Overview
The Department of Public Utilities (DPU), within the Executive Office of Energy and Environmental Affairs (EOEEA), was established by Chapter 19 of the Acts and Resolves of 2007. According to its website,
[DPU] oversees investor-owned electric power, natural gas, and water companies in Massachusetts. In addition, the DPU regulates the safety of bus companies, moving companies, and transportation network companies. We also oversee the safety of natural gas pipelines. . . .
The Transportation Network Company (TNC) Division of the Department of Public Utilities oversees rideshare companies, rideshare services, and rideshare drivers in Massachusetts.
DPU is overseen by the Commonwealth Utilities Commission, which has three members who are appointed by the Secretary of EOEEA.
Transportation Network Company Division
DPU’s Transportation Network Company Division was created on August 5, 2016 by Chapter 187 of the Acts of 2016. Chapter 187 amended Chapter 159A of the Massachusetts General Laws by inserting Chapter 159A 1/2, which relates to the operation of transportation network companies (TNCs) in the Commonwealth. (The two largest TNCs, which accounted for more than 99% of rideshare services during our audit period, were Uber and Lyft.) The division is authorized by Chapter 187 to promulgate rules and regulations and conduct the activities necessary to administer and enforce the requirements of Chapter 159A 1/2. On November 28, 2016, the division entered into interim memoranda of understanding (MOUs) with the TNCs in the Commonwealth to establish interim regulatory oversight of the TNCs until the division could establish formal regulations. After entering into these MOUs, under the authority granted to DPU under Chapter 187, DPU promulgated Section 274 of Title 220 of the Code of Massachusetts Regulations (CMR), which became effective September 22, 2017 and superseded the aforementioned interim MOUs.
These regulations establish the rules governing DPU’s oversight of TNCs, the provision of transportation network services in the Commonwealth, and suitability requirements for transportation network drivers. Specifically for this audit, we examined 220 CMR 274.06 requiring both TNCs and the Transportation Network Company Division to conduct background checks of TNC rideshare drivers, 220 CMR 274.13 requiring the division to conduct quarterly audits of each TNC’s background check records, and 220 CMR 274.12(3) requiring the division to oversee and monitor the rideshare complaint process to ensure that complaints are resolved and ensure public safety. Although we did not review them during this audit, the division is also responsible under 220 CMR 274 for ensuring that rideshare drivers meet the following requirements:
- The driver must not offer or provide services for more than 12 consecutive hours in a 24-hour period.
- The driver must have a decal on the vehicle to identify when the driver is are working; the decal must be returned to the division within 14 days if the driver no longer provides services.
- The driver must have adequate automobile insurance, and all insurance documents must be submitted to the TNC (or a third party acting on the TNC’s behalf) before the driver provides services in the Commonwealth.
- The driver must be protected from unauthorized disclosure of his/her personal information that is in the TNC’s possession.
Finally, under 220 CMR 274.19, the division can waive any provision of 220 CMR 274, including 220 CMR 274.13, “on its own motion, or for good cause shown.” During our audit period, the division completed only one of its seven required quarterly audits to ensure that TNCs performed national background record checks for all rideshare drivers. However, the division did not request any waivers of any provisions during our audit period.
Timeline of Laws, Regulations, MOUs, and Audits
During the audit period, the division had 10 employees, including a director, an assistant general counsel, a program coordinator, and compliance officers.
According to the Transportation Network Division’s website, there were approximately 64.8 million rideshare trips that went through TNCs’ digital networks during calendar year 2017 and approximately 81.3 million rideshare trips during calendar year 2018.
TNCs
TNCs must apply for a permit from the Transportation Network Company Division to provide rideshare services in Massachusetts. In the permitting stage, a TNC applying for a permit is required to demonstrate that it has certain processes in place to protect the public. The TNC and its rideshare drivers must have insurance coverage; national background record checks of all rideshare drivers; clear and conspicuous explanations of the pricing structure posted and visible to riders; vehicles and rideshare drivers who can accommodate riders with special needs, including those with visual impairments and mobility devices; and a toll-free customer service hotline to respond to rideshare questions and complaints.
Further, each TNC must have an administrative process in place to maintain and update a roster of drivers that is certified by the TNC and then provided to the Transportation Network Company Division. TNCs, on request from the division and with appropriate legal process, provide the rosters to the Registry of Motor Vehicles (RMV) and to state and local law enforcement agencies. TNCs must maintain the driver rosters in real time and comply with all requests for information from the division regarding rosters, including information about rideshare driver background record checks.
Rideshare Driver Background Record Checks
Anyone seeking to become a rideshare driver is required to submit an application to a TNC and to give consent for the TNC to conduct a national background record check.
The TNC is required to perform this background record check, using the information in the driver’s application to check information in a number of national databases to determine whether there are any disqualifying events, such as criminal offenses or motor vehicle infractions, that should prevent the applicant from becoming a rideshare driver. These manual national background record checks include online data matching including the National Sex Offender Public Website, various national criminal search databases, and the driving records associated with the applicant’s driver’s license number from multiple states’ departments of motor vehicles. (See Appendix A for a full list of the reviewed databases.) The checks can also include onsite visits to courthouses to manually review potential drivers’ criminal records. National background record checks cover the last three to seven years (the duration depends on which database is being searched) of the applicant’s criminal and driving history.
If an applicant passes the TNC’s national background record check, the applicant’s personal identification information is transmitted electronically to the Transportation Network Company Division, which then performs a state background record check through the Department of Criminal Justice Information Services (DCJIS). The TNCs in the state have assured the division that only applicants who have passed this national background record check have their information transmitted electronically to the division to perform the state background record checks.
In January 2017, the division developed and implemented a screener program to perform state background record checks of new driver applicants, annual background record checks for drivers who are already on the rosters, and continuous monitoring of approved drivers. TNCs forward approved rideshare drivers’ applications to the screener program through an application programming interface (API). Through a separate API, the division sends drivers’ personal information to a statewide system of databases operated by DCJIS that in turn conducts a statewide background record check using the following databases: the Criminal Offender Record Information (CORI) database; RMV’s driver history database; the Warrant Management System, a Massachusetts Trial Court database; and the Sex Offender Registry Information database. DCJIS transmits the results of this data match to the division, which then checks for disqualifying events for each driver. (See Appendix B for a full list of disqualifying events.) Unlike national background record checks, which only include the last three to seven years, state background record checks cover an unlimited period. If DCJIS returns no criminal history, disqualifying events, warrants, or sex offenses, the screener program automatically approves the application. If DCJIS shows that the applicant is a sex offender or does not have a valid driver’s license, the screener program automatically denies the application. For records marked “needs review”—for example, driver history records where the RMV driver history database indicates a driving infraction that may be a disqualifying event—the driver’s application is moved into a queue for a division compliance officer to review manually. A compliance officer reviews the documentation from the state background record matches and, if a disqualifying event has occurred, denies the application and notifies the applicant and the TNC of the denial.
An approved or denied application is transferred electronically to the TNC and the applicant. The division issues background check Clearance Certificates, which are separate from the Driver Certificates issued by TNCs, to approved drivers, indicating that the drivers have passed the state background record check and may be granted access to a TNC’s digital network. If the compliance officer cannot make an eligibility determination after reviewing the background record check documents, the officer forwards the information to a supervisor to make the determination. An appeal process is available to people who have been denied Clearance Certificates or had their Clearance Certificates suspended. The appeal request must be received by the division within 30 days after the applicant receives the denial or suspension. If an applicant still does not agree with the decision after exhaustion of all administrative appeals, s/he may appeal for judicial review in the Superior Court.
After hiring a rideshare driver, a TNC is required to perform a national background record check of the driver every six months. If the driver does not pass the check, the TNC is required to suspend or revoke the driver’s access to its digital network, preventing the driver from picking up passengers. The suspension may be limited to the time it will take to determine whether allowing the driver to provide services is consistent with the public interest. The driver can appeal the suspension or revocation, but it stays in place until a final appeal determination is reached.
The Transportation Network Company Division has DCJIS continuously monitor the CORI database for approved rideshare driver records to identify any disqualifying event that may have occurred since the last background record check. If a disqualifying event occurs, the division immediately suspends or revokes the Clearance Certificate and notifies the driver and the TNC. The TNC is expected to immediately suspend or revoke the Driver Certificate it has issued and remove the driver from its digital network.
TNC Digital Networks
Each TNC is responsible for its own digital network; riders download the TNC’s mobile software application to gain access to it. Riders open accounts by giving TNCs personal information and credit card information, which enable TNCs to receive payment for rideshare services. An individual can open accounts with multiple TNCs.
Passengers can provide their pickup locations and destinations using TNCs’ digital networks. Once a rideshare driver accepts a rideshare request, the network electronically notifies the passenger of the driver’s name, vehicle type, and expected arrival time, as well as the fare. The entire rideshare transaction—from request for services to settlement of payment, reviews, and complaints—is processed within the TNC’s digital network.
Monitoring of Certified Drivers
The Transportation Network Company Division conducts quarterly audits of TNCs. During an audit, the division reviews a TNC’s driver certification and criminal background record check processes and determines whether the TNC has conducted the required national background record checks of rideshare applicants and drivers. An audit also allows the division to determine whether drivers whose Clearance Certificates have been suspended or revoked were promptly barred from accessing a TNC’s digital network. At the end of a quarterly audit, the division issues findings for the TNC to correct. If the audit reveals noncompliance with Section 6 of Chapter 159A 1/2 of the General Laws and 220 CMR 275, it may result in an enforcement action. According to Chapter 159A 1/2 of the General Laws, in response to noncompliance, the division may issue a monetary penalty, refrain from issuing new Clearance Certificates, or revoke the TNC’s permit to operate in Massachusetts.
Rideshare Complaint Process
TNCs must provide a detailed numerical accounting of all complaints by or about drivers or riders to the Transportation Network Company Division monthly. Rideshare riders and drivers may submit complaints through a TNC’s mobile software application, through a TNC’s website, or by phone. These complaints, compiled by TNCs, involve issues like unprofessional behavior, vehicles in poor condition, car accidents, and assaults. Additionally, TNCs have zero-tolerance policies, which encourage riders to ask a driver to pull over if they suspect that the driver is under the influence of drugs or alcohol. If this happens, the driver must allow the rider to exit the car and call the police. TNCs encourage riders to notify them of this issue. They promptly suspend a driver’s TNC digital network account access when they receive a report from any person who reasonably suspects that the driver is under the influence of drugs or alcohol while providing rideshare services or delivery services.4 TNCs must immediately report any driver suspension or revocation to the division so it can immediately suspend or revoke the driver’s Clearance Certificate.
| Date published: | November 23, 2021 |
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