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Motor Carriers and CMV Drivers Beware: The Ban on Using a Hand-Held Mobile Telephone Takes Effect on January 3, 2012

12/29/11

By Matt Stone
In a further effort to reduce distracted driving, the Federal Motor Carrier Safety Administration (FMCSA) has issued rules restricting the use of mobile telephones while driving a commercial motor vehicle (CMV).  The new rules apply to drivers and motor carriers, as well as to school bus operations and vehicles carrying 9-15 passengers not for direct compensation, which are exempt from other FMCSA rules.
Effective January 3, 2012, no driver shall use – and no motor carrier shall allow or require a driver to use – a hand-held mobile telephone while driving a CMV.  To comply with the new rules, it’s important to understand two key points:

• First, use of a hand-held mobile telephone means using at least one hand to hold it to conduct a voice communication, dialing or answering it by pressing more than a single button, or reaching for it in a manner that requires a driver to maneuver so that he is no longer in a seated driving position with his seat belt fastened.
• Second, driving means operating a CMV on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays.

The only exception is for emergencies:  drivers may use a hand-held mobile telephone (or text) while driving when it’s necessary to communicate with law enforcement officials or other emergency services.  Otherwise, drivers may only use a hand-held mobile telephone (or text) when the vehicle has been moved to the side of, or off, the roadway and stopped in a location where the vehicle can safely remain stationary.
Drivers may still use a mobile telephone while driving, but they must use a speakerphone or hands-free device and be able to make or receive a call without having to press more than a single button and without having to reach for the phone.
While CB radios are excluded from the new rules, push-to-talk devices are included.  Likewise, the ban includes using a mobile telephone to enter odometer readings, to synchronize electronic technology and to perform text-to-voice or voice-to-text functions requiring more than a single button touch.
Failure to comply can have substantial consequences.  A driver may be fined up to $2,750 per violation and disqualified.  Employers may be fined up to $11,000 per violation.
Inasmuch as employers are held accountable for the actions of their drivers, the FMCSA advised motor carriers to have a policy or practice in place, making it clear they require compliance with the FMCSA rules.  Therefore, prudent motor carriers will have a policy covering the use of mobile telephones by their drivers (and other company employees).  Such a policy should (a) prohibit the use of a mobile telephone for improper purposes or in a manner that violates federal, state, or local law and (b) establish guidelines for the acceptable use of such equipment.  It’s also a good idea to have drivers sign an authorization, allowing the company to get a copy of their personal mobile telephone records from the service provider in the event of a crash.
If you have questions or would like more information or to discuss drafting a policy that’s right for your company, please contact Matt Stone at 770.818.1411 or mstone@fmglaw.com.