NHTSA has 120 days to respond to defective requests. The agency is said not to meet this deadline most of the time, but it has taken exactly 38 days to address it.
Attorney Edward C. Chen sent his request to the NHTSA on September 17, and the reply came last October 24. NHTSA decided to investigate the battery safety of Model S and Model X, affected by software updates 2019.16.1 and 2019.16.2. Tesla is accused of using them to mask safety hazards, such as spontaneous fires.
That's what Chen and his client, David Rasmussen, decided to ask the agency to investigate. Rasmussen was one of the owners who reported a loss of range of 12 percent after the updates back in May. He said he was trying to get explanations from Tesla in a friendly way for months. As he did not get any satisfactory, he sued the company on August 7.
Chen said the following in his defective petition:
Tesla uses software updates containing the air to mask and cover up a potential
By deciding to investigate, NHTSA "takes this seriously" when David Rasmussen warned us about the agency's response. Now, it has to be determined whether distance reduction was a way to avoid fires or just "a software update designed to improve battery life," as Tesla claims.
To do so, NHTSA required extensive documentation from Tesla on nine issues showing how deep the agency wants to dive into the matter.
In short, it wants information on all cars the company has produced for sale or lease in the US so far – including warranty periods and if they have Supercharger for free. Regardless, this excludes the Model S which took fire in Shanghai and which could have triggered the update.
The second step refers to all situations involving property damage, fire, personal injury or mortality with these vehicles. NHTSA requests reports on complaints, lawsuits and lawsuits involving such scenarios.
All of these cases must be reported in a Microsoft Access file with all the information the vehicles involved may have. Point 3 brings perhaps the most relevant inquiry request. It is asked whether Tesla investigated these situations and what was Tesla's conclusion for the causes.
Theme 5 requires information on all updates from January 1, 2017, to date related to “charge rate, charge capacity, or battery thermal control during or after charging. “NHTSA requires a description of the updates and their causes.
Theme 6 is on all analyzes and tests Tesla has ever done regarding charging and battery life. Case 7 specifically asks about fire episodes that are related to the failure to file the petition. Point 8 shows NHTSA knows what to look for in electric cars by asking about dendritic growth and cell shorts. Finally, NHTSA wants to know which vehicles received software updates 2019.16.1 and 2019.16.2 and when.
Tesla must present all documents up to November 28, 2019, under threat of civil penalties that can range from $ 22,329 a day up to $ 111,642,265. No answer is not an option in this case.
After NHTSA receives all that is required, it will conduct a study to determine whether Tesla should remember the cars that could cause a fire hazard or if the updates purpose really was to make the battery packs last longer. Tesla may also decide to do so voluntarily.
In 2018, The New York Times published an article on defective petitions. The article states that 43 of them were received by the NHTSA up to that point – including the one that led to the Ford Pinto's recall. Of these 43, 12 resulted in recalls or extended warranty periods. We have no idea how many NHTSA accepted to investigate. No matter the number, it was only increased.
What about the lawsuit?
While NHTSA is waiting for the documents, Tesla had until November 3 to answer for the court. It has hired law firm Morrison Foerster to defend itself.
After Tesla's official response that it would reach out to affected customers, we asked Rasmussen if he noticed any improvements.
"The day after the lawsuit was filed, when Tesla said they wanted to recover lost range, I got 10 miles back of the 30 miles they took."
He was kind enough to update the graphics we had already published – the first one above. But did the improvement persuade Rasmussen to give up the lawsuit? The answer is that he hired law firm Lieff Cabraser Heimann & Bernstein to help Chen in the process.
We can see a battle for law giants on the horizon. Not only because of suspected fire hazards with the batteries, but also because the lawsuit opens a discussion about whether Tesla can push changes in the products without the owner's approval or not.
It can be noble to protect the battery even if it is no longer under warranty, but at what cost? If there was no security risk involved, would clients then opt for a longer-lasting battery pack, in exchange for a 12 percent reduction or the same? Why not give them the choice?
If Tesla is so concerned about protecting the customer's assets, why did it refuse to repair Model 3 units with defective paint that are still under warranty? Why does it apply a primer only to the apparent parts of the vehicle? MCUv1 devices that do not work due to excessive harvesting must also be replaced, preferably under warranty. Or upgraded to MCUv2, as Elon Musk promised in March 2018 and has not yet delivered to at least 4,910 customers who signed a request for it so far.