If a deadly pandemic, a massive downturn in transportation on a scale never before seen, and then getting hit by new Port Authority Permit fees weren’t enough to deal with, the New York City Taxi & Limousine Commission (TLC) is at it again. When I say “it,” I am referring to new and more regulations.
The desire of the TLC to continuously add new regulations seems to be without bounds. I will discuss each one separately.
First, we have the TLC’s proposed rule that seeks to classify High-Volume For-Hire Service (HVFHS) licenses as a type of base license to be regulated separately from Black Car base licenses. This would supposedly eliminate the need for HVFHSs to hold any separate or additional base licenses.
There are a few issues with this proposed rule and I must point them out because they don’t jump off the page and slap you in the face.
As the Commission’s rules currently read, a HVFHS is a Commission-licensed business that facilitates or otherwise connects passengers to For-Hire Vehicles (FHVs) by prearrangement, including through one or more licensed FHV bases, using a passenger-facing booking tool, and that dispatches or facilitates the dispatching of 10,000 or more trips in the City per day. (See 35 RCNY 59D-03(d)).
Currently, a HVFHS must not dispatch any trip other than through a TLC-licensed FHV base. [See 35 RCNY 59D-09(b)]. Such a FHV base can be a Black Car, Luxury Limousine or Livery base.
Additionally, at the present time, a HVFHS that is a Black Car or Luxury Limousine base must become a member of the Black Car Fund. [See 35 RCNY 59B-12(b)(1)]. Similarly, a HVFHS that is a Livery base must become a member of the Livery Fund.
Under proposed rule 35 RNCY 59D-20(e), a HVFHS shall not hold any For-Hire Base License other than a High-Volume For-Hire Service License. Also, per proposed rule 35 RNCY 59A-03(b), a black car may affiliate with a Black Car base or with a HVFHS.
Surprisingly, nowhere in the proposed rules is there a provision that permits a Livery Vehicle to affiliate with a HVFHS. The proposed rule offers no reason or rationale for not permitting a Livery Vehicle to affiliate with a HVFHS. Yet, there is no prohibition placed upon a HVFHS from dispatching to a Livery vehicle. The proposed rules can be found at this link: https://www1.nyc.gov/assets/tlc/downloads/pdf/high-volume-base-classification-2021-05-04.pdf
In practice today, when a HVFHS that is a Livery base (and member of the Livery Fund) dispatches to a Livery vehicle, the Livery driver is covered for workers’ compensation via the Livery Fund in the event the driver is involved in an accident. However, for reasons we hope are a simple oversight, under the proposed rule, a HVFHS is required to be a member of the Black Car Fund, but not a member of the Livery Fund. Furthermore, under the proposed rule, allowing a HVFHS to dispatch to a Livery vehicle while eliminating the need for a HVFHS to be a member of the Livery Fund, means there would be no workers’ compensation coverage for a Livery driver via the Livery Fund.
Each Livery driver will be left to the mercy of the Black Car Fund in their interpretation of the Executive Law that created the Black Car Fund in the event a Livery driver is involved in an accident. This is true because the Black Car Fund law does not mandate providing workers’ compensation coverage to Livery drivers; and the Livery Fund does not provide coverage to a FHV driver when the dispatch originates from a bases that is not a Livery base.
Both the Livery Round Table and the ILDBF believe that the proposed rule should be amended to mandate that each HVFHS become not only a member of the Black Car Fund, but also that they become a member of the Livery Fund. This is the most logical and prudent course of action for a HVFHS that plans on continuing to dispatch to a Livery driver. Additionally, the Livery Round Table and the ILDBF believe the proposed rule should be amended to permit a Livery vehicle to affiliate with a HVFHS. This will not only solve the problem of the gap in coverage but will also enable Livery drivers to expand their opportunities to obtain dispatches from HVFHS bases.
I personally wrote to Chair Aloysee Heredia Jarmoszuk and requested amendments to the proposed rule. I explained the reasoning and also pointed out that the proposed amendment will in no way thwart the goals of the Commission as stated in the TLCs “Statement of Basis and Purpose.” On the other hand, not requiring an HVFHS to become a member of the Livery Fund will create workers’ compensation coverage issues for Livery drivers that can be easily avoided.
Mandating HVFHS bases to become members of the Livery Fund will not place any undue burden on the HVFHS and will in no way change the regulatory scheme which the Commission seeks to enacts via the proposed regulations. I hope that myself and Dr. Avik Kabessa, the Chair of the Board of Directors of the Livery Fund, are given an audience and opportunity before the May 4, 2021 Commission hearing to discuss these very important issues with the Chair of the TLC.
The second set of proposed rules pertains to trip data submission.
As we know, in 2014, the TLC approved rules that require FHV bases to submit trip records to the TLC. The proposed rules establish new penalties for the violations of a base in failing to submit trip records in a timely fashion, failing to submit complete trip records and/or submitting faulty or inaccurate trip data. The submission of trip records is important for keeping passengers safe by informing the TLC of the identity of the driver of a dispatched FHV, preventing driver fatigue and ensuring that those drivers dispatched by High-Volume For-Hire Bases receive the minimum pay provided for in the TLC’s rules.
While I support the continuation of the requirement to submit trip records, the TLC is merely increasing the penalties without any proof that bases are not already submitting their trip records in a complete and timely basis. When a new rule increases fines for failure to comply, it is typically done for one of two reasons: Either because the rule is not being followed and higher penalties will likely increase compliance or because the TLC is simply looking to expand the pool of money it receives from the occasional base that inadvertently fails to comply with the rule. When there is no evidence that there is a problem with compliance with this rule or an explanation in the TLCs “Statement of Basis and Purpose” as to why the penalty should be increased, then it appears to be solely a money grab and not a means of encouraging compliance.
At this point in time, when travel is still drastically down and there is no proof of a lack of compliance, I am astonished that the TLC finds this to be an issue that must be addressed right now.
On the other hand, the TLC seems to never find the time to change their rules to omit the portions that are completely outdated in today’s FHV industry, such as the requirement for Livery vehicles to be equipped with an in-vehicle camera system and a trouble light. Those requirements are antiquated as they were only relevant in an FHV industry that has long since evolved.
It’s just another example of adding new rules that make no sense, but not eliminating rules that have no applicability in today’s FHVC industry.
The third and final proposed rule amendment is to the Commission’s adjudications rules regarding the conduct of summary suspension hearings for licensees.
The TLC recently promulgated rule changes concerning the conduct of summary suspension hearings. The proposed rules further shorten the timeframe for reviewing summary suspensions based upon pending criminal charges in accordance with a recent federal court decision, Nnebe v. Daus.
The Nnebe plaintiffs were taxi drivers who filed a lawsuit under 42 U.S.C. Section 1983 (violation of federal civil rights), alleging that their constitutional rights were violated when their licenses were suspended following their arrests and they were not given meaningful post-suspension hearings to consider whether their licenses should be reinstated.
That case went on appeal to the Second Circuit Court of Appeals, one level below the Supreme Court of the United States. The Second Circuit Court held that the TLC’s suspension procedures did not afford plaintiffs adequate process because the drivers’ property interests in their licenses was substantial, the risk of erroneous deprivation was unacceptably high, and defendants could institute a more meaningful process at minimal financial and administrative costs.
The new proposed rules provide that a driver whose license is summarily suspended may request a hearing before an administrative law judge (ALJ) of the New York City Office of Administrative Trials and Hearings (OATH). Following the hearing, the ALJ makes a recommendation to the TLC Chairperson regarding continued suspension based on whether the driver’s continued licensure pending resolution of the criminal charges presents a public safety risk. The Chairperson reviews the recommendation and makes a final decision regarding the driver’s license suspension.
The proposed rule provides for a quicker return of a license for those drivers whose licensure during the pendency of the criminal proceeding is not deemed to be a direct and substantial threat to public health or safety. The timeframe for an OATH ALJ to issue a recommendation following the hearing is reduced from 15 days to 10 days, and the time for the TLC Chair to issue a final decision is reduced from 7 days to 5 days. In accordance with Nnebe v. Daus (U.S. District Court, SDNY, No. 06-cv-4991(RJS), December 31, 2020), the timeframes are being compressed to ensure a speedier resolution of the hearing process, while still permitting sufficient time for careful adjudication.
A hearing is set to be held on these proposed rules on May 4, 2021 at 10:00 am via Zoom. I wholeheartedly recommend that you sign up to speak or that you watch the meeting so you can see the TLC in action (or inaction), while they try to justify their proposed rules and how they react to the comments and opinions of all stakeholders in the industry. The time is now to get involved, to speak up and speak out.