Proposed Changes to Texting Ordinance a Disappointment

In October, the Austin City Council considered a new ordinance to ban texting while driving. Numerous concerns were raised. The ordinance passed, but enactment was delayed until January 1, 2010. That was to allow for public education, and to review the concerns raised.

Discussion since then has focused on two primary problems with the ordinance.

First, the ordinance is vague and confusing. It isn't entirely clear what is prohibited and what is permitted. For instance, if you sync a note to your iPhone and glance at it later while driving, would that be a violation or not? It's hard to say.

Much of the confusion is based in the atrocious – borderline nonsensical – definition of an "electronic message" (§ 12-1-1) that was adopted:

ELECTRONIC MESSAGE means a self-contained piece of digital communication that is designed or intended to be transmitted between physical devices. An electronic message includes, but is not limited to, a text-based communication, a command or request to access an internet site, or other data that uses a commonly recognized electronic communications protocol.

One would hope this definition would be ground zero for revision.

The second main concern is that the ordinance is overly broad and prohibits actions that might be done reasonably and safely. For instance, the ordinance generally permits you to listen to MP3 music while driving, which you'd expect. It would not, however, allow you to use a streaming Internet music service such as The discrepancy doesn't make sense, would be confusing to drivers, and is bad policy.

Since passage, the ordinance has been discussed in four different public meetings, before various City committees and commissions. Two citizen commissions have adopted recommendations on ways to improve the ordinance.

The Austin City Council will review the ordinance at their December 17 meeting (agenda item 90) and consider some changes.

You can see the proposed changes here:

Unfortunately, they aren't as good as we hoped. They fix one problem, but at a cost of making another tragically worse. The changes also largely ignore the recommendations made by the citizen commissions.

Only two things change. Let's take the easy one first. The current ordinance allows you to make a phone call, but doesn't allow you to receive a phone call. Seriously! The proposed change at lines 18-19 fixes that by allowing you to do both.

The second change, at line 13, extends the prohibition to include all applications. This reduces the confusion problem by making almost every use of the phone illegal. Every example I've cited above (a synched note, streaming Internet radio, MP3 music) are now flat out prohibited. That's certainly one way to eliminate confusion – just say "no" to everything. The only thing you will be permitted to do with a handheld phone is make and receive phone calls.

(There are some small exceptions carved out in the affirmative defenses. You can, for instance, use the navigation or GPS function of your phone but only if it is "affixed to the vehicle". But you can't use the same affixed phone as a music player. How stupid is that?)

So while this change reduces the "confusion" problem (by making everything illegal), it completely explodes out the "overly broad" problem (by making everything illegal).

At this point, I'm left wondering why the City Council doesn't just change subsection (A) simply to say:

A driver of a motor vehicle may not use a wireless communication device for any purpose other than to engage in a telephone conversation.

That is the most honest, direct formulation of what this ordinance really says. This is no more or less restrictive than what's proposed now, and it's certainly a lot clearer.

Even with the messy language, there is a clear, quick fix for the problem. You can add language to limit enforcement of this ordinance only as a "secondary action". That means you must be doing something with your phone that is causing you to exibhit signs of distraction or other poor driving behavior. Only then could you be cited for a violation. This allows strong enforcement when drivers use the phone in a dangerous or distracting manner, while preserving uses that may be done safely and reasonably.

This approach was endorsed by both the Urban Transportation Commission and the Community Technology and Telecommunications Commission. Unfortunately, the recommendations were not accepted into the ordinance language.

There has been a lot of discussion about this ordinance over the past two months, including several suggestions for improvement. I think the City Council should seriously consider additional steps to fix the wireless device ordinance. It's too broad, and the proposed changes changes make that worse. It should include a mechanism such as "secondary action" language, to make the ordinance strong but sensible.

If you have thoughts on the matter, let the City Council know. The item will be taken up at their meeting this Thursday, December 17.


Comments have been closed for this entry.


The problem with any ordinance like this is that it is addressing a particular manifestation of driver distraction, which is the real underlying problem. Once the city deals with this, something else will emerge, and they'll need to deal with that. And they'll leave some other forms of driver distraction (such as children bickering in the back seat) completely unaddressed.

This ordinance obviously has loopholes you could drive an SUV through. In the nonsensical spirit of this language, I could bring a dumbphone and an iPod Touch (essentially an iPhone without the cellular radio, which probably places it outside this ban, although the fact that it has wifi makes even that ambiguous) into my car, use the Touch for many of the purposes that this ordinance forbids, and stay on the right side of the law.

"Secondary action" seems to enshrine in law the joke "it ain't illegal until you get caught." That strikes me as a moral hazard: it invites people to be just irresponsible enough not to get caught. At best, it forces everyone else to be extra vigilant, and collectively take on the responsibilities that the irresponsible party is shirking. That said, it will be difficult for cops to catch anyone texting (or frobnicating a phone in any way) in isolation from more egregious violations anyhow.

Ban the use of any device in your HAND while driving

I've avoided blogging on this as there really isn't much to add that makes any sense once your starting point is allowing people to use handheld devices that are not fixed in someway to the car, for any purpose.

It is reasonable to argue that a handheld telephone call distracts the driver in ways in which a conversation with another person in the car does not, the fact that this is the starting point, holding the device in their hand is simply wrong and evidently dangerous.

It goes without saying these days that when you are driving up Mopac in the left lane, cruising just under or over the speed limit, if the car in front of you is doing 50MPH and there is nothing in the center lane, that person will be on a telephone call, and 99% of the time holding the phone. Heading west on Chavez, down where it splits to go to Lake Austin and Mopac, if someone passes you doing 50MPH, and then at the last minute cuts in to take Mopac, they will be talking on, and holding a phone.

As well meaning as the city is to make up for the glaring lack of action by the state, this ordinance should be withdrawn and pressure applied to fixing the problem at the State level by banning the use of ANY device in your hand while driving, that would include phones, mp3 players, hair straighteners, brushes, etc. etc.. Why is it Texas doesn't see this as a problem where most European Countries and many US states have already taken action ?

I'm minded of the line in the Unforseen, to paraphrase "we are an American group of people who are used to owning cars and not having a bunch of sons and bitches telling us what to do with them".

Because banning any device in my hand won't solve the problem...

You assume that irresponsible drivig is caused by device usage and not driver irresponsibility. As a responsible driver I can use a cellphone without distraction. I understand when it is appropriate to look at the phone and when to look at the road. Any device includes radios, climate controls, cb radios, gps navigation devices, asthma inhalers, stick shift knobs etc. There are far worse hinderances to driving like spacing out that involve no devices but your own brain. This is not an epidemic. This is a knee-jerk response spun in a manner to ensure re-election amongst constituents who only hear the hype about the millions of people at risk from zombie cellphone drivers lurking in the shadows. The real problem is people not taking responsibility for their actions and end up blaming the cellphone instead of themselves. Let's not forget the number of devices including laptop computers that cops use on the road with virtually no negative consequences. If you want to reduce traffic accidents and fatalities then up the admission bar to the community of drivers. There will always be something to distract drivers and there will always be accidents. Let's just use the reckless driving statutes already in effect and increase enforcement of them to solve the problem. Oh and I wrote this without any mistake driving up mopac. All while avoiding two cars entering the highway at 30 mph without the use of their cellphones.