(Editorial note: This article first appeared in Bloomberg Law)
As self-driving cars gain traction on the roads across the country, unanswered questions of safety, cybersecurity, and liability are arising and state and local governments are anxiously exploring the answers. Dentons public policy advisors Eric J. Tanenblatt and James A. Richardson discuss the top five legal and regulatory issue to watch in 2019.
Fully a decade after the launch of Google’s self-driving car project—a one-time moonshot that’s since blossomed into the world’s most sophisticated driverless technology stack and the United States’ first commercial autonomous ride-hailing service—America still lacks a comprehensive regulatory framework to govern the safe operation of the technology.
Both the opportunities and challenges in deploying these road-going robots have a shared, if unlikely, nexus in federal authorities’ practiced light touch, which the industry has said has allowed the technology to flourish without the oppressive yoke of red tape.
But not everyone is so comfortable with the feds’ laissez-faire approach, and anxious state and local governments have begun exploring increasingly complex and sometimes conflicting answers to the looming, still unanswered questions of safety, cybersecurity and liability.
Indeed, it’s this tension between the federal government’s circumspection and state and local governments’ nervous restiveness that will define automotive autonomy this year. Whether the federal government finally fills the leadership vacuum or states supersede the century-old authority paradigm, it’s clear that the days of hands-off governing are fast concluding.
As automated vehicles at long last progress from unlikely proof of concept to an expected $7 trillion global industry, here are the five legal and regulatory inflection points to watch in 2019.
1. Will Senate GOPers play nice with Speaker Pelosi and company to advance long-stalled federal AV regulatory regime?
When the Republican-controlled House unanimously passed legislation in September 2017 to provide for a basic self-driving legal framework, it appeared finally that the feds would harmonize the disparate and discordant patchwork of state-based rules for autonomous vehicles.
But despite 15 months of horse trading with Democrats, trial lawyers, and consumer safety advocates, a failed half-court buzzer beater by Senate Republicans left the proposal dead on the vine in the lame duck.
Now, with newly installed House Speaker Nancy Pelosi (D-Calif.) driving the House agenda, Congress must start from scratch—if at all.
2. Will states set contingency driver qualification minimums?
Arizona, which vaulted into global headlines when an autonomous vehicle fatally struck a pedestrian last year, lacks professional standards for contingency drivers of automated cars. But the state isn’t alone—in fact, no state has carved out licensing protocols for human drivers of self-driving cars.
Most firms engaged in driverless pilots have internal training programs for their so-called fallback drivers, but no state-mandated uniform training exists. As new pilots flourish across the country, pressure is building on state legislatures or transportation authorities to require new training protocols for contingency drivers of self-driving cars.
3. Will states follow California’s lead and abandon contingency driver requirements?
California gave a first-in-the-nation green light last fall to Waymo, the Google self-driving sister enterprise, to begin testing its self-driving vehicles on public roads without a human in the driver’s seat.
The state Department of Motor Vehicles approved new rules in April that allowed for the strict, carefully defined permitting of fully self-driving vehicles, hoping to regain its longtime edge over other, more permissive jurisdictions. The big question is whether California’s move will trigger a cascading reaction from states similarly eager to lure technology companies and car makers.
4. Will resource-strapped cities levy taxes on autonomous fares?
California’s state legislature authorized the city of San Francisco, pending municipal ballot approval, to levy a new tax on trips taken in autonomous vehicles, opening a potentially huge, new resource vein for local government. Not long after, the District of Columbia passed a bill to trigger a public study of its various motor vehicle taxes and fees.
5. Will FCC repurpose automotive-designated spectrum?
The Federal Communications Commission recently signaled it would reassess how the radio spectrum intended for wireless communications should be allocated, potentially repurposing a band of spectrum that for more than 20 years had been reserved for only automotive applications.
Carmakers haven’t done much with their spectrum share (until recently, at least), which has led technology firms to become increasingly vocal in their desire to see those underutilized airwaves reassigned. Now, the FCC is considering a proposal to allow the spectrum that is currently designated solely for automotive applications to be shared with unlicensed uses, like Wi-Fi, so that valuable spectrum will no longer remain underused.
The move puts the telecommunications and automotive industries on a collision course given the staggering diversity of potential uses for the spectrum and the risk of serious harm that could result from interference caused by other users to automotive applications.
Unfortunately, the collision was inevitable given the length of time needed to develop and implement the types of automotive applications that will use the spectrum and the exponentially increasing demand for wireless broadband services by everyone.