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Order

[34 Pa.B. 4993]

Public Meeting held
August 19, 2004

   Commissioners Present:  Terrance J. Fitzpatrick, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli; Wendell F. Holland

Petition of the Brotherhood of Unified Taxi Drivers/Owners; S. P. 28208

Order

By the Commission:

   Before us for consideration is the Letter/Petition for Reconsideration (Petition) filed on July 14, 2004, by the Brotherhood of Unified Taxi Drivers/Owners.

History of the Proceeding

   At its June 10, 2004, public meeting, the Commission approved a temporary fuel surcharge for motor carriers providing call and demand service, airport transfer service and paratransit service. The temporary fuel surcharge became effective on June 14, 2004, under Special Permission No. 28208 and will terminate on June 12, 2005. The Bureau of Transportation and Safety was directed to investigate the merits of the fuel surcharge on a quarterly basis, beginning September 30, 2004, or as otherwise directed by the Commission.

   The temporary fuel surcharge was granted in response to the Commission's receipt of verbal and written requests from passenger motor carriers, including a written request filed by the Pennsylvania Taxicab and Paratransit Association (PTPA) on behalf of its 119 members and a petition filed by Lehigh Valley Taxicab Co., Inc. The requesting parties and the petitioner had cited the recent, unanticipated rise in retail gasoline prices.

   Under 66 Pa.C.S. § 1308(a), the Commission permitted call or demand, paratransit and airport transfer carriers to recover increased fuel costs. Call and demand carriers were authorized to charge a temporary fuel surcharge of $0.30 per trip for each paying passenger. Paratransit and airport transfer carriers were authorized to charge a temporary fuel surcharge of $0.70 per trip for each paying passenger.

   On July 14, 2004, the Petitioner filed the instant Petition requesting the Commission reconsider the amount of the fuel surcharge for taxicabs providing transportation in Philadelphia.

Discussion

   The Public Utility Code establishes a party's right to seek relief following the issuance of our final decisions under 66 Pa.C.S. § 703(f) and (g), regarding rehearings, rescission and amendment of orders. Requests for relief must be consistent with 52 Pa. Code § 5.572(b), regarding petitions for relief following the issuance of a final decision. The standards for a petition for relief following a final decision were addressed in Duick v. PG&W, 56 Pa. PUC 553 (1982) (Duick).

   Duick held that a petition for rehearing under section 703(f) of the Public Utility Code must allege newly discovered evidence not discoverable through the exercise of due diligence prior to the close of the record. Duick, at 558. A petition for reconsideration or modification under section 703(g), however, may properly raise any matter designed to convince us that we should exercise our discretion to amend, modify or rescind a prior Order, in whole or in part. Furthermore, the petitions are likely to succeed only when they raise ''new and novel arguments'' not previously heard or considerations which appear to have been overlooked or not addressed by us. Duick, at 559. AT&T v. Pa. PUC, 568 A.2d 1362 (Pa. Cmwlth Ct. 1990), further elucidated the standards for rehearing, reconsideration, revision or rescission.

   The Brotherhood of Unified Taxi Drivers/Owners failed to file its petition for reconsideration within 15 days after the Commission's temporary fuel surcharge Order was entered, as required by 52 Pa. Code § 5.572. While the Petitioner attempted to file its petition by facsimile on June 18 and June 27, neither of the faxed petitions contained the appropriate verification required by 52 Pa. Code § 1.36. Further, our regulations prohibit filing petitions by facsimile. 52 Pa. Code § 1.11(c). On July 14, the Petitioner filed its verified Petition in writing with the Secretary of the Commission. Notwithstanding the tardiness, we will nonetheless consider the petition given the significant concerns involved.

   Petitioner states that the temporary fuel surcharge of $0.30 per trip per paying passenger for call and demand carriers is ''wholly insufficient.'' Petitioner states that the average fuel cost for Philadelphia taxi drivers has risen from $20 to $22 per day, to $30 to $33 per day. Petitioner alleges that most drivers average 15 to 25 trips per shift, and that the additional $4.50 to $7.50 obtained from the fuel surcharge fails to cover the additional fuel costs. Petitioner states that the average retail price of fuel in Philadelphia is $2.30 ''per gallon for the required octane rate for our vehicles.'' Petitioner did not provide any statistical information about the average length of trip or the average miles per gallon for its typical vehicle, nor did the Petitioner provide rationale for the need to use premium grade gasoline.

   Notwithstanding the lack of statistical information, we believe that we can address the Petitioner's allegation by using the information contained in our June 10 Order. In our analysis to determine the appropriate temporary fuel surcharge amount, the Commission not only compared the retail price of fuel over the past 2 years, it also considered the average length of a trip by taxi carrier and the average miles per gallon for a taxi vehicle. It is believed that premium gasoline must be used in most Philadelphia Medallion taxicabs because full-size sedans, such as the Chevrolet Caprice or Ford Crown Victoria, are utilized as taxicabs. This fact is substantiated by the Philadelphia District enforcement staff. These vehicles suffer poor engine performance unless premium gasoline is used. In our June 10 Order, the Commission compared the retail cost of regular gasoline in 2004 to the cost in 2002. According to historical information obtained from the Department of Energy's website, the retail cost of premium gasoline on May 31, 2002, was $1.59, while the retail cost of premium gasoline on May 31, 2004, was $2.28.1 The average cost of a taxicab trip was calculated by dividing 6.8 miles (the average trip length for cabs as determined by the PTPA) by 11.5 (the average miles per gallon per vehicle provided by PTPA by its National organization) to first obtain the average amount of fuel used per trip of .45 gallon. This average amount of fuel per trip is then multiplied by the cost of fuel in both May 2002 and May 2004 to obtain the average cost of fuel per trip. The calculations reveal that the fuel cost per taxi trip in 2002 was $0.72, while the fuel cost per trip in 2004 was $1.02. The $0.30 difference in fuel costs for vehicles utilizing premium gas is the same difference found by the Commission for vehicles using a regular grade of gasoline.

   The Petitioner also requests that the temporary fuel surcharge be applied to the flat rate that is charged to passengers traveling from the Philadelphia International Airport to the Center City (defined as the area of Philadelphia encompassed by Spring Garden Street to the north, by the Delaware River to the east, by South Street to the south and by the Schuylkill River to the west) and vice versa. Our Order of June 10 provided for the collection of the temporary fuel surcharge on all trips, whether calculated on a meter, by odometer mileage or by zone.

   The Petitioner alleges that taxicab operators are discriminatorily treated by the Commission's June 10 Order, since it permits paratransit and airport transfer carriers to collect the fuel surcharge from each passenger. The June 10 temporary fuel surcharge provided that call and demand carriers, airport transfer carriers and paratransit carriers are authorized to charge the temporary fuel surcharge to each paying passenger. In call and demand service, the passenger normally hires the vehicle and its driver. Therefore, the passenger or group of passengers traveling to the same destination pay a single charge. In airport transfer carriage, passengers are charged individually. Most paratransit transportation charges are on an individual basis. While we recognize the temporary fuel surcharge may unduly benefit carriers depending on the particular circumstances of the trip, we also need to bear in mind our obligation to address an industry-wide problem ''without creating a chaotic rate structure impossible to manage or police.'' Emergency Fuel Surcharge, 47 Pa. P. U. C. 389, 391 (1974). We believe that the June 10 Order adequately addresses the unique needs of each type of transportation.

   Although not part of the Petitioner's allegations in its Petition, the Commission will use this opportunity to clarify another matter related to the June 10 Order. We have become aware through numerous telephonic inquiries that many call and demand carriers utilizing meters to calculate charges have encountered difficulty collecting the fuel surcharge unless it appears in the total charge displayed on the meter. We recognize that some taxi meter models may not register the surcharge as part of the total charge, and that some carriers have already utilized the surcharge feature of their meter for other miscellaneous charges and are unable to add another surcharge amount. Therefore, we will permit call and demand carriers to add the $0.30 fuel surcharge to the initial mile increment or flag drop. It is recognized that call and demand carriers will need to reprogram or recalibrate their meters to accomplish this change, and carriers are strongly reminded to ensure the meter is resealed following the reprogramming or recalibration. The Commission is waiving its requirements in 52 Pa. Code § 30.31(6)(ii), and permitting Medallion taxi owners to reseal their meters with a meter seal provided by the meter repair center rather than the Commission issued meter seal.

   Accordingly, for the previous reasons, the Petition of the Brotherhood of Unified Taxi Drivers/Owners is denied. Therefore,

It Is Ordered That:

   1.  The petition of the Brotherhood of Unified Taxi Drivers/Owners is denied.

   2.  The Secretary of this Commission shall duly certify this order and deposit same with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.

JAMES J. MCNULTY,   
Secretary

[Pa.B. Doc. No. 04-1673. Filed for public inspection September 3, 2004, 9:00 a.m.]

_______

1  By comparison, the average retail cost of regular gasoline on May 31, 2002 was $1.35 and $2 on May 31, 2004.



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