Lyft, Inc. v. Pa. Pub. Util. Comm'n

145 A.3d 1235

Lyft, Inc., Petitioner

v.Pennsylvania Public Utility Commission, Respondent

Kim Lyons and PG Publishing, Inc., d/b/a The Pittsburgh Post-Gazette, Petitioners

v.Pennsylvania Public Utility Commission, Respondent

Nos. 843

974 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued December 9, 2015

Decided August 31, 2016

Michael W. Gang, Harrisburg, for petitioner Lyft, Inc.

Frederick N. Frank, Pittsburgh, for intervenors PG Publishing, Inc., The Pittsburgh Post-Gazette and Kim Lyons.

John E. Herzog, Assistant Counsel, Harrisburg, for respondent Pennsylvania Public Utility Commission.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge¹ , HONORABLE BONNIE BRIGANCE LEADBETTER, Judge² , HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge³ , HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION

OPINION BY JUDGE Robert SIMPSON⁴

Before us are the consolidated petitions for review filed by Lyft, Inc. (Lyft) and Kim Lyons, a reporter for PG Publishing, Inc., d/b/a The Pittsburgh Post-Gazette (collectively, PG) from two orders of the Public Utility Commission (PUC). Lyft challenges the PUC's rejection of the alleged proprietary status of its trip data for the period before it obtained experimental authority to operate as a transportation network company (TNC).⁵ Lyft argues the PUC misapplied the standard for a protective order, and that its decision is unsupported by substantial evidence. PG seeks review of the PUC's denial of its intervention to ensure public access to PUC proceedings, and more specifically to Lyft's trip data. PG asserts the PUC erred in denying it party status because its intervention at the administrative level is necessary to assure the public's right of access to PUC proceedings. As to proprietary status, we affirm the PUC; however, because PG achieved its interest in intervention, we dismiss PG's cross-appeal.

I. Background

Lyft offers a mobile ride-sharing application (Lyft App) that connects riders with drivers, who may at their discretion provide riders with transportation for compensation. Lyft filed two applications with the PUC for authority to provide experimental transportation service, one application covering Allegheny County, and one covering the entire Commonwealth. Following hearings, the administrative law judges (ALJs) assigned to the case issued initial decisions denying Lyft's applications. Lyft filed exceptions. Ultimately, the PUC approved the applications, granting Lyft experimental authority to operate.

In a separate PUC proceeding, the Bureau of Investigation and Enforcement (BIE) filed a complaint against Lyft alleging violation of the Public Utility Code (Code), 66 Pa. C.S. §§ 101 -3316. BIE also filed a petition for interim emergency order, requesting Lyft cease and desist its operations in Allegheny County. The ALJs granted BIE's cease and desist petition, and certified the matter to the PUC as a material question. The PUC granted BIE's petition and directed Lyft to cease and desist from using the Lyft App until it secured authority to operate, or until BIE's complaint was dismissed. Lyft and BIE subsequently settled the complaint without Lyft admitting any liability.

During the hearings on the applications, the ALJs issued an interim order requesting evidence as to the number of trips Lyft provided in Pennsylvania through the Lyft App before receiving authority to operate. Specifically, it sought the number of trips in Allegheny County during the following three timeframes: (1) from the initiation of Lyft's service in February 2014 to June 5, 2014 (the date BIE filed the complaint); (2) from June 5, 2014 to July 1, 2014 (the effective date of the cease and desist order); and, (3) from July 1, 2014 to August 8, 2014 (the date the record in the complaint proceeding closed). Lyft filed a petition for a protective order pursuant to 52 Pa. Code § 5.423 (recodified at § 5.365), asserting the proprietary nature of the trip data. The ALJs denied the protective order.

The ALJs held an additional hearing on September 3, 2014 (September 3rd hearing), where Lyft requested the ALJs to hold disclosure in abeyance pending the PUC's disposition of the matter. Lyft then presented testimony as to the protective order in a closed proceeding where Kim Lyons was removed. PG unsuccessfully challenged removal at that time. Thereafter, PG filed a petition for interim emergency order (Emergency Petition), seeking to intervene in the application proceedings for the limited purpose of opposing Lyft's protective order and any future attempts to seal the record from public access. PG also asked that the record of the September 3rd hearing be unsealed in its entirety. Lyft filed an answer to PG's Emergency Petition, to which PG replied.

Relevant here, Lyft filed a petition seeking interlocutory review of the ALJs' denial of its protective order (Interlocutory Petition). Therein, Lyft asked the PUC to address whether “the trip data of TNCs constitute proprietary information and/or a trade secret that must be restricted from public disclosure.” Reproduced Record (R.R.) at 388a. Importantly, Lyft appended to its Interlocutory Petition an affidavit of its Director of Public Policy, Joseph Okpaku, which had not been submitted to the ALJs with its petition for protective order. PG asked the PUC for permission to respond, which the PUC granted.

In September 2014, the Secretary of the PUC issued a Secretarial Letter directing PG and the parties to the application proceeding to address the factors currently set forth in 52 Pa. Code § 5.365 regarding orders to limit access to proprietary information. PG and Lyft addressed the alleged proprietary nature of the trip data. In its submission, PG also advocated the public's common law and constitutional⁶ rights to access judicial proceedings.

Ultimately, the PUC concluded the trip data were not proprietary, and it ordered unsealing of the record within 10 days (Proprietary Order). In the same order, the PUC denied PG's Emergency Petition seeking to intervene because PG did not establish immediate or irreparable harm.

On the merits, the PUC reasoned: “[t]he information at issue, the aggregate number of trips Lyft provided prior to receiving authority to operate in Pennsylvania, is of obvious concern to the public and would only be protected from disclosure for extraordinary reasons. Lyft has failed to provide such reasons.” PUC Op., 10/23/14, at 17. In so concluding, the PUC considered and rejected Mr. Okpaku's affidavit. After noting Lyft's submission of the affidavit was improper, the PUC found it unpersuasive.

The PUC confirmed the trip data are not “the number of rides in a particular market or the concentration of pick-ups and drop-offs in specific segments of that market. Nor does the information include the start time, duration, location, destination, mileage, charges and other details of these rides.” Id. It noted the total number of trips in one service territory does not reveal sales patterns, analogizing trip data to the gross sales data to which protection was denied in In re Exelon, 2000 WL 1510088, 2000 Pa. PUC LEXIS 50, Dkt. No. P–00991752 (filed July 20, 2000). Id. at 19. Such aggregated data did not warrant protection as proprietary.

Because Lyft filed an application to operate in the Commonwealth, the PUC explained “[t]ransparency is critical and will not be compromised on specious grounds.” Id. at 18. Application proceedings require consideration of the public interest in an applicant's service. Here, the PUC determined the public interest weighed in favor of disclosure because the number of trips during the period before Lyft received authority to operate posed a risk to public safety.

Lyft filed a petition for reconsideration, which the PUC granted. On reconsideration, the PUC affirmed the Proprietary Order (Reconsideration Order).⁷ Lyft sought a stay of the Reconsideration Order, which the PUC granted.

Lyft petitions for review of the Proprietary Order as confirmed in the Reconsideration Order. Lyft asks us to reverse the PUC as to the proprietary nature of Lyft's aggregate trip data.

PG requested limited intervention in Lyft's appeal, asserting a direct interest in ensuring public access to PUC proceedings and the trip data. Lyft moved to strike PG's request. Raiser-PA, LLC (Raiser), Lyft's primary TNC competitor, also asked to intervene to support the proprietary status of trip data, which the PUC moved to strike. After hearing argument on motions to strike, this Court granted PG intervenor status and denied Raiser's request. Significant to our reasoning below, PG participates in Lyft's appeal as a party. Raiser participates as amicus curiae aligned with Lyft's position.

PG filed a cross-petition for review of the Proprietary Order to the extent the PUC denied intervention. Lyft filed a notice to intervene in PG's appeal. This Court consolidated the matters.⁸ After briefing and oral argument, these appeals are ready for disposition.⁹

II. Discussion

We are mindful of the limitations inherent within appellate review of an agency adjudication. It is well-established that:

the PUC's interpretations of the Code, the statute for which it has enforcement responsibility, and its own regulations are entitled to great deference and should not be reversed unless clearly erroneous. [On review], the Court should neither ‘substitute its judgment for that of the PUC when substantial evidence supports the PUC's decision on a matter within the commission's expertise,’ nor should it indulge in the process of weighing evidence and resolving conflicting testimony.

Energy Conservation Council of Pa. v. Pa. Pub. Util. Comm'n, 25 A.3d 440, 449 (Pa.Cmwlth.2011) (quoting Energy Conservation Council of Pa. v. Pa. Pub. Util. Comm'n, 995 A.2d 465, 478 (Pa.Cmwlth.2010) (citation omitted)).

The PUC's decision must be supported by substantial evidence, meaning more than a mere trace of evidence or...