2. Background
Shortly after three accidents which occurred in the nation over the summer of 2008, all involving transit operators where use of personal cell phone was found a contributory factor in each of those accidents, on September 12, 2008, a Metrolink passenger train collided head-on with a Union Pacific freight train in Chatsworth, California.5 The Metrolink accident resulted in 25 fatalities, 135 injuries, and significant train damage. Investigation confirmed that the Metrolink locomotive engineer was sending and receiving text messages while alone at the control of the train. This inattention caused him to miss a red signal and thus caused the tragic collision.
Immediately following this collision, on September 18, 2008, the Commission adopted Resolution SX-88 as its interim emergency order. Resolution SX-88 temporarily banned the use of cell phones and other similar devices by both railroad and rail transit employees operating in California, while the Commission devised and put in place permanent safety measures.
In the meantime, on October 7, 2008, the Federal Railroad Administration (FRA) issued Emergency Order (EO) 26 to ban cell phone usage by railroad employees.6 This new FRA rule, EO 26 applies only to the railroads and governs the nation's interstate freight and passenger railroad network operating within California, including railroads in California such as Union Pacific Railroad, Burlington Northern Santa Fe Railway, Amtrak, Caltrain, and Metrolink, among others.
Resolution SX-88 still remains in effect today, on an interim basis, and now applies only to California's rail transit agencies and their employees. Distinct from railroad agencies overseen by the federal government, the Commission has jurisdiction over rail transit agencies. Typical examples of the rail transit agencies include San Francisco Bay Area Rapid Transit District (BART), San Francisco Municipal Transportation Authority (commonly referred to as Muni), Sacramento Regional Transit District, and San Diego Trolley, among others. Today's decision will therefore apply only to the California's rail transit agencies and will supersede Resolution SX-88.
On October 22, 2008, the Commission issued Order Instituting Rulemaking, 08-10-007 (OIR). The purpose of the OIR was to determine whether the temporary measures adopted in Resolution SX-88 and/or other measures restricting personal use of electronic devices (PEDs)7 by rail transit employees should be adopted on a permanent basis. The parties since filed numerous comments responsive to the OIR as well as comments responsive to several subsequent rulings by the assigned Administrative Law Judge (ALJ).
On July 9 and 10, 2009, the Commission's Consumer Protection and Safety Division (CPSD) held a two-day public workshop in order to elicit additional input from the rail transit agencies, employees' unions (unions) and other potential parties. The workshop was well attended and the rail transit agencies' representatives and union representatives actively participated and shared insightful comments toward designing an effective General Order (GO) that would improve transit operator behavior.
To that end, the participants focused on the logistics of implementing and effectively enforcing any permanent PED ban for the rail transit employees, including which employees should be covered. They also discussed funding, enforcement, disciplinary tools and impact of potential GO provisions on collective bargaining rights, inward-facing camera as monitoring tool, and balancing health and safety concerns of the public and passengers with the privacy concerns of transit agencies' employees.
The July 2009 workshop was followed by multiple rulings seeking further clarification data and the parties' subsequent filings of additional comments relating to the agencies' (1) safety records, (2) preventative, educational and training efforts, (3) overview of remedial safety measures, disciplinary actions, corrective actions, and/or procedural safeguards taken, and (4) other experiences relating to the safety concerns associated with the use and abuse of PEDs by the agencies' employees.
On December 24, 2009, CPSD submitted its initial Staff Report, including a draft GO, (Staff Report). The Staff Report described several significant cellular phone-related accidents as well as numerous studies and research reports detailing the extent of the distraction and resulting unacceptable risks to public safety created by abuse of such technology.
On December 28, 2009, the ALJ issued a ruling and invited comments on the Staff Report, including the attached GO. In general, the parties acknowledged the significant public safety concerns giving rise to the OIR and supported the Commission's development of effective safety regulation on the subject.
The parties however disagreed with several aspects of the draft GO. Notably, several parties objected to the categories of the agencies' employees covered by the draft GO or to the level of restrictions or extent of monitoring requirements that should apply. The agencies were also concerned about the potential cost of the in-cab camera and attendant monitoring. The unions reiterated their concern that continuous camera surveillance of an on-duty operator would be an invasion of their privacy. The agencies and unions both objected to the disciplinary provisions in the draft GO as potentially violating collective bargaining agreements.
During the latter months of 2010, CPSD had a series of facilitated informal discussions with the parties. Those informal discussions succeeded in refining the terms of the draft GO. On April 5, 2011, the Settling Parties filed the Joint Motion and proposed the approval of the Settlement and adoption of GO 172.8
On April 25, 2011, CPSD submitted an Addendum to the initial Staff Report (Addendum). The Addendum is attached to this decision as Appendix B and supports the approval of Settlement and adoption of GO 172. CPSD believes GO 172 is reasonable, and is more likely to be more effective than the draft GO proposed by CPSD in the Staff Report. Specifically, CPSD supports the provisions of the GO 172 requiring the inward-facing video camera installation and monitoring.9 CPSD advises that GO 172 results from a meaningful exchange among the key stakeholders, reflecting industry experience and insights. The draft GO previously recommended by CPSD faced significant objections from the stakeholders, and CPSD believes that this collaboratively developed GO 172 will be better received, with substantially less resistance within the industry, and with enhanced compliance and safer operator behavior.
5 See Personal Electronic Device Use on Rail Transit Systems: Report for R.08-10-007, December 24, 2009, Consumer Protection and Safety Division, California Public Utilities Commission, http://docs.cpuc.ca.gov/efile/RULINGS/111820.pdf. This document is generally referred to throughout this decision as the Staff Report.
6 See 73 FR 58702.
7 OIR borrowed Federal Communications Commission term "Commercial Mobile Radio Services" (CMRS), which refers to any carrier or licensee whose wireless network is connected to the public switched telephone network or is operated for profit. Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993. In the OIR, the borrowed term "CMRS" was used interchangeably to refer to what we refer to here in this decision as the PEDs. GO 172 no longer refers to CMRS to eliminate that potential ambiguity or inadvertent and unintended meaning in GO 172. Instead, we define the term "PEDs" in Section 2.4 of the GO 172.
8 See Appendix A to this decision.
9 See Appendix B, Addendum, at 1; and GO 172, Sections 4 and 6.
