Final Comments on the CPUC Rulemaking on Ridesharing I

This is the first of two posts on the final thoughts that I turned into the California Public Utilities Commission. Please excuse the weird formatting. This program goes bonkers whenever I bring in text from another source and I'm sure as hell not going to re-type the whole thing.

I doubt that I've worked harder writing anything. Nor do I feel that I've written anything more useless. The hearings appeared to be fixed from start to finish. It's hard to argue otherwise when the CPUC made back door deals with Lyft and Uber, who they were supposed to be regulating, before the hearings even began. And, according to Sidecar guru Sunil Paul, his company made a secret deal with the CPUC after the hearing ended but before any decisions are officially announced.

What we took part in, then, was theatre not law. The play had it's moments but, at the end of the day when the curtain finally goes down, all we'll remember is that it was a second-rate farce written by schmucks of lies and hustling signifying very little.

Revised Final Comments on Rulemaking on Ridesharing

Public Safety

The concept of allowing non-professional drivers to use their personal vehicles as taxies is an inherent danger to public safety. The risks are: uninsured or under-insured drivers and vehicles, untrained and/or sub-par drivers, and unsafe, poorly maintained cars. The CPUC, in fact, would be legalizing the above if it were to validate the pseudo ridesharing services of Lyft, Sidecar and others. It would be impossible to regulate. To legalize one private car as a faux taxi would be to legalize them all, and, in the process, raise the personal insurance rates of every driver in the State of California.

In addition, Lyft and Sidecar operate their services in a manor that is designed to deceive, mislead and manipulate, not only the general public, but their own drivers. The very business model of these companies is based on a deliberate misuse of words and an intentional misreading of the ridesharing rules in order to avoid insurance and other laws that are designed to protect, not only the general public, but California transportation businesses and its workers.

Is it true if you say it’s true?

In this section I’m going to compare some public statements with the “terms and conditions” that both the drivers and passengers of Lyft and Sidecar have to sign before they can either driver or ride in one of the vehicles.

The terms are hard to find on their websites and virtually impossible to read if they are downloaded on a smartphone because they print out to over twenty pages at 12pt type. Although Lyft and Sidecar cover themselves by saying that everyone should read the terms, I’ve yet to meet a Lyft or Sidecar driver or a customer who realized that they had waived their rights to sue and agreed to the following statements when they downloaded their apps:

From Lyft terms: (1)

You and We agree that any legal disputes or claims between the Parties that cannot be resolved informally will be submitted to binding arbitration in California. The arbitration shall be conducted by the American Arbitration Association, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

In the event that You have a dispute with one or more Users, You agree to release Lyft (and Our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes with other Users or to Your use of the Lyft Platform or the Services. If You are a California resident, You waive California Civil Code Section 1542, which says: "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."

From Sidecar terms: (2)

ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SIDECAR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

  

I repeat that neither Lyft nor Sidecar go over their terms and/or agreements with their drivers and certainly not with their passengers.

Contrast this with my interview with the Personal Manager of Desoto Cab, Greg Cochran. I sat across from him at his desk while we went through Desoto’s nine-page agreement.

I’d read a clause, ask a question if necessary, then we’d both sign off on the clause.

I learned that I was fully covered for liability by both Desoto’s insurance and Worker’s Compensation. I had to put down a $500 insurance deposit, which will be returned after one year if I don’t have a “Fault Accident.” There was nothing in the contract that would keep me from taking legal against them if I thought it necessary. Before signing the agreement, I read and initialed the following.

NOTICE: BY SIGNING THIS AGREEMENT, YOU VERIFY THAT YOU HAVE HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY AND OTHER ADVISORS BEFORE SIGNING THIS AGREEMENT, AND THAT YOU HAVE FULLY READ, UNDERSTAND AND AGREE O THE CONDITIONS SET FORTH THEREIN.

Both Lyft and Sidecar pressured me to download their apps (and thus sign their terms) as soon as possible when I interviewed with them over the phone and later in person before I could possibly have had any chance to see an attorney or other advisor.

Cochran also discussed my resume and my professional driving experience with me, subjects that held no interest for Lyft or Sidecar at all.

Both companies make unsubstantiated claims about their vehicle and driver safety.

Sidecar

“We Know Our Drivers

We meet every driver in person and conduct a mandatory orientation session.”

“Vehicle Quality

We maintain a standard vehicle quality level.”

My own experience was quite different. (3)

I've had many careers in my life but my interviews at these companies marked the first times that I've ever applied for a job and not been asked what skills or experience qualified me to do the work.

Sidecar conducted an online video interview with me. The most profound question they

asked was,

“If you were to be a car, what kind of car would you be? And why?”

There was no “in person” interview at Sidecar. Instead, I attended Sidecar U for an hour and a half where most of the time was devoted to explaining how to use the app and noting the best times to drive. The fact that Sidecar was not liable for auto insurance was briefly mentioned and driving safely was encouraged.”

There was no mechanical inspection of the car.

Justine Sherrock, a journalist who drove for Lyft, had these experiences with her Lyft "training." (4)

“Our training focused on using the app, signing up for work hours online, and being friendly. In teams of two, we sat in chairs side by side (Lyft riders are supposed to sit shotgun), acting out welcoming and fist-bumping the rider, making small talk during the mock drive, and using the app on tester phones. We never actually got in a car.

Lyft’s vehicle safety inspection, which it claims is stricter than those of taxicab services, consisted of checking that my car was clean inside and out and having me demonstrate that my break lights, blinkers, and headlights worked. They copied my driver’s license and insurance card and photographed my license plate — there was no need, they explained, to see my registration as long as I had the sticker.

Unlike at a cab company, there was no driver safety test or quiz on city geography. They didn’t check references or ask for a résumé. I don’t think they even Googled me. “

According to Sidecar’s website “Safety is our #1 priority.”

“All drivers are pre-vetted for safety, all rides are GPS tracked and everyone who rides is covered by our unique $1 million dollar insurance policy. We have many additional features in place to help maintain your safety and security.”

“How do I know that Sidecar passengers are safe?

“Safety is our #1 priority. All passengers are required to enter their personal information (including credit card info) prior to joining the community, and they are rated by drivers after every trip. This helps keep everyone honest, visible and safe.”

“How do I know my community driver will be safe, friendly and reliable?”

“Safety is our #1 priority. All community drivers not only must have a valid driver's license, insurance and a good car in working order, but we also run background checks, conduct interviews and use GPS technology to track every trip. Passengers are not anonymous; Sidecar takes steps to ensure passenger identity and accountability for a

safer driving experience. We have a robust community rating system. People with low ratings are removed from the community. Any driver who doesn’t meet Sidecar’s safety, performance, or courtesy standards will be deactivated. Your ratings give Sidecar drivers yet another reason to provide friendly, safe and reliable rides.”

Sidecar’s “terms,” however, express a total lack of concern for anybody who doesn’t own stock in Sidecar.

“No Warranty OR Guarantee Provided as to Driver or Passenger Safety. Sidecar has taken commercially reasonable steps to collect information from its Drivers, including proof of automobile registration and insurance, and has used commercially reasonable efforts to conduct Driver background checks. This however, is not to be deemed a warranty or guarantee, either express or implied, for the safety of a ride, the reliability of a Driver, a ride or the Driver’s vehicle, or for anything else, and Sidecar expressly disclaims all warranties as to its Drivers and Passengers. You should take all reasonable steps in determining whether to accept a ride from Driver or give a ride to a Passenger.

In no event will Sidecar be responsible for any damages (including personal injury, death, property damage, lost time or wages, etc.) Resulting from or related to a ride facilitated by the Service, or for resolving any disputes between you and another user. You hereby agree that your use of the Service is at your sole risk.”

On Facebook, Lyft claims:

“Lyft is your friend with a car. Download Lyft in the App Store or on Google Play and request an instant pickup from a friendly, background-checked community driver for less than the cost of a cab.”

On its website, Lyft adds:

“It’s all about community. Passengers and drivers rate each other after every ride. If you rate a driver below 4 stars, you’ll never be matched with that driver again. If a driver's

average falls below 4½ out of 5 stars, they are removed from the Lyft community. It's our way of maintaining high-quality standards.”

Lyft’s terms, on the other hand, show the real concern that the company has for its drivers and passengers - that is to say, ZERO.

“WE DO NOT SCREEN THE PARTICIPANTS USING THE SERVICES IN ANY WAY. AS A RESULT, WE WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL, ARISING OUT OF THE USE OF LYFT OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, TO DAMAGES ARISING OUT OF COMMUNICATING AND/OR MEETING WITH OTHER PARTICIPANTS OF LYFT OR THE SERVICES, OR INTRODUCED TO YOU VIA LYFT OR THE SERVICES. SUCH DAMAGES INCLUDE, WITHOUT LIMITATION, PHYSICAL DAMAGES, BODILY INJURY, DEATH AND OR EMOTIONAL DISTRESS AND DISCOMFORT.”

“LYFT HAS NO RESPONSIBILITY WHATSOEVER FOR THE ACTIONS OR CONDUCT OF DRIVERS OR RIDERS. LYFT HAS NO OBLIGATION TO INTERVENE IN OR BE INVOLVED IN ANY WAY IN DISPUTES THAT MAY ARISE BETWEEN DRIVERS, RIDERS, OR THIRD PARTIES. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING PROVIDING OR ACCEPTING TRANSPORTATION REST SOLELY WITH YOU. IT IS EACH RIDER AND DRIVER’S RESPONSIBILITY TO TAKE REASONABLE PRECAUTIONS IN ALL ACTIONS AND INTERACTIONS WITH ANY PARTY THEY MAY INTERACT WITH THROUGH USE OF THE SERVICES. LYFT MAY BUT HAS NO RESPONSIBILITY TO SCREEN OR OTHERWISE EVALUATE POTENTIAL RIDERS OR USERS. USERS UNDERSTAND AND ACCEPT THAT LYFT HAS NO CONTROL OVER THE IDENTITY OR ACTIONS OF THE RIDERS AND DRIVERS, AND LYFT REQUESTS THAT USERS EXERCISE CAUTION AND GOOD JUDGMENT WHEN USING THE SERVICES. DRIVERS AND RIDERS USE THE SERVICES AT THEIR OWN RISK.”

As far as I know these companies (and others like them) are the only forms of transportation that make passengers sign away their rights to sue and be covered by the company’s liability insurance before getting on a vehicle. Would you get in a bus, a cab, a train or an airplane where you had to agree beforehand in writing to “USE THE SERVICE AT YOUR OWN RISK?”

On the other hand, now that you’ve read these exclusions will you get into a Lyft?

Of course, Lyft and Sidecar claim that they are only “software platforms” but this is a specious argument. You can’t be run over by software. There is something like 2,000 vehicles acting like taxis on the streets of San Francisco that wouldn’t be out there if Lyft and Sidecar didn’t exist. These cars are driven by men and women who have been vetted (however badly) by the bogus ridesharing companies, and who pick up customers via Lyft and Sidecar’s apps.

These apps can get you killed. The people who produce, market and own them need to be regulated.

Part II in a few.