BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 2051 (O'Donnell) Version: June 13, 2016 Hearing Date: June 28, 2016 Fiscal: No Urgency: No TH SUBJECT Rental Passenger Vehicles DESCRIPTION Existing law governs contracts between rental car companies and their customers in connection with the rental of passenger vehicles. Under existing law, a rental car company may collect, in addition to the rental rate, certain fees and charges, including a customer facility charge. Existing law authorizes airports to require rental companies to collect a customer facility charge to finance, design, and construct consolidated airport vehicle rental facilities, common-use transportation systems that move passengers between airport terminals and car rental facilities, and terminal modifications made solely to provide customer access to common-use transportation systems. This bill would recast and reorganize these provisions, and would establish separate authority for the Los Angeles International Airport to require rental companies to collect a customer facility charge that can be used for additional specified purposes. BACKGROUND In recent years, many airports have adopted the practice of locating rental car services in consolidated facilities that house all car rental companies in one location. Common-use transportation systems, including shuttle bus systems and automated trains, are often used to transport rental car customers to and from terminals and the consolidated rental car AB 2051 (O'Donnell) Page 2 of ? facility. These facilities and their associated transport systems are financed largely via Customer Facility Charges (CFC) collected from rental car patrons who choose to rent a vehicle from a company housed in the consolidated rental facility. The authority to collect CFC charges began in California in 1999 when the Legislature passed and the governor signed SB 1228 (Vasconcellos, Ch. 760, Stats. 1999), which permitted San Jose International Airport to collect a customer facility charge of $10.15 per rental contract to finance and construct a consolidated rental car facility. In 2001, AB 491 (Frommer, Ch. 661, Stats. 2001) authorized other public airports in California to collect a $10 fee per contract to finance, design, and construct consolidated rental car facilities. In 2007, SB 641 (Corbett, Ch. 44, Stats. 2007) repealed the special authorization for San Jose International Airport and instead applied the more general provisions enacted by AB 491 to San Jose International Airport, thus permitting it to collect a $10 per contract CFC. For approximately ten years, the allowable CFC fee was set at $10 per rental contract, regardless of the duration of the car rental. In 2010, the Legislature revised the CFC fee structure in response to feedback from the airports that the existing $10 per contract fee was inadequate to fund some proposed consolidated rental car facilities. SB 1192 (Oropeza, Ch. 642, Stats. 2010) permitted airports to impose a CFC calculated on an alternative basis, which, under current law, allows up to $6 per day for a maximum of five days per rental contract to be collected. The new CFC fee structure allows an airport to increase its daily CFC according to a statutory schedule which would permit the collection of up to $45 over the length of a rental contract by January 1, 2017. SB 1192 also expanded the range of uses for which CFC revenue could be spent, including purchasing vehicles for a common-use transport system that would shuttle passengers between the consolidated rental facility and the airport terminals, and for terminal modifications undertaken to provide access to a common-use transport system. In order to protect customers and ensure that the CFC charged by an airport was appropriately and necessarily spent on consolidated rental facilities and associated common-use transport systems, SB 1192 also imposed an audit requirement, directing airports to complete independent audits of CFC funded projects prior to the initial charge of a CFC, prior to any increase in the CFC, and every three years after its initial AB 2051 (O'Donnell) Page 3 of ? collection or any increase. SB 1192 initially required the State Controller's Office to review these audits, but SB 1006 (Senate Budget and Fiscal Review Committee, Chapter 32, Statutes of 2012) eliminated this requirement. SB 1006, a budget trailer bill, also struck language in existing law that set out guidelines regarding the scope of a CFC audit and the standards for determining whether an airport's chosen CFC rate was necessary and justified based on how the funds were being spent. Under existing law, CFC revenue is generally used to pay back bonds issued for the construction of combined rental facilities, certain terminal modifications, and the construction and operation of common-use transportation systems. Existing law states that upon repayment of these bonds, the authority to collect a CFC is eliminated. This bill would, for the Los Angeles International Airport, expand the types of debts that may be repaid with CFC revenue to include capital contributions, availability payment contracts, lease agreements, or other forms of financing. This bill would also, for the Los Angeles International Airport, increase the range of allowable uses to which CFC revenue could be directed to include improving combined rental facilities, maintaining or improving common-use transportation systems, and improving terminal modifications, as specified. Finally, this bill would recast and reorganize existing law pertaining to contracts between rental car companies and their customers in connection with the rental of a passenger vehicle, and make technical and clarifying changes to existing law throughout these provisions. CHANGES TO EXISTING LAW Existing law , Civil Code Section 1936, governs contracts between rental car companies and their customers in connection with the rental of passenger vehicles. Existing law defines a "Customer Facility Charge" (CFC) as any fee, including an alternative fee, required by an airport to be collected by a rental company from a renter for any of the following purposes: to finance, design, and construct consolidated airport car rental facilities; to finance, design, construct, and operate common-use transportation systems that move passengers between airport terminals and those consolidated car rental facilities, and acquire vehicles for use in that system; or AB 2051 (O'Donnell) Page 4 of ? to finance, design, and construct terminal modifications solely to accommodate and provide customer access to common-use transportation systems. (Civ. Code Sec. 1936(a)(6)(A).) Existing law states that the aggregate amount of CFC revenue to be collected shall not exceed the reasonable costs, as determined by an independent audit paid for by the airport, to finance, design, and construct these facilities. Existing law requires, in the case of a transportation system, the audit to also consider the reasonable costs of providing the transit system or busing network. (Civ. Code Sec. 1936(a)(6)(B).) Existing law prohibits fees designated as a customer facility charge from being used to pay for terminal expansion, gate expansion, runway expansion, changes in hours of operation, or changes in the number of flights arriving or departing from the airport. (Civ. Code Sec. 1936(a)(6)(B).) Existing law specifies that the authorization for an airport, except for the Oakland International Airport, to impose a CFC shall become inoperative when the bonds used for financing are paid. (Civ. Code Sec. 1936(a)(6)(C).) Existing law specifies that if a bond or other form of indebtedness is not used for financing, or the bond or other form of indebtedness used for financing has been paid, the Oakland International Airport may require the collection of a customer facility charge for a period of up to 10 years from the imposition of the charge. (Civ. Code Sec. 1936(a)(6)(D).) Existing law defines a "Vehicle Registration Fee" to mean any fee imposed pursuant to any provision of Chapter 6 (commencing with Section 9101) of Division 3 of the Vehicle Code." (Civ. Code Sec. 1936(a)(16).) Existing law states that a rental company shall not use, access, or obtain any information relating to the renter's use of the rental vehicle that was obtained using electronic surveillance technology, except in specified circumstances. (Civ. Code Sec. 1936(n).) Existing law states that the above subdivision does not prohibit a rental company from obtaining, accessing, or using information from electronic surveillance technology for the sole purpose of AB 2051 (O'Donnell) Page 5 of ? determining the date and time the vehicle is returned to the rental company, and the total mileage driven and the vehicle fuel level of the returned vehicle, as specified. (Civ. Code Sec. 1936(n)(6).) This bill would, for the Los Angeles International Airport, expand the range of permissible uses for which a CFC may be applied to include the maintenance and improvement of consolidated airport vehicle rental facilities, common-use transportation systems, and authorized terminal modifications, as specified. This bill would, for the Los Angeles International Airport, expand the types of financing arrangements toward which CFC revenue may be directed to include bonds, capital contributions, availability payment contracts, lease agreements, or other forms for financing, and would specify that the authorization to collect CFC revenue shall become inoperative when the financing is paid or reimbursed. This bill would expand the definition of a "Vehicle Registration Fee" to include any fee imposed pursuant to any law that imposes a fee upon the registration of vehicles in this state. This bill would specify that any person or entity other than a rental company, including a passenger carrier or a seller of travel services, that advertises a rental rate for a vehicle rental that includes additional mandatory charges must clearly disclose the existence and amount of the charges. This bill specifies that if a rental company provides the person or entity with rental rate and additional mandatory charges information, the rental car company is not responsible for the failure of that person or entity to comply with this requirement. This bill would specify that a rental company is not prohibited from obtaining, accessing, or using information from electronic surveillance technology for the sole purpose of determining the date and time the vehicle departs from and is returned to the rental company, and the total mileage driven and the vehicle fuel level of the returned vehicle, provided such information obtained or accessed from electronic surveillance technology is only used for this purpose. This bill would recast and reorganize these provisions, and make other technical and clarifying changes to existing law. AB 2051 (O'Donnell) Page 6 of ? COMMENT 1.Stated need for the bill The author writes: Civil Code section 1936, which governs rental car transactions, was originally put into place in 1988. In the past 28 years, changes to the statute have resulted in duplicative code sections and in some instances, conflicting terms and definitions. This has led to several implementation and interpretation issues. State statute also does not reflect the technological and consumer convenience advancements made in today's market. AB 2051 includes much needed statute modernization and also provides rental car companies the ability to better serve and protect its consumers by cleaning up outdated requirements, granting the use of GPS in limited circumstances and providing a clearer comprehension of the requirements placed on the industry. 2.Reorganization of existing law This bill reorganizes and reconciles the entirety of several Civil Code sections addressing rental cars and rental car facilities. As indicated in the History below, this area of law is frequently amended - almost on an annual basis - and several years of cumulative amendments have made the law internally inconsistent and difficult to understand. Beginning late last year, Committee staff and staff from the Legislative Counsel's office began reconciling inconsistent provisions within these code sections to bring uniformity to the law. The draft language produced by Counsel and the Committee forms the framework of this bill. Throughout the bill, non-substantive and substantive changes are made to existing law to reconcile terms and definitions, to strike repetitive and extraneous language, and to clarify language that has proven to be ambiguous in practice. The author of this bill has expanded it beyond Counsel and the Committee's original aim to make additional changes to existing law, and the subsequent comments below discuss the principal changes. Beyond these principal changes, the changes to existing law proposed here would replace specific statutory disclosures regarding the advertising of rental rates and the imposition of additional mandatory charges with a requirement to provide general disclosures that clearly AB 2051 (O'Donnell) Page 7 of ? disclose the same information without prescribing the wording of the disclosure. This bill would also reinsert a safe harbor that was inadvertently struck in AB 675 (Alejo, Ch. 333, Stats. 2015) concerning rental car advertising performed by third parties, such as sellers of travel services, that holds rental car companies harmless for the failure of third parties to make the required disclosures. 3.Expansion of vehicle registration fee In addition to the changes noted above, this bill would expand the types of government-imposed fees that may be passed on to rental car customers in the form of a "Vehicle Registration Fee." Under existing law, recoverable vehicle registration fees are limited to those fees imposed pursuant to Chapter 6 of Division 3 of the Vehicle Code, which encompasses the current range of fees that must be paid to register a vehicle in California. This bill would expand the scope of recoverable vehicle registration fees to include those required by "any other law that imposes a fee upon the registration of vehicles in this state." This expansion anticipates future vehicle registration programs that impose alternate fee structures, such as a tax based on annual miles travelled by a vehicle. Enacting this change would authorize rental car companies to pass these new fees on to rental car consumers as separate line items in their bill or contract should they be imposed in the future. 4.New allowable uses for Consumer Facility Charge revenues Over the last 17 years, several California airports have financed the design and construction of consolidated rental car facilities and their associated transport systems via the collection of Customer Facility Charges (CFC) from rental car patrons who choose to rent a vehicle from a company housed in a consolidated rental facility. Existing law governing the collection and use of CFC funds includes strong consumer protection provisions designed to ensure that airports do not misuse or overcollect these funds. Under existing law, an airport that imposes a CFC fee for the first time or that increases its CFC fee must conduct an audit that ensures the fees are necessary to construct consolidated rental facilities and their associated transport systems, that the fees would not AB 2051 (O'Donnell) Page 8 of ? or are not being used to fund unauthorized airport construction, and that the chosen CFC fee level is reasonable, taking into account alternate revenue sources for constructing these facilities. Existing law also limits the uses to which CFC revenues can be directed to, principally, the design and construction of combined rental facilities, certain terminal modifications, and the construction and operation of common-use transportation systems. Existing law also specifies that, with the exception of the Oakland International Airport (OAK), CFC funds may be directed to pay off bonds used for the financing of these projects, and in the case of OAK, that if alternate financing is used, the authority to impose a CFC is limited to 10 years. This bill would, in the case of the Los Angeles International Airport (LAX), authorize CFC revenue to be collected and used for the improvement of these facilities, and would also authorize CFC revenue to be directed toward paying off other financing arrangements for the facilities, including capital contributions and lease agreements, without any time period limitations. Writing in support, the Mayor of Los Angeles states: Investing in the modernization of LAX is necessary to ensure it keeps up with growing the demand and needs of a 21st century economy. Critical improvements needed at LAX include a consolidated rental car facility and an automated people mover to facilitate the flow of passengers to and from the airport. AB 2051 will allow financing from an alternate Customer Facility Charge at LAX to fund portions of these important projects. Doing so will ensure that these projects have a local funding stream. AB 2051 will better ensure that these projects, which will create jobs, reduce traffic, and reduce pollution, remain on time and on budget. Authorizing CFC revenue to be directed toward financing arrangements other than bonds could have several benefits to LAX, including allowing the airport to transfer some of the risk involved in a project to a third party through a public-private partnership. Involvement of third parties through leaseback agreements could also allow an airport to potentially lower the cost of a combined rental car facility and related infrastructure by allowing the third party to depreciate the value of these assets - something a city cannot typically do. AB 2051 (O'Donnell) Page 9 of ? However, authorizing these new forms of financing could also significantly increase the cost passed on to consumers. Market pressure in bond markets tends to confine the amount of financing and repayment terms an airport can obtain for a project. Other financing arrangements, such as a sale-leaseback or lease-leaseback, would potentially allow an airport to avoid these market confines by liberalizing the terms on which combined rental car facilities are constructed and paid off. Whether any alternate financial arrangement is economical for a local agency depends on a variety of factors, including market conditions, tax laws, lease structure, and the relative costs of other financing arrangements. The normal pressure of limited resources that drives government decisionmakers to make economically sound decisions concerning infrastructure finance may not be present in this case, since much of the cost can be passed on to rental car customers. Without explicit repayment timelines similar to those in existing CFC authorizations, and with the expanded purposes to which CFC revenue can be directed, this new authorization for LAX may turn CFC revenue into an unending source of funding at the expense of Californians and others who rent cars. 5.New use of surveillance technology This bill would also authorize a minor expansion in the range of uses for which a rental car company can use electronic surveillance technology. Under existing law, a rental car company is prohibited from using electronic surveillance technology to use, access, or obtain any information relating to the renter's use of the rental vehicle except in specified situations, including: to locate a stolen, abandoned, or missing rental vehicle, as specified; in response to a specific request from law enforcement pursuant to a subpoena or search warrant; to discover or repair a defect in the GPS-based technology that provides navigation assistance to the occupants of the rental vehicle; to allow for the remote locking or unlocking of a vehicle at the request of the renter; to provide roadside assistance, such as towing, flat tire, or fuel services, at the request of the renter; and for the sole purpose of determining the date and time the vehicle is returned to the rental company, and the total mileage driven and the vehicle fuel level of the returned AB 2051 (O'Donnell) Page 10 of ? vehicle. Existing law explicitly prohibits a rental car company from using electronic surveillance technology to track a renter in order to impose fines or surcharges relating to the renter's use of the rental vehicle. This bill would additionally allow a rental car company to use electronic surveillance technology for the sole purpose of determining the date and time a vehicle departs from the rental car company. Under existing practice, rental car company employees record the date and time rental vehicles leave possession of the company to determine the starting point of the rental period. This change in existing law would allow these companies to automate the checkout process through the use of on-board or nearby electronic surveillance infrastructure, like license plate reading cameras. Support : City of Los Angeles Opposition : None Known HISTORY Source : Avis Budget Group; Enterprise; Hertz Related Pending Legislation : None Known Prior Legislation : AB 675 (Alejo, Ch. 333, Stats. 2015) authorized a rental company, when quoting a rental rate, to separately state the rental rate, additional mandatory charges, if any, and a mileage charge, if any, that a renter must pay to hire or lease the vehicle for the period of time to which the rental rate applies. This bill defined "additional mandatory charges" to mean any separately stated charges that the rental car company requires the renter to pay to hire or lease the vehicle for the period of time to which the rental rate applies, which are imposed by a governmental entity and specifically relate to the operation of a rental car business, including, but not limited to, a customer facility charge, airport concession fee, tourism commission assessment, vehicle license recovery fee, or other government imposed taxes or fees. AB 2051 (O'Donnell) Page 11 of ? AB 1981 (Brown, Ch. 417, Stats. 2014) removed the manufacturer's suggested retail price as one of the criteria for determining the rate of a damage waiver sold by a rental company, and instead set the rate of damage waivers according to the vehicle's classification using criteria set by the 2014 Association of Car Rental Industry Systems Standards for North America. This bill increased the maximum rate of the damage waiver to $11 per rental day for vehicles designated as an "economy car," "compact car," or another term denoting the two smallest categories of vehicles described by the standards. This bill increased the maximum rate of the damage waiver to $17 per rental day for vehicles in the next three body-size categories of vehicles designated in the standards, except as specified. AB 2747 (Cmte. on Jud., Ch. 913, Stats. 2014), the Assembly Committee on Judiciary's Omnibus Bill, extended until January 1, 2020, a sunset provision pertaining to a requirement for rental companies to accept service of a summons and complaint against a renter who resides out of this country for an accident or collision resulting from the operation of the rental vehicle in this state, as provided. AB 359 (Holden, Ch. 549, Stats. 2013) provided guidelines regarding the scope of a CFC audit, and required audits to be posted on an airport's Internet Web site. This bill removed the requirement that an airport conduct an audit every three years after the initial collection of the CFC, and instead require an airport to conduct an audit every three years after the initial collection of the CFC only if the charge is used for the purpose of operating a common-use transportation system or to acquire vehicles for use in such a system. SB 1006 (Cmte. on Budget, Ch. 32, Stats. 2012) See Background. SB 1192 (Oropeza, Ch. 642, Stats. 2010) See Background. SB 641 (Corbett, Ch. 44, Stats. 2007) See Background. AB 491 (Frommer, Ch. 661, Stats. 2001) See Background. SB 1228 (Vasconcellos, Ch. 760, Stats. 1999) See Background. Prior Vote : AB 2051 (O'Donnell) Page 12 of ? Assembly Floor (Ayes 78, Noes 0) Assembly Privacy and Consumer Protection Committee (Ayes 11, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) **************