FHV Dispatch Rules
Proposed Rules: Closed to Comments (View Public Comments Received:2)
Statement of Basis and Purpose of Rule
In response to changing industry dispatching practices resulting from the introduction of smart phones, the TLC is proposing a new rule that will:
· require FHV bases to submit trip records to the TLC,
· prohibit dispatching another base’s vehicles without an agreement between the bases,
· prohibit dispatching a vehicle affiliated with a different class of FHV base,
· require Bases that are members of the Black Car fund to bill and collect the surcharge for that Fund for every trip they dispatch,
· require bases dispatching vehicles from a different base to provide the customer with the name and license number of the base with which the dispatched car is affiliated, and
· establish a violation for failing to comply with certain portions of the new rule.
Current Taxi and Limousine Commission (TLC) rules allow a For-Hire Vehicle (FHV) base (Livery, Black Car or Luxury Limousine) to dispatch a for-hire vehicle affiliated with another base when the passenger is told that this is the case at the time the passenger requests the ride. Until recently, the industry practice, though not required by current TLC rules, has been to dispatch vehicles affiliated with another base only if there is an agreement between the bases. In addition, the industry practice has been to dispatch only vehicles of the same class; e.g. a Livery base would not dispatch a Black Car.
Most new market entrants who use smart phones to dispatch vehicles have followed these industry practices. Recently, however, bases that dispatch using only smartphone applications began dispatching vehicles affiliated with other bases, including bases of other classes. This is being done without the knowledge or consent of the vehicles’ affiliated bases. These new practices have given rise to problems not addressed in the TLC’s rules:
· First, the current rules do not specify what information the customer must be provided and do not provide a way for the TLC to identify the driver of a dispatched vehicle, whose name and license number are needed to enforce safety and consumer protection regulations.
· Second, cross-class dispatches, and dispatches of unaffiliated vehicles from bases without an agreement with the dispatching base, put drivers at risk of losing Workers’ Compensation benefits if a crash occurs during a trip.
To assess the extent of these problems and find solutions, TLC met or spoke with representatives from the Black Car industry, the Livery industry, the Black Car Fund, the Livery Fund, the New York State Workers’ Compensation Board, smartphone app companies, insurance providers, driver organizations, and passenger groups. The TLC also conducted field tests using various smartphone apps used by bases to dispatch vehicles, and spoke with drivers receiving dispatches through the apps. This proposed rule incorporates information collected and knowledge gathered from these meetings and field tests. The proposed rule also reflects TLC’s safety and accountability goals, including its Vision Zero goals.
There are currently over 65,000 licensed FHV drivers and 42,000 licensed for-hire vehicles compared to just over 50,000 licensed Yellow Taxi drivers,13,698 Yellow Taxis, 5,496 Street Hail Liveries. While TLC can identify and hold accountable Yellow Taxis and Street Hail Liveries and their drivers through electronic trip records, no such mechanism exists for this larger section of the for-hire transportation industry. Without a record of the trip, TLC does not have a way to fairly enforce against drivers across service types, which leaves a wide accountability gap between drivers of Yellow Taxis and drivers of FHVs. Additionally, without trip records, TLC does not know the number of trips the FHV industry is dispatching as a whole.
TLC needs to be able to identify the driver in each trip of one of its licensed vehicles, particularly if a vehicle is involved in a crash or if there is a service complaint against the driver. For vehicles with required in-vehicle technology (Yellow Taxis and Street Hail Liveries), TLC identifies the driver through electronic trip records, which include the driver license number associated with each trip. For FHVs, which are currently not required to have in-vehicle technology, TLC can identify the driver by requesting dispatch records from the vehicle’s affiliated base. Each FHV must affiliate with one and only one base, and all FHV bases are required to maintain a record for each trip they dispatch, which must include the driver’s For-Hire license number, the date and time of the dispatch, and the passenger pick up location. If the TLC has the license plate number of a vehicle, the TLC can determine what base that vehicle is affiliated with, and contact that base for the dispatch record, which will identify the driver of that vehicle. However, if the base with which this vehicle is affiliated (the “home base”) does not know about or have a record of the trip because the trip was dispatched by another base, the TLC is not able to identify the driver for that particular trip by contacting that vehicle’s home base. In these cases where the TLC only has information about the vehicle’s license plate, the TLC cannot identify the driver. The base that dispatched the trip, and which is currently required to keep a record of it, is unknown to both TLC and the vehicle’s home base.
This lack of information poses a serious difficulty for TLC’s Vision Zero goal of ensuring that its licensed drivers are the safest on the road. To achieve this goal, the agency is carrying out a wide range of initiatives, from outreach and education to incentives and enforcement. In particular, TLC is focusing on issuing summonses for speeding — the leading cause of traffic fatalities in New York City — and running red lights. To do so, TLC needs to be able to identify the driver who committed the offense. When the home base does not have the dispatch record for the trip during which the offense took place because the vehicle was dispatched without the home base’s knowledge, there is no way for TLC to identify the offending driver.
Also important is protecting the rights of consumers who file complaints that a driver violated the law, such as by overcharging, driving recklessly, or failing to comply with TLC prohibitions on service refusals. Often, the passenger does not have the driver’s name or license number, but does have the vehicle’s license plate or the home base name/number displayed on the side of the car. If the driver cannot be identified because the vehicle was dispatched by a base other than its home base, it is difficult for TLC to issue summonses for violations of its consumer protection rules and provide passengers with the redress to which they are entitled.
To address driver accountability, the proposed rule requires all FHV bases to submit to the TLC the trip records they are currently required to maintain pursuant to §59B-19 of the TLC Rules. The current rule requires that bases maintain for each trip they dispatch a record of the date, time, and location of the passenger to be picked up, and the driver’s For-Hire License number. Although bases must make these records available for inspection by the TLC, they are not currently required to submit them regularly to the TLC. By requiring bases to provide these records routinely to the TLC for all trips they dispatch, including dispatches of vehicles from other bases, the TLC will be able to identify both the driver and the dispatching base for all FHV trips.
Driver Protection and Base Liability
Cross-class dispatching and dispatching vehicles affiliated with another base create Workers’ Compensation coverage problems for FHV drivers. Pursuant to State law and TLC Rules, all FHV bases must maintain New York State Workers’ Compensation coverage for all of the drivers they dispatch. For Black Car bases and Luxury Limousine bases, State law dictates that these bases provide Workers’ Compensation coverage through membership in the Black Car Operators’ Injury Compensation Fund (“Black Car Fund”) if they own less than half of the vehicles they dispatch. Livery bases must provide Workers’ Compensation either through membership in the Livery Fund or by individually maintaining Workers’ Compensation coverage for all drivers dispatched.
Under both funds, Workers’ Compensation coverage for injuries which occur on a dispatch is determined by the dispatching base type; i.e. if a trip is dispatched by a Livery Fund member base, regardless of the type of base the vehicle is affiliated with, the Livery Fund rules govern the coverage. The State laws governing the respective Funds also place additional restrictions on Workers’ Compensation coverage. New York State Executive Law §160-aaa, which governs the Livery Fund, specifically limits the drivers the Livery Fund will cover to drivers of vehicles affiliated with Livery Fund member bases. Since coverage is determined by the dispatching base type, if a Livery base dispatched a vehicle affiliated with a Black Car base, the Livery Fund would not cover the Black Car driver, as the vehicle is affiliated with a Black Car base. Similarly, the Black Car Fund would not cover the driver as the trip was not dispatched by a member Black Car base. This leaves the driver of the cross-class dispatched Black Car without Workers’ Compensation insurance coverage. The New York State Workers’ Compensation Board has indicated that the driver of a cross-class dispatched Livery vehicle may be without coverage as well. This is because the Black Car Fund rules do not clearly and specifically provide coverage for a Livery driver dispatched by a Black Car base. The Black Car Fund has also indicated that it would not cover a Livery driver dispatched by a Black Car base.
In addition to the State law requirements governing the funds, the Black Car Fund and the Livery Fund each have their own rules governing what drivers and what trips the Funds will cover. The Livery Fund’s rules, codified in Part 309 of Title 12 of the New York Codes, Rules and Regulations, state the Fund will only cover a driver on a trip dispatched by the base with which his or her vehicle is affiliated or, as the Livery Fund has told the TLC, if two Livery Fund member bases have an agreement covering dispatch. The Black Car Fund rules, located at http://www.newyorkblackcarfund.org/files/nybcoicf_operations_plan_amend_10.pdf, provide Workers’ Compensation coverage for Black Car drivers dispatched by Black Car bases, but specify terms that must be in contracts between the bases, such as which base is required to bill and remit the surcharge on a particular trip, in order to provide coverage. So, when an FHV driver is dispatched by a base other than his or her home base, unless the bases have an agreement, the driver may be without Workers’ Compensation coverage.
Having another base dispatch a base’s affiliated vehicles also creates civil liability issues for the home base. If a dispatched vehicle gets in to a crash, injured parties will look to the driver and the base whose name is affiliated to the vehicle for recovery, regardless of if that base is the base that dispatched the vehicle. An affiliated base may be brought in to litigation over a trip which took place without the base’s knowledge or permission. While the affiliated base may ultimately prevail in any such proceeding, litigation, regardless of outcome, poses serious financial and time costs to bases.
The proposed rule follows the New York Worker’s Compensation Board’s guidance and provides that a base is only permitted to dispatch vehicles affiliated with bases belonging to the same insurance fund, thereby eliminating cross-class dispatching: e.g. a base that is a member of the Black Car Fund can only dispatch another Black Car Fund member base’s vehicles and a base that is a member of the Livery Fund can only dispatch another Livery Fund member base’s vehicles. Eliminating cross-class dispatching will ensure that all drivers have Workers’ Compensation coverage and will clarify what specific Fund is responsible for providing that coverage.