California Mobile Cellular Statute Revision AB.1785

From ARRL:

California has revised its State statutes addressing mobile wireless
operation. This was done without any advance notice to ARRL
Headquarters from radio amateurs in California. This new statute has
raised serious concerns since its passage by the State legislature and
enactment by the Governor of California for one principal reason: There
was included in the prior mobile cellular statute in California a
complete exemption for licensed Amateur Radio operators, which was not
included in this new legislation. The new legislation completely
replaces the earlier legislation. The new legislation reads as follows:

(a) A person shall not drive a motor vehicle while holding and
operating a handheld wireless telephone or an electronic wireless
communications device unless the wireless telephone or electronic
wireless communications device is specifically designed and configured
to allow voice-operated and hands-free operation, and it is used in
that manner while driving.
(b)  This section shall not apply to manufacturer-installed systems
that are embedded in the vehicle.
(c)  A handheld wireless telephone or electronic wireless
communications device may be operated in a manner requiring the use of
the driver’s hand while the driver is operating the vehicle only if
both of the following conditions are satisfied:
(1)  The handheld wireless telephone or electronic wireless
communications device is mounted on a vehicle’s windshield in the
same manner a portable Global Positioning System (GPS) is mounted
pursuant to paragraph (12) of subdivision (b) of Section 26708 or is
mounted on or affixed to a vehicle’s dashboard or center console in a
manner that does not hinder the driver’s view of the road.
(2)  The driver’s hand is used to activate or deactivate a feature
or function of the handheld wireless telephone or wireless
communications device with the motion of a single swipe or tap of the
driver’s finger.
(d)  A violation of this section is an infraction punishable by a base
fine of twenty dollars ($20) for a first offense and fifty dollars
($50) for each subsequent offense.

Here is the definition of an electronic wireless communications device
in the Bill:

(f)  For the purposes of this section, “electronic wireless
communications device” includes, but is not limited to, a broadband
personal communication device, a specialized mobile radio device, a
handheld device or laptop computer with mobile data access, a pager, or
a two-way messaging device.

While AB 1785 does eliminate the mobile exemption for Amateur Radio
from the prior statute, there is no indication in this definition of
any intention to preclude either two-way private land mobile voice
communications or Amateur Radio communications. The specific reference
to SMRs and pagers is exclusionary rather than inclusive. They are CMRS
facilities, as are broadband PCS devices and two-way messaging devices.
It would be impossible to include Amateur portable transceivers in the
category of “electronic wireless communications device” as defined
in the Statute unless those were actually being used for mobile data
access while the control operator was driving a motor vehicle. Of
course, the principal use of Amateur portable transceivers is for
two-way voice communications.

The legislative record on this Statute indicates that it was intended
to apply to non-voice, non-text services now available on “smart
phones” (such as streaming video), which the former law did not
prohibit explicitly. However, due to some rather poor draftsmanship in
the text of the legislation defining what constitutes an “electronic
wireless communications device,” it is impossible to determine the
universe of such devices that are included in the definition. This is
because the definition above includes the words “but not limited
to” in giving examples of electronic devices that cannot be operated
while also operating a motor vehicle in California.

Furthermore, the foregoing analysis is very technical. ARRL is
concerned that law enforcement officers might interpret the new
statutory language in the Vehicle Code more broadly than we believe was
intended.  Law enforcement officers are not necessarily skilled enough
in telecommunications technology to be able to make the fine
distinctions that radio amateurs are capable of, and they should not be
expected to do so, where the legislative intent is not clearly

While there is a risk that licensed Amateur Radio operators in
California using portable transceivers in their cars while driving may
be subject to sanctions from police officers, the intent of the
legislation clearly is to address handheld phones and mobile data and
not private land mobile, dispatch radios, or mobile radios for voice
communications with handheld mics.

The definitions in state mobile cellular and mobile texting laws do
make a difference. There are two ways to protect Amateur Radio in the
drafting of those statutes: one is by sufficiently narrowly defining
prohibited activity so as to exclude Amateur Radio. The other is to
create specific exemptions where the definitions are confusing. This
statute is an example of poor legislative draftsmanship. It creates a
motor vehicle law with citations issued for certain activity that
includes the words “but is not limited to” in the language defining the
violation. However, what is included does not proscribe use of mobile
Amateur Radio equipment for voice communications.

There are several ways to respond to this. Perhaps the most difficult
is to obtain a legislative amendment that either restores the Amateur
Radio exemption from the prior legislation. Obtaining curative
legislation so soon after enactment of a state statute is not
politically the most simple of tasks, and State legislatures are not in
session for long periods each year. That fix could take some time.
Another option is to attempt to obtain a favorable exclusionary
interpretation of the new Statute from the California Attorney
General’s office, which we understand has already been attempted
unsuccessfully by some California radio Amateurs, though the effort
could be renewed). Finally, if there is an instance of a radio amateur
being cited for violating the statute, a successful defense of that
citation could be used as a precedent for precluding subsequent
instances of application of the Statute to licensed radio Amateurs.

ARRL monitors state legislation in two ways; one is via a legislative
monitoring service that responds to key word searches and which did
identify this legislation, which when originally introduced was not in
the form ultimately enacted. The second is through ARRL’s section
level State Government Liaisons who monitor state and local
legislation. However, these efforts are not foolproof; mobile cellular
legislation is often introduced and passed on very short notice, and
State legislative sessions are very short. Proposed legislation during
those sessions change often. In this case, some retroactive advocacy is
called for, but the legislation is not as disruptive of mobile Amateur
Radio operation as the current level of concern would indicate. Nor are
the sanctions particularly severe for first or even subsequent offenses.
ARRL expects to pursue a fix for this through its advocacy efforts.

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