good morning may it please the court my name is todd hagan's with crosby and higgins lp and i represent the appellant's this case arises from the collapse of the regulatory structure governing for higher transportation in the new york city market and really the destruction of what amounts to thousands of small businesses that have operated yellow taxis in this city and like to just start if i could today by sort of yes and that really is the question that was before the district court that this case really raises the question of why has the industry collapsed in the datapoint i just want to share with you to start is to frame your change is driven by what would cause disruption and so many industries around the country which is just technology but you see technology doesn't operate in a in a vacuum technology operates it operates within a regulatory structure that is set as a product of legislative decision making and it's no different with respect to the issue in this case which is the subject of electronic kells and the argument that isn't this really just the march of technology that is done in the yellow taxi industry and that's not true at all the first question that really is before the court and that was before the district court is really this question of whether or not as a matter of equal protection these two industries are now similarly situated the question turns on whether or not the hell which is really the thing that anchored the dichotomy in this industry for eighty years was that and electronic mail now we have argued repeatedly that it does and that to allow companies like louver to use an electronic device to hell immediate transportation  a statutory grant that was afforded to medallion owners in exchange for payment caps are the only ones that can take straight males and that and that is right and the question as a just sit here and say well we know what that means but that is not at all the case and that is not at all the record well the threshold question is what did the new york state legislature for example mean when and enact in a law that said that present and future medallion owners would have the exclusive right to accept pals on the street it didn't say a subset of hells it didn't say if you will use your hand or if you whistle or if you flick a light on a hotel building off and on to signal that someone wants a taxi all of those indisputably for purposes of the pleading are established and recognized by the police as forms of hell all of them are within the ambit of this exclusive statutory right so the question is does that right in compass and electronic means and to understand that you have to get into the purpose of this legislation you have to get into the meaning of hail exclusivity how is it operated yes but it becomes a question of federal law when the grab them in of the complaint the claim that's been alleged is that property interest which is not seriously disputed that medallions are a property interest and inherent in that property interest is the exclusive rights of those hells when that rights been taken away then the question becomes a federal one because the question becomes have you taken property without just compensation so the district court was not free at the pleading stage to say as a matter of law and certainly without any kind of analysis around that oh it is implausible that electronic hales could fall within the ambit of the hell exclusiv right granted by the new york state legislature without inquiry without effectual factual record without even analysis the court just said it and not only did the complaint a veer facts to the contrary but it  overwhelming facts to the contrary including the a pelleas own words their own actions in prior litigation in which they themselves said and electronic hell is just a hell and electronic that is not that is what new york state law and then it's amplified in city law permits those vehicles to do is to except by prearrangement so of course like kells again the question in the in the law is well what's a pre somebody on their hand but what we allege in the complaint is that the fundamental difference that separated hails from prearrangement up until now was the concept of time prearrangement implicates the idea that a car is going to come at some point in the future hales are now in other words you can never get too early you can never be too early for hell but you can be too early for a pre arrangement pre arrangement the this idea that what separates the for hire industry in new york is hails on one side prearrangement on the other and the right well so the statute contemplates that a pre arrangement by phone a stablish ing a call even if you said now if you're asking me as a practical matter i think the difference was when you have a car service that has two or three hundred cars the reality is that the car is going to be there at some point in the future generally speaking i need a car ok i'll be there in ten minutes i was a practical constraint on the you explain it isn't then and it's not a hell because it's in my view the the gap in time that that takes however along even if the answer is as soon as possible is still somehow in the future it contemplates instead of picking up the phone i just checked the car right away i think it's the same point i think that the issue is that the concept of time separates those out i admit the first to admit that the new york state legislature didn't define prearrangement or hell neither of these terms are defined in the law so i have my interpretation of what i think separates them out but it is a fair question to say but i leave you with the we can tangle ourselves around the definitions in this statute we can weave our way through equal protection law a takings analysis but at some point you have to turn back to what has happened in the market and what was the purpose of the legislation legislative scream and not the term prearrange or is defined in the statute that is correct that is correct but where does that leave you then that leaves you that's the statute to distinguish between these possibly two difference and it doesn't it doesn't and that is the question what you're left with is a history of interpretation by the taxi and limousine commission about how it regulated this industry how it filled in the in test this gaps of the statute to try to come up with meaning and one of the things that it did in doing so use it to find a hell in the add in the rise in the rise of this age it defined hells to include not just the physical verbal gestures but the use of an electronic  summon transportation immediate transformation when you are currently ready to travel it's a statutory definition promulgated in adopted by the t l c it's consistent with the position that they took in court on the record two years prior to that so now they basically are left to say when they try to defend the differences well you can basically do the same thing and you can push the button and you can hail a taxi cab electronically which now the good morning i'm mackenzie phil and i represent the defendants here the plaintiffs are not in a protected class so we have course a very deferential rational basis standard and the agency's distinctions between pre arrangements and street hales are not just rational but extremely well thought out and based on decades of history and the legislative rational sure  as you were discussing that the distinction is between a street tale and a pre arrangement and in the eighty's is when this distinction of rose black cart the black car industry first started in the eighty's and the law first started distinguishing between a street hail and a pre arrangement and the basis was not time and how fast the car would come as my colleague here suggests it was about the passengers ability to shop around a passenger hailing a taxi in the street has no ability to shop around at best they can veto a particular taxi that stops and say well i don't want to get in that car but they can choose affirmatively to use taxis owned by a certain company because they trust that company someone prearrange ing service has a choice they can call carmel they can use it they can dial seven they have options and they can do their research they can find out what those companies charge what kind of cars they use so those customers because of the choices available to them are not as vulnerable as the person in the street with their arm in the air and so the mission has since then regulated taxis more heavily because they can pick up people in the street who can shop around and regulated black cars less heavily because of the ability of the passenger to shop around so we regulate safety for both they are treated equally that drivers are background tested in criminal fingerprinted they have a license their cars are inspected three times a year so for safety we don't let people shop around but when it comes to cost the kind of car someone might want or need in the black car segment because the the customer can choose and find a company that meets her needs we don't require black cars to do any of the things that we require of tax have developed a system by which is hopefully in a few years half of the taxis will be wheelchair accessible we determine that someone in a wheelchair in the street has required by corner i believe that the settlement agreement was ordered by the court but we proposed the rule before it was settled we we proposed the rule we had opted to rule and then the case was settled and so basically the taxis will take turns  using wheelchair accessible vehicles and there's a system that will compensate them for the difference in price because the wheelchair accessible vehicle is a little bit more expensive we've been collecting a surcharge for many years now from taxi passengers each medallion owner who and that is that system is completely reasonable it doesn't take anything from the plaintiffs they continue to have their medallions they continue to be able to use them they are not in fact even required to ever get a wheelchair accessible vehicle first of all there's a big wheel chair right there is a wheelchair painted on the side and on the front i believe on the hood yes there are several symbols on the vehicle i also think that the people who need those cars can identify them pretty easily just as a matter of practicality yes and you see them all the time around here i would like to go back though very quickly which right i should avoid those camps there are no all taxi passengers are paying a thirty cents surcharge no matter whether the vehicle is wheelchair accessible or not and i think a lot of money has already been distributed to the owners and the drivers who have been using these vehicles so far because the system's already been in place for a while now i would like to just go quickly back to the idea of time that my colleague here has been focusing on that is a very manhattan centric view of the city maybe in lower manhattan and it overcomes very quickly and just as quickly as a taxi but there are the commission has to look out for the passengers of all five boroughs and there are many parts of the city where you can stand in the street all day and you will not ever get a taxi because there are no taxis and in those parts of the city a black car will always come faster than a taxi and so the the speed with which the car comes cannot be the determining factor of whether something is a street hail or a pre arrangement the the idea is whether the customer has a choice that is what determines whether it's a st hill or pre arrangement and when you choose to use who were you give them your name your phone number your credit card number you agree to arbitra buttes with them under california law so the green car oh yes it's a green taxis do not operate on a medallion system they are sort of a hybrid in between a taxi and a black car they're like a special category they're not really at issue in this case they were developed at the state created them a few years ago and the state courts have held about the system is legal i believe that texas may have sued to stop it but unsuccessfully so many of those cars are also wheelchair accessible court i believe there is a program to encourage them to become wheelchair accessible to participate in the agency's accessible dispatch program so this is another reason why we don't necessarily require all black cars to be wheelchair accessible we have this excessive bull dispatch program where people who want to pre arrange service can call a number associated with the agency and have a car sent to them while in any event the the city certainly has a rational basis for distinguishing between these two types of vehicles thank you so the question before the district court was not whether there is a rational basis between males and prearrangement the inquiries only relevant to the threshold determination of whether there are similarly situated for purposes of equal protection the district court said because a taxi can still pick up hails from the street that that's a difference that renders them not similarly situated on appeal you probably seem to back away from really challenging the notion that they're not similarly situated for equal protection purposes and indeed because taxis pick up just like hoover and increasing majority of all taxi rides are arranged in exactly the same way so instead what the city says is that they have a rational basis for treating them differently and that's the inquiry that the district court fell down on because the question is is the disparate treatment rationally related to a legitimate government objective here we focus on appeal on the excess ability rules because the city's proffered rational basis here is to increase  excess ability but that is not rationally related to why you impose zero excess ability requirements on the black car sector while you impose a fifty percent accessibility requirement on the medallion taxi industry and can take judicial notice of the fact that the city has now promulgated rules to do that they haven't passed them but they've promulgated them and here's the important part in doing so they repudiate their own rational basis or their purported rational basis for why we imposed it on the taxi industry but we didn't impose it on the f each of the sector they said in fact accessible vehicles are not available through the f h v sector and the fact is as an example has gone from a few thousand cars when we started this to more than sixty thousand vehicles there's more than one hundred thousand vehicles traveling around in new york city none of which are required to be accessible there is no rational basis for imposing accessibility on the medallion taxi industry without doing so on anyone else it may be the city itself repudiated that thinking by saying they're not available because they're only going to be available if they're required to place them in service so that they're circulating around picking up rides and other so how they all timidly came up with a target of a goal or a requirement of twenty five percent versus fifty percent i don't know what i say is that why it's material why it's important is because it negates their rational to impose it on the taxi's but there's no court order that says and don't impose it on the f h v sector so the question is the disparate treatment and the consequences of the disparate treatment have been catastrophic make no mistake about it we're talking about now a ninety percent drop in the value of the medallion in four years all the niceties aside of what we're debating an asset that has been stable that was sold by the city for more than a million dollars four years ago and is now worth one hundred thirty thousand dollars that doesn't happen without some causal explanations and one of them is the disparate treatment and that's i don't want to be flip but the first three that was destroyed that as long as there continues to be a rational basis for the policies that are promulgated yes but the very the very point in the complaint is that with respect to accessibility there was no rational basis and we alleged what we had negate any rational basis including city admissions and now before this court in the context of the briefing on appeal the city introduced this twenty five percent requirement and what was important about it is in doing so the so so here's here's where they just posit for example the seven circuit like in this question to new forms of emerging competition and the idea that certainly the taxi owners in those cities didn't have a right to exclude new forms of competition what your hypothetical pre or your question presupposes and that itself judge posner based it on was the idea that somehow this is new and different from what taxis do but it is not so taxis are doing exactly the same thing i have on my phone right now i obviously don't use but i have on my phone i have a i have an i have on my phone an