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Texting "Final summary"

Agency Proposal
By the Regulation Room team based on the NPRM
Agency Documents
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Background. Regulation Room is an open government pilot project aimed at increasing the breadth and quality of public participation in the rulemaking process.  It is a collaboration between the Cornell eRulemaking Initiative (CeRI) – which owns, designs, and operates the site – and the Department of Transportation, which has selected Regulation Room as one of its “flagship initiatives” under the Open Government Directive.

From March 31 – May 2, 2010, people could use Regulation Room to learn about and discuss a new rule,   “Limiting the Use of Wireless Communication Devices,” being proposed by the Federal Motor Carrier Safety Administration.  This timeframe coincided almost exactly with the official comment period for the rule. An outreach plan developed by the Regulation Room team used social networking sites like Twitter and Facebook, as well as email and press releases, to try to alert and engage people.  Specifically, the team identified more than 100 potential stakeholder groups. Each received an email 24 hours after the rule opened and a follow-up phone call 10 days later. In addition, we delivered a press release to 73 identified media contacts who would reach various stakeholder groups. Social Network Outreach included identifying over 100 relevant Twitter and Facebook groups. We delivered an invitation to participate via their social network pages and send followup messages at significant points along the way.

On April 27, the team posted a Draft Summary of the discussion. People were  invited to review the summary and suggest additions or changes until midnight, Friday, April 30.  The team reviewed comments received on the Draft, and then prepared the Final Summary that appears below.  On the last day of the comment period (May 3) this summary was submitted, via, to FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) as a formal public comment on the texting ban rule.

2 0 Who participated? During the 34 days the rule was open, a total of 3,665 unique visitors came to Regulation Room. On average, they viewed 3.8 pages per visit and spent 4.24 minutes on the site. Anyone could read material on the site, but registration was required to participate in the discussion. 54 people registered during the time the rule was open.

Based on answers to a survey at registration, 94%  of those who registered (51 of 54) had never submitted a comment in a federal rulemaking. One registrant had submitted a comment;  the other two answered “unsure.”  Of those who registered, 18 people submitted a total of 32 comments, which are summarized below.

A second survey question (which appeared the first time a user wanted to submit a comment) asked people to describe their interest in the rule. 20 people chose to answer this question. 8 of these people selected more than one interest category, which is why the numbers below add up to more than 20.

Based on these responses, members of the trucking industry and members of the general driving public appear to be roughly equally represented. A small number of commenters came from state and local government (other than law enforcement). Here are the responses:

  • member of the driving public:  6  people chose only this interest category; 8 others chose this interest category in addition to one of the categories below.  In general, this summary describes a commenter as a “member of the driving public” if he/she selected only this category.
  • trucking industry owner the company that owns the rights to repayment of the mortgage principal plus interest or operator:  6
  • working for a public transit authority:  0
  • law enforcement:  0
  • working for other state or local government:  2
  • equipment manufacturer or dealer:  0
  • member of an advocacy group:  2
  • researcher or expert:  1
  • other:  3

NOTE:  Regulation Room does not attempt to check on whether people correctly identify their interests.  For this reason, whenever the summary states a commenter’s interest, the description is based solely on information given by the commenter.


Risks of Texting & Level of Support for a CMV Commercial Motor Vechicles Texting Rule in General

No one challenged FMSCA’s assessment that texting is a highly risky type of driving distraction, although one commenter (affiliated with Truck Driver News blog) was critical of the VTTI Virginia Tech Transportation Institute study for including “near misses” in their risk calculations: a near miss is not an accident. The principal the amount that is borrowed, not counting the cost of interest or fees disagreement came over whether a texting ban for CMV Commercial Motor Vechicles operators was the appropriate government response.

Most commenters, who addressed the wisdom, in general, of the proposed rule and identified themselves as members of the driving public, favored a texting ban:

  • One (a member of an advocacy group for bicyclists and pedestrians) reported that the group’s members consider texting while driving to be extremely dangerous activity. He/she felt that other countries are more successful at reducing driving-related injuries because they are very serious about removing root causes like texting.
  • Another (who also described him/herself as “an advocate of Turn Off Cell B/4 Driving!”) urged driver and legislator attention to the National Safety Council’s White Paper as providing a clear, scientific explanation that the human brain is not capable of driving while talking on a cell phone because both activities use the same part of the brain. (He/she did not discuss texting, specifically, in the context of the White Paper.) This commenter was very concerned that it was taking so long to address cell use while driving; he/she felt that “the quickest, easiest solution” is to take existing “Click It or Ticket” laws “and simply ADD the provision “Click Off Cell!”
  • A third criticized the propensity of many drivers to think that they can text safely even if it is dangerous for others. This commenter was willing to accept texting if a CMV Commercial Motor Vechicles breaks down or the driver needs other assistance, but emphasized that the communication should be brief.

One member of the driving public disagreed. Noting that any distraction while driving (e.g., drinking coffee or eating) can cause an accident; this commenter was concerned that banning cell phone use would be only the beginning. He/she wondered “where do we draw the line?” This commenter believes that “millions of people” can safely use their cell phone while driving, and that their freedom should not be limited “for the inabilities of others.” He/she argued that for people who spend a lot of time driving, cell phone use may be their only chance to communicate with loved ones, do business, or make other important calls. This commenter referred to cell phone use generally and did not specifically address the activity of texting.

4 0 Most commenters who addressed the wisdom, in general, of the proposed rule and identified themselves as affiliated with the trucking industry, were critical of FMCSA’s proposal:
  • One (associated with the TruckDriver News blog) cited “multiple other studies” showing that any driver distracted by texting is 20%-50% more likely to have a safety critical incident, than non-texting drivers. In addition, he/she reported, other studies show that in incidents involving a CMV Commercial Motor Vechicles and a non-CMV, the non-CMV operator is at fault more than 80% of the time. (Specific studies were not identified.) From these data, the commentor that the majority of drivers in the trucking industry are safer and more conscious of their surroundings than the average general driver. Indeed, according to this commenter, trucks are at their all-time low in fatality rates. By contrast, in his/her experience, CMV Commercial Motor Vechicles drivers are frequently “cut off, nearly side-swiped, [or] rear ended” by drivers of passenger vehicles who are distracted by using electronic devices.  (He/she also voiced serious concerns about enforceability, described below).
  • Two others agreed with FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) about the serious distraction problem but objected to singling out a particular group of drivers. One of the two pointed to the existing heavy regulation of truckers, but noted that most of these rules are “at least tangentially appropriate given the nature of the vehicle driven.” By contrast, texting is engaged in by all classes of drivers — and so should be dealt with by state legislation that covers all vehicle operators. (This commenter also voiced serious concerns about enforceability, described below). The other, the owner the company that owns the rights to repayment of the mortgage principal plus interest of a small trucking company, felt that non-commercial vehicle drivers make up more of the distraction then commercial drivers and felt that something should be done for them too.
  • A fourth opposed any legal ban on texting. This commenter argued that existing laws adequately cover injuries to people and property from accidents; he/she felt that law enforcement officials should put more attention toward criminal activities.

One commenter (who works for state or local government other than law enforcement) responded to concerns about singling out CMV Commercial Motor Vechicles operators.  He/she agreed that a texting ban should apply to all drivers, but argued that FMCSA’s proposal is “a good start.” This commenter also addressed the concerns about enforceability; his/her response appears below.

5 0 Definition of “Texting”/Scope of the Proposed Rule

The comments on this part of FMCSA’s proposal (new 49 CFR Code of Federal Regulations § 383.5 and 49 CFR Code of Federal Regulations § 390.5) fell into two categories: concern that some serious distractions were being excluded, and identification of parts of the definition that commenters thought were ambiguous.

Three commenters were concerned that the definition excluded activities comparable to texting:

  • One (member of the driving public) saw no legitimate distinction between texting and entering a phone number or GPS Global positioning system (A space-based global navigation satellite system that provides location and time information anywhere on Earth) information (subsections (2)(i) & (2)(iii) of the proposed definition).
  • Another (a researcher or expert) questioned why the prohibited activity is limited to “entry of alphanumeric characters” (first line of proposed definition). This approach apparently excludes uses like electronic gaming that are just as dangerous as texting. He/she suggested an alternative: Prohibit any activity with an electronic device that engages hands, eyes, and brain – and then state the specific exceptions.
  • A third (a trucking owner the company that owns the rights to repayment of the mortgage principal plus interest or operator) argued more broadly that “the exceptions undo the proposed rule” because they pose serious complications for enforcement. For example, a law enforcement officer would not be able to determine if a driver is typing a text (prohibited) or dialing a telephone number (permitted).

One commenter (member of the driving public) urged more generally that the rule be a “clear and simple” prohibition against engaging in phone calls or texting while operating a motor vehicle.

6 0 Two commenters suggested changes to make the status of certain activities completely clear:
  • One (who did not respond to the interest question) would like to see use of social media websites such as Facebook and Twitter specifically addressed in the definition. The proposed language may include these services, but explicit language would be better.
  • Another addressed the exemption for “using an in-cab fleet A group of motor vehicles owned or leased by businesses or government agencies management system or citizens band radio” (subsection (2)(ii) of the proposed definition). This commenter (a truck owner the company that owns the rights to repayment of the mortgage principal plus interest or operator who is also a Licensed Amateur Radio operator) suggested adding the phrase “or utilization of equipment by FCC Licensed Radio operators.” He/she thinks there will be confusion because the current language uses the term “citizens band radio” – a non-licensed communication device – “and does not go one step further to include the use of licensed devices such as Amateur, GRMS or Commercial Band radio (i.e. company radios).”  He/she notes that some Amateur Radio operators provide valuable services in time of disasters (e.g., Hurricane Katrina) and other have been used to communicate information to state and federal authorities through direct and/or relayed means. The equipment they use has a mode that can relay text-type messages. Although he/she does not advocate use of this mode while driving, this commenter points out that it may be necessary in emergency situations – and notes that many current or proposed state texting bans specifically exclude Licensed Amateur Radio operation.

7 0 Enforcement

Multiple commenters were concerned with how a texting prohibition would be enforced.

One (trucking owner the company that owns the rights to repayment of the mortgage principal plus interest or operator) worried that the rule would create the potential for law enforcement abuse.  He/she gave two possible scenarios:  (1) a law enforcement official just decides to pull over a truck and accuse the driver of texting, requests to see the driver’s phone, and the driver refuses, prompting a ticket and road side inspection; (2) same facts except that the driver hands over the phone, officer sees that a text was sent 45 minutes ago, driver says he pulled over to send the text, but when officer asks for proof from the log book, driver realizes he did not log the 3 minutes in the rest area to send the text.  Another (trucking owner the company that owns the rights to repayment of the mortgage principal plus interest or operator) expressed concern that the proposed rule not only inappropriately singles out CMV Commercial Motor Vechicles operations, who are already subject to a lot of regulation, but also is unenforceable.

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Commenters suggested three alternative ways to control texting:

  1. Require all cell phones to be programmed to shut down texting, email and internet functions whenever the phone travels faster than 5 or 10 mph. Software now exists to do this, using the phone’s built–in GPS.  Manufacturers should be required to add such code to all cellphones. This solution was strongly endorsed by several commenters. One (who expressed the enforcement abuse concern above) recognized that this approach would affect cell phone use by all occupants of all vehicles, but thought this is a acceptable tradeoff to deal with a major distraction for all drivers and to avoid a “non-enforceable and discriminatory” rule aimed at only CMV Commercial Motor Vechicles drivers.  He would answer the expected outcry from some members of the public by reminding them that driving is a privilege not a right. Another commenter (who self-identified as the President of Morris Area Freewheelers) argued that simply making cell phone use illegal would be as ineffective as current drunk driving laws. “This technological problem can be totally solved by technology.” A third (who identified his./her interest in the rule as “other”) thought this was “a wonderful idea.” Finally, a fourth (member of the driving public) felt that the technological solution was far more effective than, e.g., company rules against their drivers’ using electronic devices because such rules are ignored by many employees.
  2. Require that cell phone providers provide customer usage data to law enforcement agencies about the time of the suspected illegal texting.
  3. Require companies that operate CMVs Commercial Motor Vehicles (vehicles owned or used by a business) to report violations by their drivers. The commenter (member of driving public) who suggested this offered the analogy of the NCAA requiring colleges to investigate and self-report violations of athletic conference rules.  Another commenter (the same user concerned about enforcement abuse), doubted the workability of this. Although large carriers have ways of tracking many aspects of CMV Commercial Motor Vechicles operation, he/she is aware of no system that can track cell phone or wireless messages from a driver’s personal electronic equipment. Many fleets have rules against their drivers’ using personal electronic equipment while the vehicle is in motion, but these are hard to enforce, rely on an honor system, and rarely become an issue unless a driver is involved in an accident. The first commenter raised the possibility of requiring in-cab video equipment to monitor driver behavior. The second commenter replied that requiring such equipment would raise driver privacy concerns and be prohibitively expensive for smaller operators.

9 0 A contrasting view was expressed by a commenter who works for state or local government (other than law enforcement.) Recalling the experience with seat belt laws, this commenter believes that “a well-written law with teeth” helps shift people’s views of appropriate behavior. The existence of the law itself provides guidance about what society expects. Although it may be hard to catch most drivers in the act, well-publicized instances where texting caused serious accidents and the driver responsible was seriously punished will eventually transform society’s attitude towards texting just as it did with the use of seat belts. The important thing is a law with “clear guidelines and suitable penalties.”

However, another commenter (trucking owner the company that owns the rights to repayment of the mortgage principal plus interest or operator) strongly criticized the penalty approach in the proposed rule. He/she notes that suspension of operating privileges can happen merely for the “act of texting” without any consideration of what consequences, if any, resulted.  Given that the CDL Commercial Driver's License (a license required to drive any vehicle that weighs over a certain amount, carries hazardous waste, or carries over fifteen passengers) is “a persons way of making a living, feeding his/her family and staying off the federal unemployment lines,” he/she argued that such a drastic penalty is not justified unless texting caused an accident involving property damage or injury – and even then only when synchronization of the vehicle’s on board recorder and the texting device confirms the time of texting. He/she contrasts the proposed penalty with a conviction for drunk driving which, according to this commenter, results in only a “slap on the wrist” in most states as far as the driver’s CDL Commercial Driver's License (a license required to drive any vehicle that weighs over a certain amount, carries hazardous waste, or carries over fifteen passengers) status is concerned. Finally, this commenter worried that an additional federal rule is problematic given the number of current federal and (often varying) state rules for CMV Commercial Motor Vechicles drivers that are pushing many drivers out of the business. He/she predicted added litigation costs for both drivers and government entities as a result of a rule that leaves it “as a judgment call on the part of the enforcing officer.”

This concludes the Summary of Discussion.

10 0 Comments on the Draft Summary. Shortly after the draft summary was posted, an email was sent to everyone who registered, altering them of the posting and inviting their help in creating the final summary for submission to FMSCA. A similar email was sent to groups that were part of the initial outreach.  Anyone could comment on the summary, whether or not they had participated in the original discussion.

Two people (both of whom had previously participated in the discussion) commented on the draft.  One suggested that we add references to specific sections of the proposed rule to assist the agency’s analysis of the comments.  We have added those references where possible.  The second person strongly took issue with the position of those who questioned the need or appropriateness of banning texting while driving.  He/she did not suggest that the draft summary was inaccurate or incomplete, but instead reaffirmed the existence of evidence that driving and texting is unsafe because both activities involve the same brain functions.

This concludes the submission of the Regulation Room team on behalf of those who participated in the online discussion of  “Limiting the Use of Wireless Communication Devices.”