IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lyft, Inc., : Petitioner :

: v. : No . 843 C.D. 2015
: Pennsylvania Public Utility : Commission, : Respondent : Kim Lyons and PG Publishing, Inc. : d/b/a The Pittsburgh Post

- Gazette, : Petitioners :

: v. : No. 974 C.D. 2015
: Pennsylvania Public Utility : Argued: December 9, 2015 Commission, : Respondent :
B EFORE: HONORABLE DAN PELLEGRINI, President Judge 1

HONORABLE BONNIE BRIGANCE LEADBETTER , Judge 2 HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge 3 HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE SIMPSON 4 FILED: August 31, 2016

1 This case was argued on or before December 31, 2015, when President Judge Pellegrini assumed the status of senior judge.

2 This case was argued on or before January 31, 2016, when Judge Leadbetter assumed the status of senior judge.

3 This case was argued before January 4, 2016, when Judge Leavitt became President Judge.

4 This case was reassigned to the author on July 27, 2016.2 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 rejecti o n 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 a rgu es 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 deni al 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 sta tus because its intervention at the
administrative level is necessary to assure the public’s right of access to PUC proceedings. As to proprietary status, w e 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 connec ts 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 applic ations. Lyft filed exceptions . Ultimately , the PUC approved the applications, granting Lyft experimental authority to operate.

5 Trip data rep resent the number of trips provided in a span of time using the Lyft App

. Trip data do not include the pick

- up location or destination or any customer information.3 In a separate PUC proceeding, the Bureau of Investigation and Enforcement (BIE) filed a complaint against Lyft alleging violat ion 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 c omplaint 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 Pe nnsylvania through the Lyft App before receiving authority to oper ate . 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 3 rd hearing), where Lyft requeste d t he 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 was4

removed. PG unsuccessfully challenged removal at that time. Therea fter, 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 a lso asked that the record of the September 3 rd 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
ALJ s ’ denial of its prote ctive 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. Impor tantly, Lyft a ppended 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 gr anted.

In September 2014, t he 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
constitutional 6 rights to access judicial proceedings.

6 The First Amendment of the U.S. Constitution provides: “Congress shall make no law ... abri dging the fre edom of speech, or of the press ....” U.S. C ONST . amend. I. The Pennsylvania Constitution also provides “[a]ll courts shall be open

. ...” P A

. C ONST

. art. I, §11.5 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 imm ediate 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 protect ed 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,
th e PUC found it unpersuasive.

Th e 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, duratio n, 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 Pa. PUC LEXIS 50, Dkt. No. P

- 00991752 (filed July 20, 2000). Id. at 19. Such aggregate d 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 the6

public interest in an applica nt’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 tr ip 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, t h is
C ourt granted PG intervenor stat us and denied Raiser’s request. Significant to our reasoning below, PG participates in Lyft’s appeal as a party. Raise r participates as
amicus curiae aligned with Lyft’s position

.

PG filed a cross

- petition for review of the Proprietary Order to the

extent t he PUC denied intervention. Lyft filed a notice to intervene in PG’s

7 Commissioners Pamela A. Witmer and James H. Cawley dissented.7

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 g reat 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 wit hin the commission’s expertise,’ no r 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. Cmw l t h . 2011) ( quoting Energy Conservation Council of Pa. v. Pa. Pub. Util.
Co mm’n , 99 5 A. 2 d 465, 4 78 (Pa. Cmwlth. 2010) (citation omitted) ).

The PUC’s decision must be supported by substantial evidence, meaning more than a mere trace of evidence or suspicion of the existence of a fact sought to be established. Norfolk & W. Ry. Co. v. Pa

. Pub

. Util

. Comm ’ n , 413
A.2d 1037 (Pa. 19 80 ). T he party seeking affirmative relief from the PUC bears the burden of proving its claims with competent evidence

. Milkie v. Pa

. Pub

. Util

.

8 We also granted PG’s application to strike parts of Lyft’s reply brief and references to Mr. Okpaku’s affidavit as it was not submitted to the ALJs in the application proceedings.

9 “ Appellate review of a PUC order is limited to determining whether a constitutional viol ation, an error of law, or a violation of PUC procedure has occurred and whether necessary findings of fact are supported by substantial evidence. ” Popowsky v. Pa. Pub. Util. Comm’n
, 910 A.2d 38, 48 ( Pa. 2006).8

Comm ’ n , 768 A.2d 1217 (Pa. Cmwlth. 2001). That the record may contain evidence that supports a different result than that reached by the PUC is irrelevant so long as the record contains substantial evidence supporting the PUC’s decision

. Wheeling v. Pa. Pub. Util. Comm’n , 778 A.2d 785 (Pa. Cmwlth . 2001).

These consolidated appeals present substantive and procedural issues. Substantively, we are asked whether the PUC erred in denying Lyft’s protective
orde r and determining trip data do not merit proprietary status. Lyft contends the
PUC did no t analyze the proper factors as to trade secrets and erred in holding the public interest in disclosure outweighed any proprietary interest. Procedurally, we are asked to reverse the PUC’s decision denying intervenor status to PG as an advocate of public access. PG claims a right to intervene in the public interest to ensure the application proceedings and th e related record remain open.

In the matters before us, Lyft bears the burden of proving the necessity of a protective order, and PG bears the burd en of proving a necessity for emergency
relief in the form of intervention . Considering their respective burdens, we evaluate
the parties’ claims.

A. Protective Order

Lyft argues the PUC erred in denying its protective order as to trip data. Lyft contends the trip data evidence qualifies as confidential proprietary information subject to seal. Lyft a lso assert s the PUC did not apply the proper analysis for determining whether the trip data qualified as a trade secret.9 Section 5.365 of t

he PUC ’s regulation s, 52 Pa. Code § 5.36 5 , ( Regulation ) govern s protective orders in PUC proceedings

. Patterned after Pennsylvania Rule of Civil Procedure No. 4012, 10 the Regulation provides:

(a) General rule for adversarial proceedings. A petition for protect ive order to limit the disclosure of a trade secret or other confidential information on the public record will be granted only when a party demonstrates that the potential harm to the party of providing the information would be substantial and that the ha rm to the party if the information is disclosed without restriction outweighs the public's interest in free and open access to the administrative hearing process. A protective order to protect trade secrets or other confidential information will apply the least restrictive means of limitation which will provide the necessary protections from disclosure. In considering whether a protective order to limit the availabi lity of proprietary information should be issued, the Commission or the presiding officer should consider , along with other relevant factors, the following : (1) The extent to which the disclosure would cause unfair economic or competitive damage.
(2) The extent to which the information is known by others and used in similar activities.
(3) The worth or value of the information to the party and to the party’s competitors.
(4) The degree of difficulty and cost of developing the information.
(5) Other statutes or regulations dealing specifically with disclosure of the information.

10 See J oin t App. of Bell Atl. Corp

. & GTE Co rp. , 1999 Pa. PUC LEXIS 56, Dkt. Nos. A

310200F0002; A

- 310222F0002; A0310291F0003; A

- 311350F0002 (filed June 10, 1999)

.10

Id. ( emphasis added ). The PUC applies the Regulation to non

- adversarial proceedings as well. See , e.g. , Petition of United Tel

. Co. of Pa. LLC d/b/a CenturyLink for Protective Order , 2011 Pa. PUC LEXIS 2065, *5, Dkt. No. P

2011

- 2230988; P

- 00981410 (filed April 14, 2011) (granting protective order as to marketing and business strategy and specific exchange area of broadband deployment; total deployment and percentages of broadband not confidential as “such aggregated data is not competitively sensitive”); Petition of United Tel

. Co. of Pa. d/b/a Embarq Pa. for Protective Order , 2009 Pa. PUC LEXIS 2336, Dkt.
No s . P

- 2009

- 2099567; P

- 00981410 (filed April 17, 2009) (same).

The Regulation sets forth a two

- step inquiry, which includes
consideration of the five factors contained therein. “[A] party seeking a protective
order has a substantial burden to show that [:] [1] disclosure of the information for which protection is sought will result in substant ial harm [;] and [,] [2] that harm outweighs the significant public interest in open proceedings. ” Petition for
Protective Order of GTE N. Inc. , 1996 Pa. PUC LEXIS 95, *4

- 5, Dkt. No. G

00940402 (filed August 8, 1996) (granting protective order as to marketi ng, pricing and engineering information developed at party’s expense which wa s un available to the general public). The Regulation requires the PUC to balance the alleged proprietary nature against the public interest in disclosure. P roprietary nature is viewed against a public policy favoring access to the administrative process. Id.

The Code and PUC regulations protect public access. The PUC is required to “make part of the public record” all documents it relies on in reaching a decision. 66 Pa. C.S. §335(d). PUC regulations also provide that PUC records,11

including th ose of application proceedings, may be accessed by the public

. 52 Pa. Code §§1.71

- 1.77. In particular: “ [t] he [PUC’s] record maintenance system is
intended to provide for the greatest degree of public access to [PUC] documents that is consistent with the exercise of the functions of the [PUC] under the act and other applicable laws.” 52 Pa. Code §1.71 . However, an exception may be made for a record containing proprietary information when the PUC determines its public release will cause substantial harm to the party seeking the exception. 66 Pa. C.S. §335(d).

1. Proprietary Status First, Lyft argues the PUC misapplied the Regulation by not ass essing
whether t he trip data were proprietary before balancing any proprietary nature against public access. It contends the PUC should have used the six

- factor test for
trade secret s set forth in Crum v. Bridgestone/Firestone North American Tire , 907 A.2d 578 (Pa. Super. 2006), which this Court employe d whe n analyzing trade

secret s under the Right

- to

- Know Law (RTKL). 11 See , e.g. , Dep’t of Pub. Welfare v.
Eiseman , 85 A.3d 1117 (Pa. Cmwlth. 2014), rev’d , 125 A.3d 19 (Pa. 2015); Dep’t of
Revenue v. Flemming (Pa. Cmwlth., No. 2318 C.D. 2014, filed August 21, 2015) (unreported), 2015 WL 5457688. However, Lyft’s argument is predicated on its presumption that the PUC is bound by this Court’s precedent to apply the Crum
test here. In so presuming, Lyft disregards that the definition of trade secret in PUC regulations differs from that contained in the RTKL or in the Uniform Trade
Secrets Act (Act), 12 Pa. C.S. § §5301

- 5308

. 12

11 Act of Februa ry 14, 2008, P.L. 6, 65 P.S. §§ 67.101

- 67.3104.

12 The RTKL and the Uniform Trade Secrets Act define “trade secrets” as: (Footnote continued on next page...)12 In the absence of a test under the RTKL, t his Court adopted the Crum
test to determine trade secret status in the RTKL context because the legislature
chose to define “trade secret” i n the RTKL identically to th e definition in the A ct. Th at justification does not exist here.

Lyft offers no grounds for adopting the Crum test in the PUC context when PUC regulations define trade secret differently and provide a multi

- factor test for assessing proprietary status. 13 The Regulation sets forth several factors regarding proprietary status, similar to those in Crum

. 14 Accordingl y, the PUC did not err in applying the Regulation to discern proprietary status.

(continued...)

[i] nformation including a formula, drawing, pattern, compilation

... a customer list, program, device, method, technique or process that:
(1) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; [ and] (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

See Section 102 of the RTKL, 65 P.S. §67.1 02 and Section 5302 of the Uniform Trade Secrets Act, 12 Pa. C.S. §5302. PUC regulations define “trade secret” as: “A private formula, pattern, device, cost study or compilation of information which is used in a business and which, if disclosed, would pr ovide the opportunity to obtain an advantage over competitors who do not know or use it.” 52 Pa. Code §1.8.

13 Aside from lacking merit, this a rgument was waived by Lyft’s failure to raise it during the administrative proceedings. 2 Pa. C.S. §703.

14 The Crum factors are: (1) the extent to which the information is known outside of the business; (2) the extent to which the information is known by employees and others in the business; (3) the extent of measures taken to guard the secrecy of the information; (4) the value of the information to his business and to competitors; (5) the amou nt of effort or money expended in developing the information; and , (6) the ease of difficulty with which the information could be properly acquired or duplicated by others.13 We are equally unpersuaded that the PUC misapplied the Regulation. The PUC is entitled to deference in the application of its regulations. Energy
Conservation Council

. Also, i t is evident in its decisions that t he PUC considere d
the factors contained in the Regulation when performing the balancing test

.

Lyft bore the burden of proving that the harm resulting from
disclosure of the trip data would be both substantial a nd outweigh the public’s interest in free and open access to the administrative hearing process. The PUC concluded Lyft failed to satisfy its burden. On this record, we agree.

As described, the trip data do not reveal any de tails about the trips.
The d ata state only the number of trips over three different timeframes, all occurring before Lyft had authority to operate in Allegheny County. The total number of trips is aggregated without any reference to drivers, customers, or specific locations within A llegheny County. This lack of detail does not permit the

“ customer targeting ” the PUC recognizes may cause competitive harm. As such, we agree wi th the PUC that the trip data are aggregate d information 15 lacking sufficient detail to allow a competitor to cause substantial competitive harm

.

15 Aggregated data are also not exempt under the trade secrets exception in Section 708(b)(11) of the RTKL , 65 P.S. §67.708(b)(11). See Section 708(d), 65 P.S. §67.708(d). The term “A ggregated data ” is defined in the RTKL as “a tabulation of data which relate to broad classes, groups or categories so that it is not possible to distingui sh the properties of individuals within those classes, groups or categories.” Section 102 of the RTKL, 65 P.S. §67.102. T hus, to the extent Lyft contends the RTKL is another statute favoring protection of the trip data under the fifth factor of the Regul ation, its reliance is misplaced.14 Aggregated data are not the type of data generally protected pursuant to the Regulation. In re pe tition of TracFone Wireless, Inc. , 2011 Pa. PUC LEXIS 62, Dkt. No. P

- 2011

- 2250661 (filed September 22, 2011) (denying protective order; number of customers enrolled in program and number disconnected from
service is not proprietary). To the contrary , “ [d] isclosing aggregate information i s consistent with [the PUC’s] prior practice” in other service contexts. See , e.g. , Petition of Citizens Tel

. Co. of Kecksburg for a Protective Order , 2007 Pa. PUC LEXIS 11, Dkt. No. P

- 00072252; P

- 00971229F1000 (filed March 1, 2007) (rejecting proprietary status for aggregate d data despite prior practice of permitting aggregated data to be submitted under seal) ; ITT Commc ’ n s Servs. Petition for a
Protective Order , 1991 Pa. PUC LEXIS 193, *3, Dkt. No. R

- 912017 ( filed
Nov ember 5, 1991) (denying protective or der as financial data was “expressed in aggregate numbers, without sufficient detail to be of significant value to a competitor”).

After det ermining the trip data contain insufficient detail for
disclosure to cause substantial harm to Lyft , the PUC weighe d the public interest in
disclos ure . In so doing, the PUC considered the content of the trip data and the import of the timing of the trips.

The PUC properly considered that the trip data showed that Lyft coordinated a number of trips in Alleghe ny County before it had authority to do so. As to balancing the interests, the PUC reasoned, “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 protect ed from disclosure for15

extraordinary reasons.” PUC Op. at 17. The PUC concluded the public had a right to know about the extent of Lyft’s non

- compliance over various periods.

After considering the factors in the Regulation as to proprietary status, and weigh ing Lyft’s interest in protection against the public’s interest in disclosure, the PUC determined the public interest merited denial of the protection sought here. As the PUC’s analysis tracked the Regulation, Lyft’s challenges to its approach l ack merit.

2. Substantial Evidence

Next, Lyft asserts the PUC’s decision was not supported by substantial evidence. Lyft contends the evidence of record favored protecting the trip data. We disagree.

Significantly, Lyft bore the burden of proving the trip data qualified
f or proprietary status. Yet, Lyft submitted no evidence to support its contention. As the PUC points out, Lyft presented only argument in its p etition for protective order; it did not buttress its claims with any documentary or testim onial evidence. 16 Lyft stated only the following regarding proprietary nature in its p etition:

Lyft participates in a highly competitive industry, as evidence d by the rapid expansion of [TNC] service across the count r y and the number of TNC applications f iled with the

16 There is no dispute Lyft presented testimony regarding the trip data at the September 3 rd hearing. Lyft makes no claim that the ALJs precluded it from inquiring as to the proprietary status of the data at that time. H owever, the six pages of transcript corresponding to the trip data testimony are not part of the record before us a nd remain sealed. Nonetheless, Lyft had an obligation to preserve its objection had it attempted to present testimony on this crucial point.16 PUC in 2014 alone. Public disclosure of the [trip] data requested by the [ALJs’] Interim Order would reveal operational information that would not otherwise be provided to the public and could be used by competitors to extrapolate the data an d model Lyft’s existing and potential activities in other markets. As such, the potential harm to Lyft is substantial, and the need for proprietary protection of this information outweighs any need for public disclosure at this time.

R.R. at 2 75a

- 76a (emphasis added). At best, this explanation is speculative and

vague

.

In tacit recognition of the lack of evidence submitted to the ALJs, Lyft attempted to submit an affidavit to the PUC to support proprietary nature. 17 Moreover, the PUC explained t hat regardless of whether Lyft submitted Mr. Okpak u ’s affidavit to the ALJs for proper consideration, the facts alleged therein would not have altered the result. The PUC found the number of trips in Lyft’s service area (Allegheny County) over a span of m onths, without further detail,
constituted aggregate data. We agree with t he PUC’ s well

- reasoned conclusion that such aggregate d data do not constitute a trade secret. See ITT

.

In its brief, Lyft suggests it did not have sufficient opportunity to

prese nt evidence regarding the proprietary nature of the trip data. From our review of the record, Lyft did not notify the PUC that it lacked an opportunity to present

17 There is no indication on this record that Lyft was precluded from attaching an affidavit, from Mr. Okp a k u or another affiant, substantiating the alleged proprietary nature of the trip data to its petition for protective order . Lyft does not allege th at the facts to which Mr. Okp a k u attested were unavailable at the time Lyft sought a protective order from the ALJs.17

evidence on this issue. Although Lyft appended Mr. Okpaku’s affidavit to its Interlocutory Petition , R.R. at 391 a , 398a

- 401a , Lyft did not advise the evidence was previously unavailable. Because Lyft failed to raise these issues before the agency, the issues are waived. Wheeling ( noting PUC is blameless for not considering issue on which the b urden

- bearing party failed to present evidence).

In opposition to Lyft’s petition for protective order, t he record also contained two responses to Lyft’s petition contesting the proprietary nature of the trip data. A protestor motor vehicle carrier subject to the Code emphasized the trip data offered insight into Lyft’s management culture. R.R. at 336a

- 39a. PG’s

response amply articulated the interest in public access to the trip data. Id. at 371a

81a; 420a

- 27a

. These submissions were adequate to support the PUC’s conclusion that the public interest in disclosure outweighed the alleged proprietary interest of an applicant.

In analyzing proprietary status under t he R egulation, the PUC recognized the important pub lic interest in ensuring entities have the requisite authority prior to holding themselves out to the public to perform a TNC service. Because Lyft did not submit any evidence of substantial competitive harm, and the record shows a public interest in disc losure, the PUC’s decision is supported by
substantial evidence.

3. A lleged Inconsistent Treatment

L astly, L yft contends the denial of proprietary status is unfair because
the PUC protect ed the trip data of its primary competitor, Raiser, in other18

procee dings

. Essentially, be c aus e Raiser’s trip data are currently designated as proprietary, Lyft argues its trip data must be similarly protected despite procedural and evidentiary differences. Lyft also asserts the continued proprietary status of Raiser’s t rip data allows Raiser to obtain a competitive advantage in the Allegheny County market.

We are unpersuaded that the PUC treated aggregate trip data disparately. First, the type of procee dings in which the trip data were requested
differed. Raiser was involved in a complaint and enforcement proceeding with
BI E , not an application to provide services to the public. Second, Raiser’s method of submission differed from that of Lyft. Raiser did not request a protective order,
and so did not trigger the analysis under the Regulation. Raiser requested to submit the information under a proprietary designation ; Raiser declined to provide trip data in discovery requests in the complaint proceeding. As a result, Raiser was charged with significant civil penalties for discovery violations. BIE v. Uber Tech.
Inc. , 2015 Pa. PUC LEXIS 527, Dkt

. No. C

- 2014

- 2422723 ( AL J Recommended Decision, filed Nov. 17, 2015). Of primary significance, Raiser’s submission of trip data as proprietary was not contested. Thus, the ALJs were not provided with evidence regarding the public interest to weigh against the assertions of prop rietary

status.

Here, in contrast, Lyft submitted a petition for a protective order under the Regulation. Also, a protestor and PG objected to the protective order. As a result, in the Lyft application proceeding s , the PUC had a record of the
interes ts countering those of Lyft.19 That the ALJs in Raiser’s complaint proceedings permitted trip data to be submitted with a proprietary designation does not trump the PUC’s determination of propri etary status in Lyft’s application to provide service

. Becau s e the PUC ruled on the question, f uture ALJs faced with the alleged proprietary status of aggregate d trip data will have the benefit of the PUC’s analysis, and now that of this Court.

Based on the foreg oing, we uphold the Proprietary Order denying

pro prietary status to Lyft’s aggregated trip data , and the Reconsideration Order confirming its decision as to proprietary status of the information

. 18

B. Intervention in PUC Proceeding

1. Contentions Turning to the procedural question presented, PG argues the PUC erred in denying its Emergency Petition seeking to intervene for the limited purpose of accessing the closed record and to oppose future attempts to seal the
record. PG notes the PUC treated it as a party, often agreeing with its position. However, PG asserts party status is necessary to ensure it receives notice of any future attempts to seal proceedings or submissions. PG also contends the PUC erred in requiring it to establish immediate o r irreparable harm when it has a right to intervene to protect the public interest.

The PUC counters that PG participated in the PUC proceedings as to the public access issue. Further, PG was not aggrieved by the PUC’s Proprietary

18 As we affirm the PUC, we do not address PG’s alternative grounds for public access.20

Order because the PU C found in favor of PG’s position on public access

. Therefore, the PUC argues PG had no basis to file a cross

- appeal.

2. Discussion PG filed the Emergency Petition to request interven tion

. To establish emergency relief

, PG was required to prove : (1) a clear right to relief; (2) immediacy; (3) irreparable harm; and, (4) relief will not harm the public interest. 52 Pa. Code §3.6; Glade Park East Home Owners Ass’n v. Pa. Pub. Util. Comm’n , 628 A.2d 468 (Pa. Cmwlth. 1993).

Intervention is governed by P UC regulation, 52 Pa. Code §5.72 (eligibility to intervene). 19 As the moving party, PG bore the burden of proving the necessity of its intervention.

Further, a n agency’s decision on intervention will not be disturbed absent “a manifest abuse of discretion.” Pittsburgh Palisades Park, LLC v. Pa.

19 Section 5.72 provides in pertinent part: (a) Persons. A petition to intervene may be filed by a person claiming a right to intervene or an interest of such nature that intervention is necessary or appropriate to the administration of the statute under which the proceeding is brought. The right o r interest may be one of the following: (1) A right conferred by statute of the United States or of the Commonwealth. (2) An interest which may be directly affected and which is not adequately represented by existing participants, and as to which the petitioner may be bound by the action of the Commission in the proceeding. (3) Another interest of such nature that participation of the petitioner may be in the public interest.

52 Pa. Code §5.72

.21

Horse Racing Comm’n , 844 A.2d 62, 65 (Pa. Cmwlth.), appeal den. , 864 A.2d 1206 (Pa. 2004). An abuse of discretion is not merely an error in judgment. Bedford Downs Mgmt. Corp. v. State Harness Racing Comm’n , 926 A.2d 908 (Pa. 2007). Rather, “discretion is abused where the law is overridden or misapplied, or the judgment exercised is clearly unreasonable, or the result of partiali ty, prejudice, bias, or ill

- will, as shown by the evidence or the record.” Bensalem Racing Ass’n, Inc. v. Pa. State Harness Racing Comm’n, 19 A.3d 549, 554 (Pa. Cmwlth. 2011).

The foregoing legal standards notwithstanding, s everal developments
in this litigation make us question whether a controversy remains regarding PG’s emergency request for relief in the nature of intervention. First, PG suffered n o prejudice from denial of its E mergency P etition because it fully participated in the
administrative proceedings on the issue of public access, and, by its own admission, was “essentially treated ... as a party.” See PG’s Br. at 15 n.2. Second,
the PUC ultimately agreed with PG’s position and held that the trip data were not protected from disclosure. Be cause PG sought intervention as a means to th at end, PG was not aggrieved.

Third, the PUC granted Lyft’s application for experimental authority to operate , thereby resolving the underlying litigation before the PUC

. In fact , there are no scheduled hear ings that may be subject to seal; instead, the record
before the PUC is closed. See Interim Order Closing the Record, filed September 17, 2014. 20

20 The PUC filed a Certified List of Documents for PUC D kt. Nos. A

- 2014

- 2415 0 45 and A

- 2014

- 2415047 in lieu of a certified record under Pa. R.A.P. 1952(b).22 Fourth, despite the lack of formal party status before the PUC, this Court granted PG’s request to participate as a party to Lyft’s appeal here . Thus, PG may advocate the public access issue in any further appellate proceedings.

Considering these developments together, it appears the results PG sought to achieve by intervention in the PUC proceeding have been attained

. Confirm in g t his conclusion, PG concedes a ruling on intervention is requested “[i]f
this Court reverses the PUC’s decision that th e trip data is [sic] subject to disclosure ....” PG’s Br. at 6 (questions 2 and 3 in the statement of questions involved) (emphasis added) ; see also id . at 19 (“in the event that this Court decides

to reverse ....”) (emphasis added)

. Thus, PG’s cross

- appeal is contingent on this Court’s reversal of the PUC’s decision on the merits. Because we unanimously affirm the PUC on the merits, there is no need to decide the intervention issue

.

Moreover, “‘an actual case or controversy must be extant at all st ages of review ....” Pap’s A.M. v. City of Erie , 812 A.2d 591, 600 (Pa. 2002). A matter is moot when a court cannot enter an order that has any legal effect.
Mistich v. Pa. Bd. of Prob. & Parole , 863 A.2d 116 (Pa. Cmwlth. 2004). “[M]ootness, however it m ay have come about, simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so.” Id. at
121 (quotation omitted).

As this Court unanimously affirms that the trip data are not proprietary and may be acces sed by PG and the public , we discern no current controversy capable of further remedy

. Indeed, PG acknowledged “its requested relief was23

granted.” PG’s Pet. for Review, ¶48. Because the PUC allowed PG to participate fully in the proceedings, and because PG admittedly received the relief requested, we dismiss PG’s cross

- appeal.

III. Conclusion

For the foregoing reasons, the PUC’s Proprietary Orde r and the
Reconsideration Order are affirmed as to the proprietary status o f the trip data

. Because PG obtained the relie f it sought , and achieved its interest without the grant of party status, there is no further relief to be granted to PG on th e intervent ion
issue . Accordingly, PG’s cross

- appeal is dismissed

.

ROBER T SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lyft, Inc., : Petitioner :

: v. : No. 843 C.D. 2015
: Pennsylvania Public Utility : Commission, : Respondent : Kim Lyons and PG Publishing, Inc. : d/b/a The Pittsburgh Post

- Gazette, : Petitioners :

: v. : No. 974 C.D. 2015
: Pennsylvania Public Utility : Commission, : Re spondent :

O R D E R

AND NOW , this 31 st day of August , 2016 , the orders of the Public Utility Commission are hereby AFFIRMED regarding the proprietary status o f the trip data. Because the re is no further relief to be granted regarding the issue of
intervention , and for the reasons set forth in the accompanying opinion, we DISMISS the cross

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

- Gazette.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lyft, Inc., :

Petitioner :

: No. 843 C.D. 2015
v. : : Pennsylvania Public Utility : Commission , :

Respondent :

: Kim Lyons and PG Publishing, Inc. : d/b/a The Pittsburgh Post

- Gazette, :

Petitioners :

: No. 974 C.D. 2015
v. : : Argued: December 9, 2015 Pennsylvania Public Utility : Commission, :

Respondent :

:

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Jud ge

CONCURRING & DISSENTING OPINION BY JUDGE McCULLOUGH FILED: August 31, 2016

I agree with the Majority insofar as it affirms the order of the Pennsylvania Public Utility Commission (PUC) concluding that the trip dataPAM

- 2

maintained by Lyft, Inc. (Lyft) , did not constitute proprietary information and/or a trade secret, but respectfully dissent from the Majority decision insofar as it
dismisses the cross

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

- Gazette (PG) , from the P UC’s order denying its E mergency P etition seeking to intervene in the PUC proceedings

.

The Majority essentially concludes that the matter is moot, questioning “whether a controversy remains regarding PG’s emergency request for
relief in the nature of inte rvention.” Slip op. at 21. In this regard, the Majority holds that PG suffered no prejudice from the denial of its Emergency Petition because it fully participated in the PUC proceedings on the issue of public access, the PUC ultimately agreed with PG’s position that the trip data were not protected from disclosure, the litigation before the PUC was resolved and the record closed, and this Court granted PG’s request to participate as a party in Lyft’s appeal here.

However, there is an exception to the mootness doctrine “ where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer

s ome detriment without the court’ s decision. ” Sierra Club v. Pennsylvania Public Utility Commission , 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), affirmed , 731 A.2d 133 (Pa. 1999). I believe the exception is applicable here both because this issue may arise in future proceedings before the PUC and this matter involve s issues important to the public interest, i

. e., unregulated operation of a business in this Commonwealth and deprivation of PG’s fundamental Fi rst A mendment right to gather news and disseminate that news to the general public.

To that extent, I disagree with the Majority’s holding discussed above. The fact that the PUC ultimately ruled in PG’s favor on the issue of proprietaryPAM

- 3

information and that PG participated in Lyft’s appeal to this Court does not warrant
dismissal of PG’s cross

- appeal. As noted above, this case involved important issues of public interest, including the denial of a First Amendment right. S ection
3.6 of the PUC’s regulations, pertaining to petitions f o r interim emergency orders , p rovide d PG with the appro priate procedural vehicle to assert this right and there

wa s nothing here to justify the denial of PG’s petition on either a procedural or
substantive basis.

The record herein establishes that Lyft began operating in Pennsylvania in February 2014 wi thout the approval of the PUC and continued to
do so until at least July 2014 , when the PUC granted a cease and de s ist order requested by the Bureau of Investigation and Enforcement. In resolving the issue regarding the proprietary nature of Lyft’s trip d ata, the PUC ultimately determined that 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. Moreover, d uring the hearings before the PUC on this issue , PG’s reporter, Ms. Lyons , was required to leave the room

.

The long line of well

- established case law autho rity of both this
Commonwealth and the Federal Courts, including the U.S. Supreme Court , mad e it
clear that the First Amendment is t he keystone of our Constitutional Republic.
See , e.g. , New York Times Co. v. Sullivan , 376 U.S. 254, 269

- 70 (1964); Grosjean
v. American Press Co. , 297 U.S. 233, 245 (1936) ; Loadholtz v. Fields , 389 F.Supp. 1299, 1300 (M.D. Fla. 1975) ; Gmerek v. State Ethics Commission , 751 A.2d 1241, 1259 (Pa. Cmwlth. 2000), aff’d by an equally divided Court , 807 A.2d 812 (Pa. 2002). A free press unimpeded in its ability to gather and disseminate the news is essential in the preservation of our First Amendme nt freedoms , a bsent compellingPAM

- 4

interests to the contrary (and subject to the established tenets regarding reckless disregard for the truth and malice aforethought)

. McMullan v. Wohlgemuth , 308 A.2d 888, 896 (Pa. 1973), appeal dismissed , 415 U.S. 970 (1974 ); see also Branzburg v. Hayes , 408 U.S. 665 , 727 (1972) (Stewart, J., dissenting). Ms. Lyons and PG were denied this opportunity here.

For these reasons, I would not dismiss PG’s cross

- appeal as moot. Rather, after applying the exception to the mootness doctrine, I would reverse the PUC’s order denying PG’s petition for an interim Emergency Order.

________________________________ PATRICIA A. McCULLOUGH, Judge