By Michael J. Melton
On February 7, 2020, CPUC Commissioner Genevieve Shiroma issued a proposed decision on data confidentiality issues pertaining to the Commission’s Order Instituting Rulemaking (OIR) on regulations relating to passenger carriers, ridesharing, and new online-enabled transportation services (R.12-12-011). The CPUC originally initiated R.12-12-011 on December 20, 2012, to assess the public safety risks of then-new rideshare technologies, including Uber and Lyft, now known as Transportation Network Companies (TNCs). The proposed decision reverses a policy the Commission adopted in 2013 as part of this OIR that allowed entrants into the newly regulated “ride-sharing” transportation industry, namely Uber and Lyft, to submit their annual reports required by the Commission on a confidential basis. Specifically, footnote 42 on page 33 of that 2013 order provides that the reports containing safety data shall be filed confidentially. Neither the general public nor lawmakers have had access to this safety data despite the exponential growth of TNCs from 2012 to 2020.
According to the proposed decision, the original order was based on a “presumption of confidentiality [that] was acknowledged at a time when TNCs were a nascent transportation service, and the Commission accepted the representations that failure to grant confidentiality to the annual reports, particularly the disaggregated data contained therein, might compromise sensitive information and place the compliant TNCs in an unfair competitive disadvantage.” Commissioner Shiroma found that in the six years since issuing this order, the Commission’s knowledge of the TNC industry now requires that the confidentiality policy should be ended. Specifically, she noted, “[a]s there are no apparent competitors that can rival Uber and Lyft’s market-share dominance, the suggestion that producing their annual reports could place them in an unfair competitive disadvantage lacks factual support.”
Commissioner Shiroma’s February 7 decision proposes that footnote 42 be deleted and that the CPUC should not allow further TNC reports to be filed confidentially. If the proposed decision is adopted, TNCs would have the burden of showing a compelling reason why confidentiality may be required. The decision would apply prospectively but defers to the Commissioner and the assigned Administrative Law Judge to determine whether the CPUC will publicize past TNC annual reports. According to a CPUC Press Release, “[t]he proposed decision would bring greater transparency to the regulation of TNCs and facilitate improved planning for local jurisdictions.”
The proposed decision comes after increased scrutiny from the legislature, demanding the release of safety data. Less than one month prior to the decision, Assemblymember Lorena Gonzalez announced her intent to “utilize every tool to force” the PUC to release safety data filed by Uber and Lyft.
Proceeding number R.12-12-011 remains open, and the CPUC’s Commissioners will have their first opportunity to vote on the proposed decision at the CPUC Voting Meeting on March 12, 2020. Members of the public can comment on the proposed decision by emailing public.advisor@cpuc.ca.gov and referencing proceeding number R.12-12-011.