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Regency Transportation Group, Ltd v. Pennsylvania Public Utility Commission

May 16, 2012

REGENCY TRANSPORTATION GROUP, LTD, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: November 15, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1

HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE McCULLOUGH

Regency Transportation Group, Ltd. (Regency) petitions for review of the January 14, 2011, order of the Pennsylvania Public Utility Commission (Commission) denying Regency's exceptions and objection and adopting as modified the initial decision and order of an administrative law judge (ALJ), which concluded that the Commission was not preempted by federal law from collecting the Fiscal Year (FY) 2009-2010 assessment from Regency for intrastate passenger service. We affirm.

The facts as found by the ALJ and adopted by the Commission may be summarized as follows. Regency holds a certificate of public convenience from the Commission authorizing it to provide limousine, airport transfer and group and party services within the Commonwealth. Regency also holds a common carrier certificate from the Federal Motor Carrier Safety Administration (FMCSA) authorizing it to provide interstate charter and special operations services. Regency operates limousines pursuant to both its intrastate and interstate charter authorizations. The limousine service provided by Regency generally involves the transportation of multiple passengers for a common purpose to a fixed destination where a single payment is made for the service, as opposed to each individual passenger paying a charge.

Section 510 of the Public Utility Code (Code), 66 Pa. C.S. §510, specifically authorizes the Commission to assess and collect an annual fee from every public utility which operates and engages in business within the Commonwealth. The Commission calculates this fee by determining the total amount of its expenditures for the preceding calendar year, allocating a portion of this total to each group of utilities furnishing the same kind of service, and assessing each public utility within the group a proportionate share based upon the utility's reported gross intrastate operating revenues. See Section 510(b) of the Code, 66 Pa. C.S. §510(b).

Additionally, as an interstate motor carrier, Regency is required to register and pay an annual fee under the Unified Carrier Registration Act of 2005 (UCR Act), 49 U.S.C. §14504a, based upon the number of commercial motor vehicles it operates. A notice accompanying the UCR Act registration form defines a commercial motor vehicle as a vehicle designed to transport 11 or more passengers, including the driver. Regency remained properly registered under the UCR Act at all relevant times. (Findings of Fact Nos. 1-13.)

Regency did not receive an assessment from the Commission for FY 2007-2008 or FY 2008-2009. However, the Commission did provide Regency with an assessment in the amount of $20,170.00 for FY 2009-2010 based upon the gross intrastate operating revenues reported by Regency for all intrastate passenger service, with the exception of group and party service provided in vehicles with seating capacities of 16 or more. Regency filed an objection to the assessment alleging that the UCR Act prohibits the Commission from levying assessments against interstate motor carriers. The Commission had sent all motor carriers, including Regency, a letter dated February 23, 2009, advising that some UCR registered carriers holding authority from the Commission to operate multiple types of passenger services would be assessed on their non-UCR related passenger operations. (Findings of Fact Nos. 9, 19-27.)

The matter was assigned to the ALJ and a hearing was held on April 13, 2010. Thomas Miller, Regency's owner, testified regarding Regency's authority as described above. On cross-examination, Miller indicated that Regency paid a UCR fee of $231.00 in 2007, 2008, and 2009 based upon the number of its UCR-registered vehicles. (R.R. at 17a-39a.) Stanley Heintzelman, an assessment supervisor for the Commission's Bureau of Administrative Services, testified that all passenger carriers received a notice prior to FY 2009-2010 warning them of possible assessments for passenger services that could not accommodate 16 or more people. Heintzelman acknowledged on cross-examination that Regency did not receive an assessment in 2007 or 2008 because it was registered under the UCR Act. (R.R. at 40a-49a.)

By initial decision and order dated August 20, 2010, the ALJ denied Regency's objection, concluding that the preemption provisions of the UCR Act only applies to charter bus service, which is limited to group and party service in vehicles with seating capacities of 16 or more passengers, including the driver. The ALJ rejected an argument by Regency that its limousine service qualified as "charter bus transportation" under section 14501(a)(1)(C) of the Federal Aviation Administration Authorization Act of 1994 (FAAAA), 49 U.S.C. §14501(a)(1)(C), noting that a similar argument was recently rejected by a federal court in Kozak v. Hillsborough Public Transportation Commission, 695 F. Supp. 2d 1285 (M.D. Fla. 2010), affirmed, 644 F.3d 1347 (11th Cir. Fla. 2011).

The ALJ further concluded that the UCR Act did not prohibit the Commission from assessing revenues generated on all intrastate operations by a motor carrier that holds both intrastate and interstate passenger operating authority. The ALJ reasoned that section 14504a(c)(1)(D)(ii)(I) of the UCR Act only rendered "charter bus service" exempt from assessment. The ALJ noted that the Commission's decision to assess interstate motor carriers in FY 2009-2010 was premised upon a June 2008 amendment to section 14504a(c)(2) of the UCR Act, which had precluded state assessment of any amount in excess of the assessment to exclusively interstate carriers (exclusively interstate carriers would not have been assessed by the state because there would be no intrastate operations). The 2008 amendment permitted states to assess intrastate operations of interstate carriers, but only up to the level of those carriers engaged exclusively in intrastate transportation. Regency thereafter filed exceptions with the Commission alleging that the ALJ's conclusions were in error. By opinion and order dated January 14, 2011, the Commission denied Regency's exceptions and objection and adopted as modified the ALJ's initial decision and order.*fn2

On appeal,*fn3 Regency argues that the Commission erred in failing to conclude that it was precluded from levying an ...


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