us-ftc-advocacy-filings-ae766d098b996e0b6cdff5892b522088•FTC Staff Comment to the Hon. Wayne R. Bryant Concerning New Jersey A.B. 3597 to Alter Current Methods of Allocating Costs and Risks of Damage or Theft to Rental Cars
FTC Staff Comment to the Hon. Wayne R. Bryant Concerning New Jersey A.B. 3597 to Alter Current Methods of Allocating Costs and Risks of Damage or Theft to Rental Cars
us-ftc-advocacy-filings-ae766d098b996e0b6cdff5892b522088FTC Staff Comment to the Hon. Wayne R. Bryant Concerning New Jersey A.B. 3597 to Alter Current Methods of Allocating Costs and Risks of Damage or Theft to Rental CarsAdvocacy Filing
.£ FEDERAl. PlAZA. nnd FL.
NEW VOAK. N.Y. 10271
(212) 2M-1200
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FEDERAL TRADE COMMISSION
:-<EW YORK REGIONAL OFFICE aJMMISSJON AUTHORIZED
V890036
March 6, 1989
The Honorable Wayne R. Bryant
The Assembly
State of New Jersey
309 Market Street
Camden, N.J. 08102
Dear Hr. Bryant z
The staff of the Federal Trade Commission is pleased to
have the opportunity to respond to your request for comment
on Assembly Bill 3597 ("the Bill"), which is currently
pending before the New Jersey Assembly. 1 We are providing
these remarks in response to your letter of February 16,
1989. Our comment addresses aspects of the Bill that may
adversely affect consumers. We would be pleased to offer
additional assistance on any particular amendments that are
offered.
The Bill would alter the current methods of allocating
the costs and risks of damage to (or theft of) a rental vehi-
cle. In addition, it would prohibit rental car companies
from requiring renters to provide, during the term of the
rental agreement or pending resolution of any dispute, any
security, deposit, or payment for damage. We are concerned
that parts of these provisions might result in increased
costs to consumers who rent automobiles without providing
significant benefits to the majority of automobile renters or
to the public at large.
The Federal Trade Commission is charged with promoting
competition and protectin~ consumers from unfair and decep-
tive commercial practices. In fulfilling this mandate, the
1 These comments are the views of the staff of the New
York Regional Office and the Bureau of Consumer Protection of
the Federal Trade Commission. They are not necessarily the
views of the Commission or any individual Commissioner.
2 see 15 U.S.C. S 41 et seq.
13/njcn:nt.24h 030889 14: 58
The Honorable Wayne R. Bryant
March 8, 1989
staff of the Federal Trade Commission often submits comments,
upon request, to federal, state, and local governmental
bodie8 to help asseS8 the competitive and consumer welfare
implications of pending policy issues. In enforcing the
Federal Trade Commission Act, the Commission has gained
considerable experience in analyzing the impact of various
private and governmental restraints on competition and the
costs and benefits to consumers of these restraints.
The Commission and its staff have considered other
matters involving the car rental industry. The Commission
recently commented on Guidelines prepared by the National
Association of Attorneys General's Task Force on Car Rental
Industry Advertising and Practices ("NAAG Guidelines").3 The
allocation of liability portion of the Bill is very similar
to portions of these NAAG Guidelines.
Lessor Liability
The Bill would make significant changes in the alloca-
tion of the risk that a rental vehicle will be damaged or
stolen. The Bill would require car rental companies, as an
integral (and therefore not separately billable) part of
every rental transaction, to assume all responsibility for
any damage in most instances,4 and prohibits the offering of
3 Letter from the Federal Trade Commission (Commis-
sioner Strenio not joining) to Robert T. Stephan, Attorney
General, Kansas (February 24, 1989). A copy is attached.
The Guidelines will be further considered by the Attorneys
General at their March meeting.
4 Section 4 provides that an "authorized driver" --
defined as Ha renter who drives a private passenger
automobile rented under the terms of a rental agreement or
any of the following other drivers of the vehicle: the
renter's spouse if the spouse is a licensed driver and
satisfies the rental company's minimum age requirement; any
employee or co-worker of the renter who is engaged in
business activity with the renter and is a licensed driver
satisfying the rental company's minimum age requirement; any
person who operates the vehicle during an emergency situation
or while parking the vehicle at a commercial establishment;
or any person expressly listed by the rental company on the
rental agreement as an authorized driver" -- may be held
( continued •.. )
13/njcrnlt.24h 2 030889 14:58
The Honorable Wayne R. Bryant
March 8, 1989
a separate Collision Damage Waiver ("COW"). 5 In practical
effect, legislative restriction of the offering of a distinct
COW product is tantamount to mandating that car rental com-
panieg bundle COW coverage into every car rental transac-
tion. Any legislatively imposed bundling requirement will
restr~ct consumer choice amonq COW-like coverages of rental
cars, resul ting in some consumers having to bear greater
costs, primarily in the form of higher base prices, than they
otherwise might have incurred to cover the accident and theft
losses statutorily shifted to the rental car companies.
Recent news reports suggest that this may be happening to
4 ( ••• continued)
liable for damage or loss: caused intentionally by an
authorized driver; resulting from an authorized driver's
willful or wanton misconduct, intoxication or drug use
(provided that the driver is consequently convicted in
connection with that intoxication or drug use); that occurs
while an authorized driver is engaged in a speed contest;
where the rental transaction is based on information
supplied by the renter with the intent to defraud the rental
company; or that occurs while the authorized driver is
engaged in a criminal act in which the vehicle usage is
substantially related to the nature of the criminal activity,
or is carrying persons or property for ~ire; or that happens
during unauthorized use of the vehicle outside the United
States or Canada, or while a driver other than the authorized
driver is operating the vehicle. Assembly Bill 3597 S 4.
5 Assembly Bill 3597 S 2 (d).
6 Hereinafter we refer to measures that would restrict
the offering of a distinct COW product as "COW-bundling"
measures, in recognition of their practical effect.
7 These options include purchasing no insurance and
assuming the full risk ("going naked P ), purchasing CDW,
relying on personal automobile liability insurance that
extends to rented cars, and using coverage provided by a
third party such as a credit card provider. Initially,
credit card providers extended these benefits to holders of
their "prestige" cards, such as "gold," "platinum," and
corporate cards. Recently, however, American Express
extended rental car damage coverage to its basic "green"
card. Other credit card companies are expected to follow
suit. The Record, Jan. 15, 1989, at B2, col. 2.
13/njcrrnt.24h 3 030889 14: 58
The Honorable Wayne R. Bryant March 9, 1999 some consumers in at least one state. A recent article in The NeY York Times regarding adoption of COW-bundling legislation in Illinois said: [C]ar-rental 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 and by 2.5 to 5 percent elsewhere in anticipation of a decline in waiver sales to American Express's 22.1 million cardholders. Alamo and Budget have also followed Hertz's lead by raising prices in Illinois, but no other lIlajor company has raised prices across the board. 8 Our analysis of the COW issue comes to a differen§ conclusion from that reached in the NAAG Guidelines. According to the Guidelines, COW sales are troubling in part because consumers lack adequate information and the o encounter deception or high pressure at the rental counter. 1 Where consumers suffer from insufficient or confusing information, remedies requiring the disclosure of more or better information often may resolve the problem. Therefore, providing consumers information on COW may be more effective 9 N.Y. TimeS, Jan. 7, 1999, Slat 52, col. 1. More recently, a Hertz spokesman has indicated that due to a New York COW-bundling law due to go into effect on April 1, 1999, "the company's rates will go up about 9%, or $3 to $4 per day for rentals in New York." N.Y. Daily News, Feb. 13, 1989, at 23. 9 The Guidelines make three alternative legislative proposals, two of which would irrevocably allocate most of the risk of damage to or loss of a rental car to the rental car company. The final legislative proposal would permit a rental car company to hold consumers liable for damages resulting from 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. SiUl NAAG Guideline 3.1- 10 See generally NAAG Guideline 3.1 (c) and follOWing discussion. 13/njcrrnt.24h 4 030999 14:59
The Honorable Wayne R. Bryant March 8, 1989 and less costly than requiring that COW be sold in the rental bundle regardless of whether consumers want it. 11 Accordingly, we believe that a legislature considering 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 eXIl~ore fully the efficacy of information-generating measures. On the other hand, if consumers are encountering unfair or deceptive marketing practices at some car rental counters, the most direct and efficient remedy may be law enforcement action against the offenders. Prohibition of SeCurity Regyirements Another provision of the Bill states that "no security or deposit for damage in any form may be required or requested by the rental company durirJ the rental period or pending resolution of any dispute." Thus, for example, under the Bill a rental car company would be prohibited from securing the lending of an automobile worth thousands of dollars through a whold w on a consumer's credit card account, even if the hold were to be limited to the anticipated cost of the rental and the consumer manifested informed consent. If enacted, this provision may increase the number of instances in which rental car companies are unable to obtain paYment for car rentals or for damages for which the Bill "The Efficient L. & Econ. 491 Beales, Craswell & Salop, Consumer Information," 24 J. The authors of the NAAG Guidelines state that they do "not believe that this [COW] information gap can be filled by more disclosures .... " Comment to NAAG Guideline 3.1 (c). No explanation is offered for this belief. Never- theless, if this conclusion is supported, 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 COW is the proper solution to the problem of unwanted purchase of COW. 11 s..aa Regulation of (1981). 12 13 Assembly Bill 3597 S 6. 13/njc::mt.24h 5 030889 14: 58
The Honorable Wayne R. Bryant March 8, 1989 makes the renter responsible. Rental car companies may then have no recourse but to increase rental rates to cover any increase in unpaid charges, effectively requiring honest and careful consumers to bea1 debts incurred by less scrupulous and less careful persons. 4 We note for your consideration that although the NAAG Task Force 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 generally. The approach adopted in the NAAG Guide- lines, instead, tends to focus on ensuring adequate disclo- sure of and consumer consent to deposit, credit card account hold, and similar rental car company requirements .15 This approach, although not cost-free, entails fewer costs to consumers than would be imposed by the Bill. Conclusion It is not clear that the Bill would provide net benefits to consumers. We hope you will take into account the prospect that the changes in liability for damaged or stolen rental vehicles, ~, the mandatory "bundling" of COW into the rental car rates, could mean, on balance, higher rental prices for consumers. In addition, we suggest that you consider whether it is advisable to shift to some consumers part of the losses that may be caused by other consumers, as may result from the provisions of the Bill relating to the holding of security. 14 Further, the proscription of security-taking, insofar as it may lead some 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. 15 See, e.g., NAAG Guideline 3.4. l3/njcnnt.24h 6 030889 14: 58
The Honorable Wayne R. Bryant March 8, 1989 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 fostering a competitive environment in the car rental industry. We appreciate the opportunity to comment. Sincerely, ~~}$-Michae~ Bloom Director New York Regional Office 13/njcrrnt.24h 7 030889 14:58
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