Académique Documents
Professionnel Documents
Culture Documents
Daneman
Call-A-Cab, LLC
200 Broadway Blvd SE
Albuquerque, NM 87102
Phone 505-252-6175
October 4, 2016
Re:
A New Mexico Class E Chauffeurs License will Solve Uber Safety Issues
The Transportation Network Services Act is Preempted by the Supremacy Clause
Predatory Pricing and Vertically Integrated Monopoly
Uber Contractors Operating Without Insurance
Synopsis:
The 2016 NM Transportation Network Services Act [TNSA] is only six-months old, but is fatally
flawed.
It is in direct conflict with Federal Motor Carrier Safety Administration [FMCSA] regulations and
definitions and its insurance scheme has gaps of non-coverage.
Especially as the Uber facilitates interstate transportation, it is subject to federal laws the TNSA
purports Uber exempt. Therefore, New Mexicos TNSA is preempted by the Supremacy Clause.
New Mexicos transportation regulation was pressured into accommodating Uber, however, the Uber
phenomenon is not a new technology requiring special treatment. Uber did not invent GPS or first
associate Smartphone GPS with a tracking app. Uber did, however, use Disruptive Marketing to take
over local taxi business, forcing its way in hiding in the ether of the Internet in order to ignore state
enforcement of regulations, business taxes; and violating antitrust law.
In comparison, nine months prior to Uber, Call-A-Cab launched a GPS taxi logistics peer-to-peer
website perfect for Smartphones, but also accessible by PC, tablet, and landlines. And Call-A-Cab
did it legally.
The following analysis of the 2016 NM TNSA is not intended to put Uber out of business. Uber is a
very popular Smartphone app. However, the State of New Mexico must modernize its Motor Carrier
and MVD statutes in order to promote its legitimate interest in public safety, and end Ubers
monopolistic practices of predatory pricing and blocking competition.
The current Uber business model, as described in the TNSA, unfairly exploits its contractors and
their vehicles, perpetuates monopolistic practices, and at times leaves drivers and passengers
completely uninsured.
On the other hand, if the measures suggested in this analysis are adopted, Uber can continue doing
business, its contract drivers will have more opportunities earn a fair income, and taxi companies
and their drivers can participate as well.
In 2011, the first 4G LTE Broadband Smartphones were introduced (3G was not fast enough to
handle streaming GPS data) and in 2013 Daneman launched the Call-A-Cab GPS Taxi Logistics
website. He also designed a GPS tracking website called GPS ON TIME.
Uber and Lyft entered the Albuquerque market illegally in 2014 and in 2015 their Predatory Pricing
practices decimated local taxi fleets. Call-A-Cab was in striking distance of competing head-tohead with Uber, but Uber dropped their prices from $2.25 to 85 cents per mile. Call-A-Cab went
from thirty subscribed drivers (our target for optimal logistics was fifty) to only four.
While Call-A-Cabs website redirects about $10,000 in taxi customers to three cab companies, no
cab company will adopt Call-A-Cabs GPS logistics to its dispatch office. Yellow Cab liked Call-ACab and eventually computerized its dispatch office, but at that time did not appreciate the value of
Call-A-Cabs peer-to-peer website; which is unfortunate because it would have put Yellow Cab a
year ahead of Uber and Lyft.
Answer:
Yes. A state statute must not conflict with, contradict, or obstruct enforcement of
federal law. Under public policy and legitimate state interest, commercial interstate
transportation of passengers is subject to federal and state safety regulations.
Conclusion: A New Mexico Class E license would facilitate for hire drivers meeting New
Mexico Motor Carrier Act, FMCSA safety, and commercial insurance regulations.
Discussion:
Generally speaking, a state statute is preempted by the Supremacy Clause if it violates, contradicts or
2
obstructs enforcement of federal law. Azar vs Prudential Insurance Company, 68 P.3d 909 (2003)
133 N.M. 669 2003-NMCA-0621
The New Mexico Motor Carrier Act regulates commercial transportation as public policy; the state
having legitimate interest in the safety and welfare of citizens using for hire, or commercial cars
and taxis. State Motor Carrier regulations follow FMCSA guidelines.
These regulations, from which Uber declares itself exempt, apply to Uber even more considering
Uber operates not only locally but as an Interstate Carrier. Just set your Uber apps destination from
Albuquerque to Denver or El Paso, and you will see for yourself.
The following section of Ubers 2016 Transportation Network Services Act [TNSA] is in conflict
with Federal law:
SECTION 3. NOT OTHER CARRIERS.--Transportation network
companies and transportation network company drivers shall
not be subject to the Motor Carrier Act or deemed2 to provide any
transportation service as defined in the Motor Carrier Act. A
transportation network company driver shall not be required to
register a personal vehicle as a commercial vehicle or vehicle for
hire.3
Daycare employees.
Uber or Lyft drivers.
Limo drivers.
Taxi drivers.
Chauffeurs.
http://www.dmv.org/mo-missouri/special-licenses.php#Class-E-Drivers-Licenses
{30} Federal law may preempt state law under the Supremacy Clause, U.S. Const. art. VI, cl. 2, by "express
provision, by implication, or by a conflict between federal and state law." New York State Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995);
Hennessy v. Duryea, 1998-NMCA-036, 6, 124 N.M. 754, 955 P.2d 683. "The purpose of the preemption
doctrine is to allow Congress to promulgate a uniform federal policy without states frustrating it through either
legislation or judicial interpretation." Largo v. Atchison, Topeka & Santa Fe Ry. Co., 2002-NMCA-021, 6, 131
N.M. 621, 41 P.3d 347. Courts, however, apply a strong presumption against preemption, particularly in areas of
law that are traditionally left to state regulation. Hennessy, 1998-NMCA-036, 8, 124 N.M. 754, 955 P.2d 683;
Montoya v. Mentor Corp., 1996-NMCA-067, 7, 122 N.M. 2, 919 P.2d 410. {31} "Whether federal law
preempts state law is generally a question of congressional intent." Srader v. Verant, 1998-NMSC-025, 7, 125
N.M. 521, 964 P.2d 82. "`When Congress has considered the issue of preemption and has included in the
921*921 legislation a provision expressly addressing the issue,' we need only identify the domain expressly
preempted by the federal statute and may infer that matters beyond that domain are not preempted." Hennessy,
1998-NMCA-036, 6, 124 N.M. 754, 955 P.2d 683 (quoting Montoya, 1996-NMCA-067, 8, 122 N.M. 2, 919
P.2d 410).
2
Deem, vb. 1. To treat (something) as if (1) it were really something else, or (2) it has qualities that it doesnt have . . .
Blacks Law Dictionary, Seventh Ed. 1999
3
See also TNSA 2, B. (2) and 2, C.
3
This is unfortunate and unfair to legal taxi companies, and Call-A-Cab. The only way to correct this
inequity is to preempt and or repeal the TNSA through the Supremacy Clause.
4
Uber CEO Kalanick made it publicly known he was out to destroy big taxi. http://recode.net/2014/05/28/traviskalanick-uber-is-raising-more-money-to-fight-lyft-and-the-asshole-taxi-industry/
5
Below-cost pricing intended to eliminate specific competitors and reduce overall competition is known as predatory
pricing. Section 2 disallows this conduct. In Brooke Group Ltd. v. Brown & Williamson Tobacco, 509 U.S. 209 (1993),
the U.S. Supreme Court devised a two-part test to determine if predatory pricing had occurred. First, the plaintiff must
establish that the defendant's production costs surpass the market price charged for the item. Second, the plaintiff must
establish that a "dangerous probability" exists that the defendant will recover the investment in above-cost inputs. In
Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc. (05-381) (2007), the Supreme Court said that this test
also applies when determining if a predatory bidding scheme exists.
6
New Mexico Taxation and Revenue could find no gross receipts tax filings for Hinter-NM, LLC, Ubers registered
business name in New Mexico. See Connie L. Dayton, CPS, CFE, CFF, Forensic Tax Auditor, 505-841-6687
connie.dayton@state.nm.us
cc:
Yellow Cab Company of Albuquerque
Albuquerque Cab Company
Giant Cab Company
Capital City Cab Company
Avellino Gutierrez, Director of Transportation
Valerie Espinoza, Chairperson, NMPRC
U.S. Sen. Tom Udall
Sen. Cisco McSorley
Sen. Gerald Ortiz y Pino
Sen. Michael Padilla
Sen. Michael S. Sanchez
Sen. William P. Soules
Rep. Jim Dines
Rep. Brian Egolf
Rep. Eliseo Lee Alcon
Rep. James Roger Madalena
Rep. Matthew McQueen
Rep. G. Andrs Romero
76
http://uberpeople.net/threads/uber-and-lyft-car-insurance.60340/
5