UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ...

Case 1:08-cv-07837-PAC Document 51 Filed 10/31/2008 Page 21 of 26
Internal administrative actions do not require notice, public comment, or hearings. The
procedures the City followed are the actions of a regulator, not of a proprietor. The City Charter,
which is the source of the TLC’s power to act, specifies: “The jurisdiction, powers and duties of
the commission shall include the regulation and supervision of [the taxicab industry].” See N.Y.
City Charter § 2303(a) (emphasis added). The TLC is clearly a regulator which routinely
prescribes what the City’s taxicabs may do. That is what it did when it mandated the new fuel
economy standards. As such, it does not qualify for an exception as a market participant.
For essentially the same reasons, Defendants cannot reasonably claim that the 25/30
Rules fall under the “own use” savings clause. The rules regulating private taxicab acquisition
and use are materially and substantially different than the City’s conduct when it buys the tens of
thousands of police cars or other vehicles for the wide variety of fleets that the City owns,
operates, and maintains. The City pays for them with its own funds, takes title to them, and then
uses them exclusively for its own purpose. Taxicabs, conversely, are intended for private
ownership, albeit regulated by the City. While the Court acknowledges that taxicabs may be part
of the public transportation system, that does not mean that taxis are for the City’s own use.
Regulators are not the owners; for example, the New York State Public Service Commission
does not own public utilities; the shareholders do. Another simple example illustrates the point:
if a police car hits a pedestrian walking in the street, that pedestrian may have a lawsuit against
the City. If a taxicab hits the same pedestrian, however, the pedestrian may sue the private taxi
company, not the City. Defendants do not fall into either the “own use” exception to preemption
under § 32919(c) or into a market participant exception.
Defendants’ final argument against preemption of the 25/30 Rules under the EPCA is that
they fall into the “own use” or the market participation exceptions based on language in a
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