Everyday devices, from digital coffeemakers to personal computers, emit radio frequency radiation, and are therefore subject to the Equipment Authorization procedures in Part 15 of the Federal Communications Commission’s rules. Through these procedures, which have recently undergone substantial changes, the FCC seeks to minimize the risk of harmful interference these products may pose to licensed radio communications. The FCC has been vigilant in its enforcement against companies who fail to obtain appropriate equipment authorization or otherwise violate Part 15 rules.
In its efforts to keep up with evolving technology and market trends, the Federal Communications Commission’s (“FCC”) regularly updates its rules for radio frequency (“RF”) devices. In a recent Report and Order,1 the FCC reduced the regulatory burden on manufacturers and sellers of low-risk RF equipment by consolidating and simplifying its two self-approval mechanisms. The FCC also expanded the use of electronic labeling, reduced several importation requirements, and revised its technical measurement procedures.
Because this overview provides only general information, we urge entities with specific concerns or questions about Part 15 compliance to seek advice from counsel.
Any product that emits RF radiation is regulated under Part 15 of the FCC’s Rules. The FCC categorizes these devices by the amount and purpose of a device’s emissions. An “incidental radiator” is a device not designed to intentionally use, generate, or emit RF energy exceeding 9 kHz, but whose function may cause emissions over this threshold, such as a basic electrical power tool. See 47 C.F.R. § 15.3(n). An “unintentional radiator” emits radio frequency signals to other parts of the device or to an attendant device, such as a universal remote control. See 47 C.F.R. § 15.3(z). Finally, an “intentional radiator” is a device that intentionally generates and emits RF energy, like a WiFi router, garage door opener, or a radio frequency identification device (commonly known as “RFID”). See 47 C.F.R. § 15.3(o).
Equipment Authorization Procedures
Before marketing2 an RF device to the public, a “responsible party” (see infra) must obtain appropriate authorization from the FCC. 47 C.F.R. § 2.803(b). The authorization method depends on the type of equipment. Formerly, a Part 15 device needed to pass through one of three possible doors to reach market—certification, verification, or Declaration of Conformity (“DoC”)—each with different testing and compliance procedures. Verification and DoC relied on self-approval and were significantly less rigorous than the certification process.
Supplier’s Declaration of Conformity
In a 2017 Report and Order, the FCC combined the verification and DoC processes into a streamlined Supplier’s Declaration of Conformity (“SDoC”) process. The effective date for this change is November 2, 2017, though responsible parties may continue to use the previous self-approval processes for one more year. Equipment that has already been approved through either the DoC or verification process may be grandfathered in until the end of its useful life as long as it is not modified in a way that would require new authorization.
In the past, verification was the simplest process, requiring only that devices be tested for conformity to technical standards. Eligible devices, like TV broadcast receivers and commercial digital devices, were thought to pose a low risk of radio interference, had a high compliance rate, and had well-understood testing standards. See Report and Order ¶ 3. The heightened DoC procedure, used mainly for computer equipment, CB receivers, and TV interface devices, required compliance testing from an accredited laboratory. A DoC-authorized device also required a compliance statement in its literature and needed to display the well-recognized FCC logo. See Report and Order ¶ 3.
The new SDoC procedure is more burdensome than the verification process, but less so than DoC. SDoC requires responsible parties to test devices for compliance with the Commission’s rules. 47 C.F.R. § 2.1072. However, parties will no longer need to perform testing in accredited laboratories. SDoC devices also have new labeling and disclosure requirements (see infra).
The certification process remains the most stringent course for device authorization. This procedure is used with devices that require more complex testing procedures, use new technology, or present a high risk of causing RF interference. See 47 C.F.R. § 2.907. Most intentional radiators and some high-power unintentional radiators (such as radar detectors and scanning receivers) must go through the certification procedure. See generally 47 C.F.R. §§ 15.201(b), 15.101(a). Certification requires the responsible party to submit a highly detailed application for approval and to submit the device for evaluation by the FCC or an accredited independent Telecommunication Certification Body (“TCB”). 47 C.F.R. §§ 2.1033, 2.907. A TCB must be recognized by the FCC’s Office of Engineering and Technology and must satisfy the International Organization for Standardization/International Electrotechnical Commission International Standard ISO/IEC 17025 protocol. 47 C.F.R. § 2.948(e).
For devices subject to the certification process, the “responsible party” is the party to whom the FCC issued the grant of certification. See generally 47 C.F.R. § 2.909.3 For SDoC-authorized devices, the “responsible party” is generally the manufacturer or the assembler of the device and must be located in the United States. If SDoC-authorized equipment is imported, the importer is the responsible party. Retailers or other equipment manufacturers may also contract to become the new responsible party. If another party modifies the equipment, that entity becomes responsible for compliance. See 47 C.F.R. § 2.909.
Labeling and User Information
Authorized equipment must be labeled and provide compliance information in accordance with the FCC’s Rules. A self-approved device must include unique identification of the product (e.g., name and model), applicable compliance statements (see infra), and the responsible party’s contact information. See 47 C.F.R. §§ 2.1074, 2.1077(a). The responsible party may include this information with the device’s user manual or on a website rather than on the device itself. See Report and Order ¶ 4. Further, inclusion of the FCC logo is now voluntary. 47 C.F.R. § 2.1074(b). These rules also apply to equipment assembled from SDoC-authorized parts. 47 C.F.R. § 2.1077(b).
Equipment subject to certification must be labeled with its FCC Identifier and a device-specific statement pursuant to Section 15.19 of the FCC’s Rules. See 47 C.F.R. §§ 2.926, 15.19. If the device is too small to include a legible FCC Identifier, the text must be included in the user manual and either on the device packaging or on a removable label. 47 C.F.R. § 2.925(f).
Manufacturers of devices with digital displays may now electronically display any FCC-required labels that the responsible party traditionally had to affix physically to the device. The information must be available to a consumer in no more than three sequences from the device’s settings menu. See 47 C.F.R. § 2.935. A device without an integrated screen that requires connection to a second device to function may electronically display the information from the second device’s screen. Id. If a responsible party avails itself of these digital display options, the device must come with instructions for accessing the information. Further, the responsible party will still need to include a physical (permanent or temporary) label with the device or its packaging so that customs officials, purchasers, and others in the supply chain can identify the device without having to activate its screen.
The FCC requires Part 15 devices to include additional information to users. This may vary based on the type of device rather than the approval procedure. For example, Section 15.21 of the FCC’s Rules requires a user manual for an intentional or unintentional radiator to caution against modifications. See also 47 C.F.R. §§ 15.105(a) (Class A commercial equipment); 15.105(b) (Class B residential and non-business equipment); 15.21 (intentional and unintentional radiators); 2.1091 (radiation exposure).
Importation and Trade Shows
In the past, RF device importers needed to file FCC Form 740, declaring the device’s compliance with the FCC’s Rules. The FCC waived this requirement in 2015 and has now permanently eliminated it. Now, a responsible party needs only to determine compliance prior to importation, though it must still satisfy all other authorization and importation requirements, including document retention. See generally 47 C.F.R. §§ 2.1203, 2.1204. Further, the FCC doubled the number of RF devices a responsible party may import for demonstration purposes, from 200 to 400. 47 C.F.R. § 2.1204. Parties may seek approval from the FCC to bring in additional devices. 47 C.F.R. § 2.1204(a)(3)(i).
Failure to Comply with the FCC’s Regulations
Fines for failure to comply with FCC rules can be significant. The base forfeiture for the importation or marketing of unauthorized equipment is $7,000. 47 C.F.R. § 1.80(b)(8). The FCC may assess a maximum forfeiture of $19,246 for each violation or for each day of a continuing violation, and up to a maximum of $144,344 for a single continuing violation. 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(8).4
The FCC generally imposes the base amount for each model of unauthorized equipment, though it may adjust the amount depending on the violation, its duration, and the offender’s ability to pay. The FCC has been willing to reduce the base forfeiture amount due to mitigating factors such as an overall history of compliance and proactive attempts at corrective action. See Uniden America Corporation, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 13538, 13542 (2009). In contrast, the FCC may make a substantial upward adjustment for continued misconduct. See CTS Technology Co., Limited, Notice of Apparent Liability for Forfeiture and Order, 29 FCC Rcd 8107, 8114 (2014).
The FCC may revoke an equipment authorization if it finds the responsible party has made false statements or misrepresentations in materials connected to the equipment, or if the equipment does not conform to the FCC’s technical requirements or the responsible party’s own representations. 47 C.F.R. § 2.939. However, the FCC has stated that it is unlikely to take such measures unless the violator has committed fraud or its actions were so willful or deliberate as to raise questions about the party’s fitness to hold an equipment authorization. See Highway Information Systems Equipment Certification for Traveler’s Advisory Transmitter, Memorandum Opinion and Order, 17 FCC Rcd 4027, 4029 (2002). Federal law also permits seizure of non-compliant equipment. 47 U.S.C. § 510.