Airbnb Inc., the world's fourth-most valuable startup, is testing a legal strategy against its hometown that some see as a template for sharing-economy companies to fend off regulation. Because it operates on the Internet, Airbnb argues, it can't be held responsible if users skirt local laws.
Airbnb sued San Francisco in June after it enacted a measure barring home-sharing platforms from collecting booking fees from hosts who haven't registered their units with the city. Airbnb also sued beachfront Santa Monica in Southern California and is threatening to sue New York over a state bill awaiting the governor's signature. Anaheim, home to Disneyland, dropped its effort to regulate Airbnb less than two weeks after it was sued by the company.
Companies arguing they're merely platforms, not service businesses, isn't novel. Uber Technologies Inc. deploys that defense against regulators in battles over everything from paying drivers to determining who's responsible when passengers get hurt.
Airbnb has added a twist by taking the offensive, asserting that a 20-year-old U.S. law shields it from liability tied to users in the same way eBay Inc. isn't responsible for sales of bootleg recordings or Stubhub Inc. for scalped tickets. Airbnb's online transactions and fees are protected by the Communications Decency Act of 1996 because they are "part and parcel" of its service, it says.
The conflict has emerged as mayors from New York to Paris to Seoul, South Korea, coordinate their responses to the explosion of home-rental and car-hailing apps. Airbnb has faced more stringent regulation and even bans on short-term rentals in Europe, which has no equivalent of the U.S. Communications Decency Act.
A federal judge expressed skepticism Thursday that the San Francisco ordinance setting fines for short-term rental websites that process bookings for unregistered units violates federal law.
The ordinance does not prevent companies such as Airbnb from listing ads for units that are not registered with the city, U.S. District Judge James Donato said. He said it only penalizes the booking of those places through the companies.
Donato made the comments during a hearing on Airbnb's request for an injunction blocking enforcement of the law. He did not immediately issue a ruling.
Airbnb, with a valuation of $30 billion, has garnered support from competitor Expedia Inc.'s HomeAway, as well as a group representing Amazon.com Inc., Facebook Inc. and Google. The Internet Association, whose members also include Uber and ride-hailing rival Lyft Inc., said the dispute has wide-ranging implications for free speech on the Internet.
San Francisco says the company's effort to block the law from taking effect is absurd because it isn't intended to police what rental hosts upload to the website. The ordinance "regulates only conduct -- an unlawful commercial transaction, not speech," the city contends.
"Airbnb and HomeAway attempt to stretch both the Communications Decency Act and the First Amendment beyond all reasonable bounds," the city said in a court filing. The companies wrongly claim that "because their business is online, they are immune from any regulation of their commercial transactions."
It's a tough call who has the stronger argument, said Michael Risch, a professor at Villanova University School of Law in Pennsylvania.
"If Airbnb wins, we will likely see more companies making arguments that generally applicable regulation is barred by the Communications Decency Act," he said.
With San Francisco's median rent for a one-bedroom apartment at $3,550 a month, some landlords are evicting tenants to pursue even more profitable short-term rentals. The city loosened a longtime ban on converting residential units for short-term use last year, while requiring hosts to register.
When the vast majority of hosts failed to comply, the city imposed a fine of up to $1,000 a day on rental platforms for every unregistered host, plus possible misdemeanor charges. After Airbnb sued, the city softened the ordinance to fine the companies only when a stay is booked in an unregistered unit.
Eight in 10 rental units in the city aren't registered and Airbnb is profiting from them, said David Campos, one of 10 members of the city's Board of Supervisors who unanimously approved the revised penalties in June. "Airbnb didn't create the housing crisis, but it certainly has exacerbated it," he said.
Airbnb counters that, by its estimate, 1,200 San Francisco residents have avoided foreclosure by hosting rooms or homes on its platform. Helping people make ends meet is also part of the company's pitch in New York, where it's trying to stop Gov. Andrew Cuomo from signing a law that would fine hosts as much as $7,500 for advertising short-term stays in unoccupied apartments.
Airbnb helped draft San Francisco's law requiring registration -- but without the teeth to enforce it that the city later adopted, according to Campos. He wants home-sharing companies to "follow the rules that they themselves put in place."
"We're going to have to win this lawsuit to make that happen."
Information for this article was contributed by Sudhin Thanawala of The Associated Press and by Eric Newcomer of Bloomberg News.
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