Hello everybody and happy May! With April consisting of more inclement winter weather than expected, perhaps in May we will be able to enjoy some of the milder weather that comes along with spring! Regular readers of my column and of the Black Car News, in general, are no doubt aware that the first five months of 2018 have been exceptionally tumultuous, not much unlike 2017. As we approach the second half of the year, all signs are pointing towards continued tensions and legislative clashes, not to mention some serious Industry-wide adjustments.

On that note, let’s begin…

First, I’ll provide an update on the FHV Accessibility issue. On December 13th of last year, the NYC TLC passed rules requiring FHV bases to dispatch minimum percentages of received dispatches to WAVs; the percentages increase from 5% to 25%, phased in via 5% annual increments. The same day, the NYC TLC also voted on and passed the FHV Accessibility Pilot program, based conceptually on a proposal by the FHV Coalition, as an alternative path to base rule compliance. Under the FHV Coalition Pilot program, bases would be free to align themselves with one of three TLC-approved WAVDs (Wheelchair Accessible Vehicle Dispatchers), who would be responsible for fulfilling all accessible dispatches. The reason being, that in order for the majority of FHV bases to comply with the TLC rulemaking, massive investments would be required, primarily to be shouldered on the backs of drivers, already suffering financially due to an Industry downturn. So much of a burden, in fact, that dozens and perhaps even hundreds of bases throughout New York City would be unable to comply, and eventually be forced to close.

Recently, the TLC released its list of approved WAVDs for Pilot participation, leaving the Industry with just enough time to formalize agreements and notify the TLC of their base’s participation in the Pilot program, with June 20th, 2018 as the deadline.

The TLC approved three WAVDs for participation in the Pilot, and they include in no particular order: Endor Car & Driver, LLC (Lyft), Vier-NY, LLC (Uber) and A Ride for All, LLC (Carmel). FHV bases have until June 20th to submit a completed MOU (Memorandum of Understanding) to the TLC in order to participate in the Pilot, also indicating the WAVD the base plans on utilizing for compliance. The MOU can be downloaded from the TLC’s website.

FHV bases which do not choose to participate in the Pilot program are free to make that choice, however, it is important to keep in mind that they are then required to comply with the TLC rule in its entirety, or face severe penalties, potentially inclusive of base license revocation.

Trade associations such as the BCAC, LANY and LBO are still negotiating for fairer terms on behalf of their Members. If your operation is not a Member of a trade association, it is crucial you begin doing in-depth research on the three WAVDs approved by the TLC for participation.

While we are preparing for the July 1st implementation date to arrive, we are still pursuing lawsuits opposing the TLC rulemaking on both the state and federal levels. The Judge presiding over the federal case denied ADA (American with Disabilities Act) claims brought by the BCAC, LANY, LBO and LRT but did not rule on state claims brought forward accusing the TLC of exceeding its authority via the rulemaking in question. While we do not share the opinion of the Judge regarding the ADA claims, we obviously respect the decision which was made, and regarding the state claims not ruled on, those can be revived at the state level.

While our litigation may continue on, it is far from the only lawsuit on the matter the TLC is contending with. Uber, Lyft and Via jointly filed an Article 78 petition in New York State Supreme Court. An Article 78 petition is the appropriate filing to pursue, as it is intended to appeal decisions made by jurisdictional agencies – in this case, the NYC TLC.

In the language of the petition, the Petitioners explain their desire for the Court to vacate the TLC’s recently-passed FHV WAV rule on the claims that, among other things, “…there are no facts or reasoned analysis to suggest that 25% is the correct percentage.” The petition criticizes that “…the TLC arbitrarily chose 25%, in haste and without any analysis, to protect itself from ‘criticism of inaction’ that may be leveled by accessibility advocates.”

I think it is safe to say, the TLC has its hands full with litigation due to recent rulemaking, and we will continue to closely monitor this and report back any updates.

Now, on to the City Council. At its stated meeting on April 25th, Councilmember and FHV Committee Chair, Ruben Diaz, Sr. introduced a piece of legislation, Int. No. 838, aimed at establishing a new Industry category called “App-based for-hire service.” It calls for all for-hire vehicles which accept dispatches via an app to be removed from the Black Car category, and put into their own, new category. Not just that, but even traditional FHV bases which have developed their own customer apps would be put into this new category, as well.

However, bases which have remained in continuous operation since the year 2000 are exempt from this legislation, even if they have since developed a customer app after the year 2000.

The legislation calls for multiple controversial measures, including an annual license fee of $20,000 per App-based for-hire base, an annual vehicle license fee of $2,000 (responsibility of the vehicle owner), the need for base applicants to demonstrate the business need for the service relative to the communities it plans to serve, the projected number of vehicles the entity needs to affiliate in order to meet the service laid out as necessary on its application, as well as the provision that each App-based for-hire base may only assign dispatches to vehicles affiliated with that particular base – a clear yet vast distinction to how our Industry is accustomed to operating now.

Councilmember and Transportation Chair Ydanis Rodriguez must have been feeling left out since he lost oversight of the TLC regulated industries and did not want to be forgotten, so he introduced three bills with no basis in fact that his motivation must be questioned.

The first, Int. 854 calls for a 1,000-vehicle limit on affiliations per Black Car base; the second, Int. 855 is an outrageous call for half of all Black Cars to be WAVs come January 1st, 2025. The third, Int. 856 relates to the issuance of new Black Car and Luxury Limousine base licenses, as well as requests for base location transfer, as well.

The legislation calls on the TLC to take into consideration when granting such licensures the potential negative impact on quality of life for the residents of the surrounding community, such as both vehicle and sidewalk congestion, parking issues, noise and even pollution. Those are the three bills introduced by Councilmember Rodriguez; all three were referred to the FHV Committee by the Council, and as of yet, have not been assigned a hearing date. What is interesting, though, is that Councilmember Rodriguez clearly identifies Black Car and Luxury Limousine bases as the subjects of his introduced legislation, with Councilmember Diaz’s new app-based Industry sector going unmentioned.

However, the first piece of legislation mentioned, Int. 838 aimed at establishing a new Industry sector put forward by Councilmember and FHV Committee Chair, Ruben Diaz, Sr., is set for a public hearing, which will have already taken place on Monday, April 30th by the time you are reading this.

Also up for discussion at the April 30th hearing was Int. 634, also from Councilmember Diaz, SR., introduced earlier in March of this year. This bill proposes waiving the license fee for any for-hire vehicle or taxicab being used as an accessible vehicle. While my next update on this will not be until next month, make sure you are following the BCF and BCAC on social media to hear the latest first!

Wrapping up my synopsis on current legislation, the last relates to the Office of Administrative Trials and Hearings (OATH), the city agency tasked with holding hearings on summonses issued on behalf of the city, from across multiple different agencies, including the TLC. Proposed by Councilmember and Governmental Operations Committee Chair Fernando Cabrera, Int. 748 seeks to redistribute adjudicatory powers. Currently, the Chair of the TLC has the final say when it comes to the proper and fair resolution of disputed summonses, taking into account an official recommendation from the adjudicating OATH Judge or hearing officer; Int. 748 proposes shifting that binding power to the OATH appeals unit, rather than keep the power within the regulatory agency tasked with the proper interpretation of its own regulations, for which the penalties are handed out. It would effectively make the official recommendation of the OATH representative the final, binding decision.

Further, the bill aims to grant OATH Administrative Law Judges (ALJs) and hearing officers with the power to customize penalty amounts, or waive them entirely, the language of the legislation spelling it out: “…after determining that such reduction is appropriate because one or more compelling considerations or circumstances clearly demonstrates that imposing such penalty would constitute or result in injustice.”

A public hearing on the legislation was held on April 26th, where these issues, as well as other aspects of the legislation were discussed, such as the definition of petitioner in reference to the TLC and summons issuance come hearing time. OATH Commissioner Fidel F. Del Valle and TLC Commissioner Meera Joshi both testified before the Committee that the two agencies have an exceptional working relationship and therefore few issues ever arise, if any, but that while the current OATH regulations do not mandate the now-voluntary actions taken by the TLC, such as an in-person TLC representative at every driver hearing, changes in future TLC administrations could result in the change of current common practice. I will be keeping close watch on this piece of legislation and report back.

Finally, I am very pleased to report that I recently delivered a presentation at the Spring Meeting of the International Association of Industrial Accident Boards and Commissions (IAIABC) in Atlanta, Georgia. As a result of The Black Car Fund’s recent NPR special feature, “The Future of Benefits: A New York Program Might Provide A Model,” the IAIABC reached out to The Fund interested to have their attendees, insurance regulators from 40 national and international jurisdictions, hear from us about how our revolutionary passenger surcharge model has been able to so effectively and efficiently provide workers compensation benefits to many thousands of New York drivers, all at no cost to the worker or the base owner. Not just that, but also about the additional coverages The Fund extends to its insured, such as the $50,000 Driver Death benefit and some soon-to-be-released crucial health benefits, which we are extremely and passionately excited about.

With The Black Car Fund model applicable anywhere there is an auditable revenue stream and a worker in need of benefits, I explained how there is no limit to the applications across wide varieties of Industries. The presentation was extremely well received, as most, if not all in attendance are dealing with the shift of their workforce from traditional employment to the gig economy at a rapid pace. As such, The Fund was invited to present again at the next IAIABC gathering.

As the gig economy continues to develop and the complicated problems continue to present themselves, I have no doubt The Black Car Fund will continue to be called on to serve as a valuable resource; a guiding light, per se, in the intricate journey for truly portable benefits, on a map that has never been traveled.

That seems to be it for me for this month! All in all, our Industry has an unprecedented amount of legislative issues all playing out at once, so this is quite the busy time for us all. Remember to follow the BCAC and BCF on social media to hear the latest Industry news first, and drive safely! Until next month.

 

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Article by Ira Goldstein

Ira Goldstein is Executive Director of the New York Black Car Fund, Chief Operating Officer of the Black Car Assistance Corporation and Treasurer of the Coalition of Transportation Associations.

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