Things to Look for in FCC’s New RF Equipment Marketing/Authorization Rules


The Federal Communications Commission’s (“FCC”) internal consideration of the seminal overhaul of its radiofrequency (“RF”) equipment marketing/authorization regulations is rapidly progressing.  The FCC will soon release new rules and policies that will markedly impact how RF equipment manufacturers, vendors, importers, distributors, and refurbishers may conduct their businesses.  The FCC itself emphasized the importance of the new regulations on the RF equipment industry, stating during the subject rulemaking proceeding, that the proposed overhaul consists of a “wide range of equipment approval issues of a technical, legal, and practical nature, impacting a diverse set of stakeholders, each of whom will need to closely analyze and consider the potential impact of the rule changes.”
Because the Communications Act and the FCC’s rules strictly prohibit (with limited exceptions) the marketing, testing, and operation of unauthorized RF equipment, it is critical that stakeholders at all levels of the RF equipment supply chain be aware of the new rules.   The FCC’s Enforcement Bureau will not hesitate to impose substantial monetary forfeitures and other sanctions on parties that violate the RF equipment rules.   A recent example of such an enforcement action can be found here.
While the FCC’s new regulations will be very comprehensive and complex, the highlights that garnered much concern by interested parties include: 

Certification Procedures for Modular Devices
Current Rules
All devices that transmit RF energy (intentional radiators) are, with limited exceptions, required to be certifiedby an FCC-approved Telecommunications Certification Body (“TCB”) before being marketed, tested, or operated.  The FCC has specialized rules for certification of modular transmitters that will likely be changed.

 Proposed Rules

1.  Permit certification of modular transmitters (transmitters installed in a host device or attached to a host as a peripheral) that consist of a single chip tested to show compliance in a typical installation if grantee provides detailed instructions for integration into other host devices.

2.  Eliminate certification of “split modular transmitters” (split into radio elements and transmitter control hardware).

3.  Require that certification of “form factors” (platforms into which individual modular components can be inserted) that include their own RF characteristics include design guidelines, interface specifications and authentication requirements that would guarantee that a module can operate on a given form factor only with other modules whose collective RF emissions meets the FCC’s requirements.

Self-Approval” Authorization for Non-Transmitting RF Devices
Current Rules
Most non-transmitting RF devices (unintentional radiators) are “self-authorized” by one of two procedures (depending on the specific type of the device):  Verification and Declaration of Conformity (“DoC”).   These procedures are very similar, wherein the responsible party (“RP”) submits prototype to a lab for testing for compliance w/FCC technical rules. If device passes, it is labeled and marketed.  Nothing is submitted to FCC unless audited.  The main differences are that with a DoC, the RP must use an FCC-accredited testing lab, include “compliance information statement” with each device, and include FCC logo on device’s label.
Proposed Rules
1.  Combine elements of DoC & Verification into one procedure:   Supplier’s Declaration of Conformity(“SDoC”).

2.  Eliminate the FCC-accredited lab requirement for any device subject to SDoC.

3.  Eliminate the FCC logo requirement.

4.  Require that all devices subject to SDoC contain a lengthy compliance statement.

Security Provisions for Software-Controlled RF Devices.
Current Rules
The current rules contain a specific classification for software defined radios (“SDRs”); certification applicants must demonstrate the software-controlled device has adequate security features to prevent loading of software that enables operation in violation of FCC requirements.
Proposed Rules
1.  Remove SDR designation from certification grants and incorporate necessary requirements for software control of RF parameters and security for all software-controlled devices.

2.  Require certification grantees to implement measures to ensure that certified equipment cannot operate with non-approved RF-controlling software.

3.  Require applicants to describe the device’s capability for software configuration and upgrading.
4.  Require applicants to specify who is authorized to make software change controls in order to prevent unauthorized modifications.

Importation Rules
Current Rules
Importers of RF devices must declare that their devices have been tested and approved via the applicable authorization procedure or are being imported pursuant to one of the FCC-approved specific exemptions.
Declaration Requirements: No RF device may be imported unless the importer declares that the device meets the FCC rule requirements via:  (a) electronic declaration at points of entry where electronic filing at U.S. Customs & Border Protection (“CBP”) is available; and (b) where electronic filing is not available, importer must use FCC Form 740 and attach it to the CBP-required papers.
Customs-Bonded Warehouse Requirement: Unauthorized devices awaiting certification may be stored in a Customs-bonded warehouse while waiting for the equipment to be certified, or exported to another country.
Trade Show Exemption for Unauthorized Devices: FCC permits the importation of 200 unauthorized devices for use in licensed service to be imported for trade show demonstration purposes, and 10 unauthorized devices intended for unlicensed use.
Importation of Unauthorized Devices for Personal Use Only: A total of three unauthorized devices for use in unlicensed services may be imported for personal use
Proposed Rules
1.  “Provisional Grant” certification that permits importation and distribution through the supply chain of devices prior to sale.  When device is sold to public, final certification would be granted and that would trigger 30 day review period.

2.  If FCC approves the issuance of provisional grants, it will eliminate the need for importers to use customs-bonded warehouses.

3.  Eliminate Form 740 filing requirements. Importers would no longer have to file information with the FCC specifying the import conditions on which they are relying.

4.  The permitted number of unauthorized devices for trade show demonstration purposes would be increased to 400.

5.  A total of three unauthorized devices intended for use in licensed services would be permitted, as long as those devices are for personal use only.

Repaired and Refurbished Devices
Current Rules
When a third party repairs or refurbishes certified equipment to the device’s original specification, that party does not need to submit an application for certification if the equipment continues to operate as specified in the current grant.  And, grantee remains the RP.  But, when a party repairs or refurbishes certified equipment but does not return it to the original specification, it is a modified device and the modification rules are applied, including the refurbisher becoming the RP.
Proposed Rules
1.  If a third party repairs or refurbishes a device that does not result in original specifications, with consent of the grantee and new certification is required, it could be obtained under the same FCC ID, or new FCC ID, depending on the scope of the change.

2.  If a third party repairs or refurbishes a device that does not meet original specifications with grantee’s approval, it would become the RP and new FCC ID would be issued for the modified device.

3.  If a third party repairs or refurbishes a device that meets the original specifications without grantee’s permission, FCC will require a new certification application.

Confidentiality of Information in Certification Applications
Current Rules
Marketing may commence for certified devices only after grant is issued and a TCB uploads information associated with the certification application into the FCC’s Equipment Authorization System (“EAS”).
Certain information is held confidential under rules and applicants may request confidentiality of certain information upon request. There are two types of confidentiality: short-term confidentiality (“STC”) and long-term confidentiality (“LTC”).
STC is granted upon request for 45 days and applicant doesn’t have to provide justification for it. Information will be made public upon expiration of timeframe.  If an applicant markets the product, it must notify FCC or TCB so that exhibits can be made public in EAS. FCC permits up to three 45 day extensions – total of 180 days.
LTC requests must reference sections 0.457(d) and 0.459 of the FCC’s Rules, describe why material should be confidential, identify specific information by exhibit type, name, and description, state whether the information is publicly available elsewhere, and explain why information is confidential (e.g. a trade secret).
Proposed Rules
1.  No STC permitted for test reports or test set-up information that demonstrates compliance with FCC rules.

2.  LTC will automatically be provided without request for the following exhibits: (a) schematics; (b) block diagrams; (c) operational descriptions; and (d) parts list/tune-up information.

This summary is a high-level overview of some of the changes the FCC is proposing to its RF equipment regulations.   Due to the complexity and comprehensive nature of the proposed regulation changes, an exhaustive summary is well beyond the scope of this advisory.   Moreover, the FCC may issue some rules that vary from their proposed counterparts.  We are monitoring this proceeding very closely and will provide more information as it becomes available.
If you would like additional information concerning the proposed RF equipment rule changes, including those not including in this advisory, please contact IoT attorney Ronald E. Quirk, Jr. at (703) 714-1305 or  Further information about The CommLaw Group’s Internet of Things practice is available here.     

ATTORNEY ADVERTISING DISCLAIMER: This information may be considered advertising in some jurisdictions under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers

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