us-ftc-advocacy-filings-ea68fd78203b02dad958df258b15f193•FTC Staff Comment to the Hon. Peter von Reichbauer Concerning Washington H.B. 1068 to Modify Current Methods of Allocating Costs and Risks of Damage to a Rental Car
FTC Staff Comment to the Hon. Peter von Reichbauer Concerning Washington H.B. 1068 to Modify Current Methods of Allocating Costs and Risks of Damage to a Rental Car
us-ftc-advocacy-filings-ea68fd78203b02dad958df258b15f193FTC Staff Comment to the Hon. Peter von Reichbauer Concerning Washington H.B. 1068 to Modify Current Methods of Allocating Costs and Risks of Damage to a Rental CarAdvocacy Filing
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The Honorable Peter von Reichbauer
Washinqton State Senate
Financial Institutions and
Insurance committQQ
408 John A. Cherberq Building
Olympia, Washington 98504
OQar Senator von Reichbauer:
V890053
~;)jMMISSION AUTHORIZED
March 27, 1989
The staft of the Federal Trade Commission is pleased to have
the opportunity to respond to your request for comment on House
Bill No. 1068 ("the Bill"), which is currently pending before the
state Senate Financial Institutions and Insurance Committee. 1 We
are providinq these remarks in response to your letter of March
2, 1989. Our comment addresses aspects of the Bill that may
adversely affect consumers. We would be pleased to offer
additional ass;atance on any particular amendments that ,are
offered.
The Bill would alter the current methods of allocatinq the
cos~s and risks of damage to a rental vehicle. In a~~ition, it
would prohibit rental car companies from requirin9 renters to
provide, durinq the term of the rental aqreement or pending
resolution ot any dispute, any deposit or other security for
dama;_ eo the vehicle. We are concerned that these provisions
miqh~ ~esult in increased costs to consumers who rent
automobiles without providing significant benefits to the
majority of automobile renters or the pUblic at large.
The Federal Trade Commission is charqed with promoting
competition and protecting consumers trom unfair and deceptive
commercial practices. 2 In fUlfilling this mandate, the staff of
1 These comments are the views of the staft or the San
Francisco Reqional Office and tha Bureau or Consumer Protection
of the Federal Trade Commission. They are not necessarily the
view~ of the Commission or any individual Commissioner.
2 ~ 15. U.S.C. i 41 at $~g.
The Honorable Peter von Reichbauer March 27, 1969 -~- th~ Federal Trade Commission often sUbmits comments, upon request, to federal, state, and local governmental bodies to help ass~ss the competitive and consumer welfare implications of pending policy issues. In en!orcinq the r.~.ra~ Trade commission Act, the Commis~ion has gained considerable experience in analyzing the market impact of various private and qovernmental restraints on competition and the costs and benefits to consumers of the •• restraints. The Commission and its staft have considered other matters involving the car and car rental indu5try. The Commission recently commented on Guidelines prepared by the National Association of Attorneys General's Task Force on Car Rental Industry Advertising and Practices (IINAAG Guidelines,,).3 The allocation of liability portion of the Bill is very similar to portions of the NAAG Guidelines. Lessor Liability The Bill would make significant changes in the allocation ot the risk that a rental vehicle will be damaqed. The Bill would require ·car rental companiss, as an integral (and there tore not separately billable) part of every rental transaction, to assuma all responsibility for any damage in most instances,4 and 3 Latter from the Federal Tra~e commission (Commissioner Strenio not joininq) to Robert T. stephan, Attorney General, Kansas (Fsbruary 24, 1989). A copy is attached. The preliminarily approved Guidelines were adopted with revisions by the Attorneys General at their March meeting. 4 Section 3, subsection 1 provides that an "authorized driver"--aefined as the person to Whom the vehicle is rented and, if a licensed driver and satisfying the company's minimum aqe requirement: (a) the spouse of such person; (b) the renter's employer, employee, or coworker if engaged in business activity with the renter1 and (c) a person expressly listed by the rental company on the rental agreement as an authorized driver--may be held liable for damage or loss: (a) caused intentionally by an authorited driver or as a result of his or her willful and wanton misconduct: (b) arising from an authorized driver's operation of the vehicle While illegally intoxicated or under the influence of an illegal drug: (c) caused while the authorized driver is en9ag~d in a speed contest; Cd) where the rental transaction is based on false or incomplete information supplied by the renter with the intent to defraud the rental company; (e) arisinq from the use the vehicle While engaging in a criminal act in which the vehicle usage is ~ubstantially related to the criminal actiVity: or (f) arising from the unauthorized use of the vehicle outside the United Statas or Canada. Amended House Bill 1068 § 3(1). \~ .-'
ThQ Honorable Peter von Reichbauer
March 27, 1989
-)-
prohibits the offering of a separate Collision Damage waiver
("COW").5 In practical effect, legisla'tive restriction of the
offerinq of a distinct CDW product is tantamount to mandating
that car rental com~anies bundle COW coverage into every car
rental transaction. Any legislatively imposed bundling
requirement will restrict consumer choice among COW-like
ooveraqes of rental cars.' As a result, some consumers will have
to bear greater costs, primarily in the torm ot higher base
prices, than they otherwise might incur to cover the accident
losses statutorily shi!ted to the rental car companies. Recent
news reports suggest that this may be happening to some consumers
in at least one state. A recent article in The New York Times
regarding a~option of COW-bundling legislation in Illinois said:
[C)ar-r~nta1 companies have raised their rates in
Illinois, where the ban on COllision waivers took
effect Jan. 1. Hertz raised its prices by 8 percent in
Illinois an~ by 2.5 to S percent elsewhere in
anticipation ot a decline in waiver sales to American
Express·s 22.1 million car~holders. Alamo and BUdget
have also followed Hertz·s lead by raising prices in
Illinois, but no othar major company has raised prices
across the board. S
Our analysis of the CDW issue comes to a difterent
5 Amena~d House Bill 106S § 3(5).
6 Herainatter we refer to measures that would restrict tha
offering ot a distinct COW product as "CDW-bundling ll measures, in
recognition of their practical effect.
7 The•• options include purchasing no insurance and
assuming the full risk (llgoing nakad ll ), purchasing COW, relying
on personal automobile liability insurance that extends to rented
cars, an~ using coverage provided by a third party such as a
credit card provider. Initially, credit card providers extended
these benefits to hol~ers of their "prestige" cards, such as
Ilgo1d," "platinum," and corporate cards. Recently, however,
American Express extended rental car damage coverage to its basic
"green" card. other credit card companies are ey.pected to follow
suit. The B~cotd, ~an. 15, 1989, at B2, col. 2.
8 N,Y. Times, ~an. 7, 1989, § 1 at ~2, col. 1.
More recently, a Hertz spok~sman has indicated that due to a
New York CDW-bundling law due to go into effect on April 1, 1989,
"the company's rates will go up about st, or $3 to $4 per day for
rentals in New York." N.Y. Daily Ne"'s, Feb. 13, 1989, at 23.
-~- The Honorable Peter von Reichbauer March 27, 1989 conclusion from that reached in the NAAG Guidelines. 9 According to the Guidelines, COW sales are troubling in part because consumers lack adequate information and they encounter deception or high pressure at the rental counter. 10 However, where eonsumers sufter from insufficient or confusing information, remedies requiring the disclosure of more or better information often may resolve the problem. Providing consumers information on COW may be more affective and less costly than requiring that COW be sold in the rental bundle regardless of whether consumers want it. ll . .Accordingly, we believe that a leqislature considerin; regulation of COW ought first to determine whether information now conveniently available to consumers permits rational decisionmaking with respect to cow. In the event that the legislature determines that currently available information is inadequate, it then ought to explore fully the efficacy of information-generating measures. 12 ror example, the Washington state Senate has voted to adopt a bill, substitute Bill 5148, aimed at increasing consumers' information concerning rental car liability and COW information. This bill would require clear and conspicuous disclosure of renter's liability and COW availability in separate attachments to rental contracts and in signs posted at the place where the renter signs the rental agreement. On the .g The Guidelines make three alternative legislative proposals, two of which would irrevocably allocate most of the risk of dama9. to or loas of a rental car to the rental car company. The final legislative proposal woul~ permit a rental car company to hold consumers liable tor damages reSUlting trom their negligence or intentional misconduct provided that the rental car company offered to sell to consumers a waiver at a regulated price related to the company's loss experience. ~ NAAG Guideline 3.1. 10 See generally NAAG Guideline 3.1 (c) and following discussion. 11 ~ Beales, Crasv.'ell & Salop, "The Etficient RegUlation of Consumer Information," 24 J. of L. & Econ. 491 (1981). )2 The authors of the NAAG Guidelines state that they ao "not believe that this [CDW] information gap can be filled by more disclosures .... " Comment to NAAG Guideline 3.1(0). No explanation is offered for this belief. Nevertheless, if this conclusion is supportecl, traditional law enforcement efforts might be adequate to prevent deception or unfairness in the marketing of COW. These alternatives are worth exploring in detail before concluding that mandated purchase of CO\~ is the propQr solution to the problem of unwanted purchase of CDW.
The Honorable Peter von ~eichbauer March 27, 1989 -5- other hand, it consumers are encounterin9 unfair or deceptive marketing practices at some car rental counters, the most direct and efficient remedy may be law enforcement action against the offendere. Prohibition of Security Beguirernent a Another provision of the aill states that "(t)he rental company ~ay not requeB~ or require a deposit or other security for damaqe to th~ vQhicle durin9 the rental period or pending resolution of any dispute.,,13 ThUS, tor exarople~ under the Bill a rental car company would be prohibited from securing the lending of an automobile worth thousands of dollars through a "hold" on a consumer's credit card account, even it the hold were limited and the consumer manifested informed consent. If enacted, this proviaion may incr.as~ the number of instances in which rental car companies are unable to obtain payment tor damages for Which the Bill makes the renter responsible. Rental ear companies may then have no recourse but to increase rental rat.s to cover any increase in unpaid charges, effectively requiring honest and careful consumers to Dear debts incurred by less scru~ulous and less careful persons. 14 w. note for your consideration that although the NAAG Task Forc~ expressed concern regarding certain rental car companies' practices relating to deposits, credit card holds, and the like, the NAAG Guidelines would not bar these practices qenerally. The approach adopted in the NAAG Guidelines, instead, tends to focus on ensurinq adequate disclo5ure ot and consumer consent to daposits, credit card ~ccount holds, and similar rental car company requirements. IS This approaCh, although not cost~free, entails fewer costs to consumers than would De imposed by the Bill. ConelupiQP It is not clear that the Bill would provide net benefits to consumers. We hope you will taka into account the prospect that the changes in liability tor damaged rental vehicles, ~, the mandatory "bundling" of COW into the rental car rates, could mean, on balance, higher rental prices tor consumers. In 13 House Bill 1068 § 3(4). 14 Further, the proscription of security-taking, insofar as it may lead so~e drivers to conclude that they have a lesser financial stake in avoiding all harm to rental cars, may result in reduced care by some consumers. l~ Seed e,g., NAAG GuidelineJ,4.
The Honorable Peter von Reichbauer March 27, 19S9 -6- addition, we suggest thot you consider whether it is advisable to shift to some eonsumers part of the losses that may be caused by other consumers, as may result from the provisions of the Bill relatinq to the holding of security. We hope that these comments will help you in your determination of whether the Bill is likely to achieve the goal of protecting consumers and tosterinq a competitive environment in the ear rental industry. We appreciate the opportunity to comment. Sincersly, /1. k kU../t'~ anet M. Gr~ iractor an Franciseo Regional Office Enelollures
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