On February 3, the Department of Transportation (“DOT”) and the National Highway Traffic Safety Administration (“NHTSA”) unveiled their anticipated announcement regarding connected vehicle technology. DOT and NHTSA announced their intention “to begin working on a regulatory proposal that would require V2V [Vehicle to Vehicle] devices in new vehicles in a future year, consistent with applicable legal requirements, Executive Orders, and guidance.”
As an initial step, NHTSA will complete its analysis of its V2V research to date, including addressing concerns over privacy and cybersecurity. DOT and NHTSA provided no time-line. The process of developing a proposal responding to public comments and issuing a final rule could take as long as the remainder of the Obama Administration.
In addition to affecting manufacturers’ future planning for new vehicles, the announcement will also have an impact on the Federal Communications Commission’s consideration of whether to open the 5.9 GHz spectrum designated for V2V communications to unlicensed WiFi devices. For several years, that spectrum band has been set aside for V2V communications that enable crash avoidance technologies with the potential to substantially reduce motor vehicle crashes. Recently, there has been debate over whether to continue to hold the spectrum for upcoming V2V technology or to open it up for sharing by WiFi devices. By stating its intent to promote V2V, NHTSA and DOT are reinforcing the view that V2V technology remains a safety priority and that the spectrum and infrastructure used to support it should be protected.
Regulating in the space of connected and autonomous mobility is complicated. The federal Vehicle Safety Act, which was first enacted in 1965, is structured around a fleet of mechanically-driven motor vehicles. The Act authorizes NHTSA to promulgate performance-based standards applicable to motor vehicles and motor vehicle equipment. NHTSA, following up on a Congressional mandate, has been considering how to address the plethora of vehicle-based electronic and software systems, while simultaneously being careful not to inhibit innovation or cause unanticipated safety risks.
In the related area of distracted driving, NHTSA has issued a series of guidelines applicable to in-vehicle technologies, such as navigation systems. NHTSA intends to issue similar, non-mandatory guidelines applicable to portable devices. Although a DOT request to expand the definition of “motor vehicle equipment” in the most recent Transportation Reauthorization Act was unsuccessful, NHTSA is continuing to act under its current statutory authority. In a letter to House Transportation and Infrastructure Subcommittee Chairman Petri, DOT claimed regulatory authority over portable device applications providing driving direction and route navigation, since – in the agency’s view – the “application would be an accessory to the motor vehicle (by way of its use with the motor vehicle).” The agency also noted its broad authority to provide guidance on motor vehicle safety to consumers, private industry and other government agencies.
State governments have also entered the fray by enacting legislation to allow autonomous vehicles to operate on public roads under certain conditions and subject to state safety regulations. Under the Act, states may regulate aspects of vehicle performance that NHTSA does not regulate without raising federal preemption issues, but they lack the technical expertise and national reach of the federal agency. NHTSA has issued guidance to the states, and in the process has even suggested that a failure to comply with its guidance could potentially be considered in the future to constitute a safety defect subject to the agency’s recall authority.
By beginning work towards mandating V2V technology, DOT and NHTSA are clearing a path to ensure that: (1) motor vehicle safety remains a top federal government priority; (2) DOT and NHTSA remain the primary regulators in the space; and (3) ongoing guidance, regulation and policy continue to be based on research and science – even if that science takes time to develop and may impede more immediate demands, such as the growing need for more WiFi spectrum.