How a Bill Becomes a Law: The Struggle of Autonomous Vehicle Laws in Congress and the Executive Branch
This article in my article series on the issues of regulating autonomous vehicles in the US with material taken directly from my book The Future is Autonomous deals with the failure to pass laws regulating autonomous vehicles in Congress. I describe what the autonomous vehicle industry would ideally like to see in a bill governing AVs. I also include recent developments related to the reallocation of the 5.9GHz frequency band by the Federal Communications Commission (FCC.) This frequency band was given to the Department of Transportation (DoT) in 1999 to be used for Direct Short-Rance Communication (DSRC) for vehicle safety to allow vehicles to communicate wirelessly with other vehicles and roadside infrastructure projects, like smart traffic signals.
Regulating the Autonomous Vehicles Themselves By the Congress and the Executive Branch
The history of the federal government’s legislative oversight over vehicles goes back over fifty years. Seat Belt Assemblies, requiring all vehicles have seat belts, was the first standard for the Federal Motor Vehicle Safety Standards (FMVSS). This standard was created on March 1, 1967. Many more standards have been added since then. While this was the first time it was codified in a law, the federal government was widely considered to have oversight over the vehicles themselves and vehicle safety specifically.
The Department of Transportation (DoT) has said repeatedly they do not favor any technology over another. They adopt a “tech neutral” approach to managing the US’s transportation system. However, new technologies like the autonomous vehicle, need government funding, or at least support, to pass new laws to spur the technology’s development.
People in the autonomous vehicle industry are not asking for a dramatic overhaul of the laws governing vehicles in the US. I spoke with someone in the industry who is heavily involved in the legislative process but has asked his name and work affiliation be kept anonymous. He said they have asked for greater clarity from the federal government on its guidelines related to autonomous vehicles, more exemptions than the 2,500 vehicles currently allowed to each company, and an expedited process of creating updated standards in the FMVSS.
A friend of mine who works on these issues in Congress described the problems. She said there are huge hurdles to establishing autonomous vehicle regulation at the national level. For example, shared autonomous vehicles (SAVs) programs have problems because they don’t meet some of the FMVSS rules. Many of these standards do not apply to autonomous vehicles. For example, the FMVSS requires all vehicles have side mirrors, rearview mirror, and a steering wheel. Assuming the technology is fully mature, none of these things would be necessary in an autonomous vehicle.
She agreed operating an SAV pilot program increases public trust in autonomous vehicles. She compared the issue to a “chicken and egg problem. People won’t trust autonomous vehicles if they haven’t had any experience riding in one, but people can’t get that experience because of outdated laws.”
At this time, autonomous vehicles still have things like a steering wheel, side mirrors, and rearview mirrors because the technology to drive autonomously still needs to mature. There still remains some issues that specifically relate to human drivers that autonomous vehicles cannot comply with.
The current 2,500 vehicle exemptions of the FMVSS is not a significant problem with autonomous vehicles still in the testing and R&D stage in their development. However, autonomous vehicle companies want an expanded list of exemptions because it would be impossible to commercialize these vehicles with only 2,500 vehicles per company.
Preemption often gets mentioned (no state can create tougher laws than the federal law), but the autonomous vehicle industry really just wants greater clarity on the standards. This would resolve the problem with states and different interpretations of “driver.”
Finally, the companies in the autonomous vehicle industry do not want to create an entirely new set of regulations for autonomous vehicles. They want to have an expedited review process for incorporating autonomous vehicles into the existing FMVSS. For example, autonomous vehicles can include all of the current standard items because it doesn’t make sense to push to remove them. Updating the FMVSS can take seven to eight years and they only want to focus on the standards that specifically refer to a human driver.
There have been two proposed bills in 2017. One started in the House and one the Senate. The House bill passed in the House because it was very tightly conceived and only had the three policy preferences from the autonomous vehicle industry. It passed with bipartisan support.
However, once it reached the Senate, it failed to get the required votes to become a law. The Senate typically moves slower than the House. For instance, every time an addition is added to the bill, it can take three months to argue each addition. Therefore, the bills can either run out of time before the Congressional term ends or fail to receive the votes to pass. In this case, a tight bill with bipartisan support became a bill with many partisan additions and the support gradually deteriorated until it ended in failure.
Problems at the national level do not just exist in the Congress. One of the biggest hot button issues related to intra-governmental conflict in the US right now concerns the 5.9GHz frequency band for dedicated short-range communications (DSRC). The 5.9GHz frequency band for DSRC was created in 1999 for the DoT. Using DSRC, autonomous or connected vehicles can use wireless data transmission to communicate with other vehicles and smart infrastructure like smart streetlights or roadside cameras. The DoT retains exclusive rights to use this frequency band because of the benefits to safety and the reduction of traffic congestion.
However, chairman of the Federal Communications Commission (FCC) Ajit Pai, proposed taking over half of the 5.9GHz frequency band for unlicensed equipment, such as WiFi hotspots. OEMs and other autonomous vehicle companies rely on the full 5.9GHz spectrum band for the vehicle’s communications.
This is a problem because the more people using it, the longer a DSRC signal takes to be sent and return to the vehicles. This would make autonomous vehicles less safe and all of the possible reduction of traffic congestion benefits would be reduced.
On November 18, 2020 the Federal Communications Commission (FCC) voted to open the 5.9GHz frequency band to allow for unlicensed Wi-Fi network connectivity. Under this new plan, the FCC will make 45 megahertz (more than half of the spectrum) immediately available for unlicensed Wi-Fi networks. The remainder will be designated for vehicle safety through Cellular Vehicle-to-Everything (C-V2X) technology and not DSRC
Opponents of this rule will certainly ask what incoming president Joe Biden plans to do to fix this situation. Unfortunately for them, it may not be possible or if it is possible it would not be easy. It took the concerted effort of Chairman of the FCC Ajit Pai almost four years to reallocate over half of the spectrum. There are also people from both the Democrat and Republican Parties who voted to reallocate the spectrum.
Once unlicensed Wi-Fi networks are created using the spectrum, it will be even more difficult to change because people will become accustomed to having them. This is one of the primary reasons why it took so long for the FCC. Agency and bureaucratic inertia cannot be easily changed and once an agency policy is created it can be even more difficult to alter.
This reallocation decision could also hurt vehicles produced in the US to compete internationally. Other countries, such as South Korea, Australia, Singapore, countries in the EU, and China could use more of the spectrum for vehicle safety and DSRC. Vehicles produced in the US would not be designed to offer vehicle safety features for DSRC and would be less safe and potentially be less competitive with vehicles produced in these countries.
Autonomous vehicles are a disruptive technology. They have the potential to disrupt many different industries in the US. Cooperation between different government agencies is essential. For instance, there has been positive cooperation between agencies within the DoT and department of Labor (DoL) on working to incorporate the needs of people with vision problems into standards related to autonomous vehicles.
There could also be cooperation between the Department of Education (DoE) and DoT or DoL to ensure that effective job retraining programs are created for people who risk losing their job due to the introduction of autonomous vehicles (such as taxi drivers and delivery van drivers). Current and new job training programs will help to ensure the success of this vital new technology in the US.
Autonomous vehicles represent a revolutionary new way to travel and transport goods, but the autonomous vehicle industry does not want to create new and revolutionary standards for laws that would regulate these vehicles. The more cooperation between different people, organizations, and companies, the stronger the roll-out of these vehicles will be. Enhancing cooperation between different government agencies will also help manage the changes that will come. All of this cooperation will be vital when it comes to competing with China on the global stage.
My next article will complete my article series discussing governing autonomous vehicles by discussing the US’s diplomacy and foreign policy issues related to autonomous vehicles. The US has been used to setting the global standards for new science and technology for decades. However, China is eager to change that trend and begin setting the standards for new technology, including autonomous vehicles. If China is able to set the standards for AVs for things like safety, that would give them the advantage over the US.
If you would like to know kore about the difficulties the US faces creating and passing laws governing new technology, please buy my book The Future is Autonomous from the link below! The book also covers the impact of the trade, security, and economic tension between the US and China on the autonomous vehicle industries in both countries, new business models proposed by CEOs of AV companies, and much more!
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