A Research Paper by Paul Stephen Dempsey
The Summer 1996 issue of the Transportation Law Journal [Vol 24, No.1], published by the College of Law, Denver University, contains a well researched article by Paul Dempsey, Professor of Law, and Director of the Transportation Law Program, which chronicles the paradoxical metamorphosis of regulation, deregulation and reregulation of the taxi industry. Conventional free market economic theory holds that
Unfortunately, the taxicab industry, believed to be a $6.5 billion industry employing nearly 300,000 people, of whom 225,000 are drivers, and has been estimated that it transports more passengers than all U.S. mass transportation systems combined, simply does not behave the way conventional economic theory would have us believe. Professor Dempsey's quote from a powerful essay by Garrett Hardin, "The Tragedy of the Commons", provides a fine analogy of this situation.
As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, "What is the utility to me of adding one more animal to my herd?" This utility has one negative and one positive component.
(1) The positive component is a function of the increment of one animal. Since the herdsman receives all the proceeds from the sale of the additional animal, the positive utility is nearly +l.
(2) The negative component is a function of the additional over-grazing created by one more animal. Since, however the effects of overgrazing are shared by all the herdsmen, the negative utility for any particular decision-making herdsman is only a fraction of l.
Adding together the component partial utilities, the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another. . . . but that is the conclusion reached by each and every rational herdsman sharing a commons. Therein lies the tragedy. Each man is locked into a system that compels him to increase his herd without limit - in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedoms of the commons. Freedom in a commons brings ruin to all."
The revolving door of taxi regulation, deregulation and reregulation is the basis for Professor Dempsey's case study of the collision of economic theory with empirical reality. It began with Charles I in London, England, in 1635 when he ordered that London hackneys be licensed so as "to restrain the multitude and promiscuous use of coaches." Nineteen years later, the British Parliament adopted a regulatory regime which limited the number of hackneys.
He traces the historical evolution of regulatory intervention leading up to contemporary examples of regulations in place in eight major U.S. cities - New York, Los Angeles, Houston, Chicago, St. Louis, Boston, Minneapolis, and Denver. He goes on to observe that "...much of the political debate over whether taxicabs (and, indeed, any other mode of transportation) should be regulated or deregulated has become highly ideological and polarized." Politically motivated pressures have tended to promote deregulation based upon traditional economic theory, without regard to reality.
Before 1983, some twenty-one cities deregulated taxicabs in whole or part. The experiences of these cities reveal that taxicab deregulation resulted in a significant increase in new entry; a decline in operational efficiency and productivity; an increase in highway congestion, energy consumption and environmental pollution; an increase in rates; a decline in driver income; a deterioration in service; and little or no improvement in administrative costs. Numerous examples are cited. On this historical evidence, a conclusion is reached:
Professor Dempsey quite properly observes that "...taxicabs are an essential part of the urban transportation infrastructure...", and concludes by observing:
Professor Dempsey has successfully focused solid attention on some critical issues and given us a document that is a "must read" by all regulatory personnel worldwide, in particular the political forces to which they respond, and all within the worldwide taxi industry.
Recent calls for deregulation of the taxicab industry may appear to be justified, but taken at face value are an exercise in futility. Such calls are not unique to any one city, for it is heard repeatedly throughout North America, if not the entire world. There is universal recognition and acceptance that the taxicab industry is beset with serious problems that regulatory authorities seem powerless to fix, and the industry itself unwilling or unable to fix.
The term "deregulation" conjures up a myriad of perceptions ranging from modest tinkering to catastrophic removal of all regulations and the regulatory authority. There are as many perceptions as there are people thinking about it. Typically, most calls for deregulation focus only on pieces of the puzzle, rather than stepping back and looking at the major difficulties facing this industry today.
The taxicab industry is populated by people who tend to be in the industry for the long haul, know it thoroughly, capitalize on profitable opportunities, and fiercely protect what they perceive to be long term investments. Conversely, regulatory authorities tend to be career civil servants passing through the job for relatively short periods of time. At about the time that such people are beginning to have a modest understanding of how this industry works, they move on to other career opportunities, or retire. Fortunately, there are a few notable exceptions.
Very much of the problems faced by the industry today, exemplified by the three scourges of leasing, independent contractors and licence values, are a direct consequence of inattention and ineptitude by our regulatory ancestors. With each regulatory blunder back in antiquity, industry leaders have done nothing more profound that react in such a manner as to optimize, even maximize, their revenue potential. Leaders within regulated industries have reacted this way throughout economic history, and will continue to do so into the next millennium.
There is nothing wrong with this, for it is quite a normal reaction within all regulated industries. However, the critical ingredient is the enormous responsibility placed on the regulatory authority for development of policies and regulations that will stand the test of time in not only benefiting the travelling public, but also maintaining reasonable economic health of all elements of the industry.
Is unfortunate that both sides have suffered from similar failures of foresight, for either side could have headed off the woes now facing this embattled industry. The taxicab industry no longer operates as a conventional business as general public perceives. That it operates at all is really quite remarkable, for by application of all the rules of common sense, it should have collapsed aeons ago.
Operational costs and the revenue stream no longer bear a close relationship to the actual delivery of the service to the public. Quality of service is generally perceived to be in decline and its image and status tarnished. Even regulators despair at a once great industry rapidly fading.
Calls for deregulation continue to appear with increasing frequency. While there are notable examples that appear to be beneficial, typically deregulation has failed, forcing extremely difficult recovery and reregulation. The most notable evidence of this is "Taxi Industry Regulation, Deregulation & Reregulation: The Paradox of Market Failure", by Prof. Paul Dempsey, College of Law, University of Denver, as published in the Summer 1996 edition of the Transportation Law Journal.
Atomization of the Industry
There was a time when this industry did function like most businesses operate. In the good old days, 'leventy-7 years ago, taxicab companies tended to be organized along traditional corporate lines, where the holder of the licences also owned the company, the cars, the facility, and the dispatch service; enjoyed economies of scale with internal maintenance, servicing, body work, and fuel; employed, trained, supervised and disciplined drivers; monitored customer service and market opportunities, aggressively marketed their services, and were ever watchful for opportunities for diversification into compatible services taking advantage of excess capacity.
But some 25-30 years ago, subtle changes in tax laws emerged with unforeseen long term detrimental consequences. It became advantageous for licence holders to start leasing their taxicabs to independent contractor drivers. Preservation of independent contractor status depended upon an absence of care and control of the vehicle and the driver. As time went by, the principle of leasing expanded into a cascading stream of leasing and sub-leases into some extreme situations where a driver will lease a taxicab from a cab owner who leases a licence by itself from a designated agent representing a group of licence holders who want no part of the responsibility that goes along with holding the licence.
All too often, what we have today is an appallingly atomized industry lacking central focus and direction, who's in charge is a daily mystery, widespread absence of standards of service excellence, and a harsh adversarial relationship with the regulatory authorities. Where previously a single company operated many hundreds of taxicabs, the industry is now heavily populated with single vehicle companies, single driver companies, each headed by a President of his own company, each a small businessman in the eyes of the tax man. It has been characterized as turning loose thousands of puppy dogs, and now its up to the regulator to round them up, supervise them, and somehow get them pulling as a team, an impossible task.
An example of lack of regulatory foresight relates to federal income tax and GST audits. Back in antiquity, auditors needed only to visit a taxicab company and conduct a single audit of the operation of hundreds of taxicabs. Unfortunately, we now have a situation where several hundred audits must now take place on many hundreds of single vehicle companies, at awesome cost, far in excess of historical audit costs.
This highly atomized fragmentation of the industry has become a regulatory nightmare little understood by the business community, the media and customers. This phenomena of atomization of the industry has been well documented within "Peer Review - Seattle Taxicab Regulation", by Sandi Avants, Gorman Gilbert, and Barbara Lupro, November 1995.
The Disaster of the Quota
The most serious blunder emerging from inept regulatory authorities suffering from a staggering lack of foresight was to impose a quota on licences, while simultaneously failing to prohibit transfer of the licence. Since antiquity, every student of economics quickly learned that when something becomes scarce, it will acquire a real property value of its own if there is no prohibition on it changing hands. This is one of the fundamental rules of economics, yet unforeseen by many regulatory authorities throughout North America.
A "licence" (or permit, or medallion, or by whatever name it goes under) is nothing more than official permission from an official agency for someone to do something for a fixed period of time. The licence, the physical piece of paper, is simply proof that a prescribed fee has been paid., and carries no intrinsic value of its own, officially and in common law. Being nothing more than permission to do something, a licence is an intangible; it is not and should not ever have become a tangible piece of real property. Yet somehow responsible banks continue to take back as collateral this intangible piece of paper as if it had real property value that could be seized for default and auctioned off to the high bidder.
When the licence expires, it does so with no guarantee of continuance, no guarantee that a licence holder may reacquire a licence in the ensuing licence year, no guarantee that the licence holder may acquire the same licence from one period into the next, no guarantee that the licence may not be revoked for cause, and no guarantee that the regulatory environment might not change one day.
But when the regulatory authority, back in antiquity, failed to simultaneously prohibit licence transfer when it closed entry by imposition of a licence quota, it became the author of what has become affectionately know as "street values", or a mythical retirement pension. By the time inattentive regulatory authorities began to perceive the presence of street values in the guise of "goodwill", it was too late.
Once licence prices were allowed to rise unhindered, albeit out there on the street, the money cannot be retrieved from the vendors. It would be shamefully inequitable to impose remedial action having the effect of extinguishing what by then and now has become an asset, in complete contradiction to what a licence is in common law.
Any attempt by a regulatory authority to fix this unacceptable situation is greeted by fierce opposition, simply because every such initiative is seen as a threat to licence holder's investment in that licence. In recent years, this investment has reached insane levels, with every indication the trend will escalate to ever higher, mind numbing levels. With so much of the revenue stream going towards loan repayment, there is little left over for service enhancements, provoking ever more frequent applications for fare increases.
The Tragedy of Leasing
Along with the birth of the independent contractor is the birth of "leasing". In fundamental common law, a licence carries with it an imbedded and inescapable "care and control" of both the vehicle and the driver. The holder of the licence is only authorized to "operate" a taxicab for hire. The licence holder is not authorized to abdicate that responsibility by leasing his licence to a 3rd party.
Yet with the birth of leasing, we now see licence holders (lessors) going to extraordinary lengths to prove with absolute legal clarity that the driver is not an employee, and in fact exercise no care or control over the driver or the vehicle. In theory, there is legislation in place that declares that a licence holder continues to have care and control over the driver and the vehicle. Unfortunately, in practice, this is not so, and we have a situation where the licence holder does not have care and control over either the vehicle or the driver. But the person who really does have care and control, really does provide the service - the driver - does not hold a licence authorizing him to do so. One wonders how the insurance companies view this situation.
In fundamental common law, public transportation is a public utility, subject to regulation for the public good. Regulatory authorities are authorized, under appropriate legislation, to issue licences to operate a taxicab for hire as a public service for a fixed period of time. It follows then that revenues to the holder of the licence must bear a reasonable relationship to the actual provision of that service. Revenues must reflect the quality of service excellence.
This basic principles of regulation and economics escaped the attention of regulatory authorities, as leasing gradually became imbedded in law. Courageous regulation was lacking, regulatory authorities capitulated, and leasing is now a fact of life and a horrific scourge on the industry. By the introduction of leasing, licence holder revenues no longer bear any relationship to the quality of service. Their revenues are fixed and guaranteed regardless if the driver provides good or bad service.
Lease rates, payable by the driver up front before the taxi rolls an inch, are generally unregulated and emerge in ever increasing amounts in direct predatorial reflection of a surfeit of drivers waiting in the stream. In recent years, North America has become a haven for world wide immigration, and taxi driving has become an entry level occupation. The supply of drivers from such a mammoth pool means lease rates can be outrageously high in the knowledge of an ample supply of aspiring drivers to replace those leaving the industry in disgust. The turnover rate on new drivers is ominously awesome. As licence holders lease revenues are fixed and guaranteed, they need not ever be concerned about service quality. What's wrong with this picture?
The Span of Attention
Enforcement has become a critical issue. In the good old days, a regulatory authority had only to deal with a handful of strong business managers who handled all the administrative matters relative to vehicle registration, insurance and licencing; and all administrative matters relative to recruitment, selection, training, supervising and disciplining drivers.
Today, a regulatory authority no longer deals with a handful of business managers alone, but rather not only with them, but with thousands of independent contractors, each one on one, each having the right to consume the regulator's time at any moment of time on whatever might be important to that individual. Unfortunately, regulatory authorities tend to continue to be staffed with a quantity and type of staff no different than in antiquity. A regulator's span of attention is ominously broad, dealing with what amounts to daily relentless crisis situations, constantly fighting fires.
In essence, we have a role reversal in place where the regulatory authority has become the personnel department for the industry, but is ill equipped to do so, and in fact should not even be doing this at all. This is an industry responsibility.
Cash and Safety
Since 1650, back in the era of horse drawn hackneys when the first known regulations emerged in England, the industry has had an affection for raw cash. This is the dominant contributor today to making driving a taxicab the world's most dangerous occupation, far in excess of the nearest runner-up - law enforcement officers. The lure for robberies, assaults and murders is the raw cash, coupled with a widespread perception that all cab drivers carry large amounts of raw cash. If the lure is removed, driving a taxicab would once again become a safe and honourable occupation.
Technology is not a barrier to removing the cash and migrating the industry into the cashless taxicab. Common sense says that drivers would willingly, enthusiastically, embrace leading edge technology to make their occupation safe. Curiously, such is not the case, for such technology meets stiff, sometimes fierce resistance. The critical ingredient is the hated audit trail, leaving behind an easily traceable record of true revenues.
Ample hard evidence is beginning to emerge that street talk about hiding revenue has substantial truth. Recent federal income tax/GST audits on selected independent contractors in selected cities confirmed widespread underreporting of revenues. This is serious non-compliance, for underreporting income is tax evasion, while underreporting GST collections is outright theft. Unfortunately, as a consequence of severe atomization of the industry, the federal auditors simply cannot audit all independent contractors. Average taxpaying citizens understandably find this situation to be offensive.
However, many drivers cherish the sacred cow of raw cash, gambling they will either not get audited or not get murdered. In today's crime infested society, odds are increasingly that they will be assaulted, injured or even murdered. This has become a widespread expectation, and over time many drivers have developed low esteem as they tend to be seen by society as being acceptable to be bashed. It is near impossible to build pride and service excellence given this ever expanding perception.
With ever sinking self-esteem, ever increasing risks, and ever expanding pool of entry level applicants from far away nations, a growing perception is emerging throughout our North American society that driving a taxi is employment of last resort. This just adds to the frustration level and self-perpetuating escalating degradation of taxi drivers. Far too often, they are considered fair game by predators, seeing them as a mobile cash register incredibly easy to open and discard.
Curiously, it may well be the escalating violence inflicted on taxi drivers that will provoke them into acceptance of leading edge technology, along with its companion audit trails as the lessor of the evils. Just possibly, that might start the industry up the first step to restoration of its former glory.
Adversity at its Worst
The dominant impediment will continue to be the fragmentation of the industry, driven largely by individual greed without regard to common goals. The customer is no longer the focus of the business. This can only lead to the ultimate decline of the industry. Its fragmented distraction into protecting individual licence values at all costs, coupled with severe adversarial relationships between the industry, its drivers and the regulators, can only lead to anarchy.
Fierce protection of licence values has led to a widespread realization within the industry that political relationships have become more important than customer service. Any attempt by the regulatory authorities to take courageous measures is greeted by subtle political interference, often with threats against job security, followed at times with outright job loss. It is no wonder that such people pass through the job through gritted teeth, perceiving it to be mandatory time in purgatory, hoping fervently to get out the other end without getting into trouble.
In the eyes of regulatory authorities, the industry all too often appears to be at war with itself. With rare exceptions, the industry is no longer a team effort, what with licence holders protecting their investment without regard to customer service or driver welfare, and independent contractor drivers capturing media attention with tales of financial and operational abuse by owners. It is no wonder that regulators throw up their hands in frustration with so many fractious skirmishes on their doorstep.
Public hearings dissolve into shambles as each side tries to outdo the other with ever more outrageous actions and demands, each independent of one another, few with any cohesive unifying elements. Each participant in this highly atomized melee, each a President of his own one person company, is entitled to be heard at a public hearing, but the basic weakness is that all too often, each speaks only for self. As independent contractors, each are free to do as they wish, seemingly without common purpose and goals.
With today's industry structure and regulatory environment, any attempt by the regulator to make changes to the quota in the public interest in a timely manner or at all, is all too often greeted with intimidation, threats, and defamation of agency staff and members; disruptive public protests, service interruptions, strikes or threats of strikes; and a relentless series of legal challenges.
All regulators agree they would be delighted to negotiate with the industry in a healthy environment through bona fide representatives of an established association representing all. Unfortunately, such is not the case, for far too often, such associations claiming to represent the industry, turn out upon close examination to be a small group with no real membership base to support their claims. Regretably, media in its relentless quest for quotable quotes, typically fails to verify the authority of such people to truly represent the industry.
Yes, there are a couple of associations out there, well established, with bona fide paid-up memberships, but they tend to represent only a segment of the industry. One notable association represents licence holders exceedingly well, while drivers have little or no representation of consequence.
Relationships between licence holders, drivers and regulators will continue to deteriorate so long as the industry continues to perpetuate and nourish its highly atomized organizational structure. In the good old days, a taxicab company was in business to satisfy customers, and all its revenues and attention focused on the actual paying customer in the back seat.
Currently we have lessors whose revenues are fixed and guaranteed, totally unrelated to the quality of service. In recent years, the situation has become further aggravated by the appearance of yet another entity separating the licence holder still further from the actual paying customer being transported; and adding exponentially to the cascading revenue stream. Designated agents have appeared on the scene representing groups of licence holders, providing a service of acting as a middleman between the lessee (the driver) and the lessor (the owner).
A licence holder may enter into some form of agreement because he may be in poor health or retired and not wish to operate the taxi any more, may have more than one licence and only wish to operate one of them, may lack the experience needed to manage a number of licences, or may even wish to separate himself from regulatory authorities and regulations. All in defiance of existing legislation requiring licence holders to maintain care and control over the driver and the vehicle.
Co-Op Taxicab Companies
Co-Op type of taxi companies are an interesting anomaly, whereby a group of independent licence holders band together to form a dispatch company to provide economies of scale in administrative and dispatch support. Each independent licence holder is a shareholder in the company, owns a piece of it, and all too often perceives the right to interfere with hired management. Each shareholder continues to be responsible for individual vehicle acquisition, servicing and maintenance; and driver recruitment from out of those screened, trained and licenced by the regulator.
The dispatch company may call itself "ABC Taxi Co", and hold itself out as offering taxicabs for hire. However, in reality, they are not in the taxicab business at all. They are in the dispatch business, and their customers are their own shareholders, not the general travelling public.
Being wholly owned by its shareholders, its revenues are fixed and guaranteed by weekly dues against each shareholder's account, again totally unrelated to the quality of service. When general public customers try to file a complaint with the dispatch company, they are in effect asking the general manager to discipline his own boss. When such complaints are filed with the regulator, a frequent response emerges to the effect that the dispatch company is not responsible for its shareholders who are all independent contractors. And by the way, we really do not know who was behind the wheel at that particular moment, leaving it to the regulator to do the investigation and discipline.
An Ominous Trend
The trend is for these industry problems to escalate and grow ever more intense. Stopping this trend will require extraordinary co-operative effort by all segments of the industry and the regulator. Licence holders want their investment protected, drivers want a fair days return for a fair day's work, the regulator yearns for an industry no longer fighting among itself, and the customer simply wants a safe, clean vehicle driven by a knowledgeable, proud driver. The fix will be elusive and likely tough to accept.
Concept of a Proposed Solution
Over the years, as these problems intensified, the call for deregulation all too frequently emerges as "the fix". However deregulation of the industry is a myth, an absolute exercise in futility. It cannot and must not ever happen within the present organizational structure. Ample evidence exists that deregulation only leads to a revolving door of regulation, deregulation and ultimate reregulation, in a never ending aggravating process that pleases nobody, and never really comes to grips with the critical issue of the atomized, fragmented organizational structure of today's taxicab industry.
A step in the right direction is to develop and implement a new set of performance and service standards as selective replacement for some of the regulatory structure. These standards should be so crafted as to inspire willing, enthusiastic return to a more conventional organization structure so successful back in antiquity.
The public interest would be served by the immediate elimination of taxicab quotas. However, it would be inequitable to completely eliminate the value of existing taxicab licences, wiping out the substantial investment in licences on the part of many small businessmen. This dilemma may be resolved by implementation of an "equitable quota deregulation" plan, comprised of the following elements:
Implementation of this quota deregulation plan would be equitable for the following reasons:
Implementation of this quota deregulation plan would benefit the public in the following ways:
This is the hard part, for there will be winners and losers, hopefully in reasonable, acceptable balance. Critical ingredients will be:
So long as the industry continues with its atomized, fragmented organizational structure, so long as regulatory authorities are inadequately staffed and trained, so long as drivers cling to their independent contractor status and ability to cherish raw cash, and so long as customers continue to accept, by long term conditioning, declining service levels, there is little hope of ever fixing this industry.
There is hope, for there is a growing realization not only among regulatory authorities, but also among enlightened, serious minded industry leaders, that the continuing degradation of the industry cannot be allowed to continue. Something must be done. Hopefully this editorial just might provoke collective positive action towards a thorough overhaul of the regulatory system to foster healthy competition, realistic investment returns, and improved public service.
Published on the InterNet May 1997
by Terry Smythe
John E. Kramer and William H. Mellor
In 1993, the Institute for Justice in Washington, DC., conducted a review of "Denver's Taxicab Monopoly". Following up on that endeavour, the Institute in 1995 conducted a review of "Boston's Taxicab Market". That review became an award winning proposal for the Boston Pioneer Institute's 1995 "Better Government Competition."
As an overview of the report, the IFJ has presumed that the majority of their readers understand the fundamental common law and economics associated with the taxicab industry. As that is not always the case, the report, while making some very valid observations, fails to draw their conclusions back to fundamental common law and basic economics. As a consequence, the report fails in its opening introduction as it states:
"The argument for taxicab deregulation rests on the principle that government should not protect for-profit taxi companies from competition to the detriment of the riding public as well as would-be entrepreneurs. Government's proper role is to ensure public safety with driver background checks, vehicle safety inspections, and inspections for insurance."
This is a true statement, and the IFJ is absolutely correct in their perception that a government should not protect for-profit taxi companies. However, how this situation ever emerged at all is not discussed anywhere in the report. This perception is not a secret, most regulatory authorities are very much aware of their obligation to focus their regulatory efforts for the benefit of the travelling public. But regulatory authorities today are caught up in a situation as their regulatory ancestors failed to perceive a fundamental law of economics - make something scarce and it immediately takes on a value if there is no simultaneous mechanism to prohibit that value.
The report fails to define that a licence [permit, medallion, or whatever it may be called locally] is nothing more than official permission to do something for a fixed period of time, at the end of which is full and automatic expiry with no imbedded right of continuance, no guarantee that the licence holder may acquire the same licence next period, no guarantee that the licence may be revoked for cause, and no guarantee that the regulatory environment might one day change.
The report properly recognizes that:
"Because the city restricts the number of medallions it issues at well below the market level, Boston taxi medallions sell at $95,000 on the open market."
But fails to challenge how it is that these licence change hands outside the regulatory environment for obscene amounts of money at all. Upon what legal authority can an intangible [a licence] be the focus of any kind of exchange of monies? Upon what legal authority do banks take back an intangible [a licence] as collateral on a loan to pay for that intangible? One would think that an organization such as the IFJ would at very least examine the relationship of a licence to common law.
Yet the IFJ does properly conclude that:
"... the City of Boston ... has created a black market that encourages businesses to obtain a piece of city property--the medallion--and sell it for an enormous profit, to their own (and no public) benefit."
The irony of this IFJ conclusion is that it is applicable to most every city throughout North America. It is not restricted to Boston. Regulatory authorities in most major North American cities face this dilemma. By historical inattention to fundamental economics, quotas were imposed or simply allow to emerge, but with no simultaneous prohibition on licence transfers. As a direct result of immediate scarcity, licences began to take on real estate values of their own completely external to the regulatory environment.
As a consequence, regulatory authorities today are faced with a dilemma. Once licence prices were allowed to rise, the monies exchanged cannot be retrieved. It would be very inequitable to take remedial action that would have the effect of extinguishing an asset already paid for with the approval of the licence transfer. Over the passage of time, the continuation of the quota has artificially exploded licence values to positively obscene levels. One wonders under what legal authority a regulator can impose or even support any kind of a value for an intangible - permission to do something for a fixed period of time, at the end of which is full and complete expiry.
The dominant focus of the report is a strong recommendation for de-regulation of Boston's taxicab industry, and even offers up a suggested regulatory structure, something quite unique in such reports. However, the report fails to define just what is meant by de-regulation, and in that failure opens the door to misunderstanding and misconceptions, ultimately leading to the revolving door of regulation, de-regulation, and ultimate re-regulation.
The definition of de-regulation is a varied as there are people discussing just what it might mean. There is no definitive, widespread acceptance of just what is meant by de-regulation. It can range from a catastrophic absence of any form of regulatory action leading to utter chaos on the street, or to total oppressive imposition of a vast array of regulations largely composed of prohibitions unrelated to consumer service.
Rarely ever do regulatory authorities have the resources to adequately train and equip their staff and appointed decision makers. They are not driven by service to the public, they are driven by budgets and controls. While folks in the taxicab industry tend to be in it for the long haul as a legitimate for-profit business, far too many regulatory authorities are career civil servants passing through a period of time as a taxicab regulator, sometimes perceiving it through gritted teeth as mandatory time in purgatory.
All too often the regulatory authority is organized in a manner consistent to times past when most of the industry was organized along traditional corporate organizational lines. The taxicab companies owned the vehicles; maintained their vehicles; recruited, selected, employed, trained, supervised, and disciplined their drivers; and properly held the licences in their own names because they had due care and control over both the vehicle and the driver. The regulatory authorities range of communications extended largely to the array of strong business managers of each company.
Fundamental changes in tax laws provoked substantial changes in the environment such that the industry has become highly atomized. Where a regulatory authority had at one time a modest array of communications with industry folk, the birth of the independent contractor exploded this to a vast array of tiny, single vehicle companies, few with the training and business skills needed to run a company, even one that has become a "small business". Unfortunately, the regulatory authority's organizational structure has tended not to keep pace with this fundamental change in the environment. Many are now ill equipped to properly deal with the current situation. The extent to which this industry has become atomized poses serious regulatory challenges.
The IFJ report goes on to note:
"... most Boston taxi drivers .... must pay exorbitant weekly fees for the "privilege" of driving for someone else who owns the taxi medallion."
The IFJ took a fine opportunity to focus attention on a fundamental flaw in current regulatory practices, largely emerging out of changes in the tax laws in the early 70's. Back in the good old days, licences were properly issued to companies having due care and control over both the vehicles and the drivers. Times changed, but all too often, licences are still being issued to the same companies who now impose extraordinary efforts to ensure with absolute legal clarity that they have no control over the driver or what he does with the vehicle.
So today we have a situation whereby a licence is being issued to someone who no longer has care and control of the vehicle or the driver, but he who does have care and control of the vehicle [the driver] does not have a licence to operate a public vehicle for hire. He may hold a licence to drive a taxicab, but he does not hold the licence to operate a public vehicle for-hire. One wonders how the insurance companies view this anomaly.
The IFJ makes a good recommendation that:
"To improve poor taxi service and offer opportunities to would-be entrepreneurs, we suggest .... open entry into the taxi industry and regulate cabs to protect public safety by requiring a license, a background check on drivers, a safe vehicle, and adequate liability insurance...."
This recommendation has merit and is sound, but is not in itself enough. There is I believe a presumption here of migrating perilously close to true de-regulation, risking utter chaos on the streets. Total de-regulation is a myth.
Historically, regulations have largely focused on prohibitions, where public service benefits simply do not emerge. The focus has been on regulatory compliance rather than voluntary, enthusiastic customer service. If open entry is to succeed, then that open entry must be subject to performance standards substantially more definitive than just a "safe vehicle", embracing all aspects of the service - vehicle standards, service standards, dispatch standards, dress, deportment, training, marketing, etc.
Such a regime may be called "open entry", but in fact, such standards simply impose a different form of entry control. Anyone can acquire a licence and get into this business, "so long as the standards are met". However, the significant difference here is that the travelling public has a much better chance of enjoying high quality service, rather than licence holders speculating on licence values outside the regulatory environment.
I am disturbed that the IFJ perceives:
"... cabs are not essential services like water and electricity."
I disagree strongly with this perception, for taxi service is indeed an important element within urban transportation infrastructure. Taxicabs provide a personalized transportation service that simply cannot be provided by any other means. I sincerely believe that taxi drivers are the unsung heroes of personalized transportation. Taxicabs do provide an essential service, and notwithstanding serious problems plaguing this industry during these difficult times, this industry must receive adequate attention and support from the regulatory authorities.
I note with some satisfaction that the IFJ has included some wise provisions in their model legislation:
" No person shall transport or offer to transport a passenger for a fare in any public vehicle for hire without a license to operate a public vehicle for hire."
"To be eligible for licensure as a public vehicle for hire, a motor vehicle must ... be owned by an applicant eligible to apply for a public vehicle for hire license."
"To be eligible to apply for a public vehicle for hire license, a person... must be the owner of that vehicle [and] must have a central office located in the City of Boston..."
Hopefully these provisions would minimize anomalies of the present system where the person holding the licence all too often does not have care and control of the vehicle, and the person who does have care and control of the vehicle does not hold the licence. In some extreme situations, the licence is held by one person but does not own a vehicle, while someone else owns the vehicle, and the driver leases both a licence and a vehicle from 2 different people, for exorbitant fees totally unrelated to the quality of public service.
The IFJ is to be commended for drawing much needed attention to some very sensitive issues. It could have made a much stronger case for a form of de-regulation for Boston's Taxi Market, but on balance this is a good report that not only provides a rudimentary roadmap for recovery, but should also be widely distributed to both the regulators and the industry. These are some extremely important issues that grow ever more sensitive with the continued passage of silence.
Published on the InterNet in October 1996
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