UPDATE: On August 25, 2015, the FCC issued an Order in which it conceded that its proposed new regulations for radiofrequency (“RF”) devices raise “complex technical issues”, the analysis of which requires more time than it had afforded to interested parties. The FCC therefore granted several petitions, including one filed by the American National Standards Institute Accredited Standards Committee, seeking extensions of the original deadlines for submission of written comments on the FCC’s proposals. The FCC stated that the additional time granted would give interested parties “an opportunity to more fully analyze and respond to“ the issues raised by the proposed rules. Acting through the Chief of its Office of Engineering and Technology, the FCC has extended the deadline for submission of initial written comments to October 9, 2015. The FCC has also extended the deadline for the submission of written reply comments to November 9, 2015.
For more than 15 years, the FCC has enforced essentially the same set of rules to regulate the design, manufacture, marketing and importation of radiofrequency (“RF”) devices for use in the United States. Such devices include products as diverse as personal and business computers, microwave ovens, “smart” wireless phones, software defined radios, modular transmitters, and small electric guitar tuners. In a Notice of Proposed Rulemaking (“NPRM”), issued on July 21, 2015, the FCC proposes new rules to help it “keep pace with the accelerating introduction of an ever-expanding breadth” of RF devices and products into the marketplace. RF devices are subject to FCC regulation because their operation may create harmful interference with FCC licensed wireless communications. Designers, manufacturers, retailers, importers and even certain users of RF devices are subject to the current FCC rules, and all would be affected by the new rules proposed by the FCC. When the proposed rules are published in the Federal Register, interested parties will have thirty days to submit initial written comments, followed by fifteen days for submission of reply comments, in support of or against all or any part of the proposed rules. This somewhat abbreviated schedule for comments, which the agency is required to consider, may imply that the FCC intends to move quickly to a final decision in this rulemaking proceeding, perhaps before the end of this year.
CURRENT REGULATION OF RF DEVICES
The FCC’s current rules provide that devices which intentionally or unintentionally radiate RF energy must be: tested in accordance with technical standards prescribed by the FCC; certified to be in compliance with such standards; labeled to reflect the type of certification applicable to the device; and include FCC prescribed language in the user’s manual for the device. If the RF device is manufactured in a foreign country and imported into the United States, a customs form prescribed by the FCC must be completed to establish that the device complies with the FCC’s rules. In any given case, the party responsible for compliance – the “Responsible Party” under the FCC’s rules -- could be the manufacturer, importer or retailer of the RF device.
Under the FCC’s current rules, it is necessary to determine which of three possible testing and certification procedures is applicable to an RF device. These procedures are: 1) testing and certification by the FCC itself, or an approved Telecommunications Certification Body (“TCB”); 2) Declaration of Conformity (“DOC”), a self-approval procedure; and 3) Verification, which is also a self-approval procedure. Each procedure requires different labeling and user manual instructions.
PROPOSED RULE CHANGES
The FCC purportedly proposes in its NPRM to streamline its rules for RF devices. As simply summarized in the NPRM, the FCC’s main proposals are as follows:
- Combine the DOC and Verification self-approval procedures into one procedure.
- Codify and clarify the procedures for certification of modular transmitters.
- Codify existing, but now informal practices to protect the confidentiality of market- sensitive information concerning new RF devices.
- Codify and expand guidance on the use of electronic labeling for certain RF devices.
- Eliminate unnecessary or duplicative rules, and consolidate into Part 2 of the FCC’s rules pertinent requirements that appear elsewhere in the FCC’s rules.
- Discontinue the requirement that importers file FCC Form 740 with Customs for RF devices.
However, the actual rule changes proposed by the FCC are quite detailed and, taken as a whole, would require Responsible Parties to comply with a new, complex regulatory scheme for RF devices. For example, the FCC proposes regulations to comply with the 2014 E-Label Act, which requires the FCC to allow manufacturers of RF devices with a display the option to use electronic display labeling to replace permanent external product labeling. So, when required label information can be read on an RF device’s own display, or on the display of a product into which the RF device is integrated, the FCC proposes a rule that would permit such electronic labeling in place of permanent external labeling. However, when electronic labeling is used, the user of the RF device would have to be provided with “prominent instructions” on how to access the required information. Those instructions would have to appear on either packaging material “or in another easily accessible format, at the time of purchase”. The information in the electronic display would have to be secure against tampering, but the purchaser of the product would have to be able to access the information without “any special codes or permission”. Small devices without display screens would still require external labels, although removable labels could be affixed by a retailer, if authorized to act as the Responsible Party when the retailer is eligible to so act. If a removable label is used, the FCC identifier on the label would also have to appear in the user manual for the device.
In other cases, the FCC proposes to extend the reach of its RF device regulations. For example, while the FCC proposes to eliminate the requirement that importers of RF devices file an FCC Form 740 with Customs, it also proposes to enforce its rules against the importation of non-compliant RF devices “against both the buyer and the seller”. Thus, a buyer who orders a non-compliant RF device directly from a foreign seller, without an intervening importer, could be held liable for violation of the FCC’s rules. More generally, the FCC proposes important changes to its technical standards that must be used to determine whether or not a particular RF device operates within the limits prescribed by the FCC’s rules, as well as other revisions to its Part 15 rules for RF devices. Any or all of the FCC’s proposals may be adopted, modified or abandoned by the FCC when it completes its rulemaking proceeding.
The significant changes proposed by the FCC to regulate an ever expanding array of RF devices deserve the attention of designers, manufacturers, importers and business users of such devices. These companies should consider the costs of having to change long established procedures to comply with the FCC’s proposed rules. If those costs would be substantial, the companies should consider active participation in the FCC’s rulemaking proceeding to oppose or suggest changes to proposed rules that would be too costly. Even if an affected company finds that the FCC’s proposals would not be too costly, it should monitor the FCC rulemaking proceeding for alternative or additional, potentially costly proposals that could be made by other interested parties. It should also prepare for compliance with a significantly revised FCC regulatory scheme for RF devices.