Everyone knows what texting is, right? Maybe. But a new rule that will have substantial fines and/or operating disqualification for CMV Commercial Motor Vechicles operators must be clear and specific about what behaviors will trigger these consequences. So, the rule has to contain a definition of texting. And here’s the problem: It isn’t so easy to define texting in a way that includes the kinds of distractions 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) wants to target, without also pulling in activities (like making cellphone calls or using GPS Global positioning system (A space-based global navigation satellite system that provides location and time information anywhere on Earth) devices) that the agency wants to deal with in future rulemakings.
The result of FMCSA’s efforts is a definition of texting that definitely covers what people generally think of by the term; but it also covers a lot of other activities. These include updating phone contacts, adding notes or appointments to a PDA, using an electronic calculator, and maybe even reading from an e-book reader like Kindle. All these are likely to be serious distractions if done while driving a 10-wheeler on the interstate — but not what most of us would call texting, and maybe not so different from some other activities that are specifically excluded in the definition. Check out the proposed definition of texting. Make sense? Can you help FMSCA do any better?
More than just texting. We’ve been talking about FMCSA’s proposed rule as “the texting rule,” but its official title is “Limiting the Use of Wireless Communications Devices.” As this title suggests, although the core concern is texting, the proposed rule would cover a wider range of distracting behaviors because of the proposed definitions of electronic devices and texting.
First let’s look at the complete language of the definitions and then we’ll focus on several key phrases.
“Electronic device includes, but is not limited to, a cellular telephone; personal digital assistant; pager; computer; or other device used to input, write, send, receive, or read text.
Texting means manually entering alphanumeric text into, or reading text from, an electronic device.
(1) This action includes, but is not limited to, short message service, e-mailing, instant messaging, a command or request to access a World Wide Web page, or engaging in any other form of electronic text retrieval or electronic text entry, for present or future communication.
(2) Texting does not include:
(i) Reading, selecting, or entering a telephone number, an extension number, or voicemail retrieval codes and commands into an electronic device for the purpose of initiating or receiving a phone call or using voice commands to initiate or receive a telephone call;
(ii) Using an in-cab fleet A group of motor vehicles owned or leased by businesses or government agencies management system or citizens band radio;
(iii) Inputting or selecting information on a global positioning system A space-based global navigation satellite system that provides location and time information anywhere on Earth or navigation system; or
(iv) Using a device capable of performing multiple functions for a purpose that is not otherwise prohibited in this rule.”
Devices. The first thing to notice is that the rule is not limited to activity involving cell phones or smart phones. The definition of electronic device is intentionally broad; FMCSA says it wanted to “focus on the behavior not the device.” Devices that are used to input, write, send, receive, or read text include laptops and electronic notebooks, calculators, e-book readers (e.g., Kindle), hand-held video games, and maybe DVD players. (Of course, the device is only one piece of the definition; all parts of the definition of texting have to be met as well before an activity is prohibited.)
The definition of texting excludes certain types of devices that would otherwise be covered (see below). These exclusions mostly reflect FMCSA’s announced intention to deal with distractions from general cell phone use, and use of GPS Global positioning system (A space-based global navigation satellite system that provides location and time information anywhere on Earth) and electronic dispatching/fleet management devices, in a separate future rulemaking.
Manually entering alphanumeric text or reading text. Because the definition of electronic devices is so broad, it’s especially important to focus on all parts of the definition of texting. The core seems to be the idea of manually entering or reading text. Pretty clearly, then, neither voice-operated text entry nor listening to text (e.g., books-on-tape) is included. This makes sense given FMCSA’s belief that texting is especially dangerous because it involves all three types of distraction: hands off the wheel, eyes off the road, and mind on something else. (See: What are the risks.)
Alphanumeric text isn’t separately defined, but since standard dictionary definitions of alphanumeric include letters, numbers, and characters like punctuation, it seems pretty clear that combinations of symbols :>) would be included. On the other hand, using touchscreen icons seems to be outside the definition. Also apparently not included is viewing pictures/images without text. So, whether watching a movie or video fits the definition seems to depend on whether or not there are subtitles or other text involved. Clearly included are a range of activities that don’t fall within the normal sense of texting. For example,
- updating contacts or address book
- adding information to, or reading it from, a calendar, scheduler, or electronic notepad
- typing in a web address to access the internet
- entering or reading information in an online mapping/driving directions service like Google Maps
- using a calculator, electronic dictionary or translator
Engaging in electronic text retrieval or entry, for present or future communication. This is an especially interesting part of the definition because it’s not clear what its effect will be. Does it exclude any activities that would otherwise qualify as entering alphanumeric text or reading text? Communication isn’t separately defined, but presumably includes communication with oneself (as when a driver updates a contact or writes a grocery list on a phone notepad). Perhaps it excludes activities like reading the song title and artist on an indash radio display?
Excluded devices and activities. Several things that would fall within the definitions of electronic device and texting are expressly excluded from the rule:
- Making or receiving a call, reading a phone or speed-dial number in order to make or receive a call, or using voicemail
- Entering or viewing information in a GPS: Apparently it doesn’t matter whether the device is onboard or free-standing, although there is some question about web-based GPS Global positioning system (A space-based global navigation satellite system that provides location and time information anywhere on Earth) services. The activities needed to access those services on a laptop or smart phone involve “a command or request to access a World Wide Web page” and so would seem to be covered, even though actual use of the service is excluded from the definition.
- Using a in-cab fleet A group of motor vehicles owned or leased by businesses or government agencies management system, or a CB.
These exclusions reflect FMCSA’s plan to deal with these distractions in a future rulemaking.
Also excluded is “using a device capable of performing multiple functions for a purpose that is not otherwise prohibited.” This exclusion is a bit curious, but the purpose seems to be making clear that, for example, drivers can use their smart phone to play music.
Finally, the new Part 390 prohibition would expressly allow texting “when necessary to communicate with law enforcement officials or other emergency services.”