The Port Authority of New York and New Jersey (PANYNJ) recently enacted a requirement for all For-Hire Vehicle (“FHV”) bases to obtain a Privilege Permit and to charge an access fee for pick-ups and drop offs at all three PANYNJ airports: John F. Kennedy, Newark, and LaGuardia. The PANYNJ is a bi-state agency created in 1921 by an interstate compact between New York and New Jersey for the purpose of – among other things – operating public transportation terminal facilities on a self-sustaining basis. This means the PANYNJ is self-funded and does not rely on taxes or funding from New York or New Jersey. To obtain funding for its operations, the PANYNJ generates revenue from businesses that use the airport facilities.

As far back as 2015, the PANYNJ started having discussions about implementing access fees for FHVs. Some of the provisions initially proposed included an initial fee based on the average number of monthly pickups for the first six months. The initial fee ranges from $200,000 for FHV companies averaging 100,000 or more monthly pickups during the first six months, to $5,000 for companies averaging less than 1,000 monthly pickups per month. Another provision initially proposed was a $4.00 pick-up and $4.00 drop-off access individual trip fee

At the time, the Livery Round Table (“LRT”) opposed the proposals of the PANYNJ because the costs would place a significant burden on smaller bases, potentially shutting new entrants out of the marketplace, discouraging growth, and putting unsustainable pressure on an industry that was already reeling from marketplace changes and a byzantine regulatory structure. Smaller companies were already struggling to make ends meet and simply would not be able to come up with the ready capital to pay for an initial fee

We all know that not only did COVID-19 hit us in early 2020, but that the FHV industry was hit hard with some businesses losing up to 90% of their revenue due to the substantial decrease in travel from the pandemic. To date, most if not all of the FHV bases and drivers have still not fully recovered from the effects of COVID-19 – and in all reality, there is still no end in sight.

In late October 2020, the LRT became aware that the PANYNJ had been meeting with select FHV companies and trade industry organizations to discuss a new proposed privilege permit. As a result, Avik Kabessa, a founding member of the LRT, and myself, as its counsel and executive director of the LRT, reached out to the PANYNJ to determine the status of the pending discussions and to inform the PANYNJ that it is only fair for the livery industry to be part of the discussions, as we are in the same boat as the black cars and TNCs.

Despite the decline of business in the FHV industry, the PANYNJ was intent on moving forward with the Privilege Permit and Access Fee due to their own decline in revenue, as a result of the ill effects of COVID-19.

In conjunction with the Black Car Assistance Corp and the Livery Base Owners, The Livery Round Table was successfully able to convince the PANYNJ to exempt livery bases from certain onerous provisions of their original proposal. We were successful in convincing the PANYNJ to do the following relative to the Privilege Permit:

-       Eliminate the requirement for bases to pay an initial fee;

-       Eliminate the requirement that bases who use a mobile application have geofencing technology so that FHVs can only receive requests for pre-arranged trips originating at the airport while physically located in the designated waiting areas;

-       Eliminate the Digital Driver Profile which would have required bases that use an FHV mobile application to have a Digital Driver Profile for each FHV Driver that could be viewed at all times on the FHV Driver’s mobile device;

-       Eliminate the requirement that bases that use an FHV mobile application also have a technology feature for real-time monitoring of FHVs;

-       Enable bases who rely upon mostly cash payments from passengers (including, but not limited to corporate accounts) to be eligible to submit quarterly payments, with the written approval of the Port Authority, as opposed to monthly payments; and

-       Eliminate the requirement that bases have a policy of commercial automobile liability insurance for coverage of each vehicle it dispatches in the minimum limit of $5 million for each occurrence;

Bases will still have to collect and remit to the PANYNJ an Access Fee of $2.50 for each drop-off and $2.50 for each pick-up. Also, each base will have to submit monthly reports to the PANYNJ along with their monthly payments, unless the base relies upon mostly cash payment from passengers and obtains the written approval of the Port Authority to submit quarterly reports of each trip with its quarterly payments. Fortunately, the required reports will be in a similar format to those that the NYC TLC already requires each base to submit.

In sum, livery industry stakeholders should be thankful that the LRT, in conjunction with the Black Car Assistance Corp and the Livery Base Owners stepped in to ensure parity in the FHV industry and in securing an exemption from the most burdensome and onerous requirements originally proposed by the PANYNJ.

The TLC is holding a public hearing on 9/28/17 on its proposed rules that will require all FHV bases to send 25% of its dispatches to Handicap Accessible Vehicles ("HAVs"). The FHV industry will be completely unable to comply with these rules. As a base owner/operator, who does not employ its drivers and does not own any vehicles, how can you have any effect upon the number of HAVs that are on the road at any given moment? The answer is that you CANT.

The Livery Round Table and other members of the entire industry came together to create a reasonable alternative option that will actually provide the handicap community with the service that they so desperately need and deserve. The solution is a Central Dispatch Program for Handicap Accessible Vehicles. It is a reasonable solution, a workable solution and one that will not  hurt our industry. 

We need you to send a letter to the NYC Taxi and Limousine Commission AS SOON AS POSSIBLE. Please CLICK THIS LINK that contains a form letter for you to download and sent to the TLC. All you have to do is download the form, read it, clearly print your base name on the first page and sign the letter on the second page and then do the following:

1. fax the signed letter to TLC Office of Legal Affairs at 212-676-1102; or

2. email the signed letter to  tlcrules@tlc.nyc.gov 

The industry has been plagued for too long by ineffective rules and regulations that serve only to allow the TLC to collect money via fines from bases for non-compliance. We must do all we can to try to get the TLC to postpone the hearing on 9/28/17 to further consider the proposal put forward by the LRT and other industry leaders. If the TLC does move forward with its proposed rules, the consequence to FHV base owners and FHV owners and operators can be disastrous. YOU MUST sign this letter and if possible, attend this hearing on 9/28/17 at the New York Marriott Downtown, 85 West Street, New York, NY 10006. Please use the Washington Street event entrance. 

Please contact the LRT with any questions at steven@theliveryroundtable.org

 

Anyone who rides in a NYC taxicab pays a 30-cent surcharge on each ride to help the city make the cabs more accessible to those with disabilities. So while the NYC Taxi and Limousine Commission (“TLC”) is busy making new rules placing the burden to provide more wheelchair accessible service upon car services, a new audit by Scott Stringer, the NYC Comptroller shows that the Taxi & Limousine Commission failed to collect $5.7 million in surcharges which is supposed to be earmarked for making more taxicabs wheelchair-accessible. This is an abomination and the public should be outraged.  

A hypocrite is a person who pretends to have virtues or moral beliefs, but they either do not actually possess them or they are feigning some publicly approved attitude. The hypocrite is also the person whose actions belie their stated alleged beliefs. If what the Comptroller is claiming is true, and there is no reason to believe it is false, then why doesn’t the TLC just admit their own errors and stop trying to place responsibility elsewhere. According to Stringer "When you don't collect the money, you are discriminating against people who need that lifeline, that ride, that opportunity," Watch the brief video here from News 4 New York. http://www.nbcnewyork.com/news/local/NYC-Taxi-TLC-Failed-to-Collect-57-Million-Dollars-Surcharges-Wheelchair-Accessible-Cabs-434343593.html

The TLC claims that it has a "more than adequate" reserve to keep the taxi accessibility program going, and that since medallion taxi cabs -- including wheelchair accessible cabs -- are "brought into service in a highly scheduled manner," the unpaid funds "would not have prevented even a single wheelchair accessible vehicle from being put on the road." This is incredible as it is akin to saying that it is OK to steal from someone so long as you give the money back before they need it.

This money is supposed goes into a fund called the Taxicab Improvement Fund, which subsidizes owners to put wheelchair accessible cabs on the road. Half of yellow cabs are supposed to be wheelchair-accessible by 2020. In this case, by failing to collect millions of dollars, the TLC is acting in a manner that is contrary not only to its public pronouncements on disability, but is in total abrogation of its duties and legal obligations.  According to the TLC, they are trying to be very thoughtful about how to begin enforcement, especially at a time when the industry is facing a number of challenges. The industry is surely facing a number of challenges and it is mostly because the TLC is taking the wrong approach to achieving the right goal.

On 9/21/17 the TLC will be holding a public hearing for the members of the public and industry stakeholders to speak their minds about the proposed rules requiring all For-Hire Vehicle  Bases to send 25% of their dispatched trips to wheelchair accessible vehicles by 2021 (starting at 10% and gradually increasing). This means that For-Hire Vehicles (“FHV”), including black cars, car services and luxury limousines, which transports approximately 400,000 passengers each day will have to send dispatches to more wheelchair accessible vehicles than are currently on the road today and more than are reasonably likely to be available anytime in the near future. According to the TLC’s own data, there are approximately 96,677 active FHVs. Of this, only 464 FHV are wheelchair accessible. In other words, only approximately 0.48% of the FHVs are currently wheelchair accessible vehicles. Obviously, something has to be done to make transportation more readily available to those persons using wheelchair, but there are extremely varied opinions on what the solution should be.

The TLC believes the key to real accessible service is vehicle availability. Their proposal is for each FHV base to be required to dispatch a certain percentage of its trips to vehicles that are wheelchair accessible. The TLC is making a leap of faith here and their stated solution will not solve the problem. The TLC believes if FHV bases must dispatch a certain percentage of its trips to wheelchair accessible vehicles then such vehicles will be on the road and available to pick up passengers that use wheelchairs who today are unable to get reliable for hire service. There are a number of flaws in this argument and a number of reasons why the TLC’s stated means will not achieve their goals, all to the detriment of the disabled community.

First the overwhelming majority of FHV bases do NOT own vehicles. Requiring bases to dispatch to FHV vehicles will not cause nor require a driver to purchase a wheelchair accessible vehicle. FHV bases have no ability to place more wheelchair accessible vehicle on the road. Unless the TLC plans to provide subsidies to FHV vehicle owners, they are unlikely to voluntarily go out and purchase a more expensive vehicle that can provide wheelchair accessible transportation (or buy a vehicle and pay the added costs associated with outfitting it to be wheelchair accessible). So then where are all these wheelchair accessible FHV’s going to come from…out of thin air? The business model of a FHV base is not that of an owner of a fleet of vehicles. Placing the responsibility on bases to somehow ensure that there are more wheelchair accessible FHV’s on the road is placing responsibility in the wrong place.

Next, even assuming there are sufficient wheelchair accessible FHV’s on the road to enable bases to dispatch 25% of all its calls to wheelchair accessible FHV’s, this means that a base can be in compliance with the law, but never have provided a single trip to a person who needs a wheelchair accessible FHV. What is the sense in making a rule that even if complied with, does not help the wheelchair community in any real and meaningful way. As it now stands, such a rule cannot be complied with and TLC has no real plan set out to enable bases to comply with such rule.

Moreover, by requiring that more wheelchair accessible FHV’s be placed on the road, the TLC will be limiting the choices and desires of the rest of the riding public. They conveniently forget that some people seek transportation in a sedan or a mini-van or SUV. If more wheelchair accessible FHV’s are somehow placed on the road, then there will be less sedans, mini-vans and SUVs. There are only a finite number of drivers and vehicle owners and as such, the more that bases have to dispatch to wheelchair accessible FHV’s, the less likely a person seeking a trip in a sedan or SUV is actually going to be able to get one. So the TLC is seeking to limit the travel options of 99% of the riding public all because the TLC has not thought this idea through and have not sought a balanced solution.

After the City realized it was about to lose a federal lawsuit filed by Disability Rights Advocates they agreed to make at least 50% of all taxis wheelchair accessible by 2020. Prior to the settlement of the federal lawsuit, the TLC’s solution has been and remains with the TLC as the manager of a program that provides wheelchair-accessible yellow taxi dispatching services. See the following link for more information. http://www.nyc.gov/html/tlc/html/passenger/accessible.shtml.  This program was set up in June 2012 to enable wheelchair users to request accessible taxicabs via 311. Back in 2012, there were approximately 13,000 yellow taxis, out of which about 230 taxis were wheelchair accessible taxis participating in the program. In other words, the TLC’s solution was using approximately 1.77% of the taxi fleet to answer the wheelchair accessible taxi demand. So far there have been no complaints that this program is not operating properly.

Based upon the above, why should the TLC not create and manage a program that provides wheelchair-accessible FHV dispatching services similar to the taxis. How about trying this solution out first before implementing an arbitrary rule that will not solve the problem. The difference here is that medallion owners own the vehicles that have the medallion on it and as such, the TLC had the ability to mandate such action be taken by the taxis and the medallion owners had the ability to comply, especially with subsidies from the City. So once again, unlike medallion owners, base owners do not own vehicles and have no ability to add wheelchair accessible FHVs to the marketplace. If FHV bases have no ability to add wheelchair accessible FHV to the marketplace, then how can the responsibility lie with them. The answer is it can and should not.

Dr. Avik Kabessa, the CEO of Carmel Car and Limousine Service (“Carmel”) and myself as the Executive Director and Counsel to the Livery Round Table, Inc. (the livery industry trade organization) do not deny that wheelchair users lack adequate access to this crucial part of New York's transportation network. Dr. Kabessa, as a longtime leader in the FHV industry and a founding member of the Livery Round Table, Inc, will continue to advocate for a solution that ensures affordable, reliable transportation to every single person who requires a wheelchair accessible vehicle. But both Dr. Kabessa, Carmel and the Livery Round Table, Inc. believe that there are a number of other more viable and realistic options available to meet the City’s stated goals. So why is the TLC in such a rush to make new regulations? Does it make sense to rush to make a regulation rather than discuss the issues with all industry leaders and stakeholders so as to find a meaningful and viable solution rather than utilize the first solution that comes to the mind of the TLC? Dr. Kabessa and I will surely be present at the public hearing on 9/21/17 to express our views and opinions. Hopefully the TLC will not give such options and ideas short shrift.

So in the end, the hypocrisy of the TLC is multi-fold. First, they are making arbitrary and unworkable rules that will not solve a very real problem that the disabled community faces. Next, rather than come up with a real solution that involves the input of the people who have the most knowledge and experience in the FHV industry in creating solutions to problems, the TLC will make rules that only make it look like they are doing something for the disabled community. In essence, the TLC will make these new rules as window dressing for the disabled community, just like they promulgated the driver fatigue rules (limiting the number of hours an FHV driver can operate), to serve as window dressing for the Mayor’s Vision Zero plan.

Finally, lets go back to the $5.7 million dollars the NYC Comptroller found lacking from the TLC’s “30 cent surcharge account”. The TLC made nothing but lame excuses for their failure to collect such monies that are earmarked specifically for the benefit of the disabled community and now they want to promulgate rules to help the disabled community? Unfortunately, they do so in a manner which shows their lack of understanding of the FHV industry. Perhaps the TLC should tend to their own house and make sure they collect the millions of dollars it is owed for the benefit of the disabled community before it goes on to make new rules that will be unable to be complied with and which will not provide the disabled community with adequate access they deserve to this part of New York's transportation network.