BEFORE THE FEDERAL TRANSIT ADMINISTRATION

Charter Service Complaint 49 U.S.C. Section 5323(d)

Charter No. 2007-03

United Motorcoach Association,

Complainant,

v\.

Janesville Transit System,

Respondent.

DECISION

[Summary]{.underline}

On February 22, 2007, the United Motorcoach Association (UMA) filed a
complaint with the Federal Transit Administration (FTA) against
Janesville Transit System (ITS), a recipient of Section 5307 funds. The
UMA on behalf of Riteway Bus Service, a member of its organization,
alleged violations of FTA\'s charter bus regulations, 49 U.S.C. Sections
5302(a)(10) and 5323(d), as amended, and 49 Code of Federal Regulations
(CFR) Part 604. UMA alleged that JTS had issued a defective \"willing
and able\" notice and conducted a deficient \"willing and able\"
determination process.

On April 3, 2007, FTA received JTS\'s response to the complaint filed by
the UMA. JTS stated that its notice and process were not deficient and
that FTA in its most recent Triennial Review (TR) had not found any
problems with JTS\'s \"willing and able\" notice. On May 28, 2007, UMA
filed its rebuttal.

Upon reviewing the allegations in the complaint and the subsequent
filings of all the parties, FTA has concluded that JTS issued a
deficient \"willing and able\" notice and that its determination process
was deficient. JTS should immediately cease and desist from providing
unauthorized charter service until it properly completes the \"willing
and able\" determination process.

[Complaint History]{.underline}

On February 22, 2007, UMA filed a complaint with the FTA against
JTS[^1]. UMA alleged violations of 49 U.S.C. Sections 5302(a)(10) and
5323(d), as amended, and 49 CFR Part 604 as it relates to the operation
of unauthorized charter bus service. UMA alleges that JTS\'s annual
\"willing and able\" notice is deficient and its process impermissibly
finds

qualified private operators unqualified. UMA also stated that JTS\'s
charter operations constituted a \"pattern of violations.\" Attached to
its complaint, UMA included a letter from Riteway Bus Service, Inc.
stating that it was disqualified by JTS because it did not have two-door
urban transit type coaches which were air-conditioned and wheelchair
ramp equipped and also that JTS asked for a letter of authority from the
Public Service Commission of Wisconsin stating that Riteway had
authority to provide service in the City of Janesville. Also attached
are a letter and notice from JTS dated February 12, 2007, and a letter
of inquiry from JTS dated April 18, 2005, asking additional questions.

On March 26, 2007, JTS responded to the complaint. It stated that FTA
determined in its TR dated November 22, 2005, that there were no
deficiencies with its annual \"willing and able\" notice or its
determination process. JTS also asserted that its process had not
changed in over five years. JTS stated that a \"willing and able\"
provider must demonstrate it has the \"physical capability to actually
provide the categories of revenue vehicle specified\...\" It also stated
that it asked for the additional documentation from Riteway in order to
ascertain that it had the \"requisite legal authority\" to provide the
service. JTS explained why its service would not constitute a \"pattern
of violations.\" Finally, JTS stated that the service it is providing
would qualify under the Government Officials exception under the
proposed new charter regulations. Attached to the response is JTS\'s TR
results dated November 22, 2005; its March 2007 annual \"willing and
able\" notice; and correspondence between JTS and Riteway and the annual
notice for 2005.

After receiving an extension, the UMA filed its rebuttal with the FTA on
May 28, 2007. In its rebuttal, the UMA reiterated its original
allegations, but withdrew its contention that JTS\'s actions constitute
a \"pattern of violation.\"

[Discussion]{.underline}

[A. Regulations]{.underline}

Under 49 C.F.R. Section 604.9(a), if a recipient desires to provide
charter service, it must first determine whether there are any willing
and able private charter providers. If there is at least one willing and
able provider, the recipient is prohibited from providing charter
service unless one of the exceptions applies. *Id*. The recipient must
follow all the procedures for determining willing and able private
operators under 49 C.F.R. § 604.11. The public participation process
requires at a minimum that a notice be placed in a newspaper of general
circulation and a notice is required to be sent to all private charter
service operators in the proposed geographic charter service area. 49
C.F.R. § 604.11(b)(1) and (2). The notice needs to include among other
items, the categories of revenue vehicle. Id. at (c)(2). FTA only
recognizes two categories of revenue vehicle, buses and vans. 49 C.F.R.
§ 604.5(d). The notice that JTS issued was deficient in that it stated
that in order to be determined \"willing and able\" a private provider
needed to have \"two door urban transit coach \[sic\], air conditioned
and wheelchair ramp equipped.\" See, JTS annual \"willing and able\"
notice attached to its response dated March 26, 2007. To qualify as
\"able\" under 49 CFR Part 604, Riteway only needed to have a bus.
Therefore, JTS\'s \"willing and able\" process was deficient when it
determined Riteway

was not qualified because it did not have a vehicle with the specific
characteristics listed in its notice.

With regard to the request for documentation that a private provider has
the \"legal authority\" to provide the service, the private provider
does not need a letter from a specific local entity such as the Public
Service Commission of Wisconsin. The private provider needs to provide
documentation that it has the legal authority to provide charter
service. Letters of incorporation, or other documents that demonstrate
its legal authority to provide charter service should be sufficient.

[B. Annual Notice]{.underline}

On February 17, 2007, and February 24, 2005, the Recipient published
annual notices in the *The Janesville Gazette*. The notices proposed
that the Respondent intended to provide charter service using \"two door
urban transit coach \[sic\], air conditioned and wheelchair ramp
equipped.\" The notices were misleading, since they did not properly
state what type of revenue service the Respondent intended to provide,
namely bus or van service. The notices stated that if a private provider
could not provide service with vehicles with specific characteristics,
then it could not qualify as a willing and able charter provider. The
notices were deficient because of the additional requirements regarding
the vehicle characteristics.

[C. Prior Triennial Finding]{.underline}

Although FTA\'s most recent JTS TR did not find charter violations
related to the annual \"willing and able\" notice and determination
process, it does not prevent FTA from finding that JTS is violating the
charter regulations. It is unclear what information was provided to the
TR reviewers. If the reviewers had been provided with all the facts, the
findings could have been completely different. If the TR reviewers were
told that JTS was disqualifying private providers because it did not
have vehicles with specific characteristics or because it did not
provide specific documentation that was not required under the charter
regulations, then the incorrect information may have been the basis for
determining that the Respondent was in compliance with the charter
regulations when in fact it was not The TR process is an overview of a
Grantee\'s operations; it is not a detailed examination of day-to-day
operations.

D. Pattern of Violations

FTA agrees that there is no pattern of violations under this set of
facts. JTS was only proposing to provide charter service for \"elected
and appointed officials, employees, and duly authorized others in the
course of their official duties on behalf of the City; and in support of
the official functions and operations of the government of the City of
Janesville.\" *See*, JTS Annual Willing and Able Notice for 2005. The
charter service provided was of an extremely limited duration and
occurrence. JTS is also correct that under the proposed new charter
regulation, there will be an exception for government officials.

[Conclusion]{.underline}

FTA based on a review of all the evidence concludes that the annual
notice issued by JTS for \"willing and able\" private providers was
deficient and that its determination process was also deficient. As a
recipient of federal assistance, JTSS violated the charter bus
regulations by operating charter service when there may have been a
\"willing and able\" private provider. Therefore, FTA finds that JTS
violated 49 CFR Part 604.

[Remedy]{.underline}

Complainant has requested that Respondent immediately cease and desist
its charter operations. FTA finds that Respondent has been providing
impermissible charter service and orders it to immediately cease and
desist any such further service. Because the service provided was
incidental because it was of such limited duration, the mileage which
accrued to the vehicles did not add to their useful life.

[Appeal]{.underline}

In accordance with 49 C.F.R. § 604.19, the losing party may appeal this
charter decision within ten days of receipt of the decision. The appeal
should be sent to James Simpson, Administrator, FTA, 1200 New Jersey
Avenue, SE, 5th Floor- East Building, Washington, D.C. 20590.

Marisol Simon

Regional Administrator

December 31, 2007

Nancy-Ellen Zusman

Regional Counsel

December 31, 2007

[^1]: JTS was a recipient of Section 5307 funds; therefore, it was
    required to comply with the charter bus regulations.