It's Getting Hot in Here — Nelson Law LLC

It’s Getting Hot in Here: Regulators and Politicians are Turning Up the Heat on OEMs Regarding the Safety and Capabilities of Their ADAS and ADS

This is part three of a three-part series on the marketing of automated and autonomous driving systems to the public, and the impact of that marketing on public perception and understanding. Check out part one on “Autono-trust” and part two on “Common ADAS Terminology.”

OEMs are facing mounting pressure on multiple fronts as regulators and politicians are increasingly scrutinizing the safety and actual functional capabilities of their autonomous driving systems. To this end, the California Department of Motor Vehicles formally accused Tesla of engaging in deceptive practices around its advertising and marketing of Autopilot and FSD, its driver assistance systems.

In filings submitted to California’s Office of Administrative Hearings on July 28, 2022, representatives of the California DMV wrote:

Instead of simply identifying product or brand names, these “Autopilot” and “Full Self-Driving Capability” labels and descriptions represent that vehicles equipped with the ADAS features will operate as an autonomous vehicle, but vehicles equipped with those ADAS features could not at the time of those advertisements, and cannot now, operate as autonomous vehicles.

In a worst-case scenario, Tesla could have its license to operate as a vehicle manufacturer and dealer in California suspended or revoked. A representative for the California DMV, however, recently conceded that if the department prevails, it “will ask that Tesla be required to advertise to consumers and better educate Tesla drivers about the capabilities of its ‘Autopilot’ and ‘Full Self-Driving’ features, including cautionary warnings regarding the limitations of the features, and for other actions as appropriate given the violations.” According to the same representative, the California DMV “wants to prevent driver misunderstanding and misuse of new vehicle technologies.”

Tesla said in notices filed with California’s Office of Administrative Hearings last week that it is seeking a hearing and intends to present a defense. It will be interesting to see how aggressively Tesla attempts to defend this matter and what information Tesla will submit at the upcoming hearing.

Federal regulators are, likewise, intensifying their safety probes into ADAS and ADS. In a letter sent to Tesla last week, NHTSA expanded its investigation into the safety and capabilities of Tesla’s Autopilot advanced driver assistance system. Specifically, the letter asked Tesla to “describe the role that the Cabin Camera plays in the enforcement of driver engagement/attentiveness and the manner in which its inputs are factored into the subject system’s operation.” NHTSA further requested that Tesla articulate “the engineering and safety explanation” for certain design decisions regarding automated systems including its Autopilot feature.

The NHTSA inquiry also seeks details as to the process and methodology Tesla uses to generate its quarterly safety reports, which a recent report from the Virginia Transportation Research Council found to be misleading.

Tesla has a September 19 deadline to respond to the bulk of the questions.

Not to be left out of the mix, two U.S. lawmakers who chair subcommittees overseeing auto safety recently requested a staff briefing from NHTSA regarding the status of its probe into safety issues surrounding Tesla’s Autopilot and Full Self-Driving (FSD) features. Congresswoman Jan Schakowsky (D-IL-09), a Senior Chief Deputy Whip and Chair of the Consumer Protection and Commerce Subcommittee of the House Energy and Commerce Committee, and U.S. Senator Gary Peters (D-MI), Chairman of the Senate Subcommittee on Surface Transportation, Maritime, Freight and Ports, said in a letter to NHTSA they were concerned that "federal investigations and recent reporting have uncovered troubling safety issues associated with these systems.”

The lawmakers asked whether NHTSA was looking into the confusion consumers may be experiencing and the unsafe driving behaviors resulting therefrom that the current marketing of these technologies may be causing. Additionally, the lawmakers’ letter requested details on NHTSA’s approach to defect investigations that involve ADAS and whether NHTSA has “the authorities and resources it needs to evaluate and enforce the safety of emerging technologies including ADAS.”

Simultaneously, consumer advocate Ralph Nader released a public statement calling for NHTSA to remove FSD Beta from Tesla vehicles:

I am calling on federal regulators to act immediately to prevent the growing deaths and injuries from Tesla manslaughtering crashes with this technology. The National Highway Traffic Safety Administration (NHTSA) has the authority to act swiftly to prevent such disasters. NHTSA has been investigating Tesla and its Full Self-Driving technology for several years. NHTSA must use its safety recall authority to order that the FSD technology be removed in every Tesla.

Posted August 26, 2022

The opinions expressed in this blog are those of the author(s) and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates. This blog post is for general information purposes and is not intended to be and should not be taken as legal advice.