DC’s Transportation Department Abused Its Authority by Arbitrarily Capping Electric Scooters & Hurting Consumers

Not long ago, the District of Columbia was heralded as a leader in micromobility — a catch-all phrase for small, docked or dockless transportation options like bikes and scooters that consumers often rent using their phones.

But D.C. recently lost that distinction when its Department of Transportation (DDOT) arbitrarily and without warning kicked out two of its largest scooter operators, Bird and Lime. Thankfully, DDOT announced it would pause implementing its decision until March and would let companies re-apply to operate in the District.

Assuming DDOT ends up allowing more companies to compete, that’s welcome news. Otherwise, with fewer scooter competitors allowed, consumers will lose: fewer scooter competitors means higher prices and less investment in improving the rider’s experience.

Importantly, DDOT still abused its authority in issuing its initial rule to cap scooter operators at four and in choosing which four would get to service the District. And that’s an even greater cause for public concern.

Although DDOT’s initial decision to limit competition has the gloss of following the standard regulatory process — known as notice-and-comment rulemaking — the regulations underscore that the decision was meant to benefit bureaucrats, consumer costs be damned.

Notice-and-comment rulemaking is a legal process that allows the public and affected parties to weigh in on proposed regulations. It’s also a tool for agencies to collect a wide variety of data so that they base their final rules on the best information possible. And it forces agencies to make transparent decisions, allowing the public to hold them accountable.

Done right, final rules are reasonable responses to collected data. Reasonable, data-backed rules give the public confidence that the rules aren’t designed just to benefit a few at everyone else’s expense.

But DDOT’s final rule was not based on evidence or comments, let alone based on the public good. Instead, DDOT based its rule on what seems easiest for DDOT to manage.

Even if administrative ease were a valid reason for the cap — and it’s not — DDOT’s cap is arbitrary: Why four companies and not one or two?

And DDOT’s use of an irrational process to pick certain companies only adds to the confusion.

An internal DDOT committee scored a dozen companies’ bids to operate scooters based on a 198-point scale, looking at everything from “Safety” to “Equitable Access.”

Despite the objective criteria, the committee’s given scores make little sense. For example, scooter provider Skip saw DDOT suspend its license in 2019 because of several major safety problems including its scooters setting on fire. Yet they scored the same on “Safety” as other D.C.-based operators that have never had such problems.

Given that DDOT itself admitted that most public comments were centered on safety concerns, DDOT’s decision to choose a company with safety problems over providers with better safety records undermines the department’s claim that its final rule is based on public input.

DDOT rightly noted that the public wants more scooters in D.C., which is unsurprising given that over 70% of D.C. residents approve of them. But DDOT appears to have ignored public concern about scooter safety preferring to prioritize DDOT’s convenience. And it’s not like DDOT didn’t know better — it collected 270 public comments on scooters. Instead, it simply massaged the public’s concerns to fit its agenda.

That’s not fair to businesses, but more importantly it’s not fair to city residents whose interests DDOT’s rulemaking process is designed to represent — and that should concern everyone.

Thankfully, DDOT seems to recognize that it messed up and has promised to issue a decision on companies’ appeals next month.

If DDOT cares about consumer choice and safety, it will approve applications from known D.C. companies like Bird and Lime for 2020. Doing so would help the District regain its footing as a leader in micromobility.

But even then, DDOT must still restart its notice-and-comment rulemaking process — this time, putting the public interest before bureaucratic ease.

Chris Marchese is Policy Counsel at NetChoice, a trade association fighting for free expression and free enterprise online.