Topic: Regulatory Studies

London Transport Regulator Gives Uber the Green Light

Today London’s transport regulator, Transport for London (TfL), said that Uber can legally operate in the U.K.’s capital. The news comes after drivers of London’s black cabs deliberately congested traffic last month in protest over how Uber, the San Francisco-based transportation technology company, was being regulated.

The Licensed Taxi Drivers Association (LTDA) said that it believed Uber was operating in violation of the Private Hire Vehicles (London) Act 1998, as I explained when writing about the protest last month:

The Licensed Taxi Drivers Association (LTDA) believes that Uber, the San Francisco-based transport technology company, is operating illegally in London. Thanks to the Private Hire Vehicles (London) Act 1998, it is illegal for a London vehicle with a private hire vehicle license to have a taximeter. Up until yesterday Uber’s website stated that anyone who wanted to be an Uber driver in London must have a private hire vehicle license. Today those requirements remain the same, however in response to the London protest Uber has opened to licensed black cabs.

TfL does not, unlike the LTDA, consider the smartphones used by drivers using Uber to be taximeters:

TfL’s view is that smart phones that transmit location information (based on GPS data) between vehicles and operators, have no operational or physical connection with the vehicles, and receive information about fares which are calculated remotely from the vehicle, are not taximeters within the meaning of the legislation.

TfL said it intended to have the High Court rule on the legality of Uber’s operation in London. However, TfL noted in its statement that the High Court would not consider the issue while separate criminal proceedings involving Uber drivers brought about by LTDA were being dealt with in the Westminster Magistrates’ Court, although it did say that the High Court would probably rule on the issue eventually:

… the LDTA (sic) has issued summonses in the Westminster Magistrates’ Court against a number of Uber drivers under s.11 of the 1998 Act. This now prevents TfL proceeding as we had intended as the High Court will not consider the issue whilst there are ongoing criminal proceedings on the same issues of law.

TfL is therefore now unable to seek early clarification from the High Court. In due course the LTDA summonses will be heard in the Magistrates’ court. The Magistrates’ decision is not binding, will almost certainly be appealed (by someone), which inevitably means the matter will end up, rather later than sooner, in the High Court.

It looks as if the LTDA has scored at least two own goals in its dealings with Uber. Firstly, the protest it supported was great free advertising for Uber, which reportedly enjoyed an 850% increase in sign-ups in the U.K. thanks to the demonstration. Secondly, LTDA’s actions against Uber drivers have prevented the High Court from considering Uber’s legality.

Virginia DMV Reportedly Reversing Uber and Lyft Ban

Yesterday the Consumer Electronics Association (CEA) issued a news release praising the Virginia DMV and Gov. Terry McAuliffe for reversing the ban imposed on Uber and Lyft last month:

We are encouraged by reports that the Virginia Department of Motor Vehicles (DMV) is taking steps to allow innovative transportation network providers Uber and Lyft to operate in the Commonwealth.

CEA’s news release comes ahead of an official announcement, but if confirmed the news would mark a victory for Uber and Lyft, both of which offer rideshare services via their apps. The DMV had issued both companies cease and desist letters, saying that they were violating Virginia law.

Towards the end of the news release CEA urges lawmakers to pass legislation that would allow ridesharing companies to operate in Virginia in the long term. Perhaps Virginian lawmakers will look to ridesharing legislation passed in Colorado earlier this year, which was praised by Uber and Lyft.

Although a repeal of the ban should be welcomed, it does not mean that Uber and Lyft do not still face problems in Virginia, as Eric Hal Schwartz explained in InTheCapital:

Uber and Lyft aren’t totally out of the woods yet. Talks are ongoing about finding a solution to the regulatory issues presented by how the companies operate, but it’s definitely a positive sign for those who are fans of the ride-share app system.

As I noted shortly after the Virginia DMV sent cease and desist letters to Uber and Lyft, lawmakers should consider repealing regulations related to taxis:

Rather than hinder the growth of innovative livery companies that are taking advantage of new technology, lawmakers in Virginia and elsewhere across the country should consider repealing current taxi regulations that restrict innovation, strengthen established market players, and stifle competition.

Although the CEA news release is encouraging, it comes soon after Uber and Lyft were ordered to halt operations in Pittsburgh.

I spoke to Caleb Brown about the Virginia Uber and Lyft ban on the Cato Daily Podcast, which you can listen to below.

The Right to Own Includes the Right to Rent Out

Since 2005, the city of Winona, MN will not grant rental licenses to property owners if more than 30 percent of the lots on their block already have rental licenses (the 30% “rule”). The rule contains a “grandfather clause,” however, that allows property owners who had licenses prior to the rule to continue renting even if their block has already reached the 30 percent threshold. Therefore, many blocks in the city violate the rule, which the Minnesota Supreme Court is now reviewing.

Cato has filed an amicus brief, joined by the Minnesota Free Market Institute at the Center of the American Experiment, supporting the property owners challenging the rule. We argue that the rule is an arbitrary, inefficient, and unconstitutional restraint on an essential and fundamental property right because it strips property owners of their right to manage and enjoy their property at the result of actions of their neighbors. The rule also damages communities by reducing property values and creating inefficiencies in the local economy and housing market without a substantial government interest.

First, the rule is a significant intrusion into the fundamental rights of residential property owners because it denies the right to rent—one of the three principal ways to use a property—and significantly limits the right to sell. In addition, since the rule restricts fundamental rights, it needs to be tailored to achieve a legitimate government interest to be held valid—but the rule is both over-inclusive and under-inclusive.

Second, the right to rent is too important to restrict with an arbitrary limit on rental licenses. The rule isn’t an effective way to protect “community character”—its purpose according to the city—especially given the fact that the law has many exceptions and is applied arbitrarily. For example, the rule favors currently licensed property owners and encourages them to add rental properties to their lots, thereby defeating the asserted goal of avoiding rental clustering. Finally, the rule harms communities by artificially depressing property values and increasing the probability of vacancy. It further fails to rationally address the city’s other concerns. For example, one of the rule’s ostensible purposes is to reduce student-housing-related nuisance complaints, but it still allows large groups of students to live together in “theme houses.”

For these reasons, the Minnesota high court should reverse the lower courts’ ruling and protect the full constitutional rights of Minnesota property owners.

(Full disclosure: My condo building established a similar rule a few years ago because, due to federal regulation, it’s hard to get lenders to approve mortgages to finance purchases in buildings with a high rental quotient. Because I’m one of the original owners in my 7-year-old building, my unit is grandfathered in—except the condo board is now trying to apply the rental cap even to owners who predate the rule. It hasn’t come to litigation yet and the issue here is contractual rather than constitutional or statutory—and I don’t plan to rent out my place any time soon—but this episode just reinforced for me the practical importance of the high-fallutin’ principles Cato defends.)

Uber and Lyft Told To Halt Operations in Pittsburgh

Yesterday ride-sharing app operators Uber and Lyft were issued cease and desist orders in Pittsburgh. The orders were granted by two judges, who were reportedly convinced by the Pennsylvania Public Utility Commission’s Bureau of Investigation and Enforcement that the two companies are a threat to public safety. The orders state that Uber and Lyft cannot operate in Pittsburgh without the Pennsylvania Public Utility Commission’s approval.

The orders come less than a month after the Virginia Department of Motor Vehicles issued Uber and Lyft cease and desist orders, saying that the companies are violating state law. Uber and Lyft have both continued to operate in Virginia despite the orders.

The Pennsylvania Public Utility Commission’s three major concerns regarding Uber and Lyft relate to background checks for drivers who use the app, vehicle inspections, and insurance. However, both companies already carry out strict background checks, have means by which to drop drivers with unsatisfactory vehicles, and have insurance schemes in place.

Drivers who want to use the Uber and Lyft apps to rideshare must pass background checksUber will not allow drivers to use its service if there are any DUI or drug offenses in the driver applicant’s record in the last seven years (although California requires no DUIs in the last 10 years). Lyft will not let any driver use its service if the applicant has any DUI or drug offenses at all. The background checks used by Uber and Lyft also screen for violent and sexual offenses.

Lyft carries out an in-person inspection of vehicles before drivers can use their service. Uber’s vehicle inspection is less rigorous. According to reporting from earlier this year on San Francisco drivers using UberX (Uber’s ridesharing service), Uber does not do in-person inspections of vehicles and only requires drivers to send in photos of their cars. Under legislation passed last month in Colorado, which were praised by Uber and Lyft, rideshare vehicles must be inspected.

The New Yorker Maps NYC’s Shadow Transit System

In a recent article for The New Yorker, Aaron Reiss explores New York City’s shadow transportation system – a network of so-called “dollar vans” that serve mostly low- income areas with large immigrant communities. The system lacks “service maps, posted timetables, and official stations or stops,” but Ross uses interactive maps and videos made with Nate Lavey to detail routes in Chinatown, Flatbush, Eastern Queens, Eastern New Jersey, and the Bronx.

Not too surprisingly, this ingenious shadow system faces serious regulatory obstacles. Vans have had a long and tumultuous regulatory history, with oversight changing hands several times in the past thirty or so years and the largely immigrant drivers facing police harassment. Since 1994, the New York City Taxi and Limousine Commission has been issuing van licenses, allowing vehicles to serve parts of the city with sufficient public need. Still, the number of illegal, unlicensed vans continues to outstrip by far the 481 licensed ones. The licensed vans operate under highly restrictive rules, which forbid them from picking up along New York City’s innumerable bus routes and require all pick-ups to be prearranged and documented in a passenger manifest.

In August last year Sean Malone of the Charles Koch Institute spoke to Reason TV about a film he had made featuring a Jamaican immigrant, Hector Ricketts, who faced regulatory hurdles after starting a commuter van service that transported healthcare workers to New York City’s outer boroughs. Thankfully, with the help of the Institute for Justice, Ricketts was allowed to stay in business.

Reiss’s article and Malone’s film both highlight the perversities of regulations that shield traditional public transit from competition in a free market. You might think that policymakers concerned with improving opportunities in low-income areas would want to celebrate and encourage the entrepreneurial initiative and community service represented by “dollar vans” and the service run by Hector Ricketts. Instead, they choose to chase such enterprising service providers into the legal shadows.

Court Tosses D.C. Tour Guide Licensing Scheme

Since there isn’t any other legal news this or next week, the U.S. Court of Appeals for the D.C. Circuit today decided to strike down D.C.’s absurd licensing regulations regarding Uber food trucks raw milk guns campaign finance tour guides. Believe it or not, until today District law required people to pay the government $200 and pass a 100-question test on 14 subjects, covering material from no less than eight different publications, before they can give city tours—all for the purpose of “protecting” tourists from misinformation. If you didn’t comply, you faced a fine and 90 days in jail.

I previously wrote about this case when Cato filed a brief last fall, so I’ll just provide some key excerpts from the court opinion (written by Judge Janice Rogers Brown, whom we had the honor to publish in the Cato Supreme Court Review the first year I edited it). Here’s how it starts:

This case is about speech and whether the government’s regulations actually accomplish their intended purpose. Unsurprisingly, the government answers in the affirmative. But when, as occurred here, explaining how the regulations do so renders the government’s counsel literally speechless, we are constrained to disagree.

The court later describes the reason for its disagreement:

The District’s reliance on a Washington Post article dating from 1927 to justify the exam requirement is equally underwhelming. [Citation omitted.] The article merely establishes that, nearly a century ago, the newspaper expressed concern about unscrupulous or fraudulent charitable solicitation and that an unidentified number of persons said self-styled tour guides were overly aggressive in soliciting business. Reliance on decades-old evidence says nothing of the present state of affairs. Current burdens demand contemporary evidence. [Citations of last term’s big voting right case, Shelby County v. Holder, and other cases are omitted.]

Continuing the theme that D.C. failed to justify its speech regulation, the court says:

Even if we indulged the District’s apparently active imagination, the record is equally wanting of evidence the exam regulation actually furthers the District’s interest in preventing the stated harms. Curiously, the District trumpets as a redeeming quality the fact that, once licensed, “[t]our guides may say whatever they wish about any site, or anything else for that matter.” [Citation omitted.] But we are left nonplussed. Exactly how does a tour guide with carte blanche to—Heaven forfend—call the White House the Washington Monument further the District’s interest in ensuring a quality consumer experience? [Footnote omitted.]

Salon Writer Not a Fan of Sharing Economy Start-up or ‘Transnational Neocolonialist Libertarian Arrogance’

Over at Salon, Andrew Leonard has written an article headlined “Libertarians’ anti-government crusade: Now there’s an app for that,” in which he criticizes MonkeyParking, a start-up that enables users to auction off information about parking spaces. MonkeyParking recently received a cease and desist demand from San Francisco City Attorney Dennis Herrera, stating that it is in violation of a provision in San Francisco’s Police Code that “specifically prohibits individuals and companies from buying, selling or leasing public on‐street parking.”

According to Leonard, MonkeyParking and another app that offers to pay car owners to occupy parking spaces “is an example of how the ‘sharing economy’ can be totally bullshit.”

He contrasts MonkeyParking with Forage Oakland, which allows residents to “share” produce from local fruit trees such as figs and lemons.

Forage Oakland sounds great, and a libertarian would be the last person to object to residents setting up a way to give away produce for free. Indeed, last month it was reported that lawmakers and regulators in 33 American cities have restrictions or are considering implementing restrictions that hamper those hoping to hand out food to homeless people.

Leonard argues that Forage Oakland is different from MoneyParking because

Monkey Parking’s [sic] solution intended to generate profit off of a public good by rewarding those who are able to pay — and shutting out the less affluent. That’s outrageous and not something any civilized society should tolerate.

He doesn’t elaborate on what measures a “civilized society” should take in order to prevent MonkeyParking from operating, especially given the fact that the technology being used by MonkeyParking isn’t going anywhere soon and that, according to Pew, the number of Americans who own smartphones has increased over the last few years.

He goes on to criticize MonkeyParking’s “obvious self interest”:

The entitlement and obvious self-interest that led MonkeyParking to decide it could solve a San Francisco municipal problem with a blatantly illegal business model is shared by many “disruptive” entrepreneurs—often cloaked under the cover of libertarian ideology.

It’s a shame that he doesn’t appreciate that the price system is extremely efficient at communicating information to producers and customers and that the regulatory environment that is affecting MonkeyParking is only the latest example of regulators and lawmakers not being able to keep up with changes in technology.