Following the issuance by the Federal Communications Commission (“FCC”) of a Notice of Proposed Rulemaking (“NPRM”) in August, in which it proposes significant changes to its regulations governing the testing and importation of radio frequency (“RF”) devices, the Commission issued an order on Tuesday suspending for the second half of 2016 certain rules concerning declarations that RF devices comply with applicable FCC technical requirements for such devices when they are imported into the United States. This unusual waiver of rules that are the subject of an ongoing rulemaking proceeding provides a modicum of temporary future relief to importers dealing with an increasingly complex web of FCC requirements.
Currently, importers of RF devices are required to file with U.S. Customs and Border Protection (“CBP”) a completed FCC Form 740 when they import RF devices. The FCC Form 740 requires information regarding the RF devices being imported and a declaration that the FCC's conditions for the import of such devices have been met. Currently, the Form is most commonly completed and filed in electronic format via the CBP's Automated Commercial System (“ACS”). However, ACS will no longer accept electronically filed FCC Form 740s as of July 1, 2016. Moreover, CBP’s new Automated Commercial Environment (“ACE”) system that will replace ACS will not be ready to accept electronically filed Form 740s at that time. Therefore, absent a waiver of the applicable filing rules, importers would have to complete and file paper Form 740s with the CBP and the FCC, which would burden both the importers and the agencies. For these reasons, the FCC's Order suspends the requirement for importers or ultimate consignees (or their customs brokers) to submit Form 740 for the import of RF devices between July 1 and December 31, 2016.
However, the FCC’s temporary suspension of this requirement does not necessarily mean that it will not again apply in 2017. Whether it will again apply and, if so, in what form, depends on the outcome of the Commission's pending NPRM. Among the changes proposed in the NPRM, as noted in our previous client alert on the NPRM, is elimination of the requirement to file an FCC Form 740 when importing RF devices. As a matter of law, the FCC’s temporary suspension of that requirement cannot predetermine that it will ultimately eliminate that requirement when it concludes (most likely late in the second half of 2016) the rulemaking process initiated by the NPRM.
In the meantime, and until the waiver takes effect on July 1, 2016, importers must continue to file FCC Form 740 for imported RF devices under current FCC rules. Importers who transition to the ACE system prior to July 1 must continue to use ACS to file FCC Form 740 electronically, or submit the FCC Form 740 in paper format until the waiver takes effect.