Tesla’s aftermath ‘recall’ of software update upsets old rules of the road

(Bloomberg) – Hours after pushing a software update to some of its cars, Tesla Inc. began hearing complaints from owners whose vehicles were stopping without warning. So the automaker quickly updated the update and then informed regulators.

Tesla’s stand-alone approach raised questions with the National Highway Traffic Safety Administration, which said it would revisit the issue with the company.

The episode illustrates both the promise and the danger of highly computerized hard-wired vehicles. A potential hazard was quickly eliminated without requiring customers to visit a repair station. But the after-the-fact recall notice – cards explaining the fix were sent to vehicle owners a week later – bypasses the role of safety regulators who traditionally approve recalls.

“Live updates offer incredible upside benefits and huge downside risks,” said Mark Rosekind, former NHTSA chief under the Obama administration.

“Recalling can be time consuming and sometimes you may never reach 100%” of all affected cars. A live update, on the other hand, can fix every car overnight. But, he said, “who is providing oversight to ensure effectiveness? “

Wireless updates are revisions of software or firmware delivered wirelessly to electronic devices. They are common in cell phones and personal computers, and more and more in cars as they become more and more computerized.

General Motors Co. uses over-the-air updates for certain vehicle software systems, its OnStar connected services, and Super Cruise driver assistance technology. Ford Motor Co. will launch its first live updates in January when it debuts. -Free driving system called Blue Cruise. Tesla’s live updates include updates to the driver assistance systems that the company controversially markets as “Autopilot” and “Full-Self Drive,” although it asks drivers to keep them. hands on the wheel “at any time”.

This raises questions for US auto regulators who oversee vehicle safety. It’s not uncommon for automakers to initiate recalls, but NHTSA has traditionally played a role, such as determining in advance the effectiveness of a proposed remedy.

“The safety potential of over-the-air recalls is obvious and significant and, as Tesla has demonstrated, they can be completed quickly and cover every faulty vehicle,” said Jason Levine, executive director of the Center for Auto Safety, who advocates for a stricter self. safety rules.

Yet, he said, it is essential that any live security-related update “be closely monitored to ensure that it actually fixes the problem while ensuring that consumers retain the right to keep track of the issues. full performance promised from their purchase ”.

In September, Tesla released a live software update to its vehicles aimed at improving the way its Autopilot driver assistance system identifies emergency vehicles stopped at crash scenes. But the company has not issued a recall. The move, described by critics as a ‘ghost recall’, came weeks after NHTSA launched an investigation into whether the autopilot was faulty after Teslas crashed into stopped police cars and fire trucks. .

In the most recent case, Tesla on October 23 released an over-the-air software update to add a so-called full self-drive system to the cars of volunteers who Tesla’s watchdog had high safety records. Owners received an alert on the vehicle’s touchscreen and had the option of installing immediately or planning for later.

The next morning, the company began receiving reports of unintentional emergency brake activations, according to documents posted on the NHTSA website. So the company withdrew the update for owners who didn’t have it installed and disabled the badly functioning automatic braking and front collision warning features for those who did. A new update was released on October 25.

On October 29, the company announced the recall of approximately 11,700 cars equipped with the software and said it would notify them by mail, as required by law.

The NHTSA said in a statement after announcing the recall that it planned to “continue conversations with Tesla to ensure any safety deficiencies are promptly recognized and addressed in accordance with the National Traffic and Motor Vehicle Safety Act.”

The agency declined to comment further. The automaker did not respond to a request for comment.

Tesla’s decision to launch a recall after the release of its latest software update could be a sign that the Biden administration’s increased oversight of the company is starting to have an effect, said David Friedman, vice president of advocacy. for Consumer Reports, who is also a former NHTSA administrator under the Obama administration.

“It looks like Tesla is actually starting to follow the law,” he said, referring to federal rules that require automakers to notify NHTSA of known defects within five days of their discovery.

The company has previously touted its ability to broadcast live updates as a potential auto safety boon.

“Through the massive collection of crash data, our team was able to take passive safety to a whole new level – using an OTA update,” said Martin Viecha, head of investor relations at Tesla, in a tweet posted the same day as the automaker. has received letters from NHTSA questioning its decision to release an autopilot software update without issuing a recall.

Levine said it will be important for NHTSA to retain a role in overseeing recalls related to software updates, even as automakers such as Tesla continue to refine the ability to push them back quickly.

Federal law requires automakers to notify drivers of recalls by mail within 60 days of filing a fault report with NHTSA. Tesla said in documents posted on the NHTSA website that it plans to notify dealers and service centers by November 1 and owners by December 28.

Friedman said it would take an act of Congress or regulatory action to change the rules to allow NHTSA to use a faster form of communication in the event of live updates. He said traditional recall notices can still play a role even in the case of instant software updates that are pushed by automakers.

“There is a larger question about how you can have a modern reminder system in the online age we live in,” he said.

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