NHTSA has 120 days to respond to defect petitions. It is claimed that the agency did not meet this deadline most of the time, but it took exactly 38 days to resolve the matter.
Attorney Edward Chen submits his request to the NHTSA on September 17, and the answer comes last October 24. NHTSA has decided to investigate the battery safety of Model S and Model X affected by the 2019.16.1 and 2019.16.2 software updates. Tesla has been accused of using them to mask safety hazards such as spontaneous fires.
These are Chen and his client, David Rasmussen, decided to ask the agency to investigate. Rasmussen was one of the owners who reported a 12 percent loss after the May updates. He told us that he had been trying to get Tesla's explanations in a friendly way for months. As he did not receive any satisfaction, he filed a lawsuit against the company on 7 August. Chen said the following in his defect petition:
Tesla uses software updates on-air to mask and cover up a potentially widespread and dangerous battery problem in their vehicles.
In deciding to investigate, NHTSA "takes this seriously" as David Rasmussen warned us of the agency's response. It now needs to be determined whether reducing the scope was a way to avoid fires or simply "updating software designed to improve battery life", as Tesla claims.
To do this, NHTSA requested extensive documentation from Tesla in nine topics that show how deeply the agency wants to dive into the problem.
All these cases must be reported in a Microsoft Access file with all the information that the participating vehicles may have. Point 3 carries perhaps the most appropriate request for an investigation. He asks whether Tesla has investigated these situations and what Tesla's conclusion was for the reasons.
Topic 5 requires information on all updates from January 1, 2017, to date, related to "Charge speed, charge capacity, or battery thermal management during or after recharge. ”NHTSA requires a description of the updates and the reasons for them.
Topic 6 is about all the analysis and testing Tesla has ever done in terms of battery charge and longevity. Point 7 specifically asks for fire episodes related to the defect petition. Point 8 shows NHTSA knows what to look for in electric cars, asking about the growth of dendrites and cell shorts. Finally, NHTSA wants to know which vehicles received software updates 2019.16.1 and 2019.16.2 and when.
Tesla must submit all documents by November 28, 2019, with the threat of civil penalties, which can range from $ 22,339 per day up to $ 111,642,265.
Once NHTSA has received all the necessary information, it will conduct an investigation to determine whether Tesla should recall the vehicles that may present a fire hazard or if the purpose of the updates is to really make the batteries last longer. Tesla may also decide to do this voluntarily.
In 2018, The New York Times published an article on defect petitions. The article states that 43 of them have been received by NHTSA so far – including the one that led to the withdrawal of the Ford Pinto. Of these, 43, 12 resulted in withdrawals or extended warranty periods. We have no idea how much NHTSA has accepted to investigate. Whatever the number, it just went up.
What about the case?
While NHTSA is awaiting the documents, Tesla has until November 3 to respond to court. He hired Morrison Foerster Law Firm to defend his case.
After Tesla's formal response that it would return a range of affected customers, we asked Rasmussen if he noticed any improvements.
"On the day after the filing of the case, when Tesla said it would restore the lost range, I had 10 miles back of the 30 miles they had taken."
He was kind enough to update the graphic we had already published – the first one above. But did the improvement persuade Rasmussen to drop the case? The answer is that he hired Lif Cabraser Hyman and Bernstein's law firm to assist Chen in the process.
On the horizon we can see the battle of the legal giants. Not only because of the suspected risk of battery fire, but also because the lawsuit opens a discussion about whether Tesla can push changes to its products without the owner's permission or not.
May be noble for protecting the battery, even if it is no longer under warranty, but at what cost? If there is no safety risk, will customers opt for a longer lasting battery pack in exchange for a 12 percent reduction or the same? Why not give them a choice?
If Tesla is so concerned about protecting its customers' assets, why has it refused to repair Model 3 blocks with defective paints that are still under warranty? Why apply a base coat only to the visible parts of the vehicle? MCUv1 units that fail due to excessive logging should also be replaced, preferably under warranty. Or upgraded to MCUv2, as promised by Elon Musk in March 2018, and has not yet delivered to at least 4,910 customers who have signed a petition to date.