May 30, 2019
Emerging Technologies Washington Update
This Week: FMCSA and NHTSA seek comments on automated driving systems, FTC publishes agenda for online ticket sales workshop, FCC releases 2019 Report on Broadband Deployment, new OSTP reports to inform national spectrum strategy and 5G deployment.
Week in Review
The House and Senate are in recess this week coinciding with Memorial Day. Before leaving last week, the Senate reached agreement on a long-stalled disaster aid package and passed it overwhelmingly. The House had already left Washington, but leadership attempted to pass the bill by unanimous consent. Rep. Roy (R-TX) remained in town on Friday to object. Rep. Massie (R-KY) did the same this week, delaying passage until after the recess.
The Senate also passed the TRACED Act, bipartisan legislation sponsored by Senators Thune (R-SD) and Markey (D-MA) aimed at curbing abusive robocalls, last week 97-1 with Senator Paul (R-KY) voting no. The bill boosts FTC and FCC enforcement tools, including authorizing fines of up to $10,000 per call. House Energy and Commerce Committee Chairman Pallone (D-NJ) has his own legislative proposal, the Stopping Bad Robocalls Act.
Reps. Peters (D-CA) and Gottheimer (D-NJ) led 47 House Democrats on letter to Speaker Pelosi (D-CA) last week asking congressional leadership to establish a bipartisan net neutrality working group. The lawmakers argue that the Save the Internet Act, which passed the House last month 232-190, stands no chance of passing the Republican-controlled Senate. House Energy and Commerce Committee Ranking Member Walden (R-OR) and other Republican leaders announced support for such a group. The Speaker’s office has not responded.
Elsewhere, 47 members of the National Association of Attorneys General sent a letter to leaders of the House and Senate Judiciary, House Energy and Commerce and Senate Commerce Committees urging Congress to reform Section 230 of the Communications Decency Act to permit state and local authorities to enforce criminal laws against companies that provide platforms that enable unlawful activities to occur. “Addressing criminal activity cannot be relegated to federal enforcement alone simply because the activity occurs online," the letter argues. “The authorities in our states must be allowed to address these crimes themselves and fulfill our primary mandate to protect our citizens and enforce their rights.”
When the Senate returns on Monday, it will take up Andrew Saul’s nomination to be Commissioner of Social Security before moving to a number of other pending judicial and executive branch nominations, including Rita Baranwal’s nomination to be an Assistant Secretary of Energy. The House returns on Tuesday and is expected to pass the Senate-passed supplemental disaster aid bill, sending it to the President for his signature.
FMCSA and NHTSA Seek Comments on Automated Driving Systems
On Tuesday, the Federal Motor Carrier Safety Administration (FMCSA) published an Advanced Notice of Proposed Rulemaking (ANPRM) requesting public comments on what Federal Motor Carrier Safety Regulations need to be amended, revised, or repealed to facilitate safely introducing Automated Driving Systems (ADS) in commercial vehicles. Comments are due in Docket No. FMCSA-2018-0037 no later than August 26, 2019. FMCSA states its preference at this time to rely on the development of voluntary consensus standards.
FMCSA initially sought public comments in 2018 and received nearly 100 comments by the May 2018 deadline. It already has authority to issue rules for ADS-equipped commercial motor vehicles. FMCSA also notes that there is no FMCSA regulation that requires a human operator, or even a “driver” and seeks comments from both the public and States for SAE Levels 4 and 5 operations, which are highly automated without any intervention from a human driver. States receive funding under the Motor Carrier Safety Assistance Program (MCSAP) and must adopt FMCSA safety rules. The areas of inquiry are: (1) must there be a human driver?; (2) commercial driver license (CDL) endorsements; (3) hours of service; (4) medical qualifications; (5) distracted driving; (6) drug and alcohol testing; (7) inspection, repair, and maintenance; (8) roadside inspections; (9) cybersecurity; and (10) confidentiality of shared information.
At the same time, the National Highway Traffic Safety Administration (NHTSA) published an ANPRM requesting public comment on Removing Regulatory Barriers for Vehicles with Automated Driving Systems. Comments are due in Docket No. NHTSA-2019-0036 no later than July 29, 2019. This ANPRM builds on comments received in response to a 2018 request for comments on regulatory barriers to testing, compliance certification, and compliance verification of ADS-DVs. This rulemaking proceeding will address crash avoidance; future rulemakings will address crashworthiness and Federal Motor Carrier Safety Standards (FMVSS) governing telltales, indicators, and warnings. The crash avoidance FMVSS will be for ADS-Dedicated Vehicles that lack traditional manual controls (steering wheel, acceleration and brake pedals, and transmission gear controls).
NHTSA explains that barriers within the crash avoidance standards fit within one of three types: (1) the standard requires a manual control; (2) existing test procedures specify that manual controls will be used; and (3) the definition or use of terms such as “driver” in the FMVSS that assume human control of vehicles. NHTSA notes its interpretation in 2016 that an ADS is a “driver” for purposed of FMVSS, and that this third category will be addressed in a future document. Much of the ANPRM focuses on how NHTSA will be able to test ADS-DVs to ensure they meet the revised standards.
FTC Publishes Agenda for Online Ticket Sales Workshop
The Federal Trade Commission has released the agenda for its June 11 workshop examining online ticket sales. Commissioner Slaughter will deliver opening remarks before Eric Budish, Professor of Economics at the University of Chicago Booth School of Business delivers a keynote. Throughout the day, four panels will examine: bots and the BOTS Act; other consumer protection issues around ticket availability; the adequacy of ticket price and fee disclosures; and consumer confusion about what and from whom tickets are purchased. Associate Director of the FTC’s Divisions of Advertising Practices Mary Engle will deliver closing remarks and attorneys from the Division will moderate the panels. Panelists will represent industry, state and international regulators, consumer advocacy groups, and academia.
The FTC announced the workshop last year noting that “the online event ticket industry has been a frequent topic of consumer and competitor complaints, and FTC staff is seeking public input in advance of the workshop, including possible discussion topics and potential participants.” It was originally scheduled to take place in March, but was rescheduled amid the partial government shutdown.
FCC Releases 2019 Report on Broadband Deployment
Yesterday, the Federal Communications Commission (FCC) released a status report on the state of broadband deployment across the United States. The report found that broadband providers established fiber networks to reach 5.9 million new areas in 2018, exceeding previous records. The report also found that the number of households lacking access to a fixed connection has decreased by more than 18% since 2016. In a statement following the report’s release, Republican Commissioner O’Rielly noted that although there are approximately nine million citizens who lack access to broadband services, “there is no doubt that rapid and robust progress in deployment, particularly in the wireless space, is evident according to the albeit imperfect data we have.” O’Rielly stated he plans to approve the report with the hopes that next year the FCC will have the data necessary to comprehensively evaluate the state of broadband deployment.
Democratic Commissioners Rosenworcel and Starks criticized the report, however. “It is simply not credible for the Federal Communications Commission to clap its hands and pronounce our broadband job done…This report deserves a failing grade,” Rosenworcel commented. Both she and Starks noted that while the report concludes the digital divide continues to narrow substantially, FCC assessments are contradicted by the reality of broadband disparity across the U.S. “The report masks the urgent need for continued and renewed action to address inequities in internet access in rural, tribal, and urban areas of the country,” Starks wrote. Both commissioners also criticized the lack of sufficient data used to compile broadband maps and reports, echoing similar comments they made during the May 15 House Energy and Commerce Committee FCC oversight hearing.
New OSTP Reports to Inform National Spectrum Strategy and 5G Deployment
Today, the White House Office of Science and Technology Policy (OSTP) published two new reports in response to an October Presidential Memorandum on Developing a Sustainable Spectrum Strategy for America’s Future in which the President directed the Secretary of Commerce to, in partnership with other agencies, develop a long-term spectrum strategy for spectrum. The first report, published in partnership with the Wireless Spectrum R&D (WSRD) Interagency Working Group, details Research and Development Priorities for American Leadership in Wireless Communications and identifies three priorities: 1) pursue spectrum flexibility and agility to use multiple bands and new waveforms; 2) improve near real-time spectrum awareness; and 3) increase spectrum efficiency and effectiveness through secure autonomous spectrum decision making.
The second report is on Emerging Technologies and Their Expected Impact on Non-Federal Spectrum Demand and notes that 5G deployment and the continued proliferation of Wi-Fi will enable advances in applications and technologies like self-driving cars, precision agriculture, and smart cities that will lead to unique demands on networks. “Whether ensuring efficient use of spectrum, authorizing innovative satellite constellations, or developing rules of the road to govern co-existence between incumbents and new entrants, it is essential that we provide entrepreneurs and engineers with the spectrum sandbox needed to innovate here in America,” OSTP concludes.
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