Legal Issues and Emerging Technologies (2022)

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TCRP LRD 59 59 solution; technology that collects real-time passenger crowding data from trains and platforms for integration with mobile apps and in-station displays; wearable technology to promote worker safety and social distancing; and continuous non-UV antimi- crobial light to reduce bacteria/microbes from surfaces.526 After the eight-week proof of concept, successful companies could be chosen for a year-long pilot to deploy their tools at scale.527 X. REGULATIONS The future of mobility presents significant challenges for regulators, who have been grappling with “some of the most disruptive changes in transportation since the invention of the automobile.”528 New and emerging technologies may not fit neatly within the existing regulatory framework. Statutes and rules may need to be amended to allow for the new technology to operate in a particular space. As innovative technology is fur- ther enhanced, regulators must decide how to treat it by creating and developing laws and regulatory frameworks. There are many emerging technologies that transit agencies may be considering: • Vehicle technologies, including clean air vehicles and auto- mated and CVs, and the infrastructure needed to support autonomous vehicles; • Mobility options, including MaaS and MOD, which incor- porate trip and route planning into shared use mobility to provide services such as “first and last mile” multimodal connections; • Systems management and optimization, including EFP technology, real-time information communication, route planning and optimization, and dispatch software; and • Safety security, and risk management for vehicles, includ- ing telematics and remote disabling. There is no universal approach to addressing regulatory issues associated with new and emerging technology. Regula- tors will be tasked with tackling legitimate safety and privacy issues while promoting innovation and entrepreneurship. The necessary legislation and regulation, as well as policy consid- erations, will diverge according to the type of technology in question. Regulations and regulator responses and decisions regarding regulation are discussed at length throughout this digest. The following discussion highlights some of the issues facing public transit agencies when attempting to regulate new vehicle technologies and modes of transportation. It is intended 526 Id. 527 According to the COVID-19 Response Challenge, if the pilot is successful, “the standard route is that the transit agency will issue a competitive RFP, but this will be decided case-by-case and there may be flexibility for agencies to negotiate a contract directly if the product is unique and there is little competition on the market. Most cases will likely result in a competitive solicitation.” See Transit Innovation Part- nership, Frequently Asked Questions, https://transitinnovation.org/faq. 528 See Derek Pankratz, Kellie Nuttall, William D. Eggers, Mike Turley, Regulating the Future of Mobility, Deloitte Insights, Dec. 20, 2018, https://www2.deloitte.com/us/en/insights/focus/future-of- mobility/ regulating-transportation-new-mobility-ecosystem.html. Technology innovations can be used to help manage certain emergency situations and disasters, such as transit strikes, pan- demics like COVID-19, and natural disasters. Some examples of how technology has been used are below. Transit agencies have incorporated technology into their emergency response plans to coordinate vehicles, operators, dispatch, and routing for passenger evacuation and transport. For example, following Hurricane Sandy in October 2012, Rockland County, New York used an interactive GIS mapping tool to provide a common operating picture for emergency re- sponse agencies at the local, county, and state levels as well as the Red Cross and other emergency personnel.520 The tool allowed response agencies to share information on road obstructions and closures; route emergency vehicles and evacuations; and organize, prioritize, and direct efforts to clear major highways and roads.521 During the 2005 transit strike in New York City, technologi- cal advances and the advent of computer technology offered a high level of reconnaissance and a greater ability to monitor and adapt to changing traffic conditions.522 Using traffic surveillance cameras, traffic engineers were able to monitor traffic condi- tions on numerous roadways throughout the region.523 They also implemented a comprehensive data collection plan to pro- vide critical data to assess the operation of the regions roadways, focusing on Vehicle entries and exits into and out of Manhattan, vehicle volumes on key arterials and limited access highways, vehicle occupancy and classification, bicycle/pedestrian usage, and vehicle speeds.524 Some transit agencies have experimented with new technol- ogies to mitigate against the transmission of COVID-19 among passengers. For example, the Transit Innovation Partnership, a public-private initiative launched by the Metropolitan Trans- portation Authority and the Partnership for New York City, created the COVID-19 Response Challenge calling for cutting- edge technology and innovative approaches to help make New York’s public transportation system safer, healthier, and more re- sponsive to customer and workforce needs.525 Eight companies were selected to test their technologies in an eight-week proof of concept. These technologies include: individually-leased fold- ing electric bikes and scooters to expand public transit access; disinfection technology that works with ambient air to provide continuous air and surface protection without harmful chemi- cals or an operator; technology that provides riders and train operators with capacity levels for trains and buses; technology that visualizes disinfection through a colorized powder formula that dissolves into liquid bleach; an air filtration and purification 520 Id. at 78. 521 Id. 522 N.Y.C. Dep’t of Transp., The 2005 Transit Strike: Trans- portation Impacts and Analysis (Feb. 2006), https://www1.nyc.gov/ html/dot/downloads/pdf/transitstrike-1.pdf. 523 Id. 524 Id. 525 Transit Innovation Partnership, COVID-19 Response Chal- lenge, https://transitinnovation.org/challenge/covid.

60 TCRP LRD 59 matter, is the Federal Trade Commission’s jurisdiction over “un- fair and deceptive trade practices [including data security] in or affecting commerce”534 and NHTSA’s “jurisdiction over the motor vehicle equipment that creates this data.”535 As a result, “the vehicles themselves, their component technologies, and the data they create could be subject to FTC, FCC, and NHTSA regulations.”536 An example of a regulatory misalignment is personal rapid transit (PRT) technologies. A commentator has noted that PRT “may run on an elevated fixed guideway but not meet the defini- tion of rail fixed guideway in 49 CFR 659.5, or a fixed guideway 49 USC 5337.”537 While passenger safety rules and regulations may be translatable, the “equipment maintenance and opera- tions would not follow either traditional rail or transit safety standards, protocols, or procedures.”538 When it comes to regulating modal service and operations, multimodal agencies may be better able to absorb a new mode of transportation than single modal agencies that only regulate, for example, taxis. Examples of multimodal agencies include the LADOT, which oversees transit, streets, and taxis through- out the city.539 and Transport for London (TfL), which oversees streets, rail networks, including the London Underground, London Overground, Docklands Light Railway and TfL Rail, as well as public buses, taxis, and other for-hire vehicles in Greater London, England.540 As innovative technology is further enhanced, regulators must decide how to treat it. Local agencies with regulatory authority over competing modes of transportation may favor a sandbox approach to regulation—allowing local jurisdictions to impose their own unique requirements on operations with- in their city limits. This, however, could result in an unwieldy patchwork of regulations that would limit testing and optimiza- tion and inhibit widespread adoption of new technology. B. Lessons Learned from TNCs Since 2012, TNCs such as Uber and Lyft have provided app- based on-demand ridesourcing services in the U.S. In 2014, Colorado enacted the first state-level legislation to authorize and regulate TNC operations.541 Today, every state (except Oregon) plus the District of Columbia has passed some sort of legislation regulating TNCs. Despite providing the same service as taxis 534 15 U.S.C. § 45(a). 535 49 U.S.C. § 30101. 536 “Playing With Fire” An Inter-Agency Working Group Proposal For Connected Vehicle Technology and the DSRC Mandate, 6 J.L. & Cyber Warfare 90, 96. 537 Georgia Dep’t of Transp. comments in response to Non- Traditional and Emerging Transportation Technology (NETT) Coun- cil, Docket No. DOT-OST-2019-0165, www.regulations.gov/ document?D=DOT-OST-2019-0165-0021. 538 Id. 539 Los Angeles Department of Transp., https://ladot.lacity.org/about. 540 Transport for London, https://tfl.gov.uk/. 541 Colo. Rev. Stat. §§ 40-10.1-601, et seq. (added by Laws 2014, Ch. 323, § 6, eff. Jun. 5, 2014). to help practitioners recognize and respond to the areas where government action may be appropriate. A. Regulating New Modes Statutes and rules may need to be amended to allow for a new technology to operate in a particular space. The lack of clear guidance, rules, or regulations around emerging tech- nologies may result in “shoehorning” these technologies into a regulatory framework where they simply do not fit. Other times, the technology leaves regulators flat-footed, as they scramble to keep up with fast-paced emergence of a new technology looking to disrupt the industry, as was the case with Uber and its rapid expansion in cities throughout the United States after its debut in San Francisco in 2009. By necessity, regulators have focused on high-profile, near- term issues, such as on-demand ride-hailing services and AVs. However, legislative action may be the most effective way to deal with the new issues presented by emerging technology. However, lawmakers usually act in response to an issue, rather than in advance of it, as was the case with TNCs. With respect to AVs, currently, there is no federal regulatory framework for the devel opment, testing, or deployment of connected or autonomous vehicle technologies or automated driving systems. Even though the technology is not yet ready for wide scale de- ployment, many states lawmakers are preparing for the future. As of February 2020, twenty-nine states and Washington, D.C. enacted some type of legislation pertaining to development, testing, or deployment of connected or autonomous vehicle technologies or automated driving systems.529 This is up from 2012, when only six states had enacted such legislation.530 New and emerging transportation may not fit neatly into the traditional modal administrations. The lack of modal clarity encumbers the ability of service providers to discern the ap- propriate lead agency. Take CVs, for example. The NHTSA as- serted in their 2014 Advanced Notice of Proposed Rulemaking that “the agency was confident its existing legal authority would cover [V2V Technologies].”531 However, the Federal Commu- nications Commission (FCC) has jurisdiction over “wire and radio,” specifically the 5.9 GHz band used by dedicated short- range communications (DSRC) devices,532 which are para- mount for collision avoidance and vehicle-to-vehicle (V2V) and vehicle-to-infrastructure (V2I) communication in automated and CVs.533 As a commentator notes, further complicating the 529 Nat’l Conference of State Legis., Autonomous Vehicles: Self-Driving Vehicles Enacted Legislation, (Feb. 18, 2020), https://www.ncsl.org/research/transportation/autonomous-vehicles- self-driving-vehicles-enacted-legislation.aspx. 530 Id. 531 Federal Motor Vehicle Safety Standards: Vehicle-to-Vehicle (V2V) Communications, 79 Fed. Reg. 161 (proposed Aug. 20, 2014) (to be codified at 49 C.F.R. pt. 571). 532 47 U.S.C. § 151. 533 U.S. Dep’t of Transp., Safety Band Testing Plans and Technical Info (Sept. 25, 2020), https://www.transportation.gov/ research-and-technology/safety-band-testing-plans-and-technical- info.