On February 27, 2019, Covington hosted its first webinar in a series on connected and automated vehicles (“CAVs”).  During the webinar, which is available here, Covington’s regulatory and public policy experts covered the current state of play in U.S. law and regulations relating to CAVs.  In particular, Covington’s experts focused on relevant developments in: (1) federal public policy; (2) federal regulatory agencies; (3) state public policy; (4) autonomous aviation; and (5) national security.

Highlights from each of these areas are presented below.

  • Federal Public Policy. Holly Fechner (Public Policy, Former Senate Policy Director) discussed Congressional efforts to pass legislation related to CAVs. Fechner first discussed two bills introduced in the 115th Congress: (1) the Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution (“SELF DRIVE”) Act (H.R. 3388); and (2) the American Vision for Safer Transportation through Advancement of Revolutionary Technologies (“AV START”) Act (S. 1885).  As Ms. Fechner explained, concerns over safety, federal preemption, consumer privacy, and cybersecurity standards prevented the bills from passing in the Senate.  Looking ahead, Ms. Fechner noted that the lead sponsors expect to introduce new legislation and are identifying vehicles for passage in the 116th Congress.  Ms. Fechner also discussed President Donald Trump’s call for “investments in the cutting-edge industries of the future” and the recent Executive Order on Artificial Intelligence as further indications of interest in this issue.
  • Federal Regulatory Agencies. Sarah Wilson (Product Liability/Consumer Safety, Former Federal Claims Judge, Former White House Senior Counsel) presented on federal regulatory efforts related to CAV issues. Ms. Wilson highlighted the Department of Transportation’s October 2018 Preparing for the Future of Transportation: Automated Vehicles 3.0 (“AV 3.0”), which, most notably, announced that the National Highway Traffic Safety Administration (“NHTSA”) will favor voluntary consensus-based technical standards over mandatory regulation.  Ms. Wilson identified support for AV 3.0 (e.g., industry players who applaud AV 3.0’s flexibility and “technology-neutral” approach), as well as criticisms (e.g., consumer advocacy groups that have proposed alternatives to AV 3.0’s non-binding nature).  She also noted NHTSA’s recent efforts to make its assertions of jurisdiction over related software more explicit.  Finally, Ms. Wilson covered the Federal Communications Commission’s (“FCC”) role in regulating CAVs, particularly through the allocation of spectrum.
  • State Public Policy. Jake Levine (State Regulation/Public Policy, Former Senior Counsel to California State Senator Fran Pavley, Former White House Policy Advisor) detailed the ways in which state policymakers have been active in the CAV space. As we have previously covered, state governments have stepped into the relative void left by Congress and the federal agencies in regulating CAVs.  During the webinar, Mr. Levine explained that, between 2011 and 2017, twenty-two states passed forty-six laws relating in some way to autonomous mobility, and, in 2018, twenty-eight states introduced around another hundred bills.  Mr. Levine discussed the spectrum of CAV regulation across states, ranging from states that exercise relatively heavy-handed regulatory processes (e.g., California) to states that have been focused on clearing the path for innovation (e.g., Arizona, Nevada, and Florida), as well as states with regulatory barriers that are somewhere in between (e.g., Pennsylvania).  Mr. Levine also noted that, while much of the existing CAV regulation at the state level focuses on permitting, an emerging trend in state and local governments appears to be purpose-driven policymaking and legislation.  For instance, legislation in some states is focused on CAV “adjacent issues,” including externalities (e.g., in D.C. and Oregon), infrastructure and taxation (e.g., in California), and emissions (e.g., in California).
  • Autonomous Aviation. Brian Smith (Public Policy/Aviation, Former White House Counsel’s Office, Former Special Assistant, Department of Labor) highlighted regulatory issues within the autonomous aviation space. As Mr. Smith explained, regulation in the autonomous aviation space has proceeded on a different path than regulatory efforts covering CAVs on land.  In some ways, the autonomous aviation space is ahead (g., the existence of critical infrastructure and platforms, as well strong federal preemption).  In other respects, the regulation of the autonomous aviation space lags behind (e.g., the relevant regulatory structure is built around a licensed operator, as opposed to autonomy).  Mr. Smith discussed ways in which legislatures and regulators are trying to play “catch up,” including through passage of the Federal Aviation Administration (“FAA”) Reauthorization Act of 2018 (Public Law No: 115-254), as well as rulemakings by the FAA covering areas such as Remote ID.
  • National Security. Jonathan Wakely (CFIUS/International Trade, Former CIA Political Analyst) discussed national security regulatory considerations related to CAVs. First, Mr. Wakely identified the ways in which the CAV sector implicates national security concerns, including related to foreign access to data, potential military applications of commercial technology, and cybersecurity risks.  Wakely then explained two of the authorities under which the U.S. government may seek to address the national security risks related to the CAV sector: the Committee on Foreign Investment in the United States (“CFIUS”) and export controls.  With respect to CFIUS, Mr. Wakely noted that certain transactions involving companies developing CAVs may be subject to mandatory filings with CFIUS under new rules for foreign investments in “critical technology” companies that were announced late last year.

Please check back here for details on our next webinar in this series: Leveraging AV Data in a Connected World (April 18, 2019).

This blog is part of Covington’s CAV series, which covers developments across the globe. Other recent posts include: