COMMONWEALTH OF PUBLIC UTILITY COMMISSION P.O. BOX 3265, HARRISBURG, PA 17105-3265 June 16, 2014 Rosemary Chiavetta, Secretary Public Utility Commission P.O. Box 3265 Harrisburg, PA 17105-3265 Re: Public Utility Commission, Bureau of Investigation and Enforcement v. Uber Technologies, Inc. Docket No. Dear Secretary Chiavetta: Enclosed for ?ling please find an original of the Petition of the Public Utility Commission?s Bureau of Investigation and Enforcement for Interim Emergency Relief. Copies have been served on the parties of record in accordance with the Certificate of Service. Sincerely, Stephanie M. Wimer Prosecutor PA Attorney ID No. 207522 Prosecutor for the Bureau of Investigation and Enforcement Enclosures cc: Chief Administrative Law Judge Charles E. Rainey, Jr. As per Certi?cate of Service BEFORE THE PUBLIC UTILITY COMMISSION Public Utility Commission, Bureau of Investigation and Enforcement Petitioner Docket No. V. Uber Technologies, Inc. Respondent T0: Uber Technologies, Inc. You are hereby noti?ed that you may file an Answer to the attached Petition for Interim Emergency Relief within ?ve (5) days from the date of service of this notice. Your Answer must conform to the requirements set forth in 52 Pa. Code 5.61 (relating to answers to complaints, petitions and motions). All pleadings, such as Answers to Petitions, must be filed with the Secretary of the Public Utility Commission: Rosemary Chiavetta, Secretary Public Utility Commission P.O. Box 3265 Harrisburg, PA 17105-3265 Additionally, you must serve a copy on the undersigned prosecutors for the Bureau of Investigation and Enforcement. 4 Stephanie M. Wimer Prosecutor PA Attorney I.D. 207522 Bureau of Investigation and Enforcement Michael L. Swindler Public Utility Commission Prosecutor PO. Box 3265 PA Attorney I.D. 43319 Harrisburg, PA 17105-3265 (717) 787-5000 DATE: June 16, 2014_ BEFORE THE PUBLIC UTILITY COMMISSION PUBLIC UTILITY COMMISSION, BUREAU OF INVESTIGATION AND ENFORCEMENT, Petitioner V. Docket No. UBER TECHNOLOGIES, INC., Respondent PETITION OF THE BUREAU OF INVESTIGATION AND ENFORCEMENT OF THE PUBLIC UTILITY COMMISSION FOR AN INTERIM EMERGENCY ORDER AND NOW, comes the Bureau of Investigation and Enforcement of the Public Utility Commission (?Commission? or pursuant to 52 Pa. Code 3.6, and petitions the Commission for an Interim Emergency Order requiring Uber Technologies, Inc. (?Uber?) to immediately cease and desist from brokering transportation service for compensation between points within the Commonwealth of In support thereof, avers as follows: INTRODUCTION 1. On June 5, 2014, filed a Formal Complaint (?Complaint?) against Uber alleging, inter alia, that Uber acts as a broker of transportation for compensation between points within the Commonwealth through its internet and mobile application software (?the Uber app?), which connects passengers to individuals who have registered with 2 Uber as independent ride~sharing operators (?Uber Uber drivers do not possess Certi?cates of Public Convenience issued by the Commission authorizing them to provide motor carrier passenger service. As set forth in the Complaint, the Commission?s Bureau of Technical Utility Services, Transportation Division, directed Uber to cease and desist from brokering transportation between points within the Commonwealth on July 1, 2012. A copy of this letter is attached as Exhibit 1. In defiance of this letter, on or around March 13, 2014, Uber launched a ride?sharing passenger transportation service in Pittsburgh called UberX. Uber continues to provide UberX service in Pittsburgh despite the ?ling of Complaint on June 5, 2014, other enforcement actions taken by and the fact that Uber has not even applied for, let alone be granted, brokerage authority. Accordingly, is compelled to bring this Petition for Interim Emergency Relief to seek an Order from the Commission directing Uber to immediately cease and desist from operating its ride-sharing passenger transportation service until it receives the requisite authority to do so.2 The averments of l&E?s Complaint are incorporated herein as if fully set forth. 1 The Complaint is docketed with the Commission at C-2014-2422723. 2 On April 14, 2014, Rasier-PA LLC (?Rasier?), a subsidiary of Uber, filed an Application for a Certificate of Public Convenience to operate a ride~sharing network service between points in Allegheny County, Application of Rasz'er~PA, LLC, a Wholly Owned Subsidiary of Uber Technologies, Inc. for a Certi?cate of Public Convenience to Operate an Experimental Rz'de?Sharing Network Service, Docket No. A?20l4?24l 6127 (hereinafter referred to as ?Rasier?s Application?). Several protests were filed to Rasier?s Application and it is currently pending before the Commission. As mentioned earlier, Uber has not filed an application for a certificate of public convenience or a brokerage license. PARTIES 2. The Public Utility Commission, with a mailing address of P.O. Box 3265, Harrisburg, PA 17105-3265, is a duly constituted agency of the Commonwealth of empowered to regulate public utilities Within the Commonwealth pursuant to the Public Utility Code, 66 101, et seq. 3. Petitioner is the Commission?s Bureau of Investigation and Enforcement and is the entity established to initiate proceedings that are prosecutory in nature for violations of the Public Utility Code and Commission regulations. See Delegation of Proseeutory Authority to Bureaus with EnforcementResponsibilities, Docket No. (Order entered September 2, 1994), as amended by Act 129 of 2008, 66 4. Respondent is Uber Technologies, Inc., with a principal place of business at 182 Howard Street #8 San Francisco, CA 94105. Uber uses a digital platform,'the Uber app, to connect passengers to Uber drivers who use their personal, non-commercially licensed or insured vehicles for the purposes of providing transportation services to the public for compensation. JURISDICTION 5. The Commission has jurisdiction over this matter pursuant to 66 501, which provides in pertinent part: ?In addition to any powers expressly enumerated in this part, the commission shall have full power and authority, and it shall be its duty to enforce, execute and carry out, by its regulations, orders, or otherwise, all and singular, the provisions of this part, and the full intent thereof . . (emphasis added). STANDARD FOR INTERIM EMERGENCY RELIEF 6. Section 3.6(a) of the Commission?s regulations, 52 Pa. Code permits a party to petition the Commission for an interim emergency order during the course of a proceeding. The petition must establish facts to demonstrate that: The Petitioner?s right to relief is clear. The need for relief is immediate. The injury would be irreparable if relief is not granted. The relief is not injurious to the public interest. 52 Pa. Code 7. It is not necessary to determine the merits of an underlying complaint, controversy or dispute in order to find that a petitioner has satis?ed the first prong of Section 3.6(b) of the Commission?s regulations, 52 Pa. Code Rather, the Commission has found that if a petitioner raises ?substantial legal questions,? then a petitioner has established that its right to relief is clear. Core Communications, Inc. 12. Verizon Inc. and Verizon North LLC, Docket No. P-2011-2253650 (Order entered September 23, 2011); Level 3 Communications, LLC v. Marianna Scenery Hill Telephone Company, Docket No. C?20028l 14 (Order entered August 8, 2002); T. W. Phillips Gas and Oil Company v. The Peoples Natural Gas Company, 492 A.2d 776 (Pa. 1985). 8. ?Emergency? is defined in the Commission?s regulations as situation which presents a clear and present danger to life or property or which is uncontested and requires action prior to the next scheduled meeting.? 52 Pa. Code 3.1 (emphasis added) . 9. The party seeking emergency relief bears the burden of proving that the facts and circumstances meet all four of the above requirements. 66 332; 52 Pa. Code The burden of proof must be carried by a preponderance of the evidence. Samuel J. Lansberry, Inc. v. Pa. PUC, 578 A.2d 600 (Pa. 1990). The petitioner's evidence must be more convincing, by even the smallest amount, than that presented by the other party. Se?Lz'ng Hosiery v. Margulies, 70 A.2d 854 (1950). 10. If the foregoing criteria are met, a presiding officer may issue an order granting the relief sought, which order shall become effective immediately upon issuance by the presiding officer. 52 Pa. Code 3.10. A. Right To Relief Is Clear 11. serves as the Commission?s prosecutory bureau and enforces compliance with state and federal motor carrier safety laws and regulations. Implementation of Act 129 of 2008; Organization of Bureaus and O?ces, Docket No. (Order entered August 11, 2011), p. 5. 12. Section 2505 of the Public Utility Code prohibits persons or corporations from engaging ?in the business of a broker in this Commonwealth unless such person holds a brokerage license issued by the Commission.? 66 2505(a). 13. A ?broker? is defined as: Any person or corporation not included in the term ?motor carrier? and not a bona fide employee or agent of any such carrier, or group of such carriers, who or Which, as principal or agent, sells or offers for sale any transportation by a motor carrier, or the furnishing, providing, or procuring of facilities therefor, or negotiates for, or holds out by solicitation, advertisement, or otherwise, as one who sells, provides, furnishes, contracts, or arranges for such transportation, or the furnishing, providing or procuring of facilities therefor, other than as a motor carrier directly or jointly, or by arrangement with another motor carrier, and who does not assume custody as a carrier. 66 ?250l(b). 14. Brokers are prohibited from utilizing a ?motor carrier who or which is not the law?il holder of an effective certi?cate of public convenience or permit.? 66 2505(a). 15. Uber procures transportation service for passengers who request a ride using the Uber app. The Uber app locates the nearest available Uber driver, and then alerts the Uber driver of the passenger?s ride request. Because Uber arranges transportation service for third-party passengers, it is a broker. Uber does not ?possess a brokerage license issued by the Commission, which violates Section 2505(a) of the Public Utility Code, 66 2505(a). 16. Uber engages non-professional drivers using their personal Vehicles for commercial transportation. Uber drivers are not certi?cated motor carriers, which violates Section 2505(a) of the Public Utility Code, 66 2505(a). 17. As recently as June 10, 2014, Uber advised media outlets that it would continue to operate in Pittsburgh despite repeated efforts, which are explained in greater detail below, to enforce compliance with the Public Utility Code and Commission regulations. See A copy of this article is attached as Exhibit 2. 18. A straightforward reading of Section 2505(a) of the Public Utility Code leads to the inescapable conclusion that Uber has and Will continue to egregiously violate the Public Utility Code during the pendency of enforcement proceedings. B. The Need For Relief Is Immediate 19. l&E?s need for relief is immediate and on?going. has attempted on numerous occasions to stop Uber from unlawfully brokering transportation service using non- certi?cated drivers all to no avail. On April 22, 2014, an l&E motor carrier enforcement officer ?led non?traf?c citations before Magisterial District Judge Eugene Ricciardi against eleven (11) Uber drivers for operating a motor carrier Without possessing a certi?cate of public convenience, pursuant to 66 3310.3 In response to the citations, on April 26, 2014, Uber advised the media that it stands by its drivers, including reimbursement for fines and court fees. See gazette.com/business/ 2014/ drivers/stories/201404250181. A copy of this article is attached as Exhibit 3. 20. Uber did not cease brokering transportation in Pittsburgh after the non-traffic citations were filed. 3 These proceedings are docketed as follows: 14- 2014, MJ-05227-NT-0000299-2014, MJ -05 1 8-20 14, 14, M1- 14, 14, MJ-05227-NT-0000311-2014, 0000303 -2014, and MI -05 19-20 14. 21. Then, on June 5, 2014, filed complaints before the Commission against the same eleven (11) Uber drivers for transporting passengers for compensation between points in While not holding certi?cates of public convenience, in violation of 66 1101. proposed that a $1,000 civil penalty per Uber driver be imposed and that the Department of Transportation suspend the vehicle registration of each Uber driver, pursuant to 75 1375.4 22. Also on June 5, 2014, ?led a complaint against Uber for offering to broker and brokering transportation without authority to do so. complaint requested a $95,000 civil penalty. 23. After the ?ling of l&E?s numerous complaints before the Commission on June 5, 2014, Uber brazenly continued, and presently continues, to broker transportation using uncertifrcated motor carriers. See Exhibit 2, which is attached. 24. As explained in greater detail below, Uber?s unlicensed operation poses substantial threats to public safety and should not be permitted to continue during the pendency of complaint proceedings. C. The Injury From Uber?s Actions Will Be Irreparable If Relief Is Not Granted 25. By brokering transportation without a license and using non?certif1cated drivers to 4 These proceedings are docketed at the Commission as follows: C-2014-2418593, C- 2014-2418594, 02014- 2418600, and - transportpassengers, Uber is violating Section 2505(a) of the Public Utility Code, 66 2505(a). A violation of law constitutes irreparable harm per se. Pa. PUC v. Israel, 52 A.2d 347 (1947). VVhen certain conduct is declared to be unlawful, it is tantamount in law to being injurious to the public; continuing such unlawful conduct constitutes irreparable injury. Id. 26. Additionally, the Commission has stated that ?in regulating motor carrier passenger transportation service, the Commission has a fundamental duty to ensure driver integrity and vehicle safety for the service provided by each carrier.? Application of Yellow Cab Company of Pittsburgh, Inc. t/a ellowX, for the additional right to begin transport, by motor vehicle, persons in the experimental service of Transportation Network Service for passenger trips originating or terminating within Allegheny County, Docket No. (May 22, 2014), p. 7. For the reasons explained below, in continuing to broker transportation without a license and by using uncertificated drivers to transport the public, Uber has unilaterally deprived the Commission of its obligation to ensure driver integrity, Vehicle safety and the maintenance of sufficient insurance coverage. 27. Since Uber drivers are not certificated motor carriers, the Commission cannot be certain that its regulations pertaining to driver safety, 52 Pa. Code 29.50l~08, are being met. These requirements provide, inter alia, that Uber obtains driver history and criminal records, and that drivers hold a current, valid license, are at least 21 years of age and do not use alcohol or controlled substances while operating a vehicle in passenger service. 10 28. Likewise, the Commission cannot be sure that the vehicles of Uber drivers comply with its vehicle safety requirements at 52 Pa. Code 29.401?407, which include equipment standards, and compliance with vehicle inspection and Commission inspection requirements. 29. Signi?cantly, Uber drivers are not providing any evidence of insurance to the Commission, as motor carriers are required to do pursuant to 52 Pa. Code 32.2. Further, the Commission demands that minimum levels of insurance be maintained, as set forth in 52 Pa. Code 32.11. 30. Important questions pertaining to insurance coverage were raised in Rasier?s Application. Because Uber facilitates commercial transportation by retaining drivers who use their personal vehicles, it is likely that the insurance policies of Uber drivers exclude coverage for accidents or injuries that occur While the vehicle is being used for commercial purposes. See Protest of Concord Limousine, Inc. in Re." Application of Rcisier~PA, LLC and Protest of The Insurance Federation of Inc. to Rasier?s Application, Docket No. It is also questionable whether Uber?s excess insurance covers the operation of personal vehicles owned by its drivers. Id. If a fatal or injurious motor vehicle accident occurs today, the results would be catastrophic, especially if the Uber driver?s insurance policy excludes commercial coverage. 31. Until these important questions are resolved and Uber, as well as Uber drivers, 11 become licensed or certi?ed entities that abide by the Commissiorfs important safety regulations, the Commission should demand that Uber cease from operating its ride- I sharing network. To do otherwise renders the Commission?s laws and regulations in this area useless. If Uber is permitted to operate in this manner, who won?t be? D. The Relief Requested Is Not Injurious To The Public Interest 32. The relief that requests is certainly not injurious to the public interest. To the contrary, Uber has no lawful right to broker transportation for compensation between points within the Commonwealth. Until Uber becomes licensed and its drivers are certi?cated, the Commission is unable to guarantee that Uber is brokering transportation using drivers who adhere to the Commission?s safety and insurance regulations all of which were designed to safeguard the public. Uber?s ?word? that it provides safe service is not an excuse to ?agrantly ignore and break the law. 12 PRAYER FOR RELIEF WHEREFORE, the Bureau of Investigation and Enforcement, Petitioner, respectfully requests that the Commission enter an Order that directs Uber Technologies, Inc. to immediately cease and desist from utilizing its digital platform to facilitate transportation for compensation to passengers using non?certi?cated drivers in their personal vehicles. In accordance with 52 Pa. Code requests that the Commission schedule a hearing on this matter before an Administrative Law Judge no later than June 26, 2014. Public Utility Commission Bureau of Investigation and Enforcement P.O. Box 3265 Harrisburg, PA 17105-3265 (717) 787-5000 DATE: June 16, 2014 13 Respectfully submitted, 5 2. Stephanie M. Wimer Prosecutor PA Attorney ID No. 207522 Michael L. Swindler Prosecutor PA Attorney ID No. 43319 Wayne T. Scott First Deputy Chief Prosecutor PA Attorney ID No. 29133 VERIFICATION I, David W. Loucks, Chief Motor Carrier Division of the Bureau of Investigation and Enforcement, hereby state that the facts above set forth are true and correct to the best of my knowledge, information and belief and that I expect that the Bureau will be able to prove same at any hearing held in this matter. I understand that the statements herein are made subject to the penalties of 18 ?4904 relating to unsworn falsi?cation to authorities. Date: June 16, 2014 -A David W. Loucks, Chief Motor Carrier Enforcement Division Bureau of Investigation and Enforcement 14 EXHIBIT 1 COMMONWEALTH OF IN REPLY PUBLIC UTILITY COMMISSION PLEASE REFER . TOOURFLE PO. BOX 3265, HARRISBURG, PA 17105-3265 2307245 July 5, 2012 UBER INC 300 MARKET ST FLOOR SAN FRANCISCO CA 94102 To Whom It May Concern: Information before this Commission indicates that you have been holding yourself out to broker transportation service for compensation between points in the Commonwealth of Since you.do not hold a Certificate of Public Convenience issued by this Commission authorizing you to provide such service you. have violated. the provisions of the Public Utility Code at 66 Pa. C.S. ?ll0l. You are hereby directed to cease and desist from further violations of the Public Utility Code at 66 Pa. C.S. ?ll0l, et. seg. and the regulations of this Commission, 52 Pa. Code et. seq. Continued operations, as described above, will subject you to a $1,000 penalty? per violation. Future violations can. result in possible criminal prosecution with penalties up to $10,000 and one year in prison. If you wish to broker transportation for persons between points in the Commonwealth of for compensation, you must file an application with the Public Utility Commission. An application will be sent to you upon request by contacting the Compliance Office at (717) If you have any questions concerning this Hatter please do not hesitate to Contact the Commission at the above address. Alternative formats ?of this material are available for persons with disabilities by contacting the Compliance Office at (717) 787-1168. Sincerely, Joshua S. Kwiatkowski Bureau of Technical Utility Services Transportation Division pc: Philadelphia District Office/Supervisor Kilrain/2307245 EXHIBIT 2 Lyft, Uber not going anywhere despite ?nes By Bobby Kerlik Sta?? Reporter, 412-320~7886 Published: Tuesday, June 10, 2014, 11:15 pm. Updated 3 hours ago Ride-share companies and Uber said on Tuesday they would continue to operate in Pittsburgh despite big fines sought by the Public Utility Commission, setting up a legal showdown with the state agency. The PUC filed legal paperwork last week proposing fining $130,000 and Uber $95,000 for what the agency calls illegal operations since they started in February and March, respectively. The PUC fined 23 previously cited drivers $1,000 each. The commissioners would have to approve the fines before they are imposed. The PUC asked to revoke the registrations of the drivers who were cited. Both and Uber spokespeople said their companies would cover the cost of PUC driver citations including the $1,000 fines and would continue to offer rides to passengers in the area. The companies and drivers have 20 days to respond. ?We commit to standing strong with drivers and passengers every step of the way, fighting any citations, covering relevant costs and making policy progress,? spokeswoman Paige Thelan said. Uber spokesman Taylor Bennett said traditional taxi companies are holding up state approval of ride sharing. ?The PUC's recent enforcement action taken against drivers utilizing Uber's platform is disappointing. We have been working in good faith with the PUC to create a regulatory framework that allows for modern business models like ride sharing,? Bennett said. ?Efforts to penalize drivers directly impact their ability to expand economic opportunities, create new jobs and contribute to the economy.? Cited and Uber drivers could not be reached or declined to comment. The drivers were cited initially in April when a PUC compliance officer took a variety of rides from between March 31 and April 21, inciuding pickups at the Grand, Rivers Casino and Station Square. The citations were summary offenses filed with a magistrate with hearings set in September. The new fines would be civil penalties, PUC spokeswoman Jennifer Kocher said. Both and Uber have applications pending with the PUC seeking approval. Several taxi companies from across the state have filed protests against the applications, records show. A date has not been set for a hearing. unfortunate that this is the approach we have to take in order to ensure the safety of the entire community,? Kocher said. ?We have been telling (the companies) what is required to operate within the bounds of the law, but they chose to open and begin business, leaving us no choice but to enforce the law.? Among the groups who opposed and Uber applications is the Insurance Federation of an industry group. Samuel Marshall, president and CEO, said most individual drivers have policies that exempt coverage if the policyholder is using the vehicle as a taxi. He said and Uber should make their insurance the primary coverage for drivers. ??It exposes our members to unanticipated, unaccepted and uncompensated liability expenses,? Marshal! said. ?That's an expense all of our policy hoiders will have to pay for.? Bobby Kerlik is a staff writer for Trib Total Media. He can be reached at 412-320-7886 or bkerlik@tribweb.com. EXHIBIT 3 PUC cracks down on Lyft, Uber drivers April 25, 2014 11:50 PM By Kim Lyons I Pittsburgh Post-Gazette The battle for Pittsburgh?s passengers has heated up, with the Pubiic Utility Commission issuing its first citations since two ride?share companies moved into the area earlier this year. Court records show PUC enforcement officer Charles Bowser cited 23 drivers of ride-share companies and Uber between March 31 and April 21. Each driver is cited for operating a passenger carrier without a certi?cate of public convenience. The citations, issued through the office of District Justice Gene Ricciardi, were all dated April 22, and are being mailed to drivers. According to court records, the trips cited by Mr. Bowser included four to 777 Casino Drive, which is the Rivers Casino; three trips to 300 West Station Square Drive, which is the Sheraton Station Square hotel; and six trips to 600 Commonwealth Place, which is the Grand hotel. PUC spokeswoman Jennifer Kocher said the enforcement off1cer?s actions taking rides, then citing the drivers were not atypical for enforcement procedures. None of the cited drivers contacted by the Post-Gazette returned calls seeking comment Friday. The PUC issued a press release Friday reminding drivers that it is ?uniawful to transport any passenger for compensation without holding a PUC Certi?cate of Public Convenience. Compensation can include ?suggested donations.? and Uber, two San Francisco?based companies, have enlisted drivers in Pittsburgh to use their personal vehicles to offer taxilike services that connect drivers and riders via smartphone apps. The companies have been compared to illegal jitneys by opponents, which includes Yellow Cab Co., the area?s largest taxi company. has said since its drivers are not paid, but rather receive suggested donations from passengers, it was not subject to the PUC regulations for passenger transportation companies. On Friday, spokeswoman Paige Thelen said the company was aware of the citations and would stand behind any cited drivers, including paying any fines or reiated legal costs. She did not know how many of the 23 drivers cited worked for Lyft. ?We?ve been in close contact with our drivers to let them know we are here for them,? she said. Matthew Gore, general manager of Uber Pittsburgh, said the company had no information about which or how many drivers may have been ticketed. ?That said, if one of our partners were to receive a ticket because the PUC wants to protect entrenched interests, we absolutely stand by them and that includes reimbursing them for any fines or court fees,? he said. ?In over 100 cities around the world, Uber is delivering safe, reliable and affordable transportation options that consumers and drivers have come to love. At times, it takes the public voice to get officials to act in the best interests of their citizens and not special interests it?s the people calling for action, not Uber.? Yellow Cab president Jamie Campoiongo said Friday he felt sorry for the cited drivers. ?lt?s not the people that are driving that are the problem, it?s and Uber. Just like when people complain about the cab companies, it?s not the cab drivers? problem, it?s my problem.? and Uber both have applications before the state of to obtain certificates of public convenience to operate their services in Pittsburgh, as does Yellow Cab, which is seeking to launch its own Version of a ride share, called Yellow X. The earliest the PUC would rule on the matter is its next public hearing May 22. Kim Lyons: or 412-263-1241. Twitter: @S0cialKimly. CERTIFICATE OF SERVICE I hereby certify that I have this day served a true copy of the foregoing Complaint upon the parties, listed below, in accordance with the requirements of 52 Pa. Code 1.54 (relating to service by a party). Noti?cation by First Class Mail: Uber Technologies, Inc. 182 Howard Street #8 San Francisco, CA 94105 7 Stephanie M. Wimer Prosecutor PA Attorney ID No. 207522 Public Utility Commission Bureau of Investigation and Enforcement P.O. Box 3265 Harrisburg, PA 17105-3265 DATE: June 16, 2014