Connected and automated vehicle (“CAV”) developments in Washington are likely to pick up speed as 2021 rolls in. Indeed, a new presidential administration, new agency leadership, and a new Congress may drive new CAV regulation while also spurring innovation in an industry that many believe can enhance road safety, mobility, and accessibility. For instance, John Porcari, a Biden-Harris campaign advisor and former U.S. Deputy Secretary of Transportation under President Barack Obama, recently indicated that transportation agencies under President Biden would prioritize innovation and technological change and adopt a federal framework for autonomous vehicles.

Lawmakers and regulators, furthermore, will have the opportunity to build on some of the initiatives that picked up speed during the fall of 2020, such as the Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act (H.R. 8350) (“SELF DRIVE Act”), the National Highway Traffic Safety Administration’s (“NHTSA”) AV TEST tool, and NHTSA’s request for comment on its proposed framework for Automated Driving Systems (“ADS”) safety. Additionally, the Federal Communications Commission’s (“FCC”) adoption of rules to modernize the 5.9 GHz Band could spur the deployment of CAV technology, and the new administration may reinvigorate inter-agency efforts to examine consumer data privacy and security issues posed by CAVs, as well as CAV-related developments in infrastructure. This post looks down the road ahead for CAV developments in Washington.

THE NEW ADMINISTRATION’S ROADMAP

Although Washington has pushed forward some CAV-related initiatives in the last four years, the Trump administration largely took a hands-off approach to regulating the sector. That is likely to change with the incoming administration. For context, the Obama administration put forth the first-ever federal CAV policy in 2016. The Trump administration has been viewed as rolling back that effort, including with its “AV” guidance, most recently in AV 4.0 (which was less regulatory guidance and more regulatory aggregator, as we describe here). Given the Biden-Harris administration’s emphasis on innovation and a federal framework for CAVs, it is likely to pick leaders in transportation departments and agencies, whose approach will be more like the Obama administration’s.

The first of these picks, U.S. Secretary of Transportation Designee Pete Buttigieg, recently remarked on the new administration’s “historic opportunity” to “deliver policies and resources” in the transportation sector that “serve all Americans,” “while continuing to ensure the safety of travelers and workers alike.” He furthermore pointed to his experience with “re-imagin[ing] how vehicles and people move through the city” as Mayor of South Bend, Indiana. In his earlier presidential campaign, Mr. Buttigieg called for the U.S. to lead the world in zero-emission autonomous vehicles and for “a strong federal role for regulations and oversight”—ideas that will likely influence the U.S. Department of Transportation (“DOT”) under his leadership. The heads of the other agencies relevant to CAV policies, including NHTSA, the FCC, and the Federal Trade Commission (“FTC”)— have yet to be nominated.

While the full leadership team is still being assembled, the Biden-Harris administration has already signaled how it may promote and regulate CAVs. For instance, “The Biden Plan To Invest In Middle Class Competitiveness” and “Build Back Better: Joe Biden’s Jobs and Economic Recovery Plan for Working Families” both emphasize deploying connected vehicle technologies to improve road safety, innovating in manufacturing, and modernizing infrastructure. As noted in the first of these two plans, the incoming administration has committed to an annual one billion dollar competitive grant program to help five cities adopt smart technologies, such as CAVs, to serve as models for the rest of the country. The competitive grant program builds on the Obama administration’s Smart-City Challenge. At the same time, the Biden-Harris administration has indicated it will also direct DOT to work with labor unions to develop a plan to help workers affected by this automation. The incoming administration has additionally committed more generally to accelerate the development of innovative transportation technologies, such as electric vehicles, charging stations, technologies that promote clean energy, and other related infrastructure.

The timeline of such advancements (as well as those discussed below) is uncertain due in large part to the immediate priority of responding to the COVID-19 pandemic.

THE STARTING POINT – FALL 2020 INITIATIVES

Several initiatives from 2020 may serve as a useful starting point for the new administration and Congress. These include the SELF DRIVE Act, the AV Test Tool, NHTSA’s ADS proposed rulemaking, and the new 5.9 GHz rules, which we discuss below.

I. Re-Introduction of the SELF DRIVE Act

This past fall, Rep. Bob Latta (R-OH) reintroduced the SELF DRIVE Act. A previous iteration of the SELF DRIVE Act passed out of the House of Representatives unanimously in 2017, but stalled in the Senate at the end of 2018 due to opposition over safety and security provisions. Over the past two years, some lawmakers have tried to advance bicameral, bipartisan federal legislation to regulate CAVs (in part discussed here), but this fall’s bill has not gained widespread support. For instance, Rep. Debbie Dingell (D-MI), a strong supporter of the 2017 bill, did not support the reintroduced version because it was unlikely to be considered in committee or the full Congress before the end of the current term. Rep. Dingell said she planned to work with stakeholders through the end of 2020 on new CAV legislation, which she expected would be ready for introduction early next year. According to Reps. Dingell and Latta, safety will be a top concern in the next CAV bill.

While the current iteration of the SELF DRIVE Act is unlikely to pass, its provisions highlight the key concerns likely to shape future federal CAV legislation. According to a joint statement issued by Rep. Bob Latta and Republican Energy and Commerce Committee leader Rep. Greg Walden (R-ORE), this legislation is necessary for the U.S. to win the “global race” on CAV technology. The two lawmakers emphasized that CAVs have “limitless potential to drastically improve the lives of Americans,” including by “increasing mobility for seniors and self-sufficiency for those with disabilities to providing contactless deliveries during the COVID-19 pandemic.” To that end, the legislation is drafted to “strike[] a critical balance of ensuring safe development and deployment of [CAVs] while keeping the U.S. at the forefront.” In its current form, the SELF DRIVE ACT would clarify the state and federal governments’ roles with respect to CAV regulation, establish a Highly Automated Vehicle Advisory Council, impose requirements on manufacturers to develop certain cybersecurity and privacy plans, and provide for CAV-specific exemptions from Federal Motor Vehicle Safety Standards. Key provisions include:

  • Preemption: The SELF DRIVE Act expressly preempts states from regulating the design, construction, or performance of CAVs, but preserves states’ control in areas of registration, licensing, driver education and training, insurance, law enforcement, crash investigations, safety and emissions inspection, and dealership regulation.
  • Highly Automated Vehicle Advisory Council: The bill would establish a Highly Automated Vehicle Advisory Council to (i) advance transportation access for the disabled and for populations traditionally underserved by public transportation services, (ii) devise best practices for cybersecurity, data security, and consumer privacy, and (iii) address labor, employment, and environmental issues stemming from CAVs.
  • Cybersecurity Plans: The SELF DRIVE Act requires vehicle manufacturers to develop a cybersecurity plan that includes: (i) a written plan describing the process for detecting, responding to, and mitigating cyberattacks and other similar incidents; (ii) processes for limiting access to CAV systems and employee training and supervision; and (iii) the identification of an officer or individual tasked with managing cybersecurity.
  • Privacy Plan: The bill requires CAV manufacturers to develop a written privacy plan describing its practices with respect to: (i) the collection, use, sharing, and storage of information gathered about vehicle owners or occupants, and the choices such owners or occupants are offered regarding that information; (ii) data minimization, de-identification, and retention of vehicle owners or occupants’ information; and (iii) the application of the privacy plan to entities with which the manufacturer shares information. CAV manufacturers are required to notify vehicle owners and occupants about the privacy policy. However, when the information about owners/occupants is either (i) anonymized or encrypted or (ii) altered or combined such that it cannot reasonably be linked to the CAV from which it was retrieved, the privacy policy need not include the process or practices regarding such information.
  • Exemptions: The bill authorizes DOT to grant exemptions to CAV manufacturers from some Motor Vehicle Safety Standards, which have traditionally required vehicles to have human operators. The number of vehicles per manufacturer that may be exempted would increase over time, with 25,000 vehicles in the first twelve-month period, 50,000 vehicles in the second twelve-month period, and 100,000 vehicles in the third and fourth twelve-month periods.

Other provisions impose updates to motor vehicle safety standards (including with respect to safety certifications, rear seat occupant alarms, and headlamps), require the provision of certain consumer information, and prevent CAV-related licensing from discriminating against those with disabilities. The increased focus on individuals with disabilities has been noted. Indeed, the reintroduced version of the bill, as compared to the previous version, makes self-driving car standards more inclusive for those with disabilities.

II. AV TEST Launch

Also this fall, NHTSA launched a public online tool, AV TEST, intended to improve safety, testing, and transparency of CAV technology. This online tool is part of the AV TEST Initiative that was launched in June 2020 and seeks to provide the public with data pertaining to on-road testing of CAVs. Nine companies have currently signed on as participants and the number of participating states has doubled since AV TEST’s initial announcement in June, with seventeen states currently participating (Arizona, California, Colorado, D.C., Florida, Georgia, Maryland, Michigan, Nevada, New Jersey, New York, Ohio, Pennsylvania, Texas, Utah, Virginia, and Washington).

Presented as an interactive map, the AV TEST tool allows users to view data such as types of vehicles being tested (i.e. passenger car, SUV, light or heavy truck, bus, shuttle, or delivery robot); top operational speed; type of road on which the test vehicle is operating; whether there is a safety driver (i.e. how the operation can be taken over in an emergency, such as through an in-vehicle human driver or remote monitoring); and information regarding the vehicle manufacturer, site coordinator, and site operator.

AV Test is indicative of NHTSA’s efforts to encourage data-sharing among industry and governments; it is projected to become more robust and comprehensive as more stakeholders participate and additional data is collected. These efforts also come at a time when public enthusiasm for CAV technology appears to be on the rise. According to a recent survey, 19% more Americans are interested in CAVs now than before the start of the pandemic. This statistic is in line with, and may further motivate, the Biden-Harris administration to increase its focus on innovative technologies.

III. Request for Comment on Automated Driving Systems

On November 19, 2020, NHTSA issued an Advanced Notice of Proposed Rulemaking seeking public comment on a potential framework to govern “the safe behavior” of Automated Driving Systems (“ADS”) in the future. Written comments are due February 1, 2021, which means the new administration will be tasked with reviewing responses.

The focus of the proposed rulemaking is to develop principles for the safe performance of ADS technology. “ADS” refers to certain driving automation systems—those that are categorized as  SAE automation levels 3, 4, and 5. Although NHTSA has taken several regulatory actions to consider ADS development—including by seeking comments last March on ADS design—NHTSA described the most recent proposed rulemaking as “a significant departure from the regulatory notices NHTSA has previously issued on ADS.” NHTSA is now “looking beyond” existing Federal Motor Vehicle Safety Standards  and “their application to novel vehicle designs”; instead NHTSA “is considering the creation of a governmental safety framework specifically tailored to ADS.”

To that end, NHTSA has identified four “primary functions of ADS” to be the focus of its attention: (i) sensing (i.e., how ADS receives information about its environment through sensors); (ii) perception (i.e., how ADS detects and categorizes other road users, infrastructure, and conditions); (iii) planning (i.e., how ADS analyzes situations and makes decisions); and (iv) control (i.e., how ADS executes driving functions to follow its plans). NHTSA seeks comments on how to develop a framework that ensures safety, mitigates risks, and promotes ADS deployment with respect to these four functions. NHTSA additionally seeks comments on the best type(s) of administrative mechanisms to carry out the framework (e.g., non-binding guidance or regulations).

Although the current administration has promoted several initiatives with respect to ADS technology and other CAV-related activities, NHTSA has been relatively hands-off with actual regulation, as discussed above. The closing of the comments period for this proposed rulemaking may present an opportunity for the new administration to push forward a regulatory framework for certain CAV technologies.

IV. FCC Reallocation of Vehicle Safety Spectrum in the 5.9 GHz Band

In November 2020, the FCC adopted new rules in its “Modernizing the 5.9 GHz Band” proceeding. In particular, the FCC’s action reallocates spectrum in the 5.9 GHz Band that was previously reserved for an intelligent transportation system (“ITS”) known as Dedicated Short-Range Communications (“DSRC”) in two significant ways. First, the new rules maintain the 5.9 GHz band’s upper 30 megahertz of spectrum (5.895-5.925 GHz) for automobile safety technology but require the deployment of an enhanced automobile safety technology known as cellular vehicle to everything (“C-2VX”) to replace DSRC devices by the end of a one-year transition period. Second, the new rules repurpose the lower 45 megahertz of spectrum in the 5.9 GHz band (5.850-5.895 GHz) for unlicensed operations (e.g., WiFi for connected devices). The FCC has stated that splitting the 5.9 GHz band between ITS and unlicensed uses “puts the 5.9 GHz band in the best position to serve the needs of the American public”—a conclusion that was subject to some controversy.

(a)_The 5.9 GHz Band

By way of background, the 5.9 GHz band has been considered a highly-valued, mid-band portion of radio spectrum. Over twenty years ago, the FCC allocated 75 megahertz of the band for certain vehicle related communications and transportation safety features, including by reserving the band for ITS services and designating DSRC as the particular technological standard. The allocation of the 5.9 GHz band has been a hot political issue in recent years, subject to disagreements among the FCC, DOT, and members of Congress on both sides of the aisle. In the Fact Sheet released with the new rules to reallocate the 5.9 GHz band, the FCC stated that ”DSRC has barely been deployed,” and consequently “prime, mid-band spectrum has gone largely unused.” The FCC further noted that newer radio technologies, such as “cellular to vehicle to everything” (“C-V2X”) have “gained momentum” in the United States and abroad as a means of enabling safety-related transportation and vehicular communications. At the same time, demand for mid-band spectrum for unlicensed operations (e.g., connected devices or Wi-Fi routers) has grown, as we have previously discussed. The net result has been disagreements over the optimal path forward, the technologies to be pursued, and the amount of spectrum that can safely be shared among different use cases.

(b)_Reallocation and Next Steps

As noted, the FCC’s recent decision on the 5.9 GHz band has had a mixed reception. On the one hand, certain stakeholders in the CAV sector have welcomed the increased opportunity to deploy C-2VX technology, and stakeholders in the broader connected devices space have commended the availability of more spectrum for unlicensed uses. On the other hand, some of the same CAV-related stakeholders—and others in the automobile sector—have decried the reduction of spectrum available for auto safety, as well as the phase-out of DSRC. Some groups have urged the FCC to take a more technology-neutral approach.

While the rules reallocating the spectrum have been adopted, that is not the final word. For instance, the FCC in November also issued a Further Notice of Proposed Rulemaking. The notice considers how to address transitioning ITS operations to use C-V2X-based technology and the allocation of additional spectrum for ITS applications in the future. It also proposes technical rules to enable outdoor unlicensed operations across the lower 45 megahertz band after ITS operations have ceased in that portion of the band.

The new rules were adopted by Chairman Pai, with Commissioners O’Rielly and Carr issuing separate statements, while the two Democratic Commissioners Rosenworcel and Starks concurred. Although the Democratic Commissioners generally agreed with Chairman Pai’s approach to the 5.9 GHz band, they expressed concern about moving forward without consensus in Washington. For example, DOT continues to cite worries about the impact of the reallocation of the band on transportation safety. Because one of the two Democrats is likely to be named Acting Chair or full chair in January (discussed here), their interest in seeking greater consensus may guide further developments on the 5.9 GHz band.

THE ROAD AHEAD

Increased cooperation among agencies may guide CAV-related developments under the new administration. For instance, agency regulation of data privacy and security may require collaboration between agencies. While NHTSA governs roadways, the FTC is charged with consumer protection. In recognition of their joint responsibilities with respect to privacy issues, NHTSA and the FTC held a workshop in 2017 on “Connected Cars: Privacy, Security Issues Related to Connected, Automated Vehicles.” A Biden-Harris administration may accelerate such collaborative efforts.

The initiatives outlined above show the focus that has been placed on CAV-related developments over the last few months and opportunities for the Biden-Harris administration to further these developments with an interdisciplinary approach. Commentators in this field have expressed optimism that the time is ripe for regulatory and legislative advancements under the Biden-Harris administration and a new Congress.

This blog post is a part of our Connected and Automated Vehicles Series. For more on connected and autonomous vehicles and our team, please visit Covington’s CAV Toolkit. We also invite you to visit our 2020 Election Toolkit. The toolkit is a repository of our firm resources on the election, where you can navigate through various event invitations/recordings, advisories, blog posts, and other content. This information is not intended as legal advice. Readers should seek specific legal advice before acting with regard to the subjects mentioned herein. Covington & Burling LLP, an international law firm, provides corporate, litigation and regulatory expertise to enable clients to achieve their goals. This communication is intended to bring relevant developments to our clients and other interested colleagues. Please send an email to unsubscribe@cov.com if you do not wish to receive future emails or electronic alerts.

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Photo of Jennifer Johnson Jennifer Johnson

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as co-chair of Covington’s global and multi-disciplinary Internet of Things (IoT) group. She represents and advises content distributors, broadcast companies, trade associations, and other media and technology entities on…

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as co-chair of Covington’s global and multi-disciplinary Internet of Things (IoT) group. She represents and advises content distributors, broadcast companies, trade associations, and other media and technology entities on a wide range of issues. Jennifer has more than two decades of experience advising clients in the communications, media and technology sectors, and has served as a co-chair for these practices for more than 15 years. On IoT issues, she collaborates with Covington’s global, multi-disciplinary team to assist companies navigating the complex statutory and regulatory constructs surrounding this evolving area, including legal issues with respect to connected and autonomous vehicles, internet connected devices, smart ecosystems, and other IoT products and services.

Jennifer assists clients in developing and pursuing strategic business and policy objectives before the Federal Communications Commission (FCC) and Congress and through transactions and other business arrangements. She regularly advises clients on FCC regulatory matters and advocates frequently before the FCC. Jennifer has extensive experience negotiating content acquisition and distribution agreements for media and technology companies, including program distribution agreements with cable, satellite, and telco companies, network affiliation and other program rights agreements for television companies, and agreements providing for the aggregation and distribution of content on over-the-top app-based platforms. She also assists investment clients in structuring, evaluating, and pursuing potential investments in media and technology companies.

Photo of Rebecca Yergin Rebecca Yergin

Rebecca Yergin practice focuses on a broad range of privacy, data security, technology, and communications issues. In particular, Ms. Yergin counsels technology companies on federal and state privacy and data security laws and regulations, including in the healthcare space. She also assists clients…

Rebecca Yergin practice focuses on a broad range of privacy, data security, technology, and communications issues. In particular, Ms. Yergin counsels technology companies on federal and state privacy and data security laws and regulations, including in the healthcare space. She also assists clients in negotiating commercial transactions relating to content distribution, and she advises clients on Federal Communications Commission compliance issues. Ms. Yergin’s practice furthermore focuses on the regulatory ecosystem for the Internet of Things (“IoT”), including connected and automated vehicles.

Photo of Nira Pandya Nira Pandya

Nira Pandya advises private and public companies on venture capital financings, mergers and acquisitions, joint ventures, strategic investments, and other corporate transactions. She also represents emerging companies in general corporate matters, including entity formation, corporate governance, and securities law compliance.