Drive to Succeed: Transportation Law Shuts Out Competition

Marc Nda fled the West African nation of Togo with his family in December of 2002.

“I came here with $60 in my pocket,” Marc said.

As an activist in his home country, he was granted asylum in the United States after publishing evidence of exploitation of children by government officials. That made him a target in the one-party ruled state.

Starting over was a challenge for Marc. He spoke no English at the time, and depended on public assistance along with jobs at Walmart, McDonald’s, and Kwik Shop to get his feet under him. But his hard work helped him to earn a Master’s degree and a Doctorate in Business Administration.

In 2015, with his education and insight from a job in a nursing home, Marc saw an opportunity to start his own business: Dignity Home Care.

“In my country, if you want to be successful in a business, you have to bribe people. You depend on some powerful people to allow you to start that business,” Marc said.

“What I found differently [in the U.S.] is, if you have an idea, if you’re smart, if you can innovate, you can be successful.”

Today, Dignity Home Care has more than 200 employees, assisting seniors in the Omaha and Lincoln areas. The business has grown because most seniors prefer to stay in their homes as they age, and it’s more affordable for families and the state than a nursing home.

But Marc’s clients and patients had one problem he couldn’t solve. Almost all of them needed help with transportation for doctor and hospital visits, or for errands related to medical supplies.

While Marc’s company has the ability to provide transportation, state law requires Dignity Home Care to apply for permission from Nebraska’s Public Service Commission to provide medically-related transportation. An approved transportation provider receives a document called a Certificate of Public Convenience and Necessity.

“Currently, if my client is stranded at a hospital appointment, I cannot pick them up. My employee cannot pick them up, because of this certificate,” Marc said.

Initially, Marc felt confident the Public Service Commission would approve his application. He was told his business was well prepared financially and organizationally to offer medical transportation service.

But the elected Public Service Commission isn’t the only group that gets a say in who receives a certificate.

Other transportation companies already holding a certificate are given thirty days to protest new applicants. Transportation companies from across the Omaha metro area filed letters against Marc’s application. That resulted in a hearing in Lincoln—which Marc likened to a lawsuit—at which companies testified in opposition to him.

“They put me on the stand, they cross-examine me, they interrogate me, it’s like a trial, completely,” Marc said.

“Ordinarily, businesses rise and fall on their own merit,” said Meagan Forbes, an attorney at the Institute for Justice, a libertarian public interest law firm. “But by allowing market incumbents and government officials to control entry, Public Convenience and Necessity laws turn the ordinary rules of business on their head.”

In the hearing, opposing transportation companies expressed grievances over Marc’s transportation service competing with their companies, or introducing another transportation provider in areas where they currently operate.

Following the hearing, Marc inquired with the Public Service Commission about his chances of receiving a certificate. They said approval would depend on him negotiating with the other companies, who might cede some territory to him.

“They wanted me to just go in a rural area” where his clients don’t live. “They offered me places like Plattsmouth, some counties that I don’t even know!” Marc said.

“It’s ridiculous.”

Ultimately, Dignity Home Care spent more than $12,000 in legal fees and did not receive a certificate.

“I told my wife that, wow, this transportation thing is like in Togo,” Marc said of the rejection, which occurred “not because we don’t have the means, but because the other companies don’t want us to exist.”

Now, senators on the Nebraska Legislature’s Transportation and Telecommunications Committee are considering a bill to eliminate the certificate process that created hurdles for Marc and Dignity Home Care.

“There’s no state law like this in any other industry in Nebraska,” said Nicole Fox, Director of Government Relations at the Platte Institute.

“Only intrastate transportation businesses need permission from their competitors to offer services, and it’s preventing more businesses from opening than it allows to open.”

Committee chairman Sen. Curt Friesen is sponsoring Legislative Bill 461. It would retain Public Service Commission regulation of insurance, inspection, and rates for transportation companies, but repeal the certificate requirement, similar to a law passed in Missouri in 2012.

“The consumer will continue to be protected, but the existing businesses are not protected from increased competition,” Friesen told the committee.

At a February hearing, Marc testified in support of LB461. He said many of the opponents were the same companies that attended his certificate hearing.

“This country has a free market. People should not be afraid of competition,” Marc said.

“Competition is good for the community.”