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Friday, December 18, 2015 by Tyler Whitson

Council sets background check penalties for TNCs

The battle over fingerprint background checks for transportation network companies such as Uber and Lyft has taken a turn that may ultimately result in the two companies pausing operations in Austin.

City Council passed an ordinance on all three readings that “sets benchmarks that work towards a goal of fingerprinting for all drivers and disincentives for not reaching those goals,” according to Council Member Ann Kitchen, who led the charge on the new rules. The measure passed on a 9-2 vote, with Council members Ellen Troxclair and Don Zimmerman casting the dissenting votes.

Lyft spokesperson Chelsea Wilson released a statement immediately after the vote.

“Lyft will operate in Austin until mandatory fingerprint requirements force us to leave,” she wrote. “In the meantime, we will remain at the table in an effort to create a workable ordinance and preserve the benefits ridesharing brings to visitors and residents. We do not operate in cities that require mandatory fingerprint background checks.” Wilson clarified that she does consider the ordinance to constitute eventual mandatory fingerprinting.

As described by Mayor Steve Adler, the ordinance does not technically require drivers to undergo fingerprint background checks for their companies to operate in Austin as the draft released earlier this week would have done. However, it envisions penalties for TNCs that do not meet certain fingerprinting benchmarks over time as well as incentives for drivers and companies to fingerprint and passengers to request fingerprinted drivers.

Adler said that Council would craft the incentives and disincentives over the coming months, starting in January. The benchmarks in the ordinance will start to take effect in May, with a 25 percent compliance requirement, culminating in a 99 percent compliance requirement in February 2017. TNCs that fail to meet those benchmarks would be “subject to penalties.”

In between, there will be a 50 percent compliance deadline in August 2016 and an 85 percent compliance deadline in December 2016. The benchmarks will be based on “the percentage of hours or miles driven by compliant drivers of the total hours or miles driven by other drivers for the TNC during the benchmark time period.” The ordinance itself takes effect on Feb. 1.

Adler, Kitchen and Council Members Delia Garza and Sheri Gallo held a press conference Thursday afternoon, prior to Council taking up the TNC issue, in which they outlined the proposal.

“There’s nothing in this ordinance being passed tonight that makes fingerprinting mandatory,” said Adler. “This is taking one aspect of what’s happening in San Antonio … and trying to put it on steroids.”

San Antonio passed an ordinance in August allowing TNCs to onboard drivers that have not undergone fingerprint background checks but gives prospective riders the ability to select drivers, through a special feature on the app, who have gone through such checks. Uber and Lyft, who had ceased operations due to previous fingerprint requirements, have since returned.

Council Member Ellen Troxclair proposed exactly that idea as an amendment, though it did not pass. “I think this is the best of both worlds,” she said. “I think this is a reasonable, reasonable compromise.”

Kitchen said that she believes fingerprint background checks — as an addition to the data-based background checks that Uber and Lyft already require — are necessary to make sure that the city takes all precautions available to protect its citizens from riding with drivers who might have certain types of criminal backgrounds.

Police Chief Art Acevedo said that there are “pros and cons” to both types of background checks and that having both would be a best practice but raised concerns about TNCs leaving Austin. “I think the worst thing that could happen would be to lose 10,000 options for our citizens,” he said, referring to the number of drivers Uber said it employs in Austin.

Acevedo also agreed, however, that a fingerprint background check is a best practice for ensuring that the person being checked is the person providing information. A new company called Get Me, which was authorized as a TNC in Austin on Dec. 4, has agreed to the idea of fingerprinting

Adam Blinick, Uber’s public policy lead, raised concerns that fingerprint background checks could lead to false positives because not all records indicate whether an arrest led to a conviction.

The new ordinance also sets an annual operating fee for TNCs, increases vehicle safety inspection requirements, requires drivers to display markings on their vehicles, prohibits drivers from stopping in travel lanes to pick or drop off riders, increases data reporting requirements, puts in place “geofencing” requirements during major events and sets new insurance requirements.

The discussion leading up to the vote revealed a fundamental disagreement between several stakeholders about the necessity of fingerprint background checks.

“The FBI and the Texas Department of Public Safety agree that fingerprinting is the best way to ensure that the records reviewed belong to the person being checked, with a match rate of 99.6 percent,” said Kitchen. “It is all about accurately identifying that a person is who they say they are, that you have that identifier — and that’s what fingerprints do.”

Wilson disagreed with this statement in a press release sent prior to the Council press conference. “Law enforcement and industry experts agree that name based background checks are appropriate and rigorous, and fingerprint background checks are not necessary,” she said.

Travis County Sheriff Greg Hamilton released a public letter on Wednesday raising concerns about what might happen if Uber and Lyft left the city because of new regulations. He pointed out that DWI arrests in Austin have decreased by 16 percent and DWI-related crashes by 23 percent in 2014, the year after Uber and Lyft began operating in Austin. “While the causal relationship requires more study, TNC companies have made safe rides home readily available to our citizens and are undoubtedly making our city safer,” wrote Hamilton.

Uber could not be reached for a statement about whether the company plans to continue operations in Austin.

Photo by Pkg203 (Own work) [CC BY-SA 3.0], via Wikimedia Commons

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Key Players & Topics In This Article

Austin City Council: The Austin City Council is the body with legislative purview over the City of Austin. It offers policy direction, while the office of the City Manager implements administrative actions based on those policies. Until 2012, the body contained seven members, including the city's Mayor, all elected at-large. In 2012, City of Austin residents voted to change that system and now 10 members of the Council are elected based on geographic districts. The Mayor continues to be elected at-large.

Transportation Network Companies: Companies that provide transportation services through applications such as Uber or Lyft.

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