October 13, 2010
SCOPE OF LAW BARRING CELLS PHONE USE WHILE DRIVING
By: Kevin E. McCarthy, Principal Analyst
You asked whether CGS § 14-296aa as amended by PA 10-109, which generally prohibits use of cell phones and related equipment while driving (1) applies to the equipment used for Family Radio Service (FRS) and General Mobile Radio Service (GMRS) or (2) permits a driver to drive while using the speaker function of a cell phone. FRS is a type of Citizen's Band radio service while GMRS uses a type of walkie-talkie equipment.
The Office of Legislative Research is not authorized to provide legal opinions and this report should not be considered one.
It appears that CGS § 14-296aa (1) does not prohibit using FRS or GMRS equipment to make a call but does apply to using this equipment for other purposes, such as texting or sending data and (2) permits a driver to dial a number on his or her cell phone and then use the speakerphone function to hold a conversation, so long as the driver is not holding the cell phone during the conversation.
APPLICABILITY OF LAW TO FRS AND GMRS
CGS § 14-296aa generally bars the use of two types of equipment while driving. These are (1) a hand-held mobile telephone, if used to engage in a call and (2) a mobile electronic device. A hand-held mobile telephone is a cellular, analog, wireless, or digital telephone a person uses to engage in a call while using at least one hand. “Engage in a call” means talking into or listening on a hand-held mobile telephone, but does not include holding the telephone to turn it on or off or to initiate a function of the telephone. A mobile electronic device is any hand-held or other portable electronic equipment that can provide data communication between two or more persons. These include a text messaging device, a paging device, a personal digital assistant, a laptop computer, equipment that is capable of playing a video game or a digital video disk, or equipment on which digital photographs are taken or transmitted. They do not include any audio equipment or any equipment installed in a vehicle to provide navigation, emergency assistance to the driver, or video entertainment to the passengers in the rear seats of a vehicle. The legislative history of CGS 14-296aa does not address the issue of whether it applies to FRS and GMRS equipment.
According to the Federal Communications Commission (FCC), FRS is a type of Citizens Band radio service. Family, friends, and associates can use it to communicate within a neighborhood and while on group outings. FRS has a communications range of less than one mile and the radio has a maximum power of no more than one-half watt. It cannot be used to make a telephone call but can be used for business-related communications. GMRS is a land-mobile radio service available for short-distance two-way communications to facilitate the activities of an adult and his or her immediate family members. In most cases it has a power capacity of no more than 50 watts. Family members typically use the equipment to communicate among themselves near their residence or during recreational outings. Some equipment can be used for both FRS and GMRS. The FCC rules consistently refer to the equipment used by both services as “radios” rather than “telephones.”
Since FRS cannot be connected to the public switched telephone network under 47 CFR 95.193(e), it appears that such devices do not fall within the definition of mobile telephones. However, they may fall within the definition of mobile electronic devices. FCC rules permit transmissions of data regarding the location of the FRS station. The rules also permit the transmission of brief text messages. The maximum transmission time may not exceed one second, and the minimum time before the next data transmission must be not less than 30 seconds. Only those FRS radios that the FCC has specifically certified for such data operation may actually transmit data. So it appears that using FRS equipment can be used to make calls while driving, but using it to transmit text messages or data would violate CGS § 14-296aa.
GMRS equipment can only be connected with the public switched telephone network under very limited circumstances under 47 CFR 95.141. It generally can only be used for voice communications, but 47 CFR 95.181 also permits a GMRS station operator to communicate a one-way voice page to a paging receiver. It appears that GMRS equipment can be used to make calls while driving, but using it to send pages would violate CGS § 14-296aa.
USING A SPEAKERPHONE
It appears that CGS § 14-296aa does not prohibit a driver from dialing a number and then using the speakerphone function to hold a conversation, so long as the driver is not holding the cell phone during the conversation. As noted above, the law does not prohibit a driver from holding a cell phone in his or her hand to turn it on or to initiate a function, which presumably would include dialing a number.
The issue was addressed at several points in the 2005 debate on the initial bill that was codified as CGS § 14-296aa (sHB 6722). In the House, then-Representative Witkos asked whether it would be a violation under the bill to drive while using a cell phone that has a built-in or attached speakerphone with the phone resting on his lap. Representative Roy, the bill's primary sponsor, responded that it would not be a violation because that would be hands-free operation.
Similarly, Representative DelGobbo asked for a clarification of the bill's scope. Representative Roy stated that the phrase “engage in a call” “means talking into or listening on a hand-held mobile telephone, but does not include holding a hand-held mobile telephone to activate, deactivate, or initiate a function of such telephone.” Rep. DelGobbo then asked whether the bill permitted a driver to dial a number from a phone that had an ear bud and then place the phone on the passenger seat. Representative Roy stated that this would be permissible, although if this caused the driver to have an accident, other provisions of the bill would apply.
Similar points were made in the Senate debate. Senator Ciotto, Senate chair of the Transportation Committee, agreed with Senator Freedman's characterization of the bill as “just saying that you cannot hold the cell phone in your hand.” Senator Nickerson stated that “using a cell phone means holding it to the user's ear.”