BEFORE THE FEDERAL TRANSIT ADMINISTRATION

District Union Local One of the United Food & Commercial Workers Union,
Complainant

v\.

Rochester-Genesee Transportation Authority, Respondent.

Docket No.2006-02

DECISION

[Summary]{.underline}

The Federal Transit Administration (FTA) is hereby issuing a decision on
the above referenced matter brought by the United Food &. Commercial
Workers Union Local One (Union), Docket No. 2006-02 against Rochester
Genesee Regional Transportation Authority (RGRTA). The complaint relates
to service provided by RGRTA\'s Regional Transit Service (RTS) to the
Rochester City School District (RCSD). Upon reviewing the allegations in
the Complaint and the subsequent filings of both complainants and
respondents, FTA has concluded that the some of the service in question
does violate FTA\'s regulations regarding school bus service.

[Complaint History]{.underline}

[a. Union Complaint]{.underline}

Union filed its complaint by letter dated June 15, 2006 (\"Union
Complaint\"). The Union Complaint alleges that RGRTA\'s provision of
service pursuant to a subsidy agreement with the Rochester City School
District is a violation of FTA\'s school bus regulation at 49 C.F.R.
Part 605 and the service will displace nearly 70 routes operated by
Laidlaw Education Services.

[b. RGRTA Response]{.underline}

RGRTA filed its Response by letter dated August 24, 2006 (\"RGRTA
Response\"). RGRTA\'s Response denied that it was providing illegal
closed door, exclusive school bus service and maintained that it is
providing permitted \"tripper service.\" RGRTA submitted as exhibits a
copy of a variety of printed schedules, a copy of its Tripper Service
Subsidy Agreement with RCSD, and some of RGRTA\'s website pages to
demonstrate that RGRTA is not engaging in school bus operations. All of
the tripper service routes have numbers of 99 and above.

RGRTA relies upon the definition of \"tripper service\" as regularly
scheduled mass transportation to uphold its service and states that its
service fits within the parameters of tripper service. RGRTA/RTS states
that some of its routes have required no modification to meet the needs
of students while other routes have been designed or modified to meet
the needs of students.

Under the terms of the Subsidy Agreement, the routes are open to the pub
he at the standard fare and are not operated exclusively for students.
Students must show a school identification card in order to board the
buses without paying a fare. The terms provide that the RCSD gi v«s
permission for the general public to enter school property to board a
bus and allows RGRTA buses to enter onto school property and to erect
bus stop signs.

[c. Union Rebuttal]{.underline}

The Union submitted a rebuttal dated November 8, 2006 By that Rebuttal,
the Union argues that RGRTA\'s service is not \"tripper service\" but
prohibited exclusive school bus service. The Union states that the one
infallible test to distinguish the two types of service is whether the
bus stop is a regular route stop and/or on private grounds. The Union
also points to the provision of Section 605.15(2), that a grantee agrees
that it will not engage in any practice which constitutes a means of
avoiding the requirements of this agreement. According to the union,
further evidence of this violation rests in the \$5.9 million subsidy
amount from RCSD to RGRTA, The Union has submitted a DVD which videos a
RGRTA bus on one of the routes in question and the loading of passengers
in a school parking lot.

By follow-up letter dated November 16. 2006. the Union submitted a copy
of RGRTA\'s official regular route map dated May 2004. The Union
contends that this substantiates that the routes in question are not
tripper routes as they do not appear on the regular schedule.

[d. RGRTA 2d Response]{.underline}

RGRTA sent a second response dated November 27, 2006 raising the late
submittal of the Union\'s Rebuttal. As the service in question is
already operating, FTA would like to consider all the views of the
parties during the investigation of this matter.

In the 2d Response, RGRTA raises the issue of the location of bus stops
on school property. RGRTA also points out that the bus stop locations
arc included on their printed schedules, the electronic schedules and
the on-line trip planner service. RGRTA states that RGRTA buses
regularly congregate at one location and that there is nothing unusual
about having a lot of buses waiting at one location.

e\. Union 2d Rebuttal

A second Rebuttal was submitted by letter dated December 28, 2006 and
advance notice of this second Rebuttal was provided by letter dated
December 13, 2006. In the second Rebuttal, the Union specifically
confines its Complaint to RGRTA\'s triple digit routes with service to
schools. The Union also contends that the RGRTA has also violated the
school bus regulations by not seeking a Section 605.11 exemption
demonstrating that private school bus operators are unable to

provide adequate transportation. Quoting FTA\'s Jan. 28, 2005 Federal
Register Notice, the Union argues that \"tripper service is intended to
make ordinary transit bus service available to school children; it is
not intended to substitute for school bus transportation.\"

[Discussion]{.underline}

As with any tripper service question, it is necessary to compare the
current operations of the tripper service with the tripper service
criteria at 49 C.F.R. Section 605.3. The regulations define nipper
service as follows:

> Regularly scheduled mass transportation service which is open to the
> public, and which is designed or modified to accommodate the needs of
> school students and personnel, using various fare collections or
> subsidy systems. Buses used in tripper service must be clearly marked
> as open to the public and may not carry destinations such as \"school
> bus\" or \"school special\". These buses may stop only at a grantee or
> operator\'s regular service stop. All routes traveled by tripper buses
> must be within a grantee\'s or operator\'s regular route service as
> indicated in their published route schedules. 49 C.F.R. § 605.3.

Mass (public) transportation means \"transportation by a conveyance that
provides regular and continuing genera) or special transportation to the
public but does not include school bus\... transportation.\" 49 U.S.C.
Section 5302 (a)(10).

In reviewing this matter. FTA has made the following findings in its
analysis:

A. [Regularly scheduled mass transportation service]{.underline}

RGRTA has a website with a published route map; this same route map is
also available in paper form. The routes that the Union asserts are
essentially charter are those routes with route numbers over 99 e.g.
those routes with triple digit numbers. Neither the website route map
nor the paper route map show routes with the triple digit routes; the
route map only shows the regular routes below number 99 and has a
corresponding legend.

In addition to the route map, RGRTA has published timetables on its
website and RGRTA has also published a paper book entitled \"RTS
Schedule Book Routes 99 and Above.\" There is a significant difference
between RGRTA\'s routes under 99 and its routes to schools over 99. All
of the routes below number 99 operate throughout die day whereas the
routes with numbers of 99 and above with school destinations or origin
points only operate one-way in the morning and one-way in the afternoon.

Both the failure to have the 99 and above routes on the regular
published route map and the irregularity of the timetables indicates
that these routes are not part of their regular mass transportation or
public transportation service.

Finally and more important than any indicia FTA uses, public
transportation excludes school bus service unless it is regular and
continuing service.

B. Designed or modified to accommodate the needs of school students

A transit operator is permitted 10 design or modify routes to
accommodate the needs of school students as long as the routes are open
to the public and arc part of regularly scheduled service. In this
instance, the RGRTA provides legitimate tripper service on its routes
below number 100 where the students travel on regular mass transit
routes or where the routes have been modified to meet the school student
needs. These routes appear on the regular route map and on the RGRTA\'s
regular timetables and operate all day long and connect with other
routes.

The routes in contention are the approximately 109 new triple digit
routes designed to accommodate the school students which were apparently
operated previously by the private operators. These routes make many
stops and either end at the school or originate at the school and are
designed to operate for the school opening time or the school closing
time. As FTA stated in its Jan. 28,2005 Federal Register Notice on
tripper service, \"tripper service is intended to make ordinary transit
bus service available to school children; it is not intended to
substitute for school bus transportation,\" 70 Fed. Reg. 4081, 4082
(Jan..28, 2005).

This comports with the legislative history of the regulations. \"It is
undisputed that the purpose of the school bus provision was to prevent
competition with private school bus operators, competition perceived by
Congress to be unfair.\" [Chicago Transit Authority v.
Adams]{.underline}. 607 F.2d 1284, 1292 (7th Cir. 1979). \"After
examining the legislative record, we are persuaded that Congress
intended to bar grantees from competing with private operators in daily
bus transportation to and from the students\' school of regular
attendance.\" [Chicago]{.underline} at 1293. \"UMTA (FTA) has
interpreted the Acts to prohibit federally-funded buses in school bus
operations so as to preserve these buses for use in mass
transportation.\" [Id]{.underline}. At 1294.

Accordingly, this new service appears to have been designed specifically
to meet the demands of these school students. Although technically, the
service is not exclusive, from the DVDs submitted, from the RGRTA\'s own
statements and the manner of operation, it is clear that the service
transports most of the school\'s students and it does not meet the needs
of the general public. When school gets out, one can discern that all of
the buses parked in the school\'s parking lot are waiting to pick-up the
students at dismissal and drop them home along the route. This
represents the same type of service that the private operators would
normally be performing and is in direct competition with the private
operators. Therefore, this type of service would contravene the purpose
and intent of the school bus regulations and would contravene the
statute and regulation itself if this type of service were permitted.

C. [Fare Collection or Subsidy System]{.underline}

The RGRTA has entered into a Tripper Service Agreement (Agreement\")
with the RCSD. This provides for a subsidy from the RCSD to the RGRTA in
return for allowing the students with appropriate RCSD identification to
board the buses without paying and includes not only the specific buses
which go to their schools but any RGRTA buses. This type of arrangement
is not a violation of the school bus regulations.

The Agreement also gives permission for RGRTA buses to enter onto school
property, for the erection of has stop signs and for the general public
to enter onto the property.

D. [Open to the Public. Regular Service Stops and Published
Schedules]{.underline}

The RGRTA has a schedule for the number 99 and above routes on its
website. As mentioned above, this schedule does not resemble its other
schedules with route numbers below 99: they have a wholly different
format. This reinforces the idea that this purported tripper service is
operated separately and distinctly from RGRTA\'s regular and continuing
public transit service. [See]{.underline} [Erie Metropolitan Transit
Authority]{.underline}, April 13, 1989. In addition, there are
differences between the \"RTS Schedule Book Routes 99 and Above\"
(\"Schedule Book\") and the posted timetables for the routes 99 and
above on the website.

The Schedule Book posts an A.M. pick-up time for the trip going to
school and a P.M. pick-up time for the after school departure in the
afternoon. The Schedule Book shows 3 or 4 stops for each route. It also
includes another column with a time for an apparent departure that
varies from the regular departure time entitled \"Early Dismissal\".
This appears in both the exhibits submitted by RGRTA with their Response
as well as on the RGRTA/RTS website. There is clearly a change in the
schedule for those days when there is Early Dismissal. Again, this
confirms the nature of this service to be school bus, not regular public
transportation. There would be no means by which a member of the public
would know on which date the bus was going to return at a different
early dismissal time if they were only referring to the Schedule Book.
Apparently, to utilize these schedules and to have the routes serve a
useful purpose, it would be necessary to be a part of the school
environment with inside knowledge of the school schedule.

On the other hand, when one looks up these routes by number on the RGRTA
website, one gets a completely different set of information. In its 2d
Response, RGRTA provided exhibits and explained how one could look up a
route with its stops and times on their website. First of all, it
appears that the routes have many more stops than is included in the
Schedule Book. For instance, on Route \# 270, instead of 3 or 4 stops as
shown in the Schedule Book, there are 14 stops on the route. The 14
stops are one minute or less apart. On Route #270, there are 5 buses
operating along this same route. (This is true with many other routes as
well). On Route #270, three (3) of the scheduled buses travel to
identical stops with the same stop schedules and have one minute
intervals between the stops. This is a clear indication of service
designed for school bus operations, not regular public transportation.
RGRTA\'s routes below 99 do not have 3 buses operating in tandem along
the same routes; furthermore, the other routes do not have stops at one
minute intervals.

With respect to the location of the bus stops, there arc numerous stops
along the street and the destination or origin stop is on school
property. It is permissible to have a stop on school property so long as
it is obviously accessible to the public. RCSD provided permission for
the general public to go on school property in the Agreement, however,
it is not clear that the public would know that they were permitted on
the property or that the bus stop sign would be visible to the public.
From the DVD submitted by the Complainant, there are quite a few buses
loading at school dismissal time and it appears more like a school
operation than a traditional public transportation bus stop, despite the
fact that buses often congregate on public streets. [See]{.underline}
FTA\'s

decision in [Lamers Bus Lines; Inc. v. Green Bay Transit
System]{.underline}, May 10, 1982.

Conclusion and Order

While some aspects of RGRTA\'s service comports with the requirements
for public transportation, the substance of this service contravenes the
purpose and intent of the regulations and, in some of its
characteristics, specifically violates the school bus regulations. FTA
finds that through the provision of service with route numbers over 99,
RGRTA has engaged in school bus operations. Therefore, in accordance
with 49 C.F.R. § 605.33, RGRTA will cease and desist from this school
bus service as soon as it is feasible. This decision is subject to
judicial review pursuant to title 5 U.S.C. 701 -706.

Letitia Thompson

Regional Administrator

January 18, 2007

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