licenses. But the regulations also required far more record-keeping and reporting requirements by taxicab and medallion owners. 

The lawsuit was by several small, closely-held corporations, each of which owned two taxi medallions who sought a preliminary injunction barring enforcement of financial disclosure requirements set forth in the regulation. Judge John Martin denied the application, and shareholders appealed. The Court of Appeals Circuit Judge, held that: (1) Commission did not impermissibly arrogate powers properly belonging to legislature in promulgating regulation, and (2) regulation did not violate shareholders' constitutional right to privacy.

The plaintiffs argued that the TLC acted in excess of its legal authority in promulgating financial disclosure rule and that in that it impermissibly arrogated powers properly belonging to the legislature. The Court of Appeals rejected that arguments, relying   on recent decisions by state courts that the City Charter delegated to the TLC a “broad grant of authority ... to promulgate and implement a pervasive regulatory program for the taxicab industry, including ... requirements for the maintenance of financial security.” 

The extent of the TLC's authority to regulate the industry and the actions of taxi drivers and taxi owners would be a persistent theme in the years to come, including recently in litigation about the Taxi of Tomorrow, the healthcare fund for taxi drivers and the TLC policy of suspending or revoking taxi drivers for off duty arrests or crimes. In these later cases, courts tended to take a more critical view of the authority allowed to an unelected board of unpaid advisors.

Taxi of Tomorrow remains (at least) a day away

As has been widely noted by now, the TLC's "Taxi of Tomorrow" regulation has been invalidated by a New York State Supreme Court justice with the improbable name of Shlomo Hagler. Article on the ruling are here, here, and here.

The case is called Greater New York Taxi Ass’n, et al. v. New York City Taxi and Limousine Commission Limousine Commission, et al., 101083/2013 (October 8, 2013). The ruling invalidated the “Taxi of Tomorrow” program on the grounds that the regulation exceeded the TLC’s statutory authority and that in enacting the regulation the TLC violated the separation of powers doctrine. 

The Taxi of Tomorrow regulation would have mandated that medallions owners purchase a specific make and model of automobile (the Nissan NV200) that had been designated by the TLC as the Official Taxicab Vehicle. It was enacted after substantial public discussion, an online poll as to the public's preference and formal notice and comment in September 2012. After an earlier ruling invalidated part of the rule on the ground that it did not permit the use of hybrid taxis, the rule was amended.  Now the the entire program has been thrown out.

The court analyzed whether the TLC had been delegated authority to enact such a rule by its enabling statute, the City Charter. In its review, the court found that “the purpose of the TLC was clearly defined” and that the Charter “enumerated authority to set ‘standards of service, standards of insurance and minimum coverage; standards for driver safety and design; standards for noise and air pollution control; and to set standards and criteria for the licensing of vehicles, drivers and chauffeurs, owners and operators engaged in such services.’” The court then concluded that the power to compel medallion owners to purchase a specific automobile does not exist in the City Charter.

The court further found that the TLC rule unlawfully impinged on the authority of the City Council to mandate the type of cars that could be used as taxis (if there was to be such a mandate at all). The TLC was not exercising a “typical administrative ‘interstitial’ rule-making function” such as its historical role of setting technical standards for taxicabs. Instead, it wrote on a clean slate, “creating its own comprehensive set of rules without benefit of legislative guidance.”

This is just the latest effort by Mayor Bloomberg and his (theoretically independent taxi commissioners) to dictate the type of vehicle that taxi owners might purchase. First, the mayor tried to force the industry to buy hybrid vehicles, not in so many words by through a minimum gas-mileage regulation. That ruling was held invalid on the grounds that only the Congress could dictate gas mileage.  Then Bloomberg pushed through the Taxi of Tomorrow, which ironically would have prevented the use of hybrids. 

The city has said it will immediately appeal. But for now, we are back to the traditional regime, where, in Justice Hagler's words the New York City taxi fleet "comprised various makes and models of

vehicles made by different automobile manufacturers. These makes and models were then modified or 'hacked-up' for use as taxis."  The TLC set the specific standards for cars that could be employed as taxis and the medallion owners were given the freedom to purchase any make or model of vehicle from any manufacturer who met those standards.

Only recently has the TLC decided it was smart enough to design cars. But it seems it was too smart by half. Nissan, meanwhile, says it will still roll out the NV200, and that it's a great car. Maybe so, but without its state-mandated monopoly, it will be a tougher sell.

Are Green Cabs game changers? Depends if anyone wants to drive them.

The Times has touted the green cab often enough, as have others such as this piece from something called the New York Business Journal.  According to the Times, the TLC says 200 such cabs are on the road, which is a far cry from the 18,000 planned. I have heard scuttlebutt that the drivers are slow to sign on to drive the greenies despite some hard sell from the city. Why not? First, because it turns out the cruising for fare in the outer boroughs is not such a good business plan-- as yellow cab drivers have known for years. Second, there are already plenty of cabs cruising the the green areas. These are traditional livery cabs, which have long accepted street hails, in the outer boroughs and in Manhattan as well, albeit illegally. So why would a livery cab driver pay to buy a cab, obtain a license and hack it up with green pain and mandatory technology-- which, all told could cost $10,000-- when he is already doing what the green license allows. It seems like a lot of drivers have decided there is no good answer to this question.

Aussie wants "justice" and thinks he got it

Here is an article from an Australian website about how to "get justice" against NYC cabbies.  Of course it gets it somewhat wrong when it says the cabbie "pled guilty." The $100 fine means the cabbie agreed to pay in exchange for the TLC not bringing charges at all. This practice, now common, is of dubious legality.

Following the Money that follows the Pols

The taxi industry is fraught with both litigation and regulation. So it's not surprising that industry players are lining up behind various candidates for mayor of the city of New York.

The Wall Street Journal has a nice story about various sectors of the industry are picking sides. Livery cab owners are backing Bill Thompson, who backs the outer borough taxi plan.  Yellow cabs are backing Public Advocate Bill de Blasio, who opposed the plan, or at least the way it was passed without the City Council.  Some yellow fleet owners backed Anthony Weiner early on. Considering what's happened since is kind of like catching a cab and realizing a block later that you forgot your lunch box and had to go back home.

In NYC, cabbies are still looking for a hand

In New York, the hand is still mightier than the app. This is according to a report in the Times that says few riders have taken to taxi hailing apps, now available as part of a TLC pilot program. And when they try to use them, they rarely work.    

Here is the key finding as reported in the paper of record:

According to data from the city’s pilot program for taxi-hailing smartphone apps, the revolution has yet to arrive.

Over four weeks in June, the first month of the program, trips arranged by smartphones accounted for less than one-quarter of 1 percent of all yellow taxi rides. Of the roughly 117,000 requests made using the apps, only 17 percent were “successful,” the city said — meaning a driver and rider eventually found each other using the program.

Of course, apps may be more useful in cities where there are fewer cabs and fewer passengers.

Despite the TLC's vaunted efforts to get cabs to the outer boroughs, 85% of the app attempts came from Manhattan, where the most of the passengers are and, therefore, most of the cabs are.