December 5, 2000

Driver Distraction And The Use Of Wireless Phones And Other In-vehicle Technologies

Holland & Knight Newsletter
Jonathan M. Epstein

The National Highway Traffic Safety Administration (NHTSA) recently held a public meeting on driver distraction and the role of in-vehicle technologies (Telematics). While specific federal regulations restricting use of Telematics are not imminent, NHTSA will likely recommend that drivers not talk on the phone or use other Telematics while driving.

NHTSA Public Hearing

On July 18, NHTSA sponsored a public meeting on driver distraction and the role of Telematics. Telematics include not only wireless phones, but also in-vehicle navigation systems, systems allowing access to email and or the World Wide Web, and other electronic interactive systems. At the meeting, NHTSA assembled a considerable body of scientific literature on the issue of driver distraction. Rosalyn Millman, Deputy Administrator of NHTSA, sent a clear message that NHTSA did not believe driver education alone was sufficient response by the industry to the new risks posed by Telematics, stating that:

"[Manufacturers and service providers] are responsible for understanding and assessing their products’ risks to their customers and others on the highway . . . are responsible for understanding the safety implications of their devices; designing features to mitigate risks; and providing effective consumer information to resolve any remaining risk."

According to NHTSA, an estimated 25% of all automobile accidents involve driver distraction. Further, while NHTSA admits evidence directly linking wireless phone use to accidents is largely anecdotal, some studies show a linkage to increased risk. NHTSA is also concerned about driver distraction from new in-vehicle navigation devices and e-mail systems.

Future Regulation or Voluntary Standards

In the short term, NHTSA plans to issue consumer information advice that wireless devices not be used while driving, and will continue with several studies. New federal requirements do not appear imminent. NHTSA could regulate equipment installed in vehicles by original equipment manufacturer, but it lacks jurisdiction over wireless phone use.

Industry groups continue to work on consumer education and voluntary guidelines or standards. The Cellular Telecommunications Industry Association (CTIA) has a driver-safety campaign and CTIA-certified phones flash safety reminders and are designed for hands free use. The Alliance of Automobile Manufacturers is working on guidelines on how information can be transmitted without causing driver distraction. Strong voluntary industry standards could preempt any perceived need for government standards.

Domestic and International Legislation

In the United States, in the absence of federal guidance, states and municipalities may act independently; and, internationally, many countries have already enacted legislation in this area. According to the National Conference of State Legislatures, at least 37 states have considered some form of regulation of wireless phone or other Telematics use, ranging from total prohibition while driving, requiring hands-free operation, to requiring adequate safety instructions. Currently, three states, California, Florida and Massachusetts have enacted limited restrictions. At least five municipalities require hands-free use of wireless phones while driving, and New York City prohibits taxi-cab drivers from using wireless phones while driving.

Use of hand-held wireless phones while driving is prohibited in a number of countries, including, Austria, Brazil, Israel, Italy, Japan, Norway, Portugal, Spain and Taiwan. Canada and Great Britain are currently considering legislation.

Effect on Product Design & Liability

Telematics designs are already moving toward hands-free designs that minimize driver distraction. Some manufacturers of navigation equipment have "lock out" features that do not allow routes to be programmed while driving. The product liability exposure of a company that failed to incorporate safety features could be significant – as manufacturers may be held strictly liable for harm caused by a product that is "unreasonably dangerous" because of design defects. In addition, adequate warnings and instructions should be incorporated into user manuals.


Manufacturers and providers of Telematics (including wireless phones) need to watch this issue. Minimizing driver distraction should be the key factor in designing products that can be used while a vehicle is in motion. Further, manufactures should ensure that safety features, warnings and instructions are adequate.

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