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BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
Order Instituting Rulemaking on
Regulations Relating to Passenger
Carriers, Ridesharing, and New
Online-Enabled Transportation
Services.
Rulemaking 12-12-011
(Filed December 20, 2012)
ADDITIONAL COMMENTS
OF UBER TECHNOLOGIES, INC. ON OIR ISSUES
Edward W. O’Neill
Vidhya Prabhakaran
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
Tel. (415) 276-6500
Fax. (415) 276-6599
Email: [email protected]
Email: [email protected]
June 3, 2013
DWT 22084375v1 0096932-000004
Attorneys for Uber Technologies, Inc.
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
Order Instituting Rulemaking on
Regulations Relating to Passenger
Carriers, Ridesharing, and New
Online-Enabled Transportation
Services.
Rulemaking 12-12-011
(Filed December 20, 2012)
ADDITIONAL COMMENTS
OF UBER TECHNOLOGIES, INC. ON OIR ISSUES
I.
INTRODUCTION
Uber Technologies, Inc. (“Uber”) has previously filed Opening Comments addressing the
issues identified in the Order Instituting Rulemaking (“OIR Comments”) and a Pre-Workshop
Statement.1 Rather than simply repeating the points and law identified in its Opening Comments
and Pre-Workshop Statement, Uber incorporates those comments by reference into these
comments.
II.
DESCRIPTION OF UBER
Many of the taxi industry representatives and local public agencies that regulate taxicabs
participating in this proceeding persist in characterizing Uber as a transportation company,
transportation provider, or “transportation system.” They are fundamentally mistaken in this
regard.2 As Uber described at the April 10th Workshop, Uber is a software technology company
with its headquarters in San Francisco, California.3 It is a Delaware corporation that is licensed
to do business in California, and is subject to federal, state and local laws applicable to business
enterprises.
1
These additional comments on OIR issues have been authorized by ALJ Mason’s e-mail ruling of May 10, 2013.
2
See Workshop Report at 6 citing the claims of SFMTA/IATR, TPAC, the GCLA, the SF Cab Drivers Association,
and the SF Medallion Holders Association that “the physical or real world aspects of NOETS transportation system
meets the standard definition of a taxicab service.”
3
Uber’s full presentation provided at the April 10th Workshop is attached as Exhibit A.
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Uber has developed a free, easy-to-use smartphone application (“App”) program.
Individuals (“Users”) use the App (or use the text function on their mobile phone, or use
m.uber.com) to request transportation service. The smartphone version of the iOS App has full
VoiceOver support. VoiceOver is Apple Inc.’s screen-access technology, which allows people
with disabilities to use the iPhone even if they are unable to see the screen.
Passenger transportation service providers (“Transportation Providers”) use the App to
receive lead generation services that allow them to grow their existing transportation businesses.
Until recently, Uber only allowed a California Public Utilities Commission- (“Commission”)
licensed and regulated a charter party carrier (“TCP Holder”) or a driver employed by a TCP
Holder (collectively, “Partner”) or a licensed taxi driver4 to use the App in conjunction with his
or her transportation service. In accordance with the terms of the Settlement Agreement between
Uber and the Commission’s Safety and Enforcement Division, Uber recently commenced
allowing licensed, non-TCP Holder drivers to use the App in conjunction with their
transportation service.5
Uber does not own, lease, or charter vehicles or employ drivers. Uber does not compete
directly with Transportation Providers. Rather, the App is a tool available for use in conjunction
with the existing transportation infrastructure. Thus, Uber is positioned at a different level from
the Transportation Providers that provide the actual transportation services.
This positioning is similar to other software application companies that serve
transportation service providers and users. For example, TaxiMagic and FlyWheel (formerly,
Cabulous), two application companies that work solely with taxi companies and drivers, also do
4
It is undisputed that the Commission does not have jurisdiction over taxi cab drivers or service.
5
Uber takes no position regarding “ridesharing” in this proceeding. Uber intends to allow Users to request
“ridesharing” through its App only so long as the Commission allows “ridesharing” to continue. Thus, Uber’s
comments focus solely on its original and primary business model of allowing Users to request transportation with
Partners who are Commission licensed and regulated TCP Holders.
2
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not own taxi vehicles or employ drivers.6 These software applications are currently used by taxi
companies in San Francisco, but neither is regulated by the SFMTA as though they are taxi
companies or provide taxi services, nor are there any valid legal or policy reasons for doing so.7
Similarly, there are no grounds for regulating Uber or its App as though it is a TCP or provides
TCP services.
III.
THE COMMISSION DOES NOT HAVE JURISDICTION OVER TECHNOLOGY
COMPANIES SUCH AS UBER
Under the Passenger Charter-Party Carriers’ Act, California Public Utilities Code section
5351, et seq.,8 the Commission has jurisdiction over charter-party carriers. Uber is not a charterparty carrier, and thus the Commission has no jurisdiction over Uber. No other applicable
statute, rule or order grants the Commission jurisdiction over companies like Uber, nor is such
jurisdiction necessary as no policy or public interest would be advanced by such a duplicative
extension of the law.9
Moreover, in a recent filing made by the Federal Trade Commission staff (“FTC”) with
the Colorado Public Utilities Commission (“Co. PUC”), the FTC recommended that a
“regulatory framework should not restrict the introduction or use of new types of applications, or
6
Indeed, as noted in the workshop, it is this shared perspective of a software company that does not own, manage or
wholly control the transportation services provided by the parties it partners with that has led all of these companies
to have similar disclaimers and limitations of liability associated with the use of their software. See Workshop
Report, at 30 and RideCharge – TaxiMagic Terms of Use (attached as Exhibit B).
7
Importantly, many of the same parties that are clamoring for the Commission to improperly assert jurisdiction over
technology companies like Uber have made no request of the SFMTA to assert jurisdiction over the application
companies that work solely with taxi companies and drivers in San Francisco.
8
Unless otherwise noted, all statutory references are to the Public Utilities Code.
9
In fact, as described in its Opening Comments on the Order Instituting Rulemaking (“OIR”), the Legislature has
recently enacted new legislation exempting Internet Protocol-enabled (“IP-enabled”) services, such as Uber, from
regulation by the Commission. See Comments of Uber on OIR, at 8-13. Furthermore, extending regulation to Uber
would conflict with Federal and State policies promoting further development of, and innovation in, information
services provided over the Internet.
3
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novel features they provide, absent some evidence of public harm.”10 Further, the FTC
advocated against the Co. PUC revising the definition of “motor carrier” (the Colorado
equivalent of a “TCP Holder”) to include smartphone application companies on the grounds that
such an extension of the Co. PUC’s jurisdiction may result in inhibiting, impairing or precluding
“new and innovative ways in which independent applications can affiliate with transportation
service providers.”11
A.
Uber Is Not a Charter-Party Carrier
SFMTA and SFO claim that Uber meets the statutory definition of a charter party
carrier.12 They are incorrect. Section 5360 defines a charter-party carrier as “every person
engaged in the transportation of persons by motor vehicle for compensation.” California courts
have held that the term “transportation” means, “the taking up of persons or property at some
point and putting them down at another.”13 Uber does not meet this definition. It does not
transport any persons and does not engage in “transportation.”
Uber is a software company that provides an IP-enabled information service through a
smartphone App that connects Users to Commission-licensed and regulated TCP Holders.
Persons who use the Uber App to request prearranged transportation services have sole
discretion over whether or not to use the Uber App, if ever.
When a User downloads the App, she must review and agree to Uber’s Terms and
Conditions (the “User Terms”).14 Uber’s User Terms are clear that Uber does not provide
10
FTC filing in Co. PUC Dkt. 13-R009TR, at Sec. III (attached as Exhibit C).
11
FTC filing in Co. PUC Dkt. 13-R009TR, at Sec. IV(A) (Exhibit C).
12
See Workshop Report at 6 citing the claims of SFMTA/IATR and SFMTA/SFO that NOETS “fit the statutory
definition of charter-party carriers, but operate like taxicabs.”
13
City of St. Helena v. Pub. Util. Comm. 119 Cal.App.4th 793 (2004) (attached as Exhibit D). .
14
See User Terms (attached as Exhibit E).
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“transportation services.”15 The sign-up screen also clearly states that “Uber is a request tool,
not a transportation carrier.”16 The User Terms further explain that the App “offers information
and a method to obtain” transportation services.17
Each of the companies and individuals who provide transportation services through the
Uber App must also enter into an agreement with Uber in order to do so (“Partner Terms”).
These Partner Terms clearly state that Uber is not a transportation company and further provide
that any passenger transportation services provided by its Partners through use of the Uber App
are the sole and exclusive responsibility of the Partners and not Uber.18
Uber does not exercise management control over any Drivers or vehicles used in
providing transportation of passengers.19 Partners independently determine if and when they
choose to make their transportation services available through the Uber App to Users. Even
when Partners offer services to Users through the App, Partners retain sole and complete
15
See User Terms (Exhibit E).
16
See Screenshot of Uber Sign-Up Screen (attached as Exhibit F).
17
Uber’s User Terms state, “It is up to the third party transportation provider, driver or vehicle operator to offer
transportation services which may be scheduled through use of the Application or Service. The Company offers
information and a method to obtain such third party transportation services, but does not and does not intend to
provide transportation services or act in any way as a transportation carrier.” See User Terms (attached as Exhibit
E).
18
See Partner Terms (attached as Exhibit G). Consistent with this term, Uber does not enter into any contract with a
TCP Holder to provide any service as a sub-carrier of transportation.
19
Uber’s relationship with its Partners is similar to the relationship the Commission determined in Re Golden Bay
Tour Co. dba Tower Tours, Decision 93-06-034, 1993 Cal PUC LEXIS 474 (“Tower Tours”) (attached as Exhibit
H) was not subject to Commission jurisdiction. In that decision, the Commission rejected the position advocated by
its Transportation Division staff and dismissed the application of Golden Bay Tour Company dba Tower Tours
Agency, for authority to operate as a charter-party carrier. It did so on grounds that although Pub. Util. Code §5360
defines the term "charter-party carrier" broadly, it cannot be interpreted as extending Commission regulation to a
company that did not own, lease or operate any vehicles; did not hold itself out or advertise itself as a TCP. Uber’s
relationship with its Partners is functionally equivalent to the relationship between Tower Tours and the TCP
Holders with which it did business.
5
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discretion to decide whether to accept each specific request for transportation received through
the App.20
The contract between the User and the Partner is formed when the Partner exercises his
or her discretion to accept the customer’s request for specific transportation service. Uber is not
a party to such transportation service contracts. The Partner provides the performance under the
transportation contract and receives payment from the User for the transportation provided.
Uber does not hold itself out to the public as having any certificate, license or other
authority from the Commission authorizing Uber to engage in the transportation of persons for
compensation.
As with any software company, Uber has established guidelines and parameters for Users
of its App. Further, Uber conveys feedback it receives from Users of the App, to the
transportation providers who use the App to receive requests for transportation.21 Contrary to the
claims of TPAC and the Limo Union,22 however, merely establishing and maintaining standards
of service for use of Uber’s App is in no way equivalent to, nor does it constitute, actual
management or control of the transportation services provided by Uber’s Partners or Drivers.
The provision of transportation services remain entirely under the management and control of the
Transportation Providers that own the vehicles and employ the drivers that provide the
transportation services.
20
See Partner Terms (Exhibit G).
21
For example, Uber conveys or passes on User feedback and comments related to vehicle cleanliness, driver
professionalism, etc. Uber’s Partners retain complete management discretion and control regarding the
transportation services they provide.
22
See Workshop Report at 7.
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B.
Uber’s Partners Are Charter-Party Carriers
Uber’s Partners are charter-party carriers “engaged in the transportation of persons by
motor vehicle for compensation.” Each of Uber’s Partners meets the definition of a charter-party
carrier under Section 5360, holds itself out to the public as providing this service, and is licensed
and operates as a charter-party carrier under Commission regulation. Despite the rhetoric of
various parties in this proceeding to the contrary,23 Uber has never represented that its Partners
are anything but charter-party carriers providing TCP transportation service and subject to all of
the requirements of a charter-party carrier. However, the Commission should be cognizant of
the clear delineation between Uber and the transportation providers who use the Uber App and
should be careful not to improperly conflate Uber, the technology company, together with its
Partners, the Transportation Providers.
1.
A Business Model that Allows Only TCP Holders to Use the Software
Ensures that Transportation Providers Satisfy the Commission’s
Important Public Safety Requirements
In order to obtain and retain TCP authority from the Commission, Uber’s Partners must
meet all of the “reasonable fitness and financial responsibility” requirements of a charter-party
carrier under Section 5374. A charter-party carrier must meet: (1) driver qualifications, training
and licensing requirements; (2) drug and alcohol testing requirements; (3) vehicle inspection and
maintenance requirements, as well as participation in the Department of Motor Vehicle Pull
Notice Program; (4) public liability and property damage insurance requirements, as required by
General Order 115-F; (5) workers compensation insurance requirements; (6) the Commission’s
contact requirements for customer complaints; and (7) financial responsibility requirements.
23
See, e.g., Workshop Report at 26 (citing SFMTA/SFO, TPAC, UTW and the SF Cab Drivers Association claims
that taxis “cannot compete with NOETS . . . in their current unregulated form”) and Pre-Workshop Statement of
SFMTA at 12.
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2.
Uber’s Partners Operate on a “Prearranged Basis”
SFMTA/IATR states that the Commission has interpreted the prearrangement
requirement for charter party carrier service as “the time it takes a passenger to make a telephone
call, contract for transportation services, and get picked up” and claims that this requirement “has
been rendered meaningless” by smartphone technology. 24 SF Medallion Holders Association
claims that using a smartphone to “electronically hail” a ride that is immediately dispatched does
not constitute “prearrangement.”25 TPAC and the SF Medallion Association propose imposing a
minimum time period of up to 30 to 60 minutes in order for service to meet the
“prearrangement” requirement for charter party service.26
No statute or Commission precedent has established a specific minimum time period
requirement to qualify as “prearranged service.” To the contrary, the Commission has
previously rejected recommendations to impose such a specific minimum time requirement.27
The Commission should maintain its current position. Setting a minimum prearrangement time
is adverse to the interests of consumers. For example, setting a minimum prearranged time
period of 30 minutes, when a TCP Holder may be available in 10 minutes to pick up a client for
a trip, creates inefficiency and contributes to the unavailability of transportation options.
Further, the same prearrangement requirement would ensure that TCP Holders would do fewer
trips, by regulatory fiat – again, unjustifiably harming a small business owner who is seeking to
increase his revenue.
24
25
26
27
See Order Instituting Rulemaking concerning the regulation of passenger carrier services, Decision 89-10-028,
1989 Cal. PUC LEXIS 573, at *23 (attached as Exhibit I).
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Further, while both cell phone technology and smartphone technology have made it
significantly more convenient and efficient to prearrange transportation with a Commissionlicensed and regulated TCP Holder, this technology has by no means rendered the
prearrangement requirement meaningless as some parties contend.28 The prearrangement
requirement still prohibits TCP Holders from pitching or soliciting potential fares at curbside and
from responding to curbside hails – the ability to pick up street hails remains the exclusive right
of taxis.
Moreover, the Uber App ensures that Partners operate on a “prearranged” basis under
Section 5360.5 and General Order 157-D. A User requests transportation using the App. The
App forwards the request to the Partner driver closest to the User. The driver has the option to
accept or decline the request for transportation (perhaps the driver declines because she or he just
received a call from a long-time corporate client requesting transportation). If the driver accepts
the request, the driver proceeds to the pick-up location requested by the User. As with
prearranging transportation with a Commission-licensed and regulated TCP Holder through a
telephone call to a limousine company, this process takes time.
The use of the Uber App does not change the nature of prearrangement that is currently
available. Rather, the use of the App to place a request for transportation service and to accept a
request for transportation service is just more convenient and efficient for both Users and
Partners. There is no rational or public interest basis for a prearranged minimum time period
advocated by taxi parties in this proceeding.
28
Workshop Report, at 11.
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3.
Uber’s Partners Do Not Provide Taxi Service
TPAC, GCLA the SF Cab Drivers Association and several other parties claim that
prearranged transportation service requested through smartphone applications, including the
Uber App, is taxicab service that should be regulated by local agencies if the Commission does
not regulate NOETS as charter party carriers.29 These parties are incorrect in regard to this claim
as well.
Prearranged transportation service arranged through the Uber App does not constitute
taxi service, nor does it make Uber’s Partners, who provide prearranged transportation services
requested through the Uber App, subject to regulation as taxi companies. Uber’s Partners do not
hold themselves out to the public as providing taxi service nor do they operate in a manner that
could cause any confusion among customers regarding the prearranged services they provide.
The vehicles used by TCP Holders (and inspected during the course of the TCP permit process)
have no distinctive colors indicative of a taxi, no visible top lights and no dashboard-mounted
taximeters. Uber’s Partners cannot and do not use the Uber App to solicit or pick up passengers
pursuant to curbside hails. The Uber App is fundamentally inconsistent with any such taxi-like
operations since Users can only request prearranged transportation services by submitting a prior
electronic request through the App that a Partner must confirm in advance through the App.
In addition, contrary to the claims of SFTA/IATR and other parties,30 Uber’s Partners do
not use “taximeters.” Unlike taximeters, the manner in which trip payments are determined for
transportation arranged through the Uber App does not rely on any device attached to a motor
vehicle which calculates the trip payment. Neither the iPhone that Uber provides to a Partner nor
the Uber App automatically calculates trip payments. The Partner’s iPhone, like all iPhones, has
29
30
See Workshop Report at 12-13.
10
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GPS functionality. During the course of a trip, the Uber App sends time and location data from
the Partner’s iPhone to Uber’s servers. After the trip has concluded, the software on Uber’s
servers uses this data to calculate the trip payment; of course, neither the software nor the servers
are attached to the vehicle.
Moreover, unlike a traditional taximeter, neither the iPhone nor App displays the trip
payment at any point during the trip. Instead, after the software on Uber’s servers calculates the
payment amount (after the trip is completed), the software sends the final trip payment amount
back to the App, where the Partner can view it.
The general definition of a taximeter is not “a device that measures time and distance” as
some parties contend.31 Parties offer no support or legal precedent for such a statement and there
is none. Furthermore, such a definition is, on its face, overly broad. For example, numerous inbuilt automobile odometers measure both time and distance, but could not be reasonably
described as taximeters. In fact, the Commission has determined that the distinguishing nature of
the taximeter as signifying a taxi service is not in the taximeter’s function as a device that
measures time and distance, but in its actual physical presence in the vehicle visible to
passengers.32 A dash-mounted taximeter serves as a visual cue of taxi service in much the same
manner as a taxi’s top lights or distinctive paint scheme.
Uber’s Partners are charter-party carriers under the Passenger Charter-Party Carriers’ Act
and there is no basis for concluding that any of the services they arrange through use of the App
constitute taxi service or are subject to regulation as taxi services.
31
Workshop Report, at 12.
32
See Affiliated Cab v. K.T.L. Co. Limousines, et al, Decision 8205069, 9 CPUC2d 245, 1982 Cal. PUC LEXIS
1236 (attached as Exhibit J), in which the Commission held that the use of top lights and dash mounted flagged
taximeters visible to a passenger that display the elapsed time and/or fare owed may blur the distinction between
TCP and taxi service and cause customer confusion, but specifically authorized one of the defendants in the case, a
TCP Holder who used a taximeter concealed in the vehicle’s glove box for determining fares, to continue doing so,
provided the taximeter remained concealed. 1982 Cal. PUC LEXIS 1236 at *32 - *36.
11
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IV.
NO PUBLIC INTEREST OR PUBLIC SAFETY PURPOSE IS SERVED BY
EXTENDING DUPLICATIVE COMMISSION REGULATION TO
TECHNOLOGY COMPANIES
SFMTA/IATR implies that transportation services arranged through smartphone
applications, including Uber’s App, “pose serious safety risks.”33 This claim is completely
without foundation and no contrary evidence is before this Commission. Uber’s primary
business model is an App that allows Users to request prearranged transportation service with
Commission-licensed and regulated TCP Holders who already operate under Commission
jurisdiction and oversight. Therefore, the transportation services provided by Uber’s Partners are
already required to meet every regulatory requirement of the Commission and other public
agencies applicable to TCP Holders and the transportation services they provide -- including
insurance requirements, waybill requirements, driver safety requirements, vehicle maintenance
requirements, disability training and Americans with Disabilities Act requirements, etc. By
continuing its current jurisdiction and oversight over TCP Holders, the Commission successfully
maintains a level playing field where all drivers providing a certain class of transportation
services (TCP Holders) are required to meet the same regulatory requirements.
Under these circumstances, no public safety or public interest purpose or objective would
be served by extending Commission jurisdiction to and imposing duplicative regulation on a
software company such as Uber that provides an App to request prearranged transportation
services with TCP Holders. Extending Commission jurisdiction to technology companies, such
as Uber, in the absence of any public safety or public interest benefit would ultimately result in
33
12
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the very “stifling of innovation” that the Commission seeks to avoid34 and would risk reducing or
eliminating the substantial benefits to California and Users that Uber offers.35
V.
CONCLUSION
The Commission should find that it has jurisdiction over the TCP Holders that provide
prearranged transportation services to the public requested through the Uber App. Further, the
Commission should find that the prearranged transportation services these TCP Holders provide
are charter-party carrier services subject to regulation by the Commission and should continue to
be regulated in this manner.
The Commission should also find that it has no jurisdiction over Uber. Furthermore, the
Commission should find that no public policy purpose would be served by extending
Commission jurisdiction to Uber or regulating Uber in a manner duplicative of the jurisdiction
and oversight the Commission already exercises over the TCP Holders that provide prearranged
///
///
///
34
OIR, at 2.
35
See Uber Comments on OIR, at 14-15.
13
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transportation services to the public requested through the Uber App. Instead, the Commission
should continue its tradition of promoting innovative services the public demands.36
Respectfully submitted,
By:
Dated: June 3, 2013
/s/
Edward W. O’Neill
Vidhya Prabhakaran
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
Tel. (415) 276-6500
Fax. (415) 276-6599
Email:
[email protected]
[email protected]
Attorneys for Uber Technologies, Inc.
36
For example, In re Yellow Limousine Corp., Decision 84-06-176, 1984 Cal. PUC LEXIS 514, at *1 - *3 (attached
as Exhibit K) in which the Commission authorized “rapid response” on-call services by TCP Holders. See also
Decision 89-10-028, at *11 (Exhibit I) in which the Commission rejected proposed restrictions on “on call” airport
van services on grounds that the additional restrictions would stifle innovation and impair customers’ ability to
obtain the transportation services that they desire.
14
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EXHIBITS
Exhibit A – Uber April 10, 2013 Workshop Presentation
Exhibit B – Ride Charge – TaxiMagic Terms of Use
Exhibit C – Federal Trade Commission staff filing in Colorado Public Utilities
Commission Docket 13-R009TR
Exhibit D – City of St. Helena v. Pub. Util. Comm. 119 Cal.App.4th 793 (2004).
Exhibit E – Uber User Terms
Exhibit F – Screenshot of Uber Sign-Up Screen
Exhibit G – Uber Partner Terms
Exhibit H – Decision 93-06-034, 1993 Cal PUC LEXIS 474
Exhibit I – Decision 89-10-028, 1989 Cal. PUC LEXIS 573
Exhibit J – Decision 8205069, 1982 Cal. PUC LEXIS 1236
Exhibit K – Decision 84-06-176, 1984 Cal. PUC LEXIS 514
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Exhibit A
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OIR 12-12-011
Workshop Presentation
4.10.13
1
Allows transportation companies & drivers to fill down times in
their business
Allows riders to request high-quality transportation from nearby
transportation providers
Software platform that:
What is Uber?
“The Company offers information and a method to obtain such third party
transportation services, but does not and does not intend to provide
transportation services or act in any way as a transportation carrier.”
Rather, User Terms and Conditions provide:
Uber does not employ drivers.
Uber does not own, lease or charter vehicles.
What is Uber not?
City of St. Helena v. Pub. Util. Commission, 119 Cal. App 4th 793, 2004 Cal. PUC LEXIS 970 (2004).
“the taking up of persons or property at some point and putting them
down at another.”
As Uber does not own vehicles or employ drivers, it does not and cannot
provide transportation:
“. . . every person engaged in the transportation of persons by motor
vehicle for compensation . . .”
Pub. Util. Code sec. 5360 defines “charter party carrier” as
Uber is not a charter party carrier
Uber provides them access to our lead-generation software platform
The TAXI drivers are properly licensed and insured, regulated by
municipalities
Limo drivers are licensed chauffeurs working for licensed TCP holders,
regulated by the state
Who provides the transportation?
VS.
Uber software replaces outdated limo reservation systems with
something more elegant and functional
What need does Uber fill?
Timely responses to rider feedback
Transparency and accountability: see where a driver is and who he is
Cashless system, simple and intuitive app
Convenient and reliable way to find a ride, even during times of high
demand
Why do riders love Uber?
Safety and accountability – drivers know who they’re picking up, don’t
carry cash
No shifts – drivers use Uber when and where they want, integrates
seamlessly into their existing businesses
We facilitate payment processing, pay quickly and reliably
A TAXI can make $150 extra per week
A sedan can make 30-50% more per hour
Extra income-generating opportunities
Why do drivers love Uber?
Generates thousands of new jobs
Reduce incidence of drinking and driving, reduce need for car ownership
and parking
Get picked up in any neighborhood, never feel stranded at any time of
day or night
More choice in transportation leads to higher quality, better service
Why does Uber benefit cities?
Exhibit B
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Exhibit C
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Colorado PUC E-Filings System
Exhibit D
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Page 1
1 of 3 DOCUMENTS
CITY OF ST. HELENA, Petitioner, v. PUBLIC UTILITIES COMMISSION, Respondent; NAPA VALLEY WINE TRAIN, INC., Real Party in Interest.
A104466
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR
119 Cal. App. 4th 793; 14 Cal. Rptr. 3d 713; 2004 Cal. App. LEXIS 970; 2004 Cal.
Daily Op. Service 5450; 2004 Daily Journal DAR 7459
June 21, 2004, Filed
NOTICE:
As modified July 21, 2004.
[***1] CERTIFIED FOR PARTIAL PUBLICATION*
* Pursuant to California Rules of Court, rules
976(b) and 976.1, this opinion is certified for
publication with the exception of part II.B.
SUBSEQUENT HISTORY: Rehearing denied by City
of St. Helena v. P.U.C., 2004 Cal. App. LEXIS 1149
(Cal. App. 1st Dist., July 21, 2004)
Review denied by City of St. Helena v. Puc, 2004 Cal.
LEXIS 9468 (Cal., Sept. 29, 2004)
PRIOR HISTORY:
(PUC Dec. Nos. 99-08-018,
03-01-042, 03-10-024, 03-10-025).
DISPOSITION:
Annulled in part.
SUMMARY:
CALIFORNIA OFFICIAL REPORTS SUMMARY
In a series of four decisions, the Public Utilities
Commission (PUC) conferred public utility status on a
luxury excursion train. The train provided round-trip
excursions in the Napa Valley that included dining and
wine tasting. In a published decision, the PUC had certified a final impact report for the train project as the lead
agency for environmental review of the train's operations. The PUC denied a petition for rehearing and clarified that its authority was paramount to any local agency
authority. The city filed a complaint with the PUC,
claiming that the train was not a public utility. The PUC
dismissed the complaint and denied the city's application
for rehearing. The city filed a petition to modify the prior
PUC decisions again seeking to declare the train as an
excursion train, not a public utility. The PUC modified
its earlier decision to state that the train was not a public
utility. The PUC granted rehearing and reversed itself,
stating that the train was a public utility, and denied the
city's petition for rehearing. (PUC Dec. Nos. 99-08-018,
03-01-042, 03-10-024, 03-10-025.)
The Court of Appeal annulled the four PUC decisions to the extent they deemed the luxury excursion
train a common carrier providing transportation subject
to regulation as a public utility. The court could see no
reason to depart from the ordinary meaning of "transportation" and held that because the train did not pick up
passengers at one location and put them down at another
location, it therefore did not provide transportation. That
the train had the capacity to provide transportation in the
future did not entitle it to public status at the [*794]
present time. Since the train did not qualify as a common
carrier providing transportation under Pub. Util. Code, §
211, the court held that it was not subject to regulation as
a public utility as defined in Pub. Util. Code, § 216. The
court held that the PUC's own decisions were internally
inconsistent; noting that the court could not distinguish
the present situation from other cases where the PUC
found a round-trip sightseeing excursions not to be
"transportation," and thus not a public utility. The commission maintained ample jurisdiction in the eventuality
that the train began providing bona fide passenger service in the future. (Reardon, J., with Kay, P. J., and
Sepulveda, J., concurring.)
Page 2
119 Cal. App. 4th 793, *; 14 Cal. Rptr. 3d 713, **;
2004 Cal. App. LEXIS 970, ***; 2004 Cal. Daily Op. Service 5450
HEADNOTES
CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports
(1) Public Utilities § 2--Definitions and Distinctions.--Public are akin to governmental entities, enjoying
considerable powers bestowed by the state, including the
power of eminent domain. However, not every business
that deals with the public or is subject to some form of
state regulation is necessarily a public utility. No
bright-line rule exists for determining what constitutes a
public utility; a court must look to established principles
of statutory construction.
(2) Public Utilities § 21--Public Utilities Commission--Exercise
of
Jurisdiction
by
Commission--Judicial Control--Scope of Review.--Review of a
Public Utilities Commission decision is limited to
whether: (1) the commission acted without jurisdiction or
in excess of its jurisdiction; (2) the commission has not
proceeded in the manner required by law; (3) the decision of the commission is not supported by the findings;
(4) the findings in the decision of the commission are not
supported by the substantial evidence in light of the
whole record; (5) the order or decision was an abuse of
discretion; and (6) the order or decision of the commission violated any constitutional rights of the petitioner.
(3) Public Utilities § 21--Public Utilities Commission--Exercise
of
Jurisdiction
by
Commission--Judicial Review.--Whether a luxury excursion
train that provided food and drink was a public utility
was a question of fact, subject to review by the substantial evidence standard. [*795]
(4) Statutes § 20--Construction--Public Utilities
Code--Independent Review on Appeal.--Since interpretation of the Public Utilities Code is a question of law,
it is subject to a court's independent review.
(5) Public Utilities § 3--Public Utilities Act--Definition
of Common Carrier--Definition of Public Utility.--Under Pub. Util. Code, § 211, a common carrier is
every person and corporation providing transportation
for compensation to or for the public or any portion
thereof. Under Pub. Util Code, § 216, subd. (a), a public
utility includes every common carrier where the service
is performed for, or the commodity is delivered to, the
public or any portion thereof.
(6) Statutes § 36--Construction--Giving Effect to
Statute.--A court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. In de-
termining legislative intent, a court looks first to the
words of the statute, giving the language its usual ordinary meaning. However, the literal meaning of the words
in a statute may be disregarded to avoid absurd results. If
the language is clear and unambiguous, there is no need
for construction, nor is it necessary to resort to indicia of
the Legislature's intent.
(7)
Public
Utilities
§
3--Public
Utilities
Act--Transportation--Round-trip
Excursion
Train.--A luxury excursion train that served food and
drink did not provide transportation within the meaning
of Public Utilities Code, § 211, because it did not pick up
passengers at one location and put them down at another
location. Rather, the train provided a round-trip excursion from Napa.
(8) Public Utilities § 3--Public Utilities Act--Capacity
to Provide Transportation--Public Utility Status.--The
fact that a luxury excursion train that served food and
drink could provide transportation in the future did not
entitle it to current public utility status. Proposed project
stops did not fix the character of the train as being a public utility. Rather, the most that could be said was that the
train had the capacity to provide transportation.
(9)
Public
Utilities
§
3--Public
Utilities
Act--Transportation--Train Providing Luxury Excursion Service.--A luxury excursion train did not qualify as a common carrier providing transportation and was
not subject to regulation as a public utility. The train was
a luxury service or a restaurant on wheels offering
round-trip sightseeing excursions as opposed to
point-to-point transportation between cites, a commuter
service, or a home-to-work service.
[8 Witkin, Summary of Cal. Law (9th ed. 1988)
Constitutional Law, §§ 895 et seq., 899.] [*796]
COUNSEL: Patrick J. Power for Petitioner.
Randolph L. Wu, Mary F. McKenzie and Judith Allen
for Respondent.
Goodin, MacBride, Squeri, Ritchie & Day and James D.
Squeri for Real Party in Interest.
JUDGES: Reardon, J., with Kay, P. J., and Sepulveda,
J., concurring.
OPINION BY: REARDON
OPINION
[**714] REARDON, J.--In this writ of review,
the City of St. Helena (City or St. Helena) seeks annul-
Page 3
ment of various decisions of the state Public Utilities
Commission (Commission or PUC) conferring public
utility status on the Napa Valley Wine Train, Inc. (Wine
Train). At issue is whether the City is preempted, by
reason of the Wine Train's public utility status, from exercising its local jurisdiction [***2] regarding the
placement of a Wine Train station in downtown St. Helena. We find the Wine Train does not qualify as a common carrier providing transportation, and is not subject
to regulation as a public utility.
I. BACKGROUND
This case has a long and complicated history that
largely defines the issues on review. Initially, in 1988 the
City was a party to a complaint filed with the PUC asking the Commission to deem the Wine Train a public
utility. The complaint reveals St. Helena and others were
concerned with the environmental impact of the Wine
Train's proposed passenger service. The interested parties
claimed the Wine Train was subject to the provisions of
the California Environmental Quality Act (CEQA) and
sought an order asserting the PUC's jurisdiction over the
Wine Train's proposed passenger service. At that time,
there was some uncertainty regarding issues of state and
federal jurisdiction. Some of the original jurisdictional
issues were resolved with the enactment of [**715]
Public Resources Code section 21080.04 (added by Stats.
1990, ch. 1654, § 1, p. 7899), which designated the PUC
as the lead agency for environmental review of the Wine
[***3] Train's operations (Pub. Resources Code, §
21080.04, subd. (a)).
In March 1993, the PUC certified a final environmental impact report for the Wine Train project, which
contemplated winery stops along the right of way and a
minimum of one up-valley station, with shuttle service to
wineries. [*797] In June 1996, the PUC approved the
Wine Train project subject to the Mitigation Implementation Program adopted in its decision, which provided
for extensive mitigation measures, including limited days
and limited hours of operation. (See City of St. Helena v.
Napa Valley Wine Train, Inc. (1996) 66 Cal.P.U.C.2d
602 (NVWT I).) This decision did not make any findings
that the Wine Train was a public utility. However, the
PUC did make a finding that "[t]he interurban operation
of Wine Train between Napa and St. Helena, including
the stops described in the Proposed Project, is one of
statewide, rather than merely municipal concern." (Id. at
p. 631.) Although not stated as a conclusion of law, the
PUC stated that it viewed its authority over the Wine
Train as being concurrent with local agencies. (Id. at p.
610.) [***4] In July 1996, the City applied for rehearing. In November 1996, the PUC denied the petition for
rehearing, but clarified its position on jurisdiction. (See
City of St. Helena v. Napa Valley Wine Train, Inc. (1996)
69 Cal.P.U.C.2d 243, 246 (NVWT II).) Specifically, the
PUC stated its authority was "paramount" to that of any
local agency. (Ibid.) Again, there were no express findings of fact or conclusions of law regarding the Wine
Train's status as a public utility.
In January 1999, the City filed a complaint with the
PUC, alleging that the Wine Train was not operating as a
public utility, and that, even if the Wine Train were to
operate in the manner authorized by the PUC, it would
not be a public utility. In its complaint the City alleged
that the Wine Train was demanding that the City approve
a station in downtown St. Helena. In August 1999, the
PUC dismissed the complaint on the basis that the City
was seeking an advisory opinion. (See City of St. Helena
v. Napa Valley Wine Train, Inc. (1999) Cal. P.U.C. Dec.
No. 99-08-018, 1999 Cal.PUC LEXIS 515 (NVWT III);
the PUC's decision in NVWT III is the first of four orders
challenged by [***5] the City.) The PUC deemed the
complaint as essentially relitigating NVWT I and NVWT
II. Following the issuance of NVWT III, the City filed an
application for rehearing of the dismissal, the denial of
which is also one of the contested orders in the instant
action.
In September 1999, the City filed a petition for
modification of NVWT II. 1 The City's petition asked the
PUC to designate the Wine Train as an "excursion" train
not subject to regulation as a public utility. Specifically,
the City asked the PUC to declare that the Wine Train's
passenger service was not "transportation" within the
meaning of Public Utilities Code section 211 2 [*798]
and, thus, the Wine Train was not a "public utility" under
section 216. 3 The [**716] City also asked the PUC to
delete language relating to the PUC's "paramount jurisdiction," and to insert language that the PUC's authority
was limited to the role of lead agency for the purposes of
environmental review, and to conclude that the local
agencies had paramount jurisdiction.
1
The specific modifications sought actually
modified both NVWT I and NVWT II.
[***6]
2
Public Utilities Code section 211 defines a
"common carrier" as "every person and corporation providing transportation for compensation to
or for the public or any portion thereof ... ." All
further statutory references are to the Public Utilities Code.
3
Section 216, subdivision (a) defines a "public utility" as including every common carrier
providing a service to the public.
In June 2001, the PUC issued a decision regarding
the City's request for modification. (See City of St. Helena v. Napa Valley Wine Train, Inc. (2001) Cal. P.U.C.
Dec. No. 01-06-034, 2001 Cal.PUC LEXIS 407 (NVWT
Page 4
IV).) Although the PUC found that the City failed to
make a case that the underlying facts had changed in any
material way, it modified NVWT I and NVWT II and
found that the Wine Train was not a public utility. Relying in part on Golden Gate Scenic Steamship Lines, Inc.
v. Public Utilities Com. (1962) 57 Cal.2d 373 [19 Cal.
Rptr. 657, 369 P.2d 257] (Golden Gate Scenic Steamship), the PUC found the Wine Train did not provide
"transportation," [***7] because it did not provide
point-to-point transportation. In Golden Gate Scenic
Steamship, supra, 57 Cal.2d at page 380, the court held
that ferries carrying passengers in a continuous loop
around the San Francisco Bay, without stopping at any
other point, and returning to the point of embarkation did
not constitute "transportation." The Supreme Court defined "transportation" as " 'the taking up of persons or
property at some point and putting them down at another.' " (Ibid.) The PUC also relied on two of its own decisions in determining the Wine Train was not a public
utility. The PUC cited to Re California Western Railroad, Inc. (1998) 78 Cal.P.U.C.2d 292, 294-296 (California Western Railroad), in which it declared that the
Skunk Train, providing an excursion service between
Fort Bragg and Willits, was not a public utility. The PUC
also cited to Western Travel Plaza, Inc. (1981) 7
Cal.P.U.C.2d 128, 135 (Western Travel), in which it held
sightseeing is "essentially a luxury service, as contrasted
with regular route, point-to-point transportation between
cities, commuter service, or home-to-work service"
(ibid.). [***8]
In NVWT IV, supra, Cal. P.U.C. Dec. No.
01-06-034, the PUC made the following findings of fact:
"1. Wine Train's round trip excursion service cannot be
distinguished from [the] Skunk Train['s] excursion service in any meaningful way. [¶] 2. Wine Train's proposal
to disembark tourists up-valley for more sightseeing
and/or to connect with day trip shuttle tours is not a type
of regular route, point-to-point transportation between
cities, commuter service, or home-to-work service. [¶] 3.
Wine Train's passenger excursion service does not constitute regulated transportation and in providing such
[*799] service, Wine Train is not functioning as a public utility. [¶] 4. The incidental public utility purpose, if
any, of the proposed St. Helena station is de minimis."
In July 2001, the Wine Train filed an application for
rehearing of NVWT IV based largely on procedural
grounds. In January 2003, the PUC granted rehearing of
NVWT IV and reversed itself, holding that the Wine
Train is a public utility. (See City of St. Helena v. Napa
Valley Wine Train, Inc. (2003) Cal. P.U.C. Dec. No.
03-01-042, 2003 Cal.PUC LEXIS 13 (NVWT V); NVWT
V is the second decision challenged in the current action.) [***9] This decision made no express findings
of fact or conclusions of law regarding the Wine Train's
public utility status. In this decision, the PUC stated,
among other things, that it believed its opinion in California Western Railroad (the Skunk Train) was in error
and that its application was not supported by the record
in the Wine Train case. (Id. at *34.) The PUC also found
there was "little in the record to support the finding that
the [**717] proposed project, which contemplated
up-valley stops and use of the train as an alternative to
automobile travel, is not point-to-point transportation."
(Id. at *26.) The PUC, however, did not reference portions of the record that supported a finding that the Wine
Train engaged in point-to-point transportation, other than
to state that "the proposed project contemplates stops."
(Ibid.) Additionally, despite its holding in Western Travel, that sightseeing is not a public utility function, the
PUC stated "the fact that the Wine Train is described as a
recreational, excursion service does not mean that it does
not function as a public utility." (Id. at *26.)
In February 2003, the City filed for rehearing of
NVWT V, on the [***10] grounds that the decision was
contrary to law and the findings were not supported by
substantial evidence. In October 2003, a divided Commission denied the City's petition for rehearing. (See City
of St. Helena v. [**718] Napa Valley Wine Train, Inc.
(2003) Cal. P.U.C. Dec. No. 03-10-024, 1988 Cal.PUC
LEXIS 928 (NVWT VI); NVWT VI is the third challenged
decision.) In NVWT VI, the majority found the City had
failed to demonstrate good cause for rehearing in that it
did not present any new facts regarding the Wine Train's
passenger service. (Id. at *1.) Specifically, the majority
found the City had not raised any new facts demonstrating that the Wine Train's proposed project was sufficiently similar to other excursion services that, as a matter of law, the PUC did not have jurisdiction. (Id. at *13.)
According to the majority, the Wine Train was distinguishable from the Skunk Train because the Wine
Train project "envisioned up-valley stops and connections with buses that would transport passengers to wineries and other points of interest." (NVWT VI, supra,
1988 Cal.PUC LEXIS 928 at *11-12.) As such, the majority found the project as approved [***11] would
involve point-to-point transportation. (Id. at *12.)
[*800] With respect to the City's challenge that
NVWT V failed to provide adequate findings and conclusions of law, the majority stated that decisions on applications for rehearings did not generally require findings
of fact and conclusions of law. (NVWT VI, supra, 1988
Cal.PUC LEXIS 928 at *16.) Nonetheless, the majority
made several findings of fact, including a finding that:
"According to [NVWT I] and [NVWT II], the Wine
Train's passenger service is regulated transportation and
the Wine Train is functioning as a public utility." (NVWT
VI, supra, 1988 Cal.PUC LEXIS 928 at *17.) The majority also made the conclusion of law that: "The adoption
Page 5
of [NVWT I] and [NVWT II], and the imposition of mitigation measures, was dependent on the public utility
status of the Wine Train's passenger service." (Id. at
*18.)
In a brief, but effective, dissenting opinion, two
commissioners found the Wine Train provided a recreational service not constituting point-to-point transportation subject to regulation as a public utility. (NVWT VI,
supra, 1988 Cal.PUC LEXIS 928 [***12] at *19-20.)
The dissent found regulation of the Wine Train "defie[d]
common sense" and that the PUC should not "regulate
what is essentially a restaurant on wheels." (Id. at
*20-21.) The dissent also recognized the Commission
maintained ample jurisdiction in the eventuality that the
Wine Train began providing bona fide passenger service
in the future. (Id. at *20.)
On the same day it issued NVWT VI, a divided PUC
also denied the City's request for rehearing of NVWT III,
which had dismissed the City's 1999 complaint as being
advisory. (See City of St. Helena v. Napa Valley Wine
Train, Inc. (2003) Cal. P.U.C. Dec. No. 03-10-025, 1999
Cal.PUC LEXIS 958 (NVWT VII); NVWT VII is the
fourth and final challenged decision.) In its petition for
rehearing, the City argued the Commission erred in dismissing its complaint because it was seeking relief in the
nature of a declaratory judgment. The City argued that its
complaint provided an actual controversy relating to the
legal rights and duties of the parties, to wit: whether the
Wine Train is a public utility with the authority to
preempt local authorities. While acknowledging the possibility of an [***13] actual controversy, the majority
failed to address the substance of the City's claim.
(NVWT VII, supra, 1999 Cal.PUC LEXIS 958 at *6-7.)
Finding the substance of the issues raised in the complaint had been addressed by NVWT IV and NVWT V, the
majority found the issues raised in the petition for rehearing were moot. (Id. at *7.) The dissenting opinion
was identical to the one issued in NVWT VI. (Id. at *7-9.)
The City filed a petition for writ of review challenging the PUC's decisions in NVWT III, NVWT V, NVWT
VI, and NVWT VII, on the grounds that the determination
that the Wine Train is a public utility is legally deficient.
[*801] II. DISCUSSION
(1) At issue is whether the PUC has jurisdiction to
regulate the Wine Train as a public utility. 4 Public utilities have been described as being akin to governmental
entities, enjoying considerable powers bestowed by the
state, including the power of eminent domain. (Gay Law
Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24
Cal.3d 458, 469-470 [156 Cal. Rptr. 14, 595 P.2d 592];
see §§ 610-624.) However, not every business that deals
with the public or is subject to some form of state
[***14] regulation is necessarily a public utility. (Allen
v. Railroad Commission (1918) 179 Cal. 68, 88-90 [175
P. 466].) We have found no bright-line rule for determining what constitutes a public utility. Rather, we look
to established principles of statutory construction.
4
We express no opinion as to the PUC's jurisdiction with respect to safety and environmental issues.
A. Standard of Review.
(2) Review of a PUC decision is limited to whether:
(1) the Commission acted without jurisdiction or in excess of its jurisdiction; (2) the Commission has not proceeded in the manner required by law; (3) the decision of
the Commission is not supported by the findings; (4) the
findings in the decision of the Commission are not supported by the substantial evidence in light of the whole
record; (5) the order or decision was an abuse of discretion; and (6) the order or decision of the Commission
violated any constitutional rights of the petitioner. (§
1757; Hillsboro Properties v. Public Utilities Com.
(2003) 108 Cal.App.4th 246, 254 [133 Cal. Rptr. 2d
343].) [***15]
(3) Whether the Wine Train is a public utility is a
question of fact, subject to review by the substantial evidence standard. (Nolan v. Public Utilities Com. (1953)
41 Cal.2d 392, 397 [260 P.2d 790]; Western Canal Co.
v. Railroad Commission (1932) 216 Cal. 639, 645 [15
P.2d 853].) (4) Since interpretation of the Public Utilities
Code is a question of law, it is subject to our independent
review. (Hillsboro Properties v. Public Utilities Com.,
supra, 108 Cal.App.4th at p. 254.) [**719]
B. There are No Procedural Bars to Review.* [NOT
CERTIFIED FOR PUBLICATION]
*
See footnote, ante, page 793.
[*802] C. The PUC Acted in Excess of its Jurisdiction.6
6
Inasmuch as we find the PUC acted in excess of its jurisdiction (§ 1757, subd. (a)(1)), we
need not address the City's other claims of error.
(5) It is the City's position that the Wine Train does
not provide "transportation" within the meaning of the
Public Utilities Code, and is, therefore, not a common
carrier subject to regulation as a public utility. Section
211 defines [***16] a "common carrier" as "every person and corporation providing transportation for compensation to or for the public or any portion thereof ... ."
(Italics added.) Section 216 defines a "public utility" as
including "every common carrier ... where the service is
performed for, or the commodity is delivered to, the pub-
Page 6
lic or any portion thereof." (Id., at subd. (a).) In construing these sections, we apply familiar principles.(6) We
begin with the fundamental rule that a court should ascertain the intent of the Legislature so as to effectuate the
purpose of the law. (Lewis v. Superior Court (1999) 19
Cal.4th 1232, 1245 [82 Cal. Rptr. 2d 85, 970 P.2d 872].)
In determining legislative intent, we look first to the
words of the statute, giving the language its usual ordinary meaning. (Ibid.) However, the literal meaning of the
words in a statute may be disregarded to avoid absurd
results. (People v. Anzalone (1999) 19 Cal.4th 1074,
1079 [81 Cal. Rptr. 2d 315, 969 P.2d 160].) If the language is clear and unambiguous, there is no need for
construction, nor is it necessary to resort to indicia of the
Legislature's intent. (Ibid.)
1. The Wine Train is Not a Common Carrier Providing
"Transportation."
Our Supreme [***17] Court has defined "transportation" as " 'the taking up of persons or property at some
point and putting them down at another.' " (Golden Gate
Scenic Steamship, supra, 57 Cal.2d at p. 380.) The PUC
and the Wine Train attempt to limit Golden Gate Scenic
Steamship by arguing that its explanation of "transportation" was based on its interpretation of section 1007,
which requires any vessel transporting persons or property for compensation "between points in this state" to
obtain a certificate of public convenience. Both parties
appear to claim Golden Gate Scenic Steamship is not
applicable because section 211, defining a common carrier, does not contain the "between points" language. We
do not share such a limited view of Golden Gate Scenic
Steamship. The Supreme Court's definition of "transportation" was not confined to section 1007; rather it was in
accord with the word's ordinary meaning. (Golden Gate
Scenic Steamship, at p. 380.) The ordinary usage of
"transportation" has been consistently employed in everything from tax cases (see Gloucester Ferry Co. v.
Pennsylvania (1885) 114 U.S. 196, 203 [29 L. Ed. 158, 5
S. Ct. 826]; Star etc. Boat Co. v. County of San Diego
(1958) 163 Cal. App. 2d 534, 539-540 [329 P.2d 716]),
[***18] to contract cases (see Sacramento Nav. Co. v.
Salz (1927) 273 U.S. 326, 328-329 [*803] [71 L. Ed.
663, 47 S. Ct. 368]), to drug cases (People v. One 1941
Cadillac Club Coupe (1944) 63 Cal. App. 2d 418, 421
[147 P.2d 49]), and even to Internet pornography cases
(see U.S. v. Mohrbacher (1999) 182 F.3d 1041, 1048).
(7) We see no reason to depart from the ordinary
meaning, and find the Wine Train does not provide
"transportation." Presently, the Wine Train does not pick
up passengers at one location and put them [**720]
down at another location. Rather, the Wine Train provides a round-trip excursion from Napa. Throughout the
proceedings, the PUC has made much of the fact that the
approved project envisioned up-valley stops and connections with shuttles that would transport passengers to
wineries and to other points of interest. The PUC argues
the proposed project has not been realized because the
Wine Train has not been permitted by the City to have an
up-valley station. We are not persuaded by this bootstrap
argument. In essence the PUC is arguing that before the
Wine Train can function as a common carrier, it must be
granted the powers of a public utility to preempt local
jurisdiction.
[***19] (8) The fact that the Wine Train could
provide transportation in the future does not entitle it to
public utility status now. An analogous issue was discussed in Allen v. Railroad Commission, supra, 179 Cal.
at pages 82-83, where a private water company argued it
was a public utility by reason of a statement in its articles
of incorporation. The Allen court found the purposes
avowed in articles of incorporation to engage in public
service did not render a company's business one of public
service. (Id. at p. 83.) The court further stated that such
declarations of purpose merely provided the capacity to
engage in public service if a corporation so desires.
(Ibid.) Here, as in Allen, the proposed project stops do
not fix the character of the Wine Train as being a public
utility. Rather, the most that can be said is that the Wine
Train has the capacity to provide transportation.
2. The Wine Train is Not a Public Utility.
(9) The Wine Train is not subject to regulation as a
public utility because it does not qualify as a common
carrier providing "transportation." Additionally, even if
an up-valley station were permitted, it could be argued
[***20] that any transportation provided would be incidental to the sightseeing service provided by the Wine
Train. The PUC has previously held that sightseeing is
not a public utility function. (Western Travel, supra, 7
Cal.P.U.C.2d at p. 132.) In Western Travel, the PUC
found sightseeing is "essentially a luxury service, as contrasted with regular route, point-to-point transportation
between cities, commuter service, or home-to-work service." (Id. at p. 135.) Relying in part on Western Travel,
the PUC previously found the Wine Train was not a public utility. (See NVWT IV, supra, 2001 Cal. PUC LEXIS
407.) We leave for another day the question of whether a
sightseeing service is subject to regulation under section
216. Rather, we note the PUC's decisions in NVWT IV
and Western Travel to illustrate the PUC's internal inconsistency.
[*804] This inconsistency is also evident in the
California Western Railroad decision, in which the PUC
concluded the Skunk Train, providing an excursion service between Fort Bragg and Willits, did not constitute
"transportation" subject to regulation as a public utility.
(78 Cal.P.U.C.2d at p. 295.) [***21] It is difficult to
Page 7
differentiate this service from that provided by the Skunk
Train. The Skunk Train's excursion service involves
transporting passengers from Fort Bragg to Willits, and
then returning them to the point of origin for the purpose
of sightseeing. (Ibid.) The PUC does little to distinguish
the Wine Train from the Skunk Train. Rather, it simply
states the Wine Train would not provide a continuous
loop service due to its proposed up-valley stops. As previously discussed, the proposed stops may give rise to
public utility status in the future, but presently do not
mandate such a determination.
[**721] Finally, to the extent the PUC has made
express findings of fact that the Wine Train is a public
utility, such findings are not supported by substantial
evidence. Presently, the Wine Train provides a round-trip
excursion that is indistinguishable from the Skunk Train.
III. DISPOSITION
The Commission's decisions in NVWT III (Dec. No.
99-08-018), NVWT V (Dec. No. 03-01-042), NVWT VI
(Dec. No. 03-10-024) and NVWT VII (Dec. No.
03-10-025) are annulled to the extent they deem the
Wine Train a common carrier providing transportation
subject to regulation as [***22] a public utility.7
7 In petitions for rehearing, the Wine Train and
PUC urge us to remand the cause to the Commission "to refresh and update the factual record"
which, it is claimed, contains stale information.
Our decision is based on the record before us and
we decline to do so. However, we acknowledge
that nothing in this opinion precludes the Wine
Train from applying for public utility status based
upon new facts, if any, relating to the issue of
"transportation" consistent with this opinion.
Kay, P. J., and Sepulveda, J., concurred.
Petitions for a rehearing were denied July 21, 2004,
and the opinion was modified to read as printed above.
The petition of real party in interest for review by the
Supreme Court was denied September 29, 2004. George,
C. J., did not participate therein.
Exhibit E
DWT 22084375v1 0096932-000004
Uber - Terms and Conditions
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Partner Terms
Terms and Conditions
Last Updated: September 14, 2012
The terms and conditions stated herein (collectively, the "Agreement") constitute a legal agreement between you and Uber Technologies, Inc., a
Delaware corporation (the "Company"). In order to use the Service (defined below) and the associated Application (defined below) you must agree
to the terms and conditions that are set out below. By using or receiving any services supplied to you by the Company (collectively, the "Service"),
and downloading, installing or using any associated application supplied by the Company which purpose is to enable you to use the Service
(collectively, the "Application"), you hereby expressly acknowledge and agree to be bound by the terms and conditions of the Agreement, and any
future amendments and additions to this Agreement as published from time to time at https://www.uber.com/terms or through the Service.
The Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service or Application at any
time, effective upon posting of an updated version of this Agreement on the Service or Application. You are responsible for regularly reviewing this
Agreement. Continued use of the Service or Application after any such changes shall constitute your consent to such changes.
THE COMPANY DOES NOT PROVIDE TRANSPORTATION SERVICES, AND THE COMPANY IS NOT A TRANSPORTATION CARRIER. IT IS UP TO THE
THIRD PARTY TRANSPORTATION PROVIDER, DRIVER OR VEHICLE OPERATOR TO OFFER TRANSPORTATION SERVICES WHICH MAY BE
SCHEDULED THROUGH USE OF THE APPLICATION OR SERVICE. THE COMPANY OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH
THIRD PARTY TRANSPORTATION SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE TRANSPORTATION SERVICES OR ACT IN ANY
WAY AS A TRANSPORTATION CARRIER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES PROVIDED TO YOU
BY SUCH THIRD PARTIES.
Key Content-related Terms
“Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
“Company Content” means Content that Company makes available through the Service or Application, including any Content licensed from a
third party, but excluding User Content.
“User” means a person who accesses or uses the Service or Application.
“User Content” means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Service or Application.
“Collective Content” means, collectively, Company Content and User Content.
Representations and Warranties
By using the Application or Service, you expressly represent and warrant that you are legally entitled to enter this Agreement. If you reside in a
jurisdiction that restricts the use of the Service because of age, or restricts the ability to enter into agreements such as this one due to age, you
must abide by such age limits and you must not use the Application and Service. Without limiting the foregoing, the Service and Application is not
available to children (persons under the age of 18). By using the Application or Service, you represent and warrant that you are at least 18 years
old. By using the Application or the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement
and to abide by the terms and conditions of this Agreement. Your participation in using the Service and/or Application is for your sole, personal
use. You may not authorize others to use your user status, and you may not assign or otherwise transfer your user account to any other person or
entity. When using the Application or Service you agree to comply with all applicable laws from your home nation, the country, state and city in
which you are present while using the Application or Service.
You may only access the Service using authorized means. It is your responsibility to check to ensure you download the correct Application for
your device. The Company is not liable if you do not have a compatible handset or if you have downloaded the wrong version of the Application
for your handset. The Company reserves the right to terminate this Agreement should you be using the Service or Application with an
incompatible or unauthorized device.
By using the Application or the Service, you agree that:
https://www.uber.com/legal/terms
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• You will only use the Service or Application for lawful purposes; you will not use the Services for sending or storing any unlawful material or
for fraudulent purposes.
• You will not use the Service or Application to cause nuisance, annoyance or inconvenience.
• You will not impair the proper operation of the network.
• You will not try to harm the Service or Application in any way whatsoever.
• You will not copy, or distribute the Application or other content without written permission from the Company.
• You will only use the Application and Service for your own use and will not resell it to a third party.
• You will keep secure and confidential your account password or any identification we provide you which allows access to the Service.
• You will provide us with whatever proof of identity we may reasonably request.
• You will only use an access point or 3G data account (AP) which you are authorized to use.
• You are aware that when requesting transportation services by SMS, standard messaging charges will apply.
License Grant, Restrictions and Copyright Policy
Licenses Granted by Company to Company Content and User Content
Subject to your compliance with the terms and conditions of this Agreement, Company grants you a limited, non-exclusive, non-transferable
license: (i) to view, download and print any Company Content solely for your personal and non-commercial purposes; and (ii) to view any User
Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license
rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform,
transmit, stream, broadcast or otherwise exploit the Service, Application or Collective Content, except as expressly permitted in this Agreement.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company or its
licensors, except for the licenses and rights expressly granted in this Agreement.
License Granted by User
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or
through the Service or Application, you hereby grant to Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free
license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit,
stream, broadcast and otherwise exploit such User Content only on, through or by means of the Service or Application. Company does not claim
any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit
any User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Service or Application.
Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through
the Service or Application or you have all rights, licenses, consents and releases that are necessary to grant to Company and to the rights in such
User Content, as contemplated under this Agreement; and (ii) neither the User Content nor your posting, uploading, publication, submission or
transmittal of the User Content or Company’s use of the User Content (or any portion thereof) on, through or by means of the Service or
Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual
property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Application License
Subject to your compliance with this Agreement, Company grants you a limited non-exclusive, non-transferable license to download and install a
copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your
own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced
Application”), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating
system software); and (ii)bas permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Company reserves all rights in and to
the Application not expressly granted to you under this Agreement.
Accessing and Downloading the Application from iTunes
The following applies to any App Store Sourced Application:
• You acknowledge and agree that (i) this Agreement is concluded between you and Company only, and not Apple, and (ii) Company, not
Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must
comply with the App Store Terms of Service.
• You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store
Sourced Application.
• In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will
refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will
have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any
other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole
responsibility of Company.
• You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any
claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application,
including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any
applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
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• You and Company acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and
use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company,
not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement
claim to the extent required by this Agreement.
• You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as related to
your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple
will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store
Sourced Application against you as a third party beneficiary thereof.
• Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App
Store Sourced Application.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party
the Service or the Application in any way; (ii) modify or make derivative works based upon the Service or the Application; (iii) create Internet "links"
to the Service or "frame" or "mirror" any Application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the
Application in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the
Service or Application, or (c) copy any ideas, features, functions or graphics of the Service or Application, or (v) launch an automated program or
script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which
may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Service or Application.
You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene,
threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii)
send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv)
interfere with or disrupt the integrity or performance of the Application or Service or the data contained therein; or (v) attempt to gain
unauthorized access to the Application or Service or its related systems or networks.
Company will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Company may involve and
cooperate with law enforcement authorities in prosecuting users who violate this Agreement. You acknowledge that Company has no obligation
to monitor your access to or use of the Service, Application or Collective Content or to review or edit any Collective Content, but has the right to
do so for the purpose of operating the Service and Application, to ensure your compliance with this Agreement, or to comply with applicable law
or the order or requirement of a court, administrative agency or other governmental body. Company reserves the right, at any time and without
prior notice, to remove or disable access to any Collective Content that Company, at its sole discretion, considers to be in violation of this
Agreement or otherwise harmful to the Service or Application.
Copyright Policy
Company respects copyright law and expects its users to do the same. It is Company’s policy to terminate in appropriate circumstances Users or
other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Company’s
Copyright Policy at https://www.uber.com/legal/copyright, for further information.
Payment Terms
Any fees that the Company may charge you for the Application or Service, are due immediately and are non-refundable. This no refund policy
shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to our
Application or Service either planned, accidental or intentional, or any reason whatsoever. The Company reserves the right to determine final
prevailing pricing - Please note the pricing information published on the website may not reflect the prevailing pricing.
The Company, at its sole discretion, make promotional offers with different features and different rates to any of our customers. These
promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. The Company may change the fees for our
Service or Application, as we deem necessary for our business. We encourage you to check back at our website periodically if you are interested
about how we charge for the Service of Application.
SMS Messaging
If you select this feature, and have SMS service from one of the supported Carriers (T-Mobile, Verizon Wireless, AT&T, Sprint, Nextel, Boost, U.S.
Cellular, MetroPCS and Cricket), you can request pickups via SMS and get notified if you request pickups through our Applications. Message and
data rates may apply.
You will only receive messages from Company if you make a pickup request. If you change your mobile phone service provider the service may be
deactivated and you will need to re-enroll in the notification service. Company reserves the right to cancel the notification service at any time; you
may cancel (opt-out) the service by texting the wordbSTOPbto 827-222 from your mobile phone. For more information, please text the
wordbHELPbto 827-222, or call 866-576-1039.
Intellectual Property Ownership
The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in
and to the Application and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information
provided by you or any other party relating to the Application or the Service. This Agreement is not a sale and does not convey to you any rights of
ownership in or related to the Application or the Service, or any intellectual property rights owned by the Company. The Company name, the
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Company logo, and the product names associated with the Application and Service are trademarks of the Company or third parties, and no right
or license is granted to use them.
Third Party Interactions
During use of the Application and Service, you may enter into correspondence with, purchase goods and/or services from, or participate in
promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the Application or Service. Any
such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third
-party. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or
promotion between you and any such third-party. The Company does not endorse any sites on the Internet that are linked through the Service or
Application, and in no event shall the Company or its licensors be responsible for any content, products, services or other materials on or available
from such sites or third party providers. The Company provides the Application and Service to you pursuant to the terms and conditions of this
Agreement. You recognize, however, that certain third-party providers of goods and/or services may require your agreement to additional or
different terms and conditions prior to your use of or access to such goods or services, and the Company disclaims any and all responsibility or
liability arising from such agreements between you and the third party providers.
The Company may rely on third party advertising and marketing supplied through the Application or Service and other mechanisms to subsidize
the Application or Service. By agreeing to these terms and conditions you agree to receive such advertising and marketing. If you do not want to
receive such advertising you should notify us in writing. The Company reserves the right to charge you a higher fee for the Service or Application
should you choose not to receive these advertising services. This higher fee, if applicable, will be posted on the Company's website located at
http://www.uber.com. The Company may compile and release information regarding you and your use of the Application or Service on an
anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in
all actions and interactions with any third party you interact with through the Service.
Indemnification
By entering into this Agreement and using the Application or Service, you agree that you shall defend, indemnify and hold the Company, its
licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, Users, employees, attorneys and agents harmless
from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in
connection with: (a) your violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein;
(b) your violation of any rights of any third party, including providers of transportation services arranged via the Service or Application, or (c) your
use or misuse of the Application or Service.
Disclaimer of Warranties
THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY,
AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR APPLICATION. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT
(A) THE USE OF THE SERVICE OR APPLICATION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION
WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE SERVICE OR APPLICATION WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR
OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E)
ERRORS OR DEFECTS IN THE SERVICE OR APPLICATION WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE
AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND APPLICATION IS PROVIDED TO YOU STRICTLY ON AN
"AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF
THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY. THE
COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR
AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE SERVICE OR APPLICATION.
YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE APPLICATION AND SERVICE, AND ANY THIRD
PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Internet Delays
THE COMPANY'S SERVICE AND APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF
THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER
DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL THE COMPANY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX
(6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL THE COMPANY AND/OR ITS
LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES
OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE
COMPANY AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING
BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR APPLICATION,
INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR APPLICATION, ANY RELIANCE PLACED BY YOU ON THE
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COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU
AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY
THE SERVICE OR APPLICATION, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
THE COMPANY MAY INTRODUCE YOU TO THIRD PARTY TRANSPORTATION PROVIDERS FOR THE PURPOSES OF PROVIDING
TRANSPORTATION. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY TRANSPORTATION PROVIDERS AND
YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY
RELATED TO THE THIRD PARTY TRANSPORTATION PROVIDER. THE COMPANY WILL NOT BE A PARTY TO DISPUTES, NEGOTIATIONS OF
DISPUTES BETWEEN YOU AND SUCH THIRD PARTY PROVIDERS. WE CANNOT AND WILL NOT PLAY ANY ROLE IN MANAGING PAYMENTS
BETWEEN YOU AND THE THIRD PARTY PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE
APPLICATION OR SERVICE (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH YOU. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR
ABILITY OF ANY SUCH THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL LIABILITY, CLAIMS,
CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE APPLICATION OR SERVICE, OR IN ANY WAY RELATED TO THE THIRD
PARTIES INTRODUCED TO YOU BY THE APPLICATION OR SERVICE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS
UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS
FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
THE QUALITY OF THE TRANSPORTATION SERVICES SCHEDULED THROUGH THE USE OF THE SERVICE OR APPLICATION IS ENTIRELY THE
RESPONSIBILITY OF THE THIRD PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH TRANSPORTATION SERVICES TO YOU. YOU
UNDERSTAND, THEREFORE, THAT BY USING THE APPLICATION AND THE SERVICE, YOU MAY BE EXPOSED TO TRANSPORTATION THAT IS
POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE
APPLICATION AND THE SERVICE AT YOUR OWN RISK.
Notice
The Company may give notice by means of a general notice on the Service, electronic mail to your email address on record in the Company's
account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Company's account
information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or
pre-paid post) or 12 hours after sending (if sent by email). You may give notice to the Company (such notice shall be deemed given when received
by the Company) at any time by any of the following: letter sent by confirmed facsimile to the Company at the following fax numbers (whichever
is appropriate): (877) 223-8023; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the
Company at the following addresses (whichever is appropriate): Uber Technologies, Inc., 182 Howard Street, #8, San Francisco, CA 94105
addressed to the attention of: Chief Executive Officer.
Assignment
This Agreement may not be assigned by you without the prior written approval of the Company but may be assigned without your consent by the
Company to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section
shall be void.
Export Control
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related
thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such
laws and regulations. By using the App Store Sourced Application, you represent and warrant that: (i) you are not located in a country that is
subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not
listed on any U.S. Government list of prohibited or restricted parties.
Dispute Resolution
You and Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination,
enforcement, interpretation or validity thereof or the use of the Service or Application (collectively, “Disputes”) will be settled by binding
arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other
equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s
copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Company are each
waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further,
unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not
otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this
“Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any
termination of this Agreement.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the
Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as
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modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.)
The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in
the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for
California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to
practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are
unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in
accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Company otherwise agree, the arbitration will be conducted in the county where you reside.
If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Company submit to the
arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a
hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of
information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the
essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court
having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to
the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor
of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will
be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Company will not seek, and hereby waives all
rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim
for damages does not exceed $75,000, Company will pay all such fees unless the arbitrator finds that either the substance of your claim or the
relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in
Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the modification-related provisions above, if Company changes this “Dispute Resolution” section after
the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending
us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last
Updated Date” above or in the date of Company’s email to you notifying you of such change. By rejecting any change, you are agreeing that you
will arbitrate any Dispute between you and Company in accordance with the provisions of this “Dispute Resolution” section as of the date you first
accepted this Agreement (or accepted any subsequent changes to this Agreement).
General
No joint venture, partnership, employment, or agency relationship exists between you, the Company or any third party provider as a result of this
Agreement or use of the Service or Application. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be
struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of the Company to enforce any right or provision
in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing. This
Agreement comprises the entire agreement between you and the Company and supersedes all prior or contemporaneous negotiations,
discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
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Copyright © Uber Technologies, Inc., Uber Canada, Inc., Uber France SAS, Uber Nederland BV
1/28/2013
Exhibit F
DWT 22084375v1 0096932-000004
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1/28/2013
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By signing up, I agree to the Uber Terms and Conditions and Privacy Policy and understand that Uber
is a request tool, not a transportation carrier.
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Copyright © Uber Technologies, Inc.
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1/28/2013
Exhibit G
DWT 22084375v1 0096932-000004
Uber Partners and Drivers
Page 1 of 8
Error
Success
Client Terms
Partner/Driver Terms and Conditions
August 2011
The terms and conditions stated herein (collectively, the "Agreement") constitute a legal agreement
between you and Uber Technologies, Inc., a Delaware corporation (the "Company"). In order to use
the Service and the associated Software you must agree to the terms and conditions that are set out
below. By using or receiving any services supplied to you by the Company (collectively, the
"Service"), and downloading, installing or using any associated software supplied by the Company
which purpose is to enable you to use the Service (collectively, the "Software"), you hereby expressly
acknowledge and agree to be bound by the terms and conditions of the Agreement, and any future
amendments and additions to this Agreement as published from time to time at
http://www.uber.com/partners/terms or through the Service.
The Company reserves the right to modify the terms and conditions of this Agreement or its policies
relating to the Service or Software at any time, effective upon posting of an updated version of this
Agreement on the Service or Software. You are responsible for regularly reviewing this Agreement.
Continued use of the Service or Software after any such changes shall constitute your consent to such
changes.
THE COMPANY DOES NOT PROVIDE TRANSPORTATION SERVICES, AND THE
COMPANY IS NOT A TRANSPORTATION CARRIER. THE COMPANY OFFERS
INFORMATION AND A METHOD TO CONNECT DRIVERS AND PARTIES SEEKING
TRANSPORTATION SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE
TRANSPORTATION SERVICES OR ACT IN ANY WAY AS A TRANSPORTATION CARRIER,
AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES
PROVIDED BY YOU TO THIRD PARTIES.
Representations and Warranties
By using the Software or Services, you expressly represent and warrant that you are legally entitled to
enter this Agreement. If you reside in a jurisdiction which restricts the use of the Services because of
age, or restricts the ability to enter into agreements such as this one due to age, you must abide by
such age limits and you must not use the Software and Service. Without limiting the foregoing, the
Service and Software is not available to children (persons under the age of 18). By using the Software
or Services, you represent and warrant that you are at least 18 years old and that you have the right,
authority and capacity to enter into this Agreement and to abide by the terms and conditions of this
Agreement. Your participation in using the Service and/or Software is for your sole, personal use.
https://partners.uber.com/
1/28/2013
Page 2 of 8
You may not authorize others to use your user status, and you may not assign or otherwise transfer
your account to any other person or entity. When using the Software or Service you agree to comply
with all applicable laws from the country, state, and city in which you are present while using the
Software or Service.
You may only access the Services using authorized means. It is your responsibility to check to ensure
you download the correct Software for your device. The Company is not liable if you do not have a
compatible handset or if you have downloaded the wrong version of the Software for your handset.
The Company reserves the right to terminate this Agreement should you be using the Service or
Software with an incompatible or unauthorized device.
By using the Software or the Services, you represent, warrant and agree that:
• You possess a valid driver's license and are authorized to operate a motor vehicle and have all
the appropriate licenses, approvals and authority to provide transportation for hire to third
parties in all jurisdictions in which you use the Services or Software.
• You own, or have the legal right to operate, the vehicle which you intend to use when accepting
passengers, and such vehicle is in good operating condition and meets the industry safety
standards for a vehicle of its kind.
• You have a valid policy of liability insurance (in industry-standard coverage amounts) for the
operation of your motor vehicle/passenger vehicle and/or business insurance to cover any
anticipated losses related to the operation of a taxi/passenger delivery service.
• You will be solely responsible for any and all liability which results or is alleged as a result of
the operation of your motor vehicle/passenger vehicle and/or taxi/passenger delivery service,
including, but not limited to personal injuries, death and property damages.
• You will obey all local laws related to the operation of a taxi/passenger delivery service and
will be solely responsible for any violations of such local laws.
• You will only use the Service or Software for lawful purposes; you will not use the Service or
Software for sending or storing any unlawful material or for fraudulent purposes.
• You will not use the Service or Software to cause nuisance, annoyance or inconvenience.
• You will not copy, or distribute the Software or other content without written permission from
the Company.
• You will only use the Service and Software for your own use and will not resell it to a third
party.
• You will keep secure and confidential your account password or any identification we provide
you which allows access to the Service and Software.
• You will provide us with whatever proof of identity we my reasonably request.
• You will only use an access point or 3G data account (AP) which you are authorized to use.
License Grant and Restrictions
The Company hereby grants you a non-exclusive, non-transferable, right to use the Software and
Service, subject to the terms and conditions of this Agreement. All rights not expressly granted to you
are reserved by the Company and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially
exploit or make available to any third party the Service or the Software in any way; (ii) modify or
make derivative works based upon the Service or the Software; (iii) create Internet "links" to the
Service or "frame" or "mirror" any Software on any other server or wireless or Internet-based device;
(iv) reverse engineer or access the Software in order to (a) build a competitive product or service, (b)
build a product using similar ideas, features, functions or graphics of the Service or Software, or (c)
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copy any ideas, features, functions or graphics of the Service or Software, or (v) launch an automated
program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web
indexers, bots, viruses or worms, or any program which may make multiple server requests per
second, or unduly burdens or hinders the operation and/or performance of the Service or Software.
You may not use the Software and Service to: (i) send spam or otherwise duplicative or unsolicited
messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous,
or otherwise unlawful or tortious material, including material harmful to children or violative of third
party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or
other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the
integrity or performance of the Software or Service or the data contained therein; or (v) attempt to
gain unauthorized access to the Software or Service or its related systems or networks.
Payment Terms
Any fees which the Company may charge you for the Software or Service, are due immediately and
are non-refundable. This no refund policy shall apply at all times regardless of your decision to
terminate your usage, our decision to terminate your usage, disruption caused to our Software or
Service either planned, accidental or intentional, or any reason whatsoever. The Company reserves the
right to determine final prevailing pricing. Please note the pricing information published on the
website may not reflect the prevailing pricing.
The Company may, at its sole discretion, make promotional offers with different features and
different rates to any of our customers. These promotional offers, unless made to you, shall have no
bearing whatsoever on your offer or contract. The Company may change the fees for our Service or
Software as we deem necessary for our business. We encourage you to check back at our website
periodically if you are interested about how we charge for the Service or Software.
Intellectual Property Ownership
The Company alone (and its licensors, where applicable) shall own all right, title and interest,
including all related intellectual property rights, in and to the Software and the Service and any
suggestions, ideas, enhancement requests, feedback, recommendations or other information provided
by you or any other party relating to the Software or the Service. This Agreement is not a sale and
does not convey to you any rights of ownership in or related to the Software or the Service, or any
intellectual property rights owned by the Company. The Company name, the Company logo, and the
product names associated with the Software and Service are trademarks of the Company or third
parties, and no right or license is granted to use them.
Third Party Interactions
During use of the Software and Service, you may enter into correspondence with, purchase goods
and/or services from, or participate in promotions of third party service providers, advertisers or
sponsors showing their goods and/or services through the Software or Service. Any such activity, and
any terms, conditions, warranties or representations associated with such activity, is solely between
you and the applicable third-party. The Company and its licensors shall have no liability, obligation or
responsibility for any such correspondence, purchase, transaction or promotion between you and any
such third-party. The Company does not endorse any sites on the Internet that are linked through the
Service or Software, and in no event shall the Company or its licensors be responsible for any content,
1/28/2013
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products, services or other materials on or available from such sites or third party providers. The
Company provides the Software and Service to you pursuant to the terms and conditions of this
Agreement. You recognize, however, that certain third-party providers of goods and/or services may
require your agreement to additional or different terms and conditions prior to your use of or access to
such goods or services, and the Company disclaims any and all responsibility or liability arising from
such agreements between you and the third party providers.
The Company may rely on third party advertising and marketing supplied through the Software or
Service and other mechanisms to subsidize the Software or Service. By agreeing to these terms and
conditions you agree to receive such advertising and marketing. If you do not want to receive such
advertising you should notify us in writing. The Company reserves the right to charge you a higher
fee for the Services or Software should you choose not to receive these advertising services. This
higher fee, if applicable, will be posted on the Company's website located at http://www.uber.com/.
The Company may compile and release information regarding you and your use of the Software or
Service on an anonymous basis as part of a customer profile or similar report or analysis.
Indemnification
By entering into this Agreement and using the Software or Service, you agree that you shall defend,
indemnify and hold the Company, its licensors and each such party's parent organizations,
subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from
and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys'
fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this
Agreement or any applicable law or regulation, including any local laws or ordinances, whether or not
referenced herein; (b) your violation of any rights of any third party, including, but not limited to
passengers of your vehicle, other motorists, and pedestrians, as a result of your own interaction with
any third party (c) your use (or misuse) of the Software or Service; and (d) your ownership, use or
operation of a motor vehicle or passenger vehicle, including your carriage of passengers who have
procured your transportation services via the Software or Services. Disclaimer of Warranties
THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE
RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR
COMPLETENESS OF THE SERVICE OR SOFTWARE. THE COMPANY DOES NOT
REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE OR SOFTWARE WILL
BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN
COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B)
THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS,
(C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY
PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR
OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE SERVICE OR SOFTWARE WILL BE
CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE
AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE
AND SOFTWARE IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL
CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY. THE
COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE
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RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF
ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE
USE OF THE SERVICE OR SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT THE
ENTIRE RISK ARISING OUT OF YOUR USE OF THE SOFTWARE AND SERVICE, AND ANY
THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE
MAXIMUM EXTENT PERMITTED BY LAW.
Internet Delays
THE COMPANY'S SERVICE AND SOFTWARE MAY BE SUBJECT TO LIMITATIONS,
DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY
DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH
PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL THE COMPANY'S AGGREGATE LIABILITY EXCEED THE
AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (6) MONTH
PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO
EVENT SHALL THE COMPANY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR
ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR
OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF
DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE COMPANY
AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY
WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE
OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR
SOFTWARE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE
SERVICE OR SOFTWARE, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS,
ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY
RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE
PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE
WEBSITE OR IS REFERRED BY THE SERVICE OR SOFTWARE, EVEN IF THE COMPANY
AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
The Company may introduce you to third parties for the purposes of you providing transportation to
them for a fee. We make no guarantees, warranties, or representations as to the actions or conduct of
such third parties. The Company will not intervene I any disputes between you and such third parties.
We cannot and will not play any role in managing payments between you and such third party parties.
Responsibility for the decisions you make regarding transportation services offered via the Software
or Service (with all its implications) rests solely with you. You agree that it is your responsibility to
take reasonable precautions in all actions and interactions with any third party you interact with
through the Service.
The transportation services that you provide, which is scheduled through the Service or Software, is
fully and entirely your responsibility. The Company does not screen or otherwise evaluate potential
riders/users of your transportation services. You understand, therefore, that by using the Software and
the Service, you may be introduced to third parties that may be potentially dangerous, and that you
use the Software and the Service at your own risk.
1/28/2013
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WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY SUCH THIRD
PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND
ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE
OF THE SOFTWARE OR SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES
INTRODUCED TO YOU BY THE SOFTWARE OR SERVICE. YOU EXPRESSLY WAIVE AND
RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER
STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Notice
The Company may give notice by means of a general notice on the Service, electronic mail to your
email address on record in the Company's account information, or by written communication sent by
first class mail or pre-paid post to your address on record in the Company's account information. Such
notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if
sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give
notice to the Company (such notice shall be deemed given when received by the Company) at any
time by any of the following: letter sent by confirmed facsimile to the Company at the following fax
numbers (whichever is appropriate): (xxx) xxx-xxx; letter delivered by nationally recognized
overnight delivery service or first class postage prepaid mail to the Company at the following
addresses (whichever is appropriate): Uber Technologies, Inc., 182 Howard Street, #8, San Francisco,
CA 94105 addressed to the attention of: Chief Executive Officer.
Assignment
This Agreement may not be assigned by you without the prior written approval of the Company but
may be assigned without your consent by the Company to (i) a parent or subsidiary, (ii) an acquirer of
assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be
void.
Equipment Lease
From time to time, the Company (the "Lessor") may offer equipment (the "Equipment") for lease to
you (the "Lessee"), including, but not limited to mobile phones. The lease of such Equipment shall be
governed by the following terms and conditions (the "Lease Terms"):
No Warranty. LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE EQUIPMENT, THEIR
MERCHANTABILITY, OR THEIR FITNESS FOR A PARTICULAR PURPOSE. LESSOR SHALL
NOT BE LIABLE TO LESSEE OR ANY OTHER PERSON FOR DIRECT, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM LESSEE'S USE OF THE
EQUIPMENT, OR FOR DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR
ANY ACTION BY LESSOR.
Title and Assignment. Lessor shall retain title to the Equipment. Lessor may assign, sell or encumber
its interest in any of the Equipment. THE RIGHTS OF ANY SUCH ASSIGNEE SHALL NOT BE
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SUBJECT TO ANY ABATEMENT, DEDUCTION, OFF-SET, COUNTERCLAIM,
RECOUPMENT, DEFENSE OR OTHER RIGHT WHICH LESSEE MAY HAVE AGAINST
LESSOR OR ANY OTHER PERSON OR ENTITY. Notwithstanding the foregoing, any such
assignment (a) shall be subject to Lessee's right to possess and use the Equipment subject to these
Lease Terms so long as Lessee is not in default hereunder, and (b) shall not release any of Lessor's
obligations hereunder.
Care, Use and Maintenance. Lessee will maintain the Equipment in good operating order and
appearance, protect the Equipment from deterioration, other than normal wear and tear, and will not
use the Equipment for any purpose other than that for which it was designed. Should the Equipment
be destroyed or otherwise rendered inoperable, Lessee shall assume the full expense of replacement of
the Equipment. Lessee shall not use the Equipment for voice services, international roaming, text or
email messaging, or downloading applications or media, unless directly related to the Service. Lessee
will be charged for all abnormal or unauthorized service fees on the Equipment, including but not
limited to data plan overages, chances in carrier/network fees, application or media downloads, paid
telephone services, messaging charge and international charges.
Delivery and Return of the Equipment. Lessee hereby assumes the full expense of transportation and
in-transit insurance to Lessee's premises and installation of the Equipment. Upon termination (by
expiration or otherwise) of this Lease Terms, Lessee shall, pursuant to Lessor's instructions and at
Lessee's full expense (including, without limitation, expenses of transportation and in transit
insurance), return the Equipment to Lessor in the same operating order, repair, condition and
appearance as when received, less normal depreciation and wear and tear. Lessee shall return the
Equipment to Lessor at such address within the continental United States as directed by Lessor.
Indemnity. Lessee will indemnify and hold Lessor and any assignee of Lessor harmless from and
against any and all claims, costs, expenses, damages and liabilities, including reasonable attorneys'
fees, arising out of the ownership, selection, possession, leasing, operation, control, use, maintenance,
delivery, return or other disposition of the Equipment.
Risk of Loss. Effective upon delivery and until the Equipment are returned, Lessee relieves Lessor of
responsibility for all risks of physical damage to or loss or destruction of the Equipment.
General
This Agreement shall be governed by California law, without regard to the choice or conflicts of law
provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in
connection with this Agreement or the Service or Software shall be subject to the exclusive
jurisdiction of the state and federal courts located in the City and County of San Francisco, California.
No joint venture, partnership, employment, or agency relationship exists between you, the Company
or any third party provider as a result of this Agreement or use of the Service or Software. If any
provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and
the remaining provisions shall be enforced to the fullest extent under law. The failure of the Company
to enforce any right or provision in this Agreement shall not constitute a waiver of such right or
provision unless acknowledged and agreed to by the Company in writing. This Agreement, comprises
the entire agreement between you and the Company and supersedes all prior or contemporaneous
negotiations, discussions or agreements, whether written or oral, between the parties regarding the
subject matter contained herein.
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1/28/2013
Exhibit H
DWT 22084375v1 0096932-000004
Page 1
3 of 5 DOCUMENTS
In the Matter of the Application of Golden Bay Tour Company, dba Tower Tours Agency,
for charter-party authority or an exemption therefrom
Decision No. 93-06-034, Application No. 92-09-015 (Filed September 4, 1992)
California Public Utilities Commission
1993 Cal. PUC LEXIS 474; 49 CPUC2d 506
June 3, 1993
David Jones, for Tower Tours, applicant; Richard C. Maniscalco, for the Transportation Division, Compliance and
Enforcement Branch; James D. Westfall, for the Transportation Division, Compliance and Enforcement Branch.
PANEL: [*1]
Daniel Wm. Fessler, President; Patricia M. Eckert, Norman D. Shumway, P. Gregory Conlon, Commissioners
OPINION: OPINION
By this application Golden Bay Tour Company, doing business as Tower Tours Agency (Tower) requests authority
to operate as a charter-party carrier (TCP) or, alternatively, exemption from the provisions of the Charter Party Carrier
Act requiring Tower to secure such authority. The application includes a statement dated September 1, 1992 advising
that the application was filed because Commission Transportation Division staff members had informed Tower that they
believe the applicant to be a TCP, and it should request appropriate authority.
The Commission's Transportation Division issued its Advice of Participation on October 5, 1992 stating that it
would participate in this proceeding, and was prepared to present evidence to support its belief that Tower's operations
require authority as a TCP. Accordingly, a duly noticed public hearing was held on November [*2] 25, 1992 in San
Francisco before Administrative Law Judge (ALJ) John Lemke, and the matter was submitted subject to the filing of
transcript. The transcript was filed January 7, 1993.
Evidence
Accompanying the application is a statement dated September 1, 1992 from David Jones, General Manager, and
Hagen Choi, President of Tower. The statement advises generally as follows:
1. Tower operates a small tour agency at Fisherman's Wharf in San Francisco, at which it markets and brokers
tours of the Greater Bay Area via buses, vessels, and helicopters, and also books hotel reservations and airport transfers.
A portion of the ticket price which customers pay Tower stays with Tower as a "marketing" fee/commission.
2. Tower's greatest source of revenue is derived from marketing bus tours and booking passengers on any number
of tour providers. Tower has a contract to fill Super Sightseeing's tours first, and when that company's vehicles are full,
Tower books passengers with Superior Sightseeing, Golden Gate Tours, Quo Vadis Tours, Great Pacific, and Gray
Line.
3. Tower does not own, lease or operate buses. It is merely a tour agency.
Also included with the application are [*3] statements from two TCPs - Super Sightseeing Tours, and Superior
Sightseeing Service - corroborating Tower's statement, i.e., describing Tower as a tour agency which markets the tours
Page 2
1993 Cal. PUC LEXIS 474, *; 49 CPUC2d 506
they offer. Passengers pay Tower $23 and $39, respectively, for Muir Woods and Wine Country tours, and a portion of
that is remitted by Tower to the TCP.
Staff limited its participation in this proceeding to cross examination of general manager David Jones. Jones testified essentially as follows:
1. Jones has been in the business of marketing tours for about 15 years. When he branched out on his own, he
knew that he would need a good location to be able to market successfully all kinds of tours - helicopter, bus, and vessel. The best location by far in San Francisco is on Jefferson Street between Powell and Mason at Fisherman's Wharf,
which Jones rents from Hagen Choi.
2. Exhibit 1 is a brochure containing various tour information, and stating that Tower "operates as a full service
tour coordinator and charters only fully-insured PUC/TCP licensed coaches (emphasis added).)" The brochure shows
that the fare for the city and Muir Woods tours is $23. Exhibit 2 is a photograph of the sign located [*4] in front of
Tower's place of business, and headed "Towers Tour Agency." The sign indicates the points to which tours are available, such as San Francisco, Muir Woods, Wine Country, and Yosemite, and also states that dinner cruises and helicopter
tours are available.
3. Jones has never intended to own equipment. He makes reservations, and gets a price from the charter-party
carrier. He believes his operations are those of a broker. Jones books people into hotels and restaurants, as well as tours,
in an effort to fill every entertainment need of travelers when they arrive in San Francisco.
4. The name "Tower Tours" is shown on some of the tickets which Tower sells for the tours it books. The Super
Sightseeing buses which transport the passengers Tower books have their own company names appearing on each bus,
with "Tower Tours" in small letters also shown on "a couple of them." The TCP operator also markets its own passengers, so that the passenger mix on a particular tour will contain riders booked both by Tower and by the bus owner.
5. Tower also accommodates customers who are referred to Tower by hotels in the downtown area; and Tower
compensates the hotels for this referral [*5] service.
The Transportation Division representative asked the ALJ to take official notice of Public Utilities (PU) Code §
5401: "Charges for the transportation to be offered or afforded by a charter-party carrier of passengers shall be computed and assessed on a vehicle mileage or time of use basis, or on a combination thereof, . . . However, it is not lawful
for a charter-party carrier of passengers to, directly or through an agent or otherwise, or for a broker to, contract, agree,
or arrange to charge, or to demand or receive compensation, for the transportation offered or afforded which shall be
computed, charged, or assessed on an individual-fare basis, except . . . operators of round-trip sightseeing tour services
conducted under a permit issued pursuant to . . . Section 5384." Westfall stated that he views Tower's operations as a
carrier/subcarrier relationship, citing General Order (GO) 157. (GO 157-B contains rules and regulations governing
the operations of TCPs.) He also indicated that although Tower itself neither owns nor operates vehicles, since those
operators it engages are PUC-licensed carriers, it would not be a problem for Tower to comply with the insurance, safety, [*6] and other statutes ordinarily confronted by those tour companies who do operate their own equipment.
Exhibit 4 consists of two memoranda authored by the Commission's Legal Division in response to inquiries from
the Transportation Division concerning certain operations performed by persons advertising as TCPs. The Transportation Division relied on these memoranda when informing Tower that it is operating as a TCP and must secure a permit.
The first memorandum is dated August 1, 1988. It was in response to a query from the Transportation Division
regarding complaints against companies which advertise as charter-party carriers, but claim to be motor transportation
brokers until they are chartered for a job, at which time they hire carriers holding operating authority from the Commission. The August 1 memorandum responds by citing PU Code § 5360, which defines TCPs as "every person engaged
in the transportation of persons by motor vehicle for compensation, whether in common or contract carriage . . ." The
memorandum further states: "As you described the activities of these companies, they are acting as brokers, getting
business and then hiring licensed carriers to do the actual [*7] work. These companies would seem to be 'engaged in
the transportation of persons by motor vehicle' by virtue of the active nature of their solicitation."
This memorandum refers to the Business and Professions Code (Sections 17540-17540.13) as the provision in state
law dealing with brokers for the transportation of persons, where such persons are defined solely in terms of air and sea
travel.
Page 3
The second memorandum, dated September 21, 1989 addresses a situation involving advertising by a person who
conveys an impression that the person itself is the TCP.
Discussion
Tower does not advertise its operations as those of a TCP in the telephone directory, or in a trade journal. Its intentions appear to be plainly set forth in Exhibits 1 and 2, which state that it is an "agency" and "full service tour coordinator."
After careful consideration of the issue, and for the reasons explained below, we conclude that a person who acts as
a broker or agent and sells tickets for tours operated by other persons who hold TCP authority does not thereby become
a charter-party carrier. In arriving at this conclusion, we first consider, by way of analogy, the statutory scheme governing [*8] carriers of property.
Section 5360 of the PU Code defines the term "charter-party carrier":
Subject to the exclusions of Section 5353, "charter-party carrier of passengers" means every person engaged in the
transportation of persons by motor vehicle for compensation, whether in common or contract carriage, over any public
highway in this state.
Section 3511 of the PU Code uses similar language to define the term "highway carrier" (a carrier of property):
"Highway carrier" means every corporation or person . . . engaged in transportation of property for compensation or
hire as a business over any public highway in this state by means of motor vehicle, except that "highway carrier" does
not include [exceptions omitted].
Highway carriers are regulated, inter alia, under the Highway Carriers' Act, PU Code §§ 3501-3811.
Section 4808 of the PU Code defines the term "motor transportation broker":
As used in this chapter, "motor transportation broker" includes any person or corporation . . . arranging or offering
to arrange for the transportation of property for compensation by any motor carrier over the highways of this state.
Motor transportation brokers are regulated under the [*9] Motor Transportation Brokers' Act, PU Code §§
4801-4875, not as highway carriers under the separate statutory scheme of the Highway Carriers' Act. This is so even
though the Highway Carriers' Act does not expressly exclude "motor transportation brokers" from the definition of
"highway carrier." (Nor does the Motor Transportation Brokers' Act anywhere expressly state that motor transportation
brokers are not to be regulated as highway carriers.) From this, we conclude that although § 3511's definition of "highway carrier" is broad, it is not so broad as to encompass brokers of property transportation. n1
n1 Where the legislature wants a type of entity that fits within a statutory definition to be regulated under a
different statutory scheme, it does so by express exclusion. Thus, for example, the definition of "charter-party
carrier" contained in § 5360 is broad enough to cover "passenger stage corporations" except that they are excluded from coverage by PU Code § 5353(c) so that they are regulated only as passenger stage corporations.
We now return to the language of § 5360 defining "charter-party carrier." Its language is very similar to that of §
3511, except that [*10] § 3511 covers carriers of property, while § 5360 covers carriers of passengers. In light of our
above analysis, we conclude that § 5360's broad language is not so broad as to encompass brokers of passenger transportation (or agents selling tickets for passenger transportation provided by others). We reach this conclusion even
though there is no provision in the PU Code providing for our regulation of such passenger transportation brokers or
agents. This fact does not cause us to conclude that the Passenger Charter-party Carriers' Act should be construed
more broadly than the Highway Carriers' Act; rather, we conclude that the Legislature simply has not given the task of
regulating such entities to this Commission.
Someone who operates no vehicles, does not hold out nor advertise itself as a TCP, and does little more than book
space and sell tickets for a TCP is not operating as a TCP and is not subject to the jurisdiction of this Commission.
We understand the TCPs who coordinate with Tower are paying marketing fees, or commissions, to Tower in large
part for its convenient and strategic location at Fisherman's Wharf, an area especially busy with foot traffic providing
opportunity [*11] for more effective marketing and ticket-selling activity than the TCPs themselves may have. When
Page 4
a person clearly states to the public that it is a tour coordinator, one who engages TCPs, it is not advertising nor representing itself as a TCP.
Although the statement shown in Exhibit 1 (brochure) indicates that Tower operates as a full service tour coordinator and "charters" only fully-insured PUC TCP licensed coaches, Jones' testimony is that Tower does nothing more than
simply sell tickets to any tourist customer, whether via bus, helicopter or vessel, working for TCPs, etc. on a commission basis. Its service is not much different from that performed by the hotels which refer customers to Tower, except
that Tower also sells the tour ticket.
Thus, for the most part, Tower appears to be engaged in an unregulated business as a tour coordinator or broker.
But Jones stated that the name "Tower Tours" is shown on some of the tickets it sells, as well as on some of the buses.
This concerns us, as does some of the wording on the brochure (Exhibit 1).
We will deny the application, provided Tower clarifies its holding out to unequivocally convey to the public that it
is merely an agent [*12] of the carriers it represents. This clarification can be achieved by Tower.
1. Showing the word "agent" after "Tower Tours" on the tickets it sells or removing its name from the tickets;
2. Removing its name from buses operated by carriers for whom it sells tickets;
3. Amending the brochure (Exhibit 1) which indicates that it "charters" fully-insured PUC/TCP licensed coaches,
so that it no longer states that it charters buses. Tower may state that it books seating space, or sells tickets for TCPs.
We note that this proceeding arose from a complaint to the Transportation Division. Jones testified that there are
50 "destination management companies" in the Bay Area, providing the same service engaged in by Tower. If the TCP
industry believes itself to be experiencing problems because of activities such as those engaged in by the applicant, it
should pursue an appropriate remedy with the Legislature, which enacted the Passenger Charter-party Carriers' Act in
1961.
Since this application was filed at the instance of the Transportation Division, and has apparently proven to be unnecessary, the applicant's filing fee should be returned.
Comments
In accordance with PU [*13] Code § 311, the ALJ's proposed decision was mailed to the parties on March 29 for
comments. None were filed.
Findings of Fact
1. Tower has filed an application for authority to operate as a TCP or, alternatively, for exemption from the provisions of the Charter Party Carrier Act requiring it to secure such authority.
2. Tower's activities involve marketing, i.e., selling tickets for the account of several TCP operators, as well as for
vessel and helicopter tours.
3. Tower does not own nor operate motor vehicles for the transportation of passengers.
4. Tower does not advertise in the telephone directory, trade journals, nor any other medium, or otherwise represent itself as a TCP. The advertising it engages in consists of a brochure which states it operates as a full service tour
coordinator chartering only fully-insured PUC TCP-licensed coaches.
5. Tower's name does appear on tickets and on some buses.
Conclusions of Law
1. Tower's operations are generally not those of a TCP, but are in fact those of a broker or agent.
2. Tower's application for TCP authority should be dismissed, and its filing fee refunded, provided Tower clarifies
its holding out within [*14] 60 days of the effective date of this order by:
1. Showing the word "agent" after "Tower Tours" on the tickets it sells or removing its name from the tickets it
sells;
2. Removing its name from buses operated by carriers for whom it sells tickets;
Page 5
3. Amending the brochure (Exhibit 1) which indicates that it "charters" fully-insured PUC/TCP licensed coaches,
so that it no longer states that it charters buses. Tower may state that it books seating space, or sells tickets for TCPs.
3. The Transportation Division should be directed to monitor Tower's compliance with Conclusion of Law 2, and
report to the Executive Director whether Tower has complied therewith. If Tower has complied with Conclusion of
Law 2, its filing fee should be refunded. If it has not complied, it will be issued appropriate charter-party authority.
ORDER
IT IS ORDERED that:
1. Upon receipt of information from the Transportation Division that the applicant has complied with the provisions of Conclusion of Law 2 within 60 days of the effective date of this order, the Executive Director shall refund the
filing fee paid by Golden Bay Tour Company, doing business as Tower Tours Agency, and the application [*15] shall
be dismissed.
2. If the applicant has not complied with the provisions of Conclusion of Law 2 within 60 days of the effective
date of this order, the Executive Director shall issue the requested charter-party carrier authority, subject to the usual
conditions and requirements applicable in connection with the issuance of such authority.
This order is effective today.
Dated June 3, 1993, at San Francisco, California.
Legal Topics:
For related research and practice materials, see the following legal topics:
Energy & Utilities LawUtility CompaniesGeneral OverviewTransportation LawAir TransportationChartersTransportation LawAir TransportationRotorcraft
Exhibit I
DWT 22084375v1 0096932-000004
Page 1
5 of 5 DOCUMENTS
Order Instituting Rulemaking concerning the regulation of passenger carrier services
Decision No. 89-10-028, R.88-03-012 (Filed March 9, 1988)
October 12, 1989
PANEL: [*1]
G. Mitchell Wilk, President; Frederick R. Duda, Stanley W. Hulett, John B. Ohanian, Patricia M. Eckert, Commissioners
OPINION: OPINION
I. Summary
In the past ten years, the transportation of passengers in vans (on-call service) has evolved from an exception to our
timetable filing requirements into a popular, thriving market, especially at airports. The Commission's attention was
drawn to this market by frequent carrier complaints of unlicensed carriers and unlawfully operating licensed carriers at
major airports. In response to these complaints, we ordered our Transportation Division (TD) to investigate. TD recommended revising the rules and procedures governing all passenger carrier services. As a result, this rulemaking was
instituted in which we now adopt changes to these rules.
This decision cancels General Orders (GOs) 79 (Construction and Filing of Passenger Tariffs Issued by Passenger
Stage Corporations) and 98-A (Rules and Regulations Governing the Operations of Passenger Stage Corporations and
Passenger Charter-Party Carriers). GO 98-A is replaced by GO 157 (Rules and Regulations Governing the Operations
of Charter-Party Carriers of Passengers) and GO 158 (Rules [*2] and Regulations Governing the Operations of Passenger Stage Corporations). The new GOs are attached as Appendixes A and B, respectively. In addition, we revise
Rule 15(f), now renumbered 15(e), to require that only carriers operating solely intrastate must submit certain exhibits
with abandonment applications (Appendix C).
In summary, our new rules and procedures acknowledge the development of new passenger transportation services
and set service requirements based upon the stage of development of each category of service--scheduled, on-call, and
chartered. On-call service is still undergoing development. This new service warrants a less definitive service classification to allow it to grow as public demand dictates. Scheduled service and chartered service, on the other hand, are
expressly defined by longstanding passenger usage and regulatory history. Scheduled service is defined as service under a timetable provided to specific places at specific times. Chartered service is defined as prearranged exclusive use
service. On-call service is unscheduled service and undefined in these regulations.
Carrier solicitation at airports was the source of most complaints. We believe [*3] defining "solicitation" will
duplicate and interfere with airport jurisdiction and future airport regulation established to resolve congestion problems
and facilities constraints. We reject arguments made by the limousine carriers that we should decline to apply City of
Oakland v Burns (1956) 46 C 2d 401 (hereinafter City of Oakland) in order to assert jurisdiction over limousines operating on airport property. In our view such operations remain under the jurisdiction of the airports.
In spite of our regulatory treatment of on-call service and solicitation, we do not condone unlicensed service or unlawful operations by licensed carriers. We provide rules to better identify such carriers and authorize joint enforcement
of airport authority regulations intended to address safety and congestion problems. Carriers violating such airport
Page 2
rules are not operating in the public interest. Future recommendations from our TD for procedural mechanisms to
strengthen joint enforcement are encouraged.
We decline to limit entry of carriers to airport service because a greater need for more transportation service is created by the increase in air passengers since airline deregulation [*4] in 1978. We believe such action to be premature
until airport traffic and facilities studies presently in progress are complete.
Certain issues argued in this proceeding are moot due to recent legislation. Courtesy vans have been exempted
from Commission regulation and cooperative safety efforts between the Commission and the Department of Motor Vehicles (DMV) and California Highway Patrol (CHP) have been mandated. (Public Utilities (PU) Code § 5353 and the
Public Utilities Safety Enforcement Act of 1988 (the Act).)
We make no findings in this proceeding on whether wheelchair accessible service is needed statewide. We order a
TD survey and report containing recommendations on the need for service and impact of ordering such service. This
report shall be submitted to our Executive Director and parties in this proceeding within 270 days of the effective date
of this order. This report will guide our decision on how to pursue this issue, if necessary.
We hold this docket open to approve revised Rule 15(e) after Government Code requirements are met.
II. Procedural Background
On March 9, 1988, the Commission instituted this rulemaking proceeding to consider proposed changes [*5] in
the regulation of passenger carrier services. Attached to the order was the TD's February, 1988 report. TD recommended cancelling GOs 79 and 98-A, implementing new GOs 157 and 158 and revising Rule 15(f) of the Commission's
Rules of Practice and Procedure. TD concluded that changes in passenger stage carrier regulation to resolve problems
occurring at the airports would necessarily affect charter-party carriers. Therefore, the order and attached TD report was
mailed to both passenger stage and charter-party carriers, as respondents, and interested parties for their comments.
The date for filing opening comments was extended from May 9, 1988 to July 8, 1988 upon the request of the California Bus Association (CBA) and Greyhound. This extension was based upon the need for further informal discussion of the proposed rules before comments.
Opening comments were received from 16 respondents and interested parties on or before July 8, 1988. On July
18, 1988, a list of commenters was mailed to each party who filed opening comments with instructions to mail a copy of
the respective comments to all other commenters by July 28, 1988.
On August 15, 1988, Greyhound Lines Company and [*6] Western Greyhound Lines (Greyhound) were granted
the opportunity to file late comments.
On August 29, 1988, reply comments were received from six respondents and interested parties.
On October 5, 1988, Greyhound's request to file a reply to TD's modified recommendations was granted and limited to three pages. There was no objection to this request. As requested, Greyhound notified all commenters of the
opportunity to file similar replies. On October 13, 1988, Greyhound filed a second reply.
III. Overview
As of February 1988, the Commission had 170 licensed passenger stage corporations (PSCs) and 1,670 charter-party carriers (TCPs) in good standing. Equipment ranges from small sedans, limousines, and vans, to large buses.
In addition, effective January 1, 1988, the six-passenger seat minimum criteria was removed from Public Utilities (PU)
Code § 5359 causing the Commission to regulate all privately owned commercial passenger vehicle operations other
than services exempted under other provisions of the PU Code.
Prior to 1976, passenger stage carriers were of one type: scheduled carriers operating from fixed termini on regular
routes in large buses with monopoly service. [*7] In passenger stage service a market shift has occurred from tightly
regulated, monopoly provision of large bus scheduled service to the present more loosely regulated, competitive, and
multi-service market.
Tremendous growth in airline travel and related ground transportation has occurred since airline deregulation in
1978. With this growth has come competition between scheduled service and on-call service and among on-call services as well. As a result, applications for new carrier authority, requests for service changes, and competitor com-
Page 3
plaint proceedings have increased. Seventy-one percent of all passenger stage formal filings in 1987 related to airport
access service.
Specific milestones in the Commission's regulatory policy to adjust to the new competitive environment have been:
the 1976 granting of on-call mini-bus passenger stage service from downtown San Francisco to the airport (Lorrie's,
Decision (D.) 86121 in Application 55983); the 1980 introduction of direct competition in the intercity bus market
(American Buslines, D.91279); and, the 1985 Commission decision directly addressing the interplay between public
demand for alternative transportation service [*8] and strict enforcement of technical tariff violations. (Wilmington
Cab Company, D.85-10-024.) Thus, by 1985, the Commission had granted passenger stage certificates for competitive
mini-buses and on-call vans, changing the tradition of using large buses to the new modes of transportation demanded
by the public.
The Commission recognized the increasing problems of the rapidly changing and competitive airport market in the
Wilmington Cab Company decision (Ibid.) Airports with limited roadways were becoming increasingly congested.
The growth in numbers of air passengers at airports was attracting unlicensed operators and enticing carriers to violate
certification boundaries of their authority.
The new minibus and van services were still governed by outdated GOs 79 and 98-A which set operating standards
for buses and trolleys. The Commission ordered TD to review GO 98 and the issues of solicitation and on-call service
and, if appropriate, recommend a rulemaking proceeding:
"Although the Commission has not attempted to regulate passenger solicitation in any comprehensive or specific
manner, we recognize that solicitation practices may pose serious regulatory problems in maintaining [*9] a level
playing field for PSCs [passenger stage carriers] so that competition may effectively serve the diverse needs of passengers. When viewing on-call PSC services in competition with scheduled PSC services we must be aware of how solicitation practices may affect the sustainability of both services at reasonable rates, recognizing that the investment requirements for sustainability may differ greatly between the two. (D.85-10-024, at p. 19a.)
"Further, we will direct our Transportation Division to review the issue of solicitation of passengers by PSCs in the
context described above and to make recommendations for curbing those solicitation practices that are incompatible
with maintaining a level playing field for the sustaining of competitive forms of PSC services. For the present we
would proscribe all passenger stage carriers and their agents from knowingly and personally initiating solicitations of
persons and diverting such persons who otherwise would have been passengers of another carrier embarking from a
specific location. (At p. 19.)
"During the hearings, Rouse noted that G.O. Series 98 was difficult to follow. It describes trolley and bus operations, but it does [*10] not specifically address on-call van operations. The record in these proceedings indicates a
need to revise and update that general order to describe categories of service and to address general criteria including
better definitions of types of service, record keeping, lighting, permissible activities, and impermissible activities, and
applicability of provisions of different types of operations. This would provide the carriers with general guidelines for
their operations and provide the Commission and its staff with a better framework for evaluation of certificates." (At p.
26.)
The TD investigation of solicitation and other competitive behavior issues in the on-call airport access market resulted in the "Report on On-call Airport Ground Transportation Services" which was issued in April 1987. This workpaper was circulated to all carriers and interested parties to obtain suggestions before TD made recommendations to the
Commission. The workpaper's cover memo by then Director Norman Kelley concluded:
"It is important to recognize that the public has greatly benefitted from on-call airport shuttle service, especially in
the Los Angeles and San Francisco metropolitan areas. This [*11] growing industry was not created because of our
regulations but, in many respects, in spite of them. But at this time, acceptance has grown to the point that, in certain
areas, shuttles are the de facto base line service. It is correct that the growth of shuttle services has at times worked to
the disadvantage of traditional scheduled bus service. However, an attempt to develop a policy that would 'establish a
level playing field' could easily become a protective-oriented compromise that may very well stifle innovation and allow neither service to work to its full potential. It is time to consider the two basic policy options:
"(1) to develop a regulatory mechanism that attempts coexistence of on-call and scheduled service, or
"(2) to minimize economic control of all airport services, and address primarily public safety issues.
Page 4
"In my view, the public can best be served in this particular instance by minimal government involvement, limited
to public safety concerns."
In written remarks and workshops pursuant to this workpaper, major issues raised by parties were:
* Lack of Commission enforcement against illegal carriers.
* Need for the Commission to clearly articulate rules [*12] and regulations that will be uniformly enforced.
* Concerns that airports discriminate in treatment of carriers, unnecessarily restrict their movements, and do not allow the traveling public full information and access to services.
* High insurance premiums for Commission-licensed carriers.
* Requests for strengthened safety regulation.
Los Angeles, San Francisco, Sacramento, and San Diego airports, which are presently experiencing ground transportation problems, are all receptive to increased Commission/airport agency coordination.
Large bus scheduled carriers, both urban and suburban, generally requested tighter economic regulation. Their remarks suggested limiting market entry, protecting service routes, adopting restricted and uniform on-call service definitions, and working to eliminate driver solicitation of passengers waiting for other carriers. Cost based rate regulation
was favored by most; a few advocated rate windows and rate deregulation. Those who addressed regulating payment
of commissions and discounts were divided in their opinions. Carriers cited the public policy goal of promoting mass
transportation as they requested regulatory protection. On-call vans [*13] were viewed as an inexpensive taxi-type
service which threatened the economic viability of scheduled carriers. The remarks of taxi organizations supported
recommendations for on-call limitations. A notable exception to the scheduled carrier position was Greyhound, which
recommended limiting Commission regulation to safety and insurance issues.
On-call carriers cited the positive public response to their services and generally recommended limiting regulation
to safety and insurance concerns. One carrier recommended that where undesirable competitive behavior, specifically
solicitation, is a concern, individual hotels and airports were the entities best suited to regulate access to their property.
Charter-party carriers were represented by a cross-section of services: courtesy vehicles, limousines, vans, and
large buses. A common and emphatic theme was that no additional regulatory requirements should be imposed. Most
carriers expressed satisfaction with the present regulatory structure. Several limousine owners requested that the
Commission reconsider its policy of requiring carriers to obtain airport authorization for operation on airport property.
They argued these roadways [*14] were public and Commission jurisdiction preempted any airport authority regulations. Los Angeles International Airport's (LAX) new charter regulations were of specific concern.
A separate jurisdictional issue was raised regarding Commission licensing of vehicles providing "courtesy" shuttle
service to customers of a primary business, such as hotel/motels, rental car companies, and off-airport parking lots.
The Commission was requested to reconsider its present position of requiring these companies to obtain charter-party
permits. (D.87-06-049,
Application of Thrifty Rent-a-Car, Inc.)
Five airport authorities participated in the informal public comment on TD's workpaper. Each is active in regulation of Commission licensed carriers operating on its property. San Francisco and Orange Counties have exclusive
carrier agreements, Los Angeles and San Diego have an open entry policy with specific licensing and operating requirements, and Sacramento has a single vehicle queueing system for on-call vans. All generally favor full-size bus
scheduled service over on-call vans and have strong concerns about solicitation practices and limited Commission enforcement actions. Each airport [*15] authority indicates some level of facility engineering constraints. Most expressed disagreement with the Commission's open entry policies and lack of a uniform definition for on-call service.
LAX suggested that the Commission, in its revised general orders, should specifically define charter-party service as
"prearranged."
Other suggestions in the investigation phase of this proceeding were from public and private planning regulatory
organizations. Their remarks supported maintaining full-size bus scheduled carriers and emphasized the need for
long-range transit planning.
Page 5
Thus, TD conducted a thorough dialogue with the industry and related airport authorities prior to making its formal
recommendations. After the workshops, TD issued a "Report On Passenger Carrier Programs and Recommendations for
Commission Order Instituting Rulemaking Proceeding." Subsequently, this rulemaking was ordered. The Commission
clearly stated that the TD report was intended as a starting point for discussion of the issues and not an indication that
TD's conclusions were endorsed by the Commission.
After the issuance of the rulemaking proceeding, the formal comments received from interested parties [*16] mirror the concerns voiced in informal comments and workshops. However, all parties agree that GO 79 and GO 98-A are
in need of updating, revision, and clarification.
IV. On-Call Service
Under GO 98-A, every passenger stage carrier, except those operating in urban service, must file timetables. (§§
11.01 and 11.04.) On-call carriers do not operate under a timetable, and therefore, have not been made subject to this
requirement. However, they are required to file tariffs containing hours of service, fares, points served, and conditions
of service. (GO 79.) On-call service is not defined in GO 98-A or GO 79.
Parties in this proceeding request a definition of on-call service to prevent pricing, scheduling, and solicitation
abuse by on-call carriers. Parties request a definition of on-call service which includes a requirement that this service be
"prearranged" to avoid circumvention of timetable filing requirements.
TD does not support this position because it conflicts with the Commission-stated goal of encouraging innovative
and varied transportation services. In TD's opinion, the public should always have the option of immediate service
from a common carrier, though [*17] it may be conditioned upon service being provided on a space-available basis.
TD describes "on-call" service as shared-ride, individual fare service that is customer-initiated by prior reservation,
stand-hail, or approaching a parked vehicle. The service is usually provided by vans or limos and is demand responsive at both service origination and destination.
In proposed GO 158, TD uses the statutory definition of passenger stage service contained in PU Code § 226: any
common carrier for compensation traveling over any public highway between fixed termini or over a regular route. (§
2.02.) Scheduled service is expressly defined as all service provided to "specific places at specific times". (§ 2.05.)
Scheduled carriers are required to file timetables. (§ 8.01.) On-call service is not performed at specific places or specific
times. Thus, proposed GO 158 leaves on-call service as undefined, nonscheduled service with no requirement that
on-call carriers file timetables. In essence, TD retains the exclusion from timetable filing for on-call service provided in
our interpretation of GO 98-A. TD distinguishes on-call service from charter-party service by requiring that charter-party [*18] service be "prearranged."
TD recommends that proposed carrier service be placed into the proper classification of scheduled passenger stage,
on-call passenger stage or prearranged charter-party service in the application proceeding where approval of the service
is being requested. Thereafter, a carrier is limited by the classification, terms, and conditions of service contained in
the Commission certificate. The public will be informed of a passenger stage carrier's classification and terms and conditions of the service through TD's proposed posting requirements. (GO 158, § 8.04.)
SuperShuttle supports TD's recommendation for flexible definitions, but would amplify the demarcation between
scheduled and nonscheduled service based upon its practical experience. Many hotels, for example, have asked SuperShuttle to have a van available for boarding at all times between certain hours. The service has technically been
"prearranged" (the number of vans at any hotel in a given day will depend totally on customer demand) and thereby
satisfies the essential criteria of charter transportation. But, it could be characterized as "fill-and-go" and thus possibly
fall within "scheduled" service. [*19] The public will not benefit by such a characterization, in SuperShuttle's opinion, because the result is that the serving carrier will have to file schedules with the Commission and adhere to those
schedules when all the hotel really wants is the ability to designate the frequency of service itself (based on guest demand) without having to call the carrier each time service is required.
SuperShuttle explains that a hotel concierge can call an on-call carrier every 20 minutes and request service, then
cancel the trip if no guest is ready to go to the airport. Or, the hotel can simply ask the carrier to have a van available
every 20 minutes during certain hours until further notice. While the latter course clearly makes the most sense, SuperShuttle questions whether it results in "prearranged" charter party service or "scheduled" passenger stage service?
According to SuperShuttle, the hotel will not care how the service is characterized and the question to be addressed in
this rulemaking is whether the Commission should care.
Page 6
SuperShuttle recommends that if "on call" is to be defined broadly by implying it is "nonscheduled," it may make
sense to define "scheduled" quite narrowly [*20] by employing the present language in § 2.05 of the proposed GO 158
(specific places at specific times) but adding the phrase, "for which no prior arrangement has been made." With this
modification, the term "scheduled service" would include service rendered under a carrier's operating authority and filed
timetable, but exclude service that is provided at a particular facility at a frequency and under conditions determined by
the operator of the facility in cooperation with the carrier.
In its reply comments, TD does not adopt this suggested revision and does not explain why it was rejected.
City of Los Angeles Department of Transportation (LADOT) opposes TD's reluctance to define "on-call" service.
LADOT contends that with the privileges of a passenger stage certificate come the responsibilities. LADOT prefers a
definition for "nonscheduled service" which is broad. If a PSC holds itself out to provide service within any stated
minimum advance reservation time, the PSC is mandated to provide that service. According to LADOT, currently applicants are seeking vast service areas, which they propose to serve with minimal equipment and driver supervision,
apparently planning to provide [*21] only service they deem will be conveniently profitable. In LADOT's opinion, a
definition of "on-call" service should include the necessity of fulfilling all appropriate requests for service in a timely
manner.
LADOT believes that TD in proposing minimal regulation expects competition to assure good service. It does not
agree that this ideal will be achieved in on-call passenger transportation. Based on its experience, LADOT recommends
that the Commission adopt regulations for on-call service and increase its enforcement personnel if the Commission
encourages on-call PSCs.
FunBus Systems, Inc. (FunBus) believes that TD's refusal to define on-call service to conform to the general representations that were made to the Commission when authority was granted would promote wholesale violations of the
law. FunBus advocates applying pricing and discrimination prohibitions to on-call carriers. FunBus believes that including "prearrangement" in a definition of on-call service would go a long way toward eliminating solicitation and
other complaints.
Discussion
It is true that defining on-call service as "prearranged" may eliminate some solicitation. However, it places the burden [*22] on the passenger to prearrange departures from the airport, which would be impractical. A traveler would
be prohibited from using on-call service readily available to depart the airport because advance preparations had not
been made. It would be an inefficient use of transportation services to prohibit an on-call carrier from servicing such a
passenger.
Requiring on-call carriers to file timetables is contradictory to the nature of the service which the public is demanding. Based upon the growth of this service, the public obviously desires door-to-door transportation which is
available upon short notice and will continue to require information regarding hours of operation.
SuperShuttle's example of hotel van service available for boarding at all times between certain hours is a prime
example of why General Order definitions should be broad and why classification of service is best determined on a
case-by-case basis. On-call services may be developed which do not clearly fall within any definition which we may
adopt. However, if the suggestion by SuperShuttle is adopted, then it is necessary to define "prior arrangement" placing us in a position of setting time parameters. [*23] We do not have sufficient evidence to determine what these time
limits should be and we believe any time limit we set will prevent carriers from serving last minute requests, leaving
such passengers without transportation.
We do not believe restrictive definitions will allow the flexibility of regulation to promote innovative service that
we seek to achieve in these new GOs. Obviously, it is unscheduled passenger stage service that is in a state of development to meet the increased public need at airports. It is better to define scheduled service and leave unscheduled service undefined than to unreasonably constrain future new services which do not operate by schedules. Broad language
in our General Order allows for this development of new services. These new services may be evaluated and properly
classified in the application process. Therefore, we agree with TD's approach to define scheduled service without time
limits and leave nonscheduled service undefined. This provides a level playing field and room for innovative on-call
service.
Page 7
Abuse of the flexible definition of on-call service herein adopted will be minimized by TD's proposed vehicle identification requirements, [*24] posting of approved services and enforcement recommendations. We discuss enforcement, vehicle identification, and the posting of schedules and services below.
Although we do not deny that LADOT's concern regarding timely service in a competitive environment is a legitimate one, we have no indication that it involves every passenger stage carrier. We believe the issue of unsatisfactory
service proposals can be addressed in the Commission application proceeding and unsatisfactory service operations in
the complaint proceeding.
V. Solicitation
Solicitation abuse constitutes the majority of airport service complaints which are filed at the Commission. In the
commenting parties' examples of this behavior, the carriers' drivers are the abusers in all instances. Drivers engage in
solicitation by announcing the destination of a vehicle to waiting passengers or approaching passengers, sometimes
rudely, to persuade them to board their vehicles. In addition, drivers of services with dual passenger stage and charter-party authority form "ad hoc" groups at the airport in order to use the charter-party authority to transport the passengers.
San Francisco International Airport (SFO) [*25] provided a summary of carrier-related problems it has encountered. There are 150 carriers providing service to SFO. SFO permits only one operator to solicit business at the airport. On-call driver fights have occurred in passenger loading zones. On-call carriers' repeated circling the airport
through passenger loading zones, waiting in loading zones, and double parking cause crowded conditions and hindrance
in the flow of airport traffic. As a result, SFO has stationed airport police at on-call carriers' loading zones for 16 hours
each day, increasing its operating costs by $ 500,000 annually. SFO implemented an admonishment program in 1987
and has issued an average of over 500 traffic violation admonishments per week to on-call carriers. Traffic at SFO is so
heavy that it is currently reassessing the efficient use of its roadways.
TD describes solicitation as "any driver-initiated contact with the public." TD's "Report on On-Call Ground Transportation Services" (the workpaper) documents the difficulty of regulating competitive behavior and concludes on page
23:
"Rules directly proscribing certain solicitation practices, fleeting and transient behavior, are most difficult [*26] to
enforce, are not warranted in the public interest, and are not appropriate as tools of economic regulation. Rules such as
stop restrictions are also controversial, but stop restrictions are enforceable, because infractions can be easily verified."
TD indicates in its formal comments that its Compliance and Enforcement Branch cannot effectively enforce antisolicitation or stop-protection rules at airports or hotels without a significant increase in personnel. TD cites policy
concerns in attempting to define proper versus improper solicitation and in denying the public access to a carrier of
choice. TD does not propose any rules proscribing this behavior; however, TD does not encourage or promote driver-initiated public contact and will require strong justification of any tariff which includes such a provision in a service
definition. In TD's opinion, concerns regarding diversion of passengers who otherwise would have been customers of
another carrier at a specific location are more appropriately and effectively dealt with by a concerned carrier using dedicated private stops, advertising, pricing, ticketing, and/or increasing frequency of service.
TD believes that solicitation [*27] problems at airports are best handled by airport authorities who have defined
carrier operating standards, including solicitation, specific to their facility needs and on-site enforcement presence. TD
recommends that the Commission's role should be a supportive one, but believes that documented cases of repeated
carrier violation of any airport regulation by airport authorities can be grounds for Commission denial, restriction, or
revocation of carrier authority.
LADOT disagrees and recommends that the place and terms of solicitation must be in the carrier's tariffs.
Parties commenting on this issue agreed that violation of airport solicitation standards should be grounds for Commission suspension, revocation, and/or fines and that airport authority complaints carry sufficient weight to invoke these
sanctions. Limousine Owners Association (Limousine Owners) recommended that penalties for this behavior be stiffer
than those presently applied.
Discussion
Page 8
It is true that for the past few years airport congestion has increased. Commission licensed on-call carriers play a
part in this problem, but we do not believe they are the direct cause. TD points out the tremendous airline [*28] passenger increase since airline deregulation in 1978. It is this increased public need for transportation services which is
the root of airport congestion. This Commission has continued to license on-call airport carriers to serve this increased
public need. Given our statutory responsibility of assuring that the public has adequate transportation service, we believe this policy decision is justified and proper. We believe that the airport authorities are taking proper action by reassessing facility constraints and studying new ways to improve congestion problems. Airport authorities have existing
standards of carrier operations on airport property which, like our GOs, are being or have been revised and updated to
meet these new challenges that on-call service presents. We believe we are both on the right track in seeking to accommodate a new type of transportation service which has developed in response to public demand. We can understand SFO's preference for scheduled service because it is predictable and easier to regulate. However, we cannot ignore public demand for on-call service.
Airport authorities have already defined solicitation or outlined prohibitions regarding [*29] solicitation in their
regulations and they have the necessary on-site enforcement capability. We are concerned that any definitions of solicitation that we may adopt and our ensuing case-by-case interpretation of our definition will conflict with existing and
future airport regulations. Therefore, we agree with TD that defining solicitation is best left to airport authorities.
However, it is not in the public interest for the Commission to allow unlicensed carriers or carriers creating unsafe
traffic conditions to operate on airport property.
PU Code §§ 1034 and 5379.5 allow any party to file a complaint against an unlicensed passenger stage or charter-party carrier and seek an immediate cease and desist order from the Commission for such behavior pending further
Commission order.
Given the airport congested conditions, we cannot ignore carriers operating on airport property who persist in violating airport authority regulations established to address congestion, such as stop restrictions, loading and unloading
zones, and parking regulations. Such carriers do not serve the public interest by adding to passenger service delays and
creating unsafe traffic conditions at the airports. [*30] We consider this area one in which we should aid the enforcement of airport regulations. Therefore, where airport authorities are unable to correct such behavior by their internal enforcement procedures, these carriers should be reported to our TD Compliance and Enforcement Branch for investigation of violations of GO 157, § 3.02 and GO 158, § 3.01. This supportive Commission enforcement is recommended by TD. Airport authorities must submit to the Commission documentation to show that internal enforcement
procedures have been followed and have failed to correct the carrier's violations. This documentation showing violation of our GOs provides good cause to suspend carrier operations under PU Code § 1033.5(a) and § 5378.(a).
The respondents recommend that Commission sanctions of suspension, revocation, and fines be invoked for violation of airport solicitation standards. We decline to find that solicitation, per se, is harmful to the public interest for
reasons discussed above. However, where acts of solicitation include violation of airport parking or traffic regulation
and airport enforcement procedures fail, we consider this behavior to also violate the operating standards [*31] at airports, contained in the GOs adopted herein, as discussed above.
We adopt TD's recommendation that we support airport authority enforcement in the areas of our mutual concerns.
However, we have no specific joint enforcement plan presented in this record. We desire that TD work closely with
airport authorities to develop a specific joint enforcement program. For the present time, we order that joint Commission/airport enforcement be conducted under existing Commission enforcement procedures. Suspension, revocation,
and the imposition of fines shall apply to found violations. Should the existing procedures be inadequate, TD must
take the appropriate steps to change our procedures, such as recommending revisions to existing Rules of Procedure or
offering new Resolutions for our adoption.
With this clarification of airport/Commission mutual concerns, we shall amend TD's proposed Commission standards for carrier airport operations:
"OPERATIONS AT AIRPORTS. No carrier shall conduct any operations on the property of or into any airport unless such operations are authorized by both this Commission and the airport authority involved. Consistent failure to
comply with safety or [*32] traffic rules and regulations of an airport authority may result in suspension or revocation
of Commission operating authority." (GO 157, § 3.02 and GO 158, § 3.01.)
VI. Fitness and Safety
Page 9
Parties agreed that fitness to operate and safety standards should not be sacrificed in an industry that carries millions of passengers per year. The high number of trips with short-turn around times mean drivers must be qualified and
the maintenance of vehicles is crucial for public safety.
TD recommends that passenger stage and charter-party carriers comply with DMV and CHP standards for drivers
and equipment maintenance. No party disagreed with these requirements.
We agree that vehicle maintenance and driver's qualifications are a primary safety concerns as the number of air
passengers increases. TD's proposed rules for vehicles and drivers adequately address these concerns and we adopt
them. (GOs 157 and 158, §§ 4.02 and 5.01-5.04.)
VII. Certification
TD suggested that a standard form be derived for certification. LADOT did not oppose the standard form but
recommended that all Rule 21 requirements be kept. TD did not provide this form in this proceeding, but indicated that
[*33] it is being developed. We presume when this form is completed, TD will follow the appropriate Commission
procedures for implementation.
SFO strongly recommended that licensing of on-demand vans to the airport from any area be limited. The basis of
this request is congestion problems. As discussed above, we perceive increased air passengers to be the cause of this
problem. SFO suggests that a showing of public need for such requests be required and a showing that the existing
service is inadequate if there is scheduled service.
Under our present certification standards a carrier may show public need for transportation service at the airport by
presenting evidence of public support for the proposed service. We have long departed from approving only monopoly
service in order to accommodate competition between scheduled and on-call service. We believe this adjustment of
regulatory policy is the appropriate one and are not convinced that it should be reversed. Limiting the number of carriers to reduce airport congestion at the present time is a short-term solution which may jeopardize the adequacy of airport transportation service. Adopting short-term solutions may help the existing [*34] problems of solicitation and
congestion but create new ones. We believe better and more permanent solutions will be derived from the airport authority studies on traffic management and facility use which are in progress. Therefore, we shall not limit the entry of
carriers into airport transportation service pending the outcome of these studies.
TD indicates that airport authorities intend to file applications to set specific entry standards on an annual or biennial basis. We can understand another regulatory agency's frustration in attempting to place the entry issue before us.
However, only regulated public utilities may file applications at the Commission. We encourage airport authorities to
keep TD informed as airport studies progress. The results of these studies may prove helpful to reassess our decision
on carrier entry, should it be necessary. In the future, if TD agrees that carrier entry should be reviewed, the proper
procedure is for TD to request that a Commission investigation be instituted giving the reasons that such an order is
needed.
SFO recommends that only well-financed carriers be certified, offering SuperShuttle as an example of adequate financing. However, [*35] the Independent Limousine Operators (Independent) allege that denying smaller businesses the opportunity to compete is contrary to our goal of promoting efficient service through competition and will hinder
customer choice.
We agree that we cannot discriminate against small businesses. We also agree that financing must be adequate.
Adequate financing will depend on the size and extent of proposed operations. Such a determination can only be made
in an application proceeding on a case-by-case basis.
VIII. Charter-party Carriers
A. Prearranged Transportation
LAX raised a basic issue regarding the nature of charter-party operations. LAX requested the Commission specify
in its general order a requirement that charter-party operations be "prearranged".
TD agrees with this position and has included such a requirement in proposed GO 157 but does not define "prearranged." (§ 3.01.) The basic distinction between charter-party carriers and passenger stage corporations is that PSCs are
common carriers operating individual fare service under approved tariffs. Charter-party service, with the exception of
school bus contracts and sightseeing tours (PU § 5401) is prearranged, [*36] exclusive use services charging by the
Page 10
hour or mile. Commission decisions have been clear and consistent on this point. (D.82-05-069, D.83-09-048, and
D.87-10-086.)
Eldon M. Johnson, representing himself, recommends that the term "prearranged" be limited to a time period, giving several examples to justify this request. Johnson asks if it is "prearranged" transportation when a van driver approaches three or four uniformed military personnel at various points in an airport, and "hustles" them into the formation of an on-the-spot charter group so that a TCP permit can be used as the basis of the transportation performed?
Does the foregoing example change if the "hustling" is done within a minute or two of a scheduled departure of a PSC
that provides scheduled service between the airport and the involved military base? Should a stand-and-hail TCP carrier be allowed to similarly conduct a "group formation" at a curb at the airport typically used by on-call PSC carriers?
Johnson further recommends that any acceptable definition of the term "prearranged" should include a geographic
component that precludes "group formation" at or near the point of passenger pickup. In Johnson's [*37] opinion, a
suitable definition of the term "prearranged" should include a component that requires group formation by some identifiable person other than the TCP carrier itself. Johnson concludes that whatever the definition becomes, it should be
precise, with full knowledge that the definition will be evaded if at all possible.
Independent disagrees that charter-party service should be defined as "prearranged." Independent concedes that the
majority of their business is by prior demand and reservation, but they do have "stand-hail" customers where waiting
zones are allotted at hotels which would be precluded if prearrangement is required.
SuperShuttle points out that carriers have increasingly resorted to "shared ride charters," as in Johnson's examples
above, to circumvent restrictions on the carrier's passenger stage authority. Under such a scheme, the carrier picks up a
group of individuals at the airport who may or may not be traveling together. The carrier then transports them to various points under a hastily arranged "charter" arrangement. SuperShuttle points out that if the Commission continues to
ignore this type of activity as it has to date it will have effectively [*38] deregulated the airport ground transportation
industry. Since a charter-party permit is rarely geographically restricted n1 and since charter service cannot by law be
provided pursuant to tariffs (PU Code § 5375), SuperShuttle believes that the Commission's continued acquiescence in
the existence of shared ride charters will result in an increasing number of passengers who will be forced to pay fares
that are negotiated at the curbside. This type of fare arrangement will of course be financially injurious to those carriers whose fares are offered to the public at large through filed tariffs.
n1 Class B permits are restricted to 40-mile pickup and Class P permits are restricted to 50-mile pickup.
For these reasons, SuperShuttle recommends that the Commission modify the definition of "prearranged" by adding
the language, "from a single origination point to a single destination point."
SuperShuttle does not, however, endorse the proposals of some commentors that carriers not be permitted to provide service under charter authority unless some sort of minimum time period is established for an advance reservation.
If a carrier is willing to provide the exclusive use of its vehicle [*39] to a willing passenger, SuperShuttle believes
there is no point in requiring that passenger to meet some sort of minimum time period to use the vehicle. In SuperShuttle's opinion, a passenger willing to pay for the exclusive use of the vehicle should not have to meet such a requirement.
Discussion
"Prearranged" charter-party service is well defined in prior Commission decisions cited above. From Johnson's
examples, the person abusing this requirement is the carrier driver. To solve this problem, rather than specify a time
within which charter service must be arranged prior to the transportation being provided, TD prohibits any
"on-the-scene solicitation" and proposes strict document requirements to verify charter service.
For reasons discussed above, we do not adopt a definition of solicitation in these GOs. If we use the term anywhere in the GOs we defeat our previously stated purposes for excluding the term. Therefore, we shall remove the
phrase "on-the-scene solicitation" from the definition of charter-party service. (GO 157, § 3.01.) However, we shall
retain the verification recommendations.
We agree that time or geographic limits for prearrangement are difficult [*40] to set and this record contains insufficient information on this issue. We prefer, and SFO supports, TD's recommended waybill requirements to verify
that charter service has been prearranged. (GO 157, § 3.01.) These requirements are to ensure that charter-party drivers
Page 11
and carriers are not "hustling" passengers or organizing groups at the curb on airport property. Under these rules, only
carriers or drivers conducting lawful operations will be allowed to approach passengers. We believe tightening regulations which prescribe a carrier or driver's contact with passengers directly addresses the problem that is occurring rather
than unduly restricting the entire charter-party industry geographically or with time limits.
Johnson, Independent, and Limousine Owners oppose the waybill requirement as unreasonable. Both point out
that drivers do not have a written waybill because of the prevalence of radio dispatching. Nor do drivers have a need
for all of this information, according to Independent. Limousine Owners allege that the name and address of the person
arranging the charter is proprietary, confidential, and of no value.
In response to these protests, TD revised Proposed GO [*41] 157, § 3.01. The word "driver" was replaced by
"carrier." Johnson supported this revision but stated that opening carrier records to an airport employee was unreasonable. Johnson recommended that the section be further revised to limit an airport employee's inspection authority to
trips involving charter service at its particular airport.
SFO opposed TD's revision and recommended that the driver, not the carrier, be required to have a waybill for
on-the-spot verification of prearrangement by airport authorities. SFO currently requires that this information be
maintained by charter and limousine services. SFO does not believe its preference is unworkable since any driver reassigned in the field can fill out a waybill at that time, and it can be kept with the vehicle.
SFO believes that drivers meeting passengers who wish to remain anonymous can do so if the passenger corroborates the driver's reservation under the assumed name. Further, SFO points out that it keeps no records of the names so
they cannot be used to market an operator's clientele.
We agree that this information is valuable and needed for verification purposes at airports to resolve occurrences of
unlawful operations. [*42] We cannot agree that customers have any expectation of privacy in ordering charter-party
service. If a customer desires his/her name to remain confidential, he/she may make that request at the time service is
arranged or any time thereafter. The carrier, driver, and airport authorities can respect this request by not releasing the
name to the public. However, we cannot agree that authorized airport and Commission enforcement personnel operating under their respective jurisdictional powers should not be allowed to inspect this information to enforce their respective regulations.
We agree with SFO that verification of passenger reservations should be in the possession of the driver to avoid
unlawful conduct. Any supporting documentation should be retained by the carrier. Therefore, we adopt TD's unamended version of GO 157, § 3.01, that is, the driver must possess a waybill indicating a passenger's reservation. We
find that any carrier confidentiality of records under GO 66-C is outweighed by the need for airport authorities to inspect the waybill for enforcement purposes. The waybill itself must be retained as a carrier record. Carrier records
supporting the waybill will [*43] be inspected by Commission enforcement personnel should a formal or informal
complaint occur.
Limousine Owners points out that the "identification of the vehicle" to be placed in the waybill is ambiguous.
Limousine Owners requests that we specify whether the license plate, vehicle identification number (VIN), or company
designated vehicle number is being requested. However, in its revised proposed GOs, TD did not adopt any clarifying
language. We believe Limousine Owners' request for clarification is valid. Should we adopt the language as proposed
by TD, carriers may not include vehicle identification which can be used to verify the lawfulness of their conduct even
though they have met our GO requirement. Since this requirement is made to provide on-the-scene verification that
service has been prearranged, the license plate is the most visible vehicle identification available to Commission or airport enforcement personnel. Therefore, we shall replace the proposed requirement for "identification of the vehicle"
with the requirement that the "vehicle license plate number" be placed on the waybill. (GO 157, § 3.01-2.)
B. Airport Commission Jurisdiction
Independent alleges [*44] that limousines should not be included in this investigation since they are permitted or
certificated carriers, are not in competition with other airport carriers, and set rates on a per capita basis. We do not
agree. Carriers providing limousine service are usually charter-party carriers. Charter-party carriers were included in
this investigation upon the advice of TD that in order to address abuses in airport transportation carriage, both passenger
stage and charter-party regulations were in need of revisions. We find that notice to charter-party carriers of the proposed revisions in GO 98-A and allowing these carriers an opportunity to comment on these proposed revisions is
Page 12
mandated by due process. Limousine carriers are governed by GO 98-A and will be affected by its replacement, GO
157.
Independent contends that this Commission has exclusive jurisdiction to license and establish standards for the operation of charter-party carriers and must prohibit cities, counties, or any other public entity, such as LAX, from establishing license, permit, contract, or insurance requirements for charter-party carriers. Independent bases this contention
upon the California Constitution, [*45] the Charter-Party Act, the doctrine of state preemption over local regulation,
the exemption of limousine carriers from airport regulation in Penal Code § 602.4, and the statewide concerns regarding
airports contained in PU Code § 21690.5. Independent believes the Commission erred in D.90675 (Checkmate Yellow
Cab) by relying on City of Oakland to find that airport roads were private property under exclusive airport jurisdiction.
In Independent's opinion, by allowing airport authorities to regulate charter-party carriers, this Commission is unlawfully and arbitrarily abrogating its duty.
Limousine Owners join in Independent's request that this Commission alone regulate charter-party carriers. In
Limousine Owners' opinion, the airports have clearly conveyed their lack of confidence in the Commission's ability to
regulate charter-party carriers by their implementation of permit programs. According to this party, the possibility of
suspension or revocation of charter-party authority for failure to comply with the rules and regulations of an airport is
the equivalent of losing authority for a parking ticket in Beverly Hills. Limousine Owners represent that the airports
are [*46] imposing additional insurance requirements, demanding that limousine charter-party carriers give up all
rights to sue the airport regardless of fault, and are demanding a change in time-honored operating practices at the airports. Limousine Owners believes that the problem of illegal operators could be handled short of these new regulations
by enforcing existing regulations.
TD relies on this Commission's findings in D.90675 as the final authority on the issue of airport and Commission
jurisdiction to regulate airport carriers. TD believes that we have made clear our view that airport roads are private
property subject to airport regulation. TD points out that the California Supreme Court has declined to review Commission decisions on this matter and urges that this issue not be reargued in this proceeding.
Discussion
The limousine carriers' constitutional and preemption arguments advanced in this proceeding regarding the Commission's duties under the California Constitution, the implications of the Charter-Party Act, and the interpretation of
Penal Code § 602.4 are the same as those advanced by limousine carriers and addressed by us in D.90675. In this proceeding, Independent [*47] points out that these statutes were enacted after City of Oakland was decided. However,
we find no express or implied intent to overturn City of Oakland in these statutes. They are not applicable to the private roads of airport authorities.
Independent alleges that PU Code § 21690.5 preempts municipal regulation of limousines by its declaration of state
concern over airports. We cannot agree. PU Code § 21690.5 was enacted to give airport authorities antitrust immunity
to engage in limited or exclusive contracts which, without immunity, are found to restrain trade. (§ 21690.5, Historical
Note.) This statute expressly gives airport authorities the authority to engage in such contracts when they deem it necessary. It does not remove municipal airport authorities as governing bodies over the airport's private roads.
Independent alleges that LAX regulation does not use limited or exclusive agreements as required in § 21690.5, but
regulates all limousines, presumably violating Commission regulation of charter-party carriers under the Charter-Party
Act. We reiterate that § 21690.5 applies to private airport roads, and Charter-Party Act applies to carrier operations on
public [*48] roads.
Independent alleges that People v Levering (1981) 122 Cal. App. 3d Supp. 19, 176 Cal. Rptr. 297 is a situation parallel to that of LAX regulation. In Levering the City of El Segundo's ordinance requiring limousines to obtain a city
license and pay a license fee for each vehicle was struck down because it added new qualifications to obtain a permit
and taxed carriers for the use of public streets. This ordinance violated PU Code § 1033 which is made applicable to
charter-party carriers by § 5382. § 1033 prohibits city ordinances which conflict with Commission regulation. In Levering the court found a conflict with the Carrier-Party Act by the additional city permit qualifications and the additional
city taxes for the use of public streets. This case is applicable to public streets. It does not address private roads of
airport authorities.
We must reject Limousine Owners' new arguments that the City of Oakland findings that airport authorities have
jurisdiction over their private roads has been overturned or made moot by recent legislation or case law.
Page 13
C. Courtesy Vans
During informal workshops, interested parties requested the Commission to exclude [*49] courtesy vans from any
new regulatory proposals and to reconsider their present licensing requirements.
The issue whether courtesy vans provided by car rental agencies and hotels to carry passengers to and from airport
terminals should be exempt from Commission regulation has been decided by the enactment of SB 1791. Effective
January 1, 1989, PU Code § 5353 and Vehicle Code § 34507.6 exempt from certificate or permit requirements transportation provided by a hotel, motel, or other place of temporary lodging in owned or leased vehicles without charge, as
specified, between an air, rail, water, or bus passenger terminal and the lodging facility, or between the lodging facility
and a place of entertainment or commercial attraction, as specified.
These statutes require any operator which furnishes an exempt transportation service under these provisions in a
bus to apply for and obtain from the CHP a carrier identification number and to display that number on the bus, as specified. Since, under other provisions, a violation of this requirement would be a crime, the statutes impose a
state-mandated local program.
The enactment of SB 1791 exempting courtesy vans from PU Code § 5353 [*50] makes this issue moot. Courtesy vans may no longer be regulated by this Commission.
D. Tariffs
TD does not recommend any changes in the Commission's requirement that tariffs be filed. However, TD believes
that the Commission should ensure that the public has the information necessary to make informed choices in today's
competitive markets. Public comments obtained by TD identified a need for the traveling public to understand the
range of service alternatives, fares, schedules, and service limitations offered by carriers. Many customers are
out-of-state visitors and/or infrequent users of services. They look to media advertising and airport, hotels, and travel
agents for their information; the Commission's regulatory role is not readily apparent. TD proposes to require carriers
to display complete tariff information in all vehicles to address these concerns. Tariffs can be published in brochure
format but must specify a complaint procedure that includes the address and telephone number of the TD's Consumer
Affairs Unit and be written in a manner that ensures their terms and conditions are easy to understand and apply.
Greyhound contends that the displaying of tariffs [*51] poses an insurmountable problem. It believes this requirement should be directed toward airport carriers, not longer distance carriers. Greyhound points out that its pricing
data alone consists of at least 157 pages of printed material. Greyhound alleges that number can double at any time to
a length of approximately 314 pages due to its policy of frequently offering its customers special reduced fares which
are tied to fluctuating ridership factors and the fares of its competitors. The tariff expands to a total length of from 235
to 392 pages when Greyhound's 20-page baggage tariff, 20-page package express tariff, 35-page charter tariff, and
3-page loss and damage tariff are added to the price tariff.
Greyhound does not believe that TD's objective of providing adequate informtion to the public will be defeated by
exempting carriers such as Greyhound. Greyhound presently makes copies of its complete tariff data available to the
public at its business office locations in Los Angeles and San Francisco. This data is available for public inspection
any time during normal business hours. Greyhound makes tariff data available to the public at each of its 161 ticket
locations throughout [*52] the state. The extent of this tariff data varies according to the size of the ticket location.
In all cases all necessary tariff data is conveyed to the public as well as much that is superfluous because it is not related
to the specific service in question.
In addition, Greyhound contends that it complies and will continue to comply with the Commission's GO 79 relating to tariff and timetable filing requirements which provides further public access to all necessary information relating
to Greyhound's service.
Greyhound requests that an exemption to the tariff display requirement be included in Proposed GO 158 for "passenger stage corporations whose operations entail the utilization of 100 or more full-size buses and whose principal operations do not involve airport access service."
Johnson, Rose, and SFO agree that carriers such as Greyhound should be exempt from tariff display requirements.
Page 14
FunBus contends that the tariff display requirement is unreasonable for any carrier. FunBus does not believe the
public needs all tariff provisions displayed. FunBus points out that buses are often interchanged and that tariffs would
constantly be changed causing confusion regarding the [*53] effective rates.
In response to this criticism, TD limited this section to vehicles serving the airport. However, Greyhound believes
the requirement is still overbroad because, for example, it would apply to 35 schedules per day serving Oakland, San
Jose, and San Francisco airports. Greyhound contends that this airport service occurs only as an adjunct to its regular
route, intercity service, and traffic to and from the airports which is exclusively beyond the city limits in which the airports are located.
Greyhound believed that TD's intent in revising proposed GO 158, § 8.04, may have been to make its provisions
applicable only to the class of passenger stage operators exclusively engaged in dedicated airport access service and to
exclude operators such as Greyhound whose airport service is incidental to its regular route, intercity service. Greyhound recommended that this intent could be accomplished by including the following language in 8.04:
"For purposes of this section, vehicles serving airports as part of through intercity service shall not be deemed carriers serving an airport and shall be exempt from the posting requirements contained herein."
Discussion [*54]
Greyhound contends that this revision is burdensome requiring that vehicles serving airports carry 35 separate
schedules, including baggage, package express, charter and lost damage tariffs. We agree that such a requirement is
burdensome. The intent of TD's proposed tariff posting requirements is to inform the public of available airport service. We believe nationwide passenger carriers such as Greyhound achieve this objective through media marketing
and advertising and local ticket offices with a main goal of providing such information. Therefore, it is not necessary
to supplement the present Greyhound telephone ticket information with individual vehicle tariff display. We shall
adopt Greyhound's amendment to § 8.04 as proposed.
IX. Miscellaneous Provisions
A. Equipment Statements
TD's proposed GOs both require that every carrier maintain on file with the Commission an equipment list of all
vehicles (owned or leased) in use under each certificate and permit. The information required for each vehicle is the
manufacturer, model, year, VIN, seating capacity, description, license plate number, and whether the vehicle is owned
or leased. Additions and deletions to [*55] this list are required to be filed immediately after the vehicle entered or
ended service.
Johnson alleges that the exclusion of vehicles on short-term leases, that is, less than 30 days, is a principal failure of
recording carrier equipment which will invite bad faith evasion of this requirement. In Johnson's opinion, a series of
29-day leases with automatic renewals is a way to evade this requirement and has already been used by one unnamed
carrier. Johnson recommends that any vehicle leased for any time period be required to be included on this list. Johnson also recommended that the time for filing additions or deletions be specified.
In its reply comments, TD adopted a 10-day filing period for changes to the required equipment list and required
that all equipment, owned or leased, be included in this equipment list.
TD's changes in the proposed GOs appropriately clarify that the time for filing changes to the equipment list is ten
days after the change occurs. The revisions prevent evasion of § 4.01 in both GOs by requiring that all leases be filed.
An accurate, up-to-date equipment list is needed for enforcement purposes to identify vehicles. We adopt these sections [*56] as revised by TD.
B. Vehicle Inspection
TD's proposed GOs require that all vehicles operated under passenger stage and charter-party certificates meet the
requirements of the CHP and Motor Carrier Safety Act. Johnson alleges that this requirement does not include new
vehicles regulated by Vehicle Code §§ 34505 and 34505.1 which address tour buses.
In its reply comments, TD added language to both GOs requiring the carrier to inspect all vehicles and maintain
proper documentation of these inspections.
Page 15
TD's amendment to the GOs clarifies that all vehicles must meet specific CHP standards. No party objected to this
requirement. We will adopt this section as amended by TD.
C. Renewal of Authority
Under TD's proposed GO for charter-party carriers, carriers are required to file renewal applications at least three
months prior to the annual expiration date of the certificate or permit.
Johnson and Antelope Valley Bus, Inc. request that language be added to specify that the Commission should mail
a notice and renewal application to carriers of record at least four months or four and one-half months prior to the expiration date of the certificate or permit. Johnson points [*57] out that language in a subsequent GO section implies
carrier authority is subject to denial, suspension, or lapse if this requirement is not met. Johnson voices concern that
the proposed GO does not take into consideration renewal delays which may not be the carrier's fault. Johnson alleges
that the process of renewal, which includes vehicle inspection and driver screening, is not under the carrier's control and
may not be completed to meet the renewal deadline through no fault of the carrier. Johnson does not anticipate delays in
the Commission's processing of renewals.
Johnson points out that CBA members and the Commission TD favor certificates that are "good until suspended or
revoked." Johnson believes this approach works well only for Classes A and B carriers but permit holders should renew
annually to verify their status and current payment of PUTRA fees. In Johnson's opinion, annual renewal of permits is
justified due to lack of contact with the Commission, CHP, or DMV. Johnson believes authority should be valid for
three years as an initial change with future amendments for "good until canceled" authority.
On July 8, 1988, Senate Bill (SB) 2114 was signed by the Governor [*58] to become effective January 1, 1989.
SB 2114 revises PU Code §§ 5371, 5371.1, 5374, and 5376, adds PU Code § 5387, and repeals PU Code § 5373. SB
2114 resolves the debate herein on whether charter-party renewal should be annual or for three years. The bill provides
for the issuance of charter-party certificates and permits for three years, unless suspended or revoked, and makes other
related changes. The bill directs the Commission to report to the Legislature by January 1, 1992 on its experiences
with three-year certificates and permits together with recommendations on returning to annual renewal and on issuing
authority which is valid indefinitely until revoked.
TD's proposed GO does not specify a certification period but does require that renewal applications be submitted
three months prior to the expiration date. Even under this new three-year period, we believe it is appropriate for charter-party carriers to file renewal applications at least three months in advance to allow ample time for our processing.
However, it is a carrier's responsibility to maintain a current, valid certificate. We do not believe it is TD's responsibility
to remind carriers to renew their certificates [*59] by mailing an application four months before certification as one
party requested.
Therefore, we will direct TD to make renewal applications continually available for carriers in all Commission
transportation offices. We also direct TD to respond expeditiously to carrier requests that renewal applications be
mailed. We encourage carriers to begin renewal well before the three-month period so that unforeseen delays in inspections and other requirements do not delay Commission renewal. Carriers experiencing unforeseen delays may notify the TD of these difficulties. The TD may use its discretion to verify that such delays warrant interim Commission
action.
D. Sub-carrier Agreements
TD's proposed GOs contain a requirement that carriers not use the services of a second carrier unless the second
carrier has charter-party authority. The agreement between the two carriers must be evidenced by a written contract.
Johnson criticizes this requirement as being impractical. Johnson points out that charter-party arrangements are
made by telephone or radio, that is, an oral contract. Johnson recommends that a written memorandum or log that
memorializes the oral agreement should meet [*60] enforcement needs of the Commission.
It is a common practice for a passenger stage or charter-party carrier to hire a second carrier to accommodate an
unexpected capacity overflow. Sub-carrier requirements are needed to assure that these second carriers are properly
licensed. Parties do not object to the requirement of having an agreement; they object to the form of the agreement
proposed by the TD.
Page 16
In its reply comments, TD replaced the language requiring a written contract with language requiring a written
document containing the names of the carriers, certificate numbers, and services to be provided.
We agree that TD's modification of document requirements strikes the proper balance between our need for licensing information and the carrier's desire for reasonable regulation. We adopt TD's modified sub-carrier agreement requirement, namely, that a document to verify an oral contract will suffice where a written contract does not exist. (GO
157, § 3.04 and GO 158, § 3.03.)
E. Advertisements
TD's proposed GO 157, § 3.07 and GO 158, § 3.05 requires that every written or oral advertisement by a charter-party carrier must state its permit number.
Limousine Owners asserts [*61] that "written and oral advertisement" needs clarification. Limousine Owners
asked whether "written advertisement" includes company letterhead, envelopes, invoices, and business cards, as well as
the obvious advertisement in brochures and yellow pages. LADOT asks what are written and oral advertisements?
We agree that TD's requirement for advertising is needed to assure that only licensed carriers engage in advertising.
Written advertising encompasses published information either through the news media or in written form distributed to
the public. This definition would not include company business records or correspondence where advertising is not
intended. However, this definition would generally include letterhead, business cards, pre-printed envelopes, and invoices. Oral advertising includes media communication of services, such as radio and television announcements. We
shall clarify this phrase to be consistent with existing statutes (PU Code § 1034.5):
"ADVERTISEMENTS SHALL INCLUDE TCP (or PSC) NUMBER. Carriers shall state the number of their
permit (or certificate) in every written or oral advertisement, broadcast, or other holding out to the public for services.
The [*62] number shall be preceded by the letters 'TCP' (or 'PSC')." (GO 157, § 3.07 and GO 158, § 3.05.)
F. Records
TD's proposed GOs require that carriers maintain service records, including points served and fares charged, for
three years.
Johnson suggests that the three-year retention period is excessive and should be reduced to one year. Johnson requests that the language of "points served and fares charged" be changed to be more applicable to charter-party service.
In its reply comments, TD deleted the requirement that records of "points served and fares charged" must be retained. We believe this deletion is appropriate since Commission filed tariffs will indicate service points and respective
fares.
We do not agree with Johnson that our GOs can provide that DMV and CHP shall have the same level of access to
carrier's books and records as this Commission. GO 66-C does not address the disclosure of carrier records to other
government agencies. Nor does PU Code § 583, upon which GO 66-C is based. Based upon this lack of statutory
authority, we decline to release carrier records in our custody to DMV or the CHP.
G. Vehicle Displays
TD's GOs require that the name or [*63] trade name of the carrier be painted or displayed on each side of each
vehicle, an identifying number be permanently attached to the rear and each exterior side of the vehicle, and that the
name and numbers be readable at a distance of 50 feet. TD excludes from the trade name requirement vehicles temporarily leased for less than 30 days and TCP vehicles designed to carry not more than eight persons including the driver.
Limousine Owners assert that vehicles carrying 15 passengers or less with charter prearranged authority should be
exempt from this requirement. Limousine Owners assert that these clients, like limousine and sedan clients, expect and
deserve vehicles void of such markings. Limousine Owners believe the required windshield identification and rear
bumper charter-party numbers adequately allow such vehicles to be identified.
TD's eight-person vehicle exemption is intended to exclude limousines from displaying a trade name on the side of
vehicles. Limousine Owners request that this exemption be extended to 15-passenger vehicles and less. Limousine
Owners is correct in its observation that the passenger size of limousines can exceed eight passengers in the new
"stretch" [*64] limousines, making this definition of limousine by passenger capacity in proposed GO 157 already
outdated. We are also aware that chartered vans are being modified for exclusive use service like limousines.
Page 17
We see no adverse effects on enforcement by extending the eight-passenger exemption exclusion for exclusive use
limousine service to 15-passenger vehicles being used for similar service. These 15-passenger vehicles will be required to display licensing identification on front and rear bumpers and windshields. Therefore, we will modify TD's
proposed exception in GO 157, §§ 4.03 and 4.04 as follows:
"4.03 - NAME OF CARRIER AND VEHICLE NUMBER TO BE DISPLAYED ON VEHICLE. A vehicle shall
not be operated in service unless there is painted or displayed, on each side of the vehicle, the name or trade name of the
carrier. Every carrier shall assign an identifying number to each vehicle. Such number shall be painted on or otherwise
permanently attached to the rear and each side of the exterior of each vehicle. The carrier's name and vehicle numbers
shall be sufficiently large and color contrasted as to be readable, during daylight hours, at a distance of 50 feet. However, the provisions [*65] of this section shall not apply to vehicles temporarily leased by carriers for a period of less
than thirty days or to vehicles designed to carry not more than fifteen persons, including the driver.
"4.04 - TCP NUMBER TO BE DISPLAYED ON VEHICLE. The number assigned by the Commission to the
carrier's authority shall be shown in full on all charter-party vehicles, including the prefix 'TCP,' the authority number,
and the authority suffix 'A,' 'B,' 'P,' and/or 'S' (which designate Class 'A' certificate, Class 'B' certificate, permit, or
sightseeing permit, respectively). The letter and numeral symbol size and placement shall be as follows:
"The identification symbol shall be in sharp color contrast to the background and such size and shape and so located as to be readily legible during daylight hours at a distance of 50 feet. The symbols shall be displayed on each side
of the vehicle, except vehicles designed to carry not more than fifteen persons, including driver, which shall display the
Commission issued decal and identification symbol on the front and rear bumpers.
"The identifying symbols displayed by a carrier subject to the jurisdiction of the Interstate Commerce Commission
[*66] (ICC) shall serve in lieu of the above requirements, provided such ICC operating authority is registered with this
Commission in accordance with the Interstate and Foreign Highway Carrier's Act (commencing with PU Code Section
3901)."
X. Accessibility to Services by the Handicapped
The Marin Paratransit Coordinating Council (MPCC) was the only party to address the issue of accessibility of airport service to the handicapped. MPCC requested that carriers serving airports statewide be required to provide services which are accessible to passengers with mobility disabilities at a cost comparable to that charged to the general
public. MPCC interprets Civil Code § 54.1 as including a mandate for these services. MPCC alleges that no such
services are available in the state.
According to MPCC, a recent national study performed by Lou Harris indicates that approximately 15% of the total
national population is disabled. Of this total, 9-10% are mobility impaired, increasing 3% annually. These statistics
make it imperative that airport services be provided. The Harris study indicates that nationally only 3% of the disabled
population is employed. MPCC asserts that this percentage [*67] will not increase without access to public transit
services. In addition, MPCC presented a recent study of paratransit services in Marin County.
We take official notice that MPCC has presented these studies and oral testimony in our investigation of Santa Rosa
and Marin Airporter services, Order Instituting Investigation (I.) 88-06-020.
In 1985, MPCC's request that Civil Code § 54.1 be interpreted as mandating handicapped accessible services was
denied. (D.83-06-084, as modified by D.83-09-063.) However, no public need for such service was shown. Although
we cannot now agree that Civil Code § 54.1 mandates handicapped accessible service, we again have allegations of a
need for this service by members of the public. In this proceeding and in I.88-06-020, MPCC has presented testimony
and evidence that no such service exists in Marin County. No party in that investigation presented evidence to the contrary. Respondents in this proceeding have not addressed these allegations as they apply to their respective service
areas, nor has TD. Therefore, we do not know the extent of this service deficiency. We are concerned that these allegations may be true on a statewide basis. Yet [*68] the remedy suggested may have an adverse economic impact on
carriers and customers. Therefore, we cannot make any findings on this issue in this proceeding. We order TD to
conduct a statewide survey to ascertain what airport services are accessible to the handicapped, what remedies are
available and recommended, and what would be the economic impact of any recommendations on carriers and customers. Within 270 days after the effective date of this order, this survey and recommendations should be submitted to the
Executive Director and mailed to respondents in this proceeding.
TD's survey and report should address at least the following areas of concern:
Page 18
1. What handicapped accessible airport services are available in a respondent carrier's service area.
2. Whether there is a public need for such service, if it does not exist; or, whether there is a need for additional
service, if it does exist.
3. The type and extent of such services needed.
4. The costs and cost impact on carriers of:
a. Retrofitting existing buses.
b. Retrofitting existing vans.
c. Purchase of new buses with handicapped accessibility.
d. Purchase of new vans with handicapped accessibility. [*69]
5. The cost and cost impact on carrier rates of each category of Item 4.
After receipt of this report, the Commission shall determine if an investigation of these issues is necessary.
XI. Procedural Changes
In order to effectively implement the proposed GOs for passenger carriers, TD proposes certain procedural changes. TD recommends that intrastate passenger carriers be excluded from the abandonment documentation requirements
contained in the Commission's Rules of Practice and Procedure Rule 15(f). n2 TD requests strict interpretation of Rule
8.4(c), the facts a protestant would develop at a public hearing in an application proceeding. TD recommends that certain complaints should be expedited.
n2 Subsequently relettered 15(e) by D.87-04-072 on April 22, 1987.
Rule 15(e) requires that in addition to complying with all other parts of Rule 15, a carrier requesting authority to
abandon passenger stage service or reduce service to less than one trip per day (excluding Saturday and Sunday) must
file 11 specific exhibits with its application. In TD's experience, this requirement is burdensome for scheduled carriers
operating solely intrastate. TD explains that the [*70] existing filing requirement was instituted in response to the
Federal Bus Regulatory Act. (Resolution No. PE-452, February 2, 1983.) According to TD, this Act greatly limited the
time in which the Commission could review and act on abandonment applications by interstate companies regulated by
the Interstate Commerce Commission (ICC). TD continues to find the requirement necessary for ICC carriers, but not
for solely Commission-regulated carriers operating airport access and home-to-work services, for example. Such carriers operate in competitive environments and TD has rarely opposed their abandonment requests. TD proposes that
intrastate carriers be excluded from this requirement in Rule 15(e), yet the Commission retain all rights to investigate
and deny requests for route abandonment on a case-by-case basis.
TD's requested amendment to Rule 15(e) was included in its February 1988 report which was attached to the order
in this rulemaking. The order was mailed to respondents in March 1988. This issue was discussed in workshops preceding the issuance of this OIR. No party opposed this request. This request is one to update our rules regarding passenger stage service which [*71] is one of our primary goals in ordering this rulemaking proceding. Our Rules of
Procedure should not be an exception to this task. Since the information required by Rule 15(e) is seldom needed or
relied upon in intrastate service abandonment proceedings, it is reasonable to exclude such carriers from this requirement solely. We shall add the following additional language to Rule 15(e) to exclude intrastate carriers:
"15. (Rule 15) Contents . . . (e) In addition to otherwise complying with these rules, each application for authority to abandon passenger stage service, or reduce service to less than one trip per day (excluding Saturday and Sunday)
shall include the following exhibits (carriers operating solely intrastate are excluded from this requirement: . . ."
TD's recommnendation for strict interpretation of Rule 8.4(c) is based upon the consistently filed objections of
some competing carriers and a taxicab regulatory agency to all service requests affecting their service territory. TD
indicates that these parties routinely use the Commission's public need and adequacy of existing service requirements to
force applicants and Commission personnel to undergo lengthy and [*72] expensive administrative hearings. We
believe this problem has been alleviated by our recent dismissal of such protests in D.88-10-026 and D.88-08-011.
Findings of Fact
Page 19
1. As of February 1988, the Commission had 170 licensed PSCs and 1,670 TCPs in good standing. Equipment
operated by these carriers ranges from small sedans, limousines, and vans, to large buses.
2. Tremendous growth in airline travel and related ground transportation have occurred since airline deregulation
in 1978. Competition due to this passenger growth has resulted in an increase in applications for new carrier authority,
requests for service changes, and competitor complaints.
3. Overlapping problems of solicitation, illegal operations, and carriers operating outside authority are occurring
at the state's major airports. In addition, traffic congestion is continually increasing at major airports due to the increase
in the number of carriers serving air passengers.
4. The increase in passenger stage and charter-party carriers at airports is a natural and proper response to the increase in air passengers needing transportation to and from airports.
5. Defining on-call passenger stage service [*73] as "prearranged" requires the public to prearrange departures
from the airport which is impractical.
6. Defining on-call passenger stage service as "prearranged" to prevent solicitation is unnecessary. Solicitation is
already defined by numerous airport authority regulations.
7. Broadly defined on-call passenger stage service allows for innovative new services to be developed to meet
public demand.
8. Solicitation should be defined and regulated by airport authorities.
9. Any Commission definitions of solicitation may conflict with airport regulation addressing the same issue.
10. Under the present congested conditions at major airports, it is a breach of the public interest for carriers to
continually violate airport regulations intended to ease these conditions.
11. Parties agreed that fitness to operate and safety standards should not be sacrificed in an industry that carries
millions of passengers per year. The high number of trips with short turn-around times means drivers must be qualified
and the maintenance of vehicles is crucial for public safety.
12. DMV and CHP standards for drivers and equipment are the appropriate safety standards for passenger stage
and [*74] charter-party carriers.
13. The cause of airport traffic congestion is the significant increase in the numbers of airline passengers.
14. Limiting the number of carriers to reduce traffic congestion may cause insufficient transportation services at a
time when increased service is needed the most.
15. The basic distinction between charter-party carriers and passenger stage carriers is that the latter are common
carriers operating individual fare service under approved tariffs.
16. Charter-party srvice by its nature of providing service to groups traveling from varied departure points to varied destinations must be prearranged.
17. Parties agree that increased enforcement is needed to remove unlawful carriers from service.
18. Waybills including the name of the carrier, TCP number, vehicle license plate number, driver's name, identity
of person hiring the charter, number of persons in the charter group, and points of origination and destination should be
maintained by a driver in order to enable enforcement personnel to verify that service is lawful.
19. On the waybill, vehicles may be identified by the license plate number.
20. Customers' requests for privacy can be [*75] honored by the carrier and driver by keeping the customer's
name confidential. However, Commission personnel charged with the duty to enforce Commission regulation should
have access to all information contained in the waybill upon request.
21. Charter-party carriers are included in this proceeding to resolve all carrier problems occurring at airports. Resolution of these problems mandates revisions in both passenger stage and charter-party regulations.
22. Out-of-state visitors, infrequent travelers, and the general public need tariff and schedule information to make
informed decisions regarding the choices in transportation services.
Page 20
23. The public needs carrier information in order to complain about unreasonable and unlawful services.
24. Public display and the publishing of fares, schedules, service limitations, and complaint procedures will
achieve the goal of allowing the public to make informed transportation decisions.
25. It would be burdensome to require carriers incidentally serving airports to meet proposed publishing and display regulations.
26. TD revised its proposed rule on vehicle inspection to meet specific CHP standards.
27. The comments in this [*76] proceeding do not conclusively indicate the extent of transportation services
accessible to the handicapped throughout the state.
28. On October 21 and 23 and November 5, 1988, TD conducted workshops with parties in this rulemaking. All
parties were notified of the workshops. TD's revision to Rule 15(e) was discussed in the workshops.
29. Oral and written comments on the issue of Rule 15(e) revisions were accepted. No party objected to TD's revision.
30. The requirement in Rule 15(e) that solely intrastate carriers include specified exhibits with abandonment applications is no longer needed.
31. Appendix C contains the proposed revised Rule 15(e) of the Commission's Rules of Practice and Procedure.
Conclusions of Law
1. PU Code § 21690.5 does not address private airport roadways.
2. PU Code § 5382 makes passenger stage rules contained in PU Code §§ 1033 applicable to charter-party carriers, but § 1033 does not apply to private airport roadways.
3. SB 1791 exempts courtesy vans from PU Code § 5353 making moot the argument in this proceeding.
4. SB 2114 extends charter-party certificates from one year to three years. The related revisions in PU Code §§
5371, [*77] 5371.1, 5374, 5376, and 5387 resolve the arguments on this issue in this proceeding.
5. Inspection of the waybill by airport enforcement personnel does not violate GO 66-C.
6. The proposed GOs 157 and 158 as herein amended are reasonable and it is in the public interest to adopt them.
7. The Executive Director should transmit the proposed new Rule 15(e) to the Office of Administrative Law for
publication.
8. Comments on proposed Rule 15(e) should be solicited from parties to this proceeding.
9. This docket should be held open to adopt proposed Rule 15(e).
ORDER
IT IS ORDERED that:
1. General Orders (GOs) 79 and 98-A are cancelled.
2. GOs 157 and 158 which are contained in Appendixes A and B, respectively, are adopted.
3. Transportation Division (TD) shall make available in all TD offices copies of carrier renewal applications and
shall promptly respond to carrier requests that such applications be mailed.
4. TD is directed to conduct the survey discussed herein of statewide availability of transportation services accessible to the handicapped to and from major airports. Within 270 days after the effective date of this order, TD shall
submit to the Executive [*78] Director a report including recommendations regarding this issue. A copy of this TD
report shall be mailed to all parties in this proceeding. After receipt of this report, the Commission will determine if an
investigation is necessary.
5. Parties who wish to file written comments on the proposed Rule 15(e) shall file an original and 12 copies with
the Docket Office within 30 days of the effective date of this order and shall separately serve copies on the assigned
administrative law judge and the staff attorney.
Page 21
6. The Executive Director, in coordination with the Administrative Law Judge Division, shall transmit a copy of
this order to the Office of Administrative Law in accordance with any applicable provisions of the Government Code.
This order becomes effective 30 days from today.
Dated October 12, 1989, at San Francisco, California.
APPENDIX A
GENERAL ORDER 157 (Cancels and supersedes General Order 98-A as applicable to Charter-Party Carriers of
Passengers)
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
RULES AND REGULATIONS GOVERNING THE OPERATIONS OF CHARTER-PARTY CARRIERS OF PASSENGERS PURSUANT TO CHAPTER 8 (BEGINNING AT SECTION 5351) OF THE PUBLIC UTILITIES [*79]
CODE
Adopted October 12, 1989. Effective November 11, 1989.
Decision 89-10-028 in R.88-03-012.
CHARTER-PARTY CARRIERS OF PASSENGERS
PART 1 - GENERAL PROVISIONS
1.01 - SHORT TITLE. These rules and regulations shall be known as "General Order 157".
1.02 - REFERENCES TO STATUTES AND RULES AND REGULATIONS. Whenever reference is made to any portion of any law, such reference shall apply to all amendments and additions heretofore or hereafter made; and whenever
reference is made to any portion of these rules and regulations, such reference shall apply to all amendments and additions hereafter made.
1.03 - CONSTRUCTION OF SINGULAR AND PLURAL. The singular number includes the plural, and the plural the
singular.
1.04 - "SHALL" AND "MAY". "Shall" is mandatory and "may" is permissive.
1.05 - LIABILITY INSURANCE REQUIREMENTS. Every charter-party carrier shall comply with all provisions of
General Order Series 115.
1.06 - APPLICABILITY OF VEHICLE CODE. Every charter-party carrier and their drivers shall comply with the
provisions of the California Vehicle Code.
1.07 - COMMISSION MAY ORDER DEVIATIONS. The Commission may authorize deviations from these rules and
[*80] regulations or prescribe or require the observance of additional or different rules by special order.
1.08 - AVAILABILITY OF GENERAL ORDER 157, VEHICLE CODE, AND TITLE 13. Every charter-party carrier
shall have a copy of General Order 157 and a current copy of the California Vehicle Code and the Motor Carrier Safety
Sections (Subchapter 4, Article 12 and 14, and Subchapter 6.5, Articles 1, 3, 6, and 8) of Title 13 of the California Administrative Code in a place available to all drivers.
PART 2- DEFINITIONS
2.01 - "COMMISSION". "Commission" means the Public Utilities Commission of the State of California.
2.02 - "CHARTER-PARTY CARRIER OF PASSENGERS", "TCP", "CARRIER". The definition of "Charter-Party
Carrier of Passengers" shall be that set forth in Sections 5351-5360 of the Public Utilities Code. The initials "TCP"
mean "Transportation Charter-Party". Within this General Order the word "carrier" means charter-party carrier of passengers.
Page 22
2.03 - "CHARTER PARTY-VEHICLE", "VEHICLE". "Charter-party vehicle" is a motor vehicle used in charter-party
service. Within this General Order the word "vehicle" means charter-party vehicle.
PART 3 - GENERAL REQUIREMENTS AND [*81] RESTRICTIONS
3.01- PREARRANGED TRANSPORTATION. Class A and Class B charter-party carriers, as defined in Public Utilities
Code Section 5383, and carriers holding permits under Public Utilities Code Section 5384(b) shall provide transportation only on a prearranged basis. The party arranging the transportation shall have exclusive use of the vehicle. The
driver shall possess a waybill which includes the following:
1. Name of carrier and TCP number.
2. Vehicle license plate number.
3. Driver's name.
4. Name and address of person requesting or arranging the charter.
5. Time and date when charter was arranged.
6. Number of persons in the charter group.
7. Points of origination and destination.
Upon request, the driver shall show the waybill to any Commission or airport enforcement officer.
3.02 - OPERATIONS AT AIRPORTS. No carrier shall conduct any operations on the property of or into any airport
unless such operations are authorized by both this Commission and the airport authority involved. Consistent failure to
comply with safety or traffic rules and regulations of an airport authority may result in suspension or revocation of
Commission operating authority. [*82]
3.03 - TAXI TRANSPORTATION SERVICE NOT AUTHORIZED. A carrier is not authorized to engage in taxicab
transportation service licensed and regulated by a city or county. Carriers are prohibited from using vehicles which
have top lights and/or taxi meters.
3.04 - SUB-CARRIERS. A carrier shall not use the services of another carrier (sub-carrier) that provides the vehicle
and the driver, unless the second carrier holds Commission authority as a charter-party carrier. The agreement for the
utilization of the second carrier's vehicle(s) and driver(s) by the operating carrier shall be evidenced by a written document, and shall contain the carrier's names, TCP numbers, and the services to be provided.
3.05 - RENEWAL OF AUTHORITY. Each carrier shall be responsible for filing renewal applications at least three
months prior to the expiration date of the certificate or permit.
3.06 - FICTITIOUS NAMES. A carrier shall not use any trade, business, or fictitious names, which are not on file with
the Commission.
3.07 - ADVERTISEMENTS SHALL INCLUDE TCP NUMBER. Carriers shall state the number of their certificate or
permit in every written or oral advertisement, broadcast, or [*83] other holding out to the public for services. The
number shall include the prefix "TCP", and the suffix "A", "B", "S", and/or "P" (Class "A" certificate, Class "B" certificate, round-trip sightseeing permit, and charter-party permit, respectively) which identify the authority or authorities
under which transportation service will be provided (Public Utilities Code Section 5386).
PART 4 - VEHICLES
4.01 - EQUIPMENT STATEMENT TO BE CURRENT. Every carrier shall maintain, on file with the Commission, an
equipment list of all vehicles (owned or leased) in use under each certificate and permit. The information for each vehicle shall include the manufacturer, model year, vehicle identification number (V.I.N.), seating capacity (including
driver), description of body type or model designation, whether the vehicle is leased or owned, and its license plate
Page 23
number. Additions and deletions to the equipment list shall be filed within ten days of the date the vehicle is put into or
pulled out of service.
4.02 - SAFETY REQUIREMENT BEFORE OPERATION. All vehicles operated under each certificate or permit
shall comply with the requirements of the California Highway Patrol and the Motor Carrier [*84] Safety Sections of
Title 13 of the California Administrative Code. Every carrier must inspect all vehicles and maintain proper documentation of such inspections.
4.03 - NAME OF CARRIER AND VEHICLE NUMBER TO BE DISPLAYED ON VEHICLE. A vehicle shall not be
operated in service unless there is painted or displayed, on each side of the vehicle, the name or trade name of the carrier. Every carrier shall assign an identifying number to each vehicle. Such number shall be painted on or otherwise
permanently attached to the rear and each side of the exterior of each vehicle. The carrier's name and vehicle numbers
shall be sufficiently large and color contrasted as to be readable, during daylight hours, at a distance of 50 feet. However, the provisions of this section shall not apply to vehicles temporarily leased by carriers for a period of less than 30
days or to vehicles designed to carry not more than 15 persons, including the driver.
4.04 - TCP NUMBER TO BE DISPLAYED ON VEHICLE. The number assigned by the Commission to the carrier's
authority shall be shown in full on all charter-party vehicles, including the prefix "TCP", the authority number, and the
authority suffix "A", [*85] "B", "P", and/or "S" (which designate Class "A" certificate, Class "B" certificate, permit,
or sightseeing permit, respectively). The letter and numeral symbol size and placement shall be as follows:
The identification symbol shall be in sharp color contrast to the background and such size and shape and so located
as to be readily legible during daylight hours at a distance of 50 feet. The symbols shall be displayed on each side of
the vehicle, except vehicles designed to carry not more than 15 persons, including driver, which shall display the Commission-issued decal and dentification symbol on the front and rear bumpers.
The identifying symbol displayed by a carrier subject to the jurisdiction of the Interstate Commerce Commission
(ICC) shall serve in lieu of the above requirements, provided such ICC operating authority is registered with this Commission in accordance with the Interstate and Foreign Highway Carrier's Act (commencing with PU Code Section
3901).
4.05 - DECALS TO BE DISPLAYED. Any decals issued by the Commission shall be affixed to the lower right hand
corner of the vehicle's windshield.
4.06 - DAMAGE TO IDENTIFICATION SYMBOLS. It shall be the carrier's [*86] responsibility to make immediate
restoration or replacement of any damage caused to the identification names and numbers on vehicles.
4.07 - ILLEGAL DISPLAY OF P.U.C. IDENTIFICATION. Immediately upon revocation or termination of any permit
or certificate the TCP number for the permit or certificate shall be removed from all vehicles. If new operating authority is later granted, it shall be the responsibility of the carrier to make the appropriate identification.
4.08 - UNAUTHORIZED USE OF OPERATING AUTHORITY. A carrier shall not knowingly permit its operating
authority or its TCP number(s) to be used by others.
4.09 - SALE OR TRANSFER OF VEHICLE. It shall be the carrier's responsibility to remove all certificate or permit
numbers and identification symbols when a vehicle is sold or transferred.
PART 5 - DRIVERS
5.01 - DRIVER TO BE LICENSED. Every driver of a charter-party vehicle shall be licensed as required under the
California Vehicle Code and shall comply with the driver provisions of the Motor Carrier Safety Sections of Title 13 of
the California Administrative Code.
5.02 - DRIVER RECORD. Every carrier shall enroll in the "Pull Notice Program" of the Department [*87] of Motor
Vehicles as defined in Vehicle Code Section 1808.1. A charter-party vehicle shall not be operated by any driver who is
presumed to be a negligent operator under Vehicle Code Section 12810.5.
Page 24
5.03 - DRIVER STATUS. Every driver of a vehicle shall be the permit/certificate holder or under the complete supervision, direction and control of the operating carrier and shall be:
A. An employee of the permit/certificate holder; or,
B. An employee of a sub-carrier; or,
C. An independent owner-driver who holds Commission authority and is operating as a sub-carrier.
5.04 - ALCOHOLIC BEVERAGES AND DRUGS: USE BY DRIVER FORBIDDEN. All drivers shall comply with
the rules in the Code of Federal Regulations Part 49, Sections 392.4 and 392.5. This rule, in part, prohibits drivers
from consuming or being under the influence of a drug or alcoholic beverage while on duty, and prohibits carriers from
allowing drivers to consume or be under the influence of a drug or alcoholic beverage while on duty.
PART 6 - RECORDS AND INSPECTIONS
6.01 - CHARTER-PARTY RECORDS. Every carrier shall institute and maintain in its offices, a set of records which
reflect information as to the services [*88] performed, including waybills, as described in Section 3.01. Every carrier
shall also maintain copies of all lease and sub-carrier agreements, and shall maintain maintenance and safety records
(including, but not limited to, the records required in Sections 4.01 and 4.02), driver records (including, but not limited
to, the records required in Section 5.02), and consumer complaint records (including, but not limited to, the records required in Section 7.01). Such records shall be maintained for a minimum period of three years.
6.02 - INSPECTIONS. The duly authorized representatives of this Commission shall have the right at all times and
shall be allowed to enter into any vehicle or facility for the purpose of inspecting the accounts, books, papers, and documents and for ascertaining whether or not these rules are being complied with and observed. Every owner, operator,
or driver of any vehicle shall afford the duly authorized representatives of this Commission all reasonable opportunity
and facilities to make such an inspection.
PART 7 - COMPLAINTS
7.01 - CARRIER REQUIRED TO ANSWER COMPLAINTS. Every carrier shall respond within 15 days to any written complaint concerning [*89] transportation service provided or arranged by the carrier. A carrier shall, within 15
days, respond to Commission staff inquiries regarding complaints and provide copies of any requested correspondence
and records.
PART 8 - EXEMPTIONS
8.01 - BY WRITTEN REQUEST. If, in a particular case, exemption from any of these rules and regulations is desired,
a written request may be made to the Commission for such exemption. Such a request shall be accompanied by a full
statement of the conditions existing and the reasons relied on to justify the exemption. It is to be understood that any
exemption so granted shall be limited to the particular case covered by the request.
Approved and dated October 12, 1989, at San Francisco, California.
PUBLIC UTILITIES COMMISSION
STATE OF CALIFORNIA
By Wesley Franklin Acting Executive Director
APPENDIX B
GENERAL ORDER 158 (Cancels and supersedes General Orders 98-A and 79 as applicable to Passenger Stage
Corporations)
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
RULES AND REGULATIONS GOVERNING THE OPERATIONS OF PASSENGER STAGE CORPORATIONS
AND THE CONSTRUCTION AND FILING OF TARIFFS AND TIMETABLES
Adopted October 12, 1989. Effective [*90] November 11, 1989.
Page 25
Decision 89-10-028 in R.88-03-012.
PASSENGER STAGE CORPORATIONS
PART 1 - GENERAL PROVISIONS
1.01 - SHORT TITLE. These rules and regulations shall be known as "General Order 158".
1.02 - REFERENCES TO STATUTES AND RULES AND REGULATIONS. For convenience, reference to some of
the principal pertinent provisions of the Public Utilities Code are Sections 1031-1040 "Passenger Stage Corporations"
and Sections 486-496 "Tariff Schedules". Whenever reference is made to any portion of any law, such reference shall
apply to all amendments and additions heretofore or hereafter made; and whenever reference is made to any portion of
these rules and regulations, such reference shall apply to all amendments and additions hereafter made.
1.03 - CONSTRUCTION OF SINGULAR AND PLURAL. The singular number includes the plural, and the plural the
singular.
1.04 - "SHALL" and "MAY". "Shall" is mandatory and "may" is permissive.
1.05 - LIABILITY INSURANCE REQUIREMENTS. Every passenger stage corporation shall comply with all provisions of General Order 101 Series.
1.06 - APPLICABILITY OF VEHICLE CODE. Every passenger stage corporation and their drivers shall comply
[*91] with the provisions of the California Vehicle Code.
1.07 - COMMISSION MAY ORDER DEVIATIONS. The Commission may authorize deviations from these rules and
regulations or prescribe or require the observance of additional or different rules by special order.
1.08 - AVAILABILITY OF GENERAL ORDER 158, VEHICLE CODE, AND TITLE 13. Every passenger stage
corporation shall have a copy of General Order 158 and a current copy of the California Vehicle Code and the Motor
Carrier Safety Sections (Subchapter 4, Articles 12 and 14, and Subchapter 6.5, Articles 1, 3, 6, and 8) of Title 13 of the
California Administrative Code in a place available to all drivers.
1.09 - EFFECTIVE DATE AND APPLICATION OF TARIFFS AND TIMETABLES. Original tariffs and timetables
filed prior to the effective date of this General Order shall be revised or reissued in conformity with the rules herein
established within 90 days of the effective date of this General Order.
PART 2 - DEFINITIONS
2.01 - "COMMISSION". "Commission" means the Public Utilities Commission of the State of California.
2.02 - "PASSENGER STAGE CORPORATION", "PSC", "CARRIER". The definition of "passenger stage corporation" shall be that [*92] set forth in Section 226 of the Public Utilities Code. The initials "PSC" mean passenger stage
corporation. Within this General Order the word "carrier" means passenger stage corporation carrier unless specific
reference includes charter-party carriers.
2.03 - "VEHICLE". Within this General Order the word "vehicle" means a motor vehicle operated in passenger stage
service.
2.04 - "TARIFF", "TIMETABLE". The definition of "tariff" and "timetable" means an original publication, a supplement, amendment, or revised page thereto, or a reissue thereof.
2.05 - "SCHEDULED SERVICE". Within this General Order the term "scheduled service" means service to be provided to specific places at specific times.
PART 3 - GENERAL REQUIREMENTS AND RESTRICTIONS
Page 26
3.01 - OPERATIONS AT AIRPORTS. No carrier shall conduct any operations on the property of or into any airport
unless such operations are authorized by both this Commission and the airport authority involved. Consistent failure to
comply with safety or traffic rules and regulations of an airport authority may result in suspension or revocation of
Commission operating authority.
3.02 - TAXI TRANSPORTATION SERVICE NOT AUTHORIZED. [*93] A carrier is not authorized to engage in
taxicab transportation service licensed and regulated by a city or county. Carriers are prohibited from using vehicles
which have top lights and/or taxi meters.
3.03 - SUB-CARRIERS. A carrier shall not use the services of another carrier (sub-carrier) that provides the vehicle
and the driver, unless the second carrier holds Commission authority as a charter-party carrier. The agreement for the
utilization of the second carrier's vehicle(s) and driver(s) by the operating carrier shall be evidenced by a written document, and shall contain the carrier's names, TCP numbers, and the services to be provided.
3.04 - FICTITIOUS NAMES. A carrier shall not use any trade, business, or fictitious names, which are not on file with
the Commission.
3.05 - ADVERTISEMENTS SHALL INCLUDE PSC NUMBER. Carriers shall state the number of their certificate in
every written or oral advertisement, broadcast, or other holding out to the public for services. The number shall be
preceded by the letters "PSC".
PART 4 - VEHICLES
4.01 - EQUIPMENT STATEMENT TO BE CURRENT. Every carrier shall maintain, on file with the Commission, an
equipment list of all [*94] vehicles (owned or leased) in use under each certificate. The information for each vehicle
shall include the manufacturer, model year, vehicle identification number (V.I.N.), seating capacity (including driver),
description of body type or model designation, whether the vehicle is leased or owned, and its license plate number.
Additions and deletions to the equipment list shall be filed within ten days of the date the vehicle is put into or pulled
out of service.
4.02 - SAFETY REQUIREMENT BEFORE OPERATION. All vehicles operated under each certificate or permit
shall comply with the requirements of the California Highway Patrol and the Motor Carrier Safety Sections of Title 13
of the California Administrative Code. Every carrier must inspect all vehicles and maintain proper documentation of
such inspections.
4.03 - NAME OF CARRIER AND VEHICLE NUMBER TO BE DISPLAYED ON VEHICLE. A vehicle shall not be
operated in service unless there is painted or displayed, on each side of the vehicle, the name or trade name of the carrier. Every carrier shall assign an identifying number to each vehicle. Such number shall be painted on or otherwise
permanently attached to the rear and [*95] each side of the exterior of each vehicle. The carrier's name and vehicle
numbers shall be sufficiently large and color contrasted to be readable, during daylight hours, at a distance of 50 feet.
However, the provisions of this section shall not apply to vehicles temporarily leased by carriers for a period of less than
30 days.
4.04 - PSC NUMBER TO BE DISPLAYED ON VEHICLE. The number assigned by the Commission to the carrier's
authority shall be shown in full on all vehicles, including the prefix "PSC" and the authority number. The letter and
numeral symbol size and placement shall be as follows:
The identification symbol shall be in sharp color contrast to the background and such size and shape and so located
as to be readily legible during daylight hours at a distance of 50 feet. The symbols shall be displayed on each side of
the vehicle.
The identifying symbols displayed by a carrier subject to the jurisdiction of the Interstate Commerce Commission
(ICC) shall serve in lieu of the above requirements, provided such ICC operating authority is registered with this Commission in accordance with the Interstate and Foreign Highway Carriers' Act (commencing with P.U. Code Section
[*96] 3901).
Page 27
4.05 - DAMAGE TO IDENTIFICATION SYMBOLS. It shall be the carrier's responsibility to make immediate restoration or replacement of any damage caused to the identification names and numbers on vehicles.
4.06 - ILLEGAL DISPLAY OF P.U.C. IDENTIFICATION. Immediately upon revocation or termination of any certificate the PSC number for the certificate shall be removed from all vehicles. If new operating authority is later granted,
it shall be the responsibility of the carrier to make the appropriate identification.
4.07 - UNAUTHORIZED USE OF OPERATING AUTHORITY. A carrier shall not knowingly permit its operating
authority or its PSC number(s) to be used by others.
4.08 - SALE OR TRANSFER OF VEHICLE. It shall be the carrier's responsibility to remove all certificate numbers
and identification symbols when a vehicle is sold or transferred.
PART 5 - DRIVERS
5.01 - DRIVER TO BE LICENSED. Every driver of a vehicle shall be licensed as required under the California Vehicle Code and shall comply with the driver provisions of the Motor Carrier Safety Sections of Title 13 of the California
Administrative Code.
5.02 - DRIVER RECORD. Every carrier shall enroll in the [*97] "Pull Notice Program" of the Department of Motor
Vehicles as defined in Vehicle Code Section 1808.1. A vehicle shall not be operated by any driver who is presumed to
be a negligent operator under Vehicle Code Section 12810.5.
5.03 - DRIVER STATUS. Every driver of a vehicle shall be the certificate holder or under the complete supervision,
direction and control of the operating carrier and shall be:
A. An employee of the certificate holder; or,
B. An employee of a sub-carrier; or,
C. An independent owner-driver who holds charter-party carrier authority and is operating as a sub-carrier.
5.04 - ALCOHOLIC BEVERAGES AND DRUGS: USE BY DRIVER FORBIDDEN. All drivers shall comply with
the rules in the Code of Federal Regulations Part 49, Sections 392.4 and 392.5. This rule, in part, prohibits drivers
from consuming or being under the influence of a drug or alcoholic beverage while on duty, and prohibits carriers from
allowing drivers to consume or be under the influence of a drug or alcoholic beverage while on duty.
PART 6 - INSPECTIONS
6.01 - RECORDS. Every carrier shall institute and maintain in its offices, a set of records on the services it performs.
These records [*98] shall include tariffs, timetables, and the number of passengers transported. Every carrier shall
also maintain copies of all lease and sub-carrier agreements, and shall maintain maintenance and safety records (including, but not limited to, the records required in Sections 4.01 and 4.02), driver records (including, but not limited to, the
records required in Section 5.02), and consumer complaint records (including, but not limited, to the records required in
Section 7.01). All records shall be maintained for a minimum period of three years.
6.02 - INSPECTIONS. Commission staff shall have the right to enter any vehicle or facility to inspect a carrier's accounts, books, papers, and documents, or to ascertain if Commission rules and State laws are being complied with and
observed. Every owner, operator, or driver of any vehicle shall afford the Commission staff reasonable opportunity
and facilities to make such an inspection.
PART 7 - COMPLAINTS
7.01 - CARRIER REQUIRED TO ANSWER COMPLAINTS. Every carrier shall respond within 15 days to any written complaint concerning transportation service provided or arranged by the carrier. A carrier shall, within 15 days, respond to [*99] Commission staff inquiries regarding complaints and provide copies of any requested correspondence
and records.
PART 8 - TARIFFS AND TIMETABLES
Page 28
8.01 - APPLICABILITY. All carriers shall file tariffs and all scheduled carriers shall file timetables in compliance
with the Public Utilities Code, Commission directives, and the following rules. Commission staff may reject a tariff or
timetable for noncompliance with the rules, any time before it becomes effective. A tariff or timetable currently in
effect may be rejected or canceled for noncompliance on 30 days' notice.
8.02 - PURPOSE. Tariffs and timetables are for the information and use of the general public. They shall be published in a manner that ensures they are readable and that their terms and conditions are easy to understand and apply.
8.03 - FILING REQUIREMENTS. Three copies of each tariff and timetable shall be delivered to the Commission with
a signed transmittal letter clearly explaining the purpose of the filing, the notice provisions followed, and the statutory
authority for the filing. Where the filing affects an airport, an additional copy with attached mailing label, for each
affected airport authority, [*100] shall be provided. Separate filings can be made for distinct services and/or service
territories. A carrier may receive a receipt by filing an additional copy of the transmittal letter and a self-addressed
stamped envelope. A copy of the transmittal letter will be dated by the Commission and returned to acknowledge receipt of a filing. The Commission may direct the reissue of any tariff and/or timetable.
8.04 - POSTING. All carriers shall follow the posting rules set forth in General Order 122 series. In addition, all carriers serving an airport shall conspicuously display tariff and timetable information in each vehicle used in airport service, in each location where airport service tickets are sold, and shall have copies available for public distribution. The
required airport service information shall include, but not be limited to:
a) All airport service fares, or if the carrier has more than 10 fares, at least 10 fares representative of the service
performed.
b) All other charges (e.g. baggage, waiting).
c) Complete complaint procedures including reference to the Commission's regulatory role and passenger complaint line.
For purposes of this section, vehicles serving [*101] airports as part of through intercity service shall not be
deemed carriers serving an airport and shall be exempt from the posting requirements contained herein.
8.05 - CONTENT. Each tariff shall contain the complete terms and conditions under which the carrier will provide
service, including:
A. A title or cover page containing the legal name and Commission-issued PSC number(s) of the carrier, all trade
names, a business address and telephone number, the territory or points to and from which the tariff applies (briefly
stated), the date effective on the bottom right side of the page, and the authority under which the tariff is filed (e.g., decision number, order number).
B. All fares, additional charges, and discount provisions.
C. An attached timetable including specific route points and times for all scheduled services.
D. A service definition, hours of service, and specified territory by name and postal zip code for nonscheduled
services.
E. Any service restrictions or limitations, including policies for: guarantee of service; ticket sale, use, refund, and
exchange; and baggage provisions.
F. If applicable, procedures for the handling of claims for loss or damage [*102] of express shipments consistent
with General Order 139.
G. A consumer complaint procedure that includes the address and telephone number of the Transportation Division's Consumer Affairs Unit.
8.06 - FORM. Tariffs and timetables shall be filed in book (pamphlet) or loose-leaf form. Tariffs shall be machine-printed on paper of good quality.
Page 29
8.07 - SIZE. Tariffs and timetables shall be filed on paper of good quality that is no larger than 8-1/2 inches by 11
inches and no smaller than 8 inches by 10-1/2 inches.
8.08 - UNIFORM SYMBOLS. Uniform symbols shall be used to indicate changes in tariffs as follows:
Letter (A), (a) or <> to indicate increases.
Letter (R), (r) or >SO> to indicate reductions.
Letter (C), (c) or >SO> to indicate a change resulting in neither an increase nor a reduction.
The following symbols shall be used only for the purposes indicated:
* to show new material added to the tariff.
+ to show "Applicable to intrastate traffic only."
>SO> to indicate "Applicable to interstate traffic only."
[] to indicate reissued matter.
8.09 - LOOSE-LEAF TARIFFS. Each page or supplement of a loose-leaf tariff shall show:
A. The name, PSC number, address, [*103] and telephone number of the issuing carrier.
B. The page number (e.g. "Original Page 4," Third Revised Page 10," etc.).
C. The date the page will become effective in the lower right corner.
D. The authority under which the amendment is filed.
E. Amendments shall be made by filing new pages. Amended pages shall be new pages or consecutively numbered revisions of previous pages (e.g. "First Revised Page 10 cancels Original Page 10"). A loose-leaf tariff may be
canceled by supplement or by filing a new tariff.
F. A one-inch margin on the left-hand side of each page.
8.10 - AMENDMENTS TO BOOK TARIFFS. Book (pamphlet) tariffs shall be amended by filing supplements constructed generally in the same manner and arranged in the same order as the tariff being amended. Each supplement
shall refer to the page, item, or index of the tariff or supplement it amends. Every supplement, excluding suspensions
and cancelations, shall contain a cumulative index of changes in the tariff. No tariff shall have more than 2 supplements
in effect at any one time. When a tariff with 2 supplements requires amendment, the entire tariff shall be reissued.
8.11 - ADOPTION OF TARIFFS. When [*104] operative rights of a carrier are transferred from the operating control
of one company to that of another, the succeeding carrier shall issue its own tariff canceling the tariff of the preceding
company or issue an adoption notice accepting as its own the tariffs of the preceding company. The adoption notice
shall state the Commission order authorizing the transfer. The carrier shall also immediately inform, in writing, all
agents or other carriers issuing tariffs in which it participates, of the change in ownership.
8.12 - CHANGE OF NAME. When a carrier changes its legal or trade name, without the transfer of control, it shall,
within 10 days, amend its tariff to show the new name of the carrier. The carrier shall also, within 10 days, inform in
writing all agents or other carriers issuing tariffs in which it participates of the change in name. Said agents and carriers shall promptly amend the affected tariffs to reflect the change in name. The tariff amendments shall show the new
name of the carrier and its former name, for example "ABC Limo (formerly XYZ Limo)."
PART 9 - EXEMPTIONS
9.01 - BY WRITTEN REQUEST. If, in a particular case, exemption from any of these rules [*105] and regulations is
desired, a written request may be made to the Commission for such exemption. Such a request shall be accompanied by
a full statement of the conditions existing and the reasons relied on to justify the exemption. It is to be understood that
any exemption so granted shall be limited to the particular case covered by the request.
Approved and dated October 12, 1989, at San Francisco, California.
Page 30
PUBLIC UTILITIES COMMISSION
STATE OF CALIFORNIA
By Wesley Franklin Acting Executive Director
APPENDIX C
15. (Rule 15) Contents.
All applications shall state clearly and concisely the authorization or relief sought; shall cite by appropriate reference the statutory provision or other authority under which Commission authorization or relief is sought; and, in addition to specific requirements for particular types of applications (see Rules 18 through 41), shall state the following:
(a) The exact legal name of each applicant and the location of principal place of business, and if an applicant is a
corporation, trust, association, or other organized group, the State under the laws of which such applicant was created or
organized.
(b) The name, title, address and telephone [*106] number of the person to whom correspondence or communications in regard to the application are to be addressed. Notices, orders and other papers may be served upon the person
so named, and such service shall be deemed to be service upon applicant.
(c) Such additional information as may be required by the Commission in a particular proceeding.
(d) Applications for ex parte action shall set forth the basis for such request, and those seeking the granting of relief
pending full hearing shall set forth the necessity for such relief.
(e) In addition to otherwise complying with these rules, each application for authority to abandon passenger stage
service, or to reduce service to less than one trip per day (excluding Saturday and Sunday), shall include the following
exhibits, except that passenger stage corporations operating solely intrastate are exempted from this requirement:
NOTE: If more than one point, route, or route segment is included in the application, the indicated data are to be separately stated for each point, route, or route segment.
Exhibit 1. Points and Routes Affected -- a listing of points, routes, and route segments to be abandoned, including
identification [*107] and a brief description of any other passenger transportation service available at the points or
along the routes affected.
Exhibit 2. Maps -- maps to scale showing each point, route, and route segment to be abandoned.
Exhibit 3. Timetables -- copies of current and proposed timetables covering the affected points and routes.
Exhibit 4. Authority -- copies of current and proposed certificate authorities covering the affected points and
routes.
Exhibit 5. Traffic -- traffic data for a recent representative period, showing numbers of interstate and intrastate
passengers (by classification if more than one type of ticket is sold) destined to and originating from each point to be
abandoned; also package express shipments similarly stated.
Exhibit 6. Fares and Rates -- description of the fares and rates applicable to the affected services.
Exhibit 7. Revenues -- calculation of the annual interstate and intrastate passenger, express, and other revenues
which accrue as a result of the service to be abandoned, along with an explanation of how the revenues were calculated
and of any assumptions underlying the calculations.
Exhibit 8. Operating Statistics -- calculations of route [*108] miles, annual bus miles, and schedule operating
time to be eliminated for each point, route, or route segment to be abandoned.
Exhibit 9. Expenses -- calculation in the Uniform System of Accounts for Common and Contract Motor Carriers
of Passengers, of the variable costs of operating each affected service, with an explanation of how the costs were calculated, and of any assumptions underlying the calculations (assumptions should be consistent with those used to calculate
revenues). Any labor costs included shall also be separately identified and described.
Page 31
Exhibit 10. Financial Assistance -- description of any present operating subsidies or financial assistance applicable
to the affected service, including identification of source, amounts, duration, and any significant terms or conditions
applicable; also description of any proposals or discussions with respect to operating subsidies or financial assistance
which have occurred during the year preceding the filing of the application.
Exhibit 11. Additional Evidence -- any additional evidence or legal argument applicant believes to be relevant to
the application.
Legal Topics:
Energy & Utilities LawUtility CompaniesGeneral OverviewTransportation LawAir TransportationAirportsEstablishment, Maintenance & OperationTransportation LawAir TransportationCharters
Exhibit J
DWT 22084375v1 0096932-000004
Page 1
1 of 1 DOCUMENT
In Affiliated Cab Drivers v. K.T.L. Co. Limousines, et al. the Commission finds defendants to have illegally functioned as taxicab operators and to be in violation of their Class
B charter-party carrier certificate. Complainant granted relief.
Decision No. 8205069; Case No. 10902
May 17, 1982
DISPOSITION: Levander
HEADNOTES: [*1]
[1] PRACTICE - DISCOVERY
The issue of whether defendants should be permitted to use top lights on their vehicles is a very narrow issue not
requiring the discovery process.
[2] CHARTER - PARTY CARRIERS
The testimony in this proceeding demonstrates the use of top lights on charter-party passenger vehicles blurs the
public perception of differences between charter-party vehicles and taxi cabs. The use of top lights creates a potential
for misleading the public. It would be desirable to eliminate top lights from all charter-party passenger vehicles operating within the franchised area of any taxicab company to eliminate that potential abuse.
[3] CHARTER - PARTY CARRIERS
The testimony supports the clarifications sought by Los Angeles and also supports prohibition of flag taxi meters.
These types of taxi meters should not be used in any charter-party vehicles to maintain an important distinction between
the appearances of taxicabs and charter-party vehicles.
James E. Hetherington, for complainants. David Gurewitz,n1 Attorney at law, for Allied Limousine Service, Inc.; and
Mohamed Alabi Kettani [*2] , for K.T. Limousine Service; defendants. K. D. Walpert, for Department of Transportation, City of Los Angeles, intervenor. William Austin and Owen Lee Miller, for the Commission staff.
n1 David Gurewitz's request, by letter dated may 12, 1981, to be relieved as attorney of record for V.S.P.
Limousine Company (V.S.P.) because he cannot contact Young Tac Moon, V.S.P.'s owner, is granted. V.S.P.
has voluntarily suspended its charter-party operating permit.
PANEL: Grimes, Leonard M; Gravelle, Richard D; Calvo, Victor; Grew, Priscilla C
OPINIONBY: Bryson, John E
OPINION:
OPINION
Page 2
Background
Complainant states that it represents approximately 300 taxicab drivers employed by eight taxicab companies.
Complainant alleges that Allied Limousine Service, Inc. (Allied), K.T. Limousine Service (K.T.L.), and V.S.P. have
illegally functioned as taxicab operators and are in violation of Commission orders governing their operations as Class
B charter-party carriers of passengers. Complainant dropped its request for a cease and desist order from the Commission prohibiting these illegal activities.
By Decision (D.) 92725 dated February 18, 1981, the Commission dismissed the complaint against the Hilton Hotels Corporation, the City of Beverly Hills, and John Logan [*3] because these defendants are neither public utilities
nor other regulated businesses over which his Commission has jurisdiction.
Summary
Allied, K.T.L., and V.S.P. illegally functioned as taxicabs. They used vehicles resembling taxicabs, primarily
through their use of top lights. Allied and K.T.L. are ordered to remove the top lights from their vehicles. They will
be required to operate in conformity with the conditions added to their permits in this decision. Similar requirements
are made a precondition for lifting of the suspension of V.S.P.'s permit.
Alleged Violations
Paragraph 4 of the complaint alleges actions by the three charter-party defendants which show they essentially operate as taxicab operators rather than charter-party carriers:
a. Use of domes on the roofs of their vehicles;
b. Use of taximeters in their vehicles;
c. Responding to whistles or lights calling for a taxi at the Beverly Hilton Hotel;
d. Blockading (occupying) a private taxi stand which prevents taxis from waiting for passengers; and
e. Defendants' drivers, operating at the Beverly Hilton Hotel, do not always posses a trip ticket showing the address of the person requesting [*4] or arranging the charter and the date the request was made. In addition, defendants' charter-party trip tickets do not show who paid for the transportation or how and when that payment was made.
The complaint further alleges noncompliance with Part 10, Service Regulations, and Part 13, Passenger Charter-Party Records, of the Commission's General Order (GO) 98-A. n2
n2 Subsections 10.00, 10.01, 10.02, 10.05, 13.00, and 13.01 of GO 98-A pertain to charter-party operations.
Preliminary Matters
Gurewitz advised Administrative Law Judge (ALJ) Levander that Allied would prefer to enter into a stipulation to
satisfy the complaint to avoid the expenses of a hearing. Complainant objected to that procedure. At that time, V.S.P.
had voluntarily suspended its charter-party operating permit and K.T.L. did not have insurance in force. Therefore,
V.S.P. and K.T.L. did not have authority to operate as charter-party carriers of passengers.
On May 13, 1981 the ALJ issued a ruling which contained the above-noted list of alleged violations n3 and set a
prehearing conference on May 27, 1981. That ruling states in part:
n3 Complainant did not add to this list.
"If Allied admits [*5] to certain actions but contends that it may perform such actions, resolution of the points in
dispute may follow oral argument. If Allied stipulates that it will not perform specific actions in the future and that it
will operate in full conformity with the relevant portions of Sections 10 and 13 of General Order 98-A, there is no need
for hearing on those issues."
"Complainant and defendant Allied are each directed to prepare a proposed stipulation, of not more than three pages, for consideration by the Commission at the prehearing conference based upon the specific actions or omissions set
forth in the complaint. If Allied admits to certain actions set forth in the complaint which it believes to be lawful, it
Page 3
should state the bases of its contentions. I will permit oral argument and possibly briefs on any points in dispute. If
Allied does not file a stipulation or argument on specific allegations contained in the complaint, hearings will be scheduled."
Copies of the ruling were also sent to the last known address of V.S.P. and K.T.L. with instructions to appear at the
prehearing conference and make a presentation similar to that described for Allied.
On May 21, 1981 [*6] the Department of Transportation, City of Los Angeles (Los Angeles), submitted a petition to intervene in this proceeding. The petition states:
"The Department of Transportation, City of Los Angeles, administers the passenger transportation laws and rules of
the City, including franchised taxicab operations. The Department (and its predecessor, the Department of Public Utilities and Transportation) has participated in charter-party carrier of passengers proceedings before this Commission.
"The position of the petitioner is in support of the complainants in that operations of charter-party carrier of passenger permittees should not resemble taxicabs in their appearance or their mode of operations. It is not the intention
of petitioner to unduly broaden the issues in this case, but petitioner seeks the right of full participation in the proceeding."
Prehearing Conference
At the prehearing conference Mohamed Alabi Kettani doing business at K.T.L. entered an appearance. He stated
that K.T.L. had obtained insurance and that it had valid operating rights. Staff confirmed that statement.
Allied stipulated to all of the alleged violations, except that it sought to continue [*7] using top or dome lights on
its vehicles. Gurewitz agreed to an addition to Allied's stipulation to include compliance with Part 12.01 of GO
98-A,n4 which was proposed by staff. Its stipulation includes an agreement that Allied's trip tickets would be in full
compliance with Section 13.01 of GO 98-A.n5 The complaint referred to violations of provisions of GO 98-A in Beverly Hills. Allied Agreed to the ALJ's recommendation that any stipulation involving a violation should govern all of
Allied's operations.
n4 "12.01. DRIVER STATUS. Passenger state corporations and passenger charter-party carriers shall not
operate any passenger stage unless the driver thereof is under the complete supervision, direction and control of
the operating carrier, and is:
"(a) An employee of the operating carrier, or
"(b) An employee of a public transit agency or of another Commission-authorized carrier that owns or possesses the vehicle by virtue of a bona fide full-time lease arrangement of 30 days or longer. This agreement for
the utilization of the second carrier's vehicle and driver by the operating carrier shall be evidenced by written
contract between the two carriers, or
"(c) An owner-driver who, himself, holds Commission authority as a specialized charter-party permit carrier, pursuant to Public Utilities Code Section 5384(a). Such owner-driver permit shall be limited to one vehicle."
n5 "13.01. CHARTER-PARTY CARRIERS TO MAINTAIN RECORDS OF CHARTER TRIPS. All
passenger charter-party carriers shall institute and maintain a set of records which will reflect the following information on each charter performed:
"1. Name and address of person requesting or arranging the charter and date the request was made.
"2. Who paid for the transportation and how and when such payment was made.
"3. How the charge made for the trip was computed.
"4. Points of origin and destination, mileage of trip and route (listed for each day when charter was overnight or for a longer period).
"5. Total number of hours the driver was on duty and total driving time; identification of bus or buses
used.
Page 4
"6. Identification of driver and person, if any, who had charge of the charter group.
"7. Driver's itinerary, to be completed by the driver, which will list:
"(a) All stops, with the time of arrival and departure.
"(b) Any supplementary service performed not provided for in the original charter order.
"(c) Driver's remarks, if any, regarding the conduct of the charter and performance of the bus."
[*8]
Allied and K.T.L. challenged James Hetherinton's right to hold himself out as representative of a group of taxicab
drivers and contend that Hetherington is not, in fact, a taxicab driver. Allied sought a six-month continuance to permit
discovery on whether Affiliated Cab Drivers existed as an organization, whether Heterington could properly represent
complainant, and on the issue of dome or top lights.n6 K.T.l. would not enter into any stipulation on any of the issues
raised in the complaint. Complainant sought a stipulation on all issues and an admission of the alleged violations from
Allied. Los Angeles proposed a stipulation which went beyond the scope of the issues raised in the complaint,n7
which are summarized above.
n6 By ruling dated July 9, 1981, the ALJ denied Allied's request for postponement of the August 10, 1981
hearing to proceed with discovery of the issue of top lights on its vehicles and advised the parties that the Commission would not open an investigation or rulemaking proceeding governing the use of top lights at that time.
n7 Los Angeles sought a stipulation that complainants would comply with city ordinances and laws, seal
odometers and speedometers as required by the California Business and Professions Code, and not decorate their
vehicles to be suggestive of vehicles authorized to operate as taxicabs by local ordinances.
[*9]
Staff stated that: (1) the Commission had not specifically banned top lights on charter-party vehicles, but had prohibited the use of the words "for-hire" on top lights; (2) the banning of top lights or modifications to the use of top lights
was handled on a case-by-case basis; and (3) a substantial number of charter-party limousine operators use top lights.
Gurewitz stated that the sign on the top lights of Allied's vehicles said "Allied" in front and "Limousine" in back.
He argued that he did not see the logic of switching the positions of those words, but that no stipulation on that basis
was possible given the participation of Los Angeles as an intervenor seeeking to ban top lights. The ALJ overrulled
Allied's objection and permitted the intervention of Los Angeles in this proceeding. Hetherington indicated that if the
Commission would permit the use of top lights by defendants, he would advocate the switch in wording on the top
lights, but we would prefer that the Commission ban top lights on charter-party vehicles. Staff and Los Angeles recommended that the Commission open an Order of Investigation to resolve the top light issue. As an alternate, staff
suggested banning [*10] top lights by a resolution modifying GO 98-A.
Hearing
A hearing was held on August 10, 1981 in Los Angeles and was submitted on that date. The scope of the hearing
was to take evidence on the use of top lights, which was applicable to all defendants, and to all of the issues relating to
K.T.L.'s operations. Neither Allied nor staff appeared or participated at the hearing. Kettani appeared and participated
for K.T.L. However, on August 3, 1981 Allied mailed a trial brief to the ALJ, Los Angeles, and complainant. Complainant and Los Angeles called the following witnesses: Hans Kosmali, a taxicab owner-driver; George Cuttrell, the
chief public utilities inspector for Los Angeles Department of Transportation; James Washington, a senior public utilities inspector for Los Angeles Department of Transportation; Attila Fenyes, the owner of a charter-party carrier; G.
Vincent DeCasar, the owner of a charter-party carrier and of taxicab companies; and Kettani, owner of K.T.L. Kettani
was called as an adverse witness by Hetherington. Kettani then called Hetherington as an adverse witness.
Testimony of Complainant
Several of complainant's witnesses testified that taxicabs [*11] are generally recognizable both in United States
and abroad by their top lights, flagged meters, and colors.
These witnesses looked at a series of photographs of oncoming taxicabs and charter-party cars. They could identify charter-party limousines without top lights, but could not distinguish between top-lighted charter-party vehicles and
Page 5
taxicabs. They believed that members of the public would have difficulty in distinguishing between taxicabs and
top-lighted charter-party passenger vehicles. They described witnessing top-lighted charter-party carriers being hailed
down on for-hire basis or soliciting for-hire passenger business.
Testimony of Los Angeles
Cuttrell and Washington are employed by Los Angeles. They are charged with investigation and enforcement
work on complaints and compliance with city ordinances, state laws, orders of the Board of Transportation Commissioners, and compliance with the terms of franchises and permits. Their responsibilities include operations of taxicabs,
automobiles for-hire, public transportation vehicles, private ambulances, and the filing of complaints against illegal operators.
They testified that top lights on charter-party [*12] vehicles cause confusion. Los Angeles receives many complaints believed to be against taxicab services, which are actually complaints against charter-party vehicles with top
lights. The public frequently complains about overcharges, unsafe operation of vehicles, discourtesy, and/or solicitation by such charter-party operators. These witnesses often find charter-party limousines with top lights at taxicab
zones, large hotels, cruising at airports, and at all places where there is a high demand for taxicab service.
The witnesses contrasted taxicab and charter-party limousines. Taxicabs are equipped with top lights, taximeters,
posted rates, color schemes, and signs to provide ready identification of their for-hire status. Luxury limousines resemble large family automobiles. They operate from garages or approved stands. Their drivers pick up passengers on
a prearranged basis. Their charges are based upon time or distance or a combination of these two factors. Charter-party limousines, which do not simulate a taxicab service through the use of top lights, cause no problems for Los
Angeles.
Exhibit 3 contains two photographs showing a top-lighted Allied station wagon parked [*13] in the red zone at the
end of a Union Station taxicab zone. Washington testified that Allied's driver was outside of his car attempting to solicit
business. The photographs showed "Allied" printed on the front and rear of the top lights. In Exhibit 5 Washington
provided two photographs of an orange charter-party carrier station wagon at Los Angeles Valley College. The word
"CHECKER" is on the front top light of the vehicle.
Cuttrell testified that use of limousines with top lights is a form of consumer fraud because the complaints he receives indicate that people who paid charter-party charges believed that the vehicles they hired were taxicabs which
charge rates regulated by the city.
Testimony of Defendant K.T.L.
Kettani, called as an adverse witness, testified as follows:
1. Taxicabs display the word(s) "Taxi" and/or a company name on their top lights. However, the words "K.T.L.
Limousine Service TCP 1427" on the top lights of his K.T.L. station wagon distinguish his charter-party vehicle from a
taxicab.
2. Prior to this proceeding, he operated K.T.L. without keeping any passenger records. Exhibit 4 contains his
charter-party records from January to July [*14] 1981. The basis of his charges for one trip listed in Exhibit 4 was
anything acceptable. On another listed trip he charged $1 per mile, which is less than taxi fare, and he did not charge
for a two-hour waiting period.
3. He uses a taximeter which is kept in the glove compartment of his vehicle.
4. He is not familiar with GO 98-A.
5. He does not have K.T.L.'s TCP number on the side of his vehicle.
6. After dropping off passengers, he will pick up other passengers waiting for a taxicab at that location.
7. He generally obtains customers by waiting at the Beverly Hills Hotel until hotel employees call him. That hotel has no taxicab zone.
8. He distributes K.T.L. cards to customers and to doormen at the Beverly Hills Hotel, but does not advertise in
the yellow pages of the telephone directory.
Page 6
9. His station wagon is smaller than the Allied station wagon shown on Exhibit 5. His vehicle is painted in more
than one color.
10. He has been able to distinguish between top-lighted charter-party vehicles and taxicabs since he has been in
the charter-party business.
Testimony of Hetherington
Hetherington, called as an adverse witness, testified that he was [*15] a taxicab driver at the time the complaint
was filed. (He previously stated that he was no longer a taxicab driver.) In response to Kettani's allegation of harassment, Hetherington admitted that several taxicab drivers assisted him in serving a subpena on Kettani at the area used
by taxicabs at the Beverly Hills Hotel. He denied that any of those drivers used their vehicles to prevent Kettani from
leaving during service of the subpena. He further testified that the actions of the taxicab drivers, at the Beverly Hills
Hotel, were designed to secure the relief requested in the complaint.
Arguments of Complainant and Intervenor
Kosmali, acting as spokesman for complainant, stated that a very large number of taxicab drivers working for several taxicab companies felt they were being forced out of business by defendants' limousines "playing taxicab", i.e.,
parking up to eight vehicles in all of the spaces used for taxicab pickups at the Beverly Hills Hotel and at the Beverly
Hilton Hotel and keeping taxicabs from picking up customers at those hotels. He also stated that Hetherington actively
worked with other taxicab drivers to get defendants out of the taxicab business by [*16] filing this complaint and by
attempting to secure the cooperation of the hotel managements and the City of Beverly Hills. He claims that until recently the hotel managers would not cooperate with the taxicab drivers and the City of Beverly Hills would not act
against defendants on private hotel property.
Kosmali claims that after the Beverly Hilton Hotel management banned defendants from the taxicab area on their
property, defendants transferred their operations to Los Angeles hotels.
Kosmali stated that Kattani is using an Argo taximeter in his K.T.L. vehicle which records mileage, time of occupancy, and fares, but does not have a flag.
Complainant argues that if defendants' vehicles did not look like taxicabs, they would lose most of their business.
Complainant does not want to take limousine business from defendants, but the taxicab drivers, in turn, do not want to
lose taxicab business to defendants.
Los Angeles argues that Public Utilities (PU) Code Section 5353(g) recognizes the differences between taxicab
transportation service licensed and regulated by a city or county and charter-party carriers. To preserve that difference,
the Commission has found that charter-party [*17] vehicles may not use top lights in metropolitan areas.
Neither complainant nor Los Angeles seek a revocation of defendants' operating authority at this time, but they
want the Commission to require defendants to act as charter-party carriers. Los Angeles recommends that no top lights
be permitted on charter-party vehicles except in rural areas.
Arguments of Defendants
Kettani argues that K.T.L. desires top lights to identify its vehicle and to let customers know the vehicle is for-hire.
He does not believe that K.T.L. would lose business if he had to remove top lights from his vehicle.
Allied contends that at best, a top light is only a form of advertisement rather than an invitation to the customer on
the street to hire the vehicle or limousine on the spot, and that public awareness that limousine service is to be arranged
for ahead of time is not changed by the signs on Allied's top lights.
Both Allied and K.T.L. stress that should be allowed to use top lights since most charter-party vehicles are
equipped with top lights.
Allied argues that the Commission ordered the removal of top lights from charter-party vehicles where the words
"for-hire" or "vacant" were [*18] on top lights or in cases settled by stipulation.
Discussion
Page 7
Status of Complainant and Hetherington
PU Code Section 1702 states in part:
"Complaint may be made by . . . any corporation or person, . . . by written petition or complaint, setting forth any
act or thing done or omitted to be done by any public utility, including any rule or charge heretofore established or fixed
by or for any public utility, in violation or claimed to be in violation, of any provision of law or of any order or rule of
the commission. . . ."
This text, with minor modifications, is incorporated in Rule 9 of the Commission's Rules of Practice and Pprocedure. PU Code Section 204 states in part: "'Corporation' includes a corporation, a company, and association, . . ." PU
Code Section 205 states in part; "'Person' includes an individual, . . ."
A complaint may be filed by an individual or association against a charter-party carrier of passengers based on PU
Codes Sections 5381 and 5382.n8 There is no inconsistency between Division 1 and 2 of the PU Code preventing the
Commission from processing a complaint against a charter-party carrier of passengers.
n8 "5381. To the extent that such is not inconsistent with the provisions of this chapter, the commission
may supervise and regulate every charter-party carrier of passengers in the State and may do all things, whether
specifically designated in this part, or in addition thereto, which are necessary and convenient in the exercise of
such power and jurisdiction."
"5382. To the extent that such are not inconsistent with the provisions of this chapter, all general orders,
rules and regulations, applicable to the operations of carriers of passengers under authority of certificates of public convenience and necessity issued pursuant to the provisions of Article 2 (commencing at Section 1031),
Chapter 5, Part 1, Division 1 of this code, unless otherwise ordered by the commission shall apply to charter-party carriers of passengers."
[*19]
The answer to the complaint filed for Allied and V.S.P. dated October 14, 1980 alleges that Affiliated Cab Drivers
is a figment of the imagination of Hetherington, attempting to act as attorney for a nonexistent entity. Those defendants requested that the complaint be dismissed for lack of standing of complainant who is not the real party in interest.
Kosmali's statement indicates that complainant is an informal association of a large number of taxicab drivers
which seeks relief to prevent defendants from continuing to operate as taxicabs. Affiliated Cab Drivers is an informal
association of taxicab drivers with standing to file this complaint.
The complaint raises valid issues about defendants' failure to comply with GO 98-A, the rules and regulations governing their operations as passenger charter-party carriers, and of defendants' unlawful operations as taxicabs. Complaint's witnesses testified they were losing taxicab business as a result of defendants' actions.
The discovery issue on status is immaterial because Hetherington could have filed the complaint as an individual or
as a representative of an informal association of taxicab drivers. Hetherington's status [*20] as a taxicab driver at any
particular time is irrelevant. If Hetherington had filed the complaint as a individual, the Commission would not have
been required to dismiss his complaint because of the absence of direct damage to him (see PU Code Section 1703).
That issue was recently addressed by the Commission in Paul K. Montgomery v James Water Company, Inc, et al.,
D.93585 dated October 6, 1981 in Case (C.) 10815, which contains a conclusion of law that complainant (a former water company customer) had standing to file a (public utility status) complaint against that water company. Mimeo. page
11 of D.93585 states in part:
"We are liberal in viewing the construction of complaints due to our desire to pinpoint and rectify genuine grievances (Utility User's Assistance League v P.T.&T. Co. et al., . . ." D.60612 dated August 23, 1960 in C.6333).
Status of Los Angeles
Los Angeles' petition to intervene is consistent with Rule 53. Los Angeles did not unduly broaden the issues
raised in the complaint. The ALJ properly permitted Los Angeles' participation in this proceeding.
Discovery
Page 8
In addition to the status issue, Gurewitz's request for discovery to [*21] explore the motives of Hetherington
and/or complainant, Los Angeles, and staff appears to be designed to harass the opposition rather than to expedite the
proceeding. The Commission will not allow use of discovery to explore irrelevant issues, and to foster delay.
The issue of whether defendants should be permitted to use top lights on their vehicles is a very narrow issue not
requiring the discovery process. This issue was posed in the complaint and in the ALJ's ruling May 13, 1981. We
affirm the ALJ's ruling in not extending time for discovery on this issue.
Top Lights
Complainant and Los Angeles established that taxicabs are equipped with top lights, taximeters, posted rates, color
schemes, and signs to provide ready identification of their for-hire status. Top lights may be the only feature a potential customer could use to identify taxicabs in an oncoming stream of traffic. Many members of the public cannot distinguish between taxicabs and top-lighted charter-party passenger vehicles. Los Angeles receives many complaints
from people entering charter-party vehicles in the belief that they were hiring taxicabs.
Kettani's claims that the top-light sign which shows [*22] his company name and TCP number distinguishes his
vehicle from the taxicab and that he can tell the difference between top-lighted charter-party carriers and taxicabs are
not convincing. The level of recognition of the meaning of a TCP number is likely to be low among California residents and lower still in visitors from other states or countries. There are hundreds of charter-party carriers and many
taxicab companies operating in the Los Angeles and Beverly Hills areas.
Los Angeles cited decisions ordering the removal of top lights from charter-party vehicles. Those decisions prohibited use of the words "for-hire" or "vacant" or pertained to cases settled by stipulation. The testimony in this proceeding demonstrates that use of top lights on charter-party passenger vehicles blurs the public perception of differences
between charter-party carrier vehicles and taxicabs. The use of top lights creates a potential for misleading the public.
It would be desirable to eliminate top lights from all charter-party passenger vehicles operating within the franchised
area of any taxicab company to eliminate that potential abuse.
Los Angeles established that an Allied driver operating [*23] a vehicle equipped with top light solicited illegal
taxicab or for-hire business next to a taxicab zone. Kettani's own testimony establishes that he uses a K.T.L. vehicle,
equipped with top light, to conduct an illegal taxicab business. A charter-party may not conduct taxicab activities as
described in PU Code Section 5353. The resemblance of Allied and K.T.L. vehicles to taxicabs due to their use of top
lights should be discontinued.
Commission Action
Since Allied and L.T.L. committed illegal acts in violation of their charter-party permits, we will amend their respective permits. They will be required to operate in conformity with the conditions in their permits. The conditions
required of Allied give consideration to Allied's stipulations and to its unlawful acts. The conditions for K.T.L. are
based on its unlawful acts. These conditions should be included in any permit renewals.
We cannot, and will not, condone misconduct by permit holders. However, we are giving consideration to the
willingness of complainant and Los Angeles to allow defendants to operate if they operate as charter-party carriers.
Kettani is the unsophisticated owner-operator of a small passenger [*24] vehicle used in providing for-hire service.
We will not seek fines or other sanctions against defendants at this time. However, Allied and K.T.L. are each put on
notice that the Commission may act to revoke their operating authority and seek other penalties if they violate the terms
of their amended permits. These fines and penalties are set forth in PU Code Section 5411 to 5419, inclusive.
If V.S.P. seeks to release its permit from suspension, its permit will be amended to incorporate conditions for its
operations. These provisions should be incorporated in any permit renewals.
The scope of these conditions is discussed below. The carriers should familiarize their employees with the terms
of their permits.
Required Allied Conduct
Complainant and Los Angeles did not agree to Allied's stipulation on top lights. Allied agreed to certain modifications of its stipulation on other issues raised in the complaint. Allied agreed that it would not respond to whistles or
lights calling for a taxicab at the Beverly Hilton Hotel and extended the prohibition to any private or public taxicab
Page 9
stand. Allied agreed not to occupy a private taxicab stand which prevents taxicabs [*25] from waiting for passengers
and extended the limitation to any private or public taxicab stand.
Allied agreed that it would not use any taximeters in its vehicles although it will use odometers to keep track of
mileage. The use of odometers in Allied vehicles would be permissible. Los Angeles proposed that no taximeter or
similar meter be used in defendants' vehicles for the purpose of displaying to a passenger(s) the elapsed time and/or fare
owed. The testimony supports the clarifications sought by Los Angeles and also supports prohibition of flagged taximeters. These types of taximeters should not be used in any charter-party vehicles to maintain an important distinction
between the appearances of taxicabs and charter-party vehicles.
In light of Allied's operation as a taxicab just outside of a taxicab zone, the following additional modifications are
required:
a. Allied's drivers should not respond to whistles or lights calling for a taxicab at any location. Its drivers should
not solicit or accept for-hire business.
b. Allied's vehicles should not occupy any taxicab stand, area reserved for taxicabs, or adjacent areas not reserved
for charter-party carriers.
This [*26] restriction would not preclude Allied's use of a common passenger loading zone, limited to the time
needed to drop off pick up passengers who had made prior arrangements with it.
Based on the discussion on top lights, we will reject the portion of Allied's stipulation which would permit it to use
top lights. Allied will be required to remove top lights from its vehicles.
Allied's further stipulations that (1) its drivers shall always possess a trip ticket showing the name and address of
the person requesting or arranging the charter, the date the request was made, who paid for the transportation or how
and when payment was made, and (2) that it will operate in full conformity with the relevant portions of Parts 10, 12,
and 13 of GO 98-A are reasonable and should be adopted. The Part 13.01 record-keeping requirements apply to prearranged charter-party business not to for-hire business. A carrier and/or its drivers cannot legally engage in both activities.
Required K.T.L. Conduct
Kettani's testimony reveals his clear lack of understanding of the differences between taxicab service and charter-party service. He wishes to operate as a charter-party carrier. However, [*27] his testimony constitutes an admission that K.T.L. is not operating as a charter-party carrier or as a regulated taxicab service. He operates an unauthorized vehicle for-hire which resembles a taxicab. He does not assess charges on any consistent basis. PU Code Section 5401 requires charter-party carriers to compute and assess charges on a vehicle mileage or time-of-use basis, or on
a combination of the two. He has not complied with Part 1.18 of GO 98-A which requires carriers to have a copy of
GO 98-A and a current Vehicle Code available to all drivers. His vehicle does not meet the requirements of Parts 10.01,
10.02, and 10.05 of GO 98-A for displaying a vehicle identification number, name, and assigned symbol and number on
each vehicle.
His records are incomplete and not in compliance with Part 13.01 of GO 98-A.
K.T.L. will be required to remove the top light from its vehicle. Its drivers must not solicit or accept for-hire
business. Its drivers must not respond to whistles or lights calling for a taxicab.
K.T.L. will be required to charter its vehicle on a prearranged basis. Its charges must be based on PU Code Section 5401. Its vehicle must be dispatched from a [*28] garage or stand not reserved for taxicabs. Its vehicle may not
occupy taxicab stands, areas reserved for taxicabs, or adjacent areas not reserved for charter-party carriers. Its vehicular
use of passenger loading zones should be limited to picking up and dropping off passengers. Its drivers should have a
copy of GO 98-A and a current Vehicle Code. Its drivers should have a trip ticket prior to picking up a charter. The
balance of the information required in Part 13.01 should be completed after the trip has ended.
K.T.L.'s vehicle must display an identification number, name, and assigned symbol and number in compliance with
Part 10 of GO 98-A.
K.T.L. may continue to use a concealed taximeter in its vehicle
Page 10
Required V.S.P. Conduct
Young Tae Moon, V.S.P.'s owner, engaged counsel to file an answer to the complaint. V.S.P. ended communications with its attorney and abandoned its defense. The complaint describes illegal for-hire activities being conducted
by Allied, K.T.L., and V.S.P. Hetherington testified that the complaint pertained to the three defendants. The allegations against V.S.P. found in the complaint are true. If V.S.P. meets the usual requirements to [*29] release its certificate from suspension, its permit should be amended. The amendment would prohibit it from use of top lights on its
vehicles and from use of taximeters. V.S.P. drivers would be prohibited from responding to whistles or lights calling for
taxicabs. V.S.P. would have to meet the same vehicular occupancy restrictions as Allied and K.T.L. and it would have
to comply with Parts 10 and 13 of GO 98-A.
Findings of Fact 1. Complainant is an informal association of taxicab drivers.
2. Los Angeles filed a timely petition for intervention which did not unduly broaden the issues raised in the complaint.
3. The use of top lights and/or taximeters on charter-party vehicles blurs the public perception of differences between charter-party vehicles and taxicabs.
4. Allied submitted a stipulation based on the issues contained in the complaint. Its stipulation would permit use
of top lights on its vehicles. Allied also stipulated that it would comply with Part 12 of GO 98-A. Allied agreed to certain modifications of its stipulation.
5. An Allied driver operating a vehicle equipped with a top light solicited illegal taxicab or for-hire business next
to a taxicab [*30] zone.
6. Allied's charter-party permit should be amended to incorporate Allied's stipulations modified to conform to the
requirements described on pages 21 and 22. Allied should complete the removal of top lights from its vehicles within
15 days after the effective date of this order.
7. K.T.L. is not operating as a charter-party carrier. It is operating an unauthorized vehicle for-hire.
8. K.T.L.'s charter-party permit should be amended to conform to the requirements described on pages 22 and 23.
K.T.L. should complete the removal of top lights from its vehicles within 15 days after the effective date of this order.
9. V.S.P. abandoned its defense. V.S.P. has voluntarily suspended its charter-party operating permit.
10. The allegations against V.S.P. set out in the complaint are true.
11. If V.S.P. meets the usual requirements to release its permit from suspension, the permit, and any subsequent
renewals, should be amended to conform to the requirements described on page 24.
Conclusions of Law
1.Complainant has standing to file this complaint.
2. Hetherington could have filed the complaint as a individual.
3. Discovery on the status of Hetherington [*31] or complainant is immaterial.
4. The Commission is authorized to process a complaint against a charter-party carrier of passengers.
5. Los Angeles was properly permitted to participate in this proceeding.
6. There would be an unwarranted delay to explore irrelevant issues if discovery to explore the motives of Hetherington and/or complainant, Los Angeles, and the staff was permitted.
7. The issue of whether defendants should be permitted to use top lights and/or taximeters on their vehicles is a
very narrow issue not requiring the discovery process.
8. The text of Allied's stipulations on certain impermissible actions is unduly limited in applicability. Other Allied stipulations require further explanation or amplification.
9. Allied, K.T.L., and V.S.P. violated PU Code Section 5353 and GO 98-A provisions governing charter-party
operations. They provided illegal for-hire services. K.T.L. did not comply with PU Code Section 5401.
Page 11
10. The existing permit authority of Allied and K.T.L. should be amended to conform to the requirements of
Findings 6 and 8, respectively.
11. The requirements for lifting the suspension of V.S.P.'s permit should conform to the requirements [*32] of
Finding 11.
12. Charter-party authority issued by this Commission should include a restriction prohibiting the use of top lights
and/or taximeters on all charter-party passenger vehicles.
ORDER
IT IS ORDERED that:
1. The existing charter-party permit authority of Allied Limousine Service, Inc. (Allied) shall be amended to incorporate the following conditions. Allied shall operate in conformity with those conditions.
a. Top lights of any configuration or color shall be removed from all Allied vehicles.
b. Allied's drivers shall not respond to whistles or lights calling for a taxicab at any location. Allied's drivers
shall not solicit or accept for-hire business.
c. Allied's vehicles shall not occupy any taxicab stand, area reserved for taxicabs, or adjacent areas not reserved
d. Allied shall not use flagged taximeters or taximeters which are used to display to a passenger(s) the elapsed
time and/or fare owed.
e. Allied's drivers shall always possess a trip ticket showing the name and address of the person requesting or arranging the charter, the date the request was made, who paid for the transportation, or how and when payment [*33]
was made.
f. Allied shall operate in full conformity with Parts 10.01, 10.02, 10.05, 12.01, and 13.01 of General Order 98-A.
g. Allied vehicles shall not occupy passenger loading zones, except for picking up and dropping off passengers.
2. The existing charter-party permit authority of K.T. Limousine Service (K.T.L.) shall be amended to incorporate
the following conditions. K.T.L. shall operate in conformity with those conditions.
a. Top lights of any configuration or color shall be removed from any K.T.L. vehicle.
b. K.T.L.'s drivers shall not respond to whistles or lights calling for a taxicab at any location. K.T.L.'s drivers
c. K.T.L.'s vehicle shall not occupy andy taxicab stand, area reserved for taxicabs, or adjacent areas not reserved
d. K.T.L.'s drivers shall always possess a trip ticket showing the name and address of the person requesting or arranging the charter, the date the request was made, who paid for the transportation, or how and when payment was
made.
e. K.T.L. shall operate in full conformity with Parts 1.18, 10.01, 10.02, 10.05, and 13.01 of General Order 98-A.
[*34]
f. K.T.L.'s charges shall be based upon PU Code Section 5401.
g. K.T.L.'s vehicle shall be dispatched from a garage or stand not reserved for taxicabs.
h. K.T.L.'s vehicle shall not occupy passenger loading zones, except for picking up and dropping off passengers.
3. The suspended charter-party permit authority of V.S.P. Limousine Company (V.S.P.) shall not be released from
suspension unless the permit is amended to incorporate the following conditions. Any V.S.P. operations shall be in
conformity with those conditions.
a. Top lights of any configuration or color shall be removed from all V.S.P. vehicles.
Page 12
b. V.S.P.'s drivers shall not respond to whistles or lights calling for a taxicab at any location. V.S.P.'s drivers
c. V.S.P.'s vehicles shall not occupy any taxicab stand, area reserved for taxicabs, or adjacent areas not reserved
d. V.S.P. shall not use flagged taximeters or taximeters which are used to display to a passenger(s) the elapsed
time and/or fare owed.
e. V.S.P.'s drivers shall always possess a trip ticket showing the name and address of the person requesting or arranging [*35] the charter, the date the request was made, who paid for the transportation, or how and when payment
was made.
f. V.S.P. shall operate in full conformity with Parts 10.01, 10.02, 10,05, and 13.01 of General Order 98-A.
g. V.S.P. vehicles shall not occupy passenger loading zones, except for picking up and dropping off passengers.
4. Allied and K.T.L. shall complete the removal of top lights from all of their vehicles within 15 days after the effective date of this order.
5. The staff shall include a restriction prohibiting the use of top lights and/or taximeters in all future charter-party
permits submitted for Commission approval and in all existing charter-party permits when subject to annual renewal.
This order becomes effective 30 days from today.
Dated May 17, 1982, at San Francisco, California.
DISSENTBY: Gravelle, Richard D
I dissent.
The majority opinion today extends C.P.U.C., regulation of charter-party carriers to use of such things as "stop
lights" and "taximeters" and intimates that the paint scheme of charter-party carriers may also be subject to our regulation. I do not believe the C.P.U.C. should concern itself with such questions. Here defendants operated [*36] as
taxicabs without requisite authority from the local jurisdiction. These local communities should have proceeded in a
court of law to seek sanction against defendants and our action should have been restricted to suspension or revocation
of the charter-party carrier permits. By taking the course of action set forth in the decision we have created more problems for ourselves, legitimate taxicab operators, and charter-party carriers. We have done so at a time when our resources to enforce our orders are at an all time low.
Legal Topics:
Energy & Utilities LawUtility CompaniesGeneral OverviewTransportation LawCarrier Duties & LiabilitiesCertificates
of Public ConvenienceIssuanceTransportation LawPrivate VehiclesTraffic RegulationCruising
Exhibit K
DWT 22084375v1 0096932-000004
Page 1
1 of 1 DOCUMENT
In the matter of the applicant (sic) of Yellow Limousine Corporation, a California corporation, for a Class B charter bus certificate from home terminal in Newport Beach, Orange
County, California
Decision No. 84-06-176, Application No. 84-04-108 (Filed April 20, 1984)
June 20, 1984
PANEL: [*1]
Leonard M. Grimes, Jr., President; Victor Calvo, Priscilla C. Grew, Donald Vial, William T. Bagley, Commissioners
OPINION: OPINION
Yellow Limousine Corporation, a California corporation, has applied for a certificate of public convenience and
necessity as a Class B charter-party carrier of passengers (Public Utilities (PU) Code Sections 5371 to 5375).
No other Commission operating authority has been held by applicant.
Applicant states that it has had no experience in the operation of charter services.
Applicant states that it intends to operate a rapid response, high quality limousine service primarily in the Newport-Laguna Beach area. Applicant alleges that the proposed operations are required by the high density of executives
and very affluent persons who could use this type of service.
Applicant's initial total assets are $ 150,000. It is projected that revenue between January and March 1985 will be
$ 918,000.
In Exhibit 1 received May 4, 1984, applicant supplemented the financial and operating information contained in its
application. Initially, applicant proposes to lease 20 Cadillac limousines, each with a capacity of more than five passengers. n1 Applicant contends other limousine [*2] services have a three-hour minimum charge of $ 105 to $ 160; its
minimum charge would be $ 15 which would enable it to compete with taxicabs. In addition, applicant would paint its
limousines yellow and would provide on-call service.
n1 PU Code Section 5359 requires the capacity to exceed five passengers excluding the driver.
Notice of the filing of this application appeared in the Commission's Daily Transportation Calendar of April 27,
1984. No protests have been received.
Discussion
Applicant's proposed operations appear very similar to taxicab operations. We put applicant on notice that the
yellow coloration on its vehicles could subject its certificate to challenge for operating as an unauthorized taxicab service; in operating as a charter-party carrier its drivers may not cruise and/or solicit business or operate from taxicab
stands, or from passenger loading areas, e.g. at hotels; its vehicles may not be equipped with top lights or taximeters; its
rates must be based on time of use, or mileage, or on a combination thereof; its drivers may not pick up passengers
without a reservation. However, a $ 15 minimum for a specific time interval is permissible.
Page 2
Findings of [*3] Fact
1. Applicant has the ability and financial resources needed to obtain the equipment required to perform the proposed service.
2. Public convenience and necessity require the service proposed by applicant.
3. Applicant should be authorized to pick up passengers within a radius of 40 air miles from its home terminal at
2043 Westcliff Drive, Newport Beach.
4. No protest has been received and a public hearing is not necessary.
5. It can be seen with certainty that there is no possibility that the activity in question may have a significant effect
on the environment.
Conclusions of Law
1. Public convenience and necessity have been demonstrated and a certificate should be granted.
2. Applicant's operations must be in conformity with the requirements discussed above.
3. This order should become effective immediately as public convenience and necessity have been demonstrated.
ORDER
IT IS ORDERED that:
1. A certificate of public convenience and necessity, to be renewed each year, is granted to Yellow Limousine
Corporation, authorizing it to operate as a Class B charter-party carrier of passengers, as defined in PU Code Section
5383, from a service area with a radius [*4] of 40 air miles from applicant's home terminal at 2043 Westcliff Drive,
Newport Beach.
2. Applicant shall:
a. Obtain California Highway Patrol (CHP) clearance for each vehicle to be used in this Class B charter-party operation.
b. Notify the Commission and CHP of any addition or deletion of vehicle used in the service prior to use.
c. Establish the authorized service within 360 days after this order is effective.
d. Remit to the Commission the Transportation Reimbursement Fee required by PU Code § 403 when notified by
mail to do so.
3. The Passenger Operations Branch will issue the annual renewable certificate on Form PE-695 as authorized by
Resolution PE-303 when it receives CHP clearances and evidence of liability protection in compliance with General
Order Series 115.
4. In providing service under the certificate, applicant shall comply with General Orders Series 98 and 115 and the
CHP safety rules.
5. Prior to initiating service to any airport, applicant shall notify the airport authority involved. This certificate
does not authorize the holder to conduct any operations on the property of or into any airport unless such operation is
authorized by both this Commission [*5] and the airport authority involved.
6. The Class B certificate of public convenience and necessity granted by this order does not authorize round-trip
sightseeing-tour service, which is not subject to regulation by this Commission. It does, however, permit applicant to
offer charter service to a sightseeing-tour operator.
7. The application is granted as set forth above.
This order is effective today.
Dated June 20, 1984, at San Francisco, California.
Legal Topics:
Page 3
Transportation LawAir TransportationChartersTransportation LawCarrier Duties & LiabilitiesCertificates of Public
ConvenienceIssuance

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