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Cell Phone Use Prohibited

Effective January 3, 2012, the FMCSR restrict the use of hand-held mobile telephones by drivers of commercial motor vehicles. The regulations, which were enacted in an attempt to reduce the number of distracted-driving crashes, fatalities, and injuries, apply to interstate truckers, intrastate truckers carrying hazardous materials, and bus drivers.

Distracted driving, like fatigued driving, is a national epidemic. The National Highway Traffic Safety Administration reports that more than 5,000 people are killed each year in motor vehicle crashes that were reported to have involved distracted driving.

“Distracted driving” is defined as the diversion of a driver’s attention from primary driving tasks due to an object, an event, or a person. Driver distraction is classified into four categories:

  • visual (taking one’s eyes off the road);
  • manual (taking one’s hands off the wheel);
  • cognitive (thinking about something other than the road/driving); and
  • auditory (listening to the radio or someone talking).

The FMCSA’s research shows that using a hand-held mobile telephone while driving poses a higher safety risk than other distracted-driving activities such as eating or adjusting a console instrument. Using a hand-held mobile telephone involves such a substantial risk of danger because all four types of driver distraction are involved (visual, manual, cognitive, and auditory).

The FMCSA concluded that reaching for and then dialing a mobile tele-phone increases the odds of a “safety-critical event” (which is defined as a crash, a near crash, or an unintended lane departure). The odds of being involved in one of these safety-critical events are three times greater when the driver is reaching for an object (such as a cell phone). The odds of being involved in a safety-critical event are six times greater when a driver is dialing a cell phone.

The regulations specify that commercial motor vehicle drivers cannot hold, dial, or reach for a hand-held cell phone. Hands-free phone use is allowed, as is the use of CB radios and two-way radios. More specifically, the regulations prohibit drivers from

  • holding a mobile phone to conduct a voice communication;
  • dialing or answering a mobile phone by pressing more than a single button; and
  • reaching for a mobile phone in a manner that requires the driver to maneuver so that he or she is no longer in a seated, belted, driving position.

Some commentators have argued that the push-to-talk function is no different than that of a two-way radio or CB radio, neither of which was restricted by the regulations. The FMCSA explained that a mobile telephone is a “mobile communication device that falls under or uses any commercial mobile radio service, as defined in regulations of the Federal Communications Commission (FCC) 47 CFR 203.” Because the push-to-talk features use commercial mobile radio services to transmit and receive voice communications, the device is a mobile telephone, and it also requires the driver to hold it. Therefore, by definition, its use while driving a commercial motor vehicle is the same as that of a hand-held mobile telephone and is prohibited. The push-to-talk feature of a mobile telephone can be replaced with the use of a compliant mobile telephone, two-way radios, or walkie-talkies for the short periods of time when communication is critical for utility providers, school bus operations, or specialty haulers. It is important to note that the use of CB radios, two-way radios, and GPS systems is considered to be outside the scope of these regulations.

The regulations specify that drivers cannot use hand-held phones even though they are “temporarily stopped in traffic or temporarily stopped at a traffic control device.” However, a commercial motor vehicle driver is allowed to use a hand-held mobile phone after the driver has pulled the vehicle off to the side of the road and is stopped in a safe location.

The regulations also specify that a commercial motor vehicle driver can initiate, answer, or terminate a call if these tasks can be accomplished by touching a single button on a nearby mobile telephone or on a headset. The action of touching a single button does not require the driver to take his or her eyes off the highway for any extended period of time. The regulations also allow drivers to reach for a compliant mobile telephone, i.e., a hands-free device, provided the phone is within the driver’s reach while he or she is in the normal seated position with the seatbelt on. The regulations specify that reaching for any mobile telephone on the passenger seat, under the driver’s seat, or in the sleeper berth is prohibited. To avoid violating the regulations, a driver can use either a hands-free ear piece or the speaker function of a mobile telephone that is located close to the driver.

The penalties for violation of the regulations are severe. Any violation of the regulations can result in civil penalties on drivers in an amount up to $2,750. The driver’s employer may receive a civil penalty of up to $11,000. A driver who commits two violations within a three-year period will be disqualified from driving a commercial motor vehicle for at least sixty days. A driver who commits three or more violations in a three-year period will be disqualified from operating a commercial motor vehicle for at least 120 days.

Before the regulations became final, the American Trucking Associations (ATA) argued that a trucking company should not be fined for its drivers’ violations if the trucking company took “good faith” steps to ensure compliance. The ATA suggested that the regulation use the word “knowingly” so that it would read as follows: “No motor carrier shall knowingly allow or require its drivers to use a hand-held mobile telephone while driving a CMV.” The final regulations did not, however, include the word “knowingly.” The FMCSA stated clearly that, in accordance with well-settled law, “a motor carrier is responsible for the actions of its drivers.”

There are specific exceptions to the ban on hand-held mobile telephones. A commercial motor vehicle driver may use a hand-held mobile telephone to contact law enforcement or other emergency services for such purposes as reporting an accident or a drunk driver. Furthermore, the Department of Homeland Security recognizes that truck drivers are in a unique position to observe suspicious activity on our highways that may be indicators of potential terrorist activities, including attempts at hijacking hazardous materials. The regulations allow a commercial motor vehicle driver to use a hand-held phone to contact law enforcement to report potential terrorist activities.

Specific exceptions to these regulations include military service members who operate a commercial motor vehicle for military purposes, certain farmers, firefighters, certain commercial motor vehicle drivers employed by a unit of local government, and persons operating a commercial motor vehicle for emergency response activities.

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