Government Regulation of Autonomous and Connected Vehicles: Who's Driving?

The rules of the road are in the process of changing more fundamentally and more quickly than they have at any time during our lifetime. Through no fault of any elected official, political appointee or civil servant, the pace of technological change and the consumer market's desire for that change are putting stress on laws and regulations that seemed entirely appropriate a few short years ago.

Officials across the nation are reacting. While the reactions are far from perfect, there is a good-faith recognition by all that the status quo will not suffice. Moreover (and I will say, happily), the issues don't fit neatly into any traditional liberal/conservative debate. That said, industry and geographic advocacy is at full strength.

Twenty-seven states have enacted some form of autonomous vehicle legislation, seven states have issued executive orders on the topic, and three states have done both. Many states make no bones about the fact that they are aiming to become a hub of innovation in this quintessential transformation.

The federal government, for its part, is attempting to provide guidance though no legislation has passed. The House passed the SELF DRIVE Act unanimously, but the companion AV Start Act has been held up. Both acts exempt commercial trucks, reportedly in reaction to concerns raised by the Teamsters union about the impact of the autonomous trucks on their members.

Since the AV Start Act passed the Senate Commerce Committee in a unanimous voice vote in October 2017, it has failed to reach the Senate Floor in large part due to the opposition of five democratic senators. The concerns of those senators include the fact that (1) the bill indefinitely preempts state and local safety regulations even if federal safety standards are never developed, (2) there is no assurance that the interim framework provides the same level of safety as the current standards, (3) the bill does not provide cybersecurity and privacy protection, and (4) the legislation does not address known problems of safety at lower automation levels. Proponents say no bill is perfect, and that federal uniformity is needed.

The U.S. Department of Transportation (DOT), and through it, the National Highway Traffic Safety Administration (NHTSA), has issued guidance and served as a conduit of communication between industry, state and federal regulators. The most comprehensive review of the present state of these changes is the guidance provided by NHTSA in September of 2017. "Automotive Driving Systems 2.0: A Vision for Safety," (ADS) paves the way for the safe deployment of advanced driver assistance technologies by providing voluntary guidance that encourages best practices, prioritizes safety and provides technical assistance to states and best practices for policymakers.

ADS 2.0: A Vision for Safety

Since publication of ADS 2.0, both industry and regulators have continued discussions on these issues. On March 1, 2018, the US DOT brought together hundreds of transportation stakeholders for a Public Listening Summit on Automated Vehicle Policy. The Summit, which was designed to elicit comments as opposed to encourage consensus included roundtable discussions on the following topics:

• Public Safety and First Responders
• Disability and Accessibility Concerns
• Consumer and Public Education
• Insurance and Liability
• Employment Issues
• Cybersecurity

The Report on US DOT Listening Summit summarizes the roundtable discussions and the views that panelists provided during the public session. The views and opinions in the report do not necessarily reflect the Department’s views, but rather the DOT will consider these perspectives in upcoming AV policy documents, guidance, and strategy. The Department indicates that it plans to address most of the questions and concerns identified in the upcoming Automated Vehicle 3.0 document, which was expected as early as summer of 2018, but has not yet been released.

The iterative process between state and federal regulators and lawmakers and industry will no doubt continue for the foreseeable future. For example, on June 29, 2018, Wisconsin's Steering Committee on Autonomous and Connected Vehicle Testing and Deployment submitted its report to the Governor, which referred heavily to "ADS 2.0: A Vision for Safety." Wisconsin Report Given the far-reaching implications of these inevitable changes to this massive portion of our economy, there are few business that can afford to not track these changes.

Quarles & Brady LLP's July Business Law Training will provide an overview of the current trends and business issues involved with autonomous technology, including the rules and regulations that effect the industry, impacts of joint venturing on IP and potential interruptions to distribution channels.