Private Transit: Existing Services and Emerging Directions (2018)

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29 Private transit services are regulated by a variety of federal, state, and local laws. However, the regulations vary by service type and area, causing some ambiguity. This section summarizes key provisions that generally cover private transportation services, but does not attempt to provide an exhaustive catalog. Regulations do not align neatly with the service types described in the previous section. Still, the regulatory environment has profoundly shaped the formation of many of these service types, and local governments continue to seek ways to address the conflicts that arise as new services emerge (Goldwyn 2017, Cabanatuan 2017, SFMTA 2016a). Federal Regulation Civil Rights Law The major civil rights statutes that apply to passenger transportation are the Civil Rights Act of 1964 (particularly Title VI of that act, which ensures equitable distribution of federally sup- ported activities) and the Americans with Disabilities Act of 1990 (ADA, which requires facilities and services be accessible to all, regardless of physical or intellectual ability). Private transporta- tion operators that do not provide service under contract to a public agency are bound by fewer requirements than public transit;6 however, under the ADA, private operators are still generally required to provide services that are accessible to people with disabilities, including wheelchair users (although not every vehicle must be accessible, especially smaller ones). Service animals must always be permitted to accompany their users on private transportation services, regardless of vehicle size (49 CFR §37). In December 2016, U.S. Transportation Secretary Anthony Foxx issued a “Dear Colleague” letter clarifying U.S.DOT’s position on how civil rights law applies to private transportation services generally and to TNCs in particular. While noting that Title VI requirements generally flow along with federal monies, the letter reiterates that the ADA requirements are not condi- tional on federal support: Unlike many other requirements, the transportation requirements under the ADA apply regardless of whether Federal funding is involved. The specific provisions of the Department’s ADA regulations vary according to the type of service provided, such as whether it is fixed-route or demand-responsive service. (U.S.DOT 2016) S E C T I O N 4 Regulatory Environment 6For instance, they are not required to provide comparable complementary paratransit services for the routes that they serve, nor are they required to consider the impact of fare or route changes on underprivileged populations.

30 Private Transit: Existing Services and Emerging Directions The FTA subsequently added guidance, in the form of a frequently asked questions (FAQs) page, clarifying how the ADA and other federal requirements apply to private mobility services and operators in a variety of situations. Among other subjects, this guidance reiterated that, even for private transportation services provided by entities that are not primarily engaged in transportation (e.g., a social services agency or nursing home that provides some transportation services to its clients), accessible service must be provided. Every vehicle need not be accessible, if equivalent service is provided for persons with disabilities, including wheelchair users. The FAQs also clarify that for microtransit-like services, the vehicles’ passenger capacity is the key test of whether wheelchair accessibility must be provided at the fleet level (capacity of 16 passengers or fewer) or vehicle level (capacity of more than 16 persons)(FTA 2017). Regulations Relating to Interstate Transportation Beyond civil rights law, federal jurisdiction covers interstate transportation of goods and passengers, which falls into two main categories, common carriers and contract carriers. Although these categories are mainly applicable to the world of motor trucking, they do provide a useful framework for approaching the taxonomy of private transit services: • Common carrier services are open to anyone willing to pay and tend to align with the “private market services” discussed in this report. • Contract carrier services are available only to specific groups and tend to align with the “sponsored services” discussed in this report. The current regulatory framework was refined in 1999 when Congress passed the Motor Carrier Safety Improvement Act, establishing the Federal Motor Carrier Safety Administration (FMCSA). Although federal jurisdiction was established to oversee interstate transportation, over half of the states also require their intrastate commercial passenger vehicles to obtain U.S.DOT num- bers and adhere to federal guidelines (FMCSA 2014). The FMCSA trains state agents to perform inspection of interstate carriers and provides grants to the states to assist with safety inspections of carriers. Federal oversight is limited to vehicle and driver requirements and does not address the routing of carrier operations (NJTPA 2011). In the context of private transit services, these regulations generally apply to the larger (20-plus passenger) vehicles that tend to operate in the sponsored services and on larger jitney routes. State Regulation States have the authority to regulate driver and vehicle safety of all intrastate commercial passenger services. Typically, states regulate regional services that service multiple municipal jurisdictions. Many states regulate the items listed below for taxis, TNCs, and other private transit ser- vices beyond the very few that are covered by federal regulations. While many municipalities also regulate these items, many states have passed laws reserving these responsibilities to the state alone, preempting local authority for regulating them (NLC 2017).7 These responsibilities include the following: • Insurance requirements for companies and drivers • Permits and licensing • Background checks (including drug and alcohol tests and fingerprinting) 7Texas and Florida in 2016 joined 37 other states that have preempted local TNC regulation (NLC 2017).

Regulatory Environment 31 • Fees • Data disclosure • Passenger privacy TNCs have been subject to state regulations, starting with a 2013 California Public Utilities Commission ruling, and most states have since followed suit with regulations of their own. The 2013 ruling set precedent for the nation and coined the term transportation network company. Local Regulation Local jurisdictions classify private transit services under a variety of regulatory schemes (dis- cussed here according to the size of the regulated vehicle): • Smaller vehicles. For the smaller vehicle services outside of taxis, some jurisdictions use the term TNC or TNP (“transportation network provider”) and regulate them separately, while others group all taxi, livery, and TNC services together as “for-hire vehicles” (FHVs). Regulations vary greatly between jurisdictions, especially for TNCs, which tend to face lower regulatory hurdles for licensing and inspection than the taxis with which they often compete. TNC legislation typically defines and authorizes TNC operations and addresses the same topics as FHV regulation generally. • Mid-sized vehicles, such as jitneys and commuter vans up to about 20 passengers (the capacity at which state jurisdiction often takes over), face more requirements for establishing and main- taining service. In New York City and Miami, where jitneys are nominally fixed-route services or shuttling between specific zones, operators must clear their proposed routes with regulators before launching service to make sure that they don’t duplicate existing public transit service (Miami-Dade Municipal Code § 31.III; NYCDOT interview 2017). This is a key step in getting initial authorization to operate. Case Study III in Section 5 looks at New York City and New Jersey as examples of the complexity of regulatory mechanisms in an area with many overlapping jurisdictional boundaries and service types. • The largest private transit vehicles, generally commuter shuttles, fall under charter bus regu- lations in many jurisdictions, which may require that services provide a proposal for where (routes and stops) and when (timetables) they will operate. Local Data Collection and Reporting Generally, the densest cities do the most in the way of data collection and reporting for FHVs and private transit services, with San Francisco and New York City leading the way for certain service types. While several jurisdictions require the regular submission of regulatory informa- tion that includes origin and destination data (either aggregated or for individual trips) for many types of FHVs, the TNC data have generally been regarded as confidential and thus not subject to open records requests, by regulating authorities. New York City is the only major jurisdiction that has made TNC trip data available to the public as of late 2017. Regulation of Street and Curb Space The ability to regulate use of curb or local street space flows from the specific ownership of those parts of the right-of-way and generally sits at the municipal level. Where transit agencies own the real estate around their stations, they have say over access at those sites. This ownership varies greatly by agency and public transit mode. The use of public curb space reserved for particular uses, particu- larly public bus stops and loading zones, is central to private transit regulations adopted by several local jurisdictions, including jitney guidelines in New York City and Miami and private shuttle rules in San Francisco. (See Case Studies I and III for more details on these regulations.)