Charter RulesJuly 7, 2010 by: Samuel Scheib
Husky Stadium is a point of convergence. From its lofty seats sky, mountains, verdant land, and water are layered in undulating shades of blue and green; the built and the natural environments blend as multi-story towers wave through the trees; and here academics and athletics meet when the University of Washington football team collides with PAC-10 teams among other opponents.
The white hulls of the boats in Lake Washington are ornaments on an already spectacular view that should make the nosebleed seats the most expensive in the house, but they are also a means of transportation. Docks provide parking for boaters on the way to the game at this multi-modal stadium; fans come by foot and bike, they tailgate in the car parking areas, and yes, they arrive in droves by city bus. It is an intermittent use that brings 70,000-odd people together for games half a dozen times per year and that is the problem. As readers are no doubt aware, new charter regulations from the Federal Transit Administration (FTA) have made providing game day services a tricky situation.
When the updated charter regulation debuted in January a near panic followed: IndyGo in Indianapolis immediately cancelled its long-standing park-and-ride service to the Indy 500 and other properties around the country began reevaluating their own services. A session at the APTA Transportation and University Communities Conference in April turned into an anxious round-table discussion among university transit providers about how to provide service to football games in the fall, something of a civic duty in smaller college towns. Many of these services had existed for decades, so what changed?
The original regulation, first proposed in 1975 (finalized 1976), and subsequent revisions sought to protect inter-city charter service providers from competition from public agencies receiving federal funding (a “recipient” in FTA parlance). In 1986 the FTA tried again with new regulations that forbade recipients from operating charters if there was a willing charter in the area that desired to provide the service; recipients could, however perform the service if “there were no willing and able private charter operators, if private charter operators did not have capacity, if private charter operators were unable to provide accessible equipment, or for non-urbanized areas, or [sic] if the private charter operator providing the service would create a hardship for the customer.”
The difference between the 1976 regs and those approved in 1987 was that the former distinguished between inter-city and intra-city service; the latter did not make this distinction. But in 1988 Congress directed the FTA to make three additional exceptions to the 5 already in existence, the third of which being related to this discussion: recipients could provide direct charters if there was “a formal agreement between the recipient and all private operators it had determined to be willing and able through its annual public charter notice.” This was the borning cry for many a game day shuttle and the charter regs have remained more or less the same ever since.
The General Accounting (now, Accountability) Office completed a report in 1993 for which they interviewed transit providers, charter companies and customers to hear opinions from these three affected parties. Transit agencies still thought the regulation too strict. The customers—typically groups that needed either accessible vehicles or large numbers of vehicles for conventions and other economic development (read: football games)—agreed. But the GAO found the public operators were not taking advantage of exceptions in order to provide service and thus the concerns of customers and recipients were largely unfounded. For their part, the private providers reiterated their concerns that transit properties were not using their fully allocated costs to determine a price and that enforcement was lax.
Here comes the pain. When SAFETEA-LU (once more, from the top: Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users) was enacted in 2005 it included language under the charter regulation that the Secretary “shall bar a recipient . . . from receiving Federal transit assistance in an amount the Secretary finds appropriate” in response to patterns of violations, a more stringent standard than the permissive “may” previously used [emphasis added].
In preparation for the most recent regulations (January 2008) FTA considered four issues during the rulemaking process:
1. “Are there potential limited conditions under which public transit agencies can provide community-based charter services directly to local governments and private non-profit agencies that would not otherwise be served in a cost-effective manner by private operators?
2. How can the administration and enforcement of charter bus provisions be better communicated to the public, including the use of Internet technology?
3. How can enforcement of violations of the charter bus regulations be improved?
4. How can the charter complaint and administrative appeals process be improved?”
The latter two points clearly indicate an interest in the judicial (enforcement, hearing complaints, the appeals process) and combined with the mandatory language (shall) from SAFETEA-LU, there was more than a hint that FTA was getting serious about charters. In that opaque, roundabout way typical of federal regulations, the updated charter rules provide a revised definition. A charter service: “(1) is irregular or on a limited basis for a premium fare that is greater than the usual or customary fixed route fare or (2) service for which a third party pays all or part of the costs for the service” [numbers added] (page 2334).
At first glance this seems simple enough: If a service meets one of those two criteria, it is a charter. The second criterion is unambiguous; if someone else is paying, it is a charter. The first section is less so. The first “or” implies a choice; if either A or B is true, then the service is a charter. In this case that would be: [A] service is irregular OR [B] is on a limited basis for a premium fare that is greater than the usual or customary fixed-route fare. An example: [A] a route that only runs during home football games for the Podunk Predators OR [B] a route that normally is a park-and-ride route that also happens to serve the football stadium on a normal basis but during home football games charges twice the usual fare.
This does not, in fact seem to be the case because 24 pages later (2358) in the questions section appears the following: “18) Q: If a transit agency provides service that is irregular or on a limited basis for an exclusive group of individuals, but provides the service free of charge, is the service exempt from the charter regulation? A: Yes. So long as the transit agency does not charge a premium fare for the service and there is no third party paying for the service in whole or in part.” Did you see the “but” in the question? Its appropriateness is confirmed in the answer and thus it seems that a similar conjunction should have been in the original sentence, to wit: charter service is irregular or on a limited basis and for a premium fare that is greater than the usual or customary fixed route fare. On the first criterion, it has to be both irregular/limited and for a premium fare. Would irregular/limited service for a regular fare be okay? This seems to be the case as confirmed by question 23: “Is it considered charter service when the transit authority funds shuttles to and from football games? Regularly scheduled service is suspended on these days, but this service partially follows the existing route and is open to the public at the regular fare. A: No. If the service provided by the public transit agency costs the same as the customary fixed route fare and it is open to the public then it is not charter.” You could drive an articulated bus through that “partially.”
It is important to remember that FTA is not prohibiting transit agencies from providing charters, even outside of the exemptions. If your property is running a service that you are concerned may not be permitted, perform this three-step process. Step one: check the above definition to determine if the service is a charter. If it is not, proceed with the service. If it is, go to step two: see if anyone else wants to provide the service. This is very simple: “The rule as written prohibits a public transit agency from providing charter service if a private charter operator expresses interest in providing the service.” Step three: after providing public notice of at least 30 days, if no other provider responds to the service request, go ahead and provide the service.
Getting back to the implications of the new charter rules, pretty soon the FTA printers were churning out waivers. IndyGo got one and announced just a few weeks before the May 25th race plans to continue service to the Indy 500; JTA did too and has another year to serve Jacksonville (FL) Jaguars games as it has in the past. Among the casualties are Washington Redskins fans who will not be served by public transit services. Nowhere in the regulations was it mentioned that the new rules should benefit passengers, but that did happen in Buffalo where the game day shuttle fare was reduced from $7.00 to between $3.50 and $5.20 to comply (a nice illustration of question 23, noted above). On the other hand, the Baltimore Ravens inked a deal with several charter providers. The service that last year cost $10.00 is now $20 to $25, and that is the point. Was the Baltimore Transit Service breaking even or taking a loss? It was not likely making a profit but that is not an option for a private company. Public transit is subsidized, the private companies are not and the charter regs are there to level the playing field.
University services, of course, are not immune from the charter regulations. TheBus in Honolulu will no longer be supplying service to University of Hawaii Warrior games (their $6 round-trip fare will be replaced by a $13 round-trip fare by a private company) and the University of Washington and King County Metro have made arrangements with StarLine Luxury Coaches to continue providing free service to games this year. The passengers will not notice the difference. The cooperation of StarLine indicates that the service will comply with the regulations but all parties have remained quiet on the terms of the contract.
The University of Washington is not just another pretty place; it also provides an interesting case study. The city of Seattle implemented an aggressive transportation demand management (TDM) strategy in 1991 and the primary goal was to reduce congestion and parking demand around UW as the campus grew. The transportation master plan established two major conditions for the university to meet: peak hour traffic could not exceed levels observed in 1984 and the university was limited to 12,300 spaces. A U-Pass program was a major component of the plan but so was service to football games; even as the parking was limited, UW added an extra deck to the stadium, creating those gorgeous nosebleed seats.
The program was enormously successful. Among those coming to campus during the peak 23% walk, 21% use transit, 10% car pool or van pool, and 8% bike. That leaves just 33% driving alone in peak hour. Those are numbers any city would envy. Game day multimodalism is high too. In 2007 Metro carried 187,000 attendees to seven games. That is about 27,000 to each game. Assuming every game sold out, that would be about 37% of all attendees arriving by bus. The TDM strategy, however, made transit mandatory and when the charter rules were updated the university really had no choice but to continue offering transit service.
The cross-town professional team—the Seahawks—were under no such obligation and rejected a bid from the same Starline as too expensive with the intent of not offering the service. Starline planned to run the service anyway by charging $12.50 each way. But just before this story was going to final design, the Seahawks had a change of heart and also reached an agreement with Starline to offer game day service for $8.00 round trip.
In the final analysis there are three possible outcomes to the charter regulations with respect to college football games: a charter company provides the service; a charter company contracts the service from the local transit agency; or no company wants the service and the local provider continues as before. In the first case the transit agency does nothing. There is no overtime pay, no scheduling conflicts just a loss of that extra ridership that comes on game day. In the second case the transit agency should break even. There is no longer a requirement that transit agencies post their fully allocated costs but the agency should recover at least that in any contract with a private company. And in the last case there is no change and assuming the agency (or a governing municipal body) wants to provide the service, all is well.
In no case does there seem to be a catastrophe although, as noted above, game day service is seen as a civic responsibility in some towns and it can be hard to explain why a good thing went away. It will be even worse when people notice that the Independence Day fireworks still gets bus services as happens in places like Tempe (AZ), Tallahassee (FL), Vancouver (WA), Boulder (CO), and Charlottesville (VA) among other cities (remember, if there is no charge, there is no problem). Seattle, and to a lesser extent, Honolulu are much larger places than the more typical college town. A look at the Associated Press preseason poll shows that eight of the top ten college football teams were in cities with populations of under 120,000 as follows: Georgia (Athens, 112,760), Oklahoma (Norman, 106,707), Florida (Gainesville, 114,375), Missouri (Columbia, 99,174), Louisiana State (Baton Rouge, 227,071), West Virginia (Morgantown, 29,361), Clemson (Clemson, 12,816), and Auburn (Auburn, 54,348) (Southern California and Ohio State are the other two).
In the small towns, the local transit agency is still likely to be the only organization that can provide the service. If a charter company does step forward either the market will sustain the service (people paying $40 per ticket might be happy to pay $10 for a bus ride) or charters will opt out in the future and the opportunity will revert to the transit properties. The games will go on and all those operators who otherwise would be serving the games just might enjoy having a chance to watch them.
 Federal Register / Vol. 73, No. 9 / Monday, January 14, 2008 / Rules and Regulations, p. 2327
 TCRP Synthesis 39: Transportation on College and University Campuses, page 36
 Gilmore, Susan, The Seattle Times, November 26, 2007