Recently the National Transportation Safety Board (NTSB) made a recommendation to ban all cell phones from commercial trucks. This includes both hand held phones and those connected to a blue tooth or hands free device. They want all cell phones turned off in all commercial vehicles. Period.

The outcry from professional drivers is often, “why don’t they take the cell phones away from four wheelers? They’re the ones causing the accidents.”

While this is true, three out of every four accidents involving a truck are caused by the automobile driver; there is no single government entity that could regulate this population.

The National Transportation Safety Board cannot ban cell phone use in automobiles. In fact, they cannot ban cell phone use in commercial trucks either. They can only make a recommendation based on their investigation of accidents involving trucks.

The NTSB was created by the Air Commerce Act of 1926 when Congress charged the Department of Commerce to investigate aircraft accidents. This responsibility was moved in 1967 when the Department of Transportation (DOT) was formed and the NTSB was changed to an independent agency under DOT authority.

In 1974 Congress made the NTSB a separate entity because they felt the agency could not perform its duties properly unless it was independent of the DOT. The NTSB was given no regulatory authority and cannot be directly involved in any mode of transportation.

Which agency can propose legislation to ban cell phone use by professional drivers? The Federal Motor Carrier Safety Administration (FMCSA) has this authority. This agency is under the DOT’s direction and was established to improve the safety of commercial motor vehicles. You should be aware that the FMCSA does not propose to ban all cell phones, but supports the driver's right to use hands free devices.

So, the NTSB cannot ban cell phones from trucks, but why can’t it ban cell phones form those accident-prone four wheelers?

First, the NTSB does not have any jurisdiction over private vehicles. Neither does the FMCA. Secondly, no United States Government agency has the authority to take away your cell phone, your CB or even your radar detector from your personal car or truck. That’s true! They can regulate commercial trucks but not private vehicles.

Why? Article one, section eight of the United States Constitution outlines the enumerated powers of the federal government and restricts Congress and the Executive and Judicial Branches from legislation not explicitly included in the document. While your elected officials often broadly interpret this, it has kept the United States government from regulating activities that occur within the state’s borders. This helps define the authority of the states as opposed to federal government.

There are some ways US legislators can prohibit the use of cell phones in automobiles. The first method is by an executive order signed by the President to cover federal workers when using a government owned car or when using a government issued cell phone or while performing government business. This occurred in 2009 when President Obama banned texting while driving for all federal employees. Note that his directive does not cover state or local government paid workers, only those employed by the Unites States Government.

Another option for federal intervention could be through the withholding of funds for noncompliance. This is how motorcycle helmet laws have been regulated. In 1967 the federal government ties state highway construction funds to the passage of state helmet laws. This was revoked in 1976 when Congress revoked the right of the US government to assess penalties for non-compliance. In 1991 the Surface Transportation Efficiency Act created incentives for states to pass such laws. This type of legislation could be used to encourage states to adopt cell phone bans.

There is always the possibility that your federal government could find a way to regulate cell phone use in automobiles, perhaps by the implementation of scrambling devices, but it would probably include a court determination before enacting such a policy.

Despite the NTSB’s recommendation to take cell phones out of the hands of professional drivers, they can’t force you to comply. They can’t force your family to stop using their cell phones in the family car, either.

So, the next time you hear about another ruling that only pertains to professional drivers, you can refer to the constitution’s powers to leave private vehicles alone. At least until the federal government can find some creative ways to compel the states to follow their lead your four wheeling friends won’t be subject to the same legislation you are as a professional driver.