In a long-awaited decision, the Federal Communications Commission (FCC), at its July 2017 Open Meeting, updated its equipment authorization procedures and rules in a number of significant ways that manufacturers, importers, retailers, and others in supply chain for radio frequency (RF) would be well advised to heed.
In its First Report and Order in ET Docket No 15-170, following a 2015 Notice of Proposed Rulemaking, the Commission eliminated the verification and Declaration of Conformity (DoC) self-approval procedures in favor of a new Supplier’s Declaration of Conformity (SDoC) process, adopted rules to codify and refine permitted e-labeling practices, streamlined some aspects and clarified others of the importation rules the FCC oversees, and revised its measurement procedures and rules, including more direct cross-references to the FCC Laboratory’s Knowledge Database (KDB).
The new rules went into effect November 2, 2017, immediately upon publication in the Federal Register. While the rules contained modified information collection requirements, the Office of Management and Budget (OMB) concluded that they were non-substantive changes to currently approved collections, allowing all of the new rules to take effect simultaneously without further OMB review. One petition for reconsideration pf the First Report and Order was filed in December seeking modification of the importation rules to the extent they suggest that designated customs brokers may be responsible for determining compliance of imported RF devices within the FCC requirements.
Supplier’s Declaration of Conformity
The newly fashioned SDoC procedure will apply to devices in categories that have been subject to verification or the DoC process before they can be marketed, including importation, or operated in the United States. Under the SDoC process, in contrast with today’s DoC procedure, there will be no need for testing by accredited laboratories, especially in light of “significant improvements in and standardization of test standards and procedures (and the equipment used).” Rather, the “less rigorous” verification testing requirements will apply to all devices under the SDoC. However, lest there be an unwarranted conclusion the FCC is relaxing its expectations for testing, the Commission underscored in the First Report and Order that it reserves the right to demand for review the testing documentation upon which any SDoC relies.
While the Commission will continue to provide guidance as to acceptable test procedures and standards for SDoC-eligible devices, the Commission allows responsible parties to retain some of the current flexibility for demonstrating compliance through alternative means – for device types that have been subject to verification in particular –and specifies that other “measures” may be acceptable to validate the compliance of a device. Further, the FCC noted that there may be certain types of RF devices authorized via SDoC that are found to be more likely to cause harmful interference, in which case the Commission could remove such devices from its self-approval procedure and impose equipment authorization requirements – meaning certification by application and approval – on new such devices before they can, generally, be marketed or operated.
The SDoC process will not include the requirement, currently imposed only on DoC devices, for displaying the FCC logo, although the logo may be used on otherwise compliant SDoC devices at the discretion of the responsible party. The Commission cautioned that the FCC logo is not a substitute for the requisite compliance statement. However, all devices eligible for SDoC will be required to display a compliance statement and provide the identity of the responsible party, which is not the case with DoC equipment today. The FCC allowed that the SDoC compliance statement may be included with other information provided to the user instead of being displayed on the device itself, which is currently required for devices subject to verification.
The First Report and Order also tightened up the responsible party obligations, specifically requiring that the party responsible for compliance with the FCC Rules for a device or radio (whether the manufacturer, importer, or import broker) be identified in the compliance statement, along with contact information (telephone number or Internet-based means of contact, subject to certain restrictions) and must have a U.S. presence. The compliance statement may, but need not, be the location where other required information under the particular rules by which the device operates is provided.
The Commission rejected the suggestion that the DoC process should remain in effect for Part 18 industrial, scientific, and medical devices currently subject to DoC procedures. Recognizing that industry has yet to establish definitive test procedures for these devices, the FCC noted that guidance is available through the OET MP-5 test procedure, which will continue to apply to all Part 18 devices, and that efforts are underway to generate specific test standards augmenting the existing OET MP-5 test procedure. The FCC will explicitly rely on its Office of Engineering and Technology (OET) to provide any additional guidance to explain and supplement that test procedure document necessitated by evolving technology and applicant questions.
Under current Parts 15 and 18 of the FCC rules, for certain unintentional radiators, a responsible party can choose to use the certification process in lieu of the DoC procedure. The First Report and Order carried this option forward and explicitly provided, for those devices, they may undergo either the more rigorous certification process or the new SDoC process.
The Commission adopted several transition rules for the new SDoC process and elimination of the old processes. The new SDoC procedure will exist alongside the current processes of verification and DoC for one year, i.e., through November 2, 2018. Manufacturers and other responsible parties may continue to self-approve products using the existing DoC or verification procedures through that date. Further, the Commission provided that it will consider any equipment self-approved using verification or DoC prior to the end of the one-year transition period to have a valid authorization in perpetuity under the current verification or DOC rules, as applicable, provided the equipment is “not modified in a manner that would have required a new authorization under those rules.” But for any changes after November 2, 2018, to such equipment that would require a new authorization, the requirements associated with the SDoC will apply.
Electronic Labeling and Online Access to Regulatory Information
The First Report and Order codified the FCC’s electronic labeling procedures in furtherance of the Enhance Labeling, Accessing, and Branding of Electronic Licenses Act (E-LABEL Act). The Act makes e-labeling available on a voluntary basis to all RF devices the Commission authorizes that have the integrated “capability to digitally display labeling and regulatory information.” In response to the Congress’s mandate that the FCC “promulgate regulations or take other appropriate action, as necessary, to allow manufacturers of radio frequency devices with [digital] displays the option to use electronic labeling for the equipment in place of affixing physical labels to the equipment,” the First Report and Order adopted a final, permissive electronic labeling rule, with some exceptions. (If e-labeling is not used, then the traditional labeling rules apply.)
The FCC has incorporated into its e-labeling rules a maximum “three step” access requirement for when electronic labeling would be permissible. (Again, e-labeling is never mandatory.) Step one would always be a user accessing the device settings menu on the digital display. As an example of one “characteristic sequence,” accessing a submenu of legal information in step two and then a further submenu of FCC compliance information in step three would qualify. However, recognizing that there may be a lack of clarity in specific situations, the FCC directed OET to provide guidance in response to specific questions regarding compliance via the KDB inquiry process.
Specific instructions on accessing the e-labeling and compliance information must be included with the device (e.g., in the packaging material or operating instruction booklet). Alternatively, the responsible party can rely on a product-related website provided that the packaging material for the device states that this information is available on the Internet and provides “effective instructions” to access the relevant website (i.e., the instructions do not lead to a dead link or otherwise fail to provide sufficient information necessary to access the labeling and regulatory information).
The FCC prohibited other forms of electronic labeling such as Radio Frequency Identification (RFID) tags or Quick Response (QR) codes to substitute for the on-screen information display, and otherwise declined to permit displays that require the use of special accessories, supplemental software, or similar plug-ins. While the Commission does not regulate the use of screen locks, passcodes, or similar security protections designed to control overall device access and use and implemented by the owner(s)/user(s) of a device, the First Report and Order underscores that the Commission prohibits features specifically designed to control access to FCC-related information, such as a special key.
The new rules, in limited instances, will allow electronic labeling for devices that do not include an integrated screen provided such devices can only operate in conjunction with a device that has a screen. To be clear, the First Report and Order underscored that this exception only applies to devices with no operation or functionality as an RF device unless connected to the device having an electronic display, i.e., with no stand-alone utility.
As with traditional labeling requirements, the Commission adopted a legibility requirement for electronic labeling. The FCC also warned that the display may not be “too dim or displayed for too short a duration to be easily read.” By analogy, “just as physical labels must be ‘permanently affixed,’ . . . electronic labels must not be easily removed or replaced” or subject to modification by someone other than the responsible party.
While the First Report and Order explains that electronic labeling, if otherwise compliant, would apply broadly to information that must otherwise be placed on a device, it notes there are exceptions, “for example, when a message provides vital information about the use or deployment of RF equipment that a user would need to know before activating the device to look at a screen and it is not practical to expect the user to have ready access to the instruction manual or product website, then an electronic label will not be appropriate.”
Accordingly, the FCC warns that some safety-related warnings and other information, “given the context of their purpose,” may not be appropriate and physical labels may still be required. Indeed, the First Report and Order noted specific exceptions to e-labeling under the Part 95 Personal Radio Service rules, labeling requirements for Emergency Position Indicating Radiobeacons under Part 80, Part 87 labeling requirements for Emergency Locator Transmitters, and where a physical labeling requirement is incorporated in “documents incorporated by reference in our rules.” Further, the Commission’s rules requiring “the placement of warning statements or other information on device packaging or in user manuals or make information available at the point of sale are outside the scope of the E-LABEL Act” and the corresponding obligations are unchanged by the First Report and Order.
Responsible parties should note that electronic labeling rules will not obviate the need for separate labeling that serves purposes at the time of marketing or sale or during importation or distribution. The FCC noted that “[e]lectronic label information cannot reasonably be expected to be viewable when devices are packaged and encased in shipping materials and are uncharged or powered down.” Finding that temporary physical labels “will support ongoing oversight and importantly provides everyone in the supply chain, including wholesalers, distributors, and retailers, as well as initial purchasers [and Customs agents], an obvious assertion that a device comports with our technical requirements and is legal to import/sell/purchase in the U.S.,” the Commission will require that RF devices or their packaging be labeled so compliance with the FCC’s equipment authorization regulations can be readily identified “whether with a stick-on label or printing on the packaging or other similar means.”
The Commission also seized the opportunity to specifically adopt a rule for labeling small devices without the capability for an electronic display. In those cases, identifying information may be placed in a device’s user manual if it cannot be displayed on the device in four-point type or larger.
Modified Importation Rules
As expected, the First Report and Order eliminated the requirement – which has been suspended for some time – to file the FCC’s specific customs declaration (FCC Form 740) and modifies the rules specifying responsibility for the compliance of imported RF products. Responding to a variety of developments in recent years, including the “overlap of information” required on FCC Form 740 with information the Customs and Border Protection (“CBP”) agency collects routinely for imported goods and enhancements to its new electronic filing system, the Commission will discontinue use of FCC Form 740. The FCC emphasized that it is not “our intention to ask CBP to modify its filing requirements to ‘make up’ for the cessation of our data collection.” Rather, the Commission expects “the data currently collected by CBP, when considered along with other publicly available material, will satisfy [the FCC’s] compliance objectives and continue to support appropriate enforcement actions.” The Commission expects to monitor the situation in case future needs arise for further action, but no institution of alternative filing measures tied to importation is likely in the near term.
At the same time, the Commission underscored that it is “not eliminating the requirement that there is [a single] entity that assumes responsibility for the compliance of [an imported RF] device.” Accordingly, the First Report and Order modified Section 2.1203 of the rules to require a responsible party – the importer or ultimate consignee, or their designated customs broker – to “determine” that imported devices comply with the Commission’s importation regulations and will continue to provide a variety of remedies if non-compliant information is imported. The FCC, in short, despite elimination of the FCC Form 740 filing requirement, will continue to enforce the importation-related responsible party’s obligation to consider “whether an RF device meets the qualifications for entry and that it can document how it made that determination upon request by the Commission.” For clarity, the FCC added that the sharpening of Section 2.1203 “does not relieve from liability any other party within our jurisdiction who is liable for a violation of [its equipment authorization] rules.”
The sole petition for reconsideration of the First Report and Order was filed by the National Customs Brokers and Forwarders Association of America (NCBFAA) December 1, 2017. The NCBFAA asks the Commission to remove designated customs brokers from Section 1.1203(a) as potentially responsible parties for compliance with FCC rules because as intermediaries in the supply chain, brokers do not have the knowledge or expertise to make such determinations. The petition is pending.
The First Report and Order adopted the Commission’s proposal to permit importation of up to 400 devices of any type (licensed or unlicensed) for demonstration purposes at trade shows, provided that those devices will not be sold or marketed. Written approval from the agency can be sought to exceed that number in specific trade show situations.
Further, realizing that “importers would like to continue to import basic varieties of musical greeting cards, quartz watches, calculators, and similar devices with very low, battery-only power,” the First Report and Order retains an importation exemption that applies to unintentional radiators that operate only on low level battery power. Finally, the FCC revised its rules to allow an individual to import up to three devices, including those covered under the current exemption as well as intentional RF transmitters identified under its rules as client or subscriber devices for the individual’s own use.
Measurement Procedures and KDB Guidance
The Commission’s Laboratory’s Knowledge Database has long been a source of crucial guidance, even though that guidance is not, as a general matter, codified in the rules. As a partial amelioration of that situation, the First Report and Order modified Part 2 of the FCC rules to include express references to the advisory information in the Knowledge Database. The FCC hopes thereby to direct increased attention by importers, manufacturers, retailers, and others to the guidance that the KDB provides. More specifically, the FCC revised rule sections that set forth measurement procedures for RF devices operating under the Part 15 unlicensed device rules and Industrial, Scientific, and Medical (ISM) Equipment under the Part 18 rules to reference KDB advisory procedures in order to aid parties seeking to obtain equipment authorizations to select and employ a suitable process for the tested device.
The Commission also revised the specific measurement procedures covered in Part 15 to eliminate redundancy with the ANSI C63.4-2014 and ANSI C63.10-2013 procedures, but also to clarify when specific variances from those procedures would be permitted, such as the frequency range of measurement set out in the rules. The FCC thereby hopes to avoid ambiguity should a future version of ANSI C63.10-2013 exclude a frequency range or a party is relying on an alternative procedure permitted by
the rules.
Finally, the Commission changed the rules to make plain that ANSI C63.26-2015 is an acceptable measurement procedure for equipment that operates in authorized radio services specifically covered by the measurement standard, where required in Part 2 of the rules. But because the ANSI standard does not cover all of the license services, the First Report and Order retained the additional procedures in the current rules to cover these cases.
Conclusion
The First Report and Order is a significant step taken by the Commission to streamline and simplify some of the equipment authorization rules. The coming months and years, now that the rules are in effect, will demonstrate just how successful these steps will be. Further, as the rules are implemented and followed and markets and technologies change, including novel and dynamic spectrum sharing mechanisms, the need for additional refinements and new rule modifications will no doubt emerge.
Chip Yorkgitis is a partner in the Washington, D.C. office of the law firm Kelley Drye and Warren LLP, where his practice focuses on telecommunications issues including regulatory compliance and spectrum management. He holds an A.B. (Astrophysical Sciences) degree from Princeton University and a J.D. degree from the Harvard Law School. Yorkgitis can be reached at cyorkgitis@kelleydrye.com.
