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    New Mexico Political Report
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    Uber filed a request for the New Mexico Public Regulation Commission to rehear the issue of Transportation Network Companies (TNCs).

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    Motion for Rehearing from Uber to PRC

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    Uber filed a request for the New Mexico Public Regulation Commission to rehear the issue of Transportation Network Companies (TNCs).

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    650 views31 pages

    Motion For Rehearing From Uber To PRC

    Uploaded by

    New Mexico Political Report
    Uber filed a request for the New Mexico Public Regulation Commission to rehear the issue of Transportation Network Companies (TNCs).

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 31
    BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION IN THE MATTER OF THE ADOPTION OF AMENDMENTS TO THE MOTOR ‘TRANSPORTATION RULES, 18.3.1 NMAC ‘TO 183.15 NMAC, PERTAINING TO. "TRANSPORTATION NETWORK COMPANIES Case No, 14-00216-TRP HINTER-NM, LLC MOTION FOR REHEARING Patricia C. Robbins Naney Allred Tiinte-NM, LLC 1435 Market Stree, 4th Fleor San Francisco, CA 94103 patty.robbins @uber.com nancy.sllredauber.com (415) 842-3500 ble of Contents {TNCs Opens Unie Unique Business Model and Should Not Be Squeezed Tt Existing Motor Carrer Rules. IL I the Commission Does Not Create New Rules for TNCs, Ht Should Amend Its Rules to Recognize the Unique Natate of TNCs. A The Commission hood Reconsider Provisions Aressng Insane, Dg and Alcohol Testing, and Driver and Equipment List... 'B. The Commission Should Incorporate Additional Technical Amendments, ML, Jurisdiction... 1V. Conclusion. 2 BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION INTHE MATTER OF THE ADOPTION OF AMENDMENTS TO THE MOTOR ‘TRANSPORTATION RULES, 18.3.1 NMAC ‘TO 18.3.15 NMAC, PERTAINING TO. ‘TRANSPORTATION NETWORK COMPANIES ‘Case No. 14-00216-TRP HINTER-NM, LLC MOTION FOR REHEARING “The Transportation Network Company (“TNC”) regulations! adopted by the Public ‘Regulation Commission (“Commission”) are fundamentally flawed. The Commission should reconsider the rules becaus: they are “unlawful, unjust, fand] unreasonable, ‘The Commission recognizes that TNCs operate under a unique business model, But instead of ereting a new chapter or part to regulate this nascent industry, the Commission has sitempted to squeeze TNCs ino the existing rules fr motor carrers—many of which were recently adopted without adequate notice to TNCS. The results regulations tha frustrate TNCs! abiiy to operate in New Mexico and prevent people thoughout the stat rom having acess @ safe reliable, and affordable transportation option. ‘The Commission should abandon the TNC rules and adopt new regulaons patterned on recent legislation that was nary passed by the formatted of the legisation, New Mexico legislature. Exhibit A provides a modified v and re-configured for insertion into the Commission's rules. Ifthe Commission were to adopt this approach, TINC-specfis rules would be clear and straightforward and could be amended more easily over time as ths new industry continues to evolve, "inal Order Amending the Commission's Moto Transportation Rules Perining to Transportation [Network Companies, Case No. 14-00216-TRP (adopted April 22,2015) (‘Final Onder”), Onder Exempting Transportation Nawork Companies from Drug and Alcohol Testing (adopted April 28,2015), FNMAC § 1.22.37 XQ) the Commission chooses instead to maintain the framework aleady adopted, Hinter NM, LLC (‘HinterNM) args the Commission to reconsider and promptly adres three portant issues: (1) insuance, 2) drug and aleohol testing, and (3) driver and equipment lis. Finally, Hinter-NM urges the Commission to make aditional technical amendment othe following provisions: (1) recordkeeping regarding the number of passengers, (2) the TNC definition, () posting of res and (4) the location ofthe'TNC’s records. inter-NM requests a stay ofthe April 22 and April 29,2015 orders adopted in this proceeding while this Motion for Rehearing remains pending, and also request a esting to allow the Commission to more ily adress and consider these important issues. I. TNCs Operate Under a Unique Business Model and Should Not Be Squeezed Into Existing Motor Carrier Rules. TNCs are fundamentally different from taxis and other motor carters. Hinter-NM, a TING, hasan agreement wih Uber Technologie, Ine. to use the Uber smartphone application and the Uber digital plato as its TNC platform. Hinter-NM contrats with thind-party transportation providers who pay a fs in order to acess the TNC platform. The TNC platform allows those third party enrepreneus offering transportation services to receive transportation requests fiom potential pasengers. Drivers contacting with Hinte-NM for acess to is TNC platform use ther personal vehicles to transport riders, generally on a parttime basis they are not operating fulltime commercial vehicles suchas taxis or limousines, Moreover, the business ‘model which includes catless transactions no sret hails, GPS records of every tip, and real- time feedback about driver performance fundamentally unlike the business of anyother The motor carer rales are designe to gover pubic vehicles, a opposed to private vehicles that are occasionally used by third parties who accept trip requests from a'TNC's platform, Notwithstanding that critical difference, the rules adopted inthis proceeding attempt to accommodate TNCs by apalying the rules originslly designed for full-time commercial transportation providers, and then exempting TNCs from variety of provisions, and in some instances, adding TNC-specifie provisions. “The interaction between the TNC-specifi rules and the more general motor carrer rules is farther complicated by the fact thatthe motor cartier rules were revently amended ina parallel proceeding.’ The comment period in that parallel proceeding had already ended by the time the TINC notice of proposed rulemaking was released Inst July thus, TNCs did not have an ‘opportunity to actively participate inthe motor earrer rulemaking proceeding that would ultimately have a large besting on thee regulatory obligations. Nor was there an opportunity to ‘comment on the TNC rules during the time period between the adoption of final motor easier rules in November 2014, aad the adoption of final TNC rules in April 2015. The Commission's rush to adopt TNC regulations, despite these complexities and interactions, was arbitrary and capricious,’ and violative of due provess.® Instead of squeezing the TNC business model into a motor carrer framework, a simpler and more durable, forward-looking approach would be to adopt a separate section that recognizes, "TNCs as different and creas rules specifically designed to address the new industry. This > Final Onder Repealing and Keplacing the Commission's Motor Transporation Rules, Case No. 14- (00061-TRP (filed Nov. 19, 2014), *'See Onder Extending Time fr Kecping the Record Open, Case No. 14-00061-TRP (filed July 30,2015) (oting thatthe deadtne for vriten comments was Jane 30, 2014, and the deadline for writen response fomments was July 15, 2014) NAG of the State w. New Mexico Pub, Reg’n Comm'n, 128 NM. 747, 74849 (2000) (“The appropriste inquiry in determining whether an order ofthe commission is unreasonable or unlawfl is whether the ‘omission’ decision was atitrary and caprcios, unsupported by substantial evidence, or an abuse of the agency's dseretion Because its outside the Scope ofthe agency's authority, clear err, or violative of due process.) "TW Telecom of NM, LL-C.v, New Mexico Pub. Reg’n Comm'n, 1S0NM. 12 (2011) (annuling, ‘cating, and remanding a Commission order back tothe Commission where parties were nt afforded the opportunity to present evidence in related proceeding. approach would avoid any confusion regarding which commercial motor carir rules were intended t apply to TNCs, and would facilitate additions and amendments to TNC-specifc rules inthe future Attached as Exhibit A is a comprehensive set of TNC-specific rules thatthe Commission could adopt on an expedited basis, These rules are a modified version ofthe egslation that was recently pending before the New Mexico lepslatur, reformatted and reconfigured for insertion into the Commission's rules. ‘These rles would protect public safety while also promoting {innovation and economic setvty within the state. Hinter-NM urges the Commission to seek ‘comment on these rules—either in the context ofthis Motion for Rehearing, or in @ nev, expedited rulemaking proczeding. Given that these proposed rules reflect # compromise ‘amongst many stakeholders, Hinter-NM expects that they could be quickly adopted and implemented HL, Ifthe Commission Does Not Create New Rules for TNCs, It Should Amend Its Rules to Recognize the Unique Nature of TNCs. Ifthe Commission chooses to maintain the framework already adopted, Hinter-NM strongly urges the Commission to reconsider and promptly adress thee important issues (1) insurance, (2) drug and aleohol testing, and (3) driver and equipment lists, These rules ‘warrant reconsideration because they are “unlawful, unjust, [andl] unreasonable,” The rules regarding insurance and drag and aleohol testing were adopted without proper notice, contrary to low, And the provision adressng diver and equipment lists would require Hinter-NM to Aivalge propritary trae secrets, eslkng in substantial business harm, In addition, HinterNM urges the Commission to make additional technical amendments to the following provisions (1) recordkeeping regarding the number of passengers, (2) the TNC TNMAC § 1.22.370F(0)0). Aefinition, 3) posting of rates, and (4) the location ofthe TNC’s records, ‘These rules are unreasonable," but appear 0 be unintentionally so. Modest amendments would vastly improve these regulations and avoid unintended consequences. A. The Commission Should Reconsider Provisions Addressing Insurance, Drug and Aleohol Testing, and Driver and Equipment Liss 1. Insurance Te insurance rule adapted by the Commission is unnecessarily restrictive and departs, fom the approach taken bythe overwhelming majority of jurisdictions that have addressed this issue, Moreover, the Commission dd not provide sufficient notice of the rule that was lkimately adopted, which differs substantially and materially fom the rule that was initially proposed Hinter'NM mintins automobile lability insurance at all imes a TNC driver is connected to its digital network, Specifically, Hinte-NM maintains $1 milion of primary thitd party automobile lability coverage during the course of every prearranged ride that is requested in connection with its digits network, as wells any otber compulsory coverage required of limousine. This period begins from the momenta passenger's ride request is accepted and ends when the last passenger exits the vehicle, Additionally, Hinter-NM maintains pre-tip automobile ibility coverage that provides $50,000 per person fr bodily injury $100,000 forall injured persons, and $25,000 foal property damage for each acide, as well as anyother compulsory coverage requted ofa personal automobile. This coverage applies should a TNC driver's own poliy fal to provide coverage o exclude coverage aecording tits policy tems while a TNC drivers simply connected toa TNC's digital network but isnot in the course of providing an acepted prearange rid. oa The TNC insurance rule adoped bythe Commission would unnecessarily require $1 million of primary thir party automobile Hability coverage anytime a TNC driver tums on the TNC digital platform, gardless of whether a passenger is being tansported ora drivers en route to pick up a passenger. TNC vehicles are Fundamentally different from commercial autos like limos or taxis. Limosand taxis are purely commercial vehicles, driven tens of thousands of miles annually, operated by multiple drivers on #247 basis, on an exclusively commercial bass. "TNC vehicle, in comparison, ar primarily non-commercial personal autos, operated by a single driver, sed on a init parttime basis to provide prearranged rides in addition to the operator's ‘more fundamental personal use “There, asa resuh, differs materially fom the overwhelming majority of states, cites, and counties that have addessd this issu. Personal lines suo insurers re rapidly developing automobile insurance prodscts ona personal lines basis hat provide protection while a drivers logged on to a TNC digital network and not providing a prearange ride. Exch of these products contemplates insurane linits more closely related to those ofa standatd personal aut, Seting standards contrary to this rational trend discourages both innovation inthe TNC market andthe insurance market. Interested partes did not have sul 1 notice tha! the Commission was contemplating 8 $1 milion insurance requitement begining as soon a the TNC diver tur onthe digital platform, The insurance re proposed in July merely required coverage during that ime period, ‘without a specific minimus dolar amount specified, The Commission's substantial departure from the original proposal as arbitrary and capricious, unsupported by substantial evidence, and Violative of due process nce requirements, and therefore warans reexamination upon reheating, inter-NM urges tke Commission fo promptly reconsider and amend the TNC insurance rule as follows: 2 shall comply withthe automobile liability ‘A. After July 1, 2015, TNCs and their insurance requirements ofthis section. 'B. The following autsmobile liability insurance requirements shall apply during the time that a TNC driver is logged into the company's digital network and available to receive requests {for transportation but is not providing TNC services. 11) TNC shall maintain automobile Liability insurance witha lisility limit equal © at leat $50,000 per person for bodily injury, $100,000 forall injured persons, and $25,000 for allprperty damage fret cident This covrage apis shold TNC diver sown policy {alto provide coverage or exclude coverage according to its policy terms while a TNC connected to-2 TNCs digital network but is notin the course of providing an accepted prearranged ride, Nothing in this paragraph precludes an insurer's right to equitable subrogation ‘The requirements ofthis paragraph expire on January 15,2016. (Q) After January 15,2016, a driver or a TNC on the driver's behalf shall maintain a primary automobile liability insurance policy that: (a recognizes that the driver is @ TNC driver and provides coverage while the river is logged into the TNC’s digital network; ‘(P) provides automobile lability coverage of at least $50,000 per person for bodily injury, $100,000 for all injured persons, and $25,000 forall property damage for each accident; and {the coverage requirements of this subscetion may be satisfied by any ofthe following: _{i)automotile lability insurance maintained by the TNC driver; ii) automobile liability insurance maintained by the TNC; or {if any combination of Subparagraphs (i) and (i) of this paragraph. C. Nothing inthis setion requires a personal automobile insurance policy to provide coverage for the period of time in ives loge into a TNCs dtl nso The following automobile Hiab driver is providing TNC services: (1). provision af primary automobile ait insurance that resngizs. river's provi (2) the provisior of automobile liability insurance ofa least one ($1,000,000) for death, pe-sonal injury and property damage: {G) the provision of uninsured and underinsured motorist coverage ofa least one million dollars ($1,000,000) per occurrence; and (A) the coverage requirements ofthis subsection may be satisfied by any of the following: jon dollars (automobile libilty insurance maintained by the TNC driver; (b) automobile liability insurance maintained by the TNC: of (©) any comb nation of Subparagraphs (a) and (b) ofthis paragraph, EE. Inevery instance where insurance maintained by a TNC driver to fulfill the insurance requirements of this section has lapsed, failed to provide the required coverage, denied a claim {or the required coverage ot otherwise Ceased to exist insurance maintained by the TNC shall provide the coverage required by this section beginning with the fist dollar of a claim, F, Insurance required by this section may be placed with an insurer authorized to do slate or wit a surplus lines insurer eligible under Chapter S9A, Article 14 NMS G. Insurance requir by this section shall be deemed to satistythe financial responsibilty requirement for a motor vehicle under Chapter 6, Article S NMSA 1978, H. 1fmore than one nsurance policy provides valid and collectible coverage fo arising out of n occurrence involving a motor vehicle operated by a driver, the responsibility For the claim must be divided on a pro rata basis among all of the applicable policies, This equal slivision of responsibility ray only be modified by the written agreement of all ofthe insurers of the applicable policies and the owners of those policies. 2. Drug and Alcohol Testing Drug and alcoho testing of TNC drivers woul create an unreasonable and unnecessary burden on TNCs and TNC divers, Hinter-NM has a zero-tolerance policy towards drug and alcohol use by TNC deives anda mechanism for obtaining passenger feedback on rides in rel time. Ifany passenger believes a dever is intoxicated, he or she ean inform Hinter-NM instantaneously, and HinloeNM can immeitely deactivate tha driver ftom the platform, This process moves far more qhicly than any drug testing regime, and its existence deters drivers fom driving while iotoxiited Further, the proposed rules regarding drug and alcoho esting bare litle resemblance to the rules adopted on April 29,2015, The Commissions substantial departure from the orignal proposal was arbitrary and capricious, unsupported by substantial evidence, and violative of due proces notice requiremens. Interested partes dd not eceive a sulicent opportunity to comment on tis issue, which merits further atention on rehearing. Specifically, the Commission should consider the following eis to Sections 183 2.9((7)-@),183.2.13(B)5) and (9), ad 183.714(A)G) to adress the TNC’s zero-oleranee policy Sections 18.3.2.9()(7)(8) (7 shall not be required o develop a drug or alcoho! testing program notwithstanding any such requirement in these Rules-exeep- fr those-TNC divers who-arefnvalved in-a-motor vehiele sooident-oF whee the subject of an investigation for drug or eleohot- abuse; and (B) shall have a writen zero tolerance policy as to alcohol abuse and drug abuse that: (q) shall require the immediate suspension ofthe ‘TNC driver pending further investigation when ‘8 passenger has complained to, or the Commission has reported to, the TNC, that the TNC driver has violated the TNC’s zero tolerance policy; ()sequitesaloohob and

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