Hello everyone, and happy June! It really has been feeling like summer for a while now, but at least as of this month we’ll officially be able to call it what it is! While the month of May might not have been the most eventful in terms of Industry-wide news, I would argue it was perhaps one of the more tense months to come out of 2018 yet, due simply to the fact that so many threatening, potentially damaging things are looming on us at once. Like they say, sometimes, the anticipation is the worst part.

Let’s begin with something I’ve regularly been reporting on since its beginning – the FHV Industry coalition’s federal lawsuit contesting the legality and basis for the upcoming implementation of the New York City Taxi and Limousine Commission’s FHV Accessibility rule, projected to cause the widespread closure and/or consolidation of a good majority of smaller to medium-sized operations. We have not revived the federal case after the presiding Judge dismissed ADA (Americans with Disabilities Act) claims brought forward, and chose not to rule on state claims brought forward accusing the TLC of exceeding its authority by putting forward such rule making. Keep in mind, however, that we’ve not yet decided, but we can revive the claim at the state level.

As I reported on in my column last month, Uber, Lyft and Via filed an Article 78 petition in New York State Supreme Court. Just as a refresher – an Article 78 petition is filed in order to appeal a decision made by a jurisdictional regulatory agency, such as the TLC, in this case. The filed petition makes multiple logical arguments, which, all in all, makes for quite a strong case against the TLC – based exclusively on the arguments made in the petition. The three companies behind the petition accuse the TLC of arbitrarily arriving at the 25% WAV mandate figure, arguing “…there are no facts or reasoned analysis to suggest that 25% is the correct percentage.”

The petition also claims that, since as far back as October 2017, the TLC has, in effect, given the “run around” to members of the FHV Industry in response to their submissions of various FOIL requests. According to the language of the petition, multiple FOIL requests were made, requesting from the agency “[a]ll documents reviewed or considered by the TLC in connection with the 25% Rule and any alternative proposals to mandate that FHV Bases or vehicles provide wheelchair accessible service.” Promised they would receive either documents or more information within 20 business days, according to the petition, it wasn’t until after much back and forth that it was discovered the FOIL requests would not be completed until after the 25% mandate is in full effect.

Based on what I see in the petition, it is my opinion that this petition against the TLC and its rule making are quite strong, and I am hopeful the courts agree. If they do, it would be a massive win for our Industry. It is important to keep in mind that no members of our Industry are looking to get out of improving upon accessibility within our own operational ecosystem, as we accept it as our duty and responsibility. However, as has been stated numerous times before and in numerous places, all we are looking to do is come to agree upon a financially viable way of doing just that, and the TLC rule making is in no way viable. We, as a unified Industry, are committed to ensuring a cost-effective way of providing accessible service, which satisfies all service requirements. Now, this has been put off and rescheduled for a June 8 hearing date, due to the fact that the TLC wishes to take some time to participate in potential settlement discussions – quite the welcome “blink” of a move. It is always better to be able to reach a settlement than be forced to have to appear in court, where outcomes are uncertain. We will see what the results of any settlement discussions held may be, and what it could mean for us all. 

On to quite a hot topic, especially lately – driver earnings. The Independent Drivers Guild (IDG) forwarded the TLC a formal rule making petition on Industry-wide FHV driver income and pay transparency. The TLC, once in receipt of such a petition, is required to respond within 60 days, either agreeing to initiate rule making by a certain date, or by denying the request. The TLC said, in response to the IDG petition, that it is “…in the midst of analyzing various methodologies and will include the one you [the IDG] proposed in this process.” The agency also expressed intent to hold a hearing on the issue within the next two months – this is something we will be following extremely closely. Over 16,000 drivers signed their names to the IDG petition, which shows the widespread call for agency protective action on this issue. 

Driver earnings are at the forefront of everyone’s minds, so it is also no surprise a new bill was unveiled at the last Committee on For-Hire Vehicles hearing Introduction 838, sponsored by Committee Chair Diaz, Sr., creating a new category of FHV – “app-based for-hire services.” The legislation outlined possible regulations for this proposed Industry category, which includes provisions such as a $20,000 annual app-based for-hire base license fee, a $2,000 annual vehicle license renewal fee (which obviously falls on the backs of drivers), as well as the requirement for drivers to only accept dispatches from a single app-based for-hire vehicle base. Well, the latest rumors suggest that some of the most onerous provisions from within the legislation, such as the $2,000 annual vehicle license renewal fee and the requirement that drivers accept work from only one app-based for-hire base, have been, or soon will be removed from the language of the bill, much to the relief of our Industry. 

It was made clear by listening to the testimony of the many drivers speaking out against Introduction 838 at the last FHV Committee hearing that the issue of income is of great concern, and with that as a take away, the FHV Committee is reportedly now going to be completely revisiting the drawing board, starting from scratch on FHV legislation that is far more logical, and far more fair, as the Committee looked into the disparity between fees for licensure across Industry sectors and wishes to address that under the issue of drivers earnings, as well. The Committee’s move to take this new approach demonstrates what appears to be the desire to move towards an approach where driver income is not touched as severely, and is therefore regulated. 

Needless to say, there is a lot going on, and I am keeping on top of it all as it continues to surface. Stay tuned for the latest by following the BCAC and BCF on social media, and as always, I look forward to reporting back! Until next month. 

Article by Ira Goldstein

Ira J. Goldstein is the Executive Director of the New York Black Car Fund and Advisor to the Black Car Assistance Corp. (BCAC).

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